Henderson v. State, CR
| Decision Date | 18 September 1997 |
| Docket Number | No. CR,CR |
| Parties | Michael HENDERSON, Appellant, v. STATE of Arkansas, Appellee. 97-53. |
| Court | Arkansas Supreme Court |
William C. McArthur, Little Rock, for Appellant.
Winston Bryant, Attorney General, Brad Newman, Little Rock, for Appellee.
Appellant Michael Henderson was found guilty of capital murder for the shooting death of Billy Little; attempted capital murder of the victim's brother, Arley Little; and aggravated robbery. He was sentenced to life in prison without parole for capital murder. 1 He appeals on grounds of (1) insufficiency of the evidence; (2) trial court error in not suppressing his statement to police officers; and (3) trial court error in allowing hearsay statements from an uncharged co-conspirator. Henderson raises a fourth issue of trial court error in not giving a manslaughter instruction, but he concedes in his brief that our case law renders this issue either moot or harmless error. We agree with him that his statement to deputy sheriffs should have been suppressed, and we reverse and remand for further proceedings.
The events in question occurred on May 7, 1994. At trial, Arley Little testified that he and his brother, Billy Little, owned a used furniture store and that it was common for them to be carrying large amounts of cash. He stated that on May 7, 1994, he and Billy Little met with Larry Harris, who had purchased a refrigerator from them and wanted a refund because the appliance did not function properly. Little explained that he and his brother picked up the refrigerator and loaded it on their truck, refunded the money to Larry Harris, and left for an auction in DeValls Bluff. Arley Little estimated that on that date he and his brother were carrying about $16,000 to $20,000 in cash.
Little further testified that they left the auction in DeValls Bluff and drove into Pulaski County on Highway 70 after 9:00 p.m. At that time, he heard a loud noise and saw that his brother had been shot in the jaw. He testified that a small white car passed them, continued down the road, turned, came back, and fired again at the truck. On the white car's second pass, his brother was shot in the head and collapsed on his shoulder. He testified that he took control of the truck and continued to drive along Highway 70 when the white car approached from behind and came alongside the truck for a third time. Arley said that shots were again fired into the truck and that the white car continued ahead of them until it took an entrance ramp onto Interstate 40. Arley Little survived the incident without serious injury, but he could not identify any occupants of the white car and was unable to testify as to the precise number of shots fired into the truck. Billy Little died as a result of the gunshot wounds to his head.
Corporal Terry Ward of the Pulaski County Sheriff's Department testified that he spoke with Larry Harris at the sheriff's department on September 27, 1994, and that Larry told him where he could find the gun that was used in the crime. The weapon, a .380 semiautomatic pistol, was retrieved in Lonoke County. Ronald Andrejack, a firearms and toolmark examiner with the Arkansas State Crime Lab, opined that the three bullets retrieved from Billy Little's truck and the shell casings retrieved from Highway 70 were fired from the .380 semiautomatic pistol found by the investigating officers.
The issue of who fired the shots at the Little truck was contested at trial. Corporal Ward introduced a taped statement given by Henderson to Pulaski County deputy sheriffs on September 28, 1994. In that statement, Henderson explained that on May 7, 1994, he and Gary Harris, his cousin and the brother of Larry Harris, planned to rob the Littles. He stated that Gary Harris drove his white Nissan Maxima with Henderson as a passenger and they followed the Little truck after the Littles left the auction in DeValls Bluff. Henderson stated that they pulled alongside the truck to order it to pull over when the truck swerved at them. Henderson explained in his statement: "[H]e swerved at us, things got out of hand, and we passed him after I pulled the trigger the first time, and then, then I freaked out and ah, of course, I didn't want no witnesses, you know, or anything like that, saying that we did it[.]" He stated that Gary Harris drove the vehicle but did not do any of the shooting.
Gary Harris testified at trial for the prosecution and acknowledged that he pled guilty to first-degree murder, attempted capital murder, and attempted aggravated robbery and received a sentence of 80 years' imprisonment for his involvement in the crime. He testified that Henderson and Larry Harris, his brother, planned the robbery and that he only learned of the plan to rob the Littles the day the crime occurred. He stated that his job was to drive his car, the white Nissan Maxima. He admitted that he owned the .380 semiautomatic pistol used in the crime. He stated that they made three passes at the Little truck, and Henderson fired all of the shots.
In his own defense, Henderson testified that he turned 18 on May 4, 1994, and that he was celebrating three days later on the day of the murder by drinking alcohol and taking crystal methamphetamine when Gary and Larry Harris came to him with the idea to rob the Littles. During the robbery attempt, when their car pulled up beside the Little truck, Henderson stated that Gary Harris swerved and the gun "went off." Henderson testified that from that point he "was just freaking out and telling Gary to go on and leave and go[.]" According to Henderson, the remaining shots, which were the fatal shots, were fired by Gary Harris. Henderson maintained at trial that he "did not personally kill Mr. Little."
Also testifying for the defense was Jennifer Collier, Henderson's former girlfriend, who stated that Gary and Larry Harris came to Henderson with the plan to rob the Littles. She testified that she heard Gary Harris say later that he had "shot a round and it felt good."
We first address Henderson's contention that the evidence against him was insufficient. We do so because the double-jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996).
At trial, Henderson moved for a directed verdict on all three counts against him on the sole ground that, while there was sufficient evidence of his intent to rob the Littles, there was no proof that he actually attempted to commit the robbery. Henderson maintains that because the charge was for capital felony murder, which requires the element of a killing in the furtherance of an enumerated felony, proof of attempted robbery was critical. Ark.Code Ann. § 5-10-101(a)(1) (Repl.1993).
We decline to reach the merits of this issue. Compared to the relatively narrow motion for directed verdict made by Henderson which was limited to the State's failure to prove an actual robbery attempt, Henderson now contends that the State's evidence was insufficient as a matter of law because his conviction rested on two untrustworthy items of evidence: (1) the testimony of an accomplice, Gary Harris, who was also charged in this matter; and (2) his statement to police officers, which should not have been admitted into evidence due to an illegal arrest. Because of this, the State urges that Henderson has changed his sufficiency argument on appeal. We agree.
It is blackletter law that a party cannot change his grounds for an objection or motion on appeal and that parties are bound by the scope and nature of their arguments made at trial. Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996); Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). In this regard, specific arguments in support of a directed-verdict motion are waived if not made to the trial court and may not be raised for the first time on appeal. Id. Following Evans v. State, supra, we refuse to consider Henderson's arguments of insufficient evidence made for the first time on appeal.
Prior to trial, Henderson moved to suppress his statement to Pulaski County deputy sheriffs as the fruit of the poisonous tree. His point in part was that the underlying arrest was illegal because it was made by deputies from the Pulaski County Sheriff's Department while in Lonoke County, which was outside their territorial jurisdiction. The trial court denied his motion, and he makes the same argument on appeal.
At the suppression hearing prior to trial, Corporal Terry Ward testified about the circumstances leading up to Henderson's arrest and his statement to Pulaski County deputy sheriffs. He testified that Gary Harris, after confessing to his involvement in the murder, volunteered to wear a body mike in order to implicate Henderson. Corporal Ward testified that he contacted Ernest Bush, who was a member of the Pulaski County Sheriff's Department and who was also a member of the Metropolitan Little Rock Violent Crimes Joint Task Force (MetRock). Detective Bush had been deputized both as a special agent with the F.B.I. and as a U.S. Marshal. He testified that his MetRock duties often caused him to act in an official capacity outside of Pulaski County, and, thus, he had been deputized throughout the state. Detective Bush testified that he acquired a body recording device from the F.B.I. and received permission to do so from his supervisor, F.B.I. Special Agent Peatross. He testified that he was not told by his supervisor to make an arrest; rather, he was given permission to use the recording device. However, he stated that Special Agent Peatross knew that he would be involved in the investigation of the crime.
Corporal Ward testified that the decision was made to arrest Henderson without a warrant in Lonoke County after...
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