Henry v. State, CR

CourtSupreme Court of Arkansas
Citation278 Ark. 478,647 S.W.2d 419
Docket NumberNo. CR,CR
PartiesBilly Gale HENRY, Appellant, v. STATE of Arkansas, Appellee. 82-52.
Decision Date28 February 1983

Michael Dabney, Deputy Public Defender, Fayetteville, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

Appellant was convicted as an accomplice to capital murder, hindering apprehension or prosecution and of being an habitual offender. He was sentenced to death for felony murder and to 40 years imprisonment for hindering apprehension or prosecution. On appeal appellant argues 14 points; they will be set out in the body of this opinion. We do not find prejudicial error but by comparing we reduce appellant's death sentence to life without parole.

The appellant and Rodney Britton were together on the date the West Fork Chief of Police was killed. Britton had spent a few days camped out on the farm where appellant lived with his mother near Mountainburg, Arkansas. On March 20, 1981, the appellant and Britton spent the day in and around the City of Fayetteville. Shortly after 9:00 o'clock p.m. on that date the Pizza Hut North in Fayetteville was robbed by an armed intruder. Subsequently Britton was identified as the man who robbed the Pizza Hut North. Appellant stated that he and Britton were at a cafe in Fayetteville at 9:00 p.m. on the date in question, but that Britton borrowed another car and was gone for about 20 minutes. Appellant contended that when Britton returned he obtained the keys to appellant's car, opened the trunk, placed a jacket in the trunk and took out one of another color and put it on. Shortly after 10:00 p.m. Britton and appellant headed south on U.S. Highway 71, toward Mountainburg, when they stopped at a service station in West Fork to obtain gas. The service station attendants were in the process of closing and refused to sell them any gas. At that time appellant, who had been driving, got out of his car, walked around to the passenger side and Britton moved over to the driver's position. The facts indicate appellant had been drinking and also taking medication for heart disease. He gave the appearance of being intoxicated because the attendants stated he staggered when he walked around the car. After the car pulled away an attendant notified Chief Paul Mueller that the occupants of the car appeared to be drinking. Chief Mueller then proceeded south on Highway 71 in an attempt to overtake the car. Mueller caught up with the suspects and using his bluelight pulled them over to the side of the road. While making the stop he radioed that the parties in the vehicle were acting "squirrely." That was his last message. After he stopped the car the appellant got out of the passenger side and started back toward the officer's car when Chief Mueller told him to get back in the car, stating he wanted to talk with the driver. Britton then got out of the driver's side and immediately four shots were fired. A nearby resident testified that the first two shots were louder than the second two shots. Britton was using a .44 caliber magnum pistol and Chief Mueller had a .38 caliber magnum pistol. Chief Mueller was shot twice by Britton and apparently the chief fired one round which struck the appellant in the back. The other bullet fired by the chief hit the trunk and passed into the passenger compartment of appellant's vehicle. A witness arrived on the scene as Britton was driving appellant's car away. The witness found Chief Mueller, with pistol in hand, dying on the shoulder of the road in front of his vehicle. At that time appellant was in the edge of a ditch. The wounds to appellant turned out not to be too serious.

Back-up officers arrived on the scene within a matter of minutes and one of them, armed with a shotgun, approached appellant who stated: "Don't shoot, I surrender," or "Don't shoot, I give up" or "Don't shoot, I've been shot." Appellant stated to police officers at the hospital that he did not know the identity of Britton who he stated was a hitchhiker. Appellant's vehicle was found a mile or so down the road, out of gas. It was towed to the police department and searched without either a warrant or asking appellant for permission to search the vehicle. The search produced, among other things, a green money bag which was identified by the employees of the Pizza Hut as one which was used in the robbery of that establishment. Officer Doug Fogley, who conducted the search, knew that appellant was in the hospital in Fayetteville at the time of the search. Fogley also administered a trace metal detection test on appellant and determined that he had not handled a gun that evening. The following morning Fogley and four other officers interrogated appellant in the intensive care unit of the Veterans Administration Hospital in Fayetteville. The interrogation was conducted with the consent of the attending physician. During this interrogation appellant indicated that he had picked up Britton as a hitchhiker. (Britton was killed several days later in a shootout with the police not far from the scene of the death of Chief Mueller.)

During the trial it was established that Britton and appellant had become acquainted while serving time together at Leavenworth Federal Penitentiary. There was no dispute but that appellant knew the identity of Britton when he said he did not know him. Appellant was allowed to serve as co-counsel during his trial. After his conviction as an accomplice to capital murder and hindering apprehension and prosecution he was allowed to address the jury on the penalty phase. During this argument he requested that the jury give him the death penalty rather than life imprisonment. The jury obliged.

I.

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR SEVERANCE OF THE OFFENSES OF HINDERING APPREHENSION AND ACCOMPLICE TO CAPITAL MURDER.

The evidence clearly indicated that it was Britton who fired the shots which killed Chief Mueller. There was no direct evidence that appellant actively assisted in the shooting of the officer. Our established law is that granting or refusing a severance is within the discretion of the trial court. Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), A.R.Cr.P. Rule 22.2(b) states:

(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of offenses:

(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense...

Pursuant to the foregoing rule the trial court determined that it was not necessary to grant a severance in order to promote a fair determination of the defendant's guilt or innocence. The facts necessary to prove the offenses would almost all be required in each trial if a severance were granted. Evidence of the Pizza Hut robbery was found in appellant's car. This evidence would be used in both trials, as would other acts and evidence, to establish a plan, scheme, motive or state of mind. The conduct of appellant, both before and after the murder, would be admissible for the purpose of showing a plan or scheme. A.R.Cr.P. Rule 21.1(b) provides that offenses may be joined for trial when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978). The trial court did not abuse its discretion in refusing to sever the offenses in this case.

II.

THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT.

The appellant argues that the evidence was insufficient to support the conviction of capital murder. We realize that the evidence is primarily circumstantial but it was of such force that it would induce the mind of the average person to pass beyond suspicion and conjecture. It was of sufficient force and character to support a finding of reasonable and material certainty and to compel a conclusion one way or the other. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

The evidence revealed that appellant and Britton had been together most of the day and that both were present at the time of the shooting of Chief Mueller. They were in appellant's automobile and evidence of the robbery of the Pizza Hut was found in the automobile which was owned by the appellant and driven by Britton. Several witnesses testified as to the association of appellant and Britton while they were at Leavenworth. Most of the witnesses indicated that appellant was not a friend of Britton's. One inmate from Leavenworth testified that he had observed Britton and appellant discussing legal matters as they ate together at Leavenworth. Appellant was released from Leavenworth prior to Britton's release. Britton arrived at appellant's residence on March 15, 1981. He stayed in or around the appellant's residence until the death of Chief Mueller on March 20, 1981. Appellant falsely told the officers that he did not know Britton. There is considerable other evidence supporting the finding that appellant and Britton were acting together at the time of the death of Chief Mueller. It is the province of the jury to determine the credibility of the witnesses. Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980). The jury is free to disregard the testimony of the appellant if it so chooses. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). This court will not disturb the jury's findings regarding credibility of the witnesses. Wright v. State, 177 Ark. 1039, 9 S.W.2d 233 (1928).

Ark.Stat.Ann. § 41-303 (Repl.1977) defines an accomplice as a person who solicits, advises, encourages or coerces the other person to commit the crime or who aids, agrees to aid, or attempts to aid the other person in planning or committing it. Also, if the person has a duty to prevent the commission of an offense and fails to...

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