Hill v. Lockhart, 89-2558

• Decision Date: 30 May 1991
• Docket Number: No. 89-2558,89-2558
• Citation: 927 F.2d 340
• Parties: Steven Douglas HILL, Appellant, v. A. L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 340

927 F.2d 340

Steven Douglas HILL, Appellant, v. A. L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 89-2558.

United States Court of Appeals Eighth Circuit.

Submitted June 13, 1990.

Decided Feb. 28, 1991.

Rehearing and Rehearing En Banc

Denied May 30, 1991.

Charles L. Carpenter, Jr., North Little Rock, Ark., for appellant.

Jack Gillean, Little Rock, Ark., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Steven Douglas Hill was convicted of capital murder and sentenced to death for the murder of police officer Robert Klein. After exhausting his state remedies, see Hill v. State, 292 Ark. 144, 728 S.W.2d 510, cert. denied, 484 U.S. 873, 108 S.Ct. 208, 98 L.Ed.2d 159 (1987); Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1331, 94 L.Ed.2d 182 (1987), Hill filed a petition for writ of habeas corpus and the District Court ¹ denied relief. Hill v. Lockhart, 719 F.Supp. 1469 (E.D.Ark.1989). Hill raises several issues in his appeal to this Court: (1) the jury was permitted to ignore a statutory mitigating circumstance; (2) the jury was permitted to consider an impermissibly vague aggravating circumstance; (3) the prosecutor made an improper argument during closing argument at the sentencing phase of the trial; (4) the District Court erred in not setting aside Hill's conviction and sentence on the basis of an affidavit by Hill's accomplice, Michael Cox, stating that Cox and not Hill shot the officer; (5) the District Court erred in admitting Hill's pretrial confession; and (6) Hill received ineffective assistance of counsel. We affirm.

On October 15, 1984, Hill and Cox escaped from a unit of the Arkansas Department of Correction. Shortly after dark, they arrived at the home of an elderly couple, Merle and Billie Jo Rice. They robbed the Rices of money, a 16-gauge shotgun, an automatic carbine, and a 20-gauge automatic shotgun, and tied them up. Hill threatened to rape Mrs. Rice and told Mr. Rice he was going to kill him but Cox dissuaded Hill from both actions. The escapees left the Rice home at approximately 10:30 p.m. in the Rice's pickup truck and proceeded to an unoccupied residence some two miles from the Rice home. Several police officers soon arrived at the scene after spotting the Rice's pickup in the driveway. As officer Robert Klein and Lieutenant Conrad Patillo approached the garage behind which Hill was hiding, Klein was shot and killed by a 20-gauge shotgun blast. Patillo was fired upon but not injured. Several hours later, at approximately 4:30 a.m., tear gas forced the two men, who had barricaded themselves in the garage, to surrender.

The uncontroverted evidence at trial indicated that Cox had secreted himself in the attic of the garage prior to Klein's murder, and did not see or participate in the shooting. After his surrender, Cox was found in the attic with an automatic carbine that had not been fired. The 20-gauge automatic shotgun--the murder weapon--and twenty-one shotgun shells were found in a corner of the lower room where Hill had hidden behind a mattress. Hill and Cox were taken to police headquarters where they were read their Miranda rights and made videotaped statements. Hill readily admitted using the 20-gauge shotgun to kill Klein.

Hill was charged with capital murder, attempted capital murder, escape, burglary, theft, aggravated robbery, and kidnapping. He pled guilty to all charges except capital murder and attempted capital murder. Hill was tried by a jury and found guilty of both capital murder and attempted capital murder. After a bifurcated trial, the jury imposed the death sentence on the capital murder charge and fifty years imprisonment on the attempted capital murder charge. Hill now challenges his conviction and death sentence.

I.

Hill first argues that his sentence should be set aside because the jury found no mitigating factors despite the fact that Hill was only eighteen at the time of the murder and the youth of the defendant is set out by statute as a mitigating factor to be considered in imposing the death sentence. Ark.Code Ann. Sec. 5-4-605(4) (1987).

The jury verdict form concerning mitigating circumstances gave the jury four choices--unanimous agreement that a certain mitigating circumstance existed, partial agreement that a certain mitigating circumstance existed, unanimous agreement that although there was evidence of a particular mitigating circumstance, it did not exist at the time of the murder, and unanimous agreement that there was no evidence of any mitigating circumstance. The jury selected the fourth option, indicating that they found no evidence of any mitigating circumstance. In rejecting Hill's argument that the jury's selection demonstrates that it improperly ignored the evidence of youth placed before it, the Arkansas supreme court stated:

We do not interpret the jury's action to mean that they did not consider the evidence of mitigation that was offered. Rather we find the jury determined that the appellant's youth was not a mitigating factor, as they were entitled to do, and so indicated that no mitigating circumstances were found.

Hill, 289 Ark. at 396, 713 S.W.2d at 238. We find this interpretation entirely persuasive.

The Arkansas statute does not define youth in terms of mere chronological age. "Any hard and fast rule as to age would tend to defeat the ends of justice, so the term youth must be considered as relative and this factor weighed in the light of varying conditions and circumstances." Giles v. State, 261 Ark. 413, 421, 549 S.W.2d 479, 483 (en banc), cert. denied, 434 U.S. 894, 98 S.Ct. 272, 54 L.Ed.2d 180 (1977). In Giles, the defendant, aged twenty, contended that the statutory factor of youth was imprecise because the jury in his case failed to find youth as a mitigating factor while the jury in a recent prior case found that the defendant's twenty years of age mitigated against a death sentence. In rejecting this argument, the Giles court stressed the unique ability of the jury to observe the defendant throughout trial and assess his alleged "youth" based on his age, "mental and physical development, experience and criminal tendencies." 261 Ark. at 421, 549 S.W.2d at 483. The Giles court did remand the case for resentencing because the jury found no mitigating circumstances when the evidence was undisputed that the crime was committed when the defendant's ability to conform his conduct to the requirements of the law was impaired by mental disease or defect. 261 Ark. at 421, 549 S.W.2d at 484. Giles clearly demonstrates that the jury's obligation to consider mitigating evidence presented to it is consistent with its liberty to determine whether an individual's age operates as a mitigating circumstance at all. The determination of whether an individual qualifies as a youth for purposes of mitigating against the death penalty is a subjective one appropriately made by a properly instructed jury.

We believe the jury in the instant case evaluated Hill's age--eighteen and an adult under Arkansas law--his criminal history and experience, and the seriousness of the crimes for which he was charged, and simply rejected his youth as a mitigating factor. We do not agree with Hill's argument that the only proper selection for the jury to have made in this circumstance was option three--evidence of a particular mitigating circumstance was presented but did not exist at the time of the crime. This option seems to apply mainly to factors such as insanity or diminished capacity, i.e., mental or physical deficiencies which may exist at one time in an individual's life and not exist at another. Hill was necessarily only one age when he committed the crime and there was no decision to be made by the jury as to his age at the time of the crime. The only decision to be made by the jury was whether Hill's youth mitigated against the death penalty. The jury was repeatedly reminded of Hill's relatively young age throughout the trial and in the opening and closing arguments of Hill's counsel. We are confident that the jury did not ignore this evidence. We believe the jury merely determined, as was its right, that Hill was not a youth for purposes of Sec. 5-4-605(4) and that, therefore, no mitigating circumstance existed.

II.

Hill next claims that the jury was permitted to consider an impermissibly vague aggravating factor in its decision to impose the death penalty. Specifically, Hill alleges that the statutory aggravating factor which allows the jury to impose death if it finds that the defendant previously committed a violent felony, Ark.Code Ann. Sec. 5-4-604(3) (1987), is impermissibly vague because it does not define "previously committed." Hill argues that it was improper for the jury to be allowed to consider the violent crimes he committed at the Rice residence prior to Klein's murder because they were part of the same criminal episode as the murder.

This argument was advanced without success in Hill's direct appeal to the Arkansas supreme court. The court stated that the purpose of section 3 is "to allow the state to show that the defendant has a character for violent crimes or a history of such crimes." Hill, 289 Ark. at 395, 713 S.W.2d at 237. The court continued:

Since there are other avenues by which the state can prove crimes immediately connected with the principal crime, the only logical conclusion is that section (3) applies to crimes not connected in time or place to the killing for which the defendant has just been convicted. In this case the crimes used to prove an aggravated circumstance involved other victims, in another place and previously in time. Therefore, they were properly used as an aggravating circumstance.

289 Ark. at 395-96, 713 S.W.2d at 237. A state court's interpretation of state law is binding upon this Court. See, e.g., Williams v. Lockhart, 873...