Hill v. Robinson

• Decision Date: 29 November 1979
• Docket Number: No. 1202,1202
• Citation: 592 S.W.2d 376
• Parties: Robert Ashton HILL et al., Appellants, v. Davis Ashton ROBINSON et al., Appellees.
• Court: Texas Court of Appeals

Page 376

592 S.W.2d 376

Robert Ashton HILL et al., Appellants, v. Davis Ashton ROBINSON et al., Appellees.

No. 1202.

Court of Civil Appeals of Texas, Tyler.

Nov. 29, 1979.

Rehearing Denied Jan. 3, 1980.

Ray A. Bass, III, Robert B. Wallis, Haynes & Fullenweider, Richard K. Loesby, Charles F. Browning, Orsburn & Browning, R. Mayo Davidson, Houston, for appellants.

W. Robert Brown, George W. Tenney, Liddell, Sapp, Zivley & Brown, R. Michael DeGuerin, Foreman & DeGuerin, Houston, for appellees.

MOORE, Justice.

This is a suit brought under the Wrongful Death Statute seeking damages for the murder of Dr. John R. Hill. Appellants, Myra Hill, ¹ individually and as executrix of the estate of Dr. John R. Hill, deceased; and Connie Hill, ² individually and as guardian of Robert Hill, ³ instituted suit against appellees, Davis Ashton Robinson, Lilla Paulus, and Marsha McKittrick, alleging that Dr. Hill was killed as a result of a murder-for-hire conspiracy perpetrated by the appellees. Appellants alleged that Dr. John R. Hill was the victim of a heinous murder-for-hire conspiracy undertaken by the named appellees herein and other unknown co-conspirators. They alleged that appellee, Ash Robinson, who was the former father-in-law of Dr. John R. Hill, secretly met with appellee Lilla Paulus and made a contract for the murder of Dr. Hill. Under this contract, appellee Ash Robinson is alleged to have paid $25,000.00 to appellee Lilla Paulus. Appellants alleged that in return appellee Lilla Paulus agreed to and eventually did contact and hire Bobby Wayne Vandiver, and was assisted in her efforts to hire Vandiver by appellee Marsha McKittrick. Appellants alleged that Paulus paid $5,000.00 to Vandiver, and thereafter, on September 24, 1972, Dr. Hill was shot and killed in his home by Vandiver. ⁴ Appellants further alleged that the conspiracy to murder Dr. Hill was instigated by appellee Ash Robinson, who acted out of revenge and hatred for the deceased, Dr. Hill, and that Robinson's hatred and act of revenge stemmed from the earlier death of his daughter, Joan Robinson Hill, who was the first wife of the deceased. Appellees Ash Robinson and Lilla Paulus answered, denying generally the allegations of the petition. Appellee Marsha McKittrick failed to answer, and an interlocutory default judgment was entered against her.

The case was submitted to the jury upon special issues. Under Special Issue No. 1 the jury was requested to find whether a conspiracy existed between two or more persons, the purpose of which was to take the life of Dr. John R. Hill. In response to the special issue the jury answered: "We do not." Pursuant to the jury's finding, the trial court entered a take-nothing judgment against appellants, from which judgment they perfected this appeal. For convenience the parties will sometimes be hereinafter referred to only by their last name.

We affirm.

Dr. John R. Hill, deceased, was originally married to Joan Robinson Hill, daughter of appellee Ash Robinson. Born of the marriage was one son, appellant Robert Ashton Hill. In 1969, Joan Hill became ill with a rather unusual type of illness. She was treated by her husband, Dr. Hill, and subsequently died. Shortly thereafter, Dr. Hill married Ann Kurth. Ash Robinson accused Dr. Hill of having murdered his daughter by placing a poisonous substance in her food. Much bitterness and animosity developed between Robinson and his former son-in-law, Dr. Hill. In 1970, Dr. Hill was indicted and tried for the murder of his former wife, Joan Hill. The case resulted in a mistrial and at the time of Dr. Hill's death the murder charge was still pending against him.

After divorcing Ann Kurth, Dr. Hill married appellant, Connie Hill, on June 17, 1971. They resided in Dr. Hill's home in Houston, Texas, along with Dr. Hill's minor son, Robert Hill. Appellee, Ash Robinson, maintained his residence in Houston as did appellee Lilla Paulus. Robinson had known Paulus for several years, having become acquainted with her at horse shows and riding stables attended by Joan Robinson and the daughter of Mrs. Paulus. As a result, Paulus learned of Robinson's hatred and bitterness toward Dr. Hill.

In January, 1972, Paulus met appellee Marsha McKittrick, a prostitute, who thereafter occasionally lived in the Paulus home. Paulus sometimes supplied McKittrick with clients. Thereafter, McKittrick met Bobby Vandiver, an ex-convict, and introduced him to Paulus. Vandiver occasionally lived with McKittrick in the Paulus home. During this period, Ash Robinson visited in the Paulus home where he met Marsha McKittrick.

On September 24, 1972, the day Dr. Hill was murdered, Myra Hill was staying at the Hill home, caring for Robert Hill while Dr. Hill and Connie Hill were attending a medical convention in Las Vegas, Nevada. At about 7:00 p. m. that evening, McKittrick drove Vandiver from the Paulus home to the Hill home. Vandiver went to the front door and forced his way in at gunpoint. He forced Myra Hill and Robert Hill into the dining room area where they were bound and gagged. Vandiver knew that Dr. Hill and Connie Hill were scheduled to arrive from Las Vegas shortly thereafter. He had been informed by Paulus that Dr. Hill would be carrying a large sum of money. When Dr. Hill and his wife came in the front door, Vandiver announced that it was a robbery and immediately seized the collar of Connie Hill's dress. A violent struggle ensued, and Vandiver finally shot and killed Dr. Hill. He took the doctor's wallet and briefcase and fled. He later contacted McKittrick as planned, and they both drove back to the Paulus home. They immediately left for California.

Later, both Paulus and McKittrick were convicted for the murder of Dr. Hill. At that time, Vandiver, although having made bond, was a fugitive. After his arrest, he was offered certain amenities provided he would cooperate. He then made a confession implicating Robinson, Paulus, and McKittrick as co-conspirators. After being released from jail, he was shot and killed by a policeman in Longview, Texas.

When the present suit came to trial, Paulus refused to testify, relying on the rights granted her under the Fifth Amendment of the United States Constitution. Consequently, in order to establish their allegations of a conspiracy, appellants were compelled to rely upon the testimony of appellee, Marsha McKittrick. After being called as a witness by appellants, McKittrick testified that she was present in the Paulus home when Paulus hired Vandiver to murder Dr. Hill for the sum of $5,000.00. She testified that Paulus later told her that Ash Robinson was paying to have Dr. Hill killed. According to her testimony, she had seen Ash Robinson in the Paulus home on three different occasions and had heard him say that he did not believe justice would be done until Dr. Hill was dead. After Paulus had hired Vandiver, McKittrick testified that she was with Paulus on several occasions when Paulus met with Ash Robinson in his automobile at various parking lots in Houston. She testified that on one occasion she saw Robinson pass Paulus what appeared to be a dark roll, which was about one and one-half inches long and one and one-quarter inches in diameter. On one occasion while Robinson was in the Paulus home, McKittrick testified that she overheard him tell Paulus that he was paying her in "unrecorded" bills that could not be traced. She testified that on the morning of the murder, she overheard Robinson tell Paulus that Dr. Hill would return from Las Vegas that night carrying a large sum of money and heard Robinson say that "it should be taken care of before Hill went back to trial." She admitted, however, that she never heard Robinson discuss the murder of Dr. Hill. She testified that after the murder Paulus gave Vandiver the $5,000.00 and told her that she had gotten it from Ash Robinson.

While testifying in his own behalf, Ash Robinson admitted that for a year and a half after the death of his daughter Joan, he was extremely vindicative toward Dr. Hill and continued to believe that he was responsible for her death. He denied, however, that he wanted Dr. Hill killed. Although he admitted that he had been in the home of Lilla Paulus on one occasion, he denied that he had ever given her any money or discussed the murder of Dr. Hill. He denied that he had ever met or talked to Vandiver, and there is nothing in the record to the contrary. In short, Robinson emphatically denied that he had anything whatsoever to do with the murder of Dr. Hill.

It is obvious from the record that the major thrust of the defense was to show that the death of Dr. Hill was the result of an armed robbery rather than the work of a hired killer. In an effort to prove the point, the defense called Howard Douglas Sullins, who testified that he had known McKittrick for some time, and that he had seen her in the summer of 1973 shortly after her release from prison, at which time she told him that the Hill murder was nothing but a "robbery gone sour."

Inasmuch as appellants do not attack any of the jury's findings, we will not burden this opinion with a further discussion of the evidence.

Under their first point of error, appellants urge that the trial court erred in refusing to admit into evidence the confession of Bobby Vandiver, deceased, because the confession, they say, was relevant and admissible as a declaration against interest and therefore was admissible as an exception to the hearsay rule. ⁵

In his confession, Vandiver recounted the incident herein described above. He confessed to armed robbery, aggravated assault, conspiracy, illegal possession of a weapon, interstate flight to avoid prosecution, and the murder of Dr. Hill. He implicated Marsha McKittrick as a co-conspirator and as an accomplice. He also implicated Lilla Paulus, stating that she employed him and paid him for the murder of Dr. Hill. Although the confession did not mention appellee Ash Robinson by name, the...