Hill v. State

• Decision Date: 05 February 1998
• Docket Number: No. CR,CR
• Citation: 331 Ark. 312,962 S.W.2d 762
• Parties: Darrel Wayne HILL, Appellant, v. STATE of Arkansas, Appellee. 96-33.
• Court: Arkansas Supreme Court

Page 762

962 S.W.2d 762

331 Ark. 312

Darrel Wayne HILL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-33.

Supreme Court of Arkansas.

Feb. 5, 1998.

Montgomery, Adams & Wyatt, PLLC by Dale E. Adams, Little Rock, for appellant.

Winston Bryant, Atty. Gen. by David R. Raupp, Senior Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Darrel Wayne Hill, appeals the judgment of the Montgomery County Circuit Court resentencing him for one count of capital murder and one count of attempted capital murder. Appellant was tried by a jury and received the death penalty for the 1980 shooting of Donald Teague and E.L. Ward. This court affirmed. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). This court later affirmed the denial of post-conviction relief pursuant to Arkansas Rules of Criminal Procedure Rule 37. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983). Appellant filed a petition for habeas corpus in federal court, where relief was granted in 1993. Hill v. Lockhart, 824 F.Supp. 1327 (E.D.Ark.1993). The State appealed to the Eighth Circuit Court of Appeals, which affirmed. Hill v. Lockhart, 28 F.3d 832 (8th Cir.1994). Appellant was granted a resentencing hearing, where after the jury found four aggravating circumstances, and no mitigating circumstances, the jury again sentenced him to death. Jurisdiction is properly in this court pursuant to Ark. Sup.Ct. R. 1-2(a)(2). Appellant asserts six points for reversal. We affirm.

I. Mitigating Circumstances

Appellant's first assignment of error in the penalty phase is a challenge to the jury's failure to find any mitigating circumstances. The record reflects that the jury was required to consider three forms when deciding upon the aggravating and mitigating factors before reaching a verdict. The first form dealt with aggravating circumstances. The four-part second form dealt with mitigating circumstances: Subsection (a) listed the mitigating circumstances to be checked only if the jury unanimously agreed that they existed; subsection (b) was checked if some of the jury believed a circumstance existed, but not all of the jury agreed; subsection (c) was a list of circumstances of which there was some evidence, but no member of the jury believed the circumstance existed; and subsection (d) was checked only if the jury concluded that there was no evidence of mitigating circumstances. The third form was a conclusions form with three written findings that are required in order to impose the death penalty.

During the resentencing trial, the State called one witness, E.L. Ward, who testified about the incident where he was shot and saw Appellant shoot and kill Donald Teague. Appellant provided several witnesses to testify that he had changed and had become a productive person in prison. Appellant argues that, at a minimum, the jury should have at least found that there was evidence of mitigating circumstances, even if they agreed unanimously that it did not exist. Appellant argues that turning one's life around in prison is a mitigating circumstance recognized by the United States Supreme Court in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Relying upon Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied, 434 U.S. 894, 98 S.Ct. 272, 54 L.Ed.2d 180 (1977), Appellant contends that the jury was not free to arbitrarily disregard reasonable testimony, where other testimony is supportive, and no questions of credibility are to be resolved. Appellant argues that the jury showed that it did not consider the evidence by checking that part of the form stating that it found no evidence of mitigation.

The State responds by relying on Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 1853, 137 L.Ed.2d 1055 (1997), and Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226, 116 S.Ct. 1861, 134 L.Ed.2d 960 (1996), to show that there was a credibility issue as a result of the State's cross-examination, and that the jury did not have to believe Appellant's witnesses. The State argues that even though Appellant could have changed his life in prison, the jury still could have concluded that this change was not a mitigating factor in his crime. We agree.

This court has previously held that "[a] jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance." Bowen, 322 Ark. at 497, 911 S.W.2d at 561 (citing Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), and 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, and cert. denied, 484 U.S. 873, 108 S.Ct. 208, 98 L.Ed.2d 159 (1987)). This court held further that the jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it the jurors believe to be true. Id. (citing Davasher v. State, 308 Ark. 154, 823 S.W.2d 863, cert. denied, 504 U.S. 976, 112 S.Ct. 2948, 119 L.Ed.2d 571 (1992), and Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991)).

In Echols, 326 Ark. 917, 942-43, 936 S.W.2d 509, 520, this court stated:

[O]ur holdings provide that a jury may generally refuse to believe a defendant's mitigating evidence, but when there is no question about credibility and, when, in addition, objective proof makes a reasonable conclusion inescapable, the jury cannot arbitrarily disregard that proof and refuse to reach that conclusion. Here the jury was faced with neither indisputable credibility nor objective proof that made a reasonable conclusion inescapable. To the contrary, there was substantial evidence of Echols's history of prior criminal activity.

In that case, the jury found that the codefendant Jason Baldwin had no significant history of criminal activity, but refused to make the same finding for Echols. This court held that such a finding by the jury indicated that the jury carefully weighed the evidence and determined that Echols should not be credited with this mitigating factor. Here, the fact that after consideration, the jury did not regard Appellant's change as a mitigating factor was not an error, as the jury was free to believe or disbelieve Appellant's witness.

Furthermore, assuming arguendo that it was error for the jury to disregard Appellant's evidence of mitigation, such error would clearly be harmless due to the fact that the jury unanimously found that four aggravating circumstances existed, that they outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist, and that the aggravating circumstances justified beyond a reasonable doubt a sentence of death. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997). Relying on the holding in Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991), we held in Jones, that "[b]ecause the jury specifically found that five aggravators outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist, we conclude that any inconsistencies by the jury in the completing of subsections (b) and (c) of Form Two were harmless error." Id. at 72-73, 947 S.W.2d at 344.

Here, the jury found that four aggravating circumstances existed beyond a reasonable doubt: (1) that the defendant previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person; (2) that the defendant knowingly created a great risk of death to a person other than the victim; (3) that the defendant committed the capital murder for the purpose of avoiding or preventing an arrest; and (4) that the defendant committed the capital murder for pecuniary gain. The jury did not, however, find any mitigating factors. This court has previously conducted a harmless-error analysis when the jury has made an error regarding mitigating circumstances although no error was made by the jury regarding aggravating circumstances. Jones, 329 Ark. at 71, 947 S.W.2d at 344. Even if we were to assume that some of the jurors did conclude that the evidence of Appellant's change constituted a mitigating circumstance, it is clear that the jury unanimously concluded that four aggravating circumstances existed, and that these aggravators outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist. Nothing in the forms indicated to the jury that a mitigating circumstance must have been found unanimously before it could be considered in the weighing process. See Pickens v. State, 301 Ark. 244, 783 S.W.2d 341, cert. denied, 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 766 (1990), and cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 128 (1991). Additionally, the jury found that the aggravating circumstances justified beyond a reasonable doubt a sentence of death. Moreover, the jury was instructed that, only after it had carefully considered these three statutory findings on the conclusions form, it shall sentence Appellant to death. Each juror signed the verdict form sentencing Appellant to death, and each juror indicated orally that he or she had voted for the death penalty.

II. Double Jeopardy/Collateral Estoppel

Appellant asserts that because the first jury did not find that the aggravating factor of pecuniary gain existed, the State was precluded by double jeopardy and collateral estoppel from seeking the death penalty based on that aggravating factor in the resentencing. Appellant relies on Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), to support his argument. His reliance is misplaced, however, because the facts present in Bullington are distinguishable from those of the present case.

In Bullington, the Court was faced with the issue of whether a criminal de...