Hill v. State
| Citation | 931 S.W.2d 64,325 Ark. 419 |
| Decision Date | 09 September 1996 |
| Docket Number | No. CR,CR |
| Parties | Jessie Earl HILL, Appellant, v. STATE of Arkansas, Appellee. 96-270. |
| Court | Arkansas Supreme Court |
Norman Mark Klappenbach, Fordyce, for Appellant.
David R. Raupp, Asst. Attorney General, Little Rock, for Appellee.
Jessie Earl Hill was convicted of capital murder and sentenced to life without parole. There is no merit in any of his nine arguments for reversal, which we discuss in four groupings.
Hill, aged nineteen, was a suspect in a crime committed in Camden and discussed leaving Arkansas with his friend, Demarcus Tatum, aged eighteen. On the afternoon of January 17, 1995, Hill and Tatum went to Donny Ray Moss's house where they asked Donald Thrower if they could borrow his 1990 Nissan Maxima automobile. Thrower refused to let them borrow his car, but agreed to let his cousin, Arbrady Moss, drive them to the bus station in Camden. Hill, Tatum, and Moss got into the Nissan. After going only a short distance Hill told Moss he wanted the car. Moss refused. Hill struck Moss in the head with a marble rolling pin. Moss pleaded with Hill to stop, but he continued. Moss fell into a roadside ditch. Hill and Tatum took the Nissan and left but, after going only a short distance, decided to return and get Moss. Moss was still alive and begged for help. Hill put Moss in the trunk of the car.
Hill and Tatum got back inside the car. By this time, they had decided to go to a friend's house in Cedar Rapids, Iowa. Tatum drove until they reached Cohen Trail in Grant County, where they stopped to dispose of Moss's body. Tatum opened the trunk and found Moss still alive. Hill lifted Moss out of the trunk and beat him with a juice bottle. They left Moss on Cohen Trail and continued their flight to Cedar Rapids.
The Nissan broke down near Adair, Oklahoma, and Hill and Tatum had it towed to Osborn's Garage in Adair, where they sold it for $150.00. When questioned at the garage about blood that was in the trunk, Tatum said it came from a deer. Hill and Tatum used the last of the proceeds from the sale of the car to buy bus tickets to Kansas City. Upon arriving in Kansas City, they had no money and no transportation, so they decided to steal a car in order to continue their journey to Cedar Rapids. They saw a woman near her car in a parking garage, grabbed her, stabbed her, and took her purse and car keys. When a security guard came on the scene, they ran back to the bus station, where they were apprehended.
Tatum, an accomplice, confessed to the above. Donny Ray Moss testified that he was present on January 17, when Hill and Tatum attempted to borrow Donald Thrower's Nissan automobile, and that he saw Hill and Tatum leave his house in Camden with Arbrady Moss, the victim, driving the Nissan. Bob Adams, the Sheriff of Grant County, testified that Moss's corpse was found on Cohen Trail on January 19, 1995, two days after Moss was last seen in Camden in the Nissan. Underneath the corpse were pieces of broken glass that were identical to broken glass later found in the trunk of the Nissan. A fruit jar was found seven feet from Moss's corpse. A tooth was found in the trunk of the Nissan that matched the tooth missing from Moss's jaw. A rolling pin with hair and a dried blood-like substance was found in the car trunk. A considerable amount of dried blood was found in the trunk. Dr. Charles Kokes, a pathologist, observed fifteen individual lacerations to the victim's head and gave his expert opinion that Moss died from multiple blunt blows to the head. He further testified that the victim had been struck in the jaw area with a blow or blows that had loosened his teeth. In sum, the accomplice, Tatum, testified that Hill committed capital murder, and his testimony was corroborated.
By pretrial motion Hill asked the trial judge to exclude evidence of an earlier murder in Camden with which he was charged and to exclude all evidence of the offenses he committed in Kansas City. No evidence of the earlier murder in Camden was introduced, and we need not further discuss that part of the motion. In the part of the motion material to this appeal, Hill moved to have evidence of the offenses in Kansas City excluded because those offenses occurred after the capital murder charged in this case; they were not relevant to this case; and, even if relevant, the probative value was substantially outweighed by the danger of unfair prejudice. See Ark.R.Evid. 401, 402 & 403. The trial judge refused to rule until the context of the evidence was shown and commented: "Normally in the guilt phase, evidence of the crime would not be admissible but in the sentencing phase the evidence would be admissible." In sum, the trial court validly found the pretrial motion too broad and declined to rule before he knew the full context of the evidence. The result of the ruling was that specific objections became necessary at trial. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995).
During the guilt phase of the trial, accomplice Tatum testified: Hill objected on the ground that the evidence was not relevant. The trial court overruled the objection. Later, Tom Pruden, a detective with the Kansas City, Missouri, Police Department testified that Hill confessed, in material part, as follows: Before this evidence was admitted, Hill objected to the introduction of the confession on the ground that the confession was involuntary and that it was not relevant. After a Denno hearing, the trial court overruled the objection. Still later, the victim of the crimes in Kansas City took the stand to describe the event, and Hill objected on the ground that her testimony was not relevant and was prejudicial. At trial Hill never asked the trial court to weigh probative value versus prejudice, see Ark.R.Evid. 403; therefore, the trial court did not make such a ruling. Further, Hill did not ask to limit the evidence of the crimes in Kansas City to the facts that would show only flight by the accused. On appeal, he assigns the rulings on relevancy and voluntariness as error.
Hill argues that the crimes committed in Kansas City were not relevant to the crimes charged in this case. The general rule is that evidence of other crimes committed by the accused, but not charged and joined in the same information and not a part of the crime charged, is not admissible in evidence. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). However, there are limited circumstances in which the State can offer evidence of other crimes in its case-in-chief. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). Evidence of other crimes is admissible in the State's case-in-chief when it is probative of the accused's participation in the crime charged. Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark.App.1980) (citing Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954)). Flight from the scene of a crime is relevant and admissible circumstantial evidence that may be considered in determining guilt. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). Here, the proof showed that Hill murdered the victim in Arkansas and was attempting to flee to Iowa. By the time he got to Missouri he was without a car or money, so he committed crimes to get a car and money so that he could continue his flight. The evidence of other crimes was relevant proof of flight.
Hill contends that the Missouri crimes have no independent relevance because they were committed two days after the murder charged in this case. This argument was decided adversely to Hill's position in Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973), when, in holding that evidence of flight may be admissible even though it did not occur immediately after the crime charged, we wrote:
In connection therewith evidence as to the conduct of the accused during the period of his flight including any criminal conduct constituting an inseparable part of the flight such as obtaining money or transportation is generally held admissible. See State v. Ross, 92 Ohio App. 29, 108 N.E.2d 77 (1952), and State v. Martin, 175 Kan. 373, 265 P.2d 297 (1953). Furthermore, evidence of flight after the commission of a crime is generally admissible even though it does not occur immediately after the crime. Commonwealth v. Liebowitz, 143 Pa.Super. 75, 17 A.2d 719 (1941).
Id. at 92-93, 498 S.W.2d at 886 (emphasis supplied).
Finally, a trial court has considerable discretion to determine admissibility of evidence of other crimes, and will not be reversed on appeal unless it has abused such discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Hill asks us to reverse the trial court on a Rule 403 weighing, but that issue was neither raised nor ruled upon at trial. An issue cannot be raised for the first time on appeal. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).
Hill next contends that the trial court erred in allowing evidence of the other crimes because his confession to the crimes committed in Kansas City was involuntary. In determining whether a confession was involuntarily given, an appellate court will make an independent determination of the evidence, based on the totality of the circumstances. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). However, Detective Pruden unequivocally testified that Hill was given the Miranda warnings, waived his rights, and "had no hope of reward...
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