Hill v. State, CR

• Citation: 289 Ark. 387,713 S.W.2d 233
• Decision Date: 07 July 1986
• Docket Number: No. CR,CR
• Parties: Steven Douglas HILL, Appellant, v. STATE of Arkansas, Appellee. 85-212.
• Court: Supreme Court of Arkansas

Page 233

713 S.W.2d 233

289 Ark. 387

Steven Douglas HILL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-212.

Supreme Court of Arkansas.

July 7, 1986.

William R. Simpson, Jr., Public Defender, by Deborah R. Sallings, Deputy Public Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Connie Griffin, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant was charged with nine felonies stemming from events that occurred on October 15, 1984, when the appellant and another inmate, Michael Cox, escaped from the Wrightsville Unit of the Arkansas Department of Correction. Separate trials were held for the two defendants. On the day of his trial appellant pleaded guilty to all charges except for the capital murder of Arkansas State Trooper Robert Klein and the attempted murder of Lt. Conrad Pattillo, a fellow officer. A jury trial was held on the remaining counts and a guilty verdict was returned. In a separate sentencing procedure, the jury sentenced appellant to death by lethal injection for the capital murder and to 50 years imprisonment for criminal attempt to commit capital murder. It is from that verdict and sentence that this appeal is brought. Our jurisdiction is pursuant to Sup.Ct.R. 29(1)(b). As required by our rule 11(f) we have reviewed all abstracted rulings adverse to appellant as well as the points raised on appeal. We find no error.

The appellant raises eight arguments for reversal which will be discussed separately.

I. VOLUNTARINESS OF HIS CONFESSION

Appellant's first allegation of error is that the trial court should not have admitted into evidence a statement given by him after his arrest as the appellant did not voluntarily or knowingly waive his constitutional rights. In support of this contention, appellant claims that he was threatened by police officers and that, during the videotaping of his confession, some of the officers were armed and one of the officers was "playing" with his gun in an effort to intimidate the appellant. The officers denied these accusations.

On appeal this court examines a trial court's ruling that a statement was voluntarily given to see if the state proved by a preponderance of the evidence that the statement was voluntary. We make an independent determination of this issue considering the totality of the circumstances and affirm the trial court unless we can say the lower court was clearly wrong. Williamson v. State, 277 Ark. 52, 639 S.W.2d 55 (1982); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). When the situation presents a swearing match between the officials and the appellant, as here, the conflict is for the trial court to resolve. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

The testimony at the Denno hearing revealed that appellant escaped from prison shortly before 3 p.m. on October 15. He and Cox arrived at a home in Woodson, Arkansas, occupied by Billie Jo, Merle and Buck Rice. The two inmates robbed the Rices at gunpoint, threatened and intimidated them, tied them up, and left the house at about 10:30 p.m. From there they went to a second house, owned by the Cooks where the fatal shooting occurred at about midnight. After a standoff with the police, Hill surrendered at approximately 4:30 a.m. and was advised of his Miranda rights by Lt. David Rosegrant. Around 5 a.m. Cox surrendered. The inmates were transported to state police headquarters in Little Rock and arrived at 5:45 a.m. Cox was interrogated first and then Hill. The appellant's videotaped confession was taken at 6:50 a.m. after he was advised of his Miranda rights by Investigator Bill Gage. The statement lasted about 30 minutes. The videotape was then transcribed and read back to Hill who signed it.

During the Denno hearing, Hill acknowledged that he was read his rights and understood them, but he did not choose to exercise those rights at that time. He stated that he knew what rights were available to him.

Based on the foregoing, the state met its burden of proving a voluntary waiver.

Appellant also contends that when the statement was taken the officers only advised him that he was a suspect in an escape and not in a capital murder. Accordingly, appellant maintains he could not intelligently waive his rights since he did not know the nature of the charges and the consequences of a waiver of rights. Contrary to the appellant's claim, the transcript reveals that he was advised he was a suspect in a capital murder on at least two different occasions. Sgt. Larry Gleghorn testified the appellant was advised he was a suspect in a murder and kidnapping and aggravated robbery before the videotaping began. Officer Rosegrant testified that when he advised appellant of his rights he also informed him of the charges. Appellant's argument is without merit and the confession was properly admitted.

II. PROSECUTORIAL MISCONDUCT

Appellant claims that the prosecutor's closing argument in the penalty phase of the trial was improper and prejudiced his right to a fair trial. He maintains the trial court erred in refusing to grant a mistrial or a new trial after the prosecutor argued outside the record and presented evidence not in the record.

During his closing argument, in the penalty phase of the trial, the prosecutor argued as an aggravating circumstance that the capital murder was committed to avoid arrest. As evidence of that, he told the jury that the appellant was at the Cooks house "loaded for bear." To illustrate his point, he picked up one of the recovered shotguns and loaded it, to show that it held only five shells, which was the number found in the gun when Hill was arrested. The inference to be drawn was that Hill, after firing two shots--one at Officer Klein and one at Officer Pattillo--reloaded the gun and was ready to shoot again.

The appellant states that, although the murder weapon, a 20-gauge shotgun, contained five shells when it was found, there was no proof that the gun held only five shells. In addition, when the prosecutor conducted the demonstration, he mistakenly used the wrong gun, a 16-gauge shotgun also found at the scene. Although the appellant's counsel lodged a general objection to the demonstration, there was no specific objection during the closing argument to the use of the wrong gun.

Demonstrations such as the one performed by the prosecutor are permissible. We have allowed prosecutors to use items such as clothing, rope or documents by way of illustration in their closing arguments for many years. See Derrick v. State, 92 Ark. 237, 122 S.W. 506 (1909); Tiner v. State, 109 Ark. 138, 158 S.W. 1087 (1913). Some leeway is given in closing remarks and counsel are free to argue every plausible inference which can be drawn from the testimony. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). Nevertheless, "[c]losing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom." Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976). The trial court has a wide latitude of discretion in controlling the arguments of counsel and its rulings in that regard are not overturned in the absence of clear abuse. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980).

Other states have found permissible closing argument where a prosecutor used "similar" material to a rope used to bind a victim to show that the victim might have bound himself, Collins v. State, 561 P.2d 1373 (Okla.Cr.1977); where a live model and an unloaded pistol were used to demonstrate that shots could not have been fired in the manner claimed by the defendant, Herron v. Commonwealth, 23 K.L.R. 782, 64 S.W. 432 (1901); where a piece of crayon was used to show how the defective muzzle on a revolver could have deformed a bullet fired from the pistol, Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902); where an attorney borrowed a gun from an officer in the courtroom to demonstrate the deceased could not have inflicted a fatal wound upon herself, Peoples v. Commonwealth, 147 Va. 692, 137 S.E. 603 (1927); and where a toy gun was used to prove the fatal wound could not have been inflicted as claimed, Barber v. Commonwealth, 206 Va. 241, 142 S.E.2d 484 (1965). In the Barber case the Virginia court found it was within the sound discretion of the trial court to determine whether the use of the toy pistol should be permitted even though the toy was not shown to be the same size or type as the murder weapon.

Likewise, here the trial judge did not abuse his discretion when he permitted the prosecutor's demonstration with the shotgun. As to the use of the wrong gun for the demonstration, without an objection at the trial, this could not have been a ground for a mistrial. Nor is it newly discovered evidence since it could have been discovered when it occurred during the trial and there is no indication that the evidence is "important" as required by Ark.Stat.Ann. § 43-2203(6) (Repl.1977).

Even if this court were to consider the use of the wrong gun to be error, it would be rendered harmless by the jury's specific findings of aggravating circumstances. By the demonstration, the prosecutor was attempting to establish the proposition that the appellant knowingly created a great risk of death to a person other than the victim, premised on the fact that the appellant reloaded after shooting the police officer. The jury, however, given the opportunity, failed in its formal findings to recognize that aggravating circumstance existed. See Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). THIS ARGUMENT IS ACCORDINGLY without merit.

III. PREVIOUS FELONY AS AGGRAVATING CIRCUMSTANCE

Prior to the beginning of the trial, appellant pled guilty to three counts of aggravated robbery and one count of kidnapping, and to burglary, theft and escape. These offenses stemmed from appellant's escape from jail and the incident at the Rice home in Woodson and occurred on the same day as the...