Hill v. State

• Decision Date: 29 October 1990
• Docket Number: No. CR,CR
• Citation: 798 S.W.2d 65,303 Ark. 462
• Parties: , 1 NDLR P 139 Anthony HILL, Appellant, v. STATE of Arkansas, Appellee. 90-121.
• Court: Arkansas Supreme Court

Page 65

798 S.W.2d 65

303 Ark. 462, 1 NDLR P 139

Anthony HILL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-121.

Supreme Court of Arkansas.

Oct. 29, 1990.

Arthur L. Allen, Little Rock, for appellant.

Ann Purvis, Asst. Atty. Gen., Little Rock, for appellee.

TURNER, Justice.

The appellant, Anthony Hill, challenges his conviction for the crime of first-degree murder and the resulting sentence of life imprisonment. He asserts two points as error. First, he argues that the trial court erroneously permitted introduction of custodial statements obtained in violation of appellant's Fifth, Sixth, and Fourteenth Amendment rights. We find this contention to be without merit. Secondly, the appellant submits that the trial court erred in failing to give the proper instruction on first-degree murder. We agree with this contention, and while we affirm the finding of guilty, we reduce that finding from one of first-degree murder to second-degree murder and accordingly modify the sentence.

On December 22, 1988, the body of Bobby Dale Green was discovered on the side of a road near Sweet Home. Pulaski County Deputy Sheriff Ken Dillon picked up the appellant for questioning about the homicide. Deputy Dillon testified that he read the appellant his rights before transporting him to the Sheriff's Department. Upon arrival, Sergeant Carl Beadle again read the appellant his Miranda rights, and Hill signed a form waiving those rights. During questioning by Sergeant Beadle, the appellant at first denied having killed Bobby Dale Green and blamed the homicide on another person. He ultimately admitted to having killed the victim, and, after he was again advised of his rights, a tape recording of the oral statement was made. Subsequently, a transcript of that statement was introduced at trial, over defense objections.

The appellant's argument that his statements given to the Sheriff's Department were not voluntary is premised upon two assertions, neither of which can be sustained. First, he notes that, when evaluated by a private psychologist, he was found to have an intelligence quotient of between 56 and 70, to be functioning at below the level of third grade, and was classified as mildly mentally retarded. Further, he states that he had obtained only a tenth-grade education, consisting primarily of special education classes, and had low verbal skills. He also remarks on his dysfunctional family background with an alcoholic father and a mentally ill brother. These circumstances, the appellant claims, place him in a position analogous to that of the appellant in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In that case, the supreme court reversed a capital felony murder conviction in part for a failure of the state to show an effective waiver of rights. There, the appellant had dropped out of school in the eleventh grade, read only at a third-grade level, had an IQ of 70, and was classified as mildly retarded. The difference between Duncan and the present case, however, consists in the absence in the earlier case of evidence in the record of a rights-waiver form having been signed and the fact that the appellant in Duncan had been detained for a substantial length of time. As the court observed:

... Duncan was barely literate and marginally retarded. He was not given a waiver form to sign nor was he asked whether he waived his rights; he was kept incommunicado for three and a half days, and it was only at the end of that time that he gave an inculpatory statement. There was no showing of a deliberate and intentional relinquishment of his rights, or that he had a clear understanding of what those rights were.

291 Ark. at 531-532, 726 S.W.2d at 658.

Here, the appellant was read his Miranda rights, initialed a form indicating that he understood them, and signed a waiver of those rights. His contention that he was threatened with beating if he refused to confess presented a question of credibility for the trier of fact; the appellate court is not in a position to redetermine that credibility issue. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989).

Regarding the appellant's argument that his low intelligence quotient affects the validity of his waiver and the voluntariness of his statement, this court has held in Burin v. State, and in Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986), that a low intelligence quotient will not, in itself, render involuntary a waiver of the privilege afforded by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Other factors to be considered are the defendant's age, experience, education, background, and the length of detention. Burin v. State; Smith v. State, 286 Ark. 247 691 S.W.2d 154 (1985). Here, the appellant was twenty years old at the time of the homicide, had completed either ten or eleven grades of mostly special education, owned a gun, could drive an automobile, had sold drugs regularly, and was a previously convicted felon who had more than a passing acquaintance with the legal process. Further, Dr. Jane Bunten, who tested the appellant's intelligence at the State Hospital, testified that he rather suspiciously missed every answer on one test, although he would look first at the correct answer, and then "scan the others and pick a different picture each time." The psychologist concluded that the appellant was purposefully aiming for a lower score.

In Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987), this court upheld the trial court's finding that there was sufficient evidence that a defendant understood his rights and had made a valid waiver, despite the fact that the defendant was found to have an IQ of 62, to be functioning three levels below the average expected for his age, and had obtained only a third-grade education (although he had completed ten grades). Again, the matter was considered to be one of credibility. Even a fourteen-year-old defendant, whose intelligence quotient was found to be in the "low dull normal range," was held to have made a voluntary confession to the murder of her father in Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977). The appellant's argument for reversal on this point is not persuasive.

The appellant's second point deals with the court's jury instruction relating to first-degree murder, given over the appellant's timely objection to the form of the instruction. The appellant's argument is meritorious and requires us to set aside the verdict of first degree murder.

The appellant was charged with violations of Ark.Code Ann. § 5-10-101 (Supp.1989)--capital felony murder; Ark.Code Ann. § 5-12-102 (Supp.1989)--robbery; and Ark.Code Ann. § 5-36-103 (Supp.1989)--theft of property. Following a trial by jury, the appellant was found guilty of first-degree murder, was acquitted of the charge of robbery, and was found guilty of misdemeanor theft of property.

Ark.Code Ann. § 5-10-101(a)(1) and (c) (Supp.1989) provide in part:

(a) A person commits capital murder if:

(1) Acting alone or with one or more other persons, he commits or attempts to commit ... robbery ... and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ...

(c) Capital murder is punishable by death or life imprisonment without parole....

Under the crime of capital felony murder is the lesser included offense of felony murder in the first degree. Ark.Code Ann. § 5-10-102 (Supp.1989) provides in pertinent part as follows:

(a) A person commits murder in the first degree if:

(1) Acting alone or with one (1) or more persons, he commits or attempts to commit a felony, and in the course of and in furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or

(2) With a purpose of causing the death of another person, he causes the death of another person; ...

(c) Murder in the first degree is a Class Y felony.

Also within the capital murder charge is the lesser included offense of second-degree murder. Ark.Code Ann. § 5-10-103 (Supp.1989) provides:

(a) A person commits murder in the second degree if:

(1) He knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or

(2) With the purpose of causing serious physical injury to another person, he causes the death of any person.

(b) Murder in the second degree is a Class B felony.

In this case, the appellant was charged with capital felony murder--a killing in the course of the commission of the offense of robbery--one of the enumerated felonies under the provisions of Ark.Code Ann. § 5-10-101. In the information, he was also charged with the separate offense of robbery.

Prior to submission of the case to the jury, the appellant tendered a proper instruction on felony murder in the first degree as a lesser included offense of capital felony murder, and the proffered instruction tracked the provisions of Ark.Code Ann. § 5-10-102(a)(1). The trial court refused the appellant's tender, apparently grounding its refusal upon the fact that the first-degree felony murder instruction would require the same elements of proof and would thus be a repetition of the capital felony murder instruction, with the only difference being the degree of punishment.

Having refused the appellant's proffered jury charge on first-degree felony murder, the court gave instead an instruction permitting the jury to convict the appellant of first-degree murder upon a finding of "premeditation and deliberation." This instruction followed Ark.Code Ann. § 5-10-102(a)(2).

The trial court also properly instructed the jury, without objection, on the offense of robbery. However, no instruction was requested or given on attempted...