Hill v. State
| Decision Date | 25 February 1985 |
| Docket Number | No. CR84-149,CR84-149 |
| Parties | Johnny Lee HILL, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Gregory Bryant, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was charged and convicted on two counts of rape, two counts of aggravated robbery and two counts of kidnapping. He was convicted by a jury and received a total of 135 years. The appellant raises three issues on appeal, none of which have merit.
The charges stemmed from a criminal episode that occurred sometime shortly after midnight on August 15, 1981. The three female victims were accosted at gunpoint by two men as they were getting out of their car in a parking lot near a Little Rock nightclub. The two men, one holding a gun, the other a knife, robbed them of their purses and jewelry. The victims were then abducted and forced to drive to an isolated field where the assailant who had been holding the gun, forced them to engage in sex with him.
The robbery was reported immediately, but the victims said nothing about the rapes, attributing their reluctance to the fact that one of them was getting married the next day. When the appellant was picked up approximately a year later, they decided to pursue prosecution of the sexual assault.
Appellant first argues the trial court erred by not declaring a mistrial after the defendant was seen by members of the jury while wearing handcuffs. On returning from a lunch break, the bailiff and the appellant, who was handcuffed, were allegedly seen by some of the jurors as they passed through the corridor. Appellant requested a mistrial which was denied.
We have held it is not prejudicial per se when the defendant is brought into a courtroom handcuffed. Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977). In Johnson, we found the appellant was charged with being an escapee from the penitentiary, was an inmate at the time of trial and all of this would become known to the jury during the trial. Citing Gregory v. United States, 365 F.2d 203 (8th Cir.1966), we said we would not presume prejudice when there was nothing in the record to indicate what impression may have been made on the jurors and where the appellant did not offer any proof of prejudice. In a more recent 8th Circuit decision, United States v. Carr, 647 F.2d 867 (1981), the 8th Circuit defendant was allegedly seen by several members of the jury panel while in handcuffs and a waist chain before trial. The court, said The court said the defendant's allegation that several prospective jurors "likely" saw him was an unsubstantiated allegation and did not satisfy his burden of affirmatively showing he was prejudiced. The court said he did not ask for a hearing or offer to prove the prejudicial effect of the encounter. Under these circumstances the court was not willing to presume any prejudice.
In this case, from the record of the in-chambers conference on the mistrial motion, it is not evident there was anything but a brief, inadvertent sighting by some of the jurors. The appellant offered no proof of any jurors having actually seen the appellant, nor was any voir dire requested to substantiate any allegation of prejudice. There was no affirmative showing of prejudice by the appellant. There was no alternative route to the courtroom from the lock-up area that was not visible to the public; the defense attorney had already told the jury that the defendant had been and was currently incarcerated; the bailiff testified he continued on with the appellant because, he thought it would distract more if he pulled back after he once walked in and saw the jurors; the bailiff was instructed to avoid the error in the future; and most significantly, the bailiff testified the appellant had attempted earlier to get out of the holding cell and for security reasons the bailiff felt it was necessary to handcuff him.
Appellant next submits prejudicial error occurred when the prosecutor commented on his failure to deny his guilt. Appellant took the stand in his behalf and on direct was questioned about how he happened to be brought up on the charges for this trial. He said he had been picked up by the police in Oklahoma, was told he was wanted for these charges in Arkansas, did not know anything about the rapes or robberies at that time, was extradited back to Arkansas and came back willingly. On cross, the prosecutor asked a series of questions about that testimony. Appellant admitted he knew he was wanted in Arkansas for these charges before he was picked up in Oklahoma. The following exchange took place:
Q. And when you got down to the [Little Rock] Police Department that's the first time you found out what all this was about, why they wanted you?
A. No, that wasn't the first time I found out.
Q. When did you first find out?
A. I found out when I was up in Lawton, Oklahoma but I didn't have no money to come back and I said I wasn't going to hide, wasn't going to give no false ID or nothing. Whenever they stopped me that's when I'm coming back to face this.
Q. So you knew about it before you got picked up, right?
A. Yes, I did.
Q. And the reason you didn't try to clear it up was because you didn't have any money?
A. 'Cause I didn't have no money to come back on. ' Cause I knew I hadn't done these charges.
Q. Did you ever go to any local authorities up there and tell them about it?
A. No, I did not.
Q. Did you call back down here and tell the police where you were?
A. No, I did not.
Q. You don't think they would have come and gotten you and helped you got back down here?
A. I didn't have no idea.
Q. Okay. But you knew about it and didn't say anything?
DEFENSE: Your honor, I'm going to object to that question I believe Mr. Hill has the right to remain silent.
We need not decide whether this line of questioning is proper under the "tacit admission" rule [see McCormick Evidence § 161 (2nd ed. 1972) ] as the appellant is precluded from raising the argument. The question appellant objected to had already been asked in various forms without an objection. Failure to object at the first opportunity to do so waives any right to raise the point on appeal. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Additionally, once the appellant takes the stand he has waived his right not...
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