Hillard v. State, CR

• Decision Date: 12 June 1995
• Docket Number: No. CR,CR
• Citation: 900 S.W.2d 167,321 Ark. 39
• Parties: Craig Keith HILLARD, Appellant, v. STATE of Arkansas, Appellee. 94-238.
• Court: Arkansas Supreme Court

Page 167

900 S.W.2d 167

321 Ark. 39

Craig Keith HILLARD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-238.

Supreme Court of Arkansas.

June 12, 1995.

Etoch Law Firm, Helena, for appellant.

Sandy Moll, Asst. Atty. Gen., J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant Craig Keith Hillard appeals from a jury verdict convicting him of two counts of murder. He was sentenced as a habitual offender to two terms of life without parole. Hillard asserts five points for reversal.

Hillard first argues his attorney was not qualified under state law to represent him in a capital murder case. Charles E. Halbert, Jr. was appointed to defend Hillard on January 1, 1993, and Halbert, one day before trial, on November 8, 1993, informed the trial court that, pursuant to Act 1193 of 1993, the Arkansas Public Defender Commission had drafted standards for attorneys who could practice as a public defender. He conceded to the trial judge that he did not meet most of the qualifications established by the Commission. See § 11(a)(2) of Act 1193 [compiled as Ark.Code Ann. § 16-87-203(2) (Supp.1993) ]. ¹ The trial court denied Halbert's motion for new or additional counsel, stating that Act 1193 has no bearing on Halbert's appointment since he was appointed long before Act 1193 went into effect. The trial court also ruled that it would not be proper to bring in extra counsel one day before trial.

Hillard's argument seems to be one of claiming ineffective assistance of counsel, but he merely mentions his counsel's failure to meet unabstracted and unspecified standards he claimed had been "drafted" by the Arkansas Public Defender Commission. This court has held that ordinarily we do not consider a charge of ineffectiveness when a case is first appealed because the facts relevant to that issue have not been developed. However, when the proof is presented at a hearing on a motion for a new trial, economy of procedure would require a single appeal of all the issues. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). In the present case, Hillard offered no such proof or motion for new trial, raising an ineffective counsel issue. Nor can we find where the matter was fully developed at any other stage of trial. As a consequence, we reject Hillard's first point.

Next, Hillard contends the trial court erred in calling two witnesses to testify at the suppression hearing. Before calling these witnesses, Officer Ronnie White had testified that he had obtained consent from Ameila Anderson to enter her mother's apartment where the officers found Hillard's blue duffel bag that contained two .38 caliber revolvers--one a Smith and Wesson and the other a Charter Arms. The Smith and Wesson had been taken during the robbery and homicides with which Hillard was later charged and the Charter Arms was later identified as being the likely revolver used during the robbery and killings. After White's testimony, the state rested, but the trial judge asked if the presence of Ameila Anderson and her mother, Betty Sue Webster, could be obtained so the judge could ask them questions. Anderson and Webster appeared that same day, and by his questioning, the judge confirmed White's earlier testimony that the two women had consented to the officers' search of Webster's apartment and Anderson's bedroom in the apartment where Hillard also stayed. Hillard complains on appeal that the judge left his judicial role when he called and questioned the women as witnesses and became an advocate on behalf of the state. At trial, Hillard's actual objection appeared to question the judge's having opened the case after the state had rested.

We point out that this court has held that the case-in-chief may be reopened for the taking of additional evidence and such a matter is committed to the discretion of the trial court. Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994). In addition, A.R.E. Rule 614 authorizes the trial court on its own motion to call and interrogate witnesses. Here, the trial court asked questions designed merely to confirm testimony previously given by Officer White. Both Hillard and the state were afforded ample opportunity to inquire of the two court-called witnesses as well. In these circumstances, we cannot conclude the trial judge abused his discretion in any way.

Hillard's third argument concerns the trial court's questioning of Ameila Anderson during the same pretrial suppression hearing just discussed. The trial judge asked Anderson if she could have used Hillard's duffel bag which the police found in her bedroom and could she have placed something in the bag, if she had wanted. Hillard objected, stating the question called for speculation. On appeal, however, Hillard cites no legal authority nor offers convincing argument explaining how Anderson's answer was speculative. Specifically, he does not explain why Anderson's answer could not have been based upon factors within her own knowledge. Her response was that "If I needed to use it [I could have], but I didn't." In sum, Hillard simply fails to show any error.

In his fourth point, Hillard expands on his second and third arguments by arguing the suppression testimony given by Anderson was insufficient to support the search and seizure of Hillard's duffel bag and contents found in Webster's apartment. In particular, Hillard urges that, while Anderson (and Webster) had consented to search the premises, Anderson did not have actual or apparent authority to consent to search Hillard's bag. We disagree.

United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39...