Hogan v. State
Decision Date | 30 January 1984 |
Docket Number | No. CR,CR |
Citation | 663 S.W.2d 726,281 Ark. 250 |
Parties | Fred Lee HOGAN, Appellant, v. STATE of Arkansas, Appellee. 83-101. |
Court | Arkansas Supreme Court |
Ken Cook, Deputy Public Defender, West Memphis, for appellant.
Steve Clark, Atty. Gen. by Matthew Wood Fleming, Asst. Atty. Gen., Little Rock, for appellee.
A Crittenden County jury found appellant, Fred Lee Hogan, guilty of capital felony murder and fixed his punishment at life imprisonment without parole. The information alleged that appellant had caused the death of Martha Marie Murray in the course of and in the furtherance of the commission of the crimes of rape and kidnapping. On appeal we affirm.
On May 25, 1982, the victim's body was found floating in the Mississippi river near the Crittenden County bank. The body was badly decomposed. Positive identification was made by medical records. The autopsy report identified the cause of death as blunt trauma to the front, side, and back of the right side of the chest. Fractures of the rib cage were extensive.
The victim was last seen alive on March 24, 1982, around 11:15 p.m. at the Fast Check Food Store on Kentucky Street in Memphis, Tennessee. A co-worker, Richard Nallin, testified that he and the victim had gotten off work at 11:00 p.m. that evening, and, as was their custom, each had stopped by the Fast Check Food Store on their way home. Nallin testified that when the victim arrived at the store, he was seated in his truck talking out the window to a friend seated in another car. He observed the victim drive up to the store alone, get out of her car, return to her car, and drive away. Nallin identified appellant as the person who had approached the store from behind his truck and was standing near the front door of the store when the victim entered. Nallin stated that after he saw the victim enter the store, he did not see appellant again nor did he see a second person in the victim's automobile as she drove away. Nallin testified that ordinarily he would pass the victim on the freeway after they had both left the store, but he did not pass her on this date.
Witness, James Houston, testified that he had known appellant about twenty years. He stated that on March 24, 1982, he first saw appellant at about 6:30 p.m., that they were drinking and had made several trips to the liquor store on Kansas and Crump Streets, and that they had gotten some beer at the Fast Check Store. Later that evening, appellant left Houston's mother's house located about three blocks from the Fast Check Store, saying that he was going home. Houston did not know where appellant actually went. Houston further testified that he and appellant knew the "guy who ran the store" and that they went there often. After the night of March 24, however, he did not see appellant "around the Fast Check anymore."
Around 3:00 p.m., March 26, 1982, the victim's 1974 Ford Maverick automobile was found in Arkansas about 1000 yards west of the west end of the Memphis-Arkansas Bridge. It was parked on a small dirt road that runs parallel with Interstate 55. Blood was found smudged in various parts of the automobile. The victim's blood-stained, torn bra was found in the center of the front seat. In the center of the front floor board were found the victim's pink panties, white panty girdle, panty hose, and a knee brace; these items were found wadded up together and inside each other. Dr. Charles Dorsey, Chief Forensic Serogist of the Arkansas State Crime Lab, testifies that semen found on the torn panties and girdle was identified as having come from a type O secretor. Appellant was identified as a type O secretor and was "loaded" with spermatozoal cells. The victim's husband could not have been a secretor since he had had a vasectomy. Appellant's fingerprints were found on the dome light cover which had been removed from the light fixture.
Appellant first argues that the evidence was insufficient to prove the offense of capital felony murder, arguing that there was no evidence of kidnapping or rape. Upon appellate review, it is our responsibility to determine whether the evidence, when viewed in the light most favorable to the appellee, is substantial. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). The test for substantial evidence is whether the jury could have reached its conclusion without having to resort to speculation and conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). In reviewing the evidence, it is clear that there is substantial evidence to support the verdict. The jury could have found that appellant either kidnapped the victim, raped or attempted to rape her, and, in the course and furtherance of these crimes, killed her. See Ark.Stat.Ann. § 41-1501(1)(a).
Since appellant did not receive the death penalty, his argument that the death penalty constitutes cruel and unusual punishment and that its arbitrary application violates due process will not be considered.
Appellant argues that the trial court erred in denying his motion to sequester the jury. The burden of proving that appellant did not receive a fair trial because of failure to sequester the jury is on the appellant. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied, 459 U.S. 1022, 103 S.Ct. 389, 74 L.Ed.2d 519 (1982). Even so, appellant offered no proof that any of the jurors were influenced by matters outside the courtroom. Whether or not the jury should be sequestered rests within the sound discretion of the trial court. No abuse of this discretion has been shown.
The trial court did not err in refusing to suppress the in-court identification of appellant. This court looks to the totality of the circumstances to determine whether the lineup procedures have been sufficient to preclude identification testimony at trial. We will not reverse the trial court's ruling unless clearly erroneous. James & Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). Appellant argues that he was the only person in the lineup wearing a green coat, and the witness, Nallin, stated "that green coat is what he had on." But a lineup is not per se unconstitutionally suggestive merely because only one person was wearing a piece of clothing similar to the one worn by the offender. Matthews v. State, 275 Ark. 1, 627 S.W.2d 20 (1982); McGraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978). While sitting in his truck, the witness had the opportunity to observe appellant conspicuously staring at him while walking from behind his truck to the front of the store. The witness further observed appellant standing under four flood lights in front of the store while the victim was walking by. Further, the witness was firm and unequivocal in his identification. We cannot say the trial court erred in allowing the in-court identification.
Since appellant has admitted he was not prejudiced, the trial court did not err in refusing to grant a mistrial when three prospective jurors were seen reading The Commercial Appeal, a Memphis, Tennessee, newspaper.
Appellant argues the trial court erred in refusing to grant a mistrial when Officer Wilburn Marr gave an unresponsive answer to a question from appellant's counsel regarding fingerprints the officer had taken following appellant's arrest:
BY MR. COOK:
Q. Officer Marr, were these the first take here, or did you have to take any more than once?
A. No, sir, that's all I took. We do have a prior arrest record on him, which we do have a fingerprint card on.
Appellant's attorney objected stating:
[I]t is speculative as to the effect they [the jury] would give it. I don't see any way--Certainly, it can't help us, and I think it was probably much more prejudicial than it was probative of the fact since I hadn't even asked him about that. He just simply volunteered it.
The trial court denied the motion stating:
[T]he officer's response could well have been considered by him as being pertinent to the question. I didn't get the impression at all that it was a gratuitous or deliberate effort on the officer's part to interject anything improper in this lawsuit, and I don't think the harm, if any, that was done, is sufficient to justify the extreme remedy of a mistrial.
Whether or not to declare a mistrial under the circumstances of this case rests in the sound discretion of the trial court. Nolen v. State, 278 Ark. 17, 643 S.W.2d 257, 259 (1982). Here we cannot say the court abused its discretion.
Appellant argues that the trial court erred in allowing the state during the penalty phase of the trial to introduce into evidence appellant's recent rape convictions for the purpose of showing aggravating circumstances. But appellant candidly admits on appeal that no prejudice resulted since the jury fixed appellant's punishment at life without parole rather than death.
We have examined all other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark.Stat.Ann. Vol. 3A (Repl.1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).
Affirmed.
The majority states that there is substantial evidence to support the conviction of the appellant of capital felony murder. I disagree.
The appellant maintains that the state failed to prove beyond a reasonable doubt that a murder, kidnapping or rape occurred. To prove capital murder, the State must prove murder and one of the two underlying felonies.
The evidence at the trial showed that the appellant was seen at the Fast Check Store where the victim was last seen. A co-worker with the victim saw both the appellant and the victim at the store at the same time and later picked the appellant out of a line-up. The witness saw the victim drive off. He did not see the appellant in the car when the victim drove off. The witness testified he would customarily pass the victim on...
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Green v. State
...he relied on for his opinion, mentioned certain test results and added, “I also had access to his prison records.”); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984) (upholding the trial courts' refusal to order a mistrial where a police officer, asked by the prosecutor if these fingerpr......
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Howard v. State
...427, 837 S.W.2d 457 (1992). The blood found on the boots alleged to belong to Howard is also circumstantial evidence. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984). I am unable to identify any direct evidence in this case, and the majority fails to identify any. The testimony of witne......
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Howard v. State
...427, 837 S.W.2d 457 (1992). The blood found on the boots alleged to belong to Howard is also circumstantial evidence. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984). I am unable to identify any direct evidence in this case, and the majority fails to identify any. The testimony of witne......
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