Hogue v. State

• Decision Date: 19 February 1996
• Docket Number: No. CR,CR
• Citation: 323 Ark. 515,915 S.W.2d 276
• Parties: Greg HOGUE, Appellant, v. STATE of Arkansas, Appellee. 95-985.
• Court: Arkansas Supreme Court

Page 276

915 S.W.2d 276

323 Ark. 515

Greg HOGUE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-985.

Supreme Court of Arkansas.

Feb. 19, 1996.

Appeal from the Circuit Court, Pulaski County, Second Division; Chris Piazza, Judge.

Wm. R. Simpson, Public Defender, Thomas B. Devine, III, Latrece Gray, Deputy Public Defenders, Little Rock, for appellant.

Clint Miller, Deputy Atty. General, Little Rock, for appellee.

BROWN, Justice.

Appellant Greg Hogue appeals his capital murder conviction on grounds that the evidence was insufficient to support the judgment. We disagree and affirm the judgment.

On February 22, 1994, Jess Brown was working at Rocky's One Stop, a convenience store located at the corner of John Barrow Road and Asher Avenue in Little Rock, which he owned. Sometime after 10:00 p.m., another employee, Marcus Hall, returned to the convenience store to buy batteries for a remote control device. He warned Jess Brown that he had seen two men standing by the laundromat near the store and that one of them was wearing a white scarf over his face. He said they ran off after seeing him.

Shortly after that, two men entered the store. One of them fired a shot which hit Jess Brown in the mid-chest region. The men fled the store after the shot was fired and were seen leaving the area in a white car with a dark roof. Jess Brown lived long enough to call 911 but later died from the gunshot wound.

Greg Hogue was ultimately charged with capital felony murder in the shooting death of Jess Brown with aggravated robbery as the underlying felony. A jury trial was held at which Mark Poindexter was the principal State witness. He testified that he hosted a party on February 22, 1994, and that Greg Hogue, Damion Brown, Harold Olive, and Anthony White were there, among others. He testified that Anthony White suggested they commit a robbery. Shortly after that, Poindexter left with Hogue, Damion Brown, White, and Olive to commit the robbery. They used his car--a white Delta 88 Oldsmobile--for transportation. Before they reached the site for the robbery, White "chickened out," according to Poindexter, and jumped out of the car. When they reached their destination, they got out of the car and took the guns, a .38 revolver and a .380 semiautomatic pistol, out of the trunk. Poindexter testified that Hogue put on a red ski mask, and Damion Brown put a white rag over his face. Hogue and Damion Brown left and walked to the store. Approximately five to ten minutes later, Poindexter heard a gunshot. Hogue and Damion Brown returned to the car, and the group left. Damion Brown told Poindexter that he had dropped the gun. Poindexter testified that Hogue got out of the car somewhere on Barrow Road and that he, along with Damion Brown and Olive, returned to the party.

At the close of the State's case-in-chief, Hogue's counsel moved for a directed verdict specifically on grounds that the only connection between Hogue and the events of February 22, 1994, was through the testimony of accomplices and that there was not sufficient independent evidence to connect him to the crime. The trial court stated that Mark Poindexter was obviously an accomplice but found that other evidence presented tended to connect Hogue to the murder. Hogue's counsel then argued that it was Hogue's position that two corroborating witnesses were also accomplices and, thus, their testimony could not connect Hogue to the crime. The court ruled otherwise and denied Hogue's motion for a directed verdict. The defense rested without calling any witnesses. The jury returned a verdict of guilty on the charge of capital felony murder. Following the penalty phase of the trial, Hogue was sentenced to life in prison without parole.

Hogue raises only one issue on appeal. He claims that there was insufficient evidence to support his conviction for capital felony murder and further maintains that adequate evidence corroborating the testimony of Mark Poindexter, the accomplice, was lacking. Because the sole ground given for his directed verdict motion was the absence of sufficient corroborative proof, that is the only ground preserved for our review. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). Contrary to what he contended before the trial court, Hogue does not argue on appeal that state witnesses, other than Poindexter, occupied the status of an accomplice.

Hogue is correct that when accomplice testimony is involved, our law requires that there be independent, corroborative evidence "tending to connect the defendant with the commission of the offense." Ark.Code Ann. § 16-89-111(e)(1) (1987). The State's retort to this is that Hogue failed to request an instruction informing the jury (1) Mark Poindexter was an accomplice as a matter of law, and (2) it was necessary for the State to produce evidence connecting Hogue to the crime, independent of Poindexter's testimony. By failing to ask for the instruction, according to the State's theory, Hogue waived this argument. The State cites several cases in support of its argument. See Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Moser v. State, 266 Ark. 200, 583 S.W.2d 15 (1979); Odom v. State, 259 Ark. 429, 533 S.W.2d 514 (1976); see also, McDonald v. State, 37 Ark.App. 61, 824 S.W.2d 396 (1992).

We do not agree with the State's analysis of our cases. We have stated that a defendant must either have the trial court declare a person an accomplice as a matter of law or submit the issue to the jury for determination. See, e.g., Rockett v. State, supra; Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990). But we have not required the defendant to do both in order to preserve the issue of an erroneous denial of a directed verdict motion. In the case at bar, there was a finding by the trial court that Poindexter was an accomplice. The court also found that there was sufficient corroborative evidence, and it denied the motion for directed verdict. As a result, the issue of whether the trial court properly denied the motion did not depend on whether a subsequent instruction was requested involving the same legal point. We conclude that Hogue preserved the issue of whether the trial court erred in declining to direct a verdict on insufficient corroborative evidence.

We must then decide whether sufficient evidence tending to connect Hogue to the crime, apart from Mark Poindexter's testimony, was presented, as required under § 16-89-111(e)(1). We have held that the corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991); Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990); David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988). The corroborative evidence must be substantial evidence which is stronger evidence than that which merely raises a suspicion of guilt. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. See David v. State, supra. But corroboration need not be so substantial in and of itself to sustain a conviction. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982).

Here, there is enough evidence to connect Hogue to the crime. First, there is the testimony of Marcus Hall, the employee of Rocky's One Stop, who testified that he saw two men over by the laundromat next to Rocky's One Stop. One of them had a white scarf that covered his mouth and...