Hulsey v. State
| Decision Date | 11 April 1977 |
| Docket Number | No. CR-76-125,CR-76-125 |
| Citation | 549 S.W.2d 73,261 Ark. 449 |
| Parties | DeWayne HULSEY, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Kinney & Easley, Forrest City, for appellant.
Bill Clinton, Atty. Gen., by Robert A. Newcomb, Asst. Atty. Gen., Little Rock, for appellee.
Appellant DeWayne Hulsey was charged with capital felony murder in violation of Ark.Stat.Ann. §§ 41-4701, et seq. (Supp.1973). The facts developed at trial indicated that appellant while robbing a service station shot the attendant seven times, causing his death. After trial by jury appellant was found guilty as charged. The jury then heard evidence of aggravating and mitigating circumstances and after further deliberation determined appellant should be sentenced to death by electrocution.
Appellant raises for the first time on appeal the argument that prospective juror John L. Clark should have been excused for cause. The record discloses that the trial judge, upon learning that Juror Clark was a first cousin of the sheriff of St. Francis County, checked the statutes governing challenging of jurors for cause and voir dired Clark, but refused to excuse him. Appellant did not object to the trial court's actions, nor did he ask that Clark be excused for cause. This Court has held that even in capital cases an objection must be made in the trial court in order to raise an issue on appeal. Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (1975).
However, if we consider the merits, we find no support for appellant's claim that Clark should be excused for cause. The sheriff was not a party to the action, and he did not testify. Furthermore, Clark testified on voir dire that he would give equal credence to the testimony of witnesses for the defense and the State.
On appeal appellant did not raise the issue of whether his confession was voluntary but since this Court, pursuant to Ark.Stat.Ann. § 43-2725 (Supp.1975), must review the record for all errors prejudicial to him, we will discuss the admissibility of the confession.
The trial court, pursuant to Ark.Stat.Ann. § 43-2105 (Supp.1975), held the required Denno hearing to consider the circumstances surrounding the giving of appellant's confession to law enforcement officers. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Under this statute it is the duty of the court ". . . before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily". The trial court after hearing the testimony of four witnesses ruled appellant's confession had been freely and voluntarily given.
The evidence at the Denno hearing included the testimony of all the police officers present when the confession was signed and a copy of rights statement signed by appellant. The rights statement form showed that appellant stated he understood he had the right to remain silent; that anything he said could be used against him in court; that he could consult with and have an attorney present before making any statement or answering any question; that if he could not afford an attorney one would be appointed and that he could stop the questioning at any time if he so desired.
Deputy Sheriff James Jones testified he was present when appellant signed the rights statement. Deputy Claude Ramsey testified the rights statement form was read to appellant and signed by him. Deputy Sheriff George Irwin testified he was present when appellant signed his confession and heard the confession read to appellant before he signed it. State Police Officer W. D. Davidson testified he read the statement of rights form to appellant, inquired as to whether appellant wished to waive his rights and witnessed the signing of the rights form. Davidson further testified that neither he nor anyone in his presence threatened, coerced or intimidated appellant, or promised leniency to appellant in order to obtain the confession. Thus the preponderance of the evidence reflects appellant's confession was voluntary and was properly admitted by the trial court. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).
Appellant next contends the court abused its discretion in admitting certain photographs of the body of the victim because cotton swabs were sticking out the bullet wounds in the victim's face. It is urged that the pictures were inflammatory, prejudicial and unnecessary. An examination of the photographs does not indicate the cotton swabs made the pictures prejudicial in any way.
Deputy Sheriff Irwin testified he asked a nurse to place some cotton-tip swabs in the facial area of the decedent to determine the number of wounds and the direction of travel of the bullets; that it was necessary to use the cotton-tip swabs because the large amount of blood made it difficult to find the bullet holes. The State Medical Examiner testified the decedent had four gunshot wounds to his head and face and three more to other parts of the body.
At the prosecuting attorney's request the trial court gave a precautionary instruction, stating:
Ladies and Gentlemen, I'm going to permit these pictures to be passed and viewed by you. You have heard what it is that has been added, why they were so added, and you will disregard the pictures for any other purpose other than to help you understand where the deceased was shot.
Furthermore, you may consider the pictures for purposes of showing the ferocity of the attack upon the deceased.
It was proper for the jury to consider the photographs to determine the savagery of the attack upon the victim. Witham v. State, 258 Ark. 348, 524 S.W.2d 244 (1975). Since the photographs corroborate appellant's confession and clearly depict the wounds inflicted upon the victim, the trial judge properly admitted them. Tanner v. State, 259 Ark. 243, 532 S.W.2d 168 (1976). See also Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972), wherein we stated the trial court has "wide discretion" in admitting photographs into evidence.
Prior to trial appellant filed a motion to suppress eyewitness identification because of a prejudicial line-up. Appellant did not pursue the motion when he learned there had not been a line-up but that the pre-trial identification was made by photographs.
Even if the pre-trial identification had been questioned on appeal, we find it was properly handled. A pre-trial hearing was conducted to determine whether the pre-trial photographic identification was tainted. After hearing evidence the trial court ruled the pre-trial identification procedure was conducted in accordance with all the requirements of the law.
At the hearing Tim Brooks, the person who made the pre-trial identification, testified he picked appellant's picture from a group of pictures and that when he saw appellant at the murder scene the lights at the service station were on, visibility was clear and appellant was about three feet away at one of the times he observed him. Deputy Sheriff Irwin testified he showed Brooks pictures of seven or eight white males and that Brooks picked out appellant's picture; that he (Irwin) did not indicate any particular photograph; and that when the order was rearranged Brooks again immediately picked out appellant's photograph.
From testimony and the totality of the circumstances we find the State has shown that there is no likelihood of misidentification in this case. Pollard v. State, 258 Ark. 512, 527 S.W.2d 627 (1975).
Appellant next contends the trial court prejudiced the jury by commenting on the credibility of appellant's testimony and that of Dr. Sophia McCay.
At the trial during cross-examination of appellant the following exchange took place:
A. They asked me to read a statement similar.
The pertinent part of the examination of Dr. McCay follows:
Thereafter the court allowed the witness to make a full explanation of her answer. The record discloses appellant did not object, ask for a mistrial or request the jury be admonished in connection with the court's remarks concerning Dr. McCay or appellant. The law is well settled that even in capital cases an objection must be made in order to raise an issue on appeal. Neal v. State, supra ; Fields v. State, 235 Ark. 986, 363 S.W.2d 905 (1963); and Johnson v. State, 127 Ark. 516, 192 S.W. 895 (1917).
* * * If appellant was under the impression that the remark made by the court was prejudicial it was his duty to so inform the court and give it an opportunity to make a retraction or explanation to the jury. Roach v. State, 222 Ark. 738, 262 S.W.2d 647 (1953).
We also note the trial court gave the following instruction:
I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest...
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