*1
Fred Lee HOGAN v. STATE of Arkansas
County jury appellant, Hogan, life his at punishment murder and fixed felony alleged without The information imprisonment parole. Murray Marie had caused the death of Martha in the furtherance of the commission the course of and we affirm. the crimes of and On kidnapping. appeal 25, 1982, floating was found May body On victim’s bank. County in the River near the Crittenden Mississippi identification The was Positive body badly decomposed. identified was made medical records. The autopsy report front, side, and back the cause of death as blunt trauma to the were of the rib cage side of the chest. Fractures right extensive. 24, 1982, March alive on last seen victim was Kentucky Food Store
around at the Fast Check 11:15p.m. Nallin, co-worker, Richard Street in Tennessee. Memphis, at 11:00 work had off gotten the victim testified that he and custom, had and, each as was their p.m. evening, home. way their Food Store on Fast Check stopped by store, he at the the victim arrived Nallin testified that when a friend out the window in his talking was seated truck up the victim drive He observed seated in another car. car, car, drive alone, return to her store out of her get had who as the person identified away. Nallin truck from behind his the store approached the victim when the front door store near standing enter after he saw the victim stated that entered. Nallin store, a second *3 nor did he see did not see appellant again he Nallin away. as she drove victim’s automobile on he would the victim ordinarily pass testified that store, did not pass but he had both left freeway they after date. her on this Witness, Houston, testified that he had known James
appellant about twenty years. 24, He stated that on March 1982, he first saw at about 6:30 that p.m., they were and had drinking made several trips to the store on liquor Streets, Kansas and Crump and that had they some gotten beer at the Fast Check Store. Later that evening, appellant left Houston’s mother’s house located about three blocks Store, from the Fast Check that saying he was going home. Houston did not know where appellant went. actually Houston further testified that he and knew who ran “guy the store” and that they went there often. After 24, however, night March he did not see appellant “around the Fast Check anymore.” 26,
Around 1982, 3:00 p.m., March the victim’s 1974 Ford Maverick automobile was found in Arkansas about 1,000 yards west of the west end of the Memphis-Arkansas It Bridge. was parked on a small dirt road that parallel runs with Interstate 55. Blood was found in various smudged parts blood-stained, the automobile. The victim’s torn bra was found the center of the front seat. In the center of the front floor board were found the pink victim’s panties, white parity girdle, hose, panty brace; and a knee these items were
253
Dr. Charles
other.
inside each
wadded up together
found
Arkansas State
Serologist
Chief Forensic
Dorsey,
panties
the torn
Lab,
found
that semen
testified
Crime
loaded
and was
secretor
from a
“O”
type
came
and girdle
as a type
was identified
cells. Appellant
with spermatozoal
been
not have
could
husband
The victim’s
“O” secretor.
had had
he
cells since
spermatozoal
source
dome
found on
were
fingerprints
vasectomy. Appellant’s
fixture.
the light
been removed from
had
cover which
light
insufficient
the evidence was
Appellant
argues
first
murder,
prove
felony
arguing
to
offense
or
rape. Upon
evidence of kidnapping
there
review,
is
determine
it
our
appellate
responsibility
evidence,
most
light
whether
when viewed
State,
is substantial. Fountain
v.
appellee,
to the
favorable
Williams (1981);
457,
Ark.
for
(1975).
test
substantial
substantial the verdict. The could support victim, have found either kidnapped and, her, raped attempted or in the course and Ann. Ark. Stat. her. See crimes, killed these furtherance 41-1501(l)(a). § *4 did not his
Since receive the death appellant penalty, argument that the death constitutes cruel and penalty punishment arbitrary unusual that its application will violates due not be process considered. in
Appellant trial court erred argues denying his motion to The burden of sequester jury. proving did not a fair receive trial because of failure State, Ford v. jury is on the Ark. sequester appellant. 276 3, 389, denied,_U.S._, 98, cert. Ct. 103 S. 633 S.W.2d so, Even Ed. 519 offered proof L. 74 2d any were influenced outside the jurors by matters courtroom. Whether or not the sequestered should be rests within the sound discretion No trial court. abuse been shown. has discretion this
254
The trial court did not err in refusing suppress in-court identification This court appellant. looks to the totality the circumstances to determine whether have lineup procedures been sufficient to preclude identifi cation at testimony trial. We will reverse not the trial court’s State, unless & Elliott v. ruling clearly erroneous. James 596, Ark. 448 (1980). Appellant argues that he coat, in only a lineup wearing green witness, Nallin, stated ‘‘that coat is green what he had on.” But a per se unconstitutionally is not lineup suggestive merely because one only person was a wearing piece clothing similar to the one worn Matthews the offender. McGraw (1982); truck, (1978). While sitting S.W.2d 71 his the witness had to observe opportunity conspicuously at him staring while walking from behind his truck to the front of the store. The witness further observed appellant under standing four flood lights front of the store Further, while the victim was walking by. witness was firm and unequivocal his identification. We cannot say trial court erred in allowing the in-court identification.
Since appellant has admitted he was not prejudiced, trial court did not err in a refusing grant mistrial when three prospective jurors were seen Commercial reading Appeal, Memphis, Tennessee, a newspaper.
Appellant argues the trial court erred in refusing grant mistrial when Officer Wilburn Marr an gave unresponsive answer to a question from appellant’s counsel regarding fingerprints the officer had taken following appellant’s arrest:
BY MR. COOK: Marr,
Q. Officer here, were these the first take or did you have to take any more than once? No, sir,
A. that’s I all took. We do have a arrest prior him, record which we do have a fingerprint card on. stating: attorney objected Appellant’s would they jury] the effect as to is speculative [the [I]t — us, help it can’t Certainly, any way I don’t see it. much more prejudicial it was probably I think and fact, even I hadn’t since probative it was than it. volunteered simply He just him about that. asked stating: the motion court denied The trial been con- well have could response officer’s [T]he I to the question. pertinent him as being sidered it was a gratuitous at all didn’t get impression interject officer’s part effort on the or deliberate lawsuit, think and I don’t in this improper anything done, harm, sufficient justify if that was any, mistrial. the extreme of a remedy the circumstances under or not to declare a mistrial Whether of the trial court. discretion case rests in the sound of this Here we (1982). Nolen the court abused its discretion. say cannot erred allowing trial court that the Appellant argues trial to introduce during penalty phase the state convictions for the evidence appellant’s into recent But appel- circumstances. of showing aggravating purpose resulted that no candidly prejudice admits on appeal lant at life without fixed appellant’s punishment since rather than death. parole made objections during have examined all other
We Court, Supreme Rules of the 11(f), to Rule trial pursuant find error. See 1977) Ann. Vol. SA (Repl. Ark. Stat. Earl
Affirmed. Dudley Hollingsworth,
Purtle, dissent. JJ., Hollingsworth, dissenting, Justice, A. P. support there is substantial states that
majority *6 I murder. felony of capital the conviction the appellant disagree. the state failed to prove
The maintains appellant murder, or that a kidnapping a reasonable doubt beyond murder, must To the State prove occurred. felonies. murder and one of the two underlying prove was appellant The evidence at the trial showed that the A last seen. at the Fast Check where the victim was seen store and the with the saw both the appellant co-worker victim and later picked at the store at the same time victim drive out of a witness saw the victim line-up. The appellant when the victim He did not see the in the car off. customarily pass off. he would drove The witness testified they on his from work since both way the victim home murder, he did the same On night traveled route. car was last The victim’s away. her after she drove not see found on Friday before being on Wednesday night seen Arkansas Memphis west of and the old under afternoon in the and in a both car struggle There were Bridge. signs driver’s dirt and on the grass around the car. The the area was and down. The car unlocked was scuffed knocked side rear of the right were keys ground found on and it was found near the yellow cable with blood on vehicle. car, In the found articles of the victim’s keys. officers with blood on various blood on them and clothing spots of the car. A was discovered on the dome fingerprint parts which was with one of the The appellant’s. matched light blood found the car was testified that the expert forensic victim, “O” blood her type type blood which was the husband, were found undergarments The appellant. from a with a of semen large quantity to contain “O.” type blood in the river two months
The victim’s was found body dentist as The was identified a the victim’s. body by later. trauma to the cause of death was from blunt chest. The The could have witness testified that the cable produced expert on the victim. The injury expert wound type or that the victim was either dead when she dying testified in the water. placed have should court claims case close of State’s for at the verdict acquittal a directed element of every failure to prove of the state’s because are they required as doubt beyond reasonable offense It 448 App. Small law. to prove the prosecution has allowed majority appears by a preponderance to the charged conduct *7 is cases in criminal The standard of proof the evidence. that standard. This case changes a reasonable doubt. beyond Fourteenth Amendment The Due the Process Clause of conviction defendant in a criminal case against a protects fact every doubt of proof beyond a reasonable “except upon he is charged.” with which necessary to constitute the crime of This (1970). re standard Winship In 397 U.S. a vital American scheme criminal “plays role the proof substance” it to “concrete because procedure,” operates innocence, against unjust the to ensure presumption to convictions, risk factual error to reduce the Id. criminal at 363. proceeding. it I find
This evidence circumstantial. entirely was states majority to The insufficient the verdict. support is to state what there substantial fails evidence but is evidence is. The for substantial evidence test recognized its without whether conclusion jury could have reached Cassell to resort to having conjecture. speculation (1981). This conviction as upon based evidence which lacks elements important found cases cited where we by majority shown case, this In there circumstantial be sufficient. that was testimony by concerning the victim her; nor was there by the doctor who examined corroborated testimony of witnesses that was the issue probative Such identification would identification assailant. thereby with serve connect the crime and his identity establish as as shown in Foun perpetrator 457, 620 this tain S.W.2d 936 Under record, ust j circumstances could be as consistent with innumerable who have had people might access guilt victim on the in question. night also the trial erred argues court it
when denied his motion for mistrail officer after a police volunteered testimony about arrest appellant’s prior trial, record. During the Memphis Police Officer Wilburn R. Marr testified he made an ink fingerprint when he was arrested. the cross exami- During counsel, nation by appellant’s the following occurred: Marr, here, Q. Officer were these first taken or did you have to take more any than once? sir,
A. No that’s all I took. We do have a arrest prior him, record on which we do have card on. a fingerprint added) (emphasis
The trial ruled that judge the officer’s well response could have been considered himby as being pertinent question and did not to be a appear deliberate effort officer to interject matters improper into trial. Although we have held that when the appellant the matter into injects *8 cross-examination, a case by questions on com he cannot develops, of what that is not the situation here. plain The appellant’s askéd attorney the officer if he had to take the fignerprints more than once. The officer’s initial of response sir, took,” “No that’s all I was a responsive answer question. The second statement no other served purpose, than to inform jury that had an arrest record. The overruled judge appellant’s objection statement, did not admonish the jury to disregard second which would have served to nullify the effect of prejudicial Duncan, 494, 438 that statement. See Back Ark. The (1969). court’s failure to admonish the jury admonition, error. In the absence such an error an to be presumed prejudicial unless the contrary affirmatively Back, supra. appears. addition, reversible error trial court committed
In when it the lesser included failed to instruct on instructions, offenses murder. Prior to capital giving any stated: judge any made not include Since the decision has been offenses, verdict instruction or included either lesser form, instructions I am those transitional removing which mention those. was made and not the decision why
The did judge explain have may that does not reflect discussion any record is no in refusal We held there error taken have place. to support where there is an instruction instruction. giving Couch was also in Couch There, we there with murder. held that charged “[i]f was guilty had even evidence that slight been require an degree murder the first we would reverse and First degree lesser included instruction offense.” 1977) in Ark. Ann. (Repl. murder is defined Stat. 41-1502 § as: commits first if:
(1) degree murder or with he (a) alone one or more other acting persons, or and in the attempts felony, commits to commit a felony course in the or of and furtherance of the therefrom, he flight accomplice immediate or an causes the death of circumstances any person under extreme to the value manifesting indifference life; human or with
(b) premeditated purpose deliberate the death causes the causing person, of another he any death of person. Ann. 41-1508 murder is defined Stat. degree
Second § *9 1977) as: (Repl. if: degree murder in second
(1) person commits the of another with the death (a) causing the of purpose or of any person; he causes the death person, he death another (b) causes the of knowingly indif- extreme manifesting under circumstances life; human or ference to the value of 260
(c) with the serious physical of purpose causing death of injury any to another he causes the person, person.
I there is say cannot not slight of these two offenses and appellant’s guilt lesser-included therefore the instruction should We jury given. have been State, 254, in Brewer (1980) held v. Ark. 608 363 S.W.2d that, this has been more right seriously protected “[n]o Court than the of right jury an accused to have instructions on lesser offenses included in more serious offense We addressed the same issue and reached charged.” same in conclusion Robinson (1980), S.W.2d 421 where we stated that it to refuse to is error instruction, “no give matter how the trial strongly judge feels that the evidence in favor of weighs finding guilty of a on the most serious Our for such charge. strong preference an instruction even us it has induced over approve giving Here, objections.” the defendant’s did not to the object failure the instruction. In Wicks (1970) we our reiterated fundamental rule “that an will not for reversal be argument in considered the absence of an appropriate objection trial court.” been Exceptions have made to that rule however, as was out in pointed Wicks. One dealt exception with two cases in which the death penalty imposed where, “we did an require objection not trial court’s failure to the bring jury’s attention matter essential to its Wicks, consideration death itself.” penalty supra. Here, the trial court failed to bring attention a jury’s matter essential to the consideration a sentence life without parole. By on lesser omitting instructions offenses, included the court with presented the option convicting murder and him to death or life without sentencing parole, or acquitting him. Two exceptions other mentioned in Wicks are ap- One involves the trial plicable. duty court’s to intervene ection, error, the absence of an obj to correct a serious and the is based other on Ark. Unif. R. Evid. 103 (d) this “Nothing precludes rule taking notice of errors substantial affecting *10 of the to the attention brought were not although they rights ais instructions required The failure court.” appellant. right serious error and affects a substantial this argument did not present Although Ct. R. Ark. Sup. it is before us because appeal, properly to the errors prejudicial this court to review all (f), requires is death or life imprisonment. when the sentence found of his peers be may guilty. The appellant this But a consider- agrees. he is. A Court majority the dissent ation of the evidence has convinced charges slight underlying too support the verdict. support and therefore kidnapping would better served to submit the facts another be Justice In ury. view of the other errors and their cumulative j alleged effect, I a new trial should prejudicial opinion am have been granted.
Purtle, J., joins this dissent.
Dudley, J., dissents. DAY Shinault DAY Martin v. Sara
Stephen 83-207 663 S.W.2d 719 Court of Arkansas
Supreme 30, 1984 Opinion January delivered