# Hill v. State > Supreme Court of Arkansas · July 7, 1986 · 289 Ark. 387 URL: https://www.frixlaw.com/law-library/cases/9772146 ## Case - **Full name:** Steven Douglas HILL v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** July 7, 1986 - **Citations:** 289 Ark. 387; 713 S.W.2d 233; 1986 Ark. LEXIS 1980 - **Precedential status:** Published - **Opinion:** Concurrence by Purtle - **Judges:** Holt, Purtle - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772146 ## Opinion text John I. Purtle, Justice, concurring. The appellant was charged with nine felonies committed during a period of a few hours. At the beginning of his trial, he pled guilty to all of the felonies except the charges of capital murder and attempted capital murder, for which he was sentenced to death and 50 years, respectively. I disagree with the majority on two points. I believe the state erroneously argued evidence which was outside the record and introduced evidence of aggravating circumstances which should have been excluded. First, the state’s attorney used a shotgun for demonstration purposes during the closing argument. He used the wrong gun in attempting to show how the appellant had fired twice and then reloaded for the purpose of being ready to shoot someone else. Aside from it being the wrong gun, the evidence did not tend to show the appellant had in fact reloaded the weapon. The worst thing about the incident was that the prosecuting attorney had trouble loading the gun and it jammed. No doubt this apparent reckless use of a loaded shotgun in the presence of the jury had a tendency to arouse fear and bias in the jury and inflame the passions of the jury. Suppose the gun had fired; would it have been all right if the court directed the jury to remove it from their minds? I don’t think so. I would condemn such activity before someone gets seriously injured or killed. I believe the defense attorney properly objected to this performance at the time it was taking place. I think the court should have stopped the demonstration and admonished the jury to disregard the performance of the prosecutor. There had been no proof presented to show that appellant had in fact reloaded the shotgun. Therefore, this part of the argument was outside the.record. Secondly, I disagree with the majority in approving the procedure utilized by the court in the penalty phase of this trial. As evidence of aggravating circumstances, the jury was allowed to consider evidence that the appellant had previously committed other felonies which grew out of the conduct of the appellant during the period of his escape and the murder for which he was convicted in the trial under consideration. This trial commenced on March 4, 1985. On the same day appellant offered to plead guilty to several charges growing out of the same episode. The trial court entered an order which was dated March 7, 1985, in which the court attempted to nunc pro tunc the judgment to March 4, 1985. The jury verdict reflects appellant was found guilty of attempted capital murder and capital murder. At page 32 of the appellant’s abstract, it is noted that the jury found three aggravating circumstances and sentenced appellant to death by lethal injection. The amended felony information, pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977), charging the appellant as an habitual offender, commences on page 33. Following the amended information, the judgment is found at page 34, sentencing appellant on the crimes which had already been presented to the jury as aggravating circumstances. There does not appear to have been any separate proof that appellant had committed any prior felonies. These judgments should not have been presented to the jury because they had not yet been entered. If this procedure is approved, then there is no reason why the court should not have stopped the proceeding after the jury announced its first verdict, on either the attempted capital murder or the capital murder, and informed the jury that now that he had been found guilty of one felony they could consider it in determining the other verdict. We have not previously had any trouble with the wording of Ark. Stat. Ann. § 41-1303(3), as amended in 1977. In Hill v. State, 275 Ark. 71 , 628 S.W.2d 285 (1982), we considered the identical provision wherein the appellant argued the jury improperly considered felony convictions that had simultaneously been entered. In rejecting Hill’s argument that the jury may have considered these felonies arising out of the same episode for enhancement purposes or as aggravating circumstances, we stated: Appellant also argues that the jury may have improperly considered the six findings of guilt that they had just entered as felonies for purposes of enhancement and aggravation during the penalty phase of the trial. We find no merit to this argument. We can assume that the jury understood the court’s instructions and understood the verdict forms which refer to conviction for previous felonies. [Emphasis in original.] The wording of the statute seems clearly to apply only to felonies committed at a prior time. The defendant in Hill committed the same-episode felonies at different times and places — the robberies at one place and the murder and attempted murder at a later time and several miles away — the same as in the instant case. The verdict forms submitted to the jury in Hill referred to convictions for previous felonies. Under Ark. Stat. Ann. § 41-1303(3), the same-episode crimes should not have been considered by the jury during the penalty phase for purposes of enhancement and aggravation. The majority opinion on this point appears to be based upon the Commentary, which is not a part of the statute or our interpretation of it. The Commentary states that the prosecutor may now establish an aggravating circumstance through proof that the defendant previously committed another specified type of pífense. I concur in the result because I do not think either error was prejudicial in this case. The defense did not discover that the prosecutor had used the wrong shotgun until after the trial, but this does not amount to newly discovered evidence, nor can I say with any degree of certainty that the erroneous conduct by the State in the closing argument had any effect on the verdict. The reason the second error (sentencing phase) was not prejudicial is that two other aggravating circumstances were found by the jury, and the defense specifically waived any objection to the offering of the same-episode felonies in the penalty phase of the trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772146. Public record. Not legal advice.