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August 25, 1989

A.L. LOCKHART, Director, Arkansas Department of Correction, RESPONDENT

The opinion of the court was delivered by: WOODS



 Hill and Cox then proceeded to the Cook residence about two miles from the Rice home. The Rice truck was observed there by a state trooper who radioed for backup. The pickup was actually parked behind a room that was attached to the Cook main residence but somewhat apart from it. This room was accessible to the Cook residence by a door which was locked. A number of police cars arrived at the scene about midnight, including Officers Robbie Klein and Lieutenant Conrad Pattillo. The stolen pickup was parked to the right rear of the Cook family's station wagon. Klein and Pattillo were moving along on each side of the station wagon when Klein was shot and killed by a 20-gauge blast fired from near a corner of the room, described supra. This location was occupied by Hill, according to the overwhelming physical and testimonial evidence. Hill then fired at Pattillo and retreated into the room and barricaded himself behind some mattresses. The 20-gauge shotgun, found at this location, had been loaded with the safety off. (Trial Tr. 1432). At the time of the shooting of Klein, the evidence is conclusive that Cox had secreted himself in an attic above this room and was not present when the shooting occurred. He was in no position either to see the shooting or participate in it. After Cox gave himself up, by descending from the attic by drop steps, the carbine which he was carrying was found in the attic. It had not been fired. In the area where Hill was apprehended, there were twenty-one, 20-gauge shotgun shells. Although surrounded, the men refused to heed loudspeaker demands to surrender. Tear gas forced them to give up about 4:30 a.m.

 Cox and Hill were taken to State Police headquarters. They were given their Miranda rights, and videotaped statements were taken forthwith from each of them. There is no evidence in the record that any intimidation or pressure of any kind was used on these men. The video tapes were played at the habeas hearing. They show the two men relaxed, at ease, and very forthcoming. They both gave a matter-of-fact recitation of events from the time of their escape. At daylight state police took a video tape of the crime scene, which was also shown at the habeas hearing. This video confirmed all aspects of both men's statements.

 Hill admitted that he had the 20-gauge automatic shotgun, which the autopsy showed to be the fatal weapon. He readily admitted shooting Klein. "When he started coming toward me, I just seen myself locked up and then I shot." Hill also stated that if he had not been caught, "There would be more people dead." Earlier in the day he had told Cox that he did just what he had to do and that he wasn't going back to the penitentiary.

 Cox testified at the habeas hearing that his video statement was voluntarily given to the officers. He told the state police interrogators that he secreted himself in the attic in the area where the carbine was found, that he heard shooting but did not see anything. He stated that Hill had the 20-gauge shotgun. I am convinced that both Hill and Cox told the truth in the statements they gave to the state police on video shortly after Klein was killed.

 Hill was charged with capital murder, attempted capital murder, escape, burglary, theft, aggravated robbery and kidnapping. He pled guilty to all these charges except capital murder and attempted capital murder. On a plea of not guilty to the latter, Hill was tried by a jury, which found him guilty of both charges. On March 8, 1985, after a bifurcated trial, the jury imposed the death sentence on the capital murder charge and fifty years imprisonment for attempted murder.

 Prior to Hill's trial, he was given a Denno hearing on the voluntariness of his confession. (Tr. Trans. Vol. II). After a full hearing conducted on February 11, 1985, which consumed an entire volume of the trial transcript, Circuit Judge Jack L. Lessenberry found that the confession of Hill was voluntary. The record completely supports Judge Lessenberry's decision. Hill testified at the Denno hearing but not at the trial. At the omnibus hearing Cox testified that he did not fire a shot at the officer and did not see the shot fired. He heard shooting but could not see it from his position in the attic. (Trial Tr. 186). He testified that he did not know an officer had been killed until after he gave his statement. (Trial Tr. 180).

 Hill appealed his conviction and sentences to the Arkansas Supreme Court which affirmed Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1331, 94 L. Ed. 2d 182 (1986). He subsequently filed a Rule 37 request for post-conviction relief. His petition was denied. Hill v. State, 292 Ark. 144, 728 S.W.2d 510 (1987), cert. denied, 484 U.S. 873, 98 L. Ed. 2d 159, 108 S. Ct. 208 (1987). Thus, petitioner's state remedies have been exhausted.


 Petitioner has asserted six grounds in his habeas petition as follows: (1) Hill's video statement given to the state police was not voluntary; (2) the jury was permitted to ignore evidence of mitigation; (3) the jury was permitted to consider an impermissibly vague, aggravating factor alleging prior acts of violence; (4) the prosecuting attorney's demonstration of how Hill had reloaded the shotgun after killing Klein constituted prosecutorial misconduct; (5) while the appeal was pending, Cox had submitted a written statement alleging that he, not Hill, had killed Klein; and (6) counsel was ineffective. These contentions will be discussed seriatim.

 A. Voluntariness of the Confession

 At the Denno hearing Hill claimed that he was threatened by police officers who were armed and that one of the officers "played" with his gun in an effort to intimidate the petitioner. The officers denied these accusations. The trial court found the confession to be voluntary. The Supreme Court of Arkansas made an independent determination of the issue and dealt with it at length in the petitioner's direct appeal. "Appellant's argument is without merit and the confession was properly admitted." Hill v. State, 289 Ark. at 392, 713 S.W.2d at 235.

 In a habeas corpus proceeding I am also obligated to make an independent factual determination with respect to the voluntariness of the confession. Miller v. Fenton, 474 U.S. 104, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985). The voluntariness of a confession is not one of the state court findings of fact entitled to presumption of correctness under 28 U.S.C. 2254(d). Id. at 112. However, as Justice O'Conner pointed out in this opinion, "the federal habeas court should, of course, give great weight to the considered conclusion of a cogent state judiciary." Id. at 112. The final decision on "voluntariness" thus rests with this court after a consideration of "the totality of the circumstances." Id. at 117.

 B. The Jury Was Permitted to Ignore Evidence of Mitigation.

 Petitioner argues that his sentence should be set aside because the jury found no mitigating factors, in spite of the fact that the youth of a defendant is set out in the statute as a mitigating factor to be considered. A.C.A. § 5-4-605(4) (1987). Hill was eighteen years of age at the time of the murder. This issue was raised by petitioner in a motion for new trial and in his direct appeal to the Supreme Court of Arkansas. The trial judge denied a new trial on this ground. (Trial Tr. 1793-94, 1829-30). The Supreme Court of Arkansas distinguished Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977) on which petitioner relies and made short shrift of petitioner's argument:

We do not interpret the jury's action to mean that they did not consider the evidence of mitigation that was offered. Rather we find the jury determined that the appellant's youth was not a mitigating factor, as they were entitled to do, and so indicated that no mitigating circumstances were found. No error was committed.

 Hill v. State, 289 Ark. 387, 396, 713 S.W.2d 233 (1985).

 I am in agreement with the Supreme Court of Arkansas with reference to this issue. The trial court properly instructed the jury that form (2) of the verdict forms listed some mitigating factors it could consider. (Trial Tr. 95, 1720). The youth of the defendant was specifically included on this form. (Trial Tr. 84, 1765). See A.C.A. § 5-4-605(4) (1987). The jury was told it could find other mitigating circumstances, and space was provided for their listing. (Trial Tr. 1720, 84-86, 1764-65). In closing for the defense in the penalty phase, the youth of the defendant was repeatedly stressed. (Trial Tr. 1742, 1743, 1744, 1745, 1747).

 Nothing in the record suggests that the jury disregarded petitioner's youth or failed to give it consideration. It was repeatedly placed before the jury in the verdict forms and closing argument. The jury simply rejected his youth as a mitigating factor, which was clearly within its province.

 The Supreme Court of the United States in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 and Wilkins v. Missouri, 488 U.S. 887, 109 S. Ct. 216, 102 L. Ed. 2d 207 decided June 26, 1989, held that death sentences imposed on two individuals -- one 17 years, four months, and the other 16 years, 6 months, were constitutional and did not constitute cruel and unusual punishment under the Eighth Amendment. "We discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at only sixteen years of age." 492 U.S. 361 at p. 380. Petitioner was not only older but was an adult under Arkansas law for all purposes.

 C. The Jury Was Permitted to Consider an Impermissibly Vague, Aggravating Fact Alleging ...

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