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MILLS v. STATE

December 4, 1995

JOHNNY MILLS
V.
STATE OF ARKANSAS



Appeal from Lawrence Circuit Court; Harold Erwin, Judge; affirmed.

SYLLABUS BY THE COURT

1. EVIDENCE — CHALLENGE TO SUFFICIENCY OF — FACTORS CONSIDERED. — In a challenge to the sufficiency of the evidence, the court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it; evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture; in reviewing the sufficiency of the evidence, only the evidence in support of the conviction need be considered.

2. EVIDENCE — FORCIBLE COMPULSION DEFINED — SUFFICIENT EVIDENCE OF FORCIBLE COMPULSION FOUND. — "Forcible compulsion" is defined as "physical force, express or implied, of death or physical injury to or kidnapping of any person"; the fact that the victim was shot before her underwear and pantyhose were removed circumstantially supported the use of force before sex; moreover, the time span between the time that the victim left her sister's apartment the night of her murder and the time of her subsequent duress at the restaurant was roughly ten minutes to forty minutes; that abbreviated period undercut the theory that consensual sex transpired during this window of opportunity.

3. EVIDENCE — PROOF OF RAPE SUBSTANTIAL — APPELLANT'S CONTENTION WITHOUT MERIT. — In viewing the evidence in the light most favorable to the State, the proof of rape was substantial where there was the testimony of witnesses who heard appellant admit to raping a girl in Walnut Ridge, there was eyewitness testimony that appellant accosted a woman at a convenience store sometime after 7:00 p.m. on the night of the victim's murder, there was the DNA profile matching the appellant's blood to the semen found in the victim's mouth, a pistol was clearly involved which could have The opinion of the court was delivered by: Robert L. Brown, Justice.

The catalyst for this appeal was [322 Ark Page 652]

the conviction of the appellant, Johnny Lee Mills, for capital murder and his sentence of life imprisonment without parole. *fn1 Mills appeals on seven grounds: (1) insufficient evidence for capital murder and the underlying felonies; (2) failure of the State to provide exculpatory information as part of discovery; (3) tainted photographic lineup and in-court identification; (4) failure to suppress illegally seized blood; (5) failure to allow into evidence a tape and transcript of a hypnotherapy session with a defense witness to refresh the witness's recollection; (6) failure to exclude a photograph of a pickup truck without proper foundation; and (7) error by the trial court in overruling Mills's objection to an allegedly racist remark made by the prosecutor in closing argument. We affirm the judgment.

On November 28, 1992, at approximately 9:41 p.m., Officer Pardoe Roberts, who was then with the Lawrence County Sheriff's Department, found the body of Carrie "Tish" Galbreath in a car parked on Luther Bridge Road off State Highway 34 outside of Walnut Ridge. She had been shot six times and died of blood loss. One bullet wound was behind her left ear, and the gun had been fired at close range. She was also shoeless and her feet were covered with mud. Her underwear and pantyhose were found on the floor of the car, and they had a hole through them which was later identified as a bullet hole. What appeared to be blood was found on the outside passenger's side of the car and on the car's hood.

Mills was arrested in connection with the murder and charged with capital murder, rape, and kidnapping. He was later charged with robbery. At the ensuing trial which began on August 1, 1994, and following a motion for directed verdict by the defense, the trial judge dismissed the robbery charge. The jury then returned a guilty verdict for capital murder, and Mills was sentenced to life without parole.

I. INSUFFICIENT EVIDENCE

The State's case against Mills consisted of these elements. The victim's sister, Peggy Lomax Robbins, testified that she was [322 Ark Page 653]

with her sister until 6:50 p.m. on the evening of November 28, 1992, and loaned Galbreath her car — a Buick — to go to work. On that same day between 7:00 p.m. and 7:30 p.m., Brenda Whited and her husband, Randal Whited, testified that they were at Coleman's Combo service station in Walnut Ridge buying gasoline for their car. Brenda Whited heard a lady screaming, "He's going to shoot me. Help me, please, he's going to shoot me." She then heard gunshots. She looked back over her shoulder and saw a black male and white female. The woman was screaming and fighting with the man. At that point, the woman screamed, "He's going to shoot me again." She then added, "Oh, God, he's shot me." Brenda Whited saw the man and woman wrestle some more.

Randal Whited then came out of the building. The man yelled to him, "Go get him, across the street, go get him." Randal Whited looked in the direction where the man pointed, but no one was there. The man next shoved the woman into the front seat of their car and down towards the floorboard. As he was driving away, he pulled his car over to where Brenda Whited was parked, pointed at her, and said something which she could not hear. After that, he drove away but Randal Whited took down the license plate of the car which later proved to be the car of Peggy Robbins. At trial, both Brenda Whited and Randal Whited identified Mills as the man with the woman at Coleman's Combo.

It was stipulated at trial that the bullets which killed Carrie Galbreath came from a .38 caliber revolver that belonged to Mills. Lisa Calhoun, a forensic serologist with the State Crime Laboratory, testified at trial that semen was found in the victim's mouth, but none was found in her vagina or rectum. Then Lawrence County Deputy Sheriff Pardoe Roberts testified that blood samples were taken from Mills. DNA testing was performed, and the DNA found in the blood matched the sperm samples taken from Galbreath's mouth. According to Dr. Harold Deadman of the FBI, the probability of selecting someone at random from the black population with the same DNA profile would be one in ten million. When confronted with the DNA results on November 5, 1993, Mills admitted that he had had sex with the victim but said it was Larry White who used his gun to shoot her.

Mike Barter, who was in the Lawrence County jail because [322 Ark Page 654]

of a drug conviction and fifteen-year sentence, testified that he overheard Mills say that "they had killed this girl and raped her and everything in Walnut Ridge." Robert White, who was incarcerated at the time of trial for burglary and theft, testified that Mills told him that he "and Home Boy raped her [a girl in Walnut Ridge] and killed her." White added that Mills said "they took a gun and shot her five times." *fn2

[1] In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction. Id.

A. Rape

Mills contends that the State failed to prove an element of rape, namely forcible compulsion. See Ark. Code Ann. § 5-14-103 (Repl. 1993). He further contends that the evidence supports a finding that the sexual activity between the victim and him was consensual.

In viewing the evidence in the light most favorable to the State, as we must do, the proof of rape in this case is substantial. There is the testimony of Mike Barter and Robert White that they heard Mills admit to raping a girl in Walnut Ridge. There is the eyewitness testimony of the Whiteds, who saw Mills accosting a woman at Coleman's Combo sometime after 7:00 p.m. on the night of Galbreath's murder. There is the DNA profile matching Mills's blood to the semen found in the victim's mouth.

[2, 3] Mills counters this with the fact that according to Dr. Frank Peretti, who performed the autopsy, the victim's facial makeup was intact at the time she was found and the paint on her [322 Ark Page 655]

fingernails was not cracked or chipped. Both of these factors, according to Mills, evidenced consensual sex with no force employed by an assailant. We disagree. Clearly, a pistol was involved which could have been used to coerce sex. "Forcible compulsion" is defined as "physical force, express or implied, of death or physical injury to or kidnapping of any person." Ark. Code Ann. § 5-14-101(2) (Repl. 1993). The fact that Galbreath was shot before her underwear and pantyhose were removed circumstantially supports the use of force before sex. Moreover, the time span between the time that Peggy Robbins left her sister's apartment at 6:50 p.m. the night of her murder and the time of her subsequent duress at Coleman's Combo was roughly ten minutes to forty minutes. While not impossible, that abbreviated period undercuts the theory that consensual sex transpired during this window of opportunity. We conclude that the proof of rape was substantial.

B. Kidnapping.

Mills also argues that there was insufficient evidence presented of kidnapping. The heart of his argument is that Galbreath could well have been dead when she was driven from Coleman's Combo; hence, there could be no kidnapping of a deceased person.

There is, first, the fact that the victim's feet were covered with mud suggesting that she had tried to run away from the car later on and, thus, was manifestly alive after the conflict at Coleman's Combo. In addition, although shot at that time according to what the Whiteds heard, there was no proof that Galbreath was dead.

[4] Surely, the testimony of the Whiteds supports a conviction for substantial interference with Galbreath's liberty. Ark. Code Ann. § 5-11-102(a) (Repl. 1993). Furthermore, the fact that Mills's semen was found in the victim's mouth supports a finding of sexual contact with the victim, at a minimum. This evidence in toto was also substantial.

C. Capital Murder

[5] Mills next maintains that there was insufficient evidence of capital murder because, other than his uncorroborated confessions to Robert White and Mike Barter, there was no proof [322 Ark Page 656]

that he fired the fatal shot. Such corroborative proof, however, is not necessary. Ark. Code Ann. § 16-89-111(d) (1987) provides that:

A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof ...


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