ARTHUR L. HICKS, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE ARKANSAS COUNTY CIRCUIT COURT, NORTHERN DIVISION
[NO. CR-2014-076] HONORABLE DAVID G. HENRY, JUDGE
Gunter, Witherspoon & Galchus, P.C., by: Misty Wilson
Borkowski, for appellant.
Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't
Att'y Gen., for appellee.
R. BAKER, ASSOCIATE JUSTICE
2, 2015, Arthur Hicks, Jr., was convicted of capital murder
by an Arkansas County jury. Pursuant to Ark. Code Ann.
section 5-10-101(c)(1)(B)(2)(Repl. 2013), the parties agreed
to allow the circuit court to sentence Hicks. The circuit
court sentenced Hicks to life imprisonment with the
possibility of parole in 28 years and an additional
seven-years incarceration for the use of a firearm in the
crime. Hicks timely appealed to this court. On April 7, 2017,
we ordered rebriefing because the Attorney General failed to
certify its review pursuant to Rule 4-3(i) of the Arkansas
Rules of the Supreme Court. Subsequent to this order, the
parties have filed additional briefs and the case is ripe for
his conviction and sentence, Hicks presents two issues on
appeal: (1) the circuit court erred in permitting hearsay
testimony of the emergency medical technician under a hearsay
exception and (2) the circuit court erred in denying
Hicks's motion for directed verdict because the evidence
was not sufficient to sustain the conviction for capital
30, 2014, Hicks was charged with one count of capital murder
in the July 22, 2014 death of Daniel Ruffin. The State's
theory at trial was that Hicks, in the course of committing
or attempting to commit a robbery, caused Ruffin's death.
Vera Strange, Ruffin's mother, testified that she, her
husband, and Ruffin lived at 1311 South Maple Street in
Stuttgart. Ruffin's routine was to come home from his job
at Wal-Mart, put his headphones on, and walk his dog,
Lazarus, on the same path on the streets around their home
every day. Ruffin's walks included passing the business
that his mother and her husband owned, S & W Produce,
which was less than a block from their home. Strange further
testified that on the day of the crime, Ruffin left their
home after work with his headphones on to walk his dog.
Strange testified that after Ruffin left to go on his walk,
she went to visit a friend at the hospital. While at the
hospital, Strange received a phone call that Ruffin had been
"Eric" Sanek, Ruffin's neighbor, testified that
he lived at 1304 South Maple Street, and on the day of the
crime passed three boys walking south on Maple as he drove
home between 4:30 and 5:00 p.m. Sanek identified Hicks as one
of the boys he passed. Sanek testified that he was unloading
cedar wood from his car and heard a gunshot. He further
testified that he looked down the street and saw Ruffin
holding his chest running toward his home screaming "Oh
my God. Oh my God." Sanek and his wife ran to help
Ruffin and found him bleeding, holding his chest, and lying
underneath his truck. Sanek testified that he called 911 as
his wife talked to Ruffin and tried to keep him calm until
the paramedics arrived.
Stuttgart Fire Department Fireman and Emergency Medical
Technician, David Payan, testified that on the day of the
crime, he responded to a call that a man who had been shot
and was found underneath a pickup truck at 1311 Maple Street.
Payan testified that when he arrived, Ruffin was halfway
under the truck with a red stain on his shirt, and Payan
could see a gunshot wound. Payan testified that he pulled
Ruffin out from underneath the truck, cut his shirt off, and
began to administer medical assistance to the gunshot wound
that had gone through Ruffin's chest and exited from his
back, known as a "through and through" wound. As to
Ruffin's condition, Payan testified that "he was
alert and oriented . . . he looked scared, " and was
alert enough to speak to Payan. Over Hicks's objection,
Payan testified that while administering medical attention,
he asked Ruffin about the shooting:
Payan: I was . . . trying to stop the bleeding and [Ruffin]
told me that he was walking along the road and three - -
three guys came up and asked him what he had in his pockets.
And he said, "Nothing but a cell phone."
And one of them said to, "Give it to me."
And [Ruffin] said, "No."
And that's when one guy shot [Ruffin].
also testified that upon examination, he was aware that
Ruffin's left lung had no sounds at all and that
Ruffin's condition was serious.
Casey testified that on the day of the crime, around 4:00
p.m., he met Hicks and Kendall Smith at S & W Produce.
Casey testified that he was on the phone and was walking
approximately half a block in front of Hicks and Smith. Casey
testified that as the boys walked down Maple Street, he
passed Ruffin. Casey further testified that after he passed
Ruffin, he heard a gunshot go off. After he heard the
gunshot, he turned and saw Ruffin and the blood all over his
shirt. Casey testified that he stood in shock for
approximately 45 seconds and then he ran to his uncle's
house. Casey also testified that after he heard the gunshot,
he saw Hicks putting the gun in his pocket as Hicks ran off.
Smith testified that on the day of the incident, he met up
with Hicks and Casey at S & W Produce. Smith testified
the boys left on foot, he was side by side with Casey, and
Hicks was a few feet behind them. Smith testified that he
heard Hicks say, "I'm going to hit him, " as
Ruffin was walking up the street toward the boys with his
dog. Smith further testified that after he heard Hicks say,
"I'm going to hit him, " he heard a gun cock
"like click/clack." Smith testified that he turned
toward the noise of the gun and saw Hicks raising his hand
with the gun, pointing it at Ruffin "like he was going
to rob him." Further, Smith testified that he heard the
following conversation between Hicks and Ruffin:
Hicks: What's in your pockets?
Ruffin: A phone.
Hicks: I need that.
Ruffin: Is that a BB gun? Is the gun fake?
Hicks: No, it ain't fake. Do you want to see what the
bullet feel like?
testified that after Hicks said the gun was not a fake, Hicks
shot Ruffin at point-blank range. Smith testified that he
took off running, and before he got home he heard the sirens
coming toward the area.
Hicks testified in his own defense. Hicks testified that he
did not have a conversation with Ruffin regarding the gun and
did not realize that the gun was loaded. Hicks further
testified that the gun went off accidentally, and after the
gun fired he walked away not realizing that Ruffin had been
shot. In Hicks's statement to the police immediately
after the shooting he stated that he had shot Ruffin
"for no reason." Hicks denied that he attempted to
on the above-stated facts, Hicks was convicted of capital
murder and sentenced as described above. This appeal