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Hicks v. State

Supreme Court of Arkansas

September 28, 2017



          Cross, Gunter, Witherspoon & Galchus, P.C., by: Misty Wilson Borkowski, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't Att'y Gen., for appellee.


         On July 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 review.

         From 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 murder.

         On July 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 shot.

         Radek "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.

         Next, 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].

         Payan 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.

         Kiasean 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.

         Kendall 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?

         Smith 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.

         Finally, 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 rob Ruffin.

         Based on the above-stated facts, Hicks was convicted of capital murder and sentenced as described above. This appeal followed.

         Points ...

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