{
  "id": 1900895,
  "name": "Hilliard L. NELSON v. STATE of Arkansas",
  "name_abbreviation": "Nelson v. State",
  "decision_date": "1991-09-23",
  "docket_number": "CR 91-70",
  "first_page": "456",
  "last_page": "460",
  "citations": [
    {
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      "cite": "306 Ark. 456"
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    {
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      "cite": "816 S.W.2d 159"
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "category": "reporters:state",
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      "year": 1982,
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      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1742378
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      "year": 1983,
      "opinion_index": 0,
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    {
      "cite": "Ark. Code Ann. \u00a7 5-2-403",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1987,
      "opinion_index": 0
    },
    {
      "cite": "294 Ark. 227",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1895825
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      "weight": 4,
      "year": 1988,
      "opinion_index": 0,
      "case_paths": [
        "/ark/294/0227-01"
      ]
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    {
      "cite": "303 Ark. 335",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1882784
      ],
      "weight": 4,
      "year": 1990,
      "opinion_index": 0,
      "case_paths": [
        "/ark/303/0335-01"
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  "last_updated": "2023-07-14T15:19:57.276738+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Hilliard L. NELSON v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Justice.\nAppellant, along with Charles Colbert and Ricky Dillard, was charged with the capital felony murder of Cheryl Franklin. Dillard agreed to be a state\u2019s witness, and appellant\u2019s case was severed from his co-defendants\u2019. Appellant was convicted of the lesser included offense of first degree murder and sentenced to life imprisonment without parole.\nOn appeal, appellant argues that the trial court should have found Dillard an accomplice as a matter of law and erroneously failed to instruct the jury accordingly under AMCI 402. He also argued that the trial court erred in denying his objections to certain statements made by the prosecutor during closing argument.\nFirst, we agree with the trial court that Dillard was not an accomplice as a matter of law and that the court was correct in instructing the jury under AMCI 403 because Dillard\u2019s accomplice status was disputed. A brief reference to the pertinent facts is necessary. The state\u2019s proof showed that on the evening of January 20, 1990, the appellant, Colbert and Dillard were frequenting various drinking establishments. After a brief conversation in the parking lot of one of the clubs, Dillard gave Ms. Franklin some money in exchange for sex. Apparently, she wanted money so she could buy a \u201chit of crack.\u201d When the men left the establishment, Franklin and another woman got in the car. They took the other woman home, and then picked up another individual named Rita Lane. Lane, however, was subsequently let out when appellant and Lane got into an argument. The men and Franklin then drove to a secluded area where they could smoke some crack.\nDillard testified that he departed the car and laid upon its front hood. He said that appellant got in the back seat and had oral sex with Franklin. Dillard stated that, during this period when appellant was in the car\u2019s back seat with Franklin, Dillard thought he heard appellant say that if Franklin would not have sex, they would leave her stranded. Dillard heard appellant and Franklin argue, and minutes later, Dillard heard three thumps on the back end of the car. Dillard looked through the back window of the car and saw Colbert with something in his hand making a wiping motion on the car\u2019s trunk. When Dillard walked to the rear of the car, he viewed appellant standing over Franklin with a piece of concrete in his hand, coming down towards her head. Appellant and Colbert drug Franklin\u2019s body into some bushes, and told Dillard if he said anything, the same thing would happen to him. Franklin\u2019s body was found the next day and all three men were arrested.\nUnder settled law, appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). An accomplice of another person in the commission of a crime is statutorily defined as a person, who with the purpose of promoting or facilitating the crime, solicits, advises, encourages, or coerces the other person to commit the crime or aids, agrees to aid, or attempts to aid the other person in planning or committing it. Ark. Code Ann. \u00a7 5-2-403 (1987). Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Scherrer, 294 Ark. 227, 742 S.W.2d 877.\nAppellant argues a number of factors he believes show Dillard was an accomplice as a matter of law. For example, he asserts the state originally had filed the same murder charge against Dillard as it did against appellant and Colbert, Dillard was at least guilty of the crime of hindering apprehension and the prosecutor had granted Dillard \u201cextreme leniency.\u201d Clearly, none of these facts in any way make Dillard an accomplice to Franklin\u2019s murder. And while appellant argues the state obtained from Dillard\u2019s wife a shirt, which may or may not have had blood on it, implicating Dillard in the crime, there was other testimony indicating the shirt was Colbert\u2019s. Such evidence surely does not conclusively establish Dillard as an accomplice to murder. See also Pilcher, 303 Ark. 335, 796 S.W.2d 845 (where this court concluded that the fact the witness helped load a victim\u2019s body into a truck did not establish the witness as an accomplice).\nFinally, appellant argues that Colbert\u2019s confession, which apparently related Dillard\u2019s involvement in the crime, clearly revealed appellant as an accomplice. The short answer to this claim is that Colbert\u2019s confession was never introduced into evidence. Thus, the trial court or jury never had Colbert\u2019s confession before it when confronted with the accomplice issue.\nIn sum, contrary to appellant\u2019s argument, the evidence is disputed as to Dillard\u2019s accomplice status. Dillard\u2019s presence at the crime scene and knowledge of the crime was shown, but, as stated above, such is insufficient to make him an accomplice. Thus, the trial court did not err in refusing appellant\u2019s request for the AMCI 402 instruction.\nBefore leaving the accomplice issue, we consider appellant\u2019s suggestion that the trial court erred in denying his directed verdict motion that insufficient evidence was shown to corroborate Dillard\u2019s testimony. The state presented evidence that a Henry Bennett, Thelma Williams (Canaday) and Rita Lane saw Franklin with appellant, Dillard and Colbert on the night of Franklin\u2019s murder, and a Wardell Henderson, a bicycler, found Franklin\u2019s body in the area where Dillard said the four of them had gone that night. An investigator found several items of evidence at that same location, which included Colbert\u2019s black lighter and a concrete block with blood on it. The medical examiner testified that Franklin\u2019s death was caused by a blunt object to her head, such as a concrete block. And finally, a state police officer located Colbert\u2019s car, which had a dented trunk lid with what appeared to be blood on it. The foregoing evidence clearly sufficiently corroborates Dillard\u2019s testimony and tends to connect appellant with Franklin\u2019s murder.\nAppellant\u2019s second point concerns the prosecutor\u2019s closing argument. Basically, he says the prosecutor argued beyond the scope of the evidence and prejudiced the jury by doing so. During his closing, the prosecutor said the following:\nEven [defense counsel] challenged [Dillard] and said, \u201cWhy aren\u2019t you telling us everything you told the police?\u201d And you know what it had to be? It had to be more things that convicted [appellant]. We didn\u2019t hear them, though. If they had been in favor of [appellant], we would have heard them. They would have had the policeman up here telling you all these things that. . . appellant didn\u2019t do it, and someone else did. Or [defense counsel], as he insinuated, \u201cWhy don\u2019t you tell them what you told me?\u201d Well, if it had been good for the [appellant], don\u2019t you know [defense counsel] would have been up there telling you about it?\nAt this point, appellant\u2019s counsel objected, saying the prosecutor knew defense counsel could not testify and still try a case. He called the prosecutor\u2019s remarks improper and said such remarks were not evidence.\nIn reviewing the record, particularly defense counsel\u2019s cross-examination of Dillard, counsel attacked Dillard\u2019s various statements as being inconsistent. In doing so, counsel elicited from Dillard that, in a prior statement, Dillard said that he, Colbert and Franklin did not discuss sex the night of the crime and then posed a question suggesting Dillard had told defense counsel and the authorities a different story later. While the prosecutor objected and defense counsel rephrased his question, counsel, continuing his impeachment of Dillard\u2019s differing statements, asked later, \u201cWhat I want to know now is (sic) what you told the authorities that they wrote down correct or is what you told me correct or what you are telling the jury correct?\u201d In closing argument, defense counsel further alluded to the fact that the state failed to produce certain testimony or evidence at trial.\nIn reviewing the above testimony and appellant\u2019s closing argument, we conclude the appellant opened the door to a response by the state. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983); Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). Accordingly, we hold the trial court did not abuse its discretion in overruling the appellant\u2019s objection to the prosecutor\u2019s remarks.\nWe have examined the record pursuant to Ark. Sup. Ct. R. 11(f) and find no points preserved for appellate review which constitute prejudicial error. For the reasons stated above, we affirm.",
        "type": "majority",
        "author": "Tom Glaze, Justice."
      }
    ],
    "attorneys": [
      "Timothy \u201cBlindHog\u201d Bunch, Public Defender, by: Thomas",
      "E. Brown, Deputy Public Defender, for appellant.",
      "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Hilliard L. NELSON v. STATE of Arkansas\nCR 91-70\n816 S.W.2d 159\nSupreme Court of Arkansas\nOpinion delivered September 23, 1991\nTimothy \u201cBlindHog\u201d Bunch, Public Defender, by: Thomas\nE. Brown, Deputy Public Defender, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0456-01",
  "first_page_order": 508,
  "last_page_order": 512
}