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APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO. CR-12-578. HONORABLE WENDELL L. GRIFFEN, JUDGE.
James Law Firm, by: William O. " Bill" James, Jr., for appellant.
Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.
JIM HANNAH, Chief Justice. BAKER and HART, JJ., dissent. JOSEPHINE LINKER HART, Justice, dissenting. BAKER, J., joins.
JIM HANNAH, Chief Justice.
Appellant, Donnie Maiden, was convicted of premeditated and deliberate capital murder and was sentenced to a term of life imprisonment without parole. The conviction arose as a result of the shooting death of Kylaus Williams. On appeal, Maiden contends that (1) the circuit court abused its discretion when it prevented him from impeaching Tim Bradley with his prior acts of untruthfulness; (2) the circuit court abused its discretion when it prevented him from impeaching Trenell Emerson with his prior inconsistent statements; (3) the circuit court erred in denying his motion for mistrial based on discovery violations; (4) the overlap of Arkansas Code Annotated sections 5-10-101(a)(4) and 5-10-102(a)(2) (Repl. 2013)
violates article 2, section 3, of the Arkansas Constitution; (5) the circuit court committed reversible error when it ridiculed defense counsel in the jury's presence; and (6) the circuit court abused its discretion when it failed to conduct a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) before admitting expert testimony about a palm print found at the scene of the murder and identified as Maiden's. Because this is a criminal appeal in which a sentence of life imprisonment without parole has been imposed, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We affirm the circuit court.
Because Maiden does not challenge the sufficiency of the evidence against him, only a brief recitation of the facts is necessary. On November 7, 2011, Williams's body was found at 6907 Highway 161 in Pulaski County; the cause of death was multiple gunshot wounds. As a result of its investigation into Williams's death, the Pulaski County Sheriff's Office developed Maiden and Emerson as suspects, and they were later arrested at an Arizona bus station. Both were charged with capital murder.
The testimony adduced at Maiden's trial reveals that on November 7, Tim Bradley and Williams, along with Bradley's cousin, Leroy Butler, drove to a motel, where they picked up Maiden and Emerson. The five drove to another hotel, and Bradley exited the car to purchase a drink from a nearby convenience store. While he was gone, Williams left to sell some marijuana for Maiden. As they were waiting to hear from Williams, Butler left.
Williams later called and reported that he had been robbed and asked them to pick him up. Maiden drove, Emerson was in the seat behind him, and Bradley was in the passenger's seat. After arriving at Williams's location, Maiden joined Emerson in the backseat of the car, and Williams drove the four of them to " B. house" at Maiden's request. Upon their arrival at B. house, Williams stopped the car and Bradley began to exit the car to use the restroom. Maiden then opened his door to exit the car and shot Williams, and Bradley took off running. Maiden dragged Williams's body out of the car, and he and Emerson left the scene.
Maiden and Emerson eventually abandoned the car and ran. Maiden then called a taxi, which took him and Emerson to a hotel in downtown Little Rock. Subsequently, they bought bus tickets and boarded a Greyhound bus to California. Using the cell phone number that the men had used to register at the hotel, Arkansas police tracked the GPS coordinates of the phone and were able to determine the men's location. The bus was stopped by police in Phoenix, Arizona, and the men were taken into custody by the Phoenix police.
Maiden first contends that the circuit court abused its discretion by preventing him from impeaching Tim Bradley, a witness for the State, with his prior acts of untruthfulness. Specifically, Maiden contends that the circuit court abused its discretion when it would not allow him to impeach Bradley with evidence of a pending charge for theft and providing a false name to police. According to Maiden, this evidence was admissible pursuant to Arkansas Rule of Evidence 608(b) (2013) to show that Bradley had lied during voir dire when he testified that the charge had been dismissed.
The State counters that, because Rule 608(b) is intended to be restrictive, the circuit court did not act arbitrarily or groundlessly by refusing to permit Bradley's cross-examination with either the
pending theft charge or his testified belief that the charge had been dismissed. The State asserts that this court has long held that evidence of previous thefts are not probative of truthfulness and, thus, Bradley could not have been impeached with the theft charge. Moreover, according to the State, any misunderstanding on Bradley's part regarding the status of any charge against him was not evidence that he was lying.
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion. E.g., Laswell v. State, 2012 Ark. 201, at 17, 404 S.W.3d 818, 828. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. E.g., Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004). In addition, we will not reverse a ruling on the admission of evidence absent a showing of prejudice. E.g., Davis v. State, 350 Ark. 22, 38, 86 S.W.3d 872, 882 (2002).
Rule 608(b) states:
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
This court has interpreted Rule 608 to permit inquiries on cross-examination into conduct that is clearly probative of truthfulness or untruthfulness but to disallow cross-examination into specific instances that are merely probative of dishonesty. E.g., Bailey v. State, 334 Ark. 43, 56, 972 S.W.2d 239, 246 (1998). This court has adopted a three-part test for admissibility: (1) the question must be asked in good faith, (2) the probative value must outweigh its prejudicial effect, and (3) the prior conduct must relate to the witness's truthfulness. Id., 972 S.W.2d at 246.
In the instant case, before cross-examination of Bradley, defense counsel asked to voir dire Bradley about his prior conviction for theft. During voir dire, Bradley admitted that he had been arrested in 2009 for theft or shoplifting in Louisiana, but he testified that the charge had been dismissed, that he never had to pay a fine, and that he had not been incarcerated or placed on probation. Based on Bradley's testimony that he had no prior conviction, defense counsel conceded that he had no basis for extrinsic proof to impeach Bradley under Arkansas Rule of Evidence 609(a)(2) (2013). Defense counsel did state, however, that his position might change if further evidence developed.
Later in the trial, defense counsel proffered a letter from the City Court of Monroe, Louisiana, stating that Bradley has a case " open and pending" there involving charges of theft and resisting an officer by refusing to give a name. Because the theft charge had not been dismissed, as Bradley had testified, defense counsel
moved to impeach Bradley under Rule 608(b). That motion was denied. Defense counsel renewed the motion later in trial and proffered the Louisiana information charging Bradley with theft and resisting an officer by refusing to give a name, as well as the testimony of the arresting officer.
The circuit court did not abuse its discretion in refusing to permit defense counsel to impeach Bradley under Rule 608(b). Even assuming that defense counsel's inquiries about prior conduct were asked in good faith and that the probative value outweighed the prejudicial effect, see Bailey, 334 Ark. at 56, 972 S.W.2d at 246, Maiden fails to demonstrate that the prior conduct relates to Bradley's truthfulness. The evidence offered by Maiden to impeach Bradley was a letter stating that Bradley had a pending case involving charges of theft and failure to give his name to a police officer. We cannot say that this letter offered sufficient proof that Bradley lied during his prior testimony. Moreover, even if Bradley had a pending theft charge, Maiden would not be allowed to impeach him on this basis. This court has held that evidence about a witness's prior theft is not probative of truthfulness. E.g., Watkins v. State, 320 Ark. 163, 167, 895 S.W.2d 532, 535 (1995). The circuit court did not abuse its discretion in refusing to allow defense counsel to impeach Bradley under Rule 608(b).
In his second point on appeal, Maiden contends that the circuit court abused its discretion by preventing him from impeaching the sole eyewitness, Trenell Emerson, with his prior inconsistent statements. During cross-examination, when asked about statements he had made to Detective Jay Massiet, Emerson either denied, or could not recall, having made several statements. Maiden then tried to impeach Emerson by having him review the transcribed statement; however, Emerson stated that nothing in the statement looked like anything he had said. As a result, during Massiet's cross-examination, Maiden tried to impeach Emerson's testimony by having Massiet confirm that Emerson had made the statements. The circuit court sustained the State's hearsay objection. Relying on Arkansas Rule of Evidence 613(b) (2013), as applied in Scamardo v. State, 2013 Ark. 163, 426 S.W.3d 900, Maiden contends that the circuit court abused its discretion by refusing to allow him to impeach Emerson with extrinsic evidence of prior inconsistent statements.
The State counters that the circuit court did not abuse its discretion in denying Maiden's attempt to elicit the testimony from Massiet because any inconsistencies in Emerson's statements were brought out during his testimony, and it was not necessary to further question Massiet to present a veracity issue to the jury. The State points out that Emerson repeatedly admitted that he had lied to investigators.
As previously stated, we review the circuit court's decision to admit or exclude evidence under an abuse-of-discretion standard. Laswell, supra. Rule 613(b) states that
[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or if the interests of justice otherwise require.
Thus, pursuant to Rule 613(b), three requirements must be met before extrinsic evidence of a prior inconsistent statement is admissible: (1) the witness must be given the opportunity to explain or deny the inconsistent statement; (2) the opposing party must be given the opportunity to explain or deny the witness's inconsistent statement; and (3) the opposing party must be given the opportunity to interrogate the witness about the inconsistent statement. However, this court has held that when the witness admits having made the prior inconsistent statement, Rule 613(b) does not allow introduction of extrinsic evidence of the prior statement to impeach the witness's credibility. See Yankaway v. State, 366 Ark. 18, 21, 233 S.W.3d 136, 139 (2006).
In analyzing the application of Rule 613(b), this court in Scamardo stated that when a witness is asked about a prior statement and either denies having made it or fails to remember having made it, extrinsic evidence of the prior statement is admissible. We explained that impeachment of a witness by introducing extrinsic evidence of a prior inconsistent statement through the testimony of a second witness or through the admission of documentary evidence, regardless of whether the statement was ...