APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60-CR-2012-1791] HONORABLE HERBERT T. WRIGHT, JR., JUDGE
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.
Dustin McDaniel, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., and Vada Berger, Ass't Att'y Gen., for appellee.
COURTNEY HUDSON GOODSON, Associate Justice
A jury empaneled in the Pulaski County Circuit Court found appellant Zeckeya Perry guilty of capital murder and aggravated robbery. The jury sentenced Perry to a term of life in prison without parole for capital murder and thirty-five years' imprisonment for aggravated robbery. For reversal, Perry alleges that the circuit court erred (1) in denying his motion for mistrial because his lawyer was improperly placed in the position of serving as a witness; (2) in denying his motion for mistrial because the circuit court was placed in a position of judging the credibility of a witness; (3) in denying his motion for mistrial following testimony that Perry smoked marijuana; (4) in admitting statements of a co-conspirator; and (5) in denying Perry's motion for a new trial because a key witness changed his account to positively identify Perry as one of the participants in the robbery. We affirm Perry's convictions and sentences.
The record reflects that Perry's convictions stem from a robbery and murder that occurred at El Chico restaurant in Little Rock. According to the evidence presented at trial, on Sunday, April 15, 2012, two black males entered the restaurant carrying guns and wearing black hoodies, sunglasses, and bandanas covering their faces. They ordered the restaurant's customers and all employees into the restaurant's walk-in cooler, except a waiter named Jesus Herrera. While the employees and customers were inside the cooler, they heard shots being fired, and upon exiting the cooler, they found Herrera lying on the floor. He had been fatally shot.
According to the testimony, the police investigation focused on Perry after officers spoke with several employees of the restaurant. During the course of the investigation, Tyrone Barbee, the cook at El Chico, indicated that one of the robbers sounded like another restaurant employee named Kiywuan Perry, who is the brother of Perry. The police also interviewed Adrian Brooks, another restaurant employee. Brooks told the police that Kiywuan and Perry had approached him about being the get-away driver in a robbery of the restaurant. In addition, the police interviewed employee Quantez Dobbins. Dobbins advised the police that he drove Perry and Kiywuan to the area so that they could commit a robbery. Dobbins also reported that he saw the Perrys leave the car wearing hoodies and sunglasses but that he did not see them enter El Chico. He testified that the Perrys had money when they returned to the car. He further stated that Perry said that he "murked" someone, which Dobbins understood to mean that Perry had killed someone.
The police also spoke with another employee, Kenya Smith, who is Kiywuan's girlfriend. Smith reported that earlier in the day she had heard Kiywuan talking about a plan to rob El Chico. She also stated that Kiywuan put money from the robbery in her child's diaper bag.
At trial, Barbee, Dobbins, and Smith testified. Barbee added in his testimony that he was one-hundred percent certain that Perry was one of the robbers. Dobbins testified that he and Perry smoked marijuana together and that he believed he was driving Perry and Kiywuan to rob the "marijuana man." Perry objected to this testimony as evidence of "other crimes" in violation of Arkansas Rule of Evidence 404(b) and moved for a mistrial. The circuit court denied Perry's motion and ruled that the testimony was relevant. Perry also objected to the testimony of Brooks regarding statements Kiywuan made to him about being the get-away driver. The circuit court ruled that the statements were not hearsay but were instead statements of a co-conspirator made in the course and furtherance of a conspiracy.
For his defense, Perry maintained that much of the testimony against him turned on the testimony of individuals who were accomplices. Additionally, Perry argued that he could not have participated in the robbery because he had a gash on his arm.
The jury reached its verdict after considering the testimony and evidence. Perry subsequently filed a motion for a new trial, arguing that Veronica Williams, a customer in the restaurant at the time of the robbery, was an essential witness and that the circuit court should have granted Perry a continuance to secure her presence to rebut Barbee's positive identification of Perry as one of the participants in the crimes. The circuit court denied Perry's motion, and Perry filed this appeal.
For his first point on appeal, Perry argues that the circuit court erred in denying his motion for mistrial because his attorney was placed in a position of serving as a witness. This issue arose when Perry sought to introduce the testimony of his mother, Katrina Perry. The State objected, arguing that she should be barred from testifying because she had improperly remained in the courtroom during the trial after the parties had invoked Rule 615 of the Arkansas Rules of Evidence, the witness-exclusion rule. The circuit court allowed Katrina to testify, and on cross-examination, the State questioned her about remaining in the courtroom after Perry's counsel had advised her to leave. In her testimony, Katrina indicated that she left the courtroom after Perry's counsel had asked her to leave on the first day, but that she did not understand that she was not permitted to enter the courtroom the following day. When the prosecution continued to press the issue, Perry's counsel objected and requested a mistrial, and the circuit court denied his request. Perry argues that the State's comments placed Perry in a catch-22 situation: either his mother was lying or his counsel was lying. As a result, he contends that he was entitled to a mistrial.
The decision to grant or deny a motion for mistrial is within the sound discretion of the circuit court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Green v. State, 2013 Ark. 497, 430 S.W.3d 729. A mistrial is a drastic remedy and should only be granted when justice cannot be served by continuing the trial. Williams v. State, 2014 Ark. 253, 435 S.W.3d 483. We find no abuse of discretion in the circuit court's refusal to grant a mistrial. First, Perry's counsel was not actually required to be a witness in his proceeding nor was Perry's counsel questioned in front of the jury regarding his statements to Katrina. Moreover, the State was entitled to pursue this line of questioning with Katrina regarding her noncompliance with the witness-exclusion rule. This court has held that the violation by a witness of the rule of sequestration through no fault of, or complicity with, the party calling him, should go to the credibility rather than to the competency of the witness. Swanigan v. State, 316 Ark. 16, 870 S.W.2d 712 (1994). Thus, the opposing party is entitled to examine the witness about his or her noncompliance with the rule. Id.
Finally, the State's questions to Katrina did not indicate that the statements made by Perry's counsel and testimony of Katrina were at odds. The prosecutor stated, "There have been statements made by [Perry's counsel] to the Court that you left because he told you to leave and then you came back in." This statement is not inconsistent with Katrina's position, which was that Perry's counsel told her to leave on the first day of trial and she left, but she then returned to the courtroom on the second day of trial because she did not understand that she was still prohibited from being in the courtroom. Indeed, from the jury's perspective, both the statements made by Katrina and Perry's counsel were consistent. As a result, Perry has failed to establish that the State's ...