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Vaughn v. State

Court of Appeals of Arkansas, Division II

April 19, 2017

CHRISTOPHER R. VAUGHN, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

         APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT [NO. 31CR-13-64] HONORABLE CHARLES A. YEARGAN, JUDGE

          C. Shane Ethridge, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Priest, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge

         Appellant Christopher Vaughn appeals after the Howard County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. For reversal, he contends that the circuit court erred because trial counsel was constitutionally ineffective for not properly preserving issues and arguments for purposes of appeal. We affirm.

         During the guilt phase of his trial, Stephen Wakefield, a deputy sheriff for Howard County, testified that he stopped appellant after he had observed that appellant's vehicle did not have any tags, and appellant was driving across the shoulder. While he was talking to appellant, he smelled alcohol from appellant and from inside the vehicle. During a subsequent search, the deputy observed that appellant had a black pistol by his feet, and he found a beer bottle near the floorboard in the back seat that had spilled over the back seat. Appellant was convicted by a Howard County jury of one count of possession of firearms by certain persons and was sentenced as a habitual offender to forty years' imprisonment in the Arkansas Department of Correction.

         During the sentencing phase of his trial, the trial court first heard a motion in limine regarding whether to allow the State to admit evidence of two subsequent charged but untried felonies: possession of a firearm and delivery of methamphetamine. Pursuant to Thomas v. State, 2012 Ark.App. 466, 422 S.W.3d 217, appellant argued that the subsequent untried felonies were not relevant and should be excluded because they were not sufficiently similar to the offense for which he was presently being charged. Additionally, he briefly argued that to allow the introduction of these two subsequent untried felonies would violate his constitutional right to remain silent as it pertains to those two charges.

And so it is our position, Judge, that in looking at the Thomas case and in looking back, also, at the Crawford and Brown case, that the acts, and in those cases, it mirrors the same way. Those acts that are used in the sentencing phase are all similar to the act that he's being charged for. And we think without that it's a violation of his Constitutional right. In addition to the fact that it is not relevant. That it is not, does not have any relation to the actual charged offense. Is prejudicial, of course, to him, and he does not have the ability to respond to the charges without giving up his right to remain silent in a sentencing hearing.
And so, as a result, Judge, we believe that that one charge for sure. We also believe, constitutionally, that the charge Possession by Certain Persons is also unconstitutional, his right to a fair trial, his right to remain silent; but, definitely on the case that involves a drug case that has nothing to do with Possession by Certain Person, it is highly prejudicial. It's not relevant. They are not similar facts. They won't aggravate that he is accused of being involved in delivery of a controlled substance, which has not been proven. So we would ask that that particular, we would ask that they both be, the State be limited to not use this evidence relating to those two charges.

         After additional arguments made by counsel regarding whether the charges were relevant, the court made the following oral ruling:

Well, I would have tended to agree with you two or three days ago before reading some of these cases, the evidence of other crimes that are not similar to the one he's charged with here or the one, I guess, his underlying charge. But my reading of Thomas is strictly different from yours. The way I understood was they were saying any evidence of aggravating circumstances showing his propensity to engage in similar conduct, and they quote Brown v. State. And then it says it's relevant evidence if the Defendant's character or evidence with aggravating circumstances. I think your reading of the cases is not consistent with the Supreme Court.
. . . .
We are in front of the jury and we are whispering. I know from Brown and Davis and Thomas and Crawford, that there were other charges that were not similar to what he's charged with, so I am going to have to deny your motion.

While the trial court did rule that the subsequent untried felonies were sufficiently relevant to the current charges, it never specifically ruled on appellant's constitutional ...


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