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C.J.M. v. State

Court of Appeals of Arkansas, Division IV

September 27, 2017

C.J.M. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-16-120] HONORABLE TED C. CAPEHEART, JUDGE

          Seth Bowman, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          RAYMOND R. ABRAMSON, JUDGE

         On June 14, 2016, the Garland County Circuit Court found C.J.M. and his codefendant, K.B., guilty of rape and entered an adjudication order on June 20, 2016. We note that this is a companion case to K.B. v. State, 2017 Ark.App. 478, also handed down today. On appeal, C.J.M. argues that (1) his rights under Brady v. Maryland, 373 U.S. 83 (1963), and Arizona v. Youngblood, 488 U.S. 51 (1988) were violated by the alleged withholding and destruction of evidence that he claims may have been exculpatory; (2) the circuit court erred by considering K.B.'s pretrial statement in adjudicating C.J.M. delinquent, and (3) the circuit court abused its discretion by not excluding certain evidence based on a violation of Arkansas Rule of Criminal Procedure 17.1 (2016). We affirm.

         On March 1, 2016, a juvenile-delinquency petition was filed against C.J.M., alleging that he committed the offense of rape. K.B. was also charged with rape against the same victim. With the agreement of defense counsel, a joint-delinquency proceeding was held for both C.J.M. and K.B. The circuit court found both C.J.M. and K.B. guilty of rape and entered an adjudication order; the juveniles were sentenced to Division of Youth Services' custody. C.J.M.'s timely appeal followed.

         C.J.M. first argues that his due-process rights were violated under Brady, supra, and Arizona, supra. As the State observes in its brief, a detailed recitation of the procedural history is needed regarding this point on appeal. C.J.M.'s arguments concern text messages on the victim's cell phone. On May 12, 2016, the court held a motions hearing at which defense counsel informed the circuit court that it had become aware that the victim's cell phone had been in the State's custody since at least early March and that the defense wanted access to the phone as soon as possible. The deputy prosecutor responded and informed the court that the State did have possession of the cell phone but that it was his understanding that the phone had been forensically examined, and there was nothing on it. The circuit court ruled that pursuant to Brady, if the State found anything on the phone, it was under an obligation to turn it over to the court. The court reduced several of its oral rulings to writing in an order entered on June 2, 2016.

         The cell-phone issue was again addressed at the beginning of the delinquency-adjudication hearing on June 8, 2016. Defense counsel informed the circuit court that it never received any information recovered from the cell phone. The deputy prosecutor explained that Lieutenant Martin with the Garland County Sheriff's Office was the individual who had attempted to retrieve the information from the phone. Martin was unable to retrieve any information from it because it had a broken "home" button. The deputy prosecutor informed the court that Martin had provided a letter explaining this to defense counsel. Because the phone was inoperable, it was returned to the victim.

         The deputy prosecutor further explained that he had emailed the court all information gathered from the cell-phone provider as a result of a subpoena duces tecum, which included "call logs and records, incoming and outgoing calls." The court then provided these call logs and records to defense counsel.

         Defense counsel argued that the cell-phone provider should have had the content of the victim's text messages and that sending the phone to the defense's own expert is "definitely a start." The circuit court then offered to grant the defense a continuance so that it could conduct further investigation on the cell phone. Counsel for both K.B. and C.J.M. stated that they did not want a continuance.

         The next day, defense counsel moved to either dismiss the charges or hold a contempt hearing based on alleged misconduct by the police and prosecutors regarding the phone. The circuit court denied the defense's motion, ruling from the bench,

I am not impressed with the way the phone and phone records were handled, but any problems could have been remedied with a continuance yesterday. You waived that, and I'm denying your motion. We are going to proceed.

         When the victim testified, the court asked the parties if they wanted to look at the cell phone to see if there was anything on it that was relevant to the proceeding. In court, the judge connected the phone and manually searched for text messages on the phone from February 24, 2016, through February 26, 2016. The court's review of the phone revealed that there were no messages on the phone between the victim and her friend J.Y. from the day the rape occurred, February 24, 2016. However, the cell-phone-provider records showed that many messages were exchanged between the two on that date. Defense counsel stated, "We'd like to make a record of the fact that the text messages from the 24th, the day of, have been removed [by] someone." The court again ruled that "this all could have been taken care of with a continuance" and then made the phone part of the record.

         Defense counsel reviewed texts from the phone during the hearing and then renewed the motions to dismiss and sought a contempt hearing, arguing that, based on the cellphone-provider records, approximately 186 text messages between the victim and J.Y. from February 24, ...


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