Washington v. State

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-17-235] HONORABLE JODI RAINES DENNIS, JUDGE.

          Robinson & Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.

          N. MARK KLAPPENBACH, Judge.

         Appellant Dontae K. Washington appeals his conviction for being a felon in possession of a firearm, following a jury trial in Jefferson County Circuit Court. Dontae argues on appeal that the circuit court erred by permitting the State to present the jury with the audio and transcript of a sworn, recorded pretrial statement given by Christina Bradley to law enforcement. Dontae asserts that her prior statement constituted inadmissible hearsay that did not fit within the exception found in Arkansas Rule of Evidence 801(d)(1). We affirm.

         Before our analysis begins, we outline the precise legal concepts at issue on appeal. As a general rule, hearsay is not admissible evidence. See Ark. R. Evid. 802. There are, however, certain out-of-court statements that are not considered hearsay, and one such exception is outlined in Rule 801(d)(1):

(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony and, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive[.]

         A circuit court's evidentiary rulings are reviewed on appeal under an abuse-of-discretion standard. Tarver v. State, 2018 Ark. 202, 547 S.W.3d 689. Abuse of discretion 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. Jefferson v. State, 2017 Ark.App. 536, 532 S.W.3d 593. Additionally, unless an appellant can demonstrate prejudice from an evidentiary ruling, the appellate court will not reverse, as prejudice is not presumed. Taffner v. State, 2018 Ark. 99, 541 S.W.3d 430.

         At trial, the State sought to prove that Dontae, who admittedly had a prior felony, possessed a rifle that was found on the night of February 20, 2017, in Christina Bradley's apartment under the living-room couch. Christina and Dontae were in an intermittent romantic relationship for several years, and by February 2017 they had two small children together. A week before to the April 2018 jury trial, Christina and Dontae married.

         The evidence showed that on the night in question, Dontae was near the Camelot Apartments in Pine Bluff, where Christina lived, when multiple shots were fired. Dontae was struck by gunfire in the face and eye, was bleeding, went to Christina's apartment (#3030), and banged on the door seeking help. They went to the local hospital's emergency room so that he could receive medical care. Police officers located Christina in the waiting room and asked her what had happened, and as a result, Christina went back to the apartment complex with the police. In processing the crime scene, officers found multiple spent rounds outside in the street and surrounding area; Dontae's car window was shattered, and there was blood inside Dontae's car and on Christina's apartment door. When asked, Christina gave consent for the police to come inside her apartment to take photographs and search. The police found a loaded Saiga 7.62 rifle under the couch in the living room. The rifle was loaded with a magazine holding twenty-eight cartridges. In a kitchen cabinet, the police found a backpack that contained additional ammunition compatible with the rifle and other items associated with drug dealing.

         Christina was called to testify by the State. She acknowledged in her testimony that she had previously given a sworn statement to the police the day after the shooting in which she said that she let Dontae inside her apartment that night, that he had that firearm with him, and that he put it on or under the couch. Christina recalled telling the police that Dontae stayed at the apartment on a routine and regular basis and that everything the police found in the search of her apartment belonged to Dontae. Christina testified, however, that the truth was that she did not know whose rifle it was, a different man (Darius Williamson) had been living with her then, and Dontae did not have the rifle with him or come inside her apartment that night.^[1] Christina recalled hearing the gunfire and Dontae coming to her door for help, but she maintained that she took him directly to the hospital. She admitted that she never mentioned Darius Williamson when she gave her statement to the police. She stated that she did not know anything about the weapon until police found it and that when she made up the prior statement to police, she had been pressured by them to say that Dontae had brought the rifle into her apartment. She acknowledged that she was on probation at that time for filing a false police report and understood that she could get in trouble for lying. Christina nonetheless testified that when she initially talked to the police officers, "like four detectives" repeatedly yelled at her and threatened her that if she did not say the gun was Dontae's, they would take her children away or have social services take her children. She admitted that she had never raised the issue of having been coerced until the trial.

         The State asked to play the audio version of Christina's prior sworn statement to rebut Christina's claim that the police had improperly influenced her in making the statement, making direct reference to the terminology of Arkansas Rule of Evidence 801(d)(1). Defense counsel argued that Christina had already testified to the pretrial statement's contents, that there was no reason to play the audio, and that the State's reliance on Rule 801(d)(1) was incorrect. The State responded that the jury was entitled to hear Christina's demeanor and precise statements on the audio recording to undercut the validity of her changed testimony. The circuit court ruled that it would permit the State to play the audio recording.

         On the recording, Christina was placed under oath by the deputy prosecutor, and a detective asked her to tell them what happened at her apartment. Christina's statement included that (1) she heard shots being fired; (2) Dontae knocked on her door; (3) Dontae had been shot in the face, was bloody, and told her that he had been shot by someone who was following him in a black BMW; (4) Dontae had a large black gun with him and put it on the couch; (5) he had her take him to the hospital; (6) she consented for officers to enter, photograph, and search her apartment; and (7) all the items taken from the apartment that night were Dontae's. At the end of the statement, Christina confirmed that she knew she was under oath, that what she had said was the truth, and that there was nothing she wanted to change about her statement.

         On cross-examination by defense counsel, Christina restated that she was pressured by the police to say Dontae had the firearm and that, in truth, ...