APPEAL
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-16-255]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
John
Q. Hurst, for appellant.
Leslie
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
ROBERT
J. GLADWIN, Judge
In this
appeal from his conviction for two counts of aggravated
robbery, Jeremy Andrew Avery argues that the evidence was
insufficient and that the circuit court erred in admitting an
officer's testimony identifying his voice in an audio
recording. We affirm.
I.
Facts
Avery
was charged in the Garland County Circuit Court with two
counts of aggravated robbery and possession of a firearm by
certain persons in association with armed robberies at Subway
and Sonic restaurants in Hot Springs. At the jury trial, Hot
Springs police officer A.J. Tart testified that in March 2016
he had been working as an investigator with the Garland
County Sheriff's Office and was assigned to investigate
an aggravated-robbery call from Sonic near Airport Road. He
took statements from both managers, Kayla Dixson and Corry
Davis, who gave a description of the suspect. The suspect had
been wearing a dark navy-blue hoodie with the Bass Pro Shop
logo on the front, some form of face mask covering the
suspect's face, and light-colored blue jeans. From the
surveillance video, Officer Tart noticed a black-and-orange
cell-phone case in the suspect's back pocket. The
managers said that $470 had been taken from the store and
that there was a phone number on Sonic's call log from a
late order that was never picked up. When Officer Tart
researched the phone number, the Arkansas State Police gave
him Avery's name, and a search warrant was issued for the
phone.
Officer
Tart said that there was already a search waiver on file for
Avery's residence, so he and other investigators went to
Avery's residence; in the driveway was a black Cadillac
CTS belonging to Avery. Inside the vehicle in plain view on
the passenger side was a black automatic pistol. In
Avery's bedroom, Officer Tart found a navy-blue hoodie
with the Bass Pro Shop logo on the front as well as a full
face mask and a cell phone in a black-and-orange case.
When
the search was completed, Avery was taken to the Garland
County Sheriff's Office, and Officer Tart conducted an
interview with him. That interview was recorded, and the
recording was played in pertinent part for the jury. During
the interview, Avery denied the robberies; then he admitted
that he was told he would get one hundred dollars if he
"parked and waited on them" and then drove
"them" home after the robberies at Subway and
Sonic.
Officer
Tart testified that he was asked to listen to a recorded
phone conversation from the Garland County Detention Center
and was able to identify Avery's voice on the recording.
When the State moved to introduce the audio recording into
evidence, Avery's attorney objected because Officer Tart
was not the person who recorded the call. The objection was
also based on a lack of foundation for identification of the
voice. Counsel argued that the interview that had been played
for the jury was not enough to lay a foundation for Officer
Tart to identify Avery's voice. After the circuit court
overruled the objection, counsel continued to argue that to
challenge the witness's identification, he would be
forced to elicit testimony regarding Avery's prior
convictions. The circuit court overruled the objection.
The
audio recording was played for the jury. In it, one of the
speakers asks the other to ask a third party to appear in
court and plead the "Fifth." After the recording
was played, Officer Tart testified on cross-examination that
he had been told it was a call from Avery before he
identified the voice on the call as Avery's. Counsel
moved to strike the audio recording, and the circuit court
denied the motion.
At the
close of the State's evidence, Avery's counsel moved
for a directed verdict:
Your Honor, I'd move at this time for a directed verdict
on the two counts of aggravated robbery. Pursuant to
5-12-103, I don't believe the State has met their burden.
They have elicited a lot of conjecture that's led to
assumption, but there's been no proof presented that
meets each of the elements set out in 5-12-103 for aggravated
robbery. And as such, I would move for the Court to direct a
verdict of acquittal on both counts.
The
circuit court denied the motion, and Avery called James Sharp
as a witness for the defense. Sharp said that he was serving
a life sentence in prison and that he had ...