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Ezekiel v. State

Court of Appeals of Arkansas, Division III

October 16, 2019



          Short Law Firm, by: Lee D. Short, for appellant.

          Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for appellee.



         Freddie Ezekiel appeals his conviction by the Clark County Circuit Court of first-degree forgery as a habitual offender. We affirm.

         On July 30, 2017, Arkadelphia police responded to two separate calls from AutoZone and O'Reilly Auto Parts stores about a woman purchasing items with counterfeit currency. Tiffany Gwatney was arrested at Wal-Mart with counterfeit $100 bills in her possession. Police were able to identify Gwatney's car and locate it at McDonald's in Arkadelphia.

         When the police stopped the car, Ezekiel was one of three people in the vehicle and the only passenger in the backseat. As the officers approached the car, they observed him shoving what was later revealed to be five counterfeit $100 bills into the seat cushions. On the back floorboard next to his feet were sacks containing the items purchased from AutoZone and O'Reilly Auto Parts with counterfeit $100 bills.

         Officer Aaron Abbott removed Ezekiel from the car and searched him. During that search, Abbott located Ezekiel's wallet and tossed it into the back seat of the car. A different officer who was searching the backseat of the car looked in the wallet and found a credit card belonging to Ezekiel, receipts from the purchases made with counterfeit bills at AutoZone and O'Reilly Auto Parts, and currency that was less than the change from the purchases.

         The State charged Ezekiel with first-degree forgery as a habitual offender. Prior to trial, he moved to suppress his wallet and its contents as the fruits of an illegal search. Ezekiel waived his right to jury trial, and the parties agreed to allow the court to consider and rule on the motion to suppress during the bench trial.

         At trial, Gwatney testified for the State about the events of July 30, 2017. She stated that when she and Ezekiel arrived at each store, Ezekiel gave her the counterfeit $100 bills and told her what to purchase. After she made the purchases at AutoZone and O'Reilly Auto Parts, she gave Ezekiel the change, the receipts, and the items she had purchased. On cross-examination, Ezekiel's counsel tried to question Gwatney about purchases she allegedly made with counterfeit bills in Garland County prior to July 30, 2017. Gwatney invoked her Fifth Amendment rights in response to all the questions about the Garland County purchases, and Ezekiel moved to strike her testimony, arguing that his right to confrontation under the Sixth Amendment had been violated. The court denied the motion.

         After receiving the evidence, the court denied Ezekiel's motion to suppress, found him guilty, and sentenced him to serve twenty-one years' imprisonment in the Arkansas Department of Correction. Ezekiel brings this timely appeal from his conviction and sentence.

         Ezekiel's first point on appeal is that the court violated his Sixth Amendment right to confront his accuser when it denied his motion to strike Gwatney's testimony after she invoked her Fifth Amendment rights during cross-examination when his counsel asked her about previous occasions when she allegedly passed counterfeit currency without Ezekiel's help or instruction. Ordinarily "[q]uestions of constitutional interpretation, such as whether there has been a Confrontation Clause violation, are subject to de novo review." Raquel-Dieguez v. State, 2015 Ark.App. 626, at 5, 475 S.W.3d 585, 589. However, "whether the testimony of a witness must be stricken whe[n] . . . upon cross-examination the witness refuses to answer questions citing the Fifth Amendment privilege . . . is within the trial court's discretion." Robertson v. State, 298 Ark. 131, 136, 765 S.W.2d 936, 939 (1989); see also United States v. Wilkens, 742 F.3d 354, 360 (8th Cir. 2014) ("A trial court's decision to strike a witness's testimony after the witness's assertion of the Fifth Amendment privilege against self-incrimination is reviewed for an abuse of discretion."). "The abuse-of-discretion standard 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." Holland v. State, 2015 Ark. 341, at 7, 471 S.W.3d 179, 184.

         The right to cross-examination guaranteed by the Confrontation Clause of the Sixth Amendment is not unlimited. Chantharath v. State, 2016 Ark.App. 35, at 8, 480 S.W.3d 223, 228. In fact, circuit courts have wide latitude to impose restrictions on cross-examination. Id., at 8, 480 S.W.3d at 228. The Confrontation Clause only "'guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Id., at 8, 480 S.W.3d at 228 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). A defendant's Confrontation Clause right of cross-examination can be limited and made to yield to a witness's individual right against self-incrimination. In Davis v. Alaska, 415 U.S. 308, 320 (1974), the United States Supreme Court noted that the circuit court has a duty to protect a witness from cross-examination that represents an attempted invasion of his or her properly invoked constitutional protection against self-incrimination. However, the testimony of a witness must be struck when the witness refuses to answer questions on cross-examination citing the Fifth Amendment privilege "if failure to answer deprives the party questioning the witness of the right to test the truth of the witness's direct testimony, as opposed to a collateral matter." Robertson, 298 Ark. at 136, 765 S.W.2d at 939-40 (citing United States v. Cardillo, 316 F.2d 606, 611 (2d Cir. 1963)). Specifically, "if the witness by invoking the privilege precludes inquiry into the details of his direct testimony . . . that witness's testimony should be stricken in whole or in part." Cardillo, 316 F.2d at 611 (emphasis supplied).

         Confrontation Clause errors are subject to a harmless-error analysis. Watson v. State, 318 Ark. 603, 606, 887 S.W.2d 518, 519 (1994) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). Whether a Confrontation Clause "error is harmless in a particular case depends upon several factors: the importance of the witness's testimony in the prosecution's case; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points[;] the extent of cross-examination otherwise permitted; and, the overall strength of the prosecution's case." Cannonv. State, 2010 Ark.App. 698, at 8, 379 S.W.3d 561, 565. Further, in a bench trial, "the judge is presumed to have considered only competent evidence, and this presumption ...

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