FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-17-101]
HONORABLE GREG VARDAMAN, JUDGE
Law Firm, by: Lee D. Short, for appellant.
Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE
Ezekiel appeals his conviction by the Clark County Circuit
Court of first-degree forgery as a habitual offender. We
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.
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.
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.
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.
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.
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.
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
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).
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 ...