Janie Marie Brooks v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA CR00-93

October 4, 2000

JANIE MARIE BROOKS AN APPEAL FROM MISSISSIPPI

APPELLANT COUNTY CIRCUIT COURT

CHICKASAWBA DISTRICT [CR99-172]

V. HON. SAMUEL TURNER, JR., JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Janie Marie Brooks appeals her sentence of twenty years and a $15,000 fine, following a jury conviction of second degree murder. Appellant contends that the trial court abused its discretion by refusing her request to introduce character evidence of the victim during the sentencing phase of her trial. We affirm.

Because appellant does not challenge the sufficiency of the evidence on appeal, we provide only a brief recital of the facts adduced at trial. In the early morning hours on May 7, 1999, appellant shot and killed Fredrick Newbern. The incident occurred approximately ten days after appellant and Newbern had an altercation concerning appellant's treatment of Newbern's mother.1 According to the testimony presented at trial, on April 27, 1999,Newbern hit appellant and knocked out her two front teeth. Appellant filed a complaint against Newbern with the Blytheville Police Department. Newbern was not arrested.

On May 7, 1999, Officer Fredrick Wright discovered Newbern's body at the intersections of McHaney and Fourteenth Streets in Blytheville. Newbern had been shot twice in the back area and once in the front. Officer Wright testified that he saw appellant at the crime scene and that appellant told him, "I did it, take me to jail, take me." The officer placed appellant in custody, and she was subsequently charged with first degree murder.

The jury heard testimony from two witnesses who stated that appellant shot Newbern. Appellant also testified that she shot Newbern because she feared for her life. She stated that he had already beat her and that she was afraid of him. She testified that Newbern kept walking toward her so she fired shots, that Newbern was facing her when she shot him, and that she did not chase him down the street. Appellant testified that she shot Newbern three times to protect herself, that she did not intend to kill him, and that she was sorry the incident happened.

The jury found appellant guilty of second degree murder. The court then discussed evidentiary matters outside the presence of the jury. The State announced its plan to introduce appellant's prior convictions and the defense stated it had no objections. Counsel for appellant then moved to introduce two judgments against Newbern. The State objected, stating that the victim was not on trial and that the judgments had no relevance on sentencing appellant. Counsel for appellant responded that Arkansas Code Annotated section 16-97-103 (Supp. 1999) allowed the court to admit relevant character evidence of the victim. The court denied the motion, and counsel for appellant proffered the judgments into evidence. Following deliberation, the jury sentenced appellant to twenty years of imprisonment and a fine of $15,000.

Appellant now argues that the trial court erred by not allowing her to present evidence that Newbern pleaded guilty to theft of property in 1984, and was convicted in 1990 for the sale of a controlled substance. She contends that Arkansas Code Annotated section 16-97-103(5) permits the introduction of relevant character evidence about Newbern. The State argues that Rule 405 of the Arkansas Rules of Evidence does not allow the introduction of the judgments because they were neither testimony concerning Newbern's reputation or an opinion about Newbern, nor elicited during cross examination of a character witness.

Section 16-97-101 of the Arkansas Code Annotated governs bifurcated sentencing procedures. See Ark. Code Ann. § 16-97-101 (Supp. 1999). It mandates that once a person is convicted, the jury must hear additional evidence relevant to sentencing in a bifurcated proceeding. See id. § 16-97-101(2). Additional evidence is described in Arkansas Code Annotated section 16-97-103 as including prior convictions of the defendant, relevant character evidence, and evidence of mitigating circumstances. See Ark. Code Ann. § 16-97-103(2), (5), (6). Our supreme court has held that the sentencing phase in a bifurcated proceeding constitutes a trial in and of itself. See Hill v. State, 318 Ark. 408, 413, 887 S.W.2d 275, 277 (1994). Thus, evidence introduced during this phase must follow the rules governing admissibility and exclusion. See id. at 413, 887 S.W.2d at 278.

This court limits its review of the sentencing phase to non-jurisdictional matters. See id. at 413, 887 S.W.2d at 278. We recognize that trial courts have broad discretion to determine the relevancy of evidence at the sentencing phase. See Davis v. State, 330 Ark. 76, 87, 953 S.W.2d 559, 565 (1997). As a result, we will not reverse a trial court's decision to admit or deny evidence of a victim's prior crimes or bad acts, unless we determine that the trial court abused its discretion. See Hill, 318 Ark. at 415, 887 S.W.2d at 278.

Rule 404(a)(2) of the Arkansas Rules of Evidence allows an accused to offer proof of a victim's character trait to demonstrate that the victim acted in accordance with his character on a specific occasion if the trait is somehow connected to the alleged crime. See Ark. R. Evid. 404(a)(2). Once an accused satisfies the exception noted in Rule 404(a)(2), she may prove character through the methods described in Rule 405. See Ark. R. Evid. 405. See also Rank v. State, 318 Ark. 109, 115, 883 S.W.2d 843, 846 (1994).

Rule 405 provides that proof of a relevant character trait may be offered through testimony of the person's reputation or by testimony in the form of an opinion. See Ark. R. Evid. 405(a). See also Solomon v. State, 323 Ark. 178, 185, 913 S.W.2d 288, 292 (1996) (noting that Rule 405 "generally limits proof of character to reputation or opinion testimony.") In addition, an inquiry regarding specific instances of conduct may be ventured into on cross examination. See Solomon at 185, 913 S.W.2d at 292. However, specific instances of conduct are admissible only when the character or trait of a person is "an essential element of a charge, claim, or defense." See Ark. R. Evid. 405(b). A defendant who asserts a claim of self-defense is allowed to present evidence of the victim's violentcharacter when the violent character trait is directed toward the defendant or is within the defendant's personal knowledge. See Henderson v. State, 335 Ark. 346, 349, 980 S.W.2d 266, 267 (1998); Britt v. State, 7 Ark. App. 156, 160, 645 S.W.2d 699, 701 (1983). An illustration of this well settled rule occurred in Henderson v. State, where our supreme court held that even though the accused had the right to present testimony tending to show the victim's prior violence toward the accused, the accused had no right to present the testimony of an expert that the victim's membership in a gang was indicative of violence. 335 Ark. at 351, 980 S.W.2d at 268.

Turning to the case at bar, appellant argues that the trial court erroneously precluded her from introducing evidence in the form of two judgments, dated 1984 and 1990, entered against Newbern for dealing drugs and committing a theft. She asserts that these acts provided proof that Newbern was of questionable character and might carry a gun. We hold that the trial court did not err when it denied appellant's offer to introduce the judgments against Newbern for theft of property and sale of a controlled substance during the sentencing phase of appellant's trial. The judgments were not testimony as to Newbern's reputation or testimony as to an opinion of Newbern. Rather, they were specific instances of conduct. To succeed in getting the judgments admitted for her self-defense claim, Rule 404(a) required appellant to show that the judgments evinced Newbern's violent character. A conviction for theft did not prove that Newbern was violent, nor does it follow that Newbern was violent because he was placed on probation for selling drugs.

Even though Rule 405(b) contemplates an inquiry about specific instances of conduct that are relevant to reveal a victim's character trait of violence, these judgments are troublesome for two other reasons. First, there is a nine-year lapse of time between the morerecent 1990 conviction for the sale of controlled substance and the instant matter. The fact that Newbern was convicted in 1990 of selling drugs does not make it more probable that he was carrying a gun on May 7, 1999; nor does the fact that he was placed on probation for theft in 1984. Second, the record does not demonstrate that appellant had personal knowledge or was the victim of either of the judgments. While a defendant is allowed to introduce evidence of violent acts directed toward her or within her knowledge, the failure of appellant to present any evidence demonstrating firsthand knowledge of the acts negates her assertion that the acts were admissible as probative evidence relevant to her claim of self-defense.

Affirmed.

Jennings and Hart, JJ., agree.

1 A review of the abstract reveals that Janie Brooks and Patrick Newbern, a brother of the victim, are the parents of Patrick Newbern Jr. and Sandra Newbern. Fredrick Newbern, the victim, and Janie Brooks were involved in an argument over a conflictbetween Brooks and her children's grandmother.