Charles Cory Whited v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CHARLES CORY WHITED

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-349

NOVEMBER 30, 2005

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NO. CR-04-2578-1]

HONORABLE WILLIAM A. STOREY,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Charles Cory Whited pleaded guilty to three counts of residential burglary, two counts of theft, one count of second-degree forgery, and one count of filing a false police report. After a sentencing hearing was held before a jury, the jury sentenced Mr. Whited to prison terms of forty, thirty, and thirty years for the burglary convictions. The jury sentenced him to prison terms of ten and twenty years for the thefts, thirty years for the forgery, and five years for filing a false police report. The trial court ordered the burglary sentences to be served consecutively, but concurrent with the other sentences for a total of 100 years in the Arkansas Department of Correction.

Mr. Whited now appeals, arguing that the trial court erred in allowing the speculative opinion testimony of Detective Paul Shepherd at the sentencing hearing.1 We affirm.

At the sentencing hearing, numerous witnesses testified about the crimes committed by Mr. Whited, all of which occurred on the day of November 16, 2004. The burglary victims stated that they discovered that their houses had been broken into, and that there were items missing or in disarray. One of the victims testified that his checkbook was missing, and Mr. Whited tried to help a friend cash one of the checks at a bank. There was also testimony from a police dispatcher that, in an effort to avoid capture by the police during his crime spree, Mr. Whited telephoned and reported a burglary at a false location.

The testimony of Detective Paul Shepherd is at issue in this case. Detective Shepherd conducted an interview of Mr. Whited on the day after the crimes were committed, and a transcription of the interview was admitted into evidence. When asked whether Mr. Whited was being forthcoming and truthful during the interview, Detective Shepherd stated, "I felt he was being deceptive." Mr. Whited objected to this testimony on the basis that it was speculation. Detective Shepherd testified that his opinion was based in part on a number of interrogation-technique classes that he had taken, as well as two years of experience in conducting interviews. Mr. Shepherd detected physical signs of deception from Mr. Whited's body language. The trial court overruled Mr. Whited's objection and admitted the testimony, stating "he's giving a basis for his opinion," and, "That's clearly not speculation."

Mr. Whited contends on appeal that the opinion testimony of Detective Shepherd was speculative and thus inadmissible under the Arkansas Rules of Evidence. He relies on Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000), where the supreme court held that evidence at a sentencing hearing is subject to the rules of evidence. In that case, Mr. Buckley was convicted on two counts of delivery of cocaine, and there was testimony at the sentencing hearing that Mr. Buckley had sold drugs in the past. The jury sentencedMr. Buckley to two life sentences, but the supreme court reversed on the basis that the objectionable testimony was inadmissible hearsay.

In the instant case, Mr. Whited asserts that Detective Shepherd was not an expert and that his lay opinion was inadmissible. Rule 701 of the Arkansas Rule of Evidence provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are[:]

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Mr. Whited cites Stapleton v. Holiman, 268 Ark. 1101, 598 S.W.3d 453 (Ark. App. 1980), where a police officer was held to have given incompetent testimony about the amount of damage done to a vehicle, and we stated:

We need not decide here whether a police officer may or may not ever be qualified as an expert in this field on the basis of his investigative experience. We must say, however, that for an officer to give a "qualified lay opinion" the showing of a "rational basis" for his opinion would, in our judgment, have to consist of evidence which would be little different from that which would show him to be an expert.

Id. at 1104, 598 S.W.2d at 455-56. Mr. Whited submits that in the present case Detective Shepherd failed to demonstrate that he was qualified to give an opinion as to the honesty of Mr. Whited's character during the interview, and thus that his opinion testimony was improperly before the jury.

Mr. Whited further asserts that the trial court's error caused him prejudice. He contends that as a result of Detective Shepherd's testimony the jury thought he was a liar, and that the prejudice is evident in that the jury sentenced him to the maximum term for two of the charges and to seventy-five percent of the maximum term for two of the charges.

We need not decide whether the trial court committed error by admitting Detective Shepherd's opinion testimony. This is because any error in admitting the testimony was rendered harmless because the testimony was merely cumulative of what was evident fromthe transcription of the interrogation, which was before the jury without objection. In the interview with Detective Shepherd, Mr. Whited denied much of the criminal activity that he later admitted through his guilty pleas. Thus, Detective Shepherd's opinion that Mr. Whited was deceptive was clearly established by other competent evidence showing that Mr. Whited lied during the interview. Prejudice is not presumed and there is no prejudice when the evidence admitted is merely cumulative. Lewis v. State, 74 Ark. App. 61, 48 S.W.3d 535 (2001).

Affirmed.

Bird and Griffen, JJ., agree.

1 While a person ordinarily has no right to appeal from a guilty plea, a person may appeal when he challenges testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself. Shirley v. State, 84 Ark. App. 395, 141 S.W.3d 921 (2004).