Courtney Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-488

DIVISION II

COURTNEY JOHNSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR05-488

NOVEMBER 30, 2005

APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT

[CR-2004-12]

HONORABLE L. T. SIMES II, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

A Phillips County jury convicted appellant Courtney Johnson of two counts of aggravated robbery and sentenced him to serve ten years in the Arkansas Department of Correction. Johnson argues on appeal 1) that the trial court erred by excluding witness testimony as hearsay and 2) that the trial court abused its discretion when it dismissed a juror for cause. We disagree and affirm.

I. Hearsay

Arkansas Rule of Evidence 801 (c) (2005) defines hearsay as "a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted." While hearsay is generally inadmissible, see Ark. R. Evid. 802, matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. See, e.g., Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). A showing of prejudice is required for reversal; prejudice may not be presumed. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Bell, supra.

At trial, witness Jessica Coffer testified that around midnight on October 25, 2004, Johnson robbed her at gunpoint while she was making a bank deposit in the course of her duties as an assistant manager of a Pizza Hut restaurant. Coffer further testified on cross-examination that her positive identification of Johnson as the perpetrator was based on the fact that his face was approximately twelve inches from her face during the robbery and that she had worked with Johnson previously at a Ryan's restaurant.

Johnson's defense to the robbery was that he was misidentified by the alleged victim of the crime. During Johnson's direct examination of defense witness Tim Covington the following exchange occurred:

Q. Now, you worked with Ms. Coffer also at Pizza Hut, also, didn't you?

A. Yes, sir.

Q. Did you have any conversation with her regarding this robbery?

A. She told me when I got to work, she was like "you know we got robbed." And I was like, "for real." She was like, "yeah." But as far as-she, like described the person and all that. I was just listening. She said that and we went on working.

Q. Did the description she give you match that of Courtney Johnson?

Prosecutor: I object, your Honor, hearsay.

A. No.

Johnson argues that the question posed to Covington did not require him to repeat or offer any out-of-court statements and thus was not hearsay. This is misleading. While Covington's above response of "no" was itself not hearsay, the question required his answer to correlate Coffer's hearsay statement and his opinion as to its accuracy. The hearsay rule cannot be so easily circumvented by asking for the substance of an out-of-court statement rather than for an exact quotation. Robinson v. State, 255 Ark. 485, 500 S.W.2d 929 (1973). The hearsay rule would cease to exist if it could be so easily circumvented. Id. It was therefore not an abuse of discretion for the trial court to exclude the question and answer.

Johnson also contends that the purpose of his question of whether Coffer's hearsay statement was an accurate description of him was to impeach Coffer's testimony. Arkansas Rule of Evidence 613(b) states:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

Arkansas Rule of Evidence 613 permits extrinsic evidence of prior inconsistent statements of a witness for the purpose of impeachment if the witness is afforded the opportunity to explain or deny the statement, and does not admit having made it, and the other party is afforded the opportunity to interrogate the witness on that statement. Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). If the witness, however, admits making the prior inconsistent statement, then extrinsic evidence of that statement is not admissible. Id. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983).

Impeachment of any alleged statement Coffer made to Covington and its accuracy could have been addressed by Johnson during his cross-examination of Coffer. As the State points out in its brief, Johnson would have been permitted to elicit any conversation Coffer had with Covington during her cross-examination and then asked her about supposed discrepancies between her description of the robber and Johnson's actual appearance. Ark. R. Evid. 801(d)(1)(iii). This, however, is not what transpired at trial. The attempt to impeach Coffer's testimony through Covington's assessment of whether her out of court description matched the appellant was improper impeachment. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the statement. See Ark. R. Evid. 613(b).

Covington's testimony was clearly improper impeachment and would have been alternative grounds to sustain the State's objection.

II. Juror Excusal

A trial court's decision to excuse a juror for cause will not be reversed absent an abuse of discretion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Although jurors are presumed to be unbiased, Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001), the bare statement of a juror that she can render a fair and unbiased verdict is subject to question. Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998). The trial court is given a broad discretion in evaluating the bias or prejudice of a juror that may affect her qualifications to serve in a particular case. Montaque v. State, 219 Ark. 385, 242 S.W.2d 697 (1951); see also Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993) (it is within the trial court's discretion to make a subjective judgment as to the truthfulness of a juror's answers to questions pertaining to potential bias). In addition to showing an abuse of discretion by the trial court in excusing a juror for cause, the appellant must also show prejudice as a prerequisite for reversal. Bangs, supra; Williams v. State, 327 Ark. 97, 938 S.W.2d 547 (1997).

The trial court dismissed juror Rose Greer for cause during voir dire because she was the plaintiff in separate litigation in which one of the State's attorneys represented the defendant. The separate litigation was a sexual harassment suit brought by juror Greer against the Helena-West Helena School District, and the State's attorney involved informed the court that the litigation was emotionally charged and highly publicized in the community and that he had taken a "public hardline stance" against her. The State's attorney asserted that juror Greer would take a prejudicial position against the State because of the nature and temper of the separate litigation. The court granted the State's motion to remove juror Greer, noting that Greer should have brought the separate litigation to the court's attention when jurors were asked if there was any relationship or circumstance that would prevent them from acting impartially.

Johnson, citing Cox, supra, argues that because individuals comprising the venire are presumed to be unbiased and qualified to serve, the trial court abused its discretion in removing juror Greer without facts that would show her bias. Johnson additionally argues that juror Greer's silence in response to the court's questioning as to the existence of any relationship or circumstances that would be potential sources of bias inferred that she could have been impartial. Both arguments are without merit.

There was evidence presented to the trial judge of the existence and nature of separate litigation involving both juror Greer and one of the State's attorneys that would easily give the judge discretion to find actual bias. Additionally, although a judge may find a juror acceptable following rehabilitative questions, it is within the court's broad discretion to make this subjective determination. See Bangs, supra; Taylor, supra. Contrary to Johnson's argument that juror Greer's silence infers impartiality, we hold the opposite. Since a juror's bare statement of impartiality is subject to question, and the trial court can make a subjective determination of the truthfulness of answers, silence can therefore be taken to find actual bias. See Cox, supra. Johnson additionally fails to show any prejudice that resulted from the dismissal of juror Greer; even if the trial court had abused its discretion the dismissal would not be reversed without this requirement. Bangs, supra; Williams, supra.

Because the trial court did not err in striking Covington's statement as hearsay, nor did it abuse its discretion in removing juror Greer from the venire, we affirm.

Affirmed.

Crabtree and Roaf, JJ., agree.