Gordon v. State

Annotate this Case
Robert Lynn GORDON and John Michael Priest v.
STATE of Arkansas

CR 96-287                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Constitutional law -- right to confrontation in criminal cases
     -- trial court may impose reasonable limits on cross-
     examination. -- The right of confrontation provides two types
     of protection for defendants in criminal cases: the right to
     face those who testify against them and the opportunity to
     conduct effective cross-examination; the right to cross-
     examine is, however, not unlimited, and a trial court has wide
     latitude to impose reasonable limits on cross-examination
     based upon concerns about confusion of issues or interrogation
     that is only marginally relevant; the supreme court will not
     disturb the discretion of the trial court upon review in the
     absence of a showing of abuse. 

2.   Constitutional law -- record reviewed to determine if
     restrictions on cross-examination rise to level of
     constitutional deprivation -- prejudice is not presumed. -- 
     To determine whether the restrictions placed on the right to
     cross-examine a witness rise to the level of a constitutional
     deprivation, the court looks to the record as a whole to
     determine if the restrictions imposed created a substantial
     danger of prejudice to appellant; prejudice is not presumed,
     and the court will not reverse absent a showing of prejudice.

3.   Constitutional law -- appellant failed to show any abuse of
     discretion or prejudice -- judgment affirmed. -- Where
     appellant failed to show either an abuse of the trial court's
     discretion or any prejudice resulting from the restriction on
     his cross-examinaiton, it could not be said that, absent the
     cross-examination appellant's counsel wished to conduct, any
     implication was left with the jury that it was appellant's
     fingerprint found on the trap-gun; the fact that the State may
     have first "opened the door" regarding the evidence did not
     overcome the problem of relevancy; in the circumstance
     presented here, the door opened by the officer's testimony
     resulted in no prejudice whatever to appellant.   

4.   Criminal law -- accomplice testimony -- corroboration
     required. -- The corroboration required to uphold a felony
     conviction based on accomplice testimony must be sufficient
     standing alone to establish the commission of the offense and
     to connect the defendant with it; the test for determining the
     sufficiency of corroborating evidence is whether, if the
     testimony of the accomplice were totally eliminated from the
     case, other evidence independently establishes the crime and
     tends to connect the accused with its commission.

5.   Criminal law -- accomplice testimony -- corroborative evidence
     may be circumstantial. -- The corroborative evidence required
     for accomplice testimony must be substantial evidence that is
     stronger than evidence that merely raises a suspicion of
     guilt; circumstantial evidence qualifies as corroborating
     evidence, but it, too, must be substantial; however,
     corroboration need not be so substantial in and of itself as
     to sustain a conviction.   

6.   Criminal law -- corroborative evidence less than sufficient --
     judgment reversed. -- Where the evidence produced by the
     State, other than the testimony of the accomplice, did no more
     than place the second appellant in a location where marijuana
     was used, and the crime against the officer was discussed, it
     was not sufficient to satisfy the requirement of Ark. Code
     Ann.  16-89-111(e)(1); the judgment was reversed and the case
     dismissed.


          Appeal from Marion  Circuit Court; Robert McCorkindale,
Judge; affirmed as to appellant Gordon; reversed and dismissed as
to appellant priest. 
     Adams & Evans, by:  Donald J. Adams, for appellant Gordon.
     Gardner & Putman, by:  John Putman, got appellant Priest.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     David Newbern, Justice.
     Robert Lynn Gordon and John Michael Priest were tried jointly
for attempted capital murder and manufacture of a controlled
substance.  Mr. Gordon was convicted of both offenses and sentenced
to 35 years imprisonment and a $10,000 fine.  Mr. Priest was
convicted of manufacture of a controlled substance and was given a
four-year suspended sentence.  Both have appealed, and their
appeals have been consolidated.  We affirm Mr. Gordon's conviction
as we reject his sole point of appeal having to do with alleged
error resulting from improper limitation of cross-examination of a
State's witness.  We reverse and dismiss the conviction of Mr.
Priest because we concur in his contention that the evidence
against him given by an accomplice was not corroborated.
     On Thursday, August 18, 1994, the Marion County Sheriff's
office received a report concerning the discovery of a large
marijuana plot.  Investigator Carr was the first to respond to the
call.  Upon entering the marijuana field, Mr. Carr noticed a strand
of monofilament line, a type of fishing line, running to a piece of
pipe.  Suspecting a trap-gun, he attempted to relay his discovery
to other approaching officers.  While attempting to radio the other
officers, he set-off a second, unseen trap-gun which was loaded
with buckshot.  The resulting blast struck Mr. Carr's leg. 
Although severely wounded, he managed to crawl out of the field. He
was found by other officers and rushed to the hospital.  The
officers recovered 402 marijuana plants and two trap guns
constructed of galvanized pipe and rat traps.    
     The State's primary witness was Kenneth Godat, an accomplice. 
According to Mr. Godat, the marijuana plot belonged to Mr. Gordon
and Mr. Priest.  Mr. Godat testified that he heard the two men
discussing the necessity of keeping law enforcement officials out
of the plot, and that he saw the components for the trap-guns on a
nearby picnic table immediately after the discussion.  He claimed
that he saw a trap-gun, identical to the ones found in the
marijuana plot, at the cabin shared by the two men.  Mr. Godat also
stated that he transported the two men to the plot on the day  the
trap-guns were installed.  The other evidence produced by the State
consisted of testimony from individuals who stated they knew the
marijuana patch belonged to Mr. Gordon, that he talked of
protecting it with booby-traps, and that he had a partner, although
the partner was not named.


                       Robert Lynn Gordon
                   Scope of cross-examination
     Bill Beach, one of the investigating officers, testified he
took fingerprints from a number of the suspects and submitted them
to the State Crime Laboratory for comparison to prints found on the
trap-guns.  When questioned about the result, he stated the test
was inconclusive.  Officer Beach testified a laboratory technician
told him "That he had found one, partial latent print on one of the
[trap-guns] and that . . . as a result of his comparison to the
known prints that were submitted, the print was not suitable to
identify any potential suspect, there were not enough points of
identification to identify one person."  On cross-examination, Mr.
Gordon's counsel began questioning Officer Beach about a
conversation Mr. Beach had with the fingerprint examiner, Mr.
Turbyfill, concerning which suspect the fingerprints most closely
matched.  The State's objection was sustained.  
     Mr. Gordon's counsel asked to make a proffer consisting of his
allegation that Officer Beach would testify that Mr. Turbyfill said
that he found five points on the latent print which matched the
finger print of Brad McLean and that Mr. Turbyfill had stated the
investigator should take a "hard look" at Mr. McLean as a suspect. 
The Trial Court stated that, if a statement by Mr. Turbyfill were
admissible, Mr. Turbyfill would be the proper witness but he
doubted the testimony would be admissible "under any stretch of the
rule of evidence."  Obviously, the Trial Court considered the
testimony of Mr. Beach about what Mr. Turbyfill had told him to be
irrelevant and, at best, subject to a hearsay objection on the part
of the State.  We note that in Davis v. State, 319 Ark. 892 S.W.2d 472 (1995), we held that a police officer's testimony about a
scientific test he did not conduct was not admissible. 
     On appeal, Mr. Gordon contends that Officer Beach's statement
concerning the inconclusive nature of the test was misleading.  He
submits that he should have been allowed to elicit testimony from
Officer Beach that, even though inconclusive, the fingerprint test
implicated one of the other suspects and not Mr. Gordon.  Mr.
Gordon contends the Trial Court erred by limiting his cross-
examination of a State's witness and such error amounted to a
denial of his Sixth Amendment right of confrontation.
     The right of confrontation provides two types of protection
for defendants in criminal cases: the right to face those who
testify against them and the opportunity to conduct effective
cross-examination.  Gunter v. State, 313 Ark. 504, 857 S.W.2d 156
(1993).  The right to cross-examine is, however, not unlimited, and
a trial court has wide latitude to impose reasonable limits on
cross-examination based upon concerns about confusion of issues or
interrogation that is only marginally relevant.  Larimore v. State,
317 Ark. 111, 877 S.W.2d 570 (1994);  Bowden v. State, 301 Ark.
303, 783 S.W.2d 842 (1990).  We will not disturb the discretion of
the trial court upon review in the absence of a showing of abuse. 
Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994).
     To determine whether the restrictions placed on the right to
cross-examine a witness rise to the level of a constitutional
deprivation, we look to the record as a whole to determine if the
restrictions imposed created a substantial danger of prejudice to
appellant.  Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); 
Bowden v. State, supra.  Prejudice is not presumed and we will not
reverse absent a showing of prejudice.  King v. State, 322 Ark. 51,
907 S.W.2d 127 (1995); Berna v. State, 282 Ark. 563, 670 S.W.2d 434
(1984), cert. denied, 470 U.S. 1085 (1985).
     In his argument, Mr. Gordon cites three cases in support of
his point that his right of confrontation was erroneously
curtailed.  The cases are U.S. v. Campbell, 845 F.2d 782 (8th Cir.
1988), U.S. v. Ferguson, 776 F.2d 217 (8th Cir. (1985), and Bowden
v. State, supra.  In each of those cases convictions were affirmed,
and each of the opinions emphasizes the wide discretion a trial
court has in limiting cross-examination.  The opinion in the
Ferguson case makes the point that "A violation of the
confrontation clause occurs only where the limitation on the cross-
examination could reasonably be expected to have a substantial
effect on the jury's decision."
     Mr. Gordon has failed to show either an abuse of the Trial
Court's discretion or any prejudice resulting from the restriction. 
He was allowed to question the State's witnesses concerning the
existence of other suspects.  Mr. Gordon's former spouse testified
that Brad McLean had been involved in growing marijuana with Mr.
Gordon.  Evidence that the fingerprint somewhat matched that of Mr.
McLean would have added little to Mr. Gordon's attempt to show that
others were suspects and might have been involved in the growing of
the marijuana.      
     We cannot say that, absent the cross-examination Mr. Gordon's
counsel wished to conduct, any implication was left with the jury
that it was Mr. Gordon's finger print found on the trap-gun.  Nor
has Mr. Gordon given us any citation to any authority which would
make an apparently hearsay statement, of marginal, if any,
relevance, admissible because the prosecution had "opened the
door."  In Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994),
we rejected a similar argument where the State had offered evidence
that a murder victim was reputed to have been a peaceful person and
the defendant wanted to offer evidence of specific acts of violence
committed by the victim.  We upheld the Trial Court's refusal to
allow the evidence and said, "The fact that the State may have
first 'opened the door' regarding the victim's character does not
overcome the problem of relevancy under these circumstances."  
     The research effort displayed in the concurring opinion will
undoubtedly be helpful in future cases in which there is a "fire"
to be fought with a "fire."  In the circumstance presented here,
however, the door opened by Officer Beach's testimony resulted in
no prejudice whatever to Mr. Gordon.    
     We affirm the judgment as to Mr. Gordon.

                       John Michael Priest
                   Sufficiency of the evidence
     Mr. Priest contends the Trial Court should have granted his
motion for directed verdict because the State failed to corroborate
accomplice testimony as to his involvement in the manufacture of a
controlled substance in violation of Ark. Code Ann.  5-64-401(b)
(Supp. 1995). 
     Arkansas Code Ann.  16-89-111(e)(1) (1987) provides:

     A conviction cannot be had in any case of felony upon the
     testimony of an accomplice unless corroborated by other
     evidence tending to connect the defendant with the commission
     of the offense.  The corroboration is not sufficient if it
     merely shows that the offense was committed and the
     circumstances thereof.

     The corroboration must be sufficient standing alone to
establish the commission of the offense and to connect the
defendant with it.  Hogue v. State, 323 Ark. 515, 915 S.W.2d 276
(1996);  Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992);
Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991).  The test
for determining the sufficiency of corroborating evidence is
whether, if the testimony of the accomplice were totally eliminated
from the case, other evidence independently establishes the crime
and tends to connect the accused with its commission.  Meeks v.
State, 317 Ark. 411, 878 S.W.2d 403 (1994);  Daniels v. State,
supra.
     The corroborative evidence must be substantial evidence which
is stronger evidence than that which merely raises a suspicion of
guilt.  Hogue v. State, supra.  Circumstantial evidence qualifies
as corroborating evidence but it, too, must be substantial.  Id. 
But corroboration need not be so substantial in and of itself as to
sustain a conviction.  Id.  See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983).
     The State contends it produced sufficient corroborating
evidence through the testimony of Doug Sauers.  Mr. Sauers
testified he had a conversation with Mr. Gordon after Investigator
Carr was wounded.  According to Mr. Sauers, Mr. Gordon told him
that he, Gordon, would have had plenty of marijuana if the victim
had not messed things up.  Mr. Sauers stated that Mr. Gordon talked
about the patch as "ours" indicating that he had a partner.  Mr.
Sauers unequivocally denied that Mr. Gordon ever mentioned the name
of his partner.  
     Other witnesses testified they thought Mr. Gordon had a
partner, but no name was mentioned.  Mark Fisk testified he went to
Mr. Priest's cabin several times and observed people smoking
marijuana.  He also testified he heard Mr. Priest and Mr. Gordon
say that Investigator Carr got what he deserved.  Mr. Fisk said he
did not know anything about who was growing marijuana.
     The evidence produced by the State, other than the testimony
of the accomplice, does no more than place Mr. Priest in a location
where marijuana was used and the crime against Mr. Carr was
discussed.  That is not sufficient to satisfy the requirement of 
16-89-111(e)(1).
     The judgment against Mr. Priest is reversed and the case is
dismissed.

Brown, J., concurs.
           ROBERT L. BROWN, Associate Justice, concurs
     I disagree with the majority that evidence of Brad McLean's
fingerprint on one of the trap-guns would have added little to
Gordon's defense.  The majority bases this conclusion on the fact
that there was testimony from others that McLean was involved in
marijuana growing.  But that proof hardly equates to evidence that
McLean's fingerprints were on one of the deadly devices responsible
for wounding Officer Carr.  Gordon's attempted defense was that
someone else -- Brad McLean in particular -- did it.  Thus, any
curtailment of Gordon's ability to point to McLean as the culprit
was crucial.
     As the majority points out, the prosecutor opened the door to
testimony about other suspects with this colloquy with Officer
Beach on direct examination:
          PROSECUTOR: The technician, you were saying,
     explained to you what?
          BEACH: That he had found one, partial latent print
     on one of the devices and that ...
          PROSECUTOR: On one of the booby trap devices?
          BEACH: Yes sir, and that as a result of his
     comparison to the known prints that were submitted, the
     print was not suitable to identify any potential suspect,
     there were not enough points of identification to
     identify any one person.
          PROSECUTOR: Okay, so what he found was a partial
     print on one of those devices but it didn't have enough
     of a print to make up, sufficient points to make a
     comparison with the known prints you were submitting?
          BEACH: That's correct, there were not enough points
     to identify any one particular suspect.
This testimony by Officer Beach, which was admittedly hearsay of
what the fingerprint expert told him, left the distinct impression
with the jury that that expert (Ralph Turbyfill) had no suspect in
mind.
     On cross-examination, Gordon's counsel tried to clarify
through Officer Beach that Turbyfill had in fact matched five
points on the latent fingerprints taken from the trap-gun with Brad
McLean's fingerprints.  The trial court refused to allow this
questioning on grounds that Gordon's counsel had not objected to
the first hearsay statement by Officer Beach and, as a second
reason, that what counsel was now attempting to elicit was hearsay
of his own.
     I further take issue with the conclusion by the majority that
there is no authority allowing the defense to do what it sought to
do in this case.  This court has recognized the principle that once
a party has opened the door with inadmissible evidence, the
opposing party can do likewise:
     Since Walder, (Walder v. United States, 347 U.S. 62
     (1954)), we have recognized the propriety of "fighting
     fire with fire" when one of the parties opens the door
     with an untruthful statement, introduces inadmissible
     evidence, or makes an improper closing argument.
Larimore v. State, 317 Ark. 111, 121, 877 S.W.2d 570, 574 (1994);
see also Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). 
That is what we have here.  Officer Beach first alluded to
statements by Turbyfill that were hearsay, and defense counsel, as
a result, tried to correct the misleading statements by eliciting
additional hearsay from the police officer.  Under the authority of
Walder v. United States and Larimore v. State, that is permissible.
     The treatise, Jones on Evidence, confirms the principle:
     Evidence that is irrelevant or otherwise inadmissible, if
     offered by a party in the first instance, may become
     properly admissible to rebut or explain evidence offered
     by another party.
2 Clifford S. Fishman, Jones on Evidence Civil and Criminal, 
11:34, at 352 (7th Ed. 1994).  This is known as the rule of verbal
completeness.  Id. at  11:35; p. 355.  The treatise goes on to
state that while one state (Ohio) would not permit this,
     [t]he better view ... is that the "rule of completeness"
     permits introduction of otherwise inadmissible evidence
     for the limited purposes of explaining or putting other,
     already admitted evidence, into context, or avoiding
     misleading the jury.
Id. at  11:39, p. 370.  (Emphasis added.)
     An analogous rule is the rule of curative admissibility which
is a discretionary rule of evidence based on principles of
fairness.  2 Clifford S. Fishman, Jones on Evidence Civil and
Criminal,  11:41, at 374 (7th Ed. 1994).  The rule is described as
follows:
     If one party has gotten away with a breach of the rules,
     sometimes the only practical way to undo the unfair
     advantage (other than a mistrial) is to allow the other
     party a compensatory breach.  Thus, if one party has been
     allowed to present irrelevant or otherwise inadmissible
     evidence, the judge should allow the opposing party to
     present similar evidence if such is necessary to offset
     the unfair advantage or prejudicial effect of the earlier
     improper evidence.
Id.
     Finally, I question whether Gordon's sole recourse to combat
the testimony of Officer Beach was calling Turbyfill as his own
witness.  Our case law holds that Gordon had the right to fight
fire with fire and correct the missimpression left with the jury. 
See Larimore v. State, supra; Porter v. State, supra.  This
rationale should apply irrespective of whether the party
subsequently calls the declarant as a witness.
     The issue that places me in the posture of concurring is
whether a party must object to the initial hearsay.  The Iowa
Supreme Court says this is not necessary:
     [The] doctrine [curative admissibility] provides that
     when one party introduces inadmissible evidence, with or
     without objection, the trial court may allow the adverse
     party to offer otherwise inadmissible evidence on the
     same subject if it is responsive to the evidence in
     question.
Lala v. Peoples Bank & Trust Co. of Cedar Rapids, 420 N.W.2d 804,
807-808 (Iowa 1988).  Nevertheless, this court has not addressed
that issue, and I cannot say that the trial court abused its
discretion in requiring an initial objection.  For that reason, I
concur in the result.

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