Farmer v. State

Raphael FARMER v. STATE of Arkansas

CA CR 95-398                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                 Opinion delivered June 12, 1996


1.   Appeal & error -- arguments raised for first time on appeal
     not considered. -- The appellate court does not consider
     arguments raised for the first time on appeal.

2.   Criminal procedure -- discovery -- evidence favorable to
     defendant must be disclosed by prosecutor -- continuing duty.
     -- Rule 17.1(d) of the Arkansas Rules of Criminal Procedure
     incorporates the due-process requirement that evidence
     favorable to a defendant on issues of guilt or punishment be
     disclosed by the prosecutor; insofar as the rule requires
     pretrial disclosure, it represents an extension of the mandate
     set forth in  Brady v. Maryland, 373 U.S. 83 (1963); the Brady
     rule has been interpreted to include impeachment, as well as
     exculpatory evidence; Rule 19.2 further imposes a continuing
     duty on the prosecutor to disclose this information. 

3.   Criminal procedure -- discovery -- State's failure to provide
     information -- appellant's burden -- prejudice to appellant is
     key to reversal. -- If the State fails to provide information
     pursuant to pretrial discovery procedures, the burden is on
     the appellant to establish that the omission was sufficient to
     undermine confidence in the outcome of the trial; the key in
     determining whether a reversible discovery violation exists is
     whether the appellant was prejudiced by the prosecutor's
     failure to disclose.

4.   Criminal procedure -- discovery -- appellant prejudiced by
     State's failure to disclose information regarding police
     officer's resignation -- trial court abused discretion in
     denying new trial -- case reversed and remanded. -- Where the
     State's case was based upon a police officer's testimony and
     his identification of appellant as the person who sold him
     crack cocaine; where appellant's defense depended on bringing
     into question the officer's credibility; where the evidence of
     appellant's guilt was not overwhelming absent the officer's
     testimony; and where the officer's resignation from the police
     department was in close proximity to the time of trial, the
     appellate court could not say that appellant was not diligent
     in attempting to discover the information during his own
     investigation prior to trial; the appellate court concluded
     that appellant was prejudiced by the State's failure to
     disclose the information regarding the officer's resignation
     and thus found that the trial court abused its discretion in
     denying appellant a new trial.


     Appeal from Pulaski Circuit Court, Fourth Division; John
Langston, Judge; reversed and remanded.
     Webb & Wyatt, by: James W. Wyatt, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     James R. Cooper, Judge.*ADVREP*CA1*
                                DIVISION I



                                        CACR95-398

                                                          June 12, 1996


RAPHAEL FARMER                          APPEAL FROM THE PULASKI COUNTY
          APPELLANT                     CIRCUIT COURT (FOURTH DIVISION)
                                        [NO. CR94-1941]

VS.                                     HON. JOHN LANGSTON,
                                        CIRCUIT JUDGE

STATE OF ARKANSAS                       REVERSED AND REMANDED
          APPELLEE






                          James R. Cooper, Judge.



     The appellant was convicted in a jury trial of delivery of a
controlled substance and sentenced to eleven years in the Arkansas
Department of Correction.  On appeal, he argues that the trial
court erred in denying his motion for a new trial because the State
failed to disclose that its sole material witness had filed a false
police report and had resigned from the police department prior to
trial.  We agree and reverse and remand.
     At the appellant's trial on October 27, 1994, the State's
witness, Officer Elliott Johnson, testified that the appellant sold
him crack cocaine.  Johnson testified that he was investigating
narcotics activity in a housing project area on March 9, 1994.  He
testified that at approximately 5:15 p.m., he and a confidential
informant were flagged down by the appellant who was driving a
Chevrolet truck with license plate number TWY 553.  He testified
that he purchased $20.00 worth of crack cocaine from the appellant.
     Johnson testified that he saw the appellant driving the same
truck again on April 12, 1994.  He radioed other officers to stop
the appellant's vehicle in order to identify and photograph him. 
Johnson testified that there was no doubt that the appellant was
the person who sold him the cocaine.  Three alibi witnesses
testified on the appellant's behalf.  During closing arguments, the
prosecutor stated:
     Can he [Johnson] make an identification after just
     looking at somebody for five minutes?  Well, yes, I think
     he can.  He's a detective, a professional at that.  
     . . .  This is a police officer who is making a buy of
     cocaine.  . . .   He would pay attention to that kind of
     thing.  That's what he's trained to do.

     The appellant filed a motion for a new trial on December 1,
1994, after discovering that Johnson was not, in fact, a police
officer at the time of the trial.  Captain Sam Williams of the
Little Rock Police Department testified during the hearing on the
appellant's motion for a new trial.  He testified that on
September 11, 1994, Officer Johnson informed a supervisor that his
city-supplied car had been stolen out of the driveway of his home
in Little Rock.  Captain Williams testified that approximately
three to four weeks later it was determined that the car had not
been stolen but that Johnson had wrecked it in Tunica, Mississippi,
and had been unable to return the vehicle to Little Rock.  Captain
Williams explained that taking the car to Tunica was a violation of
police department rules.  Captain Williams further testified that
Johnson had filed a false police report.  Johnson resigned from the
Police Department on October 4, 1994, and thus was not employed as
a police officer at the time of the trial.  The prosecuting
attorney admitted at the hearing that it had been discussed prior
to trial that Johnson should not be asked at trial where he was
employed.  
     The appellant argues that he was prejudiced by the State's
failure to disclose that Johnson had filed a false police report
and had resigned from the police department because he was
prevented from using that information to attack Johnson's
credibility.  He also argues that the State's failure to disclose
this information amounted to prosecutorial misconduct.  This second
argument, however, was not made to the trial court and hence, it is
not preserved for appeal.  We do not consider arguments raised for
the first time on appeal.  Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993).  
      Here, the appellant filed a discovery motion on September 7,
1994.  The State did not disclose any information regarding
Johnson's resignation although it had knowledge of it prior to
trial.    Rule 17.1(d) of the Arkansas Rules of Criminal Procedure
incorporates the due process requirement that evidence favorable to
a defendant on issues of guilt or punishment be disclosed by the
prosecutor.  Brady v. Maryland, 373 U.S. 83 (1963); Yates v. State,
303 Ark. 79, 794 S.W.2d 133 (1990).  Insofar as the rule requires
pretrial disclosure, it represents an extension of the Brady
mandate.  Yates, supra.  The Brady rule has been interpreted to
include impeachment, as well as exculpatory evidence.  United
States v. Bagley, 473 U.S. 667 (1985).  Rule 19.2 further imposes
a continuing duty on the prosecutor to disclose this information. 
     If the State fails to provide information pursuant to pretrial
discovery procedures, the burden is on the appellant to establish
that the omission was sufficient to undermine confidence in the
outcome of the trial.  Bray v. State, 322 Ark. 178, 908 S.W.2d 88
(1995).  The key in determining whether a reversible discovery
violation exists is whether the appellant was prejudiced by the
prosecutor's failure to disclose.  Mosley v. State, 323 Ark. 244,
914 S.W.2d 731 (1996).  
     In the case at bar, the State's case was based upon Johnson's
testimony and his identification of the appellant as the person who
sold him the crack cocaine.  Consequently, the importance of the
evidence that would have been used to attack Johnson's credibility
cannot be minimized.  The appellant's defense depended on bringing
into question Johnson's credibility.  Furthermore, the evidence of
the appellant's guilt is not overwhelming absent Officer Johnson's
testimony, see Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991),
and given the close proximity of Johnson's resignation to the time
of trial, we cannot say that the appellant was not diligent in
attempting to discover this information during his own
investigation prior to trial.  We conclude that the appellant was
prejudiced by the State's failure to disclose the information
regarding Johnson's resignation, and thus find that the trial court
abused its discretion in denying the appellant a new trial.
     Reversed and remanded.
     Robbins and Stroud, JJ., agree.