Rondal Campbell v. State of Arkansas

ar00-999

DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE CACR00-999

May 2, 2001

RONDAL CAMPBELL AN APPEAL FROM NEWTON

APPELLANT COUNTY CIRCUIT COURT

[CR99-44]

V. HON. ROBERT W. McCORKINDALE,

JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Rondal Campbell was convicted of criminal trespass, fleeing, disorderly conduct and possession of a firearm by a felon. He received a sentence of six years' probation, sixty days in jail, and the imposition of a $500.00 fine and $175.00 court costs. After reviewing the record and applicable case law, we affirm.

Factual and Procedural History

On June 6, 1999, appellant went to the residence of Roy Henson, his father-in-law, and argued with his wife, Carrie Campbell, who was staying there. When asked to leave, appellant refused. Henson, who was concerned that appellant was armed, called the Newton County Sheriff's Department. Appellant was subsequently arrested, and served as his own attorney through the pre-trial and trial.

Henson testified at trial that appellant married his daughter the previous June and that she was at his residence the night of the incident. He relayed that he did not want to testify and that he did not remember the specific date of the incident. After the State asked Henson a series of leading questions, appellant objected. The State then sought the court's permission to treat Henson as a hostile witness, which the court granted after noting that Henson obviously did not want to cooperate.

Deputy Sheriff Darvin Spears also testified on behalf of the State. During Spears' direct examination, the State alerted the court that it was going to elicit hearsay testimony to explain the circumstances surrounding Spears' visit to Henson's residence. The court agreed to allow the State to continue and admonished the jury, sua sponte, that it was admitting the hearsay statement solely for that purpose. Appellant did not request an additional admonition or object to the admonition that the trial court gave. Spears proceeded to testify that he went to Henson's home after a dispatch operator informed him that Mrs. Campbell reported that appellant had been drinking and was currently at her father's home creating a disturbance by trying to get someone to shoot him and stating that he would kill himself. Spears testified that Carrie Campbell appeared shook up, and that she was crying and aggravated at appellant. Appellant objected to the testimony, arguing that it was hearsay. The State responded that it laid a proper foundation that the testimony was an excited utterance and fell within a hearsay exception. The Court agreed with the State and overruled the objection. Spears then relayed that Ms. Campbell told him that when appellant saw his patrol unit, he fled into the woods.

Next, Spears testified that Henson told him that appellant tried to fight him and challenged him. Appellant objected, and asked if there was a statement by Mrs. Campbell. The State responded that Spears was testifying about what Henson said and not Mrs. Campbell. The court overruled the objection after noting that Spears did not make any statements about what Mrs. Campbell said. Later, as Spears testified about the steps he took to determine whether a firearm was present, he began to state what Henson and Mrs. Campbell informed him. Appellant objected, and the court sustained the objection on grounds of hearsay. Spears then testified that he went to appellant's vehicle, and observed a .22 rifle in plain view on the front passenger seat. He testified that he seized the firearm and retained custody of it until the trial.

After the State rested, appellant called Daniel Bolin as a witness. Bolin testified that he drove the Jeep Cherokee to Henson's residence, and that the gun in the vehicle belonged to him. He testified that after he drove the jeep to the residence, he observed appellant and Mrs. Campbell fussing. Bolin stated that he then walked off and left the jeep there.

Following closing arguments and deliberations, the jury returned a verdict finding appellant guilty of criminal trespass, fleeing, disorderly conduct, and possession of a firearm by a felon. This appeal follows. Appellant challenges three evidentiary rulings. First, he contends that the trial court erred in declaring that his father-in-law was a hostile witness of the State. Second, he argues that the trial court permitted hearsay testimony without administering a proper admonition. Third, he contends that the trial court erred in admitting hearsay testimony without requiring the State to prove that the statement fell within ahearsay objection.

Hostile Witness

Rule 611(c) of the Arkansas Rules of Evidence provides that counsel should limit leading questions to cross-examinations, unless the witness is a hostile witness. When a party interviews a hostile witness, an adverse party, or witness associated with an adverse party, the examiner is permitted to interrogate through leading questions. See Ark. R. Evid. 611(c). In considering whether a witness is hostile, the trial court may consider such factors as the witness's demeanor, the relationship between the witness and the parties, and any interest the witness may have in the case. See Swaim v. State, 257 Ark. 166, 514 S.W.2d 706 (1974). Whether a party is allowed to ask leading questions during a direct examination is within the discretion of the trial court, and we will not reverse the trial court's ruling unless we determine that the trial court abused its discretion. See Chase v. State, 334 Ark. 274, 973 S.W.2d 791 (1998).

In this case, the record supports the trial court's determination that Henson was a hostile witness. Indeed, the record is replete with examples of Henson's non-responsive answers and uncooperative attitude. For example, when asked why his daughter was staying at his residence, Henson responded "cause she loves us." When asked if his daughter was separated from her husband, Henson stated, "no, not exactly." The State asked Henson if he wanted to testify, Henson stated "I refuse." When the State asked for clarification, Henson testified, "I refuse to answer that." The State then asked "so you really don't wantto be here to testify, is that right?" Henson replied "yeah." Henson was then asked why the police was called to his residence, and he testified "family trouble." When he was asked to explain what happened, Henson stated "Well, I could but I don't want to." Henson was then asked if he remembered making a statement to the police, to which he replied "not as I remember." When he was asked if he remembered saying in the statement that he feared appellant had a gun, Henson testified that he did not remember it, but he might have. Based on the foregoing, combined with Henson's relationship with appellant and the trial court's observation of Henson's non-cooperative attitude, we hold that the trial court did not abuse its discretion by permitting the State to treat Henson as a hostile witness.

Admissibility of Statement by Dispatcher

Next, appellant challenges the testimony of deputy sheriff Darvin Spears as it related

to a conversation between the radio dispatcher and Spears. He contends that the court improperly admitted the out of court statement without properly admonishing the jury.

Hearsay is defined as an out of court statement offered in court to prove the truth of the matter asserted. See Ark. R. Evid. 801(c). This statement may not be offered into evidence except as provided by law or another rule of evidence. See Ark. R. Evid. 802. In Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999), our supreme court determined that testimony introduced of radio transmissions received by police officers was not hearsay because the statements were not being offered to prove the truth of the matter asserted, but rather to explain the officers' actions in pursuing and apprehending the appellant.

Our supreme court has observed that a limiting instruction or admonishment by thecourt may serve to remove the prejudicial effect of evidence. See Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). Indeed, the court has held that an admonition will usually remove the effect of a prejudicial statement unless the statement is "so patently inflammatory that justice could not be served by continuing the trial." See Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). A party objecting to the testimony bears the burden of requesting an admonition sufficient to cure the prejudice. See id. When the party fails to request an admonition, it may not complain on appeal that the trial court failed to admonish the jury. See id. This is true whether the party is represented by a licensed attorney or whether the party represents himself. See Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986) (holding that pro se litigants receive no special consideration when representing themselves; counsel is presumed competent).

Here, the State alerted the court that deputy Spears would testify about out of court statements in order for him to explain "what he went to respond to." The court agreed to allow the testimony and admonished the jury that the testimony "was accepted for that limited purpose only." Appellant seems to argue that even though the trial court admonished the jury, the trial court's admonishment did not specifically instruct the jury that the statements were not offered for the truth of the matter asserted. Thus, appellant reasons, that the trial court committed error. Appellant points this court to no authority that the trial court was required to specifically tell the jury that the testimony was not offered for the truth of the matter asserted. Although he relies on Skiver, supra, in support of his analysis, appellant's reliance is misplaced. While the Skiver court observed that the trial courtadmonished the jury on three out of six occasions concerning hearsay objections to witness reports or radio transmissions received by the police, the Skiver decision falls far short of requiring that trial courts use language that the statement is not offered for its truth. In this case, the trial court, sua sponte, admonished the jury. Had appellant wanted a different admonition, he certainly could have requested one, and his failure to do so is fatal to his argument on appeal.

Failure of Trial Court to Admonish Jury when it Sustained Hearsay Objection

Appellant's final contention is somewhat confusing. He seems to argue that when he objected to deputy Spears testifying about what Roy Henson said, the trial court ruled that the testimony was inadmissible hearsay. However, he asserts that the trial court did not admonish the jury to ignore Spear's testimony as to what Roy Henson had said. The State responds that the trial court sustained appellant's objection and that he is precluded from seeking on appeal relief that he did not seek at trial.

To preserve an issue for appellate review, an appellant is required to make a timely, contemporaneous objection with the asserted error. See Cole v. State, 68 Ark. App. 294, 6 S.W.3d 805 (1999). Again, a party who objects to a prejudicial statement has the obligation to request an admonition to the jury. See Kimble, supra.

Nothing in the record indicates that appellant requested the court to admonish the jury when the court sustained appellant's objection. Indeed, the record demonstrates that appellant made one hearsay objection that related to testimony concerning a firearm. The court sustained the objection and appellant did not seek additional relief. The record failsto demonstrate that appellant objected to Spears' testimony regarding other information that Henson provided. Appellant's failure to contemporaneously object to the testimony he considered inadmissible precludes his raising the issue on appeal.

Affirmed.

Jennings and Bird, JJ., agree.