Cedric Lamar Terry v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

CEDRIC LAMAR TERRY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-300

January 9, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION

[CR 99-4756]

HON. DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

Appellant, Cedric Terry, was charged with murder in the first degree in the death of Kenneth Hubbard and in engaging in a terroristic act resulting in the wounding of Tony Hubbard. His defense was that of justification. The jury convicted him of murder in the second degree and committing a terroristic act. Appellant was sentenced to twenty and fifteen consecutive years at the Arkansas Department of Correction. We affirm.

The State's evidence revealed that on November 12, 1999, appellant went to the White Diamond Club with Paul Glass, Caprice Wright, and Kenneth Hubbard. Kenneth Hubbard was driving Glass's vehicle. The club closed at approximately 2:00 a.m.; the four left the club at closing time. A few blocks from the club, Kenneth Hubbard stopped the vehicle in order to pick up his brother, Tony Hubbard. Appellant was asked to get out of the front seat, and to sit in the back of the car to allow Tony Hubbard to ride in the front seat of the car. Appellant allegedly was unwilling to take this perceived inferior position in the car, and was ultimately left on the side of the road. Appellant walked several blocks to the home of Paul Glass's grandmother, where his car was parked. He arrived before Glass and the others. Upon the others' arrival, appellant went to his truck and retrieved a gun. Then, he fired his gun between the door and the side of the vehicle Kenneth Hubbard was driving. The shot hit Kenneth Hubbard. Despite being shot, K

enneth Hubbard drove the car away, but wrecked only a short distance later. He was pronounced dead at the scene. Tony Hubbard was injured in the car wreck.

Appellant claimed self-defense at trial, because he was uncertain of what would happen when he and Kenneth Hubbard met again. He did admit that he did not know whether Kenneth Hubbard (or any of the other passengers) had a gun in the vehicle.

After the jury retired to consider the verdict on appellant's guilt, appellant moved for a mistrial. Appellant informed the trial court that he had just received information from another potential witness that Caprice Wright, a State subpoenaed witness, communicated to the potential witness (and to the victim's family) that she refused to testify unless she was paid for her testimony. Wright also allegedly told another witness that there was a weapon in the Glass vehicle. Wright did not testify at trial; she was released from her subpoena the morning of the trial. The State countered that they had also just heard that Wright allegedly requested money for her testimony and that it did not consider the action to be exculpatory. Appellant's mistrial motion was denied.

On June 15, 2000, a Pulaski County jury found appellant guilty of second degree murder and committing a terroristic act. After trial, appellant filed a motion for a new trial alleging two violations of discovery. After a hearing on the matter, the trial court denied the motion. From the trial court's denial of a new trial comes this appeal.

In order to receive a new trial on the grounds that discovery violations occurred, appellant must 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). A reversible discovery violation exists if the appellant was prejudiced by the prosecutor's failure to disclose. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996).

Appellant's first argument for a new trial involved the potential testimony of Caprice Wright, who was present when appellant shot Kenneth Hubbard. Ms. Wright was originally subpoenaed by the State as one of the main witnesses to the murder, but was released without notifying either the court or the defense. Appellant argued at the new-trial hearing that the State intentionally concealed Wright's alleged contact with the family of the victim requesting compensation for her testimony and her alleged knowledge of a weapon in Hubbard's vehicle. He further argued that the State's concealment of this exculpatory information prohibited him from impeaching Ms. Wright.

The testimony at the new-trial hearing was that Ms. Wright was interviewed by the State before the trial, and stated that she did not see any weapon in the car that Kenneth Hubbard was driving, but did acknowledge that there could have been a gun in the car. Wright had been uncooperative, and indicated that she did not want to testify at trial; for this reason, she was not called as a witness at trial. She also stated that she had not requested money for her testimony.

The trial court found that the allegation of bribery was tentative at best, and would not have "affected the outcome of the trial." In its consideration of appellant's argument relating to Ms. Wright's potential testimony, the trial court ruled that "assuming, arguendo, that Ms. Wright did state [that there could have been a gun in the car] in her interview with the prosecuting attorney, andthe defense attorney had an opportunity to have more fully developed this during cross-examination at the trial, the Court is not persuaded that it would have changed the outcome of the trial."

We agree with the trial court's ruling relating to the potential testimony of Ms. Wright. First, the State released Ms. Wright from subpoena prior to gaining knowledge of the bribery allegation, and during the new-trial hearing, Ms. Wright's denial of the bribery allegation was uncontroverted. Second, Ms. Wright did not offer any testimony at trial and even had she testified, her potential testimony would not have been particularly relevant to appellant's defense of justification. In Craig v. State, 70 Ark. App. 71, 14 S.W.3d 893 (2000), we outlined the parameters for the defense of justification:

One who asserts the defense of justification of a homicide must show not only that the person killed was using deadly physical force, but that he responded with only that force which was necessary and that he could not have avoided the killing. A person is justified in using deadly physical force upon another person only if he reasonably believes that the other person was about to commit a felony involving force [or] violence or about to use unlawful deadly physical force and he was not the initial aggressor.

Id. at 82, 14 S.W.3d at 900 (citations omitted). Appellant admitted that he had no knowledge or belief that the victim (or any passengers) had a gun, and in matters of self-defense only what appellant actually knew or believed matters. Id.

These factors, coupled with the requirement that the discovery violation did not undermine the confidence in the outcome of the trial, support the trial court's ruling.

Appellant's second argument offered during the new-trial hearing involved the State's alleged failure to comply with a discovery request relating to a key State witness, Paul Glass. The discovery request asked for "any record of prior criminal convictions of persons the prosecuting attorney intends to call [a]s witnesses at any hearing or at trial... ." The State responded by revealingthat Glass had a felony conviction for possession of drugs. However, Glass had numerous misdemeanor convictions that were not revealed.

It is reversible error when the prosecutor fails to comply with a timely discovery request, when the failure results in prejudice to appellant. Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991). The information must be disclosed in sufficient time to permit the defense beneficial use of the information. Henry v. State, 337 Ark 310, 989 S.W.2d 894 (1999). However, when the prosecutor fails to provide information, the burden is on the appellant to show that the omission was sufficient to undermine the confidence in the outcome of the trial. Lee v. State, 340 Ark. 504, 1 S.W.3d 553 (2000).

Here, there was clearly a discovery violation. Arkansas Rule of Criminal Procedure 17.1 requires the State to disclose "any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as [a witness] at any hearing or trial." Appellant's discovery request did not specify only felony convictions, and although prior misdemeanor convictions are generally inadmissible (unless they involve dishonesty or false statement) the prosecutor opened the door for the jury to be informed of Glass's misdemeanor convictions at the onset of his testimony when she remarked (during her direct examination of Glass) that he had "problems with the law," but only mentioned the felony conviction.

The seasoned prosecutor should have revealed, as requested, all criminal convictions. However, even if appellant had impeached Glass's limited "problems with the law" disclosure with his other misdemeanor convictions, it would not have undermined the confidence in the outcome of the trial. Glass's testimony relating to the manner in which the shooting occurred was found to be credible and corroborated by other evidence.

Affirmed.

Pittman and Jennings, JJ., agree.