Michael Jackson, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION III

MICHAEL JACKSON, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-383

April 16, 2003

APPEAL FROM THE CLARK COUNTY CIRCUIT COURT

[NO. CR-2001-182]

HON. JOHN ALEXANDER THOMAS,

JUDGE

AFFIRMED

A Clark County jury found Michael Jackson, Jr., guilty of manufacturing a controlled substance and delivery of a controlled substance. He was sentenced to twenty-three years' imprisonment with a $2,000 fine and twenty years' imprisonment with a $1,000 fine, respectively. The trial judge ordered those sentences to run consecutively. Appellant does not challenge the sufficiency of the evidence convicting him. Instead, his sole argument on appeal is that the trial court committed reversible error by excluding mitigating evidence from the jury. We disagree and affirm.

Pastor Billy Sanders testified that he had met appellant while visiting his grandson in prison and had begun counseling appellant over the previous month. He stated that he had some experience dealing with people who are addicted to alcohol but not other drugs. Defense counsel asked Pastor Sanders how he felt when he started realizing the

discrepancies in how the system dealt with alcoholics as opposed to people like appellant and his grandson, who are addicted to other drugs. The prosecutor objected to the question on the basis of relevancy, and the trial court sustained the objection.

Michael Penetti, a public information officer for the twelve-step narcotics program in Hot Springs, testified that he had suffered with addiction himself for twenty-five years. The prosecutor objected to his testimony as irrelevant in that the jury was not there to talk about Penetti's addiction. The trial court sustained the State's objection.

Penetti also testified that appellant was not a "great big dealer" but was only supporting his habit. The prosecutor objected on the grounds that Penetti was not an expert. Defense counsel argued that Penetti was a "lay expert" in addiction. The prosecutor contended that Penetti's testimony was not relevant unless he had actual knowledge of appellant's case and that Penetti was speaking in general terms. The prosecutor added that Penetti could not talk about rehabilitation because it was not an option for the jury to consider. The trial court sustained the State's objection on the last basis and agreed that Penetti could not speak in general terms.

Penetti stated that an addict will suffer some physical ideations of drugs while going through detoxification during the first ninety days, including dreaming of using drugs, being unable to sleep, and having certain fears. Penetti was interrupted by the State's renewal of its previous objection, and the trial court sustained the objection. Penetti then stated that appellant himself was experiencing those things and began to say that appellant seemed tobe "the typical addict wanting . . ." when the prosecutor again objected on the basis that Penetti was not qualified to comment. The court sustained the objection.

Defense counsel asked Penetti whether drug addiction was solely a problem for "lower-class poor society." The State objected, arguing that Penetti was not a qualified expert. The trial court again sustained the State's objection. Defense counsel then asked Penetti about the key to successful drug rehabilitation, and the State objected on the same basis. The court sustained the objection. Penetti was asked whether addicts were essentially powerless without the twelve-step program, and the State's objection was sustained.

On cross-examination, Penetti stated that he had no formal training or education related to the twelve-step program other than life experience. He testified that he had been doing his job for one year and that he had first spoken to appellant the morning of trial.

On redirect-examination, defense counsel asked, "From your experience, if someone was a daily or near daily user of methamphetamine, would it be surprising to you at all that he would seek to find some way [to obtain drugs] within two weeks of his incarceration?" The State objected on the basis that Penetti was not qualified to answer, and the court sustained the objection. When defense counsel pressed the issue, arguing that Penetti was being asked to answer the question based on his own personal experience, the State objected that Penetti was making a generalization. The trial court sustained the objection.

Appellant argues on appeal that the above testimony was permissible pursuant to Ark. Code Ann. § 16-97-103(5) (Supp. 2001), which provides that "evidence relevant to sentencing by either the court or a jury may include, but is not limited to ... relevant characterevidence." According to Ark. R. Evid. 401, "relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Appellant argues that Penetti's life experience in overcoming a drug addiction and his association with his program since 1998 qualified him to answer the questions. We, however, fail to see the relevance. Appellant makes no specific argument as to why Sanders's testimony was relevant but argues, generally, that the jury should have been provided with as much information as possible in making its sentencing decision. We agree with appellant's general argument, but the information Sanders would have provided was not relevant.

Appellant also argues that the trial court erred in not allowing the jury to see the sentencing guidelines as well as the departure report. He relies on Ark. Code Ann. § 16-97-103(6) (Supp. 2001), which provides that evidence of aggravating and mitigating evidence is relevant to sentencing and that the criteria for departure from the sentencing standards may serve as examples of this type of evidence. The presumptive sentencing standards and departures from such do not apply when a jury has recommended a sentence to the trial judge. See Ark. Code Ann. §§ 16-90-803(b)(4) (Supp. 2001) and 16-90-804(e) (Supp. 2001). Moreover, our supreme court has held that the sentencing guidelines do not burden the fundamental right to a jury trial because the statutory minimum and maximum ranges for a sentence always override the presumptive sentences. Pickett v. State, 321 Ark. 224, 902 S.W.2d 208 (1995). That court also pointed out that the presumptive standards do not apply to sentences recommended by a jury. See id. Here, the jury recommended sentences foreach offense that were within the statutory range of punishment. Accordingly, there was no error because the presumptive sentencing standards and the departures from those presumptive standards did not apply under these circumstances.

Affirmed.

Neal and Baker, jj., agree.