Aaron Phillips v. State of Arkansas

ar02-550

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION II

AARON PHILLIPS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-550

FEBRUARY 19, 2003

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT

[NO. CR 2000-347]

HONORABLE LANCE LAMAR

HANSHAW, JUDGE

REVERSED AND REMANDED

Appellant Aaron Phillips was convicted by a jury in Lonoke County Circuit Court of resisting apprehension, aggravated assault, and fleeing. Appellant makes four arguments on appeal: (1) that there was insufficient evidence to support his conviction for fleeing; (2) that the trial judge erred when he denied appellant's motion to strike the jury pool because it lacked any African-Americans; (3) that the trial judge abused his discretion when he overruled appellant's objection to introduction of irrelevant and prejudicial evidence about a gun found in his residence; and (4) that the trial judge abused his discretion when he overruled appellant's objection to a crime laboratory report being introduced into evidence as impeachment of appellant's credibility. Appellant's fourth point on appeal has merit. We reverse and remand for a new trial because the trial court abused its discretion in allowing the State to introduce the lab report.

For double jeopardy reasons, we first consider appellant's claim that there was insufficient evidence to support his conviction. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). We disregard any alleged trial errors in determining the sufficiency question, because to do otherwise would result in avoidance of the sufficiency argument by remanding for retrial on other grounds. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). Appellant was convicted of fleeing. Arkansas Code Annotated section 5-54-125(a) and (d) (Repl. 1997) define the crime as charged in this case:

(a) If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance.

(d) Fleeing by means of any vehicle or conveyance shall be considered a Class A misdemeanor.

(1) Fleeing by means of any vehicle or conveyance shall be considered a Class D felony if, under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle or conveyance in such a manner that creates a substantial danger of death or serious physical injury to another person or persons.

Appellant challenged the sufficiency of the evidence by moving for a directed verdict at the close of the State's evidence. In that motion, appellant argued that the State failed to prove (1) that the arresting officer was a duly authorized law enforcement officer or (2) that appellant's fleeing created a substantial danger of death or serious injury, manifesting extreme indifference to the value of human life.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Johnson v. State, 326Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001); Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000); Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). Further, this court will not second-guess credibility determinations made by the fact finder. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996).

We examine the relevant evidence presented to the jury regarding this alleged crime. The arresting officer, Officer Branch, testified that he was on duty as an England police officer on the night of July 5, 2002, when he responded to a disturbance call in the wee-hours of the night. He drove his patrol unit to the residence, walked up to appellant's vehicle, encountered appellant, and asked to talk to him. Appellant responded by cursing at the officer and driving away. Branch said that appellant's car brushed him as he drove past. Branch followed behind in pursuit with the patrol unit's lights and siren activated. Branch estimated appellant's speed to be around sixty miles per hour and said that appellant did not stop at any stop signs. Branch believed the speed limit to be thirty-five miles per hour. Branch said that he did stop the patrol unit at stop signs and had to drive fast to catch up in between. When appellant arrived at his house, he ran from Branch and the off-duty officer riding with Branch that night. Appellant eventually fell down, and Branch saw a silver revolver on appellant. Appellant then ran toward the house, turned and pointed the gun at the officers, and was shot with four rounds fired by Branch. The chase ended when appellant was apprehended inside the house.

In appellant's testimony, he said that he knew that Branch was a police officer who wanted to talk to him, but appellant fled because he believed he was being harassed. Appellant admitted that he had smoked marijuana cigars that night but said that his memory of the events was clear. A crime laboratory report demonstrated that appellant also had PCP in his blood system at the time.

Appellant's argument that the State failed to prove the officer's qualifications and certification to the jury is untenable. Appellant himself believed that Branch was an officer trying to talk to and eventually apprehend him. See Dillard v. State, 260 Ark. 743, 543 S.W.2d 925 (1976) (holding that Dillard's own testimony that he presumed that Hutcheson was an officer at the time Hutcheson got out of an automobile occupied by the sheriff and a deputy, whom Dillard knew and recognized, "certainly eliminated any question of fact as to appellant's having reasonable grounds to believe that Hutcheson was an officer of the law").

Appellant's alternate contention is that the State failed to prove that his flight from Branch manifested extreme indifference to the value of human life because his driving away did not create a substantial danger of death or serious physical injury. We disagree. Appellant points out the undisputed facts that the fleeing was not long-lasting because he drove to his house less than a mile away from where he was originally approached, and the chase occurred in the middle of the night such that the streets in England were not busy. However, the evidence, viewed in the light most favorable to the State, supported a finding that appellant had smoked marijuana that night, he made contact with his vehicle to Officer Branch's body when he sped away, his speed reached sixty miles per hour in this residential neighborhood, which approaches twice the speed limit in that area, and appellant did not stop at any stop signs.

In Weeks v. State, 64 Ark. App. 1, 977 S.W.2d 241 (1998), we held that the evidence was sufficient to support Weeks's conviction of felony fleeing by means of vehicle in light of evidence that Weeks's vehicle exceeded the speed limit by fifty miles per hour, passed vehicles on the left of a double yellow line, and entered a parking lot at an estimated eighty miles per hour. We decided that the situation in Weeks created a substantial danger of death or serious physical injury to others, under circumstances manifesting extreme indifference. While the present situation is not as egregious as that found in Weeks, we hold that Phillips exhibited similar disregard for safety, given that he brushed the officer's body with the car, he drove at high speed, he failed to heed stop signs, and he drove after ingesting drugs. Afact question was presented as to appellant's actions and the intent behind them. Sufficient evidence supports his conviction for felony fleeing.

We consider appellant's remaining arguments on appeal because these issues are likely to arise on retrial. See, e.g., Maxwell v. State, 73 Ark. App. 45, 41 S.W.3d 402 (2001). Prior to trial, appellant objected to the jury pool that had been selected because it contained no members of African-American descent. The trial judge explained that the jury pool was selected at random from motor/voter registration lists and that African-Americans comprised approximately seven percent of Lonoke County. The judge commented that the other jury pool set to hear future trials had a black person on it but that it just so happened that the current pool did not. The trial judge concluded by saying that the random nature of the draw of potential jurors prevented the trial judge, the prosecutor, or defense counsel from having any control over the names summoned for jury duty. Appellant contends that these comments support his argument that this panel should have been dismissed and another empaneled. We disagree with appellant's argument on appeal that a new trial should occur because there were no black persons in the jury pool.

Selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996). The procedure for using voter registration lists for the selection of jurors is found in Ark. Code Ann. § 16-32-103 (1987). Those excluded from service are persons not registered to vote. Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989). Use of voter registration lists as asource for selecting jury pools does not violate the constitutional right to a jury produced from a cross-section of the community. See Richardson v. Williams, 327 Ark. 156, 936 S.W.2d 752 (1997). For a juror selection process to violate the "fair cross-section" requirement of the Sixth Amendment, which has been made applicable to the states through the Fourteenth Amendment, it must result in exclusion of a distinctive group. Duren v. Missouri, 439 U.S. 357 (1979). This does not mean that each jury must have on it persons representative of each distinctive group in the population from which it is chosen. See Taylor v. Louisiana, 419 U.S. 522 (1975); Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977).

In order to establish a prima facie case of deliberate or systematic exclusion, a defendant must prove that: (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this under-representation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357 (1979). The fact that there were no black persons on the panel from which the jury in this case was selected does not mean the jury was selected in a way which would not result in a fair cross-section. Mitchell, supra; see also Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); MacKintrush v. State, 334 Ark. 390, 405, 978 S.W.2d 293, 300 (1998).

Appellant's citation to Maxwell v. State, 217 Ark. 691, 232 S.W.2d 982 (1950), does not support his argument. Therein, the supreme court noted that in Mr. Maxwell's trial, itwas demonstrated that for more than a quarter of a century no African-Americans had been summoned for jury duty, hence the exclusion had been systematic for racial reasons and in derogation of the Fourteenth Amendment to the Federal Constitution. No such evidence was presented herein, and the trial judge found that the random jury venire selection was designed to prevent just such systematic exclusion by prosecutors, defense counsel, and the trial court.

Appellant next argues that the trial court abused its discretion by permitting State's witnesses to describe a revolver found in appellant's house after appellant had been apprehended. Appellant objected on the basis of relevancy, in that the arresting officer could not positively identify the revolver found in the house as the one that appellant had pointed at him. The officer was sure that appellant possessed a revolver that appeared to be chrome-plated under the street lights outside appellant's house, but the officer could not swear that the revolver later found inside the house in appellant's mother's bedroom was the same one because it appeared to be worn with a blue finish in normal light. The officer explained that the blue finish could have appeared silver under the lights outside when he saw it on appellant. The State responded that this was relevant to the charge of aggravated assault and that this was a matter left to the weight that the jury might or might not assign to the gun. The trial judge permitted the testimony.

The decision to admit or exclude evidence is within the sound discretion of the trial court. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). We will not reverse a trial court's evidentiary ruling absent an abuseof discretion. Id. Nor will we reverse absent a showing of prejudice. Id. 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. Ark. R. Evid. 401 (2002). A trial court's ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997).

We hold that the trial judge did not manifestly abuse his discretion. The State was not compelled to present the actual gun that appellant used, but the fact that a revolver was found inside the house where appellant retreated is relevant. The officer's candid admission that he could not positively identify the revolver as the same one pointed at him was a matter for the jury to consider as to the weight but not the admissibility. See Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

Appellant's last basis for reversal is the admission into evidence of a crime laboratory toxicology report that evidenced the presence of the drug PCP in appellant's blood at the time of these alleged crimes. This evidence came to light when during appellant's testimony, he denied having engaged in fleeing or brandishing a gun, and the State asked him if his recollection of the night was clear. Appellant said that he could recall the events of that night "exactly." Further cross-examination elicited an admission from appellant that he smoked a couple of hollowed out cigars full of marijuana that night. The State then asked if he used any other drugs that night, to which appellant responded "not that I know of." Upon further questioning, appellant said that he did not believe that he was intoxicated that night.

After appellant completed his defense, the State presented a rebuttal witness, a corporal with the state police. The State sought to admit through the corporal a certified toxicology report noting the presence of PCP in appellant's blood taken not long after his arrest. Appellant's counsel objected on the basis of relevancy and improper impeachment with extrinsic evidence. The State argued that it intended to attack appellant's credibility about whether he could remember clearly the events that night and whether he ingested any other drugs. The trial judge permitted the evidence, though prefacing it with the following instruction to the jury:

Now ladies and gentlemen of the jury, the next piece of evidence that you are about to hear, the Court is going to allow for a limited purpose. You may not consider this evidence as to the guilt or innocence of the defendant, or as to any effect that it may have had on the defendant. The only thing that you may consider this evidence for is for the purposes of credibility.

After the admission of this report, appellant's counsel cross-examined the corporal, asking whether he knew what the presence of less than .05 ug/ml of PCP meant, and the corporal said that he did not know.

Appellant challenges this ruling on the basis that this was a collateral matter and impeachment with impermissible extrinsic evidence. We agree. The general rule is that all relevant evidence is admissible. Ark. R. Evid. 402. The definition of relevant evidence is "any evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Ark. R. Evid. 401. A witness's credibility is always an issue, subject to attack by any party, and the scope of cross-examination extends to matters of credibility. Ark. R. Evid. 611. Nevertheless, these general rules are limited by Arkansas Rule of Evidence 608(b), which states that "specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence." Appellant correctly states that this is exactly what the trial court permitted the State to do.

The State argues to us that this was permissible evidence of bias1 and thus not collateral to the issues on trial. The credibility of a witness is always relevant, see Jones v. State, supra, and this case turned on credibility. However, we disagree that this extrinsic evidence was relevant to the issue of credibility at all, as was instructed to the jury.

Appellant answered the State's question of whether he had ingested any other drugs that night by saying "not that I know of." Proving that he had another drug in his system that night would not necessarily prove him dishonest with regard to that testimony. Nor did this lab report affect the jury's evaluation of whether appellant told the truth that he remembered the events of that night "exactly" because there was no evidence of what effect the ingestion of the amount of PCP found in his blood might be.

The only use for this evidence was to prove that appellant had committed a prior bad act, prohibited in these circumstances under Ark. R. Evid. 404(b). This Rule provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). If the evidence of a prior bad act is independently relevant to the main issue, rather than merely to prove that the defendant is a criminal, then the evidence of that conduct may be admissible with a cautionary instruction by the court. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998). The reasons stated to admit this evidence do not stand up under scrutiny, and the trial court abused its discretion in allowing this evidence to attack appellant's credibility.

Reversed and remanded.

Bird and Griffen, JJ., agree.

1 Bias (affecting credibility) is traditionally demonstrated in the cross-examination of the witness to be discredited. See, e.g., Jones v. State, 349 Ark. 331, 78 S.W.3d 104, 349 Ark. 331 (2002); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999).