Brunson Roberts v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

BRUNSON ROBERTS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-614

MARCH 3, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

FIFTH DIVISION

NO. CR02-4433,

HON. WILLARD PROCTOR JR,

JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Brunson Roberts was tried before a Pulaski County jury on February 13, 2003, on three counts of failure to appear. He was found guilty on all three counts and was sentenced as a habitual offender to consecutive terms of imprisonment totaling nine years. He raises one point for reversal, arguing that the trial court erred in denying his hearsay objection to the introduction of a transcript from a prior court proceeding. Although we agree that the trial court erred in denying the hearsay objection, we hold that the error was harmless. Therefore, we affirm the convictions.1

A person commits the offense of failure to appear if he fails to appear in court, without reasonable excuse, subsequent to having been lawfully set at liberty upon the condition that he appear at a specified time, place, and court. Ark. Code Ann. § 5-54-120(a)(2) (Repl. 1997). It is the defendant's obligation to establish to the satisfaction of the jury that he had a reasonable excuse for his failure to appear. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987) (stating that the commentary to Ark. Stat. Ann. 41-2820 (Repl. 1977), the predecessor of our current statute, indicates that "reasonable excuse" is a defense).

In the present case, the State presented evidence that appellant failed to appear in court for three proceedings: a jury trial that was scheduled for September 5, 2002, on drug-related charges and two omnibus hearings that were scheduled for September 17, 2002. Joe Barazza, a deputy clerk for the Pulaski County Circuit Court, testified that appellant was out on bond and was absent from the three proceedings. Barazza testified as to dates and times scheduled for these appearances, and as to the notices received by appellant providing him with such information. On cross and re-cross examination, defense counsel questioned Barazza in such a way as to suggest that appellant's failure to appear might have been attributable to mistake or confusion, given the number of appearances that he was required to make.

Richard Day, a bailiff for the circuit court, also testified that appellant did not appear in court for the jury trial on September 5, 2002. Day testified that he stepped out into the hallway and sounded appellant's name two or three times on that date, but that there was no answer. At the completion of Day's testimony, the State sought to introduce a transcript of the September 5 proceeding. The transcript shows that appellant did not appear and did not answer when the case was called or when the bailiff sounded the hall. Also included in the transcript are statements of appellant's then-attorney, Ms. Free,2 informing the court that she had spoken with appellant the day before and that he was aware of the trial date.

Appellant objected to the admission of the transcript on hearsay grounds. Appellant's arguments to the trial court included the following:

[W]ithout Ms. Free here, I'm not sure that I would-- I'm not sure that it wouldn't violate some right to cross-examination to see if that-- because I need to be able to verify that she really did talk to him the day before she testified to that in court, but she was not under oath.

The State responded that Ms. Free's statements were reliable because, as statements by an officer of the court, they were equivalent to statements made under oath; and that the evidence, at the very least, fell within the "catch-all" exception to the prohibition against use of hearsay as evidence. The trial court overruled appellant's objection on the basis that the transcript was admissible under the "catch-all" exception to the hearsay rule.

Arkansas Rule of Evidence 801(c) (2003) provides that hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 803, entitled Hearsay exceptions-- Availability of declarant immaterial, includes the following residual exception:

(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Ark. R. Evid 803(24) (2003).

On appeal the State contends that the trial court did not abuse its discretion in admitting the transcript of the prior court proceeding under the residual hearsay exception. Alternatively, the State argues that Ms. Free's statements were not hearsay because she was acting as appellant's agent when she offered the statements. Should we determine that admission of the statement was error, the State contends that reversal is not warranted because any error was harmless.

We agree with appellant that Ms. Free's statements do not fall within the residual exception to hearsay. The State failed to show that it, through reasonable efforts, could not have procured Ms. Free's presence as a witness. Furthermore, there is no showing in the record before us that the State, as the proponent of Ms. Free's statement, fulfilled the requirements of the rule that appellant be informed of the statements and of the State's intention to offer them sufficiently in advance to provide appellant a fair opportunity to prepare to meet them. We hold that admission of the evidence was improper under Ark. R. Evid. 803(24)(ii).

Arkansas Rule of Evidence 801(d) states, in pertinent part, that a statement is not hearsay if it is offered against a party and is a statement by a person authorized by him to make a statement concerning the subject, or a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship. Ark. R. Evid. 801(d)(2)(iii) and (iv). We do not agree that Ms. Free's statement was properly admitted under Ark. R. Evid. 801(d). Although Ms. Free had been appointed by the court to defend appellant on the drug charges scheduled for trial on September 5, 2002, her agency relationship with appellant arising out of that appointment was unrelated to the failure-to-appear charges that were subsequently lodged against him. Ms. Free's statements at the proceeding of September 5, informing the court that appellant was aware of the September 5 trial date, were made outside the scope of her agency or employment relating to her representation of appellant on drug charges at the September 5 proceeding. Thus, the transcript of her September 5 statements was hearsay and could not be offered against appellant as "a statement by his agent or servant concerning a matter within the scope of his agency or employment."

Finding the statement inadmissible, however, does not conclude our analysis: an evidentiary error may be declared harmless if the error is slight and the remaining evidence of a defendant's guilt is overwhelming. See Lewis v. State, 74 Ark. App. 61, 48 S.W.3d 535 (2001). We agree with the State's final alternative argument that any error in the admission of counsel's September 5 statements to the court was harmless, and we affirm on this basis. We will not reverse when evidence of guilt is overwhelming but an evidentiary error is slight. E.g., id. There was testimony by Deputy Circuit Clerk Barazza and Bailiff Day that appellant was on bond on September 5, 2002, and that he was not present when his case was called nor when the bailiff sounded the hall. Additionally, the State's supplemental addendum shows appellant's signature on a written notice ordering him to appear before the Pulaski County Circuit Court for jury trial on September 5, 2002; this notice also shows that appellant was on bond at the pertinent time. As we have already noted, the existence of a reasonable excuse for failing to appear is an affirmative defense, the burden of which was on the appellant to prove. Payne, supra. In the face of the overwhelming evidence of appellant's guilt of failure to appear and because the evidentiary error was slight, we affirm the convictions.

Affirmed.

Griffen, J., agrees.

Crabtree, J., concurs.

Terry Crabtree, Judge, concurring. I am in agreement with the decision to affirm appellant's convictions but not on the basis of harmless error. It is my firm belief that the trial court did not abuse its discretion in allowing the admission of the transcript because the statements made by appellant's attorney clearly qualified as an admission by a party opponent.

The appellant was scheduled to be in court on September 5, 2002, for a jury trial on drug-related charges. The court, the prosecution, and appellant's attorney were in attendance at the appointed hour, but appellant was not. After sounding the halls without success, the court inquired of appellant's attorney as to whether she had been in contact with the appellant, her client. She replied that she had spoken with him the previous day. The court then inquired, "So he was aware that trial was today?" The attorney responded, "Yes, sir." At the instant trial on charges of failure to appear, the State sought to introduce the transcript of this colloquy to rebut the suggestion made by appellant's counsel in its cross-examination that appellant's failure to appear on the relevant dates could be excused because of mistake or confusion about the times he was required to appear in court. The trial court permitted the introduction of the transcript over appellant's hearsay objection.

At issue in this appeal is appellant's contention that the transcript constituted hearsay. The State posits that the statements made by appellant's counsel were not hearsay pursuant to Ark. R. Evid. 801(d)(2)(iv). The State's argument is well-taken.

Rule 801 provides:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if:

(2) Admission By Party-opponent. The statement is offered against a party and is (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.

Our supreme court has observed in reference to this rule that:

The range of statements admissible under the agency standard was broadened considerably by this rule which is a verbatim adoption of the Federal Rules of Evidence, rule 801(d)(2)(D), 28 U.S.C.A. `Once agency, and the making of the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.' Wenstein's Evidence 801(d)(2)(D) [01], p. 162 ... The rule insures the trustworthiness and reliability of the admission by providing that such statements are admissible only if made during the existence of the relationship.

Houston Gen. Ins. Co. v. Ark. La. Gas Co., 267 Ark. 544, 546, 592 S.W.2d 445, 446-47 (1980). The court has further held that it is not necessary that an agent be authorized by his principal to make the statement. Mo. Pac. R.R. Co. v. Ark. Sheriff's Boys' Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983).

Statements made by a party's attorney can fall within the parameters of this rule. See, e.g., United States v. Margiotta, 662 F.2d 131 (2nd Cir. 1981); Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 519 A.2d 1166 (Vt. 1986); Edwards v. Texas Employment Commission, 936 S.W.2d 462 (Tex. App. 1997).

As applied here, the statements were made by appellant's attorney who was present in court to represent appellant in a jury trial. The statements were made by the attorney, standing before the bench, in response to direct questions posed by the court concerning appellant's absence from the proceedings. It is without question that the attorney was acting as appellant's agent at the time and place the statements were made. Without a doubt, the statements were inextricably tied to counsel's representation of appellant and obviously concerned a matter within the scope of the agency, to wit, the whereabouts of the appellant, her client, who was supposed to be in court. It is inconceivable to me how anyone could conclude that the statements made by the attorney do not meet the requirements of the rule.

Because the statements were not hearsay, there was no abuse of discretion by the trial court. Although the court permitted the introduction of the transcript under a different rule, we affirm rulings made by a trial court if it reached the right result, even though it may be for a different reason. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002).3

1 Appellant requests that this court reverse his three failure-to-appear convictions. As the State notes, however, the claim of error relates to only one of the three counts, and no claim of error is made with respect to the other two counts.

2 Ms. Free was not the same attorney who represented appellant at the trial from which the present appeal is taken.

3 It may also be that the transcript was properly admitted, even if one considered the evidence inadmissible. The prosecution is allowed to "fight fire with fire" and introduce otherwise inadmissible evidence when a defendant opens the door to do so with an untruthful statement. See Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). In his cross-examination, appellant's counsel created the false impression that appellant was confused about his trial dates. The transcript was thus admissible to rebut that assertion with regard to the September 5 trial date.