Tereginald Wallace v. State of Arkansas

Annotate this Case
ar03-713

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

TEREGINALD WALLACE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-713

May 12, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR2002-1493]

HON. MARION ANDREW HUMPHREY,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Tereginald Wallace was convicted in a Pulaski County jury trial of first-degree murder for which he was sentenced to forty years' imprisonment in the Arkansas Department of Correction. On appeal, he raises five points, alleging that the trial judge abused his discretion in: 1) limiting the cross-examination of a prosecution witness concerning how the witness was allowed to plead down an unrelated charge from attempted murder to aggravated assault; 2) excluding videotapes showing possible routes from the alleged crime scene to Willow Beach Lake and the Arkansas River; 3) sustaining the State's objection to his question asked to his investigator regarding the investigator's opinion as to whether he could crawl through or over a fence; 4) denying his motion for a continuance to give him time to find a defense witness; and 5) denying his motion for a new trial based on an alleged failure to disclose exculpatory evidence. We affirm.

Wallace does not challenge the sufficiency of the evidence, so only a brief recitation of the facts is necessary. On March 30, 2002, the partially decomposed body of thirty-seven-year-old Lorenzo Petties was discovered in Willow Beach Lake, an oxbow lake near the Arkansas River. His hands and feet were bound by rope, and a cinder block "anchor" was lashed to him. A coat hanger was twisted around his neck. At trial, the State presented an eyewitness, Sam Thomas. Thomas claimed that one evening he came from a liquor store where he purchased drug paraphernalia and went behind a house on Townsend Street, where he prepared to smoke some crack. While he was there, he observed Wallace, along with Bryan Salley and Kevin Brown, arrive on the scene and subsequently beat and strangle Petties to death. Thomas stated that he was familiar with the victim from previous casual encounters and with Wallace because Wallace had previously sold him narcotics. Also admitted at trial was an audio cassette that Petties had made prior to his death in which he stated that Wallace had threatened to kill him and that he was "scared to death." The essence of Wallace's defense was that someone else killed Petties.

Wallace first argues that the trial court erred in denying him an opportunity to cross-examine Thomas about how Thomas pled a charge down from attempted murder to aggravated assault. He claims that cutting off his inquiry into the circumstances surrounding Thomas's 1994 plea agreement in which a charge of attempted murder was reduced to aggravated assault rose to the level of a "denial of confrontation." Wallace asserts that "Thomas manipulates the system and the people in it," and cutting off his cross-examination about how the case was pled down "cut to the heart of Thomas' credibility as a witness." He argues that if the jury heard that Thomas was once believed to have committed attempted murder of a police officer and the State pled it down, the testimony of Kenneth Jordan that Thomas admitted the murder to him "takes on a whole new light." We disagree.

It is well settled that matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. Ellison v. State, ___ Ark. ___, 123 S.W.3d 874 (2003). We find no abuse of discretion here. The State asserts, among other things, that we should refuse to reach the merits of Wallace's argument because he failed to proffer the evidence he sought to be admitted, and we agree. See Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). Wallace did not provide enough evidence of the circumstances surrounding Thomas's plea agreement for us to even begin to consider that his position is well taken. It is so well-settled as to be axiomatic that when challenging the exclusion of evidence, a party must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. Id.

From the record, we see that Wallace's counsel did little more than refer to the original charges and the charge that Thomas ultimately pled to. Without a proffer of the circumstances under which Thomas supposedly "manipulated" the police and prosecution into making this plea agreement, we are unable to fathom how Thomas, a homeless person, who admitted to being illiterate and addicted to crack, had accomplished this remarkable feat. More importantly, we are also unable to see how it would have influenced the outcome of Wallace's trial. Accordingly, we hold that, without the proffer, Wallace has failed to preserve his argument regarding the evidence he sought to admit.

However, even if Wallace had preserved this issue for appeal, we conclude that the trial judge did not err in excluding testimony concerning Thomas's attempted-murder charge. We hold that Wallace's attempt to use the attempted-murder charge was not permitted by our rules of evidence. Rule 609 of the Arkansas Rules of Evidence provides for the impeachment of a witness's credibility by proof of prior criminal convictions. Rule 608(b) governs the admissibility of credibility evidence consisting of specific instances of a witness's conduct other than conviction of a crime. It provides in part:

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 Rule609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Here, the trial court correctly found that Thomas could be impeached with his aggravated-assault conviction, but not the attempted murder charge. Green v. State, 59 Ark. App. 1, 953 S.W.2d 60 (1997). Wallace does not argue, nor could he, that attempted murder was conduct that is probative of untruthfulness. See id.

Finally, as far as Wallace's candid admission that at least one reason he wanted the testimony regarding Thomas's plea agreement to be admitted was his desire for the jury to hear that Thomas was once believed to have committed attempted murder of a police officer. We agree with Wallace's prediction that the excluded evidence may well have caused the testimony of Kenneth Jordan that Thomas admitted the murder to him to takes on "a whole new light." It is, however, the basis for yet another reason why we hold that the trial judge properly excluded the evidence. Rule 404 (b) of the Arkansas Rules of Evidence expressly provides that evidence of other crimes and wrongs are inadmissible if offered to prove the character of a person in order to show that he "acted in conformity therewith." Central to Wallace's defense was his effort to blame Petties's murder on Thomas. We find no abuse of discretion in excluding this evidence because it was intended to establish Thomas's character as a murderer, solely for the purpose of bolstering Jordan's testimony that Thomas's actions were consistent with those of a murderer.

Wallace next argues that the trial court erred in excluding videotapes of the possible routes to Willow Beach Lake and the Arkansas River. The State had objected to the introduction of the tapes pursuant to Rule 403 of the Arkansas Rules of Evidence as a "waste of time." Wallace asserts that these tapes would challenge the credibility of Thomas's testimony that the murder took place at 700 Townsend Street and that Petties's body was transported in the bed of a pickup truck owned by Wallace's accomplice Brian Salley. Wallace contends that because the tapes purported to show that the routes were heavily traveled streets, "anybody in a truck or SUV" could look down into and see the tied up dead body in the truck, and therefore, it made it more likely that Petties was killed at Willow Beach Lake. For this reason, he argues, the videos were relevant, and it was error for the trial court not to admit them into evidence. Wallace, however, concedes that the trial judge did admit testimony about the routes.

Admission of photographic evidence rests within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). Rule 403 of the Arkansas Rules of Evidence provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." We find no abuse of discretion here because, as Wallace himself acknowledges, detailed testimony concerning the possible routes from the murder scene to Willow Beach Lake was admitted into evidence. Accordingly, we hold that there is no abuse of discretion here because the excluded evidence was merely cumulative to other proof admitted at trial. Lenoir v. State, supra.

For his third point, Wallace argues that the trial court abused its discretion in sustaining the State's objection to his counsel's question to his investigator regarding whether a fence behind the house where the murder was allegedly committed could be "crawled through or over." Wallace contends that the expected response would tend to show that Thomas's testimony was not believable. Arguing further, he asserts that the State's entire case "hinged" on Thomas's testimony, and therefore the question was relevant because it showed that Thomas's testimony was not accurate. This argument fails to persuade.

In the first place, Wallace has failed to proffer his investigator's testimony, and for that reason alone, we could affirm. Thomas v. State, supra. Secondly, however, we find that it was not error for the trial judge to exclude the testimony. It is not an abuse of discretion to exclude collateral evidence offered solely for impeachment. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997). As we noted in Teas v. State, 23 Ark. App. 154, 744 S.W.2d 739 (1988):

Our rules of evidence provide the methods by which the credibility of a witness may be impeached. Rule 608 provides that one may be impeached by opinion or reputation evidence as to character for truthfulness or cross-examined about specific instances of conduct which bear on that issue. Rule 609 permits impeachment by evidence of prior convictions of a felony or other crimes involving dishonesty. Rule 613 provides the conditions under which extrinsic evidence of prior inconsistent statements of a witness may be introduced for purposes of impeachment. Rule 806 governs impeachment of the credibility of the declarant of an out-of-court statement which is admitted through another witness as an exception to the hearsay rule. None of these rules, however, permit impeachment by extrinsic evidence on a collateral matter. It is well settled that, when a witness is cross-examined on a matter collateral to the issue being tried, his answer cannot be contradicted by the party putting the question. This rule applies only to questions put on cross-examination and does not apply to answers to questions asked on direct examination. The test in determining whether the issue is a collateral one is whether the cross-examining party is entitled to prove the issue as part of his case.

As Wallace points out in his brief, his defense was one of "denial." Accordingly, his case by necessity would involve some evidence that would tend to identify some other perpetrator, as discussed in Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), or at least tend to make his participation in the crime unlikely by, for instance, asserting that he had an alibi. The question is not whether Thomas could have "crossed" the fence, but rather the crossing of the fence instead related to Thomas's ability to witness the killing while remaining undetected by the assailants, and therefore was purely a collateral matter. We hold that the trial judge's ruling was not an abuse of discretion.

Some additional facts are necessary for an understanding of Wallace's fourth and fifth points. On April 4, 2002, police questioned Thomas about the murder. Thomas implicated Wallace, Salley, and Brown, who were subsequently arrested and charged with the murder. During the interview, Thomas also stated that he had told someone named "Tatum" about what he saw and that he had gotten a ride that night from someone named "Big Six." Wallace's defense counsel claimed that Wallace told him that Tatum was Demetrius Spencer and that Big Six was Kenneth Jordan. Jordan was found in the same cell block as Wallace in the Pulaski County Jail, where he was being held on an aggravated-robbery charge. Ultimately, Jordan would testify in Wallace's case that during the early days of April 2002, he was riding around with Thomas smoking crack. According to Jordan, Thomas told him that he and Petties were "getting high in Salley's truck and he got to tripping and I grabbed the push-wire and I wrapped it around his neck." However, he immediately told Thomas that he did not want to hear any further details and that, because they had used up their supply of narcotics, he "got rid" of Thomas.

Demetrius Spencer was not located prior to trial. Wallace moved unsuccessfully for a continuance on September 3, 2002, and again on September 11, 2002. In both motions, Wallace argued that he needed additional time to prepare his case. Significantly, neither motion specifically mentioned Spencer or the evidence that he might be able to provide. The motions were denied, and the case proceeded to trial.

During the early afternoon on the first day of trial, September 17, 2002, Spencer was shot in the chest. At the hospital the next morning, he gave a statement in which he denied that Thomas ever came to him and told him about the murder. He also claimed that someone named "Blue Boy" told him that Thomas had told him where Petties's body was located.

The trial ended on September 19, 2002, and the judgment and commitment order was entered ten days later. Wallace's trial counsel subsequently learned of Spencer's statement. He moved for a new trial on October 28, 2002, alleging that the failure to disclose Spencer's statement constituted a Brady violation. The trial court denied the motion, and Wallace filed his appeal.

For his fourth point, Wallace argues that the trial court erred in denying his motion for a continuance to find Demetrius Spencer. He claims that he worked diligently to find witnesses to corroborate Jordan's testimony and to find Spencer. With apparent perfect hindsight, Wallace argues that Spencer's second statement "directly contradicts" Thomas's statement to police that he had talked to "Tatum," which he asserts is "clearly exculpatory" because it undermines Thomas's credibility. In a similar vein, he notes that it was likely that Spencer would be located because "the proof was in the pudding" because he was found a few days later. Finally, he excuses himself for failing to present an affidavit concerning what facts Spencer's testimony would prove because he was unable to locate Spencer, which made the execution of such an affidavit "impossible." This argument is unpersuasive.

The decision to grant or deny a continuance is within the sound discretion of the trial court, and the decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Green v. State, ___ Ark. ___, 118 S.W.3d 563 (2003). A trial court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. Ark. R. Crim. P. 27.3 (2003). When deciding whether a continuance should be granted, the following factors are to be considered by the trial court: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). Additionally, the appellant must show prejudice from the denial of the continuance, and when a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances; the burden of showing prejudice is on the appellant. See Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).

Contrary to his representations in his brief, if Wallace was indeed specifically searching for Spencer, he did not choose to make the trial court aware of that fact. Indeed, his motion of September 11, 2002, by far the more specific of the two, only spoke in terms of "trying to find ways to corroborate" Jordan's testimony. It also states, "In the days remaining before trial, the defense probably will be unable to marshal additional corroboration, but we are trying." Thus as far as diligence is concerned, we have only the bald assertion from Wallace's trial counsel that he was "trying" to find other unspecified evidence. We do not find an abuse of discretion where the trial court failed to sanction an open-ended fishing expedition. See Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). The fact that Wallace did not identify a target witness or any other specific evidence similarly precluded a finding of its probable effect of the testimony at trial, at the time the motion was argued. The fact that Spencer ultimately surfaced and provided evidence that Wallace believes would have been useful is of no moment. Wallace also did not inform the court of the likelihood of procuring the attendance of a corroborating witness at the time the motion was argued. His claim that the "proof was in the pudding" is no more persuasive relative to this element; it is manifest that Wallace had no idea that any other witness could be found. Finally, Wallace failed to file an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. We therefore find no abuse of discretion in refusing to grant a continuance. See Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998).

For his final point, Wallace argues that the denial of his motion for a new trial on the grounds of an alleged "Brady/Kyles/Strickler"1 violation was constitutional error. Wallace contends that Spencer was an important witness because his statement directly contradicted Thomas's claim that Thomas told him about the murder. He refers to it as "classic impeachment material," and he contends that the "net result" of Spencer's statement, "if it were believed by the jury," is that Thomas "essentially" lied to the police about admitting to him that he saw the murder. Further, Wallace asserts that Spencer gave the name of another person, "Blue Boy" who told him that Thomas knew where the body was.

Whenever a motion for new trial is based upon a matter that requires evaluation of the fairness and impartiality of the trial or its ultimate result because of that ground, we have uniformly held that a wide latitude of discretion must be accorded the trial judge and that we will not reverse his action unless there has been an abuse of that discretion resulting in a miscarriage of justice. Murchison v. State, 249 Ark. 861, 462 S.W.2d 853 (1971). The allowance of this discretion rests upon the superior opportunity of the trial judge to observe the effects of the particular factor to prejudice a defendant's right to a fair trial in the light of the circumstances, viewing the trial as a whole. Id.

The Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." In Strickler v. Greene, 527 U.S. 263 (1999), the Court noted that the duty to disclose evidence is applicable even though there has been no request by the accused, and the duty encompasses impeachment evidence as well as exculpatory evidence. The standard for disclosure of such evidence is "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. Moreover, the rule encompasses evidence "known only to police investigators and not to the prosecutor, " which imposed upon the State "a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Id. The Strickler Court imposed a three-element test for finding a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

We first note that the State contends that Wallace did not even conclusively establish that Tatum was Spencer. Our review of the record has convinced us that this contention is not without merit. In Thomas's statement to police, which Wallace contends is the basis for Spencer's impeachment testimony, Thomas makes it quite clear that he told an individual named "Tatum" abou the murder2. However, in Spencer's September 18, 2002, statement to

police, Spencer made it abundantly clear that his street name was "Tator" not "Tatum.3" We note as well that even though Spencer denied being told of the murder by Thomas, he did claim to get information from "Blue Boy." The record does not disclose what Blue Boy's real name is. It is possible that Blue Boy's real name could be Tatum, in which case, the basis for impeachment that Wallace asserts would simply not exist. Because Wallace had the burden of proving a Brady violation, this ambiguity cannot inure to his benefit either at the trial court level, or here on appeal. However, we need not dispose of this case on this issue alone.

Assuming that Spencer is Tatum, we agree that Spencer's testimony is favorable to Wallace and that it was not made available to him in time to use at trial. However, we are unable to find that Wallace was prejudiced based on the facts as presented in this case. In Lee v. State, 340 Ark. 504, 511, 11 S.W.3d 553 (2000), our supreme court noted that prejudice can be demonstrated when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. We do not believe that Wallace met that burden.

In the first place, we are unable to find admissible any of the evidence that Wallace would glean from Spencer's testimony. In Harrell v. State, 331 Ark. 232, 962 S.W.2d 325 (1998), the supreme court held that no prejudice could be proven where the evidence cited by an appellant in an alleged Brady violation would not have been admissible to impeach the credibility of a witness for the State. In the instant case, while it is true that Spencer's statement seemed to contradict Thomas's statement to police that Thomas had told Spencer about the murder, it was clearly, as presented and argued in this case, a collateral matter, and therefore not admissible for cross-examination. See White v. State, supra; Teas v. State, supra. We are not unmindful that impeachment evidence has been the basis for reversal as a result of a Brady violation. See, e.g., Farmer v. State, 54 Ark. App. 66, 923 S.W.2d 876 (1996)(holding that the State's failure to disclose the fact that an investigating officer had been forced to resign because he had filed a false police report). However, we are aware of no cases where a retrial has been required where the newly discovered evidence has not been admissible under our rules of evidence. Moreover, the supreme court has held that testimony which tends only to impeach other testimony is not grounds for a new trial for newly discovered evidence. Murchison v. State, supra. Furthermore, even if the evidence were admissible, we think the instant case is analogous to Smith v. State, ___ Ark. ___, 118 S.W.3d 542 (2003), where the supreme court held that evidence that would be useful only to raise minor defects in a witness's testimony would not be sufficient to create a reasonable probability that the results of the proceeding would have been different. Here, Wallace's impeachment evidence, i.e., that Thomas had related some information about the murder to Blue Boy rather than Spencer, is such a minor detail that we do not believe that it could have given rise to a reasonable probability that the result of the trial would have been different.

The balance of Spencer's potential testimony concerned admissions that Thomas allegedly made to Blue Boy. We acknowledge that had Blue Boy been able to testify as to such admissions, they would have been admissible as a statement against penal interest. Ark. R. Evid. 804(b)(3). However, Blue Boy's alleged statement to Spencer, which only concerned Thomas, was not subject to the statement-against-interest exception. Lawrence v. State, 81 Ark. App. 390, 104 S.W.3d 393 (2003). Accordingly, we cannot conclude that Spencer's testimony would have had any effect on the outcome of the trial, much less that there was a reasonable probability that the outcome would have been different. We therefore hold that the trial judge did not abuse his discretion in denying Wallace's motion for a new trial.

Affirmed.

Vaught and Baker, JJ., agree.

1 Wallace is referring to the duty to disclose exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whiley, 514 U.S. 419 (1995); and Strickler v. Greene, 527 U.S. 263 (1999).

2 WHITE: You tell anybody what happened?

THOMAS: I told one dude about it, he - he got scared and goes man - you be quiet about it.

WHITE: Who was that you were talking to?

THOMAS: Uh - dude named Tatum.

WHITE: Dude named who?

THOMAS: Tatum.

MOORE: Tater?

WHITE: Tater?

THOMAS: Tatum.

WHITE: Tatum.

THOMAS: Yeah.

3 COCKRELL: You go by Tator?

SPENCER: Yeah.

COCKRELL: You go by Tator? :

SPENCER: Yeah.

COCKRELL: Tator or Tatum?

SPENCER: Tator.

COCKRELL: Taylor.

SPENCER: Tator.

COCKRELL: How do you spell that?

SPENCER: T-A-T-O-R