Tami Thrailkill v. State of Arkansas

ar03-809

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR03-809

APRIL 28, 2004

TAMI THRAILKILL AN APPEAL FROM THE SCOTT

APPELLANT COUNTY CIRCUIT COURT [CR2002-71.C]

v.

STATE OF ARKANSAS HONORABLE PAUL EDWARD DANIELSON,

APPELLEE JUDGE

AFFIRMED

Olly Neal, Judge

In this criminal case appellant Tami Thrailkill was convicted of possession of drug paraphernalia with the intent to manufacture methamphetamine. She was sentenced to nine years' imprisonment. On appeal, she asserts that the trial court erred in admitting the out-of-court statement of witness Daniel Farris. We affirm.

On August 19, 2002, Scott County Deputy Sheriff Bobby Page received some information, which led to his encounter with appellant at an apartment in Waldron, Arkansas. When he arrived, he conversed with her and thereafter requested consent to search her vehicle. Appellant consented to the search, which yielded a plastic baggy containing a "white granular powdery substance," a can of acetone, one electric burner, and a gallon jug of distilled water. Thereafter, Page acquired the consent of the apartment owner, David Goldman, to search the residence. Found within the residence were liquid HEET, rubbing alcohol, coffee filters, hydrogen peroxide, 120 nasal decongestant tablets, and two plastic storage containers. Subsequently, appellant, Willie Thrailkill, and Daniel Farris were charged by information with possession of drug paraphernalia with intent to manufacture methamphetamine.

On appeal, appellant argues that Farris's statement did not fall within Ark. R. Evid.804(b)(3); Farris was not unavailable; and the State did not make a good-faith effort to procure Farris's testimony by process or other reasonable means. The State urges that the arguments are procedurally barred because appellant now appeals on grounds not raised to the trial court. We agree.

At appellant's trial in February of 2003, the State called Daniel Farris. Farris had already pleaded guilty and was sentenced to seven years. Outside the presence of the jury, Farris refused to testify, stating:

Witness: This morning, I was approached in my jail cell by Mr. John Riedel and the other man standing there. They cornered me in my jail cell coercing me that if I lied or if I did not cooperate with them they would see that my sentence, which is seven calendars to the door, would be given to the max to me. Therefore, at this time I'm going to make one statement, and I'm going to apply the Fifth Amendment of the Constitution of the United States. Yes, Tami Thrailkill was with me, but there has been a co-defendant, her ex-husband, and myself convicted on these charges. There's no sense in taking Tami down with us. She has been doing good from my understanding. She has been going to AA/NA classes, and at that point, I am putting in my Fifth Amendment of the Constitution of the United States and ask that no other questions be further asked of me. And, may I be excused?

Thereafter, the following exchange was had between Farris, counsels and the court:

State: In light of Mr. Farris' statement, I want to ask that he be declared unavailable as a witness as he's persistently refused to testify to the questions asked of him and continue with my case in that fashion.

Defense: I think that what he is saying is that they tried to influence your decision on what to testify to.

Witness: They told me that if I did not cooperate with them that they was [sic] going to make sure that my seven calendars turned into ten in the Arkansas Department of Correction[ ]. I will not help them by the Constitution of the United States and the 5th Amendment. I do not have to help them. Just you two and Shane Davis, the jail administrator, I will not do this. This is not right; it's unconstitutional.

Defense: That is an allegation of almost witness tampering.

Court: What do you want me to do?

State: I ask that he be declared unavailable as a witness.

Court: I'm not sure I know what you mean by that.

State: He is telling the Court that he is not going to testify. I can use his statement as an exception to the hearsay rule.

Court: You're asking that his statements be admissible?

State: Yes, but before I can do that I have to have him declared unavailable. My authority for that is Rule 804 of the Rules of Evidence and [(a)(2)] persist in refusing to testify concerning the subject matter. You need to order him to testify, and then we'll be done. He is here under a pick-up order because [defense counsel] listed him as a witness in the case.

Defense: You guys had him listed as a witness. I just wanted to make sure that he was going to be here. That's the reason why I asked. As far as them declaring him unavailable, I don't object to that. I just I think that if there's allegations as he's saying, they need to be investigated.

Court: This is a separate issue. Are you refusing to testify?

Witness: Yes[.] . . .

Court: You have no objection to having him declared unavailable?

* * *

Court: Do you have any objection to him being declared unavailable?

Defense: Yes. I do object.

State: Are you changing your statement because before you said that you did not?

Defense: Yes, I'm changing. I'm saying the position that if he's saying that he's tampered then I object to that. That's the reason why he is being declared that he is not testifying because of that.

* * *

Court: I'm ordering you to testify. Are you still refusing to testify?

Witness: Yes.

Court: Based on that, I see no sense in exposing the jury to all of this. I'm going to go ahead and declare him unavailable as a witness. He is refusing to testify. I guess you have the rights form and statements. We will go ahead and that will be agreeable. Those will be admitted, over objection I understand.

Defense counsel recalled Farris to the stand in its case-in-chief and Farris again refused to testify.

As evidenced by the foregoing colloquy, appellant did not argue as he does now that Farris's statement did not fall within Ark. R. Evid. 804(b)(3), that Farris was not unavailable and that the State did not make a good-faith effort. This is further evidenced by counsel's objection to testimony by Sheriff Deputy Cody Carpenter regarding what Farris told him, stating, "We will base that upon my earlier objection of the influence that he's claimed that they exerted on him as the reason that he cannot testify, and you deemed him unavailable." A party cannot change grounds for an objection or motion on appeal, but is bound by the scope and nature of arguments made at trial. See Marbley v. State, 81 Ark. App. 165, 100 S.W.3d 48 (2003). Because appellant is bound by the scope and nature of his arguments below, we affirm.

Had appellant's argument been preserved, we would have affirmed because the admission of the statement was harmless and because there was overwhelming evidence to support appellant's conviction.

A witness is unavailable if he "persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so[.]" Ark. R. Evid. 804(a)(2). Here, Farris was unavailable as a witness pursuant to Rule 804 because he refused to testify despite an order of the court to do so. However, his statement does not fall within any exception.

Subsection (b)(3) of Rule 804 provides:

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception.

(Emphasis added.) Farris made a statement against appellant, implicating himself, Willie Thrailkill and appellant. Therefore, under the rule, his statement clearly does not fall within an exception to the hearsay rule.

Nevertheless, where the evidence of guilt is overwhelming and the error allowing the admission of hearsay evidence is slight, we can declare the error harmless and affirm. See Barrett v. State, ___ Ark. ___, 119 S.W.3d 485 (2003).

Christina Oliver testified at trial that appellant, Willie Thrailkill and another man came to the residence of Betty Keeney and David Goldman while she was babysitting. She testified that they left a bag in the house and left, stating that they would be back for the bag. When Keeney requested that the bag be taken out of her house, Goldman took the bag out of the house and placed it outside under Oliver's boyfriend's house. Oliver testified that she went and removed the bag and placed it behind a tree. Deputy Page testified that Oliver went outside and brought the bag to him.

Goldman gave a voluntary statement in which he stated:

Daniel and Tammy tried to get me to get involved in cooking meth with them tonight or tomorrow and I refused to do so. Tammy tried to do the same several times so she could get Daniel out of jail. Tammy, Daniel, and Willie brought some materials to the house to store there till I got home. I went back to the house where I was staying to get the material. Then the police came. Daniel asked what I did with it. I told him I took it out and hid it. He told me that he just spent $50 or so on this stuff to do a cook tonight or tomorrow to make some money to pay his and Tammy's bail. He got mad when we could not find it.

Furthermore, Deputy Carpenter testified that when he spoke to appellant, she told him that "they took the - the chemicals over there to cook meth with."

Because the evidence of guilt is overwhelming and the error allowing the admission of hearsay evidence is slight, we declare the error harmless and affirm.

Affirmed.

Crabtree, J., agrees.

Robbins, J., concurs.