Tommy L. Hilburn v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

TOMMY L. HILBURN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-295

FEBRUARY 23, 2005

APPEAL FROM THE GREENE

COUNTY CIRCUIT COURT

[NO. CR-02-324]

HONORABLE JOHN NELSON

FOGLEMAN, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Tommy Hilburn appeals his conviction for possession of methamphetamine with intent to deliver following a jury trial in Greene County Circuit Court. Appellant was sentenced to forty years in the Department of Correction. Hilburn lodges three bases to reverse, alleging that (1) the trial court abused its discretion in permitting hearsay testimony regarding a computerized check on a license plate; (2) the prosecutor engaged in misconduct by asking questions regarding appellant's uncharged criminal activity, which denied appellant a fair trial; and (3) the trial court abused its discretion by denying his mistrial motion based upon inappropriate references to appellant possessing pornographic material. We affirm.

Appellant Hilburn was tried before a jury, and his counsel said in opening statements that he was not contesting that appellant was in possession of the drugs and at some point sold some drugs. On appeal, appellant's counsel describes this jury trial as a "slow plea of guilty." During the course of trial, the prosecutor called Officer Scott Pillow to describe his investigation and surveillance of appellant, which began after receipt of confidential tips that appellant was trafficking methamphetamine. Intermittent surveillance started at appellant's residence. Pillow would park near the house and observe frequent but brief visitors come and go. During one surveillance, Pillow saw a truck with an Arizona license plate at the house. Pillow "ran the tags" and learned that the vehicle was registered to Jesus Contrerez from Mesa, Arizona.1 Defense counsel objected that this was hearsay. The prosecutor argued that the information was reliable because it came from the NCIC2 or another computerized system that contained vehicle registration information. The trial judge overruled the objection. Pillow continued his testimony, stating that based upon his confidential informants and surveillance, he obtained a search warrant for appellant's house, which revealed a substantial amount of methamphetamine and cash, along with digital scales, plastic baggies, and firearms.

On appeal, appellant challenges the ruling made by the trial court because it was inadmissible hearsay and necessarily implicates the Confrontation Clause, citing to Crawford v. Washington, U.S. (March 8, 2004), as his primary support. The State counters that (1) this was not hearsay because it was not offered for the truth of the information, but rather to demonstrate why the officer sought a warrant; (2) even if it were error, it was harmless because appellant admitted that he had possessed and sold drugs; (3) any Confrontation Clause argument is waived because it was not brought up at trial; and (4) Crawford v. Washington, supra, does not support reversal.

We hold that appellant's argument falls squarely within the holding of Dednam v. State, __ Ark. __, __ S.W.3d __ (January 6, 2005), and supports the trial court's ruling. In Dednam v. State, supra, appellant Dednam appealed his capital-murder conviction on the sole basis that the trial court erred by allowing hearsay testimony of a police officer that was "testimonial" in nature. Dednam argued at trial that this violated his right to confront witnesses against him, and he cited to Crawford v. Washington, supra, as controlling authority. Our supreme court disagreed and affirmed his conviction.

The relevant testimony in Dednam's trial was that a police detective was explaining her interview of Jerry Otis and what he told her about the alleged perpetrator, Antoine Baker, in a different crime. It drew a hearsay objection as well as a Confrontation Clause argument. The prosecutor responded that the testimony was not being used to prove the truth of what Baker may or may not have done, but was instead offered to show only that the victim's statement was made to the officer, and it was part of the reason for the officer causing an arrest warrant to issue for Baker. The testimony was allowed at trial.

On appeal, our supreme court discussed Crawford v. Washington, supra, in depth, holding that the testimony was not hearsay because it was offered to show the basis for the witness's actions. Slip opinion at page 7, citing to Ark R. Evid. 801(c). Moreover, it held that the statement was not offered for the truth of the matter asserted. Id. Thus, the supreme court held that the statement was not hearsay, testimonial or otherwise, and upheld the discretionary decision of the trial court to permit it into evidence. Id. In specifically addressing the Confrontation Clause argument and the application of Crawford v. Washington, supra, our supreme court held:

In Crawford v. Washington, supra, the Court noted that "[t]he [Confrontation] Clause also does not bar the use of testimonial[3] statements for purposes other than establishing the truth of the matter asserted." 124 S. Ct. at 1369, n.9. .... Because the statements were not admitted for the truth of the matter asserted, cross-examination was not required to test their veracity. Hence, the statements are not barred by the Confrontation Clause.

Slip Opinion at page 10.

In the present appeal, the State asserts that appellant failed to preserve any Confrontation Clause issue because his objection at trial was limited to one complaining of hearsay. Without deciding whether the Constitutional issue is preserved, we hold that the officer's testimony was not hearsay because it was not offered for the truth of its content. Furthermore, this NCIC information was used for the purpose of establishing what action the officer took on the basis of that statement, also rendering it non-hearsay. See Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994). Both Crawford v. Washington, supra, and Dednam v. State, supra, support that conclusion. We affirm on this evidentiary issue.

Appellant's next argument is that prosecutorial misconduct warrants reversal. Specifically, he contends that the prosecutor repeatedly asked questions about various bad acts and uncharged misconduct in an effort to prejudice him in both the guilt and sentencing phases of his trial. Appellate counsel asserts that the State was not content to accept a simple guilty verdict but instead "sought to hammer appellant on sentencing." Appellate counsel candidly admits that defense counsel at trial did not object to many of the examples that he now asserts are prejudicial.4 The State responds that (1) many of the objections he raised to these questions were sustained at trial, rendering nothing to appeal; (2) defense counsel did not object to the other lines of questioning and thus failed to preserve any issue on appeal regarding those questions, and (3) in any event, the questioning regarding uncharged misconduct during sentencing was proper under Ark. Code Ann. § 16-97-103 (Supp. 2003).

In order to resolve this point on appeal, it is necessary to outline the questioning that appellate counsel deems offensive:

1. During guilt phase, State seeking to elicit hearsay from a "snitch" through Officer Pillow. [The hearsay objection was sustained.]

2. During guilt phase, testimony of Officer Pillow that appellant was arrested and given a $250,000 bond, which was later reduced. [Objection to relevance about amount of his bail bond sustained.]

3. During sentencing phase, State eliciting testimony from Detective Volner that he was informed by Stanley Carter of Mr. Carter's suspicion that his wife Valencia Carter was using methamphetamine and might have been getting it from appellant. The detective testified further that he also watched appellant's house and saw Mrs. Carter come and go on more than one occasion. [No objection.]

4. During sentencing phase, State eliciting testimony from Detective Volner that he observed excessive traffic to and from appellant's house, and "defense counsel did nothing to stop this inquiry or clear it up by challenging the officer's lack of probable cause to stop any of those cars." [No objection.]

5. During sentencing phase, Officer Pillow testified about having appellant's ex-wife, approximately one week after his arrest, engage in conversation about methamphetamine and money he had hidden in the house. The tape was played for the jury. [No objection.]

6. During sentencing phase, Officer Pillow three times interjected commentary about what was happening on the audiotape. [First objection sustained. No other objections followed.]

7. During sentencing phase, State calling Mr. Gatlin, appellant's former brother-in-law, as a rebuttal witness to testify to knowledge of many uncharged criminal acts in which appellant was involved. Over objection, Gatlin testified that he knew that over the previous six or seven years, appellant bought methamphetamine in large amounts and also sold it. [Objection that the prejudicial effect outweighed the probative value sustained as to any allegation of misconduct other than that related to methamphetamine.]

We agree with the State that the testimony complained of in paragraphs one through six above are not preserved for appellate review, either by failure to object or by having the objection sustained in appellant's favor. It is a basic principle of law that where the appellant received the only relief he requested, he has no basis upon which to raise the issue on appeal. See Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). The only point preserved is whether the trial court erred in permitting Mr. Gatlin to testify during the sentencing phase that he observed appellant use and sell methamphetamine for a number of years. The State asserts that this was proper under Ark. Code Ann. § 16-97-103(6) and (9), as aggravating and rebuttal evidence.

Evidentiary rulings are reviewed under an abuse-of-discretion standard. We hold that this ruling was not an abuse. In Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998), our court upheld a similar ruling admitting evidence of other drug transactions in the sentencing phase of Davis's trial. The jury had convicted Davis of delivery of a relatively small amount of cocaine, and during the sentencing phase, the State was permitted to have two men testify about two prior drug purchases from Davis. We upheld the trial court's ruling, noting that the evidence was proper as an "aggravating circumstance." That was so because the drug transaction that supported the charge was not an isolated incident. Therefore, the testimony offered could be considered as circumstances surrounding the crime, increasing the guilt or enormity or adding to the injury it caused, fitting the supreme court's definition of "aggravating circumstances" in Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

Later, in Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000), our supreme court revisited the law on what evidence may be entered during the sentencing phase. The opinion noted that the Rules of Evidence must govern evidence during this stage, otherwise the proceedings would not pass constitutional muster. Id. at 874. However, once the jury has determined that the defendant is guilty, additional evidence, even regarding attempted crimes, may be admissible if it gives the jury as much information as possible when it makes sentencing decisions. Id. at 874, citing to Hill v. State, supra.

In the present appeal, the jury was entitled to hear any relevant evidence that comported with the applicable statute and the Rules of Evidence. The trial judge weighed the probative value against the prejudice and determined that this particular line of questioning was proper. We cannot say that this was an abuse of discretion, in light of appellant's own testimony (1) admitting to possessing the large quantity of drugs, money, and paraphernalia found in his house, (2) admitting that he sold drugs for almost a year prior to his arrest, calling himself a "dope dealer" but "not the big fish," and stating that he sold to his ex-wife and former brothers-in-law; and (3) explaining that Jesus Contrerez came to his house about once a month, though he was welcome anytime. We affirm this point as well.

Appellant's final point on appeal contends that during the sentencing phase, the prosecutor committed misconduct by asking one of appellant's character witnesses about appellant possessing pornographic videotapes. Defense counsel objected on the basis that any probative value was substantially outweighed by the prejudicial impact. The trial court sustained the objection. Appellant's brief states that his counsel moved for a mistrial, which was denied, and which should have been granted. We cannot find any such mistrial motion in the record on appeal, nor any request to admonish the jury to disregard the prosecutor's question after his evidentiary objection was sustained. In short, appellant received all the relief he requested, leaving nothing to appeal. See Marshall v. State, supra; Odum v. State, supra.

We affirm.

Griffen and Roaf, JJ., agree.

1 Contrerez was alleged to be a supplier for appellant.

2 "NCIC" is the acronym for National Crime Information Computer. See Muhammad v. State, 337 Ark. 291, 988 S.W.3d 17 (1999).

3 The Supreme Court declined to provide a comprehensive definition of "testimonial" statements that would implicate Constitutional concerns. However, it did provide examples of "non-testimonial" statements such as business records or statements in furtherance of a conspiracy. In that instance, the Court held it proper for the states to be afforded flexibility to develop their own hearsay law. It was only "testimonial" hearsay that was at issue in the Crawford case. It is not necessary for resolution of the present appeal for us to decide whether this statement is, or is not, "testimonial."

4 Appellate counsel states that even if these particular examples are not considered on direct appeal, they provide grounds to file a petition for relief under Ark. R. Crim. P. 37.