Valdez Trevino Woods v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
SARAH J. HEFFLEY, JUDGE
DIVISION I
CA CR 061212
VALDEZ TREVINO WOODS
APPELLANT
November 7, 2007
V.
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. CR20042691]
STATE OF ARKANSAS
HONORABLE WILLIAM A. STOREY,
JUDGE
APPELLEE
AFFIRMED
A jury found appellant, Valdez T. Woods, guilty of possession of crack cocaine with
intent to deliver and possession of marijuana with intent to deliver. Appellant received
consecutive sentences of thirty years’ imprisonment and ten years’ imprisonment,
respectively. Appellant raises nine issues on appeal, including (1) the evidence was
insufficient to show intent to deliver; (2) the State violated his speedy trial rights; and (3) a
variety of arguments related to the admissibility of the evidence at trial. We find no error and
affirm.
On January 13, 2004, a “Be On The Lookout” alert was issued for appellant due to
suspected drug activity. The information given to officers included a description of both
appellant and his vehicle. Two Fayetteville police officers recognized appellant walking to
his vehicle and conducted a traffic stop after confirming it was the correct license plate.
Appellant was placed under arrest, and in searching his pockets, the officers found three
baggies containing marijuana and three baggies containing cocaine. Appellant also had cash
in the amount of $641 on his person.
In a felony information filed February 12, 2004, appellant was charged with four
counts: Count 1, delivery of a controlled substance; Count 2, delivery of a counterfeit
substance; Count 3, possession of a controlled substance with intent to deliver (crack
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cocaine); Count 4, possession of a controlled substance with intent to deliver (marijuana).
After a series of continuances, a trial on the matter was set for November 17, 2004. On the
date of trial, however, appellant failed to appear and a warrant was issued for his arrest.
Appellant was arrested in Tennessee on September 15, 2005. He was returned to
Arkansas, and a trial date was set for December 7, 2005. The trial was continued, however,
and on January 24, 2006, appellant filed a motion for dismissal for want of a speedy trial.
A hearing on the speedy trial issue was held on January 25, 2006, at which appellant’s
motion for dismissal was denied.
The case proceeded to trial on June 27, 2006, and a jury found appellant guilty of
possession of cocaine with intent to deliver and possession of marijuana with intent to
deliver. Appellant was sentenced to thirty years’ imprisonment on the possession of cocaine
Counts 1 and 2, which were eventually severed and tried separately after appellant’s trial
on Counts 3 and 4, are not at issue in the present appeal.
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charge and ten years’ imprisonment on the possession of marijuana charge, to run
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consecutively. This appeal followed.
Sufficiency of the Evidence
Although appellant’s argument challenging the sufficiency of the evidence was listed
last in his brief, we address the sufficiency of the evidence supporting a conviction before
considering other trial errors to preserve appellant’s right to be free from double jeopardy.
Hickman v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Aug. 29, 2007). We have repeatedly
held that, in reviewing a challenge to the sufficiency of the evidence, we view the evidence
in a light most favorable to the State and consider only the evidence that supports the verdict.
Smith v. State, 367 Ark. 274, ___ S.W.3d ___ (2006). We affirm a conviction if substantial
evidence exists to support it. Id. 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 resorting to speculation or conjecture. Id.
In challenging the sufficiency of the evidence in this case, appellant simply asserts
that while he admitted he had drugs in his possession at the time he was stopped by the
police, the State did not prove any intent to sell or distribute the drugs. However, the
testimony at trial established that appellant was arrested with almost twoandahalf ounces
Appellant’s notice of appeal was untimely, as the judgment and commitment order
memorializing appellant’s conviction was entered on June 30, 2006, and appellant’s notice
of appeal was not filed until August 30, 2006. However, our supreme court granted a motion
for rule on the clerk so that appellant could file a belated appeal, see Woods v. State, 368
Ark. 131, ___ S.W.3d ___ (2006); therefore, appellant’s appeal is properly before this court.
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of marijuana and six grams of crack cocaine in his possession, which exceeds the amounts
necessary under Ark. Code Ann. § 564401(d) (Supp. 2007) to create a rebuttable
presumption of intent to deliver. Under the statute, possession of one ounce of marijuana or
one gram of cocaine creates a rebuttable presumption of intent to deliver. Ark. Code Ann.
§ 564401(d)(3)(A)(i) and (vii). Appellant offers no argument to rebut this presumption. In
addition, there was testimony that appellant had previously sold drugs to a police informant,
that the drugs were packaged as if to be sold, and that appellant had sent a letter to the trial
judge admitting that he used and sold drugs. We find that substantial evidence exists to
support appellant’s convictions for possession of cocaine and marijuana with intent to
deliver.
Speedy Trial
Arkansas Rule of Criminal Procedure 28.1 (2007) requires the State to try a defendant
within twelve months, excluding any periods of delay authorized by Rule 28.3. Miles v.
State, 348 Ark. 544, 75 S.W.3d 677 (2002). The twelvemonth period begins to run on the
date the information is filed or the date of arrest, whichever occurs first. Id. In this case,
appellant was arrested on January 13, 2004, and therefore should have been brought to trial
by January 13, 2005, if there were no excludable delays. Appellant’s trial did not occur until
June 27, 2006, 530 days over the allowed 12month period. Once it is shown that a trial was
held after the speedytrial period set out in Rule 28.1 has expired, the State has the burden
of showing that any delay was the result of the defendant’s conduct or was otherwise legally
justified. Id.
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There are three time periods in dispute on appeal: (1) May 6, 2004 to July 12, 2004
(67 days); (2) July 12, 2004 to September 22, 2004 (72 days); (3) September 16, 2005 to
December 7, 2005 (82 days). Appellant does not dispute that the period from November 17,
2004 to September 16, 2005, the time from his failure to appear to his recapture in another
state, should be excluded for purposes of the speedy trial calculation. This excluded period,
a total of 304 days, reduces the time beyond the allowable twelve months to 226 days. Also,
appellant does not challenge any exclusions for speedy trial purposes after December 7,
2005. Therefore the period of time from December 7, 2005 to June 27, 2006, a period of 202
days, is deemed properly excluded. This exclusion reduces the time beyond the allowable
twelve months to twentyfour days. The result being that, if any of the three disputed time
periods, the shortest of which was sixtyseven days, were properly excluded, appellant’s
right to a speedy trial was not violated. We hold that the eightytwo day period between
September 16, 2005 and December 7, 2005 was properly excluded. We decline to reach
appellant’s arguments concerning the other disputed periods.
After his failure to appear, appellant was arrested and returned to Arkansas on
September 16, 2005. At the speedy trial hearing, the parties agreed that appellant had been
arraigned on October 10, 2005, on the new charge of failure to appear, and all charges were
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set for retrial on December 7, 2005. At the speedy trial hearing, appellant argued that there
had been no finding that December 7 was the next available trial date, and the State had a
We note that these actions are not memorialized on the docket or in the record. Appellant
ostensibly filed a motion for continuance on December 7, 2005, as well, but that motion and
the order granting the motion are not in the record.
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duty to make sure the trial date was set rather quickly, otherwise it violated the “spirit of the
speedy trial.” The court disagreed and stated that December 7 was the next available trial
date considering the number of cases already scheduled on the court’s docket. The court
stated that fiftyplus days was not an excessive period of time, and appellant’s case was set
as quickly and promptly as it could have been.
On appeal, appellant again contends that the period from September 16, 2005, to
December 7, 2005, should not be excluded for purposes of the speedy trial calculation. The
State, on the other hand, argues that the period should be excluded as a delay for good cause
pursuant to Rule 28.3(h). In resolving this issue, we find the case of Osborn v. State, 340
Ark. 444, 11 S.W.3d 528 (2000), to be instructive. In Osborn, the defendant was arrested on
a charge of aggravated robbery, and after a series of continuances, his trial date was set for
October 17, 1997. The defendant failed to appear, however, and he was later arrested in
Colorado and returned to Arkansas on December 4, 1997. The defendant argued that the
State was required to bring him to trial within eighteen days after his return from Colorado
to comply with speedy trial requirements, but the supreme court did not agree:
Osborn’s trial was set for October 17, 1997, and he failed to appear. The duration of
a defendant’s unavailability is clearly an excludable period for speedytrial purposes.
See Ark. R. Crim. P. 28.3(e). Moreover, once he was arrested and returned to
Arkansas, he was not entitled to a trial within 18 days, as he now argues. That would
have had the effect of disrupting the trial court’s entire docket. What the trial court
did, upon Osborn’s arrest and return to this state, was to set the trial down for the next
available trial date. Osborn was entitled to nothing more under our rules.
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Id. at 44647, 11 S.W.3d at 530. Similarly, we find that upon appellant’s return to Arkansas,
the trial court reset his trial for the next available trial date, which was fiftysix working days
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after appellant’s return and twentyfive days after the time for speedy trial expired, and we
find no error in that decision. See also Yarbrough v. State, 370 Ark. 31, ___ S.W.3d ___
(2007) (holding that a defendant’s failure to appear constitutes “good cause” to exclude the
time attributable to the delay); Henson v. State, 38 Ark. App. 155, 832 S.W.2d 269 (1992)
(holding that defendant’s speedy trial rights were not violated when, after defendant’s failure
to appear, trial date was rescheduled for five days after the time for speedy trial had expired).
Accordingly, we find no violation of appellant’s speedy trial rights and affirm.
Evidentiary Issues
The remainder of appellant’s arguments focuses on evidence that should or should not
have been admitted at trial. The circuit court has wide discretion in making evidentiary
rulings, and we will not reverse its ruling on the admissibility of evidence absent an abuse
of discretion. Wright v. State, 368 Ark. 629, ___ S.W.3d ___ (2007). Abuse of discretion is
a high threshold that does not simply require error in the trial court's decision, but requires
that the trial court act improvidently, thoughtlessly, or without due consideration. Butler v.
State, 367 Ark. 318, ___ S.W.3d ___ (2006).
1.
DVD of Traffic Stop
This number has been calculated on the assumption, for purposes of argument, that the two
other disputed time periods are not excluded for purposes of the speedy trial calculation.
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At trial, a DVD copy of the police videotape of appellant’s arrest was introduced into
evidence over appellant’s objection that there was a lack of proper foundation based on chain
of custody and that the testifying officer had not made the DVD himself. Officer Sean
Chandler, one of the arresting officers, testified that he had viewed the DVD and verified that
it was an accurate representation of the traffic stop and arrest. He also testified that an
employee at the prosecutor’s office had actually made the DVD copy from the police
videotape. The court overruled appellant’s objection and found that there was proper
foundation for the DVD.
On appeal, appellant again argues that the chain of custody had been broken and that
Officer Chandler was not the proper person to lay a foundation for the introduction of the
evidence. However, Rule 901(b)(1) of the Arkansas Rules of Evidence provides that the
“testimony of a witness with knowledge that a matter is what it is claimed to be” is sufficient
for authentication purposes. In Owens v. State, 363 Ark. 413, 214 S.W.3d 849 (2005), our
supreme court held that it was not essential for purposes of laying a proper foundation to
have the person who actually took still photographs from a videotape be in court to testify.
Similarly, in this case, we do not believe there was a lack of proper foundation or a chainof
custody issue simply because Officer Chandler did not personally make the DVD copy. As
an arresting officer, he was present at the scene, and he testified that he had viewed the DVD
and that it was an accurate depiction of the arrest as seen on the police videotape. We find
no abuse of discretion in admitting the DVD copy of the traffic stop.
2.
Testimony of Charlene Hardy Elder
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Charlene Elder was a drug addict and police informant who purchased drugs from the
appellant on two occasions prior to his arrest. At trial, appellant objected to her testimony,
arguing it was irrelevant, inadmissible character evidence under Rules 404(a) of the Arkansas
Rules of Evidence, and prejudicial under Rule 403. The State countered by arguing that the
prior drugs sales were relevant to show intent. The court overruled appellant’s objection and
gave the jury a cautionary instruction that the testimony was offered not to show that the
allegations actually took place but to show a course of conduct or lack of mistake and that
it should be considered only for that purpose.
On appeal, appellant renews his Rule 404 argument and asserts that the testimony of
the previous two drug transactions was introduced solely for the purpose of giving the jury
the impression that appellant was a drug dealer. Appellant also argues that the testimony was
highly prejudicial and should have been excluded under Rule 403.
We do not agree with appellant’s assertion that the testimony regarding the previous
drug transactions was introduced solely as character evidence. Our case law has established
that in cases involving possession with intent to deliver, as here, evidence of prior drug sales
is admissible to show intent as long as the earlier sales are not too remote in time to be
relevant. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). In this case, the prior drug
sales testified to by Elder occurred on December 5, 2003, and January 6, 2004, thirtyeight
days and seven days before appellant’s arrest. These drugs sales are certainly not too remote
in time to render their significance irrelevant. As to appellant’s Rule 403 argument, he
contends that the testimony was highly prejudicial and had no probative effect because the
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prior drug sales “had no temporal relation or similarity to the simple possession of drugs on
January 13, 2004.”
First, we note that appellant has mischaracterized the charges against him; he was
charged with possession with intent to deliver, not simple possession as he asserts in his
argument. Second, the balancing of probative value against prejudice under Rule 403 is a
matter left to the sound discretion of the circuit court, and we will not reverse the lower
court's decision on such a matter absent a manifest abuse of discretion. Davis v. State, 368
Ark. 401, ___ S.W.3d ___ (2007). Considering the testimony’s relevance with regard to the
element of intent, we find no abuse of discretion in the trial court’s decision to admit Elder’s
testimony with regard to the prior drug sales.
Also with regard to Elder’s testimony, appellant argues that the trial court improperly
restricted his crossexamination of Elder. At trial, appellant’s counsel questioned Elder
regarding her financial situation, including her sources of income and amount of rent, but the
State objected to a question regarding Elder’s car payment as beyond the scope of direct
examination, which was sustained. Appellant also was not allowed to inquire into Elder’s
financial needs that exceeded the amount of her disability check; the court ruled that the
question had been asked and answered. On appeal, appellant contends he was entitled to
determine whether Elder had a bias or reason to lie, and he was prejudiced because he was
not allowed to expose Elder’s lack of credibility to the jury.
In considering an argument that appellant's right of crossexamination was unduly
restricted, it must be kept in mind that the trial judge is vested with some discretion in the
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limitation of the scope and extent of crossexamination. Dillard v. State, 260 Ark. 743, 543
S.W.2d 925 (1976). In this case, we find no abuse of discretion in the trial court’s ruling, as
the questioning concerning Elder’s sources of income and monthly expenses was clearly
outside the scope of direct examination. In addition, appellant is unable to demonstrate any
prejudice from the trial court’s ruling. Elder was called again as a witness during appellant’s
case in chief, thus giving him an opportunity to cure any restriction placed upon his cross
examination, and we do not reverse a decision by the trial court absent a showing of
prejudice. Miller v. State, 97 Ark. App. 285, ___ S.W.3d ___ (2007).
3.
Testimony of Craig McKee
Craig McKee, a former officer with the Fayetteville Police Department, testified that
he had been an officer for almost ten years and had worked on the drug task force for five
years. He explained that he had attended druginvestigation training and had participated in
hundreds of drug investigations. McKee also testified that he had interviewed hundreds of
drug suspects and had learned the methods that they use. The State then moved to have
McKee declared an expert witness in the field of narcotics investigations, and after a brief
voir dire by appellant, McKee was declared an expert in the field of drug investigation
without objection by appellant.
Appellant did lodge an objection, however, when the State asked McKee how drugs
are sold. Appellant argued that McKee was not an expert in drug sales, and although he had
been qualified as an expert, the court did not specify his field of expertise. The trial court
disagreed and noted that McKee had been recognized as an expert in the field of drug
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investigation with appellant’s consent. Over appellant’s objection that “this testimony is
subject to the expert’s testimony level of the Dow Pharmaceuticals case which has not been
met in this case,” the trial court overruled appellant’s objection.
On appeal, appellant again argues that McKee’s testimony regarding drug sales should
not have been allowed. Appellant contends that McKee did not possess any expertise in the
area of drug sales, therefore his testimony should have been excluded. To support his
argument, appellant cites Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997), in which a
recreational hunter with no formal training or expertise was not qualified to testify as an
expert in ballistics. Similarly, appellant argues, McKee did not have any formal education
in the area of drug sales and should not have been allowed to provide expert testimony
regarding drug sales.
We find Smith to be inapposite, however, because the proffered expert in Smith was
a layman with no formal training, whereas McKee was an experienced police officer with
special training in narcotics investigations. McKee testified that he had interviewed hundreds
of drug suspects and learned their methods of use and sale, and he also participated in
multiple controlled drug buys through his work in the drug task force. We find no abuse of
discretion in McKee being allowed to testify as an expert regarding drug sales.
4.
Testimony of Alex Pickering and the Letter to Judge Gunn
Alex Pickering, an employee of the Washington County Sheriff’s Office, testified that
he was familiar with appellant and appellant’s handwriting through request forms and
outgoing mail that appellant had given to him while at the detention center. Pickering
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testified that appellant had a unique way of writing the letter “e.” The State asked Pickering
to identify a letter, and he identified it as a letter that was written to Judge Mary Ann Gunn
in the same handwriting as appellant’s. Appellant objected to the introduction of this
evidence, however, on the ground that the letter contained inadmissible references to
appellant’s previous conviction. The letter was then admitted into evidence with the
objectionable portion redacted.
Pickering proceeded to read to the jury a portion of the letter, which stated, “My name
is Valdez T. Woods, I’m writing you to ask for drug court,” and “I’ve wasted many years
selling and ultimately using drugs.” At that point, appellant raised an objection to the
introduction of the letter to the jury, arguing that Pickering was not a handwriting expert and
the State had not laid a proper foundation. The court overruled appellant’s objection, noting
that the letter had already been admitted into evidence, subject to the sustained objection
from appellant, and the issue was now over.
On appeal, appellant argues that the letter (1) was prejudicial, (2) should only have
been used for impeachment, and (3) was inadmissible hearsay. Appellant also contends that
because Pickering’s testimony was only offered to identify appellant’s handwriting and
introduce the letter, Pickering’s testimony should have been excluded. We cannot reach the
merits of appellant’s argument, however, because he failed to make a contemporaneous
objection to the letter on these grounds at the time it was introduced. An appellant’s failure
to make a contemporaneous objection prevents him from asserting any error on the part of
the trial court for admitting the evidence. McClain v. State, 361 Ark. 133, 205 S.W.3d 123
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(2005). In this case, the only contemporaneous objection to the letter raised by appellant
concerned inadmissible portions of the letter, which were redacted prior to the evidence
being admitted. Appellant’s later arguments concerning Pickering’s qualifications as an
expert and lack of proper foundation came too late. See Dixon v. State, 310 Ark. 460, 839
S.W.2d 173 (1992) (holding that objection to an exhibit should have been made at the time
it was admitted, and failure to do so rendered the argument not preserved for appellate
review). We also note that the arguments made by appellant on appeal were not raised to the
trial court at all, and issues raised for the first time on appeal will not be considered because
the trial court never had an opportunity to rule on them. Green v. State, 365 Ark. 478, 231
S.W.3d 638 (2006).
5.
The Money
During his description of appellant’s arrest, Officer Chandler testified that he and the
other arresting officer found three baggies of marijuana, three baggies of cocaine, and $641
in cash on appellant’s person. Chandler testified that once they had arrived at the jail, he
filled out a tally sheet documenting the total amount of cash found on appellant and the
quantity of each bill denomination. The State moved to introduce the tally sheet into
evidence, at which point appellant objected on grounds that it was irrelevant and unduly
prejudicial. The court disagreed and stated that it was indeed relevant, and the court also
noted that the witness had already made a statement with regard to how much money was
found on appellant.
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On appeal, appellant argues that “the money” should have been excluded on the basis
that it had little probative effect but was highly prejudicial. Appellant appears to be mistaken
in his argument, however, because there was no money introduced at trial. Furthermore,
testimony had already been given as to the amount of money found on appellant’s person
without objection from appellant, and without a contemporaneous objection made at the first
opportunity, the proverbial bell had been rung. McClain, supra. Finally, there was no abuse
of discretion in the trial court’s decision to admit the tally sheet into evidence. Our case law
has established that possession of a large sum of money is relevant to the question of delivery
of a controlled substance, Jackson v. State, 52 Ark. App. 7, 914 S.W.2d 317 (1996), and
appellant can show no prejudice from the admission of the tally sheet, as he did not object
to Chandler’s earlier testimony telling the jury the amount of money found on appellant’s
person.
6.
The Receipt
During appellant’s caseinchief, he offered the testimony of Ayala Rahm, a friend
and associate of appellant’s. Rahm testified that appellant’s car was not driveable for the first
two weeks of January 2004, and the car was in Rahm’s driveway during that period of time.
Appellant then testified on his own behalf and denied selling drugs to Charlene Hardy Elder
in December 2003 or January 2004. He reiterated that his car was broken down, “sitting on
its rims,” at Rahm’s house until January 13, 2004. Appellant testified that on January 13, he
removed the rims from his vehicle and had new tires put on the rims. Appellant attempted
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to introduce a receipt into evidence showing his purchase of new tires on January 13. The
State objected based on relevancy, and the court agreed and sustained the objection.
Relevant evidence is “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. On appeal, appellant argues that the
trial court erred in excluding the receipt as irrelevant, because it directly contradicted Elder’s
previous testimony in which she had identified appellant’s car as the vehicle he was driving
at the time of the alleged drug sales on December 5, 2003 and January 6, 2004. Appellant
contends that the receipt was relevant to prove that Elder lied as to her previous drug dealing
with appellant and also corroborated the previous testimony of Rahm and appellant.
We concede that the receipt had some relevance, in that it could cast some doubt on
Elder’s testimony regarding the prior drug sales and provided corroboration for appellant’s
and Rahm’s testimony. But the receipt itself only proved a purchase of new tires on January
13 and did not prove that appellant’s car had been undriveable for the previous two weeks.
Because the receipt was only marginally relevant, we hold that appellant has failed to
demonstrate prejudice by its exclusion, and the trial court’s exclusion of such evidence did
not amount to an abuse of discretion. See Harris v. State, 366 Ark. 190, ___ S.W.3d ___
(2006) (holding that an appellate court will not reverse a trial court’s evidentiary ruling
absent a showing of prejudice).
7.
Testimony of Warren Lloyd
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Appellant attempted to call Warren Lloyd, a friend of appellant’s, to the stand during
his caseinchief, and the State objected on the ground that it did not receive notice of the
witness until that morning. Appellant argued that the witness had just come to his attention
that morning, and he notified the State as soon as possible. Appellant explained that Lloyd
would testify that appellant’s car was sitting in Rahm’s driveway at the time of the second
alleged drug transaction. The court ruled that the State was entitled to reasonable notice,
which they did not receive, and that the testimony was cumulative, so the objection was
sustained.
On appeal, appellant argues he was prejudiced by the exclusion of Lloyd’s testimony
because it would have cast doubt on the State’s case. We find no abuse of discretion in the
trial court’s ruling, however, considering (1) the State had no opportunity to speak with the
witness before he testified, and (2) the testimony was merely cumulative, as it was repeating
the same information given by both Rahm and appellant. See McEwing v. State, 366 Ark.
456, ___ S.W.3d ___ (2006) (holding that trial court did not abuse its discretion in excluding
defendant's alibi witness from testifying on basis that it would be unfair to allow witness to
testify, as defendant failed to disclose witness until day of trial, and prosecutor did not have
opportunity to speak with the witness in hours before trial). Moreover, appellant has failed
to demonstrate any prejudice resulting from the trial court’s ruling as the proffered testimony
was merely cumulative, and we will not reverse absent a showing of prejudice. Harris,
supra.
Affirmed.
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GLADWIN and BIRD, JJ., agree.
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