Jimmy Smith v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
SAM BIRD, JUDGE
DIVISION IV
CACR07277
FEBRUARY 6, 2008
JIMMY SMITH
APPELLANT
V.
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, FIFTH
DIVISION, [NO. CR20061007]
HON. WILLARD PROCTOR JR.,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Antoine Baker and appellant Jimmy Smith were charged in Pulaski County with first
degree murder in the death of Corte Beavers, who died from gunshot wounds on November
9, 2005. Smith was found guilty in a jury trial and was sentenced as a habitual offender to
sixty years’ imprisonment. He contends that the trial court abused its discretion in refusing
to permit defense counsel to cross examine State’s witness Brenda Gonzalez about her
pending oneyear jail sentence as proof of her motive to testify falsely. We agree with the
State that the point on appeal is not preserved for our review.
Brenda Gonzalez testified during direct examination that Beavers, who was lying in
the street, told her that he had been shot and was dying. She testified that Beavers named
Smith as one of his assailants. Counsel for the defense approached the bench during cross
examination, and the following colloquy ensued:
DEFENSE COUNSEL:
I would like to ask the witness if she, number one, is a prostitute;
number two, if she has been convicted of second offense prostitution
in Saline County, if she received a year in jail for that and if she has
that presently on appeal and if she has an expectation that this
prosecutor will help her to get out of that year that she’s been sentenced
to in her trial de novo in circuit court for prostitution. . . . I think this
shows that she would do anything to further her selfish interest,
including having sex with strangers for money, that this shows her
motive to testify for the prosecutor. This shows that she needs to stay
on good terms with the prosecution since her occupation is that she’s
a prostitute. It’s part of the res gestae.
It also impeaches her story that she’s out in the early morning
hours just doing her laundry. It goes to her credibility and allows me
to confront her about this dying declaration more fully and under the
Sixth Amendment right to confront witnesses. . . . I have a right to
present a defense and fully explore this witness’s credibility.
. . . .
PROSECUTING ATTORNEY:
. . . I don’t have a problem if he wants to ask her about her prostitution.
I think she’s going to answer truthfully on that. . . . [S]he’s going to say
yes, she prostituted for crack cocaine in the past.
The other thing is she’s been convicted of the prostitution and
given a year in jail. She filed an appeal. We have nothing to do with
that. Misdemeanor convictions just aren’t admissible. I mean he can
ask all day–he can ask all day if she’s gotten a deal or she expects help
on anything. . . . He can ask all day on–if there’s a deal or whatever, but
the specificity of that, I just don’t see that she’s been convicted twice of
prostitution, what relevance that has.
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And the fact that it’s on appeal, there’s no way we could–I mean
it’s one thing to testify to sentencing, that someone testified that an
appeal–there’s absolutely nothing we could do anyway.
The trial court ruled that defense counsel would be allowed to ask Gonzalez if she had
any expectation of help from the prosecutors or the State, but questioning about the Saline
County conviction would not be allowed. Defense counsel argued that the testimony would
go to the witness’s bias and motive to testify favorably for the State in hopes of not having
to serve her oneyear sentence. The court again ruled that the testimony would not be
allowed.
Under further cross examination Gonzalez testified that she was a prostitute,
that she did not have “any expectation that the State will help in my business endeavors by
testifying here,” and that the State had “not even offered.” On redirect examination she
explained that she was not taking crack on the night in question. She stated that, having
already told the jury that she “prostituted” and was a crack addict, she had no reason not to
tell them if she had been engaged in prostitution on the night that Beavers was killed.
Defense counsel again approached the bench at the beginning of recross examination,
contending that the State opened the door to the Saline County prostitution conviction by
asking “do you have any reason to lie after you’ve told that you’re a prostitute and when you
gave the statement, you were in jail, did you need help?” He argued that the question created
the impression that Gonzalez did not need help for her problems “and, in fact, she’s going to
have to do a year if she doesn’t get help in Saline County, if her case isn’t resolved favorably
on appeal.” Counsel repeated his earlier arguments regarding the Sixth Amendment, “all
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those reasons . . . stated previously,” and “the right to present a trial.” The court denied his
motion and allowed no further argument.
Point on Appeal
Smith contends on appeal that the trial court abused its discretion in refusing to permit
defense counsel to develop proof of Gonzalez’s motive to testify falsely by crossexamining
her about her pending oneyear jail sentence in Saline County. He asserts that he should have
been allowed to crossexamine her on this point in order to avoid her possible bias in favor
of the State. He argues that the jury, if made aware of the pending sentence, could have
assessed whether she had an expectation that in return for her testimony implicating Smith
the State would try to reduce or eliminate her then pending sentence.
Rule 103 of the Arkansas Rules of Evidence requires a party to make a proffer of the
testimony or evidence sought to be admitted unless it is clear from the context of the
questions asked what the evidence would be. See also Halford v. State, 342 Ark. 80, 87, 27
S.W.3d 346, 350 (2000) (holding that the exclusion of testimony relevant to bias of the State’s
witness was not preserved for review where defense counsel, after advising the trial court that
he wanted to pose certain questions on crossexamination, failed to go forward with a proffer
of what the testimony would have been).
Although the State acknowledged at a bench conference that Gonzalez had a pending
jail sentence for prostitution, nothing in the record suggests how she would have answered
questions about the sentence itself or her possible expectations that the prosecutor might help
her avoid it. Because no proffer of her testimony was made and because it is not clear from
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the questions of defense counsel what her testimony would have been, the issue is not
preserved for appeal.
Affirmed.
GLOVER and VAUGHT, JJ., agree.
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