Dunahue v. State
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Cite as 2009 Ark. App. 810
ARKANSAS COURT OF APPEALS
DIVISION II
No.
REGINALD DUNAHUE,
CACR09-360
APPELLANT
V.
STATE OF ARKANSAS,
APPELLEE
Opinion Delivered 2
DECEMBER 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
[NO. CR08-2430]
THE HONORABLE BARRY SIMS,
JUDGE
AFFIRMED
D.P. MARSHALL JR., Judge
Reginald Dunahue appeals his conviction for the armed robbery of a
convenience store. He was found guilty of aggravated robbery and sentenced to fifty
years’ incarceration. He does not challenge the sufficiency of the evidence supporting
his conviction; his appeal addresses only the admission of certain testimony under
Arkansas Rule of Evidence 701.
Early one morning at the Lones BP gas station, Delana Head was making biscuits
when a man she later identified in both a photo lineup and at trial as Dunahue pointed
a gun at her and said “[g]ive me all your money, [expletive].” The robber was wearing
a bandana over his nose and mouth, some type of cap, and glasses. Head identified the
Cite as 2009 Ark. App. 810
getaway car as a red or maroonish Ford. A usual customer at the BP witnessed the
robbery from outside, noted the getaway vehicle as a Ford Contour or Escort, and
provided the police with the car’s license plate number. The vehicle bearing that
license plate was registered to Dunahue. The police arrested him a few days later in
his 1998 Ford Contour, which bore that same license plate. Officer J. P. Massiet found
a bandana, silk cap, head cap, and a box of nine millimeter bullets in Dunahue’s car.
Officer Massiet also interrogated Dunahue.
At trial, Officer Massiet characterized Dunahue’s behavior in custody as a
“fishing expedition.” Dunahue objected to this characterization.
[Prosecution]: And at this point in time in your investigations, would you
normally have taken a recorded statement?
[Massiet]: Yes.
[Prosecution]: And was that done?
[Massiet]: No, sir.
[Prosecution]: And why was that not done?
[Massiet]: Well, we began to talk and Mr. Dunahue is a very intelligent
person. And during our conversation it was like he was more on a fishing
expedition trying to figure out what we knew more than what he
wanted––
[Defense]: Judge, I think the defendant, excuse me, the witness is
speculating here. We’re not giving what was in the contents of his
statement.
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Cite as 2009 Ark. App. 810
[The Court]: What’s your objection?
[Defense]: Speculation.
[The Court]: Overruled.
“Speculation” is a sufficient ground to preserve a Rule 701 objection. Diffee v. State,
319 Ark. 669, 681–82, 894 S.W.2d 564, 570–71 (1995).
After further testimony by Officer Massiet about the interrogation, the
prosecutor used the phrase “fishing expedition” twice.
[Massiet]: I saw that the interview wasn’t going anywhere so I
discontinued the interview myself.
[Prosecution]: And you said that he was in a fishing expedition. Can you
explain a little more?
[Massiet]: He was trying to take over the interview himself.
[Defense]: Judge, his opinion is irrelevant about this; what’s important
here is the responses to questions that were asked.
[Prosecution]: And Judge, a negative response to a question or a
manipulative response to a question is very indicative of––
[Defense]: That’s for the jury to decide, Judge.
[The Court]: I’ll allow it.
[Prosecution]: And so they should be able to hear that. Continue, please.
[Massiet]: I’m sorry, can you ask the question again?
[Prosecution]: I guess the question was, exactly how was he on the fishing
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Cite as 2009 Ark. App. 810
expedition with you?
Defense counsel did not object to this third invocation of “fishing expedition.” The
State argues that, even though Dunahue objected twice, because he did not object at
this third instance, he failed to preserve his Rule 701 argument for appellate review.
We disagree.
To preserve an alleged evidentiary error, a party must object at the first
opportunity and continue to object when the disputed issue arises again. Hardman v.
State, 356 Ark. 7, 11–12, 144 S.W.3d 744, 746–47 (2004); Vaughn v. State, 338 Ark.
220, 224–25, 992 S.W.2d 785, 787–88 (1999). Dunahue did so. His first objection
was contemporaneous with Officer Massiet’s first “fishing expedition” opinion. When
the prosecutor later used Officer Massiet’s opinion in a question, Dunahue objected
again. The circuit court overruled his objection again. This exchange preserved the
issue for appeal by discharging Dunahue’s obligation to keep objecting if a challenged
question is re-asked. Hardman, supra; Stephens v. State, 328 Ark. 81, 89, 941 S.W.2d
411, 415 (1997).
“Fishing expedition” was said a third time only because Officer Massiet could
not remember the prosecutor’s question. And this exchange immediately followed the
court’s denial of Dunahue’s second objection. If the court had sustained Dunahue’s
second objection, failed to rule on it, or the third reference had come after some
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Cite as 2009 Ark. App. 810
intervening testimony, then Dunahue would have waived the issue by not objecting
a third time. Compare Vaughn, supra, with Walker v. State, 301 Ark. 218, 220, 783
S.W.2d 44, 45–46 (1990). But none of these things happened. On this record,
Dunahue preserved his objection. Vaughn, supra.
On the merits of his evidentiary argument, this is a close issue. Arkansas Rule
of Evidence 701 limits the “opinio[n] or inferenc[e]” testimony of non-expert
witnesses to statements that are both “[r]ationally based on the perception of the
witnesses; and [h]elpful to a clear understanding of his testimony or the determination
of a fact in issue.” It is not clear that Dunahue’s evasiveness in custody was a fact in
issue at trial. The fishing-expedition testimony, however, may have been helpful to
a clear understanding of Officer Massiet’s testimony.
But we affirm for two reasons. First, close calls on evidentiary matters rest
within the circuit court’s sound discretion. We see no abuse of that discretion here.
Ibid. Second, the case against Dunahue was overwhelming. The Lones BP clerk who
was robbed identified him and his vehicle without equivocation. And one of the gas
station’s customers saw the robbery and the get-away in Dunahue’s car. Any error in
the “fishing expedition” testimony was harmless. Eastin v. State, 370 Ark. 10, 21–22,
257 S.W.3d 58, 67 (2007).
Affirmed.
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Cite as 2009 Ark. App. 810
VAUGHT, C.J., and GLADWIN, J., agree.
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