Diggins v. State
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Cite as 2010 Ark. App. 301
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR09-1178
JOHN A. DIGGINS,
Opinion Delivered
APRIL 7, 2010
APPELLANT
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT,
[NO. CR-08-517-1]
V.
STATE OF ARKANSAS,
APPELLEE
HONORABLE BERLIN C. JONES,
JUDGE
AFFIRMED
KAREN R. BAKER, Judge
A Jefferson County jury convicted appellant, John Diggins, of second-degree murder.
He was sentenced to thirty years’ imprisonment in the Arkansas Department of Correction for
the murder conviction and an additional ten years in the Arkansas Department of Correction
for employing a firearm as a means of committing the felony pursuant to Ark. Code Ann. § 1690-120. The sentences were to run consecutively. Appellant does not challenge the sufficiency
of the evidence, but rather alleges, first, that the trial court erred in allowing the State to
introduce into evidence through the testimony of Charles Gray a hearsay statement made by
Herbert Ford under the excited-utterance exception, and second, that the trial court erred in not
allowing appellant to cross-examine Charles Gray about Herbert Ford’s intellectual and
emotional capacity. We affirm on both points.
Cite as 2010 Ark. App. 301
At trial, Herbert Ford testified that he knew both appellant and the victim, Freddie
Cotton. Ford testified that appellant was his nephew by marriage and that he had known
appellant “all of his life.” Freddie Cotton was Ford’s friend. Ford stated that he remembered
February 2, 2007, when Freddie Cotton was shot and killed. On the day of the shooting,
appellant arrived at Ford’s house to collect “a few dollars” that Ford owed to him. Ford testified
that he did not have the money there at his house, so he and appellant drove to Ann Prior’s
home where Ford would get the money to give to appellant. While Ford and appellant were
sitting in Miss Ann’s driveway, Freddie Cotton pulled up in his vehicle. Ford testified that he
did not make it inside Ann’s home to get the money before appellant and Freddie Cotton began
exchanging “some words.” Ford described the exchange as “fussing.” Ford stated that
appellant and Freddie Cotton were friends and that he had witnessed them “talk back and forth
like that” before. However, on this occasion, their argument escalated into a fight. Ford
testified that the argument “got so heated up, [he] got out of the car.” He hurriedly said to
appellant, “Hey, man, I’ll get with you later,” and Ford went immediately to his home.
Ford testified that he did not look back and watch appellant and Cotton fighting. He also
stated that he did not hear any gunshots until he got inside his home. However, he stated that
he did not look outside the window and did not see Freddie Cotton lying in the street. After he
heard the gunshots, Ford quickly left his home on his bicycle and rode to his sister’s home that
was nearby. Ford testified that his sister was married to Charlie Gray, who was appellant’s uncle.
When he arrived at his sister’s house, Charlie was the only person there. He told Charlie that
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he “heard some shots” but that was all he said. He denied telling Charlie that appellant shot
Freddie Cotton.
When presented with a transcript of a statement labeled “Taped Interview with Herbert
Ford,” Ford testified that he did not recall giving a taped interview to police. Specifically, he
stated that he was not denying it, but rather that he did not remember giving it. He denied
telling police in the taped interview what he saw the day Cotton was killed. He denied making
the statement that “the only person [he] could think of who shot Freddie was Diggins because
only the three of [them] were out there.” He also denied telling police that “[he] saw Freddie
on the ground or that [he] saw Diggins standing in the street with a gun in his hand.” He
testified that he was denying the statements because he did not “know anything about that.” He
testified that he did not read or write, thus, he would not be able to read from the transcript of
the taped interview. He also testified that he was disabled due to problems with his neck and
back. He stated that he did not want to testify at trial and was present only because of the
subpoena. However, he stated that he was “not afraid to testify.”
The prosecutor then played Ford’s tape-recorded statement. Again, Ford denied that it
was his voice on the recording, alleging that the taped voice did not sound like his voice, and
stated that he thought that someone was impersonating him.
Odetric Hill testified that he was supposed to meet appellant at Ann Prior’s house on
February 2, 2007. On that day when he arrived, appellant was sitting in his car in Ann’s
driveway. He testified that he did not know Herbert Ford. Hill stated that he got into
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appellant’s vehicle on the passenger side and that no one else was in the vehicle. He further
described how two to three minutes later, Freddie Cotton arrived at Ann’s house and that
appellant and Cotton began to argue. At first, Hill did not pay much attention to the arguing
because they “[were] friends.” However, when the two began to “exchange blows,” Hill began
to take notice. Hill testified that appellant got out of the vehicle and stood between the vehicle
and the open car door; Cotton stood on the other side of the open car door. Hill testified that
at that moment, he did not see either man with a gun. Appellant and Cotton then “threw a
couple of hands,” and appellant got back into the vehicle and reached under the seat. Hill
stated, “He got a gun from under the seat.” Hill testified that before he realized what was
happening, three to four shots were fired. At that moment, Hill got out of the car and “took
off running.” Hill estimated that twelve to thirteen shots total were fired. He testified that he
did not see a gun in Cotton’s possession, but he nevertheless ran from the situation because he
did not know whether Cotton would be returning fire. Hill’s goal was to “get out of the way.”
Hill testified that appellant got back inside his vehicle and began backing out of Miss Ann’s
driveway. After appellant left the driveway, Hill saw Cotton lying in the street. Hill left the
scene in his vehicle.
Charles Gray testified that appellant was his nephew, and Herbert Ford was his brotherin-law. Gray was not present at the scene when Cotton was shot and killed, but he was aware
of what had happened because he spoke with Herbert Ford just after the incident. At that
moment, defense counsel objected to “anything that Herbert Ford said to [Gray],” alleging
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hearsay. The prosecution responded that he was about to provide a foundation that would
permit the court to allow the statements under the excited-utterance exception to the hearsay
rule. The court took the objection under advisement and allowed the State to proceed.
Gray testified that Ford arrived at his home on a bicycle and that he was “tired, huffing
and he was riding real fast . . . he was just in a frantic.” Gray stated that Ford was “tired” and
“not acting any different than [he had] seen him in the past.” However, Gray stated that he was
under the impression that “something disturbed [Ford],” and that Ford was “upset.” Ford’s
behavior prompted him to ask Ford, “What’s wrong with you?”
At that moment, the prosecutor advised the court that the testimony fit within the
excited- utterance exception to the hearsay rule. Defense counsel argued that the declarant’s
statement was not an excited-utterance. The trial court determined that the excited-utterance
exception applied under these facts where the testimony showed that the declarant heard
gunshots, quickly rode his bicycle to his sister’s home, and behaved in such a frantic, upset, and
disturbed manner that Gray was prompted to ask him what was wrong with him.
Gray continued by testifying that Ford said that “he had just seen a killing.” Ford said
that “[Gray’s] nephew had shot—had got into it with Freddie Cotton and shot Freddie Cotton.”
On cross-examination, Gray testified that Ford had “mental problems.” At this point, the State
objected, stating that the question was beyond the scope of cross-examination. The trial court’s
response was that defense counsel had not provided a foundation for Gray’s ability to testify as
to Ford’s “mental condition.” The trial court asked for Gray’s qualifications. Gray responded
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that “[he] was not a doctor . . . [but he had] known Mr. Ford for over 30 years.” Defense
counsel then asked Gray if Ford had “the mental capacity of a grown man,” to which the State
objected. The trial court sustained the objection reiterating that the question required that
defense counsel lay a foundation. The trial court informed defense counsel that if he would lay
a proper foundation, he could ask the question. However, defense counsel did not proceed with
any further questions.
After the conclusion of the trial, the jury convicted appellant of second-degree murder
and sentenced him to consecutive imprisonment terms of thirty years for the murder with an
additional ten years for employing the use of a firearm as a means of committing a felony. This
appeal followed.
Appellant’s first argument on appeal is that the trial court erred in allowing the State to
introduce into evidence through the testimony of Charles Gray a hearsay statement made by
Herbert Ford under the excited-utterance exception. “Decisions by a trial court with respect to
evidentiary rulings are entirely within the court’s discretion, and will not be reversed absent an
abuse of that discretion.” Fudge v. State, 341 Ark. 759, 768, 20 S.W.3d 315, 320 (2000), cert. denied,
531 U.S. 1020 (2000). The excited-utterance exception found at Arkansas Rule of Evidence
803(2) provides that a statement will not be excluded as hearsay if it “relat[es] to a startling event
or condition made while the declarant was under the stress of excitement caused by the event
or condition.” “[I]t is within the trial court’s discretion to determine whether a statement was
made under the stress of the excitement or after the declarant has calmed down and had an
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opportunity to reflect.” Fudge, 341 Ark. at 769, 20 S.W.3d at 320. The Arkansas Supreme Court
has adopted the following factors to consider when determining whether a statement falls under
the excited-utterance exception: the lapse of time, the age of the declarant, the physical and
mental condition of the declarant, the characteristics of the event, and the subject matter of the
statement. Killcrease v. State, 310 Ark. 392, 395, 836 S.W.2d 380, 381–82 (1992) (adopted from
United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001 (1981)).
Appellant alleges that the statements to Gray were merely the product of reflection and
deliberation and do not fall under the excited-utterance exception to the hearsay rule. As
authority for this proposition, appellant cites us to Rodriguez v. State, 372 Ark. 335, 276 S.W.3d
208 (2008). However, the facts in Rodriguez are distinguishable from the facts at hand. In
Rodriguez, the court found that the requirements of the excited-utterance exception were not met
where almost two days had passed between the incident and the statement and where the
declarant’s demeanor was calm when the statements were made to police. Id. at 338, 276 S.W.3d
at 212. Here, testimony revealed that just prior to Ford making the statement at issue, Ford had
been with appellant and the victim when they began to argue. Ford made a quick escape to his
home. He immediately heard gunfire. He quickly rode his bicycle to his sister’s house where
he found Gray. Gray testified that Ford was “frantic,” “tired,” “huffing,” and “riding real fast.”
Gray testified that Ford seemed “disturbed.” When asked about his behavior, Ford responded
that appellant and Cotton had just gotten into an argument and that appellant shot Cotton.
Under the facts presented in this case, we see no abuse of discretion in the finding that Ford’s
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statements were made while still under the stress of the incident.
Appellant’s second argument was that the trial court erred in not allowing appellant to
cross-examine Charles Gray about Herbert Ford’s intellectual and emotional capacity. On
appeal, appellant makes the argument that Gray’s thirty-year relationship with Ford was a proper
foundation for Gray to testify as to Ford’s mental condition. We agree with the State that
because appellant failed to make this argument below, we will not consider it. See Echols v. State,
326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997) (stating that even a
constitutional argument is waived if it is not presented to the trial court); Aydelotte v. State, 85 Ark.
App. 67, 146 S.W.3d 392 (2004) (stating that it is well settled that we will not consider an
argument raised for the first time on appeal).
Based on the foregoing, we affirm.
GRUBER and MARSHALL, JJ., agree.
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