Lewis v. State
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Cite as 2012 Ark. App. 184
ARKANSAS COURT OF APPEALS
DIVISION II
No. CACR 11-341
Opinion Delivered
DANIEL LEWIS
APPELLANT
February 29, 2012
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FOURTH DIVISION,
[NO. CR-2009-963]
V.
HONORABLE HERBERT WRIGHT,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
ROBIN F. WYNNE, Judge
Appellant Daniel Lewis appeals following his convictions for aggravated robbery and
theft of property, arguing that the trial court erred by denying his motion in limine and his
motion for mistrial. We affirm.
The State charged Lewis with two counts of aggravated robbery and two counts of
theft of property following a robbery at a Twin City Bank branch in southwest Little Rock
on February 5, 2009. On that date, Lewis waived his Miranda rights and gave a voluntary
statement in which he confessed to using a firearm to rob the bank and steal a car. Prior to
trial, Lewis moved to suppress his confession, arguing that it was coerced. That motion was
denied after a hearing. Lewis later filed a motion in limine to preclude the State from using
his confession or, alternatively, to sanction the State for destroying potentially exculpatory
evidence. In support of that motion, Lewis argued that the State failed to provide a copy of
a surveillance video of the room where he had been held and interrogated.
Cite as 2012 Ark. App. 184
During the hearing on the motion in limine, detectives testified that each interrogation
room is monitored by a video/audio camera that records constantly but, due to technology
constraints, records over itself every thirty days. Although there is no written policy with
regard to the system, it is generally understood that it exists for administrative purposes in the
event a suspect alleges a detective behaved inappropriately. In that case, the recording can be
retrieved upon request, as long as the request is made within thirty days of the recording. The
system is not used as an investigative tool. Detective Terrell Vaughn, who took Lewis’s
statement, testified that he did not rely on the surveillance system to record Lewis’s
confession; rather, he used a separate tape recorder. Detective Vaughn never went back and
reviewed the surveillance video. To his knowledge, no allegation of mistreatment had been
made by Lewis in the thirty days following his interrogation. Neither Detective Vaughn nor
Sergeant Jim Lesher, who also testified at the hearing, had any reason to believe the
surveillance system was not working on the day of Lewis’s interrogation.
Ruling from the bench, the trial court denied Lewis’s motion and found that the video
recording in question did not exist. The court also found that, assuming the recording
equipment was working properly on the day of the interrogation, Lewis should have
requested a copy within thirty days if he believed something improper had taken place. Lewis
then proffered testimony that he was locked in an interrogation room all day and that repeated
requests for an attorney were denied. He alleged that, after several hours, the detectives
paraded his girlfriend—who had been with him shortly before and after the robbery
occurred—past his room and told him that if he did not give a statement, they would lock her
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up. He claimed that a female detective told him that his girlfriend would be locked up and
his children would be taken away. Lewis stated that, at that point, he agreed to give a
statement in exchange for the detectives releasing his girlfriend without charges. According
to Lewis’s proffered testimony, he was arraigned in district court the very next day and spoke
to the public defender about the circumstances surrounding his confession. However, it was
not until almost two months later that his public defender filed a general motion for discovery
on his behalf.
The case proceeded to a jury trial, and during the trial, the State sought to impeach
Terri Pippins, Lewis’s sister, based on bias. On cross-examination, the deputy prosecutor
asked Pippins if she would ever do something to help her brother “escape,” if she would bring
him something he should not have, and whether she had attempted to smuggle contraband
to Lewis when she hugged him or brought clothing for him the morning of the trial. Lewis
objected to the questioning, and the court cautioned the prosecutor about bringing too much
attention to the fact that Lewis was incarcerated pending trial. Lewis then moved for a
mistrial, which was denied. The jury found Lewis guilty of all charges, and he was sentenced
to a total of fifty years’ imprisonment. This appeal followed.
Motion in Limine
Lewis’s first point on appeal is that the trial court erred by denying his motion in
limine regarding the surveillance video. The decision to admit or exclude evidence is within
the sound discretion of the trial court, and we will not reverse a trial court’s decision regarding
the admission of evidence absent a manifest abuse of discretion. Morris v. State, 358 Ark. 455,
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458, 193 S.W.3d 243, 246 (2004). Moreover, we will not reverse absent a showing of
prejudice. Id.
Lewis contends that the trial court erred by finding that the surveillance video “never
existed.” It is possible that Lewis misconstrues this ruling, because at no point did the trial
judge say that the video “never existed.” It is unclear from reviewing the transcript whether
the judge found that the video never existed or that it no longer existed at the time Lewis
requested a copy of it. In either case, the trial court properly denied Lewis’s motion. The
State is only required to preserve evidence that is expected to play a significant role in the
defense, and then only if the evidence possesses both an exculpatory value that was apparent
before it was destroyed and a nature such that the defendant would be unable to obtain
comparable evidence by other reasonably available means. Autrey v. State, 90 Ark. App. 131,
142, 204 S.W.3d 84, 89 (2005). To prove a due-process violation based on the destruction
of potentially useful evidence, the defendant must also show bad faith on the part of the State.
Id., 204 S.W.2d at 90. At least two of these elements are not present in this case.
Although Lewis argues that the detectives’ knowledge of the surveillance system’s
purpose meant they understood the video’s exculpatory function, the record contains no
evidence that any exculpatory value in this particular recording was apparent before its
destruction. The testimony at the motion hearing indicated that no request for the video or
allegation of misconduct had been made until well after thirty days had passed. The State
could not have known at that time that the video would become important to Lewis’s case.
Lewis points to the testimony of a Federal Bureau of Investigations agent, Special Agent John
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Brunell, who stated that, prior to giving his statement, Lewis expressed concern about officers
fabricating charges against his girlfriend. However, that testimony was taken at a different
hearing—the hearing on Lewis’s initial motion to suppress—several months before the
surveillance video ever became an issue, and Special Agent Brunell did not testify at the
hearing on Lewis’s motion in limine. Furthermore, the testimony itself does not support
Lewis’s argument. According to Special Agent Brunell, Lewis only expressed concern that
his girlfriend would become involved; he did not indicate that he had been threatened with
her involvement.
Furthermore, Lewis has not shown that the detectives acted in bad faith. We have
held that a bare contention of bad faith, without supporting facts, does not demonstrate that
the State acted in bad faith in destroying evidence. Autrey, 90 Ark. App. at 142, 204 S.W.3d
at 90. Evidence that police followed standard operating procedures constitutes evidence that
they acted in good faith. Id. Although Lewis contends that there was no official policy or
procedure for the detectives to follow in this case, the testimony merely indicated that there
was no written policy. Both Sergeant Lesher and Detective Vaughn testified regarding the
system’s purpose, who had access to the recordings, and under what circumstances the
recordings would be retained. Therefore, a policy did exist, and from all accounts, the State
followed that policy. Yet even if there had been no policy, Lewis has not cited to any
authority to support his argument that “bad faith can and should be inferred from the lack of
any official retention policy for these recordings.” It is axiomatic that this court will not
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entertain an argument where there is no citation to authority or convincing legal argument.
Mills v. State, 351 Ark. 523, 529, 95 S.W.3d 796, 799 (2003).
Also, Lewis argues that it places an unreasonable burden on defendants to require them
to request a copy of the surveillance video within thirty days, and he points to the fact that
his public defender did not file a motion for discovery until sixty-five days after the
interrogation. We find this argument unpersuasive, as it requires the assumption that a
defendant cannot request a copy of the video without the assistance of an attorney. That
simply is not true. Even if it were true, Lewis himself admitted during his proffered testimony
that he was arraigned the very next day after the interrogation and that he discussed the
circumstances of his confession with a public defender at that time. Presumably, if Lewis
believed that his confession had been coerced, he would have raised the issue at that time,
well within the thirty-day limit. To the extent that he contends the assistance of an attorney
was necessary to do that, it is clear he had access to that kind of assistance within twenty-four
hours of giving the allegedly coerced statement.
Motion for Mistrial
For his second point on appeal, Lewis argues that improper comments by the
prosecuting attorney violated his right to a fair trial and that the trial court erred by not
granting his motion for mistrial. A mistrial is a drastic remedy, to be employed only when
an error is so prejudicial that justice cannot be served by continuing the trial and when it
cannot be cured by an instruction to the jury. Peters v. State, 357 Ark. 297, 302, 166 S.W.3d
34, 36 (2004). The decision to grant a mistrial is within the sound discretion of the trial court
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and will not be overturned absent a showing of abuse or manifest prejudice to the appellant.
Id. Among the factors we consider on appeal is whether the defendant requested a cautionary
instruction or admonition to the jury, and the failure of the defense to request an admonition
may negate the mistrial motion. Bragg v. State, 328 Ark. 613, 627, 946 S.W.2d 654, 662
(1997). The failure to give an admonition or cautionary instruction is not error where none
is requested. Id. In addition, we consider whether the prosecutor deliberately induced a
prejudicial response. Parker v. State, 355 Ark. 639, 650, 144 S.W.3d 270, 276 (2004).
In this case, although Lewis moved for a mistrial after the offending questions had been
asked, he did not request a cautionary instruction or admonition to the jury. This bars him
from arguing that the court erred by not attempting to cure any prejudice the questions may
have caused. Further, it is not apparent that the prosecutor deliberately attempted to induce
a prejudicial response. The purpose of the questions was to impeach the witness, not to
inform the jury that Lewis remained incarcerated pending resolution of the trial. In any
event, any resulting error was harmless and would not warrant reversal. See Tallant v. State,
42 Ark. App. 150, 154, 856 S.W.2d 24, 26 (1993). The jury was presented with ample
evidence proving Lewis’s guilt, including his own confession. The prosecutor’s reference to
Lewis’s pretrial incarceration was insignificant given the entire facts of the case.
Affirmed.
GLADWIN, J., agrees.
HART, J., concurs.
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Cite as 2012 Ark. App. 184
HART, J., concurring. I agree that this case must be affirmed. I write separately
because I have analyzed the case differently than the majority.
Regarding Lewis’s argument about the destruction of “potentially useful evidence,”
I agree with the majority that the controlling authority is Wenzel v. State, 306 Ark. 527, 815
S.W.2d 938 (1991), and that Lewis failed to demonstrate that all of the prongs in the tripartite
Wenzel analysis were satisfied. However, I believe that the case was much closer than the
majority suggests. I agree with Lewis that the exculpatory value of the evidence, if any, was
apparent to the police at the time of the destruction.1 Likewise, I agree that he was unable
to obtain evidence comparable to the destroyed video.2 However, the record fails to show
that the police acted in bad faith. Although no formal retention policy existed, there was
likewise no proof that anything had occurred besides the recording being taped over on the
regular thirty-day cycle. Accordingly, I believe that the case-at-bar is analogous to Autrey
v. State, 90 Ark. App. 131, 204 S.W.3d 84 (2005). I decline to subscribe to Lewis’s
contention that bad faith should be inferred from the lack of any official retention policy.
I have also analyzed differently Lewis’s argument that the trial court erred in denying
his motion for a mistrial—I believe that the situation was properly handled by the trial court.
It is not apparent that the prosecutor was deliberately attempting to elicit a response from the
witness that would draw undue attention to the fact that Lewis was incarcerated prior to trial.
1
Obviously, if the police coerced Lewis’s confession, they were aware of their actions.
2
An actual video record of the events is qualitatively different from the testimony of
interested parties. It had the potential to provide, to borrow a phrase from the world of
football, “indisputable video evidence.”
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The question was asked to impeach the witness, essentially inquiring whether the witness
might do anything she could—legally or illegally—to help her brother. Nonetheless, the trial
judge cautioned the prosecutor and ended that line of questioning. It is settled law that a
trial court has “wide latitude of discretion” in the control of a trial. Richmond v. State, 302
Ark. 498, 791 S.W.2d 691 (1990). Moreover, the trial judge is in a better position to
evaluate the prejudicial effect of the question than an appellate court. Id. Accordingly, I
believe that we need not bar Lewis’s argument or engage in harmless-error analysis—I
contend there was no trial error in denying a mistrial.
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