noting that “once a witness acknowledges having made a prior inconsistent statement, the witness’s credibility has successfully been impeached”
How later courts described this case
- noting that “once a witness acknowledges having made a prior inconsistent statement, the witness’s credibility has successfully been impeached”
Written by the judges who cited it.
The opinion
Cite as 2014 Ark. 294
SUPREME COURT OF ARKANSAS
No. CR-13-686
DONNIE MAIDEN Opinion Delivered June 26, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
[NO. CR-12-578]
STATE OF ARKANSAS HONORABLE WENDELL L.
APPELLEE GRIFFEN, JUDGE
AFFIRMED.
JIM HANNAH, Chief Justice
Appellant, Donnie Maiden, was convicted of premeditated and deliberate capital
murder and was sentenced to a term of life imprisonment without parole.1 The conviction
arose as a result of the shooting death of Kylaus Williams. On appeal, Maiden contends that
(1) the circuit court abused its discretion when it prevented him from impeaching Tim
Bradley with his prior acts of untruthfulness; (2) the circuit court abused its discretion when
it prevented him from impeaching Trenell Emerson with his prior inconsistent statements;
(3) the circuit court erred in denying his motion for mistrial based on discovery violations; (4)
the overlap of Arkansas Code Annotated sections 5-10-101(a)(4) and 5-10-102(a)(2) (Repl.
2013) violates article 2, section 3, of the Arkansas Constitution; (5) the circuit court
committed reversible error when it ridiculed defense counsel in the jury’s presence; and (6)
1
The State waived the death penalty.
Cite as 2014 Ark. 294
the circuit court abused its discretion when it failed to conduct a hearing pursuant to Daubert
v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) before admitting expert testimony about
a palm print found at the scene of the murder and identified as Maiden’s. Because this is a
criminal appeal in which a sentence of life imprisonment without parole has been imposed,
our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We affirm the
circuit court.
Because Maiden does not challenge the sufficiency of the evidence against him, only
a brief recitation of the facts is necessary. On November 7, 2011, Williams’s body was found
at 6907 Highway 161 in Pulaski County; the cause of death was multiple gunshot wounds.
As a result of its investigation into Williams’s death, the Pulaski County Sheriff’s Office
developed Maiden and Emerson as suspects, and they were later arrested at an Arizona bus
station. Both were charged with capital murder.
The testimony adduced at Maiden’s trial reveals that on November 7, Tim Bradley and
Williams, along with Bradley’s cousin, Leroy Butler, drove to a motel, where they picked up
Maiden and Emerson. The five drove to another hotel, and Bradley exited the car to purchase
a drink from a nearby convenience store. While he was gone, Williams left to sell some
marijuana for Maiden. As they were waiting to hear from Williams, Butler left.
Williams later called and reported that he had been robbed and asked them to pick him
up. Maiden drove, Emerson was in the seat behind him, and Bradley was in the passenger’s
seat. After arriving at Williams’s location, Maiden joined Emerson in the backseat of the car,
and Williams drove the four of them to “B. house” at Maiden’s request. Upon their arrival
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at B. house, Williams stopped the car and Bradley began to exit the car to use the restroom.
Maiden then opened his door to exit the car and shot Williams, and Bradley took off running.
Maiden dragged Williams’s body out of the car, and he and Emerson left the scene.
Maiden and Emerson eventually abandoned the car and ran. Maiden then called a taxi,
which took him and Emerson to a hotel in downtown Little Rock. Subsequently, they
bought bus tickets and boarded a Greyhound bus to California. Using the cell phone number
that the men had used to register at the hotel, Arkansas police tracked the GPS coordinates
of the phone and were able to determine the men’s location. The bus was stopped by police
in Phoenix, Arizona, and the men were taken into custody by the Phoenix police.
Maiden first contends that the circuit court abused its discretion by preventing him
from impeaching Tim Bradley, a witness for the State, with his prior acts of untruthfulness.
Specifically, Maiden contends that the circuit court abused its discretion when it would not
allow him to impeach Bradley with evidence of a pending charge for theft and providing a
false name to police. According to Maiden, this evidence was admissible pursuant to Arkansas
Rule of Evidence 608(b) (2013) to show that Bradley had lied during voir dire when he
testified that the charge had been dismissed.
The State counters that, because Rule 608(b) is intended to be restrictive, the circuit
court did not act arbitrarily or groundlessly by refusing to permit Bradley’s cross-examination
with either the pending theft charge or his testified belief that the charge had been dismissed.
The State asserts that this court has long held that evidence of previous thefts are not
probative of truthfulness and, thus, Bradley could not have been impeached with the theft
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charge. Moreover, according to the State, any misunderstanding on Bradley’s part regarding
the status of any charge against him was not evidence that he was lying.
The decision to admit or exclude evidence is within the sound discretion of the
circuit court, and we will not reverse that decision absent a manifest abuse of discretion. E.g.,
Laswell v. State, 2012 Ark. 201, at 17, 404 S.W.3d 818, 828. The abuse-of-discretion standard
is a high threshold that does not simply require error in the circuit court’s decision, but
requires that the circuit court act improvidently, thoughtlessly, or without due consideration.
E.g., Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004). In addition, we will not
reverse a ruling on the admission of evidence absent a showing of prejudice. E.g., Davis v.
State, 350 Ark. 22, 38, 86 S.W.3d 872, 882 (2002).
Rule 608(b) states:
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for
the purpose of attacking or supporting his credibility, other than conviction of crime
as provided in Rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of truthfulness or untruthfulness,
be inquired into on cross-examination of the witness (1) concerning his character for
truthfulness or untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness being
cross-examined has testified.
This court has interpreted Rule 608 to permit inquiries on cross-examination into
conduct that is clearly probative of truthfulness or untruthfulness but to disallow
cross-examination into specific instances that are merely probative of dishonesty. E.g., Bailey
v. State, 334 Ark. 43, 56, 972 S.W.2d 239, 246 (1998). This court has adopted a three-part
test for admissibility: (1) the question must be asked in good faith, (2) the probative value
must outweigh its prejudicial effect, and (3) the prior conduct must relate to the witness’s
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truthfulness. Id., 972 S.W.2d at 246.
In the instant case, before cross-examination of Bradley, defense counsel asked to voir
dire Bradley about his prior conviction for theft. During voir dire, Bradley admitted that he
had been arrested in 2009 for theft or shoplifting in Louisiana, but he testified that the charge
had been dismissed, that he never had to pay a fine, and that he had not been incarcerated
or placed on probation. Based on Bradley’s testimony that he had no prior conviction,
defense counsel conceded that he had no basis for extrinsic proof to impeach Bradley under
Arkansas Rule of Evidence 609(a)(2) (2013).2 Defense counsel did state, however, that his
position might change if further evidence developed.
Later in the trial, defense counsel proffered a letter from the City Court of Monroe,
Louisiana, stating that Bradley has a case “open and pending” there involving charges of theft
and resisting an officer by refusing to give a name. Because the theft charge had not been
dismissed, as Bradley had testified, defense counsel moved to impeach Bradley under Rule
608(b). That motion was denied. Defense counsel renewed the motion later in trial and
proffered the Louisiana information charging Bradley with theft and resisting an officer by
refusing to give a name, as well as the testimony of the arresting officer.
The circuit court did not abuse its discretion in refusing to permit defense counsel to
impeach Bradley under Rule 608(b). Even assuming that defense counsel’s inquiries about
prior conduct were asked in good faith and that the probative value outweighed the
2
Rule 609(a)(2) states that, for the purpose of attacking the credibility of a witness,
evidence that a witness has been convicted of a crime shall be admitted if the crime involved
dishonesty or false statement, regardless of the punishment. Ark. R. Evid. 609(a)(2).
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prejudicial effect, see Bailey, 334 Ark. at 56, 972 S.W.2d at 246, Maiden fails to demonstrate
that the prior conduct relates to Bradley’s truthfulness. The evidence offered by Maiden to
impeach Bradley was a letter stating that Bradley had a pending case involving charges of
theft and failure to give his name to a police officer.3 We cannot say that this letter offered
sufficient proof that Bradley lied during his prior testimony. Moreover, even if Bradley had
a pending theft charge, Maiden would not be allowed to impeach him on this basis. This
court has held that evidence about a witness’s prior theft is not probative of truthfulness. E.g.,
Watkins v. State, 320 Ark. 163, 167, 895 S.W.2d 532, 535 (1995). The circuit court did not
abuse its discretion in refusing to allow defense counsel to impeach Bradley under Rule
608(b).
In his second point on appeal, Maiden contends that the circuit court abused its
discretion by preventing him from impeaching the sole eyewitness, Trenell Emerson, with
his prior inconsistent statements. During cross-examination, when asked about statements he
had made to Detective Jay Massiet, Emerson either denied, or could not recall, having made
several statements. Maiden then tried to impeach Emerson by having him review the
transcribed statement; however, Emerson stated that nothing in the statement looked like
anything he had said. As a result, during Massiet’s cross-examination, Maiden tried to
impeach Emerson’s testimony by having Massiet confirm that Emerson had made the
3
Relying on McKinnon v. State, 287 Ark. 1, 695 S.W.2d 826 (1985), Maiden contends
that the circuit court abused its discretion in refusing to allow him to cross-examine Bradley
about the use of a false name. This is raised for the first time on appeal, and, notably, Bradley
was never questioned by defense counsel about any charge related to his failure to give his
name to a police officer.
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statements. The circuit court sustained the State’s hearsay objection. Relying on Arkansas
Rule of Evidence 613(b) (2013), as applied in Scamardo v. State, 2013 Ark. 163, 426 S.W.3d
900, Maiden contends that the circuit court abused its discretion by refusing to allow him
to impeach Emerson with extrinsic evidence of prior inconsistent statements.
The State counters that the circuit court did not abuse its discretion in denying
Maiden’s attempt to elicit the testimony from Massiet because any inconsistencies in
Emerson’s statements were brought out during his testimony, and it was not necessary to
further question Massiet to present a veracity issue to the jury. The State points out that
Emerson repeatedly admitted that he had lied to investigators.
As previously stated, we review the circuit court’s decision to admit or exclude
evidence under an abuse-of-discretion standard. Laswell, supra. Rule 613(b) states that
[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible
unless the witness is afforded an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate him thereon, or if the interests
of justice otherwise require.
Thus, pursuant to Rule 613(b), three requirements must be met before extrinsic
evidence of a prior inconsistent statement is admissible: (1) the witness must be given the
opportunity to explain or deny the inconsistent statement; (2) the opposing party must be
given the opportunity to explain or deny the witness’s inconsistent statement; and (3) the
opposing party must be given the opportunity to interrogate the witness about the
inconsistent statement. However, this court has held that when the witness admits having
made the prior inconsistent statement, Rule 613(b) does not allow introduction of extrinsic
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evidence of the prior statement to impeach the witness’s credibility. See Yankaway v. State,
366 Ark. 18, 21, 233 S.W.3d 136, 139 (2006).
In analyzing the application of Rule 613(b), this court in Scamardo stated that when
a witness is asked about a prior statement and either denies having made it or fails to
remember having made it, extrinsic evidence of the prior statement is admissible. We
explained that impeachment of a witness by introducing extrinsic evidence of a prior
inconsistent statement through the testimony of a second witness or through the admission
of documentary evidence, regardless of whether the statement was given under oath, must
be allowed, otherwise Rule 613(b) would have no meaning. Scamardo, 2013 Ark. 163, at 9,
426 S.W.3d at 905.
Here, Maiden sought to impeach Emerson by demonstrating that he had given
different statements to Massiet about possessing marijuana, the purpose for buying guns, and
who had hired a cab when Emerson and Maiden were escaping. At trial, Emerson testified
that he did not possess any marijuana but subsequently admitted having one pound of it.
Emerson also testified that he bought guns in Arkansas to sell in California but that he could
not remember giving Massiet such information. Finally, when asked whose idea it was to
get off the Greyhound bus in Arizona and to catch a cab, Emerson answered, “We found
somebody.” On cross-examination, Emerson testified that it was actually Maiden’s idea to
catch a cab but denied any recollection of telling Massiet that he did not remember if it was
Maiden’s idea or his brother’s idea.
Although Maiden is correct that he complied with Rule 613(b), because Emerson was
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asked about the prior statements and both sides were given the opportunity to raise questions
about the inconsistent statements, he has failed to demonstrate prejudice that warrants
reversal. Emerson’s testimony was riddled with inconsistencies, and he even admitted having
given false prior statements; thus, Maiden was not denied the opportunity to call Emerson’s
veracity into question and to challenge his credibility before the jury. This court recognized
in Kennedy v. State, 344 Ark. 433, 445, 42 S.W.3d 407, 415 (2001), that once a witness
acknowledges having made a prior inconsistent statement, the witness’s credibility has
successfully been impeached. In other words, “[a]n admitted liar need not be proved to be
one.” Id., 42 S.W.3d at 415 (quoting Ford v. State, 296 Ark. 8, 18, 753 S.W.2d 258, 263
(1988)).
Likewise, Maiden has failed to demonstrate that our holding in Scamardo requires
reversal in the instant case. The challenged inconsistency in Scamardo involved a prior
statement by the victim about whether she was being truthful about the accusations against
the defendant. Here, the inconsistencies regarded collateral matters, and Maiden was able
to show that Emerson had made inconsistent statements. The circuit court did not abuse its
discretion in refusing to allow Maiden to impeach Emerson with prior inconsistent
statements.
Maiden next contends that the circuit court erred in denying his motion for mistrial,
which was based on alleged discovery violations by the State. He maintains that the State
failed to timely disclose to him that Emerson would provide testimony at trial that was
inconsistent with a prior statement he had made to police. Specifically, he points to Emerson’s
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testimony at trial that he had actually witnessed Maiden shoot Williams, which contradicted
his prior statement to police and was disclosed by the State, that he was at the side of the
house when the shots were fired. He claims that the change in Emerson’s testimony was both
material and prejudicial because it was not discovered until after Emerson had testified and
that the circuit court’s attempt to cure any prejudice was insufficient. The State contends that
the circuit court did not abuse its discretion in denying Maiden’s mistrial motion because he
cannot show that the omission was sufficient to undermine the confidence in the outcome of
the trial.
The decision to grant or deny a motion for mistrial is within the sound discretion of
the trial court and will not be overturned absent a showing of abuse or manifest prejudice to
the appellant. E.g., Johnson v. State, 366 Ark. 8, 13, 233 S.W.3d 123, 127 (2006). A mistrial
is a drastic remedy and should be declared only when there is error so prejudicial that justice
cannot be served by continuing the trial, and when it cannot be cured by an instruction to the
jury. E.g., Tryon v. State, 371 Ark. 25, 42, 263 S.W.3d 475, 488 (2007). With respect to
motions for mistrial based on Arkansas Rule of Criminal Procedure 17.1, we have observed
that a mistrial is an extreme sanction for a prosecutorial discovery violation and is to be
avoided unless the fundamental fairness of the trial itself is at stake. See Thompson v. State, 322
Ark. 586, 589, 910 S.W.2d 694, 696 (1995).
At trial, Emerson testified that he had witnessed Maiden shoot Williams. He further
testified that when he provided his statement in Arizona, he was not telling the truth when
he stated that he was not in the car when the shots were fired. On cross-examination,
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Emerson admitted that when he spoke with officers in Arizona, he was lying when he told
them that he had been at the side of the house. The next day, outside the presence of the jury,
counsel for Maiden moved for a mistrial, asserting that the defense had learned after Emerson
had testified that Emerson had given the prosecuting attorney a statement a week-and-a-half
before trial that was consistent with his testimony but inconsistent with his prior statement
to Arizona police. Maiden contended that the recent statement had not been disclosed by the
State, in violation of Rule 17.1.
The State responded that it was not required to disclose Emerson’s recent statement
because it was work product and, thus, it had to be disclosed only if it was written or
recorded. However, after a brief recess to research the issue, the State acknowledged that it
should have provided the change in Emerson’s statement to the defense. The State apologized
for its mistake and asserted that its failure to disclose the information was in no way
intentional. The circuit court then held a brief evidentiary hearing, at which Lloyd Warford,
counsel for Emerson, confirmed that he had been with Emerson days before when Emerson
gave a statement to the prosecution and that Emerson changed his story from being at the side
of the house when the shooting occurred to being in the car and seeing Maiden fire the
weapon. Warford also confirmed that he had not informed Maiden’s counsel about the change
in the statements.
Maiden argued to the circuit court that he was prejudiced by the prosecution’s failure
to disclose because his defense was unable to adequately prepare for Emerson’s cross-
examination. In addition, Maiden claimed that he was prejudiced by the discovery violation
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because his defense was premised on the fact that there had been no eyewitness to the
shooting and that defense counsel had emphasized in his opening statement that “no one is
going to get on this witness stand and tell you they saw it.”
The circuit court found that the prosecution had an obligation under Rule 17.1(a) to
disclose to Maiden’s defense counsel that Emerson had made a statement that was inconsistent
with his original statement relating to his presence at the time of the shooting. The circuit
court found that the inconsistency in the statements was material and that the State’s failure
to disclose the inconsistency was prejudicial because “the inability to know about this
certainly had a bearing on whether or not the defense would have been able to anticipate
before Trenell Emerson testified that he would testify in a way different from his previously
disclosed statements.” The circuit court then found that there was a remedy to cure any
prejudice and outlined the steps that would be taken to execute that remedy:
The Court believes that it can cure the prejudice by (A) requiring the State to re-call
Trenell Emerson, disclose the prior inconsistent statement, disclose the fact that it did
not inform defense counsel about the change in statement until after the trial began
and disclose the fact that the new statement is, in fact, inconsistent with the prior
statement.
The defense will then have ample opportunity to cross-examine Trenell
Emerson on both the prior inconsistent statement and the changed statement.
There was cross-examination yesterday about the inconsistency, but I’m giving
you a chance for additional cross-examination in view of the disclosures made this
morning.
I will inform the jury that they are to remember my instruction that arguments
of counsel during opening statement and remarks during trial are not evidence, and
that will be the cure for the prejudice.
In addition, the circuit court informed both sides that it would have a record of the
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hearing sent to the Supreme Court Committee on Professional Conduct. The circuit court
then denied Maiden’s motion for mistrial.
Upon the jury’s return to the courtroom, the circuit court reminded the jury of its
instruction at the beginning of the trial “that statements of counsel or remarks of the attorney
during opening statements and remarks during the trial are not evidence and they’re not to
be treated . . . as evidence.” In accordance with the circuit court’s ruling, the prosecutor then
told the jury that the change in Emerson’s testimony “from being outside the car and then
inside the car witnessing this was not informed to defense counsel . . . until Emerson testified
on the stand yesterday.” The State then recalled Emerson, who reemphasized in his
testimony that he had lied to the Arizona police about being outside the car when Williams
was shot. On cross-examination, he testified that the first time he told the prosecutors that he
had been in the car during the shooting was three days before trial.
There is no dispute among the parties that the State’s failure to disclose the change in
Emerson’s statements to the defense was a violation of Rule 17.1(a), which provides, in
relevant part, that
[s]ubject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall
disclose to defense counsel, upon timely request, the following material and
information which is or may come within the possession, control, or knowledge of the
prosecuting attorney:
...
(ii) any written or recorded statements and the substance of any oral statements
made by the defendant or a codefendant.
Ark. R. Crim. P. 17.1(a)(ii). We have held that the purpose of the discovery rules is to
require the State to disclose its evidence to the defendant in time for the defendant to make
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beneficial use of the information. E.g., N.D. v. State, 2011 Ark. 282, at 10, 383 S.W.3d 396,
401. The key to determination for a reversible discovery violation is whether the appellant
was prejudiced by the prosecutor’s failure to disclose. E.g., Bray v. State, 322 Ark. 178, 180,
908 S.W.2d 88, 89 (1995). If the State does not provide information pursuant to pretrial
discovery procedures, the burden is on the appellant to establish that the omission was
sufficient to undermine confidence in the outcome of the trial. Id., 908 S.W.2d at 89.
Maiden claims that the relief granted by the circuit court to cure any prejudice
resulting from the State’s failure to disclose was insufficient. We disagree. Pursuant to Arkansas
Rule of Criminal Procedure 19.7(a) (2013),
[i]f at any time during the course of the proceedings it is brought to the attention of
the court that a party has failed to comply with an applicable discovery rule or with
an order issued pursuant thereto, the court may order such party to permit the
discovery or inspection of materials not previously disclosed, grant a continuance,
prohibit the party from introducing in evidence the material not disclosed, or enter
such other order as it deems proper under the circumstances.
Although defense counsel did state in the opening statement that “you’re never going
to hear anyone throughout the entire course of this trial say that they saw Donnie Maiden
shoot Kylaus Williams,” it is clear from the record that the circuit court took great pains to
ensure that any prejudice was cured by instructing the jury multiple times that the statements
of counsel were not evidence, by requiring the State to admit and stipulate to the jurors that
it had not informed defense counsel of the change in Emerson’s statements, and by providing
Maiden an additional opportunity to cross-examine Emerson about the change in his
testimony. Moreover, it is well within the circuit court’s discretion which sanction to
employ. E.g., Reed v. State, 312 Ark. 82, 88, 847 S.W.2d 34, 37 (1993).
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Maiden additionally cites this court to Clements v. State, 303 Ark. 319, 796 S.W.2d 839
(1990); however, his reliance on that decision is misplaced. In Clements, the State failed to
turn over to the defense a witness’s grand-jury testimony, which conflicted with his in-court
identification of the appellant. Id. at 320–23, 796 S.W.2d at 840–42. This court held that,
under the circumstances of the case, the circuit court wrongly denied Clements’s motion for
mistrial because the appellant suffered the type of prejudice that could be cured only by a
mistrial. Id. at 324–25, 796 S.W.2d at 842–43. The court noted that the witness was an
unbiased witness, and the only witness, other than the appellant’s wife, an alleged accomplice,
to place the appellant at the scene of the crime. Id. at 325, 796 S.W.2d at 843. In addition,
this court rejected the State’s claim that any prejudice was abated by the appellant’s eventual
confrontation of the witness with his grand-jury testimony because the “trial jury was
unaware for eight days that it had heard a story from [a witness] which was totally inconsistent
with the one he had told the grand jury.” Id. at 324, 796 S.W.2d at 843.
In the instant case, Emerson testified on April 9, and counsel for Maiden moved for
mistrial the next day. After denying the motion for mistrial, the circuit court immediately
effectuated its ruling and reinstructed the jury regarding the statements of counsel. The State
then had to admit its failure to disclose, on the record and in front of the jury, and Emerson
was recalled for further examination by both sides. Further, Emerson was not an unbiased
witness like the witness in Clements. Rather, Emerson was Maiden’s codefendant.
The burden is on Maiden to show that the State’s failure to disclose Emerson’s
subsequent statement was sufficient to undermine the outcome of his trial. E.g., Lee v. State,
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340 Ark. 504, 509–10, 11 S.W.3d 553, 556 (2000). Based on the foregoing, we cannot say
that Maiden has sustained that burden. As already noted, a mistrial is a drastic remedy and
appropriate only when the error is beyond repair and cannot be corrected by any curative
relief. E.g., Henry v. State, 337 Ark. 310, 318, 989 S.W.2d 894, 898 (1999). We do not
believe that to be the case here, and we affirm the circuit court’s denial of Maiden’s motion
for mistrial.
Maiden contends in his fourth point on appeal that the overlap of Arkansas Code
Annotated section 5-10-101(a)(4), capital murder,4 and section 5-10-102(a)(2), first-degree
murder,5 violates article 2, section 3, of the Arkansas Constitution. According to Maiden, the
“same conduct constitutes capital murder and first-degree murder,” and the only difference
between the two offenses is that capital murder and first-degree murder prescribe different
punishments. Maiden argues that this statutory scheme denies him equal protection of the
law because it “creates two classes of similarly-situated individuals that differ only in arbitrary
charging decisions.”
This court has rejected the claim that our statutory scheme creates an arbitrary
classification in violation of the Equal Protection Clause of the United States Constitution.
See Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Miller v. State, 273 Ark. 508, 621
4
A person commits capital murder if, with the premeditated and deliberated purpose
of causing the death of another person, the person causes the death of any person. Ark. Code
Ann. § 5-10-101(a)(4).
5
A person commits first-degree murder if, with a purpose of causing the death of
another person, the person causes the death of another person. Ark. Code Ann. § 5-10-
102(a)(2).
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S.W.2d 482 (1981). In Miller, we stated:
Petitioner asserts a denial of equal protection of the laws, because the prosecuting
attorney may charge either capital felony murder or first-degree murder when the
murder is committed in the perpetration of robbery or six other specified felonies.
Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). Essentially the same
argument was rejected with respect to overlapping federal offenses in United States v.
Batchelder, 442 U.S. 114 (1979). There the court held that where two federal statutes
authorized different ranges of punishment for the same conduct, the prosecutor’s
discretionary decision to proceed under the more severe statute did not involve a
denial of due process or equal protection.
Id. at 510, 621 S.W.2d at 483.
Maiden concedes that the issue is settled under federal constitutional law, but he
contends that this court should conclude that the Arkansas Constitution offers him a higher
level of protection. Specifically, Maiden asserts that this court should declare the overlapping
statutory scheme a violation of article 2, section 3, of the Arkansas Constitution6 and “guard
against unfettered prosecutorial discretion resulting in arbitrary decisions.”
On occasion, this court will provide more protection under the Arkansas Constitution
than that provided by the federal courts under the United States Constitution. See, e.g.,
Polston v. State, 360 Ark. 317, 330, 201 S.W.3d 406, 413 (2005). We have stated that one
pivotal inquiry in this regard is whether this court has traditionally viewed an issue differently
than the federal courts. Id., 201 S.W.3d at 413. Maiden does not contend that this court has
traditionally viewed equal protection differently than the federal courts. Rather, in support
6
Article 2, section 3, of the Arkansas Constitution states: “The equality of all persons
before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be
deprived of any right, privilege or immunity; nor exempted from any burden or duty, on
account of race, color or previous condition.”
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of his argument, Maiden cites to cases in other jurisdictions in which state courts have
rejected the reasoning in Batchelder to hold that their respective state constitutions were
violated by overlapping criminal statutes with differing penalties. See People v. Marcy, 628
P.2d 69 (Colo. 1981); State v. Hoang, 947 P.2d 360 (Haw. 1997); State v. Clements, 734 P.2d
1096 (Kan. 1987). But he does not explain why those cases have any bearing, even as
persuasive authority, on whether the statutes at issue violate the Arkansas Constitution. This
court will not consider an argument, even a constitutional one, when the appellant presents
no citation to authority or convincing support, and it is not apparent without further research
that the argument is well-taken. E.g., Hollis v. State, 346 Ark. 175, 179, 55 S.W.3d 756, 759
(2001).
In his fifth point on appeal, Maiden contends that the circuit court committed
reversible error when it ridiculed defense counsel in the jury’s presence. According to
Maiden, the circuit court interrupted defense counsel’s cross-examination of Marlon Smith
to admonish defense counsel for “talking over” the witness and made extremely harsh and
unprofessional comments, calling defense counsel’s intelligence into question. Although
Maiden acknowledges that he failed to object to the circuit court’s comments at trial, he
asserts that the comments prejudiced the jury against him and that the error is of the type that
should be addressed by this court pursuant to the third exception provided in Wicks v. State,
270 Ark. 781, 606 S.W.2d 366 (1980).
In response, the State contends that Maiden failed to preserve any error for appellate
review because he did not contemporaneously object to the court’s statements. Moreover,
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the State maintains that Maiden fails to demonstrate how the court’s comments, which were
directed at both defense counsel and the State, as well as at some witnesses throughout the
trial, would fall under the third exception outlined in Wicks.
The specific comments made by the circuit court that Maiden claims constitute
reversible error are as follows:
THE COURT: I’m not going to make this speech again. If I cannot get
people to stop talking at the same time, I’m going to let
the jury go home and you all can just look at each other
and talk together, but I’m not going to extend the trial
past Thursday and I’m not going to hold the jury past
5:30. You’re either going to learn how to obey the
kindergarten rule that a five-year-old can obey or stop
talking when witnesses are talking; is that clear?
DEFENSE COUNSEL: It’s clear.
THE COURT: Is it crystal clear?
DEFENSE COUNSEL: Yes, Your Honor.
THE COURT: I want it to be real fast ball high and tight crystal clear.
Mr. Smith - -
WITNESS: Yes, sir, Your Honor.
THE COURT: [Defense counsel], when he’s talking, don’t say anything.
When I’m talking, nobody says anything. Five-year-old
children in a room with one person can obey this. It
befuddles me that people who have gone to law school
can’t do it. Please prove yourselves capable of obeying
what a five-year-old can do. Both sides have been doing
this. Stop it.
(Emphasis added.)
It is well settled that a contemporaneous objection is required to preserve an issue for
appeal, but this court has recognized four exceptions to the rule, known as the Wicks
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exceptions. Springs v. State, 368 Ark. 256, 260–61, 244 S.W.3d 683, 686–87 (2006). These
exceptions occur when (1) a trial court, in a death-penalty case, fails to bring to the jury’s
attention a matter essential to its consideration of the death penalty itself; (2) a trial court errs
at a time when defense counsel has no knowledge of the error and thus no opportunity to
object; (3) a trial court should intervene on its own motion to correct a serious error; and (4)
the admission or exclusion of evidence affects a defendant’s substantial rights. Id., 224 S.W.3d
at 686–87.
The third exception is a narrow one, and it has rarely been applied. In McKenzie v.
State, 362 Ark. 257, 277, 208 S.W.3d 173, 184 (2005), we reaffirmed the narrow application
of the third exception, stating it has only been applied only when a defendant’s fundamental
right to a trial by jury is at issue. We noted in Anderson v. State that the third Wicks exception
applies when “the error is so flagrant and so highly prejudicial in character as to make it the
duty of the court on its own motion to have instructed the jury correctly[.]” 353 Ark. 384,
395, 108 S.W.3d 592, 599 (2003).
We cannot say that the statements by the circuit court constituted error, let alone
error of such a serious nature as to warrant review pursuant to Wicks. As the State points out,
the circuit court did not admonish only defense counsel—it also cautioned the State and
several witnesses to follow the “kindergarten rule” when someone else is speaking.
Moreover, the circuit court’s comments were intended to maintain the decorum and dignity
of the court proceeding. Reversible error occurs when an unmerited rebuke by the circuit
court gives the jury the impression that counsel is being ridiculed. E.g., McDaniel v. State, 283
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Ark. 352, 357, 676 S.W.2d 732, 735 (1983). But this court will not reverse when the circuit
court’s comments reveal mere irritation at counsel’s trial tactics. Id. at 357, 676 S.W.2d at
735–36.
In this case, the circuit court was clearly irritated that it had to keep reminding counsel
and witnesses not to talk over each other, but, as previously noted, the circuit court’s
statements were not focused just on defense counsel’s conduct. As such, the statements were
not any more prejudicial to the defense than to the State or its witnesses. This court has
stated that
[a] Circuit Judge presiding at a jury trial should not be a mere automaton on the
bench, exerting no control over what goes on before him. He should be more than
a moderator who keeps order while counsel do and say what they please before the
jury. It is his duty to see not only that the trial proceeds in accordance with law, but
that it proceeds efficiently and effectively, and in keeping with the ends of justice.
Fuller v. State, 217 Ark. 679, 682, 232 S.W.2d 988, 989 (1950). Maiden has failed to
demonstrate that the circuit court’s comments warrant reversal.
Maiden’s final point on appeal is that the circuit court abused its discretion in failing
to conduct a Daubert hearing before admitting expert testimony about a palm print that was
found on the vehicle in which the victim had been killed. At trial, Wesley Sossamon, a
latent-print examiner with the Arkansas State Crime Lab, testified that the print belonged to
Maiden. Appellant argues on appeal that this court should reverse and remand because the
palm print—the sole physical evidence against him—was introduced without review of the
reliability of the scientific procedures supporting that evidence.
The State responds that this court need not address Maiden’s argument because he
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failed to get a ruling on the merits of the issue. We agree. On April 1, 2013, eight days
before the trial began, appellant filed a motion in limine to exclude expert testimony relating
to the palm print pursuant to Daubert. Appellant maintained that the testimony did not
comport with Daubert and was scientifically unreliable. At the omnibus hearing held on April
4, 2013, the State contended that Maiden’s Daubert motion was untimely. Maiden contended
that it was timely and that independent testing was required to determine the reliability of
the State’s testimony about the print. The circuit court made the following ruling:
The Court: The motion is denied. If you have not made a timely request for
the palm print, it is unreasonable for this Court to consider days
before trial an objection to a palm print that the defense has not
requested. Do you have any precedent for that at all?
Defense Counsel: I have a precedent for not allowing evidence that is shown to be
unreliable before a jury.
....
The Court: I don’t need to have evidence the independently analyzed. You
do, and, therefore, it would behoove you, if you wanted to have
that evidence independently analyzed for the purpose of your
motion, to have brought the motion at a time that would have
allowed the Court the reasonable opportunity to consider your
motion. Otherwise, you run the risk of the Court ruling that the
motion is untimely, which is the Court’s ruling. Next issue?
In this appeal, Maiden does not assign error to the circuit court’s ruling that his
motion in limine was untimely. Rather, he contends that the circuit court abused its
discretion in failing to conduct a Daubert hearing. Because the timeliness of Maiden’s motion
was the only issue the circuit court considered in its ruling, we cannot reach the merits of
Maiden’s argument on appeal. E.g., Phillips v. State, 334 Ark. 578, 580, 976 S.W.2d 392, 393
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(1998) (per curiam). Failure to obtain a ruling on an issue at the trial level precludes review
on appeal. E.g., Travis v. State, 371 Ark. 621, 633, 269 S.W.3d 341, 350 (2007).
As previously noted, Maiden was sentenced to life imprisonment. Pursuant to
Arkansas Supreme Court Rule 4-3(i) (2013), the record has been reviewed for all objections,
motions, and requests that were decided adversely to Maiden, and no prejudicial error was
found.
Affirmed.
BAKER and HART, JJ., dissent.
JOSEPHINE LINKER HART, Justice, dissenting. The watershed event in this trial
occurred when the prosecutor, John Hout, willfully withheld from the defense the fact that
Trenell Emerson had completely changed his story and was prepared to testify that he was an
eyewitness to the murder. No one disputes that Hout flagrantly violated Arkansas Rule of
Criminal Procedure 17.1. Rule 17.1(a)(ii)1 requires the State to disclose the substance of any
oral statement made by a defendant or codefendant. Rule 17.1(d)2 requires disclosure of all
1
PROSECUTING ATTORNEY’S OBLIGATIONS
(a) Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose
to defense counsel, upon timely request, the following material and information which is or
may come within the possession, control, or knowledge of the prosecuting attorney:
...
(ii) any written or recorded statements and the substance of any oral statements made by the
defendant or a codefendant;
2
(d) Subject to the provisions of Rule 19.4, the prosecuting attorney shall, promptly
upon discovering the matter, disclose to defense counsel any material or information within
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exculpatory evidence. The circuit court made an express ruling that the prosecutor’s conduct
was wrongful.
It is also important to emphasize that no one disputes that the prosecution’s conduct
was prejudicial to Maiden. The circuit court likewise made an express finding on that issue.
The problem with this case arises in the majority’s assessment of where the prejudice lies, and
what—if anything—could reasonably cure this prejudice. Under facts less egregious than the
case before us, this court in Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990), held that
nothing short of declaring a mistrial was warranted. The majority has erred in rejecting the
clear guidance of this worthy decision.
The majority believes that the prejudice could be cured by Hout’s half-hearted mea
culpa, additional cross-examination, and an admonishment to the jury to disregard the
defense’s opening statement. This belief reflects the majority’s failure to grasp the full extent
of the damage that the prosecution’s unlawful conduct had on Maiden’s defense.
In the only statement that the prosecution provided to the defense, Emerson stated that
he did not witness the murder. This led Maiden’s attorneys to craft a defense in which they
sought to establish reasonable doubt as to the identity of Kylaus Williams’s shooter. In laying
out this defense in opening statement, Maiden’s trial counsel repeatedly asserted that no one
would testify at trial that they had witnessed the murder.
Emerson’s testimony destroyed the foundation upon which the defense built its theory
his knowledge, possession, or control, which tends to negate the guilt of the defendant as to
the offense charged or would tend to reduce the punishment therefor.
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of the case. It left Maiden’s defense team scrambling to re-tool its defense midtrial.
Moreover, and perhaps more important, Emerson’s testimony destroyed any credibility
Maiden’s defense team had with the jury. It is troubling that the majority ignores the
significance of this fact. In federal habeas proceedings, merely promising a defense, or an
aspect of a defense, in opening statement and failing to deliver that defense, or aspect of that
defense has been held to be ineffectiveness of counsel, necessitating a new trial. United States
ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003); Ouber v. Guarino, 293 F.3d 19 (1st
Cir. 2002); Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988).
However, we need not look beyond our own jurisprudence to see the proper “cure”
for the prosecutorial misconduct. This court has already decided in Clements that a mistrial
is warranted. The majority’s attempt to distinguish Clements from the case before us falls well
short. The majority cites as the distinguishing facts (1) the witness in Clements, Kenneth
Vainer, was an “unbiased witness” and (2) the “trial jury was unaware for eight days that it
had heard a story from [a witness] which was totally inconsistent with the one he told the
grand jury.” It is worth noting, however, that while Vainer was the only unbiased witness to
place Clements at the crime scene, he was not the only witness. Clements’s wife, a
codefendant, testified that she was present when her husband murdered Conway Police
Officer Ray Noblitt. She heard Clements threaten Noblitt and she heard the gunshots that
cost the officer his life. In the case before us, Emerson was the only witness to testify that he
saw Maiden shoot Williams. Further, while it is true that this court states that the trial jury
did not see Vainer confronted with his grand jury testimony until eight days after he had
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testified, it is important to note that the State provided the grand jury testimony two days after
Vainer testified. In the case before us, Hout never provided Emerson’s statements to the
defense. It became obvious only during his testimony that Maiden’s defense team had been
ambushed.
Clements is like the case at bar, because both cases involved initial witness statements
to police that had been provided to the defense. In both cases those witness statements
indicated that the witness had no vital evidence. Likewise, the star witnesses in both cases,
Vainer and Emerson, made undisclosed office visits to the prosecution that provided the State
with the substance of their trial testimony, which differed dramatically from the initial
statements. Finally, both the circuit court in Clements and the circuit court in the case before
us attempted to cure the prejudice to the defendant by recalling the witness and giving the
defendant his full right to confrontation. The doctrine of stare decisis requires that this court
reverse the circuit court for failing to order a mistrial. Our adversarial system of justice simply
cannot tolerate the tactics that the State employed in this case. I would reverse and remand
this case for a new trial.
BAKER, J., joins.
James Law Firm, by: William O. “Bill” James, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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