Box v. State

John MAUZY PITTMAN, Judge, concurring in part; dissenting in part. I disagree with those parts of the majority opinion that find reversible error and remand this case for a new trial.

With respect to the prison-garb issue, I first think that appellant failed to preserve for appeal the argument that the trial court should have granted a mistrial. While appellant’s counsel prefaced his remarks to the trial court on this issue by stating that he had a “motion” to present, he made no request for a mistrial or any other specific form of relief. Generally, when an appellant does not request a mistrial, he cannot argue on appeal that the trial court’s failure to grant one constitutes reversible error. See Rankin v. State, 329 Ark. 379 , 948 S.W.2d 397 (1997). While the majority states that any such failure by appellant was excused by the trial court’s comments, I note that our supreme court recently held, in effect, that a trial court’s statement indicating that it clearly understands and refuses an appellant’s request for relief will not suffice to preserve the issue for appeal where the request itself is not clear from a reading of the record. See Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 325-27 , 42 S.W.3d 397, 402-3 (2001).

Even had appellant’s motion been sufficient to constitute a mistrial motion, however, I still could not agree that its denial amounts to reversible error. I have no particular quarrel with the majority’s abstract statements of substantive law on this point. However, I have considerable difficulty with the conclusion that the trial court compelled this appellant to appear in prison garb. While a trial court is not to compel a defendant to stand trial before a jury in identifiable prison clothing, I firmly believe that the right not to be so attired can be waived by failure to make a timely objection or request for assistance. See Estelle v. Williams, 425 U.S. 501 (1976); Young v. State, 283 Ark. 435 , 678 S.W.2d 329 (1984). Here, both appellant’s argument on appeal and the timing of his attempt to make his “mistrial” motion below (z.e., soon after appellant’s arrival in the courtroom) indicate that he believes that the damage was complete upon his being seen by the jury venire when he was first brought into the courtroom. 1 However, I find nothing in the abstract to indicate that the trial court was ever asked, prior to appellant’s appearance before the jury venire the day of trial, to assist in securing clothing for appellant to wear at trial. According to appellant’s counsel, appellant had made arrangements well before trial for his parents to bring clothes for him to wear at his trial. Nor do I find anything to indicate that, when appellant’s parents were delayed in getting to the courthouse, the court was asked to continue the proceedings prior to appellant’s being brought into the courtroom. Clearly, the trial court had no duty to make any inquiry. Young v. State, supra. Rather, the duty was on appellant’s counsel to make the problem and his client’s desires known to the court in time for the damage to be avoided. In short, I do not see the “compulsion” on the part of the trial court that is required for a reversal.

I also disagree with the majority’s conclusion that admission of the letter constituted prejudicial error. Assuming, for the sake of argument, that the trial court erred in finding that the letter was sufficiently authenticated, I fail to see how appellant can now claim that he suffered any prejudice as a result of its admission.

As the majority states, appellant was tried for and convicted of aggravated robbery and first-degree battery. One of the items stolen during the crimes was a camera. The letter in question was addressed to one of the victims, identified the writer as appellant, and denied that he committed the crimes. The letter further stated that the writer had possessed a camera but maintained that he obtained it by purchasing it from Phillip Gober. Later, during appellant’s case-in-chief, appellant called Phillip Gober as a witness. On direct examination, appellant’s counsel elicited testimony from Mr. Gober that he found a camera in an alley, met appellant on the street while walking home, and sold the camera to appellant for $35.00.

The only way in which appellant could have been prejudiced by the introduction of the letter is that it could be read as an admission that he possessed a piece of property that had been stolen from the victim. However, appellant called a defense witness who testified on direct examination to the very same information contained in the letter. 2 The law is well settled that prejudice is not presumed, and we will not reverse absent a showing of prejudice. Donovan v. State, 71 Ark. App. 226 , 32 S.W.3d 1 (2000); Camp v. State, 66 Ark. App. 134 , 991 S.W.2d 611 (1999). It is also clear that evidence that is merely cumulative of other evidence admitted without objection is not prejudicial. Griffin v. State, 322 Ark. 206 , 909 S.W.2d 625 (1995); Brown v. State, 66 Ark. App. 215 , 991 S.W.2d 137 (1999); Camp v. State, supra. Additionally, as the majority concedes, “If a party who has objected to evidence of a fact himself produces evidence from his own witness of the same fact, he has waived his objection.” 1 JOHN W. STRONG, MCCORMICK ON Evidence § 55, at 246 (5th ed. 1999); see Aaron v. State, 300 Ark. 13 , 775 S.W.2d 894 (1989); McDonald v. State, 37 Ark. App. 61 , 824 S.W.2d 396 (1992).

The majority argues that, because the letter was introduced first, appellant then had free rein to repeat the evidence before the jury and still retain the right to complain about the letter’s admission on appeal. Nothing is cited for this proposition, and it is not the law. See, e.g., Stephens v. State, 328 Ark. 81, 89 , 941 S.W.2d 411, 415 (1997) (State’s witness’s testimony not prejudicial because it was cumulative of appellant’s own, later testimony); Griffin v. State, 322 Ark. 206, 217 , 909 S.W.2d 625, 631 (1995) (appellant suffered no prejudice from State’s witness’s mention of appellant’s crack cocaine purchase because later, during appellant’s case-in-chief, he testified that he had visited a “dope house” and smoked crack cocaine); Aaron v. State, 300 Ark. 13, 15 , 775 S.W.2d 894, 895 (1989) (appellant waived his objection to a State’s witness’s testimony about information contained on appellant’s driver’s license when appellant later introduced an “I.D. card” containing the same information); McDonald v. State, 37 Ark. App. 61, 66-67 , 824 S.W.2d 396, 400 (1992) (appellant waived any objection he may have had regarding the State’s evidence about a planned drug transaction between appellant and a third person when appellant later introduced the transcript of a witness’s testimony at an earlier trial, which contained references to the planned drug transaction); Brown v. State, 5 Ark. App. 181, 189 , 636 S.W.2d 286, 290 (1982) (no reversible error in admitting sheriffs testimony because it was cumulative to testimony of others, including the appellants); cf. Cage v. State, 73 Ark. 484, 485 , 84 S.W. 631, 632 (1905) (“[Appellant] certainly had no right to object to that which the witness testified at [appellant’s] instance”). 3 Our supreme court has found errors not prejudicial on account of subsequent repetition of the challenged information even where, unlike in the case now before us, the error complained of is of constitutional dimension, which requires that the error be “harmless beyond a reasonable doubt.” See, e.g., Isbell v. State, 326 Ark. 17, 22 , 931 S.W.2d 74, 77 (1996) (admission of allegedly illegally obtained confession “was harmless beyond a reasonable doubt in view of the fact that [appellant] testified at his trial and repeated every material aspect of his pretrial statement”); Schalski v. State, 322 Ark. 63, 69-70 , 907 S.W.2d 693, 697 (1995) (evidence of police officer’s observations and photographs of appellant’s truck, obtained as a result of an allegedly illegal search in violation of appellant’s Fourth Amendment rights, was cumulative, and its admission was harmless beyond a reasonable doubt given that a description of appellant’s truck and its contents was admitted at trial through several other witnesses, including appellant himself). I can only conclude that appellant waived his objection to, and in any event suffered no prejudice from, admission of the letter in light of his own witness’s cumulative testimony. 4

The majority also mentions that appellant was somehow “compelled to reintroduce the evidence in a fight more favorable to his theory of the case.” However, appellant made no argument, either at trial or on appeal, that he was forced to have his witness repeat the evidence because the letter was admitted, and this court cannot assume that he was so compelled. See Isbell v. State, 326 Ark. at 22 , 931 S.W.2d at 77-78 . Moreover, the witness’s testimony was in no way more favorable to his theory of the case. Mr. Gober’s testimony was not responsive to the contents of the letter in terms of explaining or rebutting them; his testimony was, in substance, nothing other than a simple repetition of the letter’s contents. Even appellant admits in his brief that Mr. Gober’s testimony “tracks with what the ‘jail letter’ says happened.” 5 I would affirm appellant’s convictions.

CRABTREE, J., joins in this opinion.

The majority opinion fails to point out that appellant was allowed to change as soon as his parents arrived at the courthouse with his civilian clothes, and that this occurred before jury selection was complete.

This proof was in addition to evidence of appellant’s adoptive admission of his participation in the crimes, proof that the victim’s camera was found by the police at the apartment “shared by” appellant and his girlfriend, and proof that appellant’s girlfriend denied that the camera was hers.

I trust that the reader will note the different introductory signal preceding the Cage citation and the parenthetical following it, and will realize that it is not being cited as presenting facts like the other referenced cases but is cited for the statement appearing in the parenthetical.

The majority states in its footnote 3 that evidence is cumulative “if and only if’ it is in addition to evidence that has previously been admitted. Black’s Law Dictionary is cited for the timing aspect of the word’s definition; the “if and only if’ language is added by the majority without any citation. Nevertheless, however instructive the dictionary may be in certain situations, it does not control over a contrary view held by the highest court in this state on a matter of state law. And it is quite clear that the Arkansas Supreme Court determines whether objected-to evidence is “cumulative” to other evidence admitted without objection by reference to the state of the record at the close of the case and not at the time that the objectionable evidence was introduced. In other words, evidence admitted over objection most certainly can be rendered “cumulative” and non-prejudicial by other, later evidence of the fact admitted without objection. Schalski, Stephens, Griffin, and Brown all use the word “cumulative” in this very way.

In any event, the point involved here is the legal principle, not the correct use of a single word. The principle is that one cannot simply repeat the substance of objectionable evidence and continue to maintain that admission of the objectionable evidence unfairly prejudiced his case, whether because he has waived his earlier objection or because he has, in the end, suffered no prejudice. All of the cases cited in the textual paragraph above (except Cage, see footnote 3, supra) stand for this principle.

The majority also attempts to distinguish some of the cases that I have cited by pointing out additional reasons why no prejudicial error was found in those cases. Of course, that is a distinction without a difference inasmuch as the point for which I have cited the cases was stated in each of them as a separate, independent reason why any error was not prejudicial.

To the extent that the majority refers to, without reciting, matters in the letter that the majority believes were “different” from those in the witness’s testimony and vice versa, two things bear repeating: (1) neither the letter nor the witness’s testimony contained anything of a material nature that the other did not contain; moreover, whether the witness’s testimony contained additional information not in the letter is immaterial (at least where his testimony did not serve to rebut or explain away the contents of the letter) because he was appellant’s witness and testified without objection; and (2) in any event, the only way in which appellant could have been prejudiced by the letter was its admission that the writer possessed a camera that may have been stolen from the victim, and appellant does not contend otherwise; appellant is not concerned about any other matters in the letter, and the majority should not be making arguments for him.

The next-to-last paragraph and last footnote of the majority opinion also say that the letter and Mr. Gober’s testimony are not the “same evidence” because they take different forms and, therefore, that one cannot be cumulative to the other and that appellant’s introduction of the one cannot constitute a waiver of his objection to the other. The only reason given for their position that the two items of evidence are materially different seems to be that one is a letter written by one person while the other is live testimony of another person. However, even the quotation from McCormick ON EVIDENCE, supra, which is cited by the majority, makes it clear that a waiver results from introduction of evidence of the same fact, without regard to the form that the repetition of the evidence may take. Of course, it is the substance of the evidence that matters. Moreover, here, the repetition of the objected-to evidence came from appellant’s own witness on direct examination; to say that its character makes it less convincing than an unsigned letter containing evidence of the same fact would border on the absurd. Finally, it bears mentioning that the supreme court has applied the principle that I am advocating despite the fact that the repetition of the objectionable evidence has taken a different form than that in which the proof was originally offered. See Schalski v. State, supra (photographs and testimony); Aaron v. State, supra (a driver’s license and an I.D. card).