recognizing Arkansas courts do not reverse due to the erroneous admission of expert testimony where the error “was rendered harmless ... by the admission of subsequent testimony”
How later courts described this case
- recognizing Arkansas courts do not reverse due to the erroneous admission of expert testimony where the error “was rendered harmless ... by the admission of subsequent testimony”
- officers were investigating drug offenses and did not need to be investigating the Plaintiff for a specific crime in order to stop him and ask for identification—stop did not constitute an unreasonable seizure
Written by the judges who cited it.
The opinion
Jim Hannah, Justice, dissenting. I respectfully dissent. I disagree with the majority’s holding that “any error occasioned by the circuit court’s allowance of Officer Hurd’s testimony to Jackson as a slinger or banger was rendered harmless beyond a reasonable doubt by the admissibility of subsequent testimony.” The State sought to prove that Jackson was a gang member who, consistent with the character traits of gang members, shot his rival gang member Raynor. To show this character trait, the State put on Officer Hurd, an expert in gang behavior, who first defines the terms “slinger” and “banger.” Next, when asked whether Jackson is classified as a slinger or a banger, Officer Hurd replies: “Chad is both. He’s done both.” Defense counsel objected. The circuit court concluded that Officer Hurd:
has the right to testify as an expert that he knows of his own personal knowledge from whatever the thing is because he’s already been qualified as both a slinger and a banger. So as far as that goes, I’m going to overrule that... Now, I really don’t want to get into any of the other crimes.
* * *
It appears that the circuit court recognized that testimony concerning other crimes would be prejudicial to Jackson. The circuit court did not allow testimony concerning other crimes, yet it did allow Officer Hurd’s classification of Jackson as a slinger and a banger, a classification which refers to criminal activity. Further, the circuit court allowed Hurd to testify that Jackson had committed both types of criminal activity. Thus Hurd is allowed, by virtue of his own definition of the terms, to state that Jackson is a shooter and a drug dealer, in a case where Jackson is charged with shooting Raynor. I simply cannot agree with the majority’s holding that this testimony, although admitted in error by the circuit court, is harmless beyond a reasonable doubt.
The majority dismisses Officer Hurd’s testimony as merely cumulative because “duplicate testimony was presented to the jury through federal grand-jury transcripts that clearly established that Jackson was indeed a ‘banger,’ that is, someone involved in gang killings.” Most troubling is the majority’s rationale for concluding that Officer Hurd’s reference to Jackson as a “slinger” was merely cumulative evidence. First, the majority states: “Markevious King also testified before the federal grand jury that Jackson was the leader of the West Side Posse and that King started selling cocaine for the gang at age fourteen.” Apparently, the majority concludes that since Jackson and King were in the same gang, and King sold cocaine, then it follows that Jackson also sold cocaine. The relevant testimony of King is as follows:
Chad Jackson, also known as “Dirty,” has been WSP for three years and is the leader.
In the Spring of 1998, King was jumped into the WSP.
Q: How old were you when you first got involved with West Side?
A: Around about twelve, eleven or twelve.
Q: And were you involved in selling cocaine at that age?
A: Not at that age. Around about like fourteen, that’s when I — I mean, started selling cocaine.
King does not testify that Jackson sold cocaine. In addition, King does not testify that Jackson directed him to sell cocaine for the gang. The majority deems this testimony as cumulative, apparently assuming that the acts of one gang member may be used to establish that another member of the same gang has committed those same acts.
Next, the majority states: “Takesha Griffin testified before the federal grand jury that Jackson called himself the leader of the West Side Posse, and in answer to a question by a member of the grand jury, agreed that the gang was involved in drugs.” The relevant testimony is as follows:
Q: ... Was Chad a leader in the WSP, though, for everybody that was a part of it?
A: I mean, yeah, because that was because he called himself the leader.
* * *
Q: Do they just do drugs, or are they involved in anything other than the drugs?
A: Drugs.
Griffin answers “yes” to the question of whether the members of the West Side Posse “do drugs.” She does not state that Jackson was a drug dealer.
Finally, the majority states that “Chris Bush testified that one of the guns used in the killing came from a West Side Posse ‘dope house.’” The relevant testimony is as follows:
Q: Where did you get that gun from, Chris?
A: At the house we had.
Q: What do you mean?
A: We had a little dope house on 15th.
Q: A dope house?
A: Yeah.
Q: And who is “we”? When you say “we,” whose house was that?
A: Just me and the litde homeys in the hood.
Q: All right, meaning West Side?
A: Yeah.
Q: Did someone actually live there?
A: Yeah.
Q: What was his name?
A: I can’t recall that name. He was a dope fiend.
Q: So that was just some place that y’all hung out.
A: Yes, sir.
* * *
Here, it appears that the majority has concluded that since Bush testified that one of the guns used in the killing came from a “dope house” and since members of the West Side Posse “hung out” at the “dope house,” as a member of the West Side Posse, Jackson was a drug dealer. The evidence mentioned by the majority is not cumulative to Hurd’s description of Jackson as a “slinger.”
Further, I do not believe that Officer Hurd’s “slinger” reference was relevant. The majority states that “[t]he fact that the two gangs at issue had been in a strong rivalry and had been going ‘back and forth’ over females . . . certainly seems relevant to Jackson’s motive in killing Raynor.” The majority fails to explain how Jackson’s status as a drug dealer is relevant to Jackson’s motive for killing Raynor, if that motive was related to their membership in rival gangs and their argument concerning certain women.
The “slinger” testimony was not relevant. However, it was highly prejudicial. What the State intended to do, through Officer Hurd’s testimony, was introduce evidence of Jackson’s bad character to prove conformity therewith, in the commission of the crime. This court has allowed the State to do so. I would not.
I would reverse and remand.