Box v. State

45 S.W.3d 415, 74 Ark. App. 82, 2001 Ark. App. LEXIS 468

• Court: Court of Appeals of Arkansas
• Decided: June 6, 2001
• Docket: CA CR 00-802
• Status: Published

Opinions

JOSEPHINE Linker Hart, Judge.

A jury found Terrence D. J Box guilty of aggravated robbery and battery in the first degree and sentenced him to a total of 420 months in the Arkansas Department of Correction (“ADC”). For reversal, appellant argues that (1) there was insufficient evidence to sustain his conviction and, accordingly, the trial court erred by denying his directed-verdict motion; (2) his right under the United States Constitution to a fair trial was violated because the trial court forced him to appear at trial and before the jury in his prison uniform; (3) the trial court violated the Arkansas Constitution by commenting on a critical piece of the State’s evidence; and (4) the trial court erred by admitting into evidence a letter and envelope in violation of Ark. R. Evid. 901-902. We agree with appellant on his second and last points, and, therefore, we reverse and remand.

The State filed a criminal information on May 25, 1999, alleging that on April 14, 1999, appellant, while armed with a .22 caliber rifle, robbed Geisla Cantrell and shot Tommy Cantrell. The matter proceeded to trial on November 16-17, 1999, when appellant, who was incarcerated at ADC, appeared before the court and jury in his prison uniform. Despite the fact that the matter had been raised, the trial court ordered appellant to stand for the jury trial while wearing his prison uniform, reasoning that it was appellant’s responsibility to dress himself in civilian clothing. At trial, included among the witnesses that testified were Eli Hudson, who had been a suspect in the robbery, and Tommy Cantrell, who was one of the two victims.

Hudson gave incriminating testimony against appellant. According to Hudson, he was told “everything” concerning the robbery by Travell Lawson, his cousin and participant in the robbery, in appellant’s presence; however, appellant did not deny his involvement. Following cross-examination by appellant’s attorney, the trial judge inquired into the specifics of Lawson’s conversation with Hudson. At that time, Hudson stated that in appellant’s presence he was told by Lawson that while he was grabbing and trying to take Geisla Cantrell’s purse, Tommy Cantrell appeared and was shot by appellant.

Tommy Cantrell, one of the two victims, testified regarding the events of the evening of April 14, and a letter dated November 3, 1999, that he purportedly received from appellant. Although the letter was unsigned, the envelope in which it was located had “correctional” stamped across it. Over appellant’s authentication objection, the letter was admitted into evidence and read into the record by Cantrell. In the letter, appellant admitted to having a camera that was located in Geisla Cantrell’s purse, but denied having anything to do with the robbery.

I. Sufficiency of the evidence

In an effort to avoid potential double-jeopardy concerns on remand, we do not consider errors by the trial court until we first consider a challenge to the sufficiency of the evidence. See Harris v. State, 284 Ark. 247, 249-250, 681 S.W.2d 334, 335 (1984). On this point, appellant argues for reversal that the trial court erred by denying his directed-verdict motion because there was insufficient evidence to sustain the conviction of aggravated robbery.¹ Our review is governed by the standard expressed in Flowers v. State, 342 Ark. 45, 48, 25 S.W.3d 422, 425 (2000) (citations omitted), which stated:

A motion for a directed verdict is a challenge to the sufficiency of the evidence. The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict.

The trial court denied appellant’s directed-verdict motion, reasoning that Hudson’s testimony presented a valid jury question of whether appellant had admitted to committing the crime. We agree with the trial court.

Rule 801 (d)(2)(h) of the Arkansas Rules of Evidence provides that “a statement of which [a party] has manifested his adoption or belief in its truth ...” constitutes nonhearsay. “[T]he admissibility is tested by whether a reasonable person, under the circumstances, would have been expected to deny the statements if they were in fact untrue.” Morris v. State, 302 Ark. 532, 537, 792 S.W.2d 288, 291 (1990). Here, Hudson testified that he was told by Lawson that appellant was involved in the robbery and shot Tommy Cantrell. Despite the fact that this story was told in appellant’s presence, he did not deny the truthfulness of the story.

Pursuant to Ark. Code Ann. § 5-12-103 (Repl. 1997):

(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:

(1) Is armed with a deadly weapon or represented by word or conduct that he is so armed; or

(2) Inflicts or attempts to inflict death or serious physical injury upon another person.

Furthermore, a person commits robbery as defined in Ark. Code Ann. § 5-12-102 (Repl. 1997), “if, with the purpose of committing a felony or misdemeanor theft ... he employs or threatens to immediately employ physical force upon another.”

In light of these matters, we conclude that Hudson’s testimony presented a valid jury question as to whether appellant had committed aggravated robbery. Viewing the evidence in a fight most favorable to appellee, the proof suggests that appellant used a deadly weapon and attempted to cause either death or serious physical harm while also trying to commit a theft. Accordingly, we affirm the trial court’s denial of appellant’s directed-verdict motion.

II. Fair trial

For his next argument, appellant contends that his Fourteenth Amendment right to a fair trial was violated because the trial court ordered that he stand trial while wearing his ADC uniform. As we review this matter, we are mindful that:

The responsibility of striving for an atmosphere of impartiality during the course of a trial rests upon the trial judge. . . . Even though the trial judge runs the court, the right of an accused to a fair trial, although not perfect, is paramount. If the exercise of discretion results in the denial of a fair trial to a defendant, the discretion is certainly abused.

75 Am. JUR. 2d Trial § 193 (1991). Furthermore, as the United States Supreme Court stated in Estelle v. Williams, 425 U.S. 501, 503 (1976), “The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” Despite the fact that this critical term is left undefined by our United States Constitution, we consider the term “fair trial” to consist of the following:

A fair trial is a legal trial; one conducted according to the rules of common law except in so far as it has been changed by statute; one where the accused’s legal rights are safeguarded and respected. A fair trial is a proceeding which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial. A fair trial is that which is such in contemplation of law, namely, that which the law secures to the party, and a fair trial before an impartial jury means one where the jurors are entirely indifferent between the parties. The necessary factors in a fair trial are an adequate hearing and an impartial tribunal, free from any interest, bias, or prejudice. A fair trial is only likely to accomplish full justice within human limitations.

88 C.J.S. Trial § 1 (1955). Accordingly, on review we must determine whether the trial court’s order requiring appellant to stand trial in his prison uniform constituted an abuse of discretion inasmuch as it denied appellant a fair trial. For the reasons expressed below, we conclude that the lower court’s actions constituted such an abuse.

It is well settled that under the Fourteenth Amendment, a State cannot “compel an accused to stand trial before a jury while dressed in identifiable prison clothing . . . .” Estelle, 425 U.S. at 512. Such a prohibition is necessary because, although not stated in the Constitution, a defendant is presumed innocent, and “an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system.” Estelle, 425 U.S. at 503-504. However, “ ‘[a] defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.’ ” Estelle, 425 U.S. at 508 (quoting Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir. 1971)). Accordingly, to determine whether appellant was denied a fair trial in this matter, we must conclude whether there is anything in the record on appeal that “warrants a conclusion that [appellant] was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial.” Estelle, 425 U.S. at 512.

We conclude that the abstract plainly reveals that the issue was sufficiently brought to the trial court’s attention and that appellant was made to stand trial in his ADC uniform. Prior to the beginning of the trial, the State alerted the trial judge to the fact that appellant was wearing his ADC uniform, and appellant, thereafter, also raised the issue to the trial judge. Nonetheless, the trial judge ordered appellant to stand trial while wearing his prison uniform.

The relevant colloquy was as follows:

Prosecutor: The defendant has been brought in his prison whites.

COURT: I instructed the sheriff to bring him in that way.

Prosecutor: Oh, okay.

Court: And the reason I did this — I’ll rale for the record later on when [appellant’s attorney] makes his record, but he was instructed and had a chance to dress unless otherwise, and I think that’s his responsibility, and he had the opportunity. We’ll make a record later.

Defense: I do have two motions to present to the court when you are ready.

COURT: We will proceed with jury selection. You will get the opportunity to make those later. . . .

[following jury selection]

Defense: My second motion is that [appellant] is present in his jail garb. . . . Anybody seeing [appellant] here today in ADC garb should understand that he has a prior conviction. That, alone, is prejudicial ....

COURT: Do you want me to ask the jury about?

DEFENSE: I think that would almost be an inference of guilt right here, your honor.

COURT: Do you want me to ask the jury about it, yes or no?

DEFENSE: No, I think that would be even more highly prejudicial.

COURT: Here’s the situation the court is in. Before [appellant] was brought up the stairs, I asked his attorney if he had discussed this matter with [appellant] about wearing civilian clothes, if they were available. He said he had. [Appellant] showed up from the regional jail without any. None had been supplied over at the sheriffs office for him to change into. He’s been given that opportunity. It’s [appellant’s] obligation, in my opinion, to have those available, unless it’s impossible. It has not been shown to have been impossible. I could have delayed this matter, but I do not think I’m required to delay this matter to search down and hunt for [appellant] some clothes that he wants to wear. That is not the Court’s obligation, and the motion is denied. . . .

Defense: He was not arrested in the garb he’s wearing today. Somewhere there is civilian clothing available that he has been locked up and arrested in ... .

COURT: It has not been shown that those are unavailable. . . . I have an obligation to move his case along, and that’s what I’m trying to do.

We hold that this action constituted reversible error inasmuch as it ordered appellant to stand trial in his prison uniform after all the parties had raised the issue and appellant specifically made it known to the trial court that he did not want to proceed while wearing prison clothes. Such an order, in our view, denied appellant a fair trial because it deprived him of the opportunity to defend the case against him in an environment that was reasonably free of any interest, bias, or prejudice. To hold otherwise would require that we also conclude that a reasonable jury would, after seeing appellant in his prison uniform, be indifferent to his case, which, for the reasons expressed in Estelle, we will not do. More importantly, however, we conclude that such an order violated the Fourteenth Amendment because it compelled appellant to stand trial while wearing prison garb, and, therefore, denied appellant a fair trial.

We specifically disagree with appellee’s argument that appellant is entitled to no relief on appeal because he faded to ask the trial court for a mistrial. Such an argument fails to recognize that it is the trial judge who ordered appellant to stand trial in his prison garb. However, assuming, arguendo, that appellee’s argument has merit, we conclude that, commensurate with Estelle, there was sufficient reason to excuse such an omission in light of the trial judge’s pre-motion comments that he was going to require appellant to stand trial in his prison garb and his plainly stating that appellant’s motion was “denied” after appellant expressed his desire to the trial court that he did not want to be tried in prison garb. Furthermore, the denied motion established the trial court’s view that no misconduct had occurred, and it is unnecessary to request further relief in order to preserve the issue for appellate review. See Leaks v. State, 339 Ark. 348, 355-356, 5 S.W.3d 448, 453 (1999). In any event, whether viewed as either an appeal of the trial court’s order or an omission for which there is sufficient excuse, we conclude on review that the trial court’s actions constituted an abuse of discretion and reverse on this issue.

III. Trial judge’s comments

We, however, affirm on appellant’s next point on appeal concerning the trial judge’s questioning of Hudson. Appellant argues that the trial court’s actions constituted a violation of Ark. Const, art. 7, § 23, which provides that “[j]udges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trial shall reduce their charge or instructions to writing on the request of either party.” While we have cautioned trial judges not to assume the role of an advocate when they question witnesses,² in this case we are simply unable to engage in any meaningful appellate review because there was no objection to the trial judge’s actions in this regard. Eg., Jones v. State, 340 Ark. 390, 397, 10 S.W.3d 449, 453 (2000) (“We have frequently held that a contemporaneous objection must be made to the trial court before we will review an alleged error on appeal.”).

IV Admission of letter

For his final point on appeal, appellant argues that the trial court erred by admitting into evidence the letter that was purportedly from appellant to Mr. Cantrell. Specifically, appellant argues that appellee failed to properly authenticate the letter because the foundation that was laid was not “sufficient to support a finding that the matter in question [was] what its proponent claim[ed].” Ark. R. Evid. 901(a). To prevail, however, appellant must demonstrate that the trial court abused its discretion by determining that the proffered evidence satisfied the Rule 901 requirements. Eg., Monk v. State, 320 Ark. 189, 198, 895 S.W.2d 904, 909 (1995). We find that appellant has met that burden.

The authentication of a letter is subject to Ark. R. Evid. 901(a), and as such:

[A] letter alleged to have been received from a particular source ordinarily is not admissible until its authenticity and genuineness have been sufficiendy shown. There must be sufficient proof that the letter was written by the person by whom it purports and is claimed to have been written, or under the authority of the person claimed to have authorized it.

32A C.J.S. Evidence § 982(a) (1996). In the case at bar, we conclude that the documentary evidence offered lacked a reasonable certainty of genuineness and authenticity.

At issue is an envelope on which purportedly appeared appellant’s return address and the word “correctional” and which contained an unsigned letter that stated it was from appellant. The letter lacked appellant’s signature, the State failed to offer any evidence to prove that the letter was in appellant’s handwriting, and there was no evidence that it was improbable that the letter was authored and sent by anyone other than appellant. We are unable to conclude that appellee provided sufficient proof that the document was a letter from appellant to Mr. Cantrell, and, therefore, we hold that the trial court abused its discretion.

Furthermore, while it is true, as stated in the dissenting opinion, that in appellant’s case-in-chief a witness testified to many of the factual elements that were admitted into evidence via the letter, we are unpersuaded that this has the effect of waiving his objection to the admission of the letter for purposes of appellate review.³ Under the dissenting opinion, for appellant to preserve his objection on appeal he would have to forego the presentation of a trial defense designed to respond to the evidence offered by the State over appellant’s objection.⁴

It is true that the general rule is that “[i]f a party who has objected to evidence of a certain 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). Here, however, it is plain that appellant did not attempt to produce the letter from his own witness. While it may be tempting to simply conclude that there was no material difference between the contents of the letter and the testimony of appellant’s witness, to do so would simply be untrue. The letter contained information that was different from the material that was offered into evidence via appellant’s witness, and this witness testified to matters that were different from the material that was offered into evidence via the letter. We cannot assume that the jury found these differences immaterial.⁵ Accordingly, it would be incorrect to hold that the letter and the testimony constituted, as a matter of law, the same evidence.

If appellant’s witness had testified prior to the admission of the letter, then he could be in a different position inasmuch as he would not be compeEed to reintroduce the evidence in a light more favorable to his theory of the case. The conclusion reached by the dissenting opinion would, in our view, unduly place defendants in an unjust dilemma — one can present either a zealous trial defense or a zealous appellate defense, but not both. We respectfully disagree with the view that the law places litigants in such an untenable position.

Reversed and remanded.

Griffen, Vaught, and Baker, JJ., agree. PITTMAN and CRABTREE, JJ., concur in part and dissent in part.

1 According to the abstract, the direct-verdict motions pertained only to the aggravated robbery charge and, therefore, we only consider whether there was sufficient evidence to sustain that charge. E.g., Hutts v. State, 342 Ark. 278, 278-280, 28 S.W.3d 265, 267 (2000).

2 We stated in Oliver v. State, 268 Ark. 579, 590, 594 S.W.2d 261, 266 (Ark. App. 1980), that:

While a trial judge is not a mere umpire and may interrogate witnesses in an action before him, he may not act in a dual capacity as judge and advocate. The two roles are not concentric. The presentation of a litigant’s case in an adversary proceeding should be left to the initiative of counsel who has the responsibility to represent the interest of his client.

3 We agree with the dissent’s position that the admission of incompetent evidence constitutes harmless error when said evidence is cumulative; however, we disagree that the evidence here was cumulative. Evidence is cumulative if and only if it is “[additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence . . . Black's Law Dictionary 577 (7th ed. 1999). The dissent focuses on the testimony of appellant’s witness to reach the conclusion that the letter, which was offered during appellee’s case-in-chief, was cumulative. In our view, that approaches the question from the wrong direction. The issue is whether the letter was cumulative evidence, and it is plain that the letter was not additional evidence that was of the same character as it existed at that stage of the trial.

4 The authorities relied upon by the dissent to conclude otherwise comprise either obiter dictum or are plainly distinguishable from the case at bar. See Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997) (affirming admission of testimonial evidence because appellant failed to properly object, not simply because evidence might have been cumulative); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996) (affirming admission of defendant’s pre-trial confession; accordingly, the confession could not be considered cumulative inasmuch as it was not evidence in addition to the existing evidence at trial); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995) (affirming denial of motion for mistrial because appellant failed to see that trial judge gave cautionary instruction, not simply because evidence might have been cumulative); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995) (affirming admission of testimonial evidence when others testified during State’s case-in-chief without objection to materially same evidence, not merely because defendant admitted to same); Cage v. State, 73 Ark. 484, 84 S.W. 631 (1905) (affirming admission of testimonial evidence that was given after testimony given during defendant’s case-in-chief on direct examination); McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992) (affirming admission of testimonial evidence because court held permissible to do so under Ark. R. Evid. 404(b), not simply because evidence might have been cumulative); Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982) (affirming admission of testimonial evidence because said evidence concerned a matter that was not at issue, not simply because evidence might have been cumulative).

5 This stands in stark contrast to Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989), which is relied upon by the dissent, wherein the difference was between an I.D. card and a driver’s license. In our view, there would in all likelihood be no difference between an I.D. card and a driver’s license. However, the jury may have found material differences between a letter that was allegedly written by an inmate in a correctional facility and testimony that a person sold a camera to the defendant. To reach a contrary conclusion would require that we speculate on what the jury found valuable in the admitted evidence, which we cannot do.