Dillon v. State

844 S.W.2d 944, 311 Ark. 529, 1993 Ark. LEXIS 54

• Court: Supreme Court of Arkansas
• Decided: January 19, 1993
• Docket: CR 92-58
• Status: Published

Opinions

Robert L. Brown, Justice.

The appellant, Kendall Dillon, raises sixteen points in his appeal from a conviction for rape and a sentence of thirty-three years. Three points concern prosecutorial misconduct in the cross-examination of two defense witnesses and of Dillon himself. We agree that the cumulative effect of statements made by the prosecutor in the cross-examination was prejudicial to Dillon and denied him a fair trial. We, therefore, reverse and remand the case for a new trial.

FACTS

On November 19,1990, Kendall Dillon, who at the time was a Pulaski County Deputy Sheriff, was charged with the crime of rape. The charge resulted from an incident that occurred at about 5:00 a.m. on October 10,1990, when Dillon, who was in his patrol car, stopped Tammy Falcone, an employee of the Checkmate Club, near McCain Mall in North Little Rock. According to Falcone’s testimony, Dillon called in her license and tag numbers and informed her that a warrant had been issued for her arrest for hot checks. He instructed her to follow him to her car. She obeyed, and followed him to Sherwood, where they parked in a lot near Kiehl Avenue. Dillon ordered her into his car and then drove her to a secluded gravel road.

Falcone offered Dillon her tip money if he would let her go, but he replied that he wanted her, not her money. She told him that she wanted to go home to her children, but Dillon began playing with her hair, kissing her, fondling her breasts, and inserting his fingers in her vagina. Falcone testified that she feared she would die if she attempted to get away. When a car passed by, Dillon stopped. He then returned her to her car and warned her not to tell anyone.

Two days later, on October 12,1990, Dillon stopped Brenda Kaup, according to her testimony at trial, and instructed her to raise her brassiere and pull down her pants and panties while she sat in his patrol car. No criminal charges were filed in connection with that incident, but Kaup sued Dillon in federal district court. Kaup’s testimony was admitted at Dillon’s trial.

Dillon was convicted and sentenced after a three-day trial.

I. PROSECUTORIAL MISCONDUCT

Dillon points to several instances of prejudicial statements made by the prosecutor at trial, none of which was supported by proof.

The first was in the form of a question on cross-examination to Lieutenant Mike Adams of the Pulaski County Sheriffs Department under whom Dillon worked:

PROSECUTOR: Were you aware of any complaints against Mr. Dillon about his treatment of women, particularly threatening to plant drugs on them in exchange for sex?

DEFENSE COUNSEL: Your Honor, I object to that characterization; it is a leading statement.

THE COURT: Don’t lead your witness, Ms. Ferrell. You may rephrase the question.

DEFENSE COUNSEL: Your Honor, may I approach the bench?

THE COURT: Please do.

(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)

DEFENSE COUNSEL: Your Honor, that question was leading. The allegation was made from specific acts, and I would —

THE COURT: I sustained your objection to the leading.

DEFENSE COUNSEL: And it was rude of Ms. Ferrell because of the specific act that was implied.

PROSECUTOR: He opened the door by saying that he did a good job and how he arrested these women in performance of his duties is relevant to how he would do his job.

DEFENSE COUNSEL: Not to that kind of question, Your Honor. He didn’t open any door, and I do move for a mistrial.

THE COURT: Denied.

DEFENSE COUNSEL: And I ask for the Court to instruct the jury. The question was improper and they’re to disregard it.

THE COURT: I’m not going to over-emphasize it, but. . . I’m going to sustain your objection to the leading question.

Without any proof to support the insinuation, the prosecutor forged the distinct impression in the minds of the jurors that complaints against Dillon existed for threatening to plant drugs on women in exchange for sex.

The second improper comment occurred in the prosecutor’s cross-examination of Chief Deputy Jerry Bradley of the Faulkner County Sheriffs Department:

PROSECUTOR: Well, were you aware of whether — Were you aware that the defendant resigned from the Conway Police Force?

BRADLEY: Yes.

PROSECUTOR: So you are aware of why he resigned from the Conway Police Force?

BRADLEY: I have no direct knowledge of why he resigned.

PROSECUTOR: You have no direct knowledge?

BRADLEY: No.

PROSECUTOR: You have no direct knowledge, but you are aware that it’s because he forced sex on —

DEFENSE COUNSEL: Your Honor, I want to object to her making any statement of —

THE COURT: Now, just a minute. If he doesn’t know why, doesn’t have any direct knowledge of it, then that’s it.

PROSECUTOR: Are you also aware that he resigned from the Morrilton Police Force?

BRADLEY: Yes, Ma’am.

PROSECUTOR: So you’re aware of why he resigned there, as well, aren’t you?

BRADLEY: No.

PROSECUTOR: And are you aware —

BRADLEY: I have no direct knowledge of why he resigned from any department. He also worked for Mayflower at one time, but I —

PROSECUTOR: And you know he resigned from Mayflower?

BRADLEY: Yes.

PROSECUTOR: And you know he resigned from UCA?

BRADLEY: I’m sorry. I don’t ever remember him working for UCA.

PROSECUTOR: As a security at UCA?

BRADLEY: No, I don’t. I don’t remember that.

PROSECUTOR: So you’re aware that he resigned from Mayflower, that he resigned from Conway, he resigned from Morrilton, and now you’re aware that he resigned from the Pulaski County Sheriffs Department. Is that correct?

BRADLEY: I didn’t know he had resigned from Pulaski County. I didn’t know what his involvement there was.

PROSECUTOR: And are you aware that these were all forced resignations?

DEFENSE COUNSEL: Your Honor, I want to object to that. And at this time, Your Honor, may I approach the bench?

(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)

DEFENSE COUNSEL: Your Honor, the witness has testified that he had no direct knowledge. She is asking, “Are you aware that he was forced to resign?” He’s already said he had no direct knowledge. At this time, I’d move for a mistrial. She has prejudiced us before this jury

THE COURT: But —

DEFENSE COUNSEL: — and it’s totally prejudicial, after he said that he had no direct knowledge of it.

THE COURT: How much more do you want him to say about it?

PROSECUTOR: I elicited of him — but this is my last question of this witness.

DEFENSE COUNSEL: It’s one too many, Your Honor.

THE COURT: I’m not going to order a mistrial at this point, but don’t do that any more.

PROSECUTOR: Okay, no, Your Honor.

THE COURT: You’re that close to it.

PROSECUTOR: I don’t dare.

DEFENSE COUNSEL: And, Your Honor, at this time, we’d ask —

THE COURT: Your motion is denied.

DEFENSE COUNSEL: But — Now, I understand that, but I have one more, and I ask that the jury be instructed to disregard that question.

(THEN, in the hearing of the jury.)

THE COURT: All right. Ladies and gentlemen of the jury, you’ll disregard that last question which was asked by Ms. Ferrell. Let’s move along. Any other questions of Chief Deputy Bradley?

PROSECUTOR: No, Your Honor.

Here, the prosecutor adroitly presented a mandated resignation due to “forced sex” in Faulkner County and then suggested “forced resignations” or suspensions in four other law enforcement agencies, including the Pulaski County Sheriffs Department and one security position at the University of Central Arkansas. Again, no proof was presented by the state to substantiate these implications of the most serious order. It is evident that the trial judge was alarmed by this strategy, and he told the prosecutor that she was “that close” to a mistrial.

The prosecutor next cross-examined Dillon on his suspensions from various law enforcement agencies:

PROSECUTOR: And you testified on direct that you’ve been a police officer with the Pulaski County Sheriffs Department for seven and a half years. Right?

APPELLANT: Yes.

PROSECUTOR: And that you left the Narcotics Division when you were promoted. Correct?

APPELLANT: Yes.

PROSECUTOR: But during that seven and a half years, that wasn’t the first time you were suspended, was it?

APPELLANT: No.

PROSECUTOR: You’d been suspended before for taking a woman to —

DEFENSE COUNSEL: Your Honor, I want to object.

THE COURT: You may ask him if he has been suspended and then ask him what for. If it goes to truthfulness, I’ll allow it.

PROSECUTOR: Okay.

(THEN, in the hearing of the jury.)

PROSECUTOR: Have you been suspended before?

APPELLANT: Yes.

PROSECUTOR: What was it for?

DEFENSE COUNSEL: Your Honor, at this time, I’d like to state that unless it has do with truthfulness or untruthfulness, I would object to the question.

THE COURT: Well, you see, I don’t know.

DEFENSE COUNSEL: Well, then no proper foundation has been laid for the question.

THE COURT: Overruled. Go ahead.

PROSECUTOR: What was it for?

APPELLANT: I’d have to refer to the letter of suspension. I believe it was for not remaining quiet in school and misuse of a department vehicle.

PROSECUTOR: Misuse of a department vehicle? What did you misuse it for?

DEFENSE COUNSEL: Your Honor, I object. That has nothing to do with truthfulness or untruthfulness.

(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)

THE COURT: Do you have proof as to what he’s been suspended for?

PROSECUTOR: Yes, I do.

THE COURT: Well, ask him those specific questions that deal with truthfulness or untruthfulness, and using a vehicle improperly would not go to that. I’ll just give you a little hint.

PROSECUTOR: Okay.

In an in camera conference with trial counsel, the prosecutor indicated that she wished to ask two more questions about alleged prevarications by Dillon but did not intend to back up the questions with witnesses. A discussion then followed:

THE COURT: Aren’t those questions sort of like do you still beat your wife?

PROSECUTOR: Your Honor, they are prior incidences of —

THE COURT: (Interposing) Well, that is fine if you can back those up and prove them, then that is proper, but just to ask them and have no proof of it is not only improper, it is not fair. Is that the only two other questions you have left?

PROSECUTOR: Yes.

THE COURT: Okay. Let’s don’t ask those. And you can go back and finish up with something else if you like.

PROSECUTOR: Okay.

When error accumulates in a criminal case, this court has recognized that the impact may be prejudicial, and we have reversed a decision by the trial court. Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978). We considered a motion to suppress a search warrant in Harris and concluded that the warrant should have been suppressed as defective. The municipal court did not adequately specify on the warrant the place to be searched. Also, the judicial officer made no finding whether it was a daytime or nighttime search (the warrant may have been served as early as 5:00 a.m.), and no receipt for the items seized was given the defendant. The trial court noted “pretty much of a total disregard for the rules” but refused to find prejudice. We reversed due to the “accumulation of error,” saying:

It might be that alone the discrepancies in this case would not amount to prejudicial error. However, when considered together, we must conclude that the almost total disregard for the Rules cannot be ignored. What it all comes down to is where do we draw the line? We draw the line here. The State has not demonstrated that a reasonably good faith effort was made to comply with the Rules. The evidence is, in fact, to the contrary.

264 Ark. at 395, 572 S.W.2d at 391.

A second case from a foreign jurisdiction approximates the case at bar and offers additional justification for reversal. See State v. Soares, 815 P.2d 428 (Hawaii 1991). The offense at issue in Soares was the robbery of a convenience store. The appellants were convicted and, on appeal, urged prosecutorial misconduct. The Hawaii Supreme Court agreed and reversed and remanded, giving as part of its reasoning the following:

We have repeatedly stated that “[t]he duty of the prosecution is to seek justice, to exercise the highest good faith in the interest of the public and to avoid even the appearance of unfair advantage over the accused.” [Citing authority.] In this case, the record contains numerous examples of the prosecutor’s disregard for appellants’ right to a fair trial. For example, during jury selection, the prosecutor asked a prospective juror her feelings about someone who did something wrong but did not have adequate counselling in his or her “formative years.” After Soares’ counsel objected and asked the court to instruct the prospective jurors not to infer from any of the attorneys’ questions that anyone had done anything wrong, the prosecutor remarked, “if nobody has done anything wrong, we wouldn’t be here.”

Further examples of the prosecutor’s misconduct include the prosecutor’s repeated attempts to introduce evidence previously excluded by motion in limine, numerous “speaking objections,” and leading questions.

Although no single instance of prosecutorial misconduct substantially prejudiced appellants’ right to a fair trial, we find that the cumulative weight of the prosecutor’s improper conduct was so prejudicial as to deny appellants a fair trial. [Citing authority.]

815 P.2d at 430-431.

In the present case, the prosecutor crafted a mosaic of a defendant who 1) had planted drugs on women in exchange for sex; 2) had resigned from the Conway Police Department because he had forced sex on someone; 3) had been forced to resign from four other law enforcement agencies and one security job, apparently for the same reason; and 4) had been suspended from the Pulaski County Sheriffs Department for “taking a woman,” the implication in light of the charge and the other insinuations being that the woman was taken for sex.

As in Soares, the prosecutor’s accumulated remarks in this case combined to deny Dillon a fair trial. One comment built on the next until the jury could readily have believed that Dillon had been fired repeatedly from law enforcement positions because he forced sex on women. Yet the prosecutor offered no evidence that any one of these accusations was true. The net result was guilt by insinuation.

We cannot say that the prosecutor’s comments, overly zealous as they were, did not taint the jury’s decision and, indeed, we conclude exactly to the contrary. Our system of criminal justice is founded on the twin cornerstones of fairness and proof beyond a reasonable doubt. Here, the appellant was subjected to an onslaught of accusations which he had no way of defending against because the accusations were unsubstantiated. The prejudice to his case was palpable.

II. POINTS ON RETRIAL

There are several points that may well reoccur in a second trial.

On cross-examination, the State was allowed to use a transcript to inquire into whether Dillon had told the truth while testifying under oath in a court proceeding on October 26, 1984. In the earlier trial, the appellant declared that he had not made any specific promises to the defendant in that case; later, however, a tape was played in which it was clear that he had indeed made promises.

The appellant contends that this cross-examination violated A.R.E. 608(b), which bans, in general terms, proof of “[s]pecific instances of the conduct of a witness” by extrinsic evidence. But the Rule leaves to the court’s discretion the decision whether to permit inquiry concerning those instances that concern a witness’s “character for truthfulness or untruthfulness.”

Reference to a transcript of a prior proceeding involving the witness for the purpose of impeaching that same witness in the current trial is not the kind of extrinsic evidence prohibited by Rule 608(b). See 1 J.W. Strong, McCormick on Evidence, § 41, at p. 141 (4th Ed. 1992). We have also held that the credibility of a witness may be attacked, under Rule 608, under the following conditions: “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 witnesses] truthfulness.” Mackey v. State, 279 Ark. 307, 316, 651 S.W.2d 82, 86 (1983).

Here, the prosecutor merely inquired into the past episode, and nothing in the record suggests that the question was not asked in good faith. The probative value of the query was high, given the critical need for the jury to evaluate the credibility of Dillon versus that of Tammy Falcone. No prejudice resulted to Dillon because the question elicited nothing about other sexual offenses. The point of the inquiry on cross-examination was to explore Dillon’s propensity for truthfulness. Accordingly, the questioning was permissible.

Dillon also objected to the testimony of Lieutenant Mike Adams concerning what Dillon told him about what happened when he pulled Falcone over to run a “warrant check.” This was improper, the appellant urges, because he had not received his Miranda warnings. However, at the time Dillon spoke with Adams, he was not “in custody” or “under arrest.” Hence, the Miranda requirement was not operative. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). Moreover, the appellant never sought a Denno hearing prior to trial as provided for by Ark. Code Ann. § 16-89-107(b)(1) (1987).

The circuit court allowed Brenda Kaup, Dillon’s purported victim on October 12, 1990, to testify under A.R.E. 404(b) because her testimony 'was evidence that Dillon followed a particular plan, or modus operandi, with Tammy Falcone. Dillon’s plan, as revealed by Kaup’s testimony, was consistent with the circumstances depicted in Falcone’s testimony. According to the respective testimony, both women were unaccompanied when they were pulled over. Both women were accused of crossing the center line, and both were ordered to get into the patrol car. Both women had family out of town: Falcone’s husband was in Saudi Arabia, and Kaup’s family lived out of state. In Kaup’s case, she stated that Dillon threatened to take her in for DWI but said perhaps he could work something out. At that point he obliged her to expose herself to him under the pretext of searching for drugs. He then released her and followed her to her babysitter’s house.

We have held that modus operandi evidence is admissible in rape cases to prove a common plan. Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971). This situation fits squarely within that holding.

Finally, “serious physical injury” is not an element of the crime of rape, and the circuit court correctly refused the appellant’s proffered modified version of AMCI 1803.

Reversed and remanded.

Hays, Glaze, and Corbin, JJ., dissent.