Epps v. State

38 S.W.3d 899, 72 Ark. App. 370, 2001 Ark. App. LEXIS 45
CourtCourt of Appeals of Arkansas
DecidedFebruary 7, 2001
DocketCA CR 99-869
StatusPublished
Cited by2 cases

This text of 38 S.W.3d 899 (Epps v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Epps v. State, 38 S.W.3d 899, 72 Ark. App. 370, 2001 Ark. App. LEXIS 45 (Ark. Ct. App. 2001).

Opinions

JOHN E. JENNINGS, Judge.

On July 13, 1998, appellant entered pleas of nolo contendere to the charges of terroristic threatening and arson. The trial court suspended imposition of sentence for a period of five years. On September 9, 1998, the State filed a petition to revoke Epps’s suspended sentence on the grounds that he had committed the offenses of sexual abuse and third-degree domestic battery a few days earlier. After a hearing, the court revoked Epps’s suspended sentence and sentenced him to six years in the Arkansas Department of Correction, with four years suspended.

On appeal to this court appellant argues that the trial judge erred in refusing to consider certain evidence, erred in refusing to permit a proffer, and erred in repeatedly interrupting appellant’s counsel during his examination of witnesses. We affirm.

Appellant’s first point relates to a tape-recorded interview he gave to the police. The tape itself was admitted into evidence without objection. The following then transpired:

THE COURT: It’ll be played then. How long is it?
Defense Counsel: About 30 or 40 minutes.
The COURT: Do I have to see the whole thing?
Prosecuting Attorney: I hope not. You can stop it when you’re bored. I guess.
Prosecuting Attorney (To the Witness): You’ve seen the tape and you were at the interview. What does the defendant say, first about the domestic battery?
DEFENSE Attorney: Your Honor, I am going to let the tape speak for itself.
The COURT: I’m not going to watch that tape unless somebody makes me watch it.

After further testimony by the officer on the witness stand, there was the following colloquy:

Defense COUNSEL: That’s not what was said. You’re going to have to watch the tape.
The COURT: I am not going to watch that tape unless you make me watch it, [Counsel].
DEFENSE Counsel: I’ve watched the tape and that statement is not in the tape.
The COURT: You can test him on cross-examination.

And finally:

The Court: Now, [Counsel], don’t argue with him about what’s on the tape.
Mr. TAYLOR: Well, I’m trying to keep the Court from having to watch it.
The COURT: Either play the thing or accept his answers.

Appellant argues that it was error for the court to refuse to consider the tape of the interview which had already been admitted into evidence. We do not agree that the court refused to consider the evidence. The trial judge clearly preferred to have the substance of the tape covered by direct and cross-examination of the interviewing officer, and the judge had some discretion in this regard. See Rule 611(a) of the Arkansas Rules of Evidence. Beyond that, it is clear from what the judge said that he would have viewed the tape himself had counsel for the appellant insisted.1 Having not insisted that the trial judge view the tape, appellant is in no position to complain now on appeal.

Appellant’s second argument is that the trial court erred in refusing to permit him to make a proffer when counsel asked a question and the State’s objection was sustained. The short answer to this contention is that the trial court told appellant’s counsel that he could make the proffer later. The trial judge has general superintending control over the conduct of trials and specifically has discretion as to the manner in which a proffer is made. See Rule 103(b) of the Arkansas Rules of Evidence. We see no impropriety in the court’s directing that the proffer be made later. Appellant never raised the matter later. We hold that the court’s ruling was not error.

Finally, appellant contends that the trial judge erred in interrupting his attorney during both direct and cross-examination by making evidentiary rulings without an objection from the State. It has been generally held that the trial judge has the authority to exclude improper evidence even in the absence of an objection. Commonwealth v. Haley, 363 Mass. 513, 296 N.E.2d 207 (1973); South Atlantic S.S. Co. of Delaware v. Munkacsy, 37 Del. 580, 187 A. 600 (1936); United States v. Wright, 542 F.2d 975 (7th Cir. 1976); Strong, McCormick on Evidence, 5th Ed. § 55 at 247; 75 Am. Jur. 2nd Trial § 272; see also The American Workmen v. Ledden, 196 Ark. 902, 120 S.W.2d 346 (1938).

In Haley, supra, the Massachusetts Supreme Court said:

A good judge must have firmness. Sitting with a jury, he should so conduct the trial that the case will go to the jury, so far as his lawful powers permit, free from irrelevant considerations and appeals to prejudice and emotion. As a former justice of our court once said: ‘The judge who discharges the functions of his office is . . . the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings.’ It is true, now as in Lord Bacon’s day, that ‘an over-speaking judge is no well-tuned cymbal,’ and that ‘It is no grace to a judge first to find that which he might have heard in due time from the bar.’ A judge who takes a case that he does not understand out of the hands of competent counsel who do understand it, is a nuisance. The judge must never become or appear to be a partisan.
But a judge need take no vow of silence. He is there to see that justice is done or at least to see that the jury have a fair chance to do justice. . . . The judge ought not to let the jury be diverted from the real issue. The skill of counsel must not be allowed to mislead the jury by raising false issues or by appeals to emotion and prejudice. ... It is not always easy for a judge to see his duty clearly. But a first-rate trial judge will find and tread the narrow path that fres between meddlesomeness on the one hand and ineffectiveness and impotence on the other.

Quoting from Lummus, The Trial Judge, 19-21 (1937).

In Skiver v. State, 37 Ark. App. 146, 151, 826 S.W.2d 309 (1992), Chief Judge George Cracraft, speaking for this court, said:

[Wjhile we may agree with appellant that it is improper for a trial judge to needlessly inject himself into the trial, the judge is not merely the chairman of a trial, who must remain mute until a party calls upon him for a ruling; instead he has some responsibility for the proper conduct of the trial and achievement of justice.

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Related

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2015 Ark. App. 63 (Court of Appeals of Arkansas, 2015)
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377 S.W.3d 265 (Court of Appeals of Arkansas, 2009)

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Bluebook (online)
38 S.W.3d 899, 72 Ark. App. 370, 2001 Ark. App. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/epps-v-state-arkctapp-2001.