Freddie Ezekiel v. State of Arkansas

2019 Ark. App. 460

• Court: Court of Appeals of Arkansas
• Decided: October 16, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 460

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.03 14:16:27 DIVISION III -05'00' No. CR-19-141

Adobe Acrobat version: 2022.001.20169 Opinion Delivered October 16, 2019

FREDDIE EZEKIEL APPEAL FROM THE CLARK COUNTY CIRCUIT COURT APPELLANT [NO. 10CR-17-101]

V. HONORABLE GREG VARDAMAN, JUDGE

STATE OF ARKANSAS AFFIRMED

APPELLEE

LARRY D. VAUGHT, Judge

Freddie Ezekiel appeals his conviction by the Clark County Circuit Court of first-

degree forgery as a habitual offender. We affirm.

On July 30, 2017, Arkadelphia police responded to two separate calls from AutoZone

and O’Reilly Auto Parts stores about a woman purchasing items with counterfeit currency.

Tiffany Gwatney was arrested at Wal-Mart with counterfeit $100 bills in her possession. Police

were able to identify Gwatney’s car and locate it at McDonald’s in Arkadelphia.

When the police stopped the car, Ezekiel was one of three people in the vehicle and

the only passenger in the backseat. As the officers approached the car, they observed him

shoving what was later revealed to be five counterfeit $100 bills into the seat cushions. On the

back floorboard next to his feet were sacks containing the items purchased from AutoZone

and O’Reilly Auto Parts with counterfeit $100 bills. Officer Aaron Abbott removed Ezekiel from the car and searched him. During that

search, Abbott located Ezekiel’s wallet and tossed it into the back seat of the car. A different

officer who was searching the backseat of the car looked in the wallet and found a credit card

belonging to Ezekiel, receipts from the purchases made with counterfeit bills at AutoZone

and O’Reilly Auto Parts, and currency that was less than the change from the purchases.

The State charged Ezekiel with first-degree forgery as a habitual offender. Prior to trial,

he moved to suppress his wallet and its contents as the fruits of an illegal search. Ezekiel

waived his right to jury trial, and the parties agreed to allow the court to consider and rule on

the motion to suppress during the bench trial.

At trial, Gwatney testified for the State about the events of July 30, 2017. She stated

that when she and Ezekiel arrived at each store, Ezekiel gave her the counterfeit $100 bills and

told her what to purchase. After she made the purchases at AutoZone and O’Reilly Auto Parts,

she gave Ezekiel the change, the receipts, and the items she had purchased. On cross-

examination, Ezekiel’s counsel tried to question Gwatney about purchases she allegedly made

with counterfeit bills in Garland County prior to July 30, 2017. Gwatney invoked her Fifth

Amendment rights in response to all the questions about the Garland County purchases, and

Ezekiel moved to strike her testimony, arguing that his right to confrontation under the Sixth

Amendment had been violated. The court denied the motion.

After receiving the evidence, the court denied Ezekiel’s motion to suppress, found him

guilty, and sentenced him to serve twenty-one years’ imprisonment in the Arkansas

Department of Correction. Ezekiel brings this timely appeal from his conviction and sentence.

2 Ezekiel’s first point on appeal is that the court violated his Sixth Amendment right to

confront his accuser when it denied his motion to strike Gwatney’s testimony after she

invoked her Fifth Amendment rights during cross-examination when his counsel asked her

about previous occasions when she allegedly passed counterfeit currency without Ezekiel’s

help or instruction. Ordinarily “[q]uestions of constitutional interpretation, such as whether

there has been a Confrontation Clause violation, are subject to de novo review.” Raquel-Dieguez

v. State, 2015 Ark. App. 626, at 5, 475 S.W.3d 585, 589. However, “whether the testimony of

a witness must be stricken whe[n] . . . upon cross-examination the witness refuses to answer

questions citing the Fifth Amendment privilege . . . is within the trial court’s discretion.”

Robertson v. State, 298 Ark. 131, 136, 765 S.W.2d 936, 939 (1989); see also United States v. Wilkens,

742 F.3d 354, 360 (8th Cir. 2014) (“A trial court’s decision to strike a witness’s testimony after

the witness’s assertion of the Fifth Amendment privilege against self-incrimination is reviewed

for an abuse of discretion.”). “The abuse-of-discretion standard is a high threshold that does

not simply require error in the circuit court’s decision, but requires that the circuit court act

improvidently, thoughtlessly, or without due consideration.” Holland v. State, 2015 Ark. 341, at

7, 471 S.W.3d 179, 184.

The right to cross-examination guaranteed by the Confrontation Clause of the Sixth

Amendment is not unlimited. Chantharath v. State, 2016 Ark. App. 35, at 8, 480 S.W.3d 223,

228. In fact, circuit courts have wide latitude to impose restrictions on cross-examination. Id.

at 8, 480 S.W.3d at 228. The Confrontation Clause only “‘guarantees an opportunity for

effective cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.’” Id. at 8, 480 S.W.3d at 228 (quoting Delaware v.

3 Fensterer, 474 U.S. 15, 20 (1985)). A defendant’s Confrontation Clause right of cross-

examination can be limited and made to yield to a witness’s individual right against self-

incrimination. In Davis v. Alaska, 415 U.S. 308, 320 (1974), the United States Supreme Court

noted that the circuit court has a duty to protect a witness from cross-examination that

represents an attempted invasion of his or her properly invoked constitutional protection

against self-incrimination. However, the testimony of a witness must be struck when the

witness refuses to answer questions on cross-examination citing the Fifth Amendment

privilege “if failure to answer deprives the party questioning the witness of the right to test the

truth of the witness’s direct testimony, as opposed to a collateral matter.” Robertson, 298 Ark.

at 136, 765 S.W.2d at 939–40 (citing United States v. Cardillo, 316 F.2d 606, 611 (2d Cir. 1963)).

Specifically, “if the witness by invoking the privilege precludes inquiry into the details of his direct

testimony . . . that witness’s testimony should be stricken in whole or in part.” Cardillo, 316 F.2d

at 611 (emphasis supplied).

Confrontation Clause errors are subject to a harmless-error analysis. Watson v. State, 318

Ark. 603, 606, 887 S.W.2d 518, 519 (1994) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684

(1986)). Whether a Confrontation Clause “error is harmless in a particular case depends upon

several factors: the importance of the witness’s testimony in the prosecution’s case; whether

the testimony was cumulative; the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points[;] the extent of cross-

examination otherwise permitted; and, the overall strength of the prosecution’s case.” Cannon

v. State, 2010 Ark. App. 698, at 8, 379 S.W.3d 561, 565. Further, in a bench trial, “the judge is

presumed to have considered only competent evidence, and this presumption is overcome

4 only when there is an indication that the trial judge did give some consideration to the

inadmissible evidence.” Fields v. State, 36 Ark. App. 179, 185, 820 S.W.2d 467, 471 (1991).

Here, the State argues that Ezekiel’s questions did not pertain to anything about which

Gwatney had testified on direct examination and were therefore collateral matters. Ezekiel

argues that the events about which he sought to ask Gwatney were not collateral because they

tended to disprove assertions she made during direct examination (namely, that Ezekiel had

been the ringleader of the forgery scheme and had directed her at every step). The State rejects

this argument, asserting that Ezekiel has confused the concepts of “collateral to the case” with

“collateral to direct examination,” which is the applicable standard here. The State cites United

States v. Berrio-Londono, 946 F.2d 158 (1st Cir. 1991) for the position that inquiry into the

witness’s prior criminal history is a collateral matter. Here, however, the prior criminal acts

about which Ezekiel sought to question Gwatney were arguably related to the acts about which

Gwatney testified on direct.

In the present case, our standard of review requires us to affirm the court’s decision

unless it was an abuse of discretion, and we do not conclude that the court acted thoughtlessly

or improvidently in determining that Ezekiel’s questions were collateral to Gwatney’s direct

testimony. Moreover, we conclude that any potential error was clearly harmless. The State

introduced overwhelming evidence of Ezekiel’s guilt—he was observed stuffing the

counterfeit money into the backseat cushions, the items purchased with counterfeit money

were at his feet, and he had the receipts for, and change from, those purchases in his wallet.

Beyond that, Ezekiel introduced into evidence the Garland County convictions about which

he wished to question Gwatney. These documents included the factual background necessary

5 for him to make his argument that Gwatney, not Ezekiel, was the ringleader of the forgery

scheme. Finally, the court stated that it did not find Gwatney credible and did not consider

“much of anything Ms. Gwatney said” in reaching its verdict. We therefore affirm the court’s

denial of Ezekiel’s motion to strike Gwatney’s testimony.

Ezekiel’s second point on appeal is a challenge to the court’s denial of his motion to

suppress his wallet and its contents. In reviewing the denial of a motion to suppress, Arkansas

appellate courts conduct a de novo review based on the totality of the circumstances, reviewing

findings of fact for clear error and determining whether the facts give rise to probable cause,

giving due weight to inferences drawn by the circuit court. Brazwell v. State, 354 Ark. 281, 284,

119 S.W.3d 499, 500 (2003). “Consistent with this standard, this court defers to the superior

position of the circuit court to determine the credibility of witnesses and to resolve evidentiary

conflicts, but resolves legal questions through an independent determination on the totality of

the circumstances.” Collins v. State, 2014 Ark. App. 574, at 4, 446 S.W.3d 199, 203. “In addition,

this court may affirm an order denying a suppression motion for a reason different from that

relied upon by the court below.” Id.

An officer making a lawful arrest may conduct a warrantless search of the accused and

his property. Stewart v. State, 2010 Ark. App. 9, at 7, 373 S.W.3d 387, 391; Ark. R. Crim. P.

12.1(d) (2019). “A search is valid as incident to a lawful arrest even if it is conducted before

the arrest, provided that the arrest and search are substantially contemporaneous and that there

was probable cause to arrest prior to the search.” Brunson v. State, 327 Ark. 567, 572, 940 S.W.2d

440, 442 (1997). A warrantless arrest is permissible when an officer has probable cause to

believe that the person has committed a felony or any violation of the law in the officer’s

6 presence. Ark. R. Crim. P. 4.1(a)(i)(iii). “Probable cause to arrest is defined as a reasonable

ground for suspicion supported by circumstances sufficiently strong in themselves to warrant

a cautious man in believing that a crime has been committed by the person suspected.” Moody

v. State, 2014 Ark. App. 618, at 4, 446 S.W.3d 652, 654 (internal quotations omitted). Probable

cause to arrest does not require proof necessary to support a conviction. Id. “[I]n assessing the

existence of probable cause, the appellate court’s review is liberal rather than strict.” Id. This

court looks at the facts within the “arresting officer’s knowledge—not his stated reasoning—

to determine whether those facts are sufficient to permit a person of reasonable caution to

believe that an offense has been committed.” Id. In fact, an arrest may be valid even if the

officer did not believe he could make an arrest; the issue of probable cause is for the appellate

court to determine. See Banks v. State, 2010 Ark. App. 383, at 5. “Moreover, probable cause to

arrest without a warrant may be evaluated on the basis of the collective information of the

police,” not just the information known by an individual officer. Moody, 2014 Ark. App. 618,

at 4, 446 S.W.3d at 654.

Here, the circuit court did not err in denying Ezekiel’s motion to suppress his wallet

and its contents. The State correctly argued that the wallet was discovered pursuant to a proper

search incident to arrest. An officer making a lawful arrest may conduct a warrantless search

of the accused and his property, and that search is valid even if it is conducted before the

arrest, as long as the arrest and search are substantially contemporaneous and there was

probable cause to arrest prior to the search. Brunson, 327 Ark. at 572, 940 S.W.2d at 442. The

officer who removed Ezekiel’s wallet and the officer who subsequently opened it and

discovered its contents clearly had probable cause to believe Ezekiel had committed felony

7 forgery. They had just seen Ezekiel stuff counterfeit bills into the car’s cushions, and they

found the items purchased with counterfeit currency at his feet in the car. Ezekiel was located

in the car that had been identified as Gwatney’s after she had been picked up with counterfeit

bills in her possession. Based on those facts, the officers had probable cause to arrest Ezekiel

even before discovering the contents of his wallet, and the court correctly found that the arrest

occurred very shortly after the search. As such, we affirm the denial of Ezekiel’s motion to

suppress his wallet and its contents because the evidence was legally discovered as part of a

valid search incident to arrest.

Affirmed.

VIRDEN and SWITZER, JJ., agree.

Short Law Firm, by: Lee D. Short, for appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.