Gage v. State

748 S.W.2d 351, 295 Ark. 337, 1988 Ark. LEXIS 215

• Court: Supreme Court of Arkansas
• Decided: May 2, 1988
• Docket: CR 87-215
• Status: Published

Opinions

David Newbern, Justice.

The appellant, James Dean Gage, was convicted on two counts of sale of marijuana and one count each of possession of marijuana with intent to deliver, possession of methamphetamine with intent to deliver, and being a felon in possession of a firearm. He was sentenced as an habitual offender to 37 years imprisonment. His sole argument is that a witness was allowed to give hearsay evidence against him. We conclude that even if the evidence in question were hearsay, it would not justify reversal of the conviction in view of the overwhelming evidence of guilt.

An undercover state police investigator testified he purchased marijuana from Gage on two occasions at Gage’s residence. The Sevier County Sheriff testified he and other officers went to the Gage residence with a search warrant. They searched the house and found there the drugs and firearms which were seized. Gage and a woman were at the house when the search took place. The state produced some 74 exhibits including the drugs mentioned above, various containers and drug paraphernalia, weapons such as brass knuckles and numb chucks, and a number of rifles and pistols which, with the exception of one pistol, were loaded when found, and extra ammunition. Gage did not challenge the introduction of these exhibits except to ask chain of custody questions on cross-examination.

The alleged hearsay occurred when the sheriff testified on redirect examination that when the officers were on their way to Gage’s house to execute the search warrant they stopped a truck and found a person in the truck in possession of drugs. The sheriff testified the occupants of the truck had been to Gage’s house just before the truck was stopped. On cross-examination, the sheriff was asked if he had learned the truck was coming from Gage’s residence from someone other than Gage, and he said he had. Gage’s counsel asked that this testimony of the sheriff be stricken as hearsay.

We will bypass the state’s argument that the statement was not hearsay, that if error occurred it was invited, and that there was no timely objection. We need not consider these arguments because the other evidence against Gage was so overwhelming, and we have held that even an error of constitutional proportions will not require reversal if it is harmless beyond a reasonable doubt. Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986). Gage has not demonstrated that, given error in the admission of the testimony, prejudice resulted, in view of the overwhelming nature of the other evidence against him. See Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 108 S. Ct. 202 (1987); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

Affirmed.

Purtle, J., dissents.