Gordon v. State

931 S.W.2d 91, 326 Ark. 90, 1996 Ark. LEXIS 488
CourtSupreme Court of Arkansas
DecidedSeptember 30, 1996
DocketCR 96-287
StatusPublished
Cited by25 cases

This text of 931 S.W.2d 91 (Gordon v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. State, 931 S.W.2d 91, 326 Ark. 90, 1996 Ark. LEXIS 488 (Ark. 1996).

Opinions

DAVID Newbern, Justice.

Robert Lynn Gordon and John Michael Priest were tried jointly for attempted capital murder and manufacture of a controlled substance. Mr. Gordon was convicted of both offenses and sentenced to 35 years’ imprisonment and a $10,000 fine. Mr. Priest was convicted of manufacture of a controlled substance and was given a four-year suspended sentence. Both have appealed, and their appeals have been consolidated. We affirm Mr. Gordon’s conviction as we reject his sole point of appeal having to do with alleged error resulting from improper limitation of cross-examination of a State’s witness. We reverse and dismiss the conviction of Mr. Priest because we concur in his contention that the evidence against him given by an accomplice was not corroborated.

On Thursday, August 18, 1994, the Marion County Sheriff’s office received a report concerning the discovery of a large marijuana plot. Investigator Carr was the first to respond to the call. Upon entering the marijuana field, Mr. Carr noticed a strand of monofilament fine, a type of fishing fine, running to a piece of pipe. Suspecting a trap-gun, he attempted to relay his discovery to other approaching officers. While attempting to radio the other officers, he set-off a second, unseen trap-gun which was loaded with buckshot. The resulting blast struck Mr. Carr’s leg. Although severely wounded, he managed to crawl out of the field. He was found by other officers and rushed to the hospital. The officers recovered 402 marijuana plants and two trap guns constructed of galvanized pipe and rat traps.

The State’s primary witness was Kenneth Godat, an accomplice. According to Mr. Godat, the marijuana plot belonged to Mr. Gordon and Mr. Priest. Mr. Godat testified that he heard the two men discussing the necessity of keeping law enforcement officials out of the plot, and that he saw the components for the trap-guns on a nearby picnic table immediately after the discussion. He claimed that he saw a trap-gun, identical to the ones found in the marijuana plot, at the cabin shared by the two men. Mr. Godat also stated that he transported the two men to the plot on the day the trap-guns were installed. The other evidence produced by the State consisted of testimony from individuals who stated they knew the marijuana patch belonged to Mr. Gordon, that he talked of protecting it with booby-traps, and that he had a partner, although the partner was not named.

Robert Lynn Gordon Scope of cross-examination

Bill Beach, one of the investigating officers, testified he took fingerprints from a number of the suspects and submitted them to the State Crime Laboratory for comparison to prints found on the trap-guns. When questioned about the result, he stated the test was inconclusive. Officer Beach testified a laboratory technician told him “That he had found one, partial latent print on one of the [trap-guns] and that... as a result of his comparison to the known prints that were submitted, the print was not suitable to identify any potential suspect, there were not enough points of identification to identify one person.” On cross-examination, Mr. Gordon’s counsel began questioning Officer Beach about a conversation Mr. Beach had with the fingerprint examiner, Mr. Turbyfill, concerning which suspect the fingerprints most closely matched. The State’s objection was sustained.

Mr. Gordon’s counsel asked to make a proffer consisting of his allegation that Officer Beach would testify that Mr. Turbyfill said that he found five points on the latent print which matched the fingerprint of Brad McLean and that Mr. Turbyfill had stated the investigator should take a “hard look” at Mr. McLean as a suspect. The Trial Court stated that, if a statement by Mr. Turbyfill were admissible, Mr. Turbyfill would be the proper witness but he doubted the testimony would be admissible “under any stretch of the rule of evidence.” Obviously, the Trial Court considered the testimony of Mr. Beach about what Mr. Turbyfill had told him to be irrelevant and, at best, subject to a hearsay objection on the part of the State. We note that in Davis v. State, 319 Ark. 892 S.W.2d 472 (1995), we held that a police officer’s testimony about a scientific test he did not conduct was not admissible.

On appeal, Mr. Gordon contends that Officer Beach’s statement concerning the inconclusive nature of the test was misleading. He submits that he should have been allowed to elicit testimony from Officer Beach that, even though inconclusive, the fingerprint test implicated one of the other suspects and not Mr. Gordon. Mr. Gordon contends the Trial Court erred by limiting his cross-examination of a State’s witness and such error amounted to a denial of his Sixth Amendment right of confrontation.

The right of confrontation provides two types of protection for defendants in criminal cases: the right to face those who testify against them and the opportunity to conduct effective cross-examination. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993). The right to cross-examine is, however, not unlimited, and a trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). We will not disturb the discretion of the trial court upon review in the absence of a showing of abuse. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994).

To determine whether the restrictions placed on the right to cross-examine a witness rise to the level of a constitutional deprivation, we look to the record as a whole to determine if the restrictions imposed created a substantial danger of prejudice to appellant. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Bowden v. State, supra. Prejudice is not presumed and we will not reverse absent a showing of prejudice. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

In his argument, Mr. Gordon cites three cases in support of his point that his right of confrontation was erroneously curtailed. The cases are U.S. v. Campbell, 845 F.2d 782 (8th Cir.1988), U.S. v. Ferguson, 776 F.2d 217 (8th Cir. (1985), and Bowden v. State, supra. In each of those cases convictions were affirmed, and each of the opinions emphasizes the wide discretion a trial court has in limiting cross-examination. The opinion in the Ferguson case makes the point that “A violation of the confrontation clause occurs only where the limitation on the cross-examination could reasonably be expected to have a substantial effect on the jury’s decision.”

Mr.

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Bluebook (online)
931 S.W.2d 91, 326 Ark. 90, 1996 Ark. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-state-ark-1996.