Moore v. State

207 S.W.3d 493, 362 Ark. 70, 2005 Ark. LEXIS 245
Supreme Court of Arkansas·Decided April 21, 2005·No. CR 04-927·Published·Cited by 11 cases

Opinion

Annabelle Clinton Imber, Justice.

Appellant Quincy Moore was convicted of aggravated robbery, residential burglary, theft by receiving, and theft of property. He was charged as a habitual offender and sentenced to two life sentences on the aggravated robbery charges and concurrent sentences on the remaining charges. Mr. Moore’s counsel has filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-30(1), asserting that there is no merit to any arguments arising from the circuit court’s rulings that were adverse to his client. The State concurs that there is no merit to this appeal.

According to the testimony presented at trial, Mr. Moore and two other males were in the process of burglarizing the home of Scott Campbell when Mr. Campbell was summoned home by his neighbor and found them and a Cadillac in his driveway. Richard Jarrett, one of the other males, testified that Mr. Moore was aware that the Cadillac had been stolen. Mr. Campbell testified that the men were shutting his garage door and that one of them was sitting on his four wheeler. Mr. Jarrett further testified that, while at the Campbell house, the three men also stole guns, a bike, and a jewelry box. The total value of the stolen property was over $5,000.

After being caught by Mr. Campbell, the three men fled in the Cadillac and Mr. Campbell chased them. During the course of the chase, one of the men, identified by Mr. Campbell as Mr. Moore, began shooting at Mr. Campbell and hit his truck with a bullet. Mr. Campbell testified that Mr. Moore shot at his truck at least nine times. Mr. Campbell contacted the police with his cell phone, and eventually the chase reached a roadblock set up by the police. The three men got out of the Cadillac and attempted to flee. Mr. Moore, carrying a gun, got into a police patrol car and drove away. He abandoned the police car further down the road. Mr. Moore was eventually arrested, following a statement by Mr. Jarrett identifying him as a participant.

I. First Adverse Ruling — Voir Dire

The first adverse ruling by the circuit court occurred during the voir-dire stage of the trial when counsel for Mr. Moore objected to the State asking, “Anyone else think the State should be held to a higher burden than beyond a reasonable doubt?” Mr. Moore’s attorney argued:

He’s not asking if they understand. He asking if they think it’s fair and . . . he’s asking them to pre-judge what he has to do .... This doesn’t have anything to do with their qualifications or whether they can sit as a juror. This is going towards whether they’re going to believe that his side is more fair than the other side is more fair.

The circuit court disagreed, and ruled that the question asked generally if the jury could follow the instructions. The course and conduct of voir-dire examination of the venire is primarily within the trial court’s discretion and its decision will not be reversed absent an abuse of discretion. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).

The Hall case is dispositive of this issue. In, Hall, the prosecutor, in attempting to discern whether the jurors would hold the State to the correct burden, explained reasonable doubt by informing jurors that they did not have to “be one hundred percent certain in order to render a guilty verdict.” Id. at 391, 868 S.W.2d at 456. Hall argued that this attempt to quantify reasonable doubt was improper. In affirming, we noted that during the course of voir dire, the trial court quoted the AMCI definition of reasonable doubt and asked one juror in the hearing of others if she would listen to and follow the court’s instructions on burden of proof. Similarly, in this case, the prosecutor merely asked if any of the jurors thought the State should be held to a higher burden than beyond a reasonable doubt. Accordingly, we hold that the circuit court did not abuse its discretion in ruling that the question was a proper inquiry into whether the jurors would follow the instructions.

II. Second Adverse Ruling — Hearsay Objection

The second adverse ruling by the circuit court was in response to the defendant’s hearsay objection to the statement made by Mr. Campbell while testifying, “I got a call from a neighbor, she said, you know, you need to get home right away.” The circuit court overruled the objection, concluding that the statement was not hearsay. We will not reverse the trial court’s ruling on a hearsay question absent an abuse of discretion. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). An out-of-court statement is not hearsay under Rule 801(c) of the Arkansas Rules of Evidence if it is offered to show the basis for the witness’s actions. Sanford v. State, supra; Ark. R. Evid. 801(c)(2004). Here, the statement was not offered to show the truth of the matter asserted, but merely to explain why Mr. Campbell rushed home. Thus, the circuit court did not abuse its discretion in allowing the statement.

III. Third Adverse Ruling— Outside the Scope of Cross-Examination

The third adverse ruling occurred when the circuit court allowed the prosecutor on redirect to inquire as to the value of the property taken in the burglary, despite the fact that evidence concerning the value had not been introduced during the direct examination or the cross-examination. Defense counsel objected, arguing the question was outside the scope of his cross-examination and should not be allowed. The circuit court agreed that the question was technically outside the scope of the cross-examination, but allowed it in the interest of expediency, noting that the State could always recall the witness. This court has recognized that the scope and extent of redirect examination lie within the sound judicial discretion of the trial judge. Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991). In this matter, the court has recognized that the court’s discretion is very liberal. Id. A judge may permit a party to bring out on redirect examination some matter that is relevant to that party’s case or defense and that through oversight he or she has failed to elicit on direct. Id. Moreover, Ark. Code Ann. § 16-43-703 (Repl. 1999) gives the trial court discretion to allow the reexamination of a witness and Ark. R. Evid. 611(a) imposes a duty on trial courts to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . avoid needless consumption of time.” Ark. R. Evid. 611(a) (2004).

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Moore v. State, 207 S.W.3d 493, 362 Ark. 70, 2005 Ark. LEXIS 245 (Ark. 2005).

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