Swinford v. State

154 S.W.3d 262, 85 Ark. App. 326, 2004 Ark. App. LEXIS 200

• Court: Court of Appeals of Arkansas
• Decided: March 10, 2004
• Docket: CA CR 03-4
• Status: Published

Opinions

John F. Stroud, Jr.,

Chief Judge. Appellant, Jeffrey Swin-ford, was tried by a jury and found guilty of the offenses of aggravated assault, theft by receiving, and fleeing. On appeal, he raises two points: 1) that the trial court erred in refusing to allow cross-examination of two of the State’s witnesses to show possible bias, and 2) that the trial court erred in refusing to instruct the jury regarding either the accomplice status or the accomplice-in-dispute status of the two witnesses. We agree with both of his points of appeal and therefore reverse and remand for a new trial.

On September 20, 2001, Officer David Moss observed a Ford Explorer that had a missing screw on the license plate, causing the plate to hang at an angle. He ran the plates and learned that the vehicle had been stolen approximately one month earlier. As he approached the vehicle in his patrol car, the vehicle sped away. A high-speed chase followed, involving speeds up to 110 miles per hour. Eventually, several police cars were involved, and the Ford Explorer was diverted into a soybean field. The driver and two occupants of the car, Peggy McBride and Christopher Hanson, exited the vehicle. The driver of the car ran. McBride started to run but was persuaded not to do so by Hanson. Officer Erica Shelby pursued the driver and was able to see the fleeing suspect’s face, but she was not able to apprehend him. Officer Moss remained with the two occupants of the car, McBride and Hanson. At first, both occupants refused to tell Moss who the driver was. After about forty-five minutes, Hanson said that it was Jeffrey Swinford, the appellant. McBride did not divulge that name for another two weeks during which she was incarcerated. Based upon the name given by Hanson, the officers retrieved a driver’s license photo of Swinford, which was identified by Officer Shelby as the man she chased. Shelby also identified appellant at trial.

The two points raised in this appeal involve McBride and Hanson. Appellant proffered police-report forms, which indicated that McBride and Hanson were charged with several offenses as a result of the encounter with police on September 20, 2001: Class B felony theft by receiving, Class C felony theft by receiving, felony possession of prescription pills, felony possession of drug paraphernalia, carrying a weapon, felony fleeing, obstructing governmental operations. In addition, the reports showed that McBride was also charged with drinking in public and not wearing a seat belt. Appellant sought to cross-examine them with respect to why, except for the obstruction-of-governmental-operations charges, the other charges were not pursued. The purpose of the cross-examination was to show possible bias. The trial court refused to allow cross-examination with respect to any charges other than the obstruction-of-governmental-operations charges. This set of circumstances forms the basis for appellant’s first point of appeal.

The second point of appeal involves appellant’s attempt to have the jury instructed on the status of McBride and Hanson as either accomplices as a matter of law or accomplices in dispute. The trial court refused both proffered instructions.

1) Cross-Examination to Show Bias

A trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent a manifest abuse of discretion. Pryor v. State, 71 Ark. App. 87, 27 S.W.3d 440 (2000). A witness’s credibility is always an issue, subject to attack by any party. Id. The scope of cross-examination extends to matters of credibility. Id.; Ark. R. Evid. 611. A matter is not collateral if the evidence is relevant to show bias, knowledge, intent, or interest. Pryor v. State, 71 Ark. App. 87, 27 S.W.3d 440 (2000). Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence that might bear on the accuracy and truth of a witness’s testimony. Id. In other words, matters affecting the credibility of a witness are always relevant. Id. Moreover, our appellate courts have traditionally taken the view that the cross-examiner should be given wide latitude because cross-examination is the means by which to test the truth of the witness’s testimony and the witness’s credibility. Id. Full cross-examination should be allowed in order to show bias, and this is especially true in the case of an accomplice since his testimony is the direct evidentiary link between the defendant and the crime. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities. Id. The test is the expectation of the witness and not the actuality of a promise. Id. Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation. Id.

Normally, our appellate courts will not consider a point involving the exclusion of evidence when there was no proffer of excluded evidence because we have no way of knowing the substance of the evidence. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). However, there is no need for a proffer in either of two situations. Id. First, there is no need for a proffer where the substance of the offer was apparent from the context within which the questions were asked. Id. Second, in situations involving accomplices, it is normally only the prosecutor and the accomplice who know what expectation, if any, the State is holding out for the accomplice. Id. The defendant and his attorney do not usually have this information. Id. Arkansas Rule of Evidence 103(a)(2) does not contemplate a proffer of evidence when the information is unavailable to the cross-examiner. Id.¹

Here, the police reports proffered by appellant establish that the two witnesses were at least initially charged with several offenses. Yet the only offense that was pursued was that of obstruction of governmental operations, a misdemeanor. Appellant contends that he was entitled to pursue cross-examination concerning these other charges and any possible leniency afforded by the State in exchange for testimony against appellant.

The State’s only rebuttal to appellant’s argument on this issue is a procedural one. The State argues that the issue was not preserved because appellant did not proffer the excluded testimony or the existence of a plea agreement in exchange for the testimony. The State’s position is not convincing under the circumstances of this case. The instant case is similar to that of Henderson, supra, and the two bases given in Henderson to support the position that the issue was properly preserved would apply here as well. Moreover, here, the police reports showing the initial charges against Hanson and McBride were proffered, including Class B felony theft by. receiving, Class C felony theft by receiving, felony possession of prescription pills, felony possession of drug paraphernalia, carrying a weapon, felony fleeing, and obstructing governmental operations. In addition, the reports showed that McBride was also charged with drinking in public and not wearing a seat belt.

Our supreme court has held that the erroneous denial of a defendant’s opportunity to impeach a witness is subject to a harmless-error review under Chapman v. California, 386 U.S. 18 (1967). Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). To conclude that a constitutional error is harmless and does not mandate a reversal, our appellate courts must conclude beyond a reasonable doubt that the error did not contribute to the verdict. Id.

Here, the only evidence tying appellant to these offenses was the testimony of McBride and Hanson, both of whom appellant was prohibited from fully cross-examining regarding possible bias, and the identification testimony of Officer Erica Shelby, who admittedly only saw appellant for approximately two seconds during a foot chase. Eliminating the testimony of McBride and Hanson leaves only a two-second opportunity for identification to support the conviction. Thus, we have concluded that this trial error was not harmless beyond a reasonable doubt.

2) Refusal to Instruct Jury on Accomplice or Accomplice-in-Dispute Status

We address appellant’s second argument concerning the trial court’s refusal to instruct the jury on accomplice status because it is likely to recur on retrial. A person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). A criminal defendant is an accomplice where the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue. Id. Mere knowledge that a crime is being committed, concealment of that knowledge, or failure to inform officers that an offense has been committed, are not sufficient to establish accomplice liability. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Id. Mere presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Id. The determination of the status as an accomplice is ordinarily a mixed question of law and fact. Davis v. State, supra. The testimony of an accomplice must be corroborated before a defendant may be convicted of a felony. Id. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof; it must consist of other evidence tending to connect the defendant with the commission of the offense. Id. In order to preserve an accomplice issue for appellate review, a defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003).

In King v. State, 323 Ark. 671, 677-78, 916 S.W.2d 732, 735 (1996), our supreme court explained:

Our law is well-settled that a witness’s status as an accomplice is a mixed question of law and fact, and that when the status of a witness presents issues of fact, the defense is entitled to have the question submitted to the jury. The question must be submitted to the jury where there is any evidence to support a jury’s finding that the witness was an accomplice.

(Citations omitted.)

Here, McBride and Hanson were with appellant in the stolen vehicle, with him when he was trying to elude police, and McBride started to run when appellant did but was persuaded not to do so by Hanson. Both McBride and Hanson were initially charged with theft by receiving and several other offenses previously listed. While it is clear that McBride and Hanson were not accomplices as a matter of law, we find that there was sufficient evidence to submit the issue of their status as accomplices to the jury and that the trial court erred in refusing to do so.

Reversed and remanded.

Pittman, Hart, Neal, and Baker, JJ., agree. Bird, J., dissents.

1 The dissenting opinion attempts to distinguish Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983), and relies instead upon Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000). We reach the opposite conclusion, finding that Halford, supra, is distinguishable and that Henderson is more applicable to the instant case. In Halford, unlike the instant case, the trial court would have permitted defense counsel “to delve into whether any promises or assurances had been made by the State in exchange for her testimony”; however, counsel never pursued this line of inquiry. In the instant case, it is precisely this line of inquiry that was denied to the appellant. Even if we were to assume that these witnesses would have denied any promises of leniency, the prejudice in the trial court’s ruling lies in the defense not being allowed to ask the questions. The jury gets to decide whether it believes the witnesses, and in making that assessment, it also gets to hear the reasons why a witness might be biased and it gets to observe the witnesses’ demeanor in responding to such questions. Moreover, as noted in Henderson, supra, information regarding possible promises of leniency is usually not available to the defense, which is the second exception to the proffer requirement. The Halford case does not even cite Henderson, much less overrule it, for the likely reason that it was simply not applicable to the Halford facts.