Turner v. State

2014 Ark. App. 428, 439 S.W.3d 88, 2014 Ark. App. LEXIS 560
CourtCourt of Appeals of Arkansas
DecidedAugust 27, 2014
DocketCR-13-925
StatusPublished
Cited by7 cases

This text of 2014 Ark. App. 428 (Turner v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner v. State, 2014 Ark. App. 428, 439 S.W.3d 88, 2014 Ark. App. LEXIS 560 (Ark. Ct. App. 2014).

Opinion

RITA W. GRUBER, Judge.

I,Robert Turner was convicted by a jury of two counts of aggravated robbery and one count of residential burglary. He contends on appeal that the trial court abused its discretion by admitting a portion of a 911 dispatch log into evidence over his relevancy objection. The log reflects telephone calls about a “shooting and robbery ... in house” in Gilmore, Arkansas, the night of February 8, 2011. The following information was typed into the log by a dispatcher at the Crittenden County Sheriff’s Office at the time he received the calls:

Someone shot, Darren Chance, 266 Menesha, Gilmore ..., Robert Turner, 30Y, B/M, 140, 5'06', white/Chev/Impala two door car headed toward Lepan-te.... Tyronza notified to be on lookout for the vehicle and the Robert Turner subject that he was in a white Chevrolet poss in route back to Lepante. She called back and wanted to know if the Turner subject was a Sr or Jr. He was the Jr.

We find no abuse of discretion in the trial court’s decision to allow the admission of this evidence.

Before turning to the merits of this case, we make the following observations about |gthe briefs before us. The State’s brief includes a supplemental addendum reproducing the page of the dispatch log at issue as well as a supplemental abstract of testimony by three witnesses: victim Darren Chance, a second victim, and a law-enforcement officer who conducted a photo lineup. These items are essential to our understanding of the issqes on appeal, and appellant’s abstract and addendum is deficient because it lacks them. See Ark. Sup. Ct. R. 4-2(a)(5), (8) (20Í3). Furthermore, appellant’s statement of the case is barely sufficient to assist us in understanding the nature of the case and general fact situation, and it lacks “page references to the abstract or addendüm of both.” Ark. Sup. Ct. R. 4 — 2(a)(6) (2013). The deficiencies of appellant’s brief are such that, were it not for supplementation by the State, we would have been unable to reach the merits of this appeal and would have ordered rebriefmg. See Ark. Sup.Ct. R. 4-2(b)(3) (2013).

Admission of the Dispatch Log into Evidence

Matters pertaining to the admissibility of evidence and rulings on relevancy are left to the trial court’s sound discretion. Sipe v. State, 2012 Ark. App. 261, 404 S.W.3d 164. We will not reverse a trial court’s evidentiary ruling absent an abuse of that discretion and a showing of prejudice. Id. Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. Id.

As a general matter, all relevant evidence is admissible. Ark. R. Evid. 402 (2013). Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it 13would be without the evidence.” Ark. R. Evid. 401 (2013). Even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, ..., or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2013). The State, however, is entitled to prove its case as conclusively as it can. Lard v. State, 2014 Ark. 1, 431 S.W.3d 249. Merely cumulative evidence is not prejudicial, and corroborating evidence may withstand Rule 403’s balancing test. See Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007) (finding no abuse of trial court’s discretion in admission of 911 calls despite Rule 403 claims that they were cumulative to other evidence); Anderson v. State, 93 Ark.App. 454, 459, 220 S.W.3d 225, 230 (2005) (finding no abuse of discretion in admission of letters that tended to corroborate the victim’s testimony).

Appellant’s objection to the dispatch log was initially sustained at trial, but the document was subsequently admitted after the State presented other evidence. The State first proffered the log during the testimony of Jeffrey Morris, the dispatcher who created it; he stated that he took the two calls and that the log was kept in the ordinary course of business at the sheriffs office. Appellant’s counsel, objecting that the log should not be admitted into evidence, asked to voir dire Morris to show that he lacked knowledge of the truth of “anything in this log” or the source of the information at issue. The following colloquy occurred:

Counsel: This case hinges on the State’s ability to identify Robert Turner. This document is going to come in on official letterhead. I think it is hearsay and prejudicial.
The State: We have had testimony that two calls were made, the information given to the Sheriffs office about who it was. And we have the dispatcher |4who received the calls.
The Court: Yes. But so far his name has not come up at all. And no one has said they knew or that they could tell who it was.

(Emphasis added.)

Counsel then conducted voir dire of Morris, who said that he received the information from the phone conversation and had no independent way to verify its accuracy. Morris testified, “I was just repeating what someone else told me. Any action I would have taken would have been the same regardless of the names I was told.” Counsel again objected:

I am asking the court to exclude this document on the basis that it is hearsay with no evidence of reliability, or alternatively to exclude a portion of the document that includes my client’s name under the argument that it is prejudicial. The nature of the offense is that Mr. Turner wasn’t there. There has been no proof that anybody even at the scene can identify Mr. Turner, and I want to avoid the jury getting a document — a Crittenden County official document that has his name on there twice with no indicia of reliability or truthfulness attached to it.

(Emphasis added.) The circuit court, expressing concern about “the highly prejudicial effect of Mr. Turner’s name being put in there at this point,” again sustained counsel’s objection. The court ruled that “right now, the prejudicial effect outweighs the probative value of only mentioning his name.”

The State withdrew its proffer at this point in its case and presented other evidence, including the testimony of Officer Allen Thomas and victims Darren Chance and Deondra Jackson. 1 Chance testified that when the robbers were in his house and when the shorter one 15was “checking and searching” him, he began forming an opinion that the shorter one was appellant. Chance explained, “My opinion was based on his gestures. I’ve been around him for a while and know his gestures. I also remember seeing him with the same gun.” Chance testified that in a statement at the sheriffs office, he again identified appellant as the shorter robber. Chance explained that the two of them lived in the same town and that he had worked on appellant’s car. Regarding events that preceded the robbery, Chance testified:

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Bluebook (online)
2014 Ark. App. 428, 439 S.W.3d 88, 2014 Ark. App. LEXIS 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-state-arkctapp-2014.