Wallace v. State

378 S.W.3d 269, 2010 Ark. App. 706, 2010 Ark. App. LEXIS 748
Court of Appeals of Arkansas·Decided October 27, 2010·No. No. CA CR 10-128·Published·Cited by 4 cases

Opinion

ROBERT J. GLADWIN, Judge.

| Appellant Byron Wallace appeals his conviction by a Pulaski County jury on a charge of first-degree battery for which he was sentenced, as an habitual offender, to sixty years’ imprisonment in the Arkansas Department of Correction (ADC). Appellant does not challenge the sufficiency of the evidence supporting his conviction. Instead, he argues that his Sixth Amendment right to confrontation was violated when the circuit court allowed a witness to testify in the sentencing phase about appellant’s disciplinary violations during a previous term of imprisonment. Appellant also argues that the circuit court abused its discretion during the guilt phase of the trial by allowing the introduction of testimony from an investigating officer, as well as color crime-scene photographs, both of which he contends were overly prejudicial. We affirm.

| ¡Appellant was charged with domestic battery in the first degree, as an habitual offender, for the stabbing of Ms. Tracy Harris, his then girlfriend and the mother of his son. On October 6, 2009, appellant was convicted by a jury on the battery charge and sentenced as previously set forth pursuant to a judgment and commitment order filed on October 14, 2009. Appellant’s notice of appeal was timely filed on November 12, 2009.

I. & II. Admission of Testimony During Trial

A. Standard of Review

Rule 401 (2009) of the Arkansas Rules of Evidence defines relevant evidence as 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 would be without the evidence. Arkansas Rule of Evidence 402 (2009) further provides that evidence which is not relevant is not admissible.

For evidence to be relevant, it is not required that the evidence prove the entire case; rather, all that is required is that it have any tendency to make any fact that is of consequence to the determination of the action more or less probable. E.g., Banks v. State, 2010 Ark. 108, 366 S.W.3d 341. A circuit court’s ruling on relevancy will not be disturbed absent an abuse of discretion. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Additionally, a circuit court’s decision to admit evidence in the penalty phase of a trial is also reviewed for an abuse of discretion. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006).

|SB. Testimony Admitted During Sentencing Phase

Prior to the sentencing phase, appellant objected to the introduction of his prison record (“pen-pack”), briefly arguing that the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), provided that such an introduction would violate his rights under the Confrontation Clause of the Sixth Amendment to the Constitution of the United States. The State disagreed, responding that the keeper of the records would have the requisite personal knowledge of the contents of the pen-pack upon which to testify. See id.

During the sentencing phase of appellant’s trial, the State called Mr. Marion Lester, a records-intake supervisor with the ADC, who testified as to appellant’s prison records. Appellant renewed his objection during Lester’s testimony but prior to any mention of his record. Appellant argued that Lester did not have personal knowledge of the pen-pack and was simply reading from a record. The circuit court overruled appellant’s objection and allowed Lester to testify. Lester subsequently explained when appellant was originally received at the ADC, when he was paroled, and that he was involved in no less than seven major disciplinary incidents while in prison.

Appellant submits that a confrontation— clause analysis is guided by the United States Supreme Court’s recognition of the fundamental and historical importance of the right to trial by jury and the right of cross-examination. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2581, 159 L.Ed.2d 403 (2004); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). | ¿Appellant contends that these cases establish the facts upon which certain sentence enhancements must be found by a jury, and also that the right of cross-examination, guaranteed by the Confrontation Clause, is a core component of the right to a jury trial. Moreover, he cites Melendez-Diaz, supra, in which the United States Supreme Court held that the admission of a forensic laboratory certificate of analysis without the testimony of the analyst violates a criminal defendant’s rights under the Confrontation Clause.

Appellant maintains that this court has yet to deal with the issue of confrontation of witnesses during sentencing; however, he submits that our supreme court has previously held that evidence during sentencing is still subject to the rules of evidence. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000). He also cites State v. Rodriguez, 754 N.W.2d 672 (Minn.2008), in which the Supreme Court of Minnesota held that the right of confrontation guaranteed by the Sixth Amendment applies in jury sentencing trials. In Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), our supreme court held that sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted. Accordingly, appellant maintains that if (1) sentencing is a trial in and of itself, and (2) sentencing evidence is still subject to the rules of evidence, then a defendant’s constitutional right to the confrontation of witnesses against him is protected, as well, during the sentencing phase of trial.

Appellant argues that he should be granted a new sentencing phase, claiming that the circuit court abused its discretion in allowing hearsay testimony from Lester that violated his right to confrontation. While appellant acknowledges that Lester likely could properly testify Ras to when appellant entered and exited the ADC, he contends that Lester should not have been allowed to testify regarding the disciplinary incidents in which appellant was involved.

We disagree. Through the introduction of appellant’s pen-pack and Lester’s testimony, the jury learned that, during a previous term of imprisonment, appellant had been disciplined on seven different occasions for assault, indecent exposure, making unwanted sexual proposals, and insolence. We hold that the testimony provided was more administrative in nature, rather than related to an element of the current charges determined in the guilt phase of appellant’s trial.

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Wallace v. State, 378 S.W.3d 269, 2010 Ark. App. 706, 2010 Ark. App. LEXIS 748 (Ark. Ct. App. 2010).

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