Proctor v. State

STEELE HAYS, Special Judge,

dissenting. I would affirm the trial court. In my estimation, neither the Sixth Amendment Confrontation Clause nor Rule 804(b)(1) of the Arkansas Rules of Evidence was breached by the admission of Officer Bart Puckett’s testimony. Only two requirements are imposed by the Confrontation Clause: the declarant must be unavailable for trial and the testimony must be reliable. Hamblin v. State, 44 Ark. App. 54, 866 S.W.2d 119 (1993); Scott and Johnson v. State, 272, Ark. 88, 612 S.W.2d 110 (1981); Ohio v. Roberts, 444 U.S. 59 (1980); Dutton v. Evans, 400 U.S. 74 (1970); California v. Green, 399 U.S. 166 (1969). Both requirements are present in this case.

One of those requirements — Officer Puckett’s availability — was not preserved for appellate review and is not before us.1 The other — the reliability of his testimony — is, I contend, beyond any serious challenge. But even if the majority was correct, and the testimony should have been excluded, it would require remanding only the attempted murder and kidnaping convictions, as there is sufficient evidence, extraneous to Officer Puckett’s testimony, to affirm the convictions for burglary, terroristic threatening, stalking and battery.2

To adequately illustrate these two assertions —• the reliability of Officer Puckett’s testimony and the presence of extraneous evidence which supports the remainder of the convictions — requires examining the trial record more closely than the majority opinion allows.

This is a classic case of chronic, domestic abuse. In June 1997, Melissa Mahan and appellant began a stormy affair lasting off and on for some fourteen months. The relationship was interspersed with physical violence, harassment and dire threats. In August 1998, following an altercation, appellant was charged with domestic battery, second offense, of the alleged victim, Melissa Mason. While appellant was free on bail, he was arrested on November 29, 1998, on the charges now before us on appeal. Based on the latter charges, the State moved to revoke appellant’s bond, alleging that he had committed a felony while free on bail.3

Melissa Mahan testified under subpoena. She was a reluctant witness. She did not want appellant to be prosecuted; she wanted him to leave her alone. She told the jury her affair with appellant ended initially in February 1998 for reasons she attributed to his fiery temper. She said, “[h]e would just snap.” Shortly after this breakup appellant blocked her car in the driveway as she was trying to leave. She managed to get to the police station to report the incident and returned to the motel where she worked. Appellant forced his way into her room. He struck her in the face several times and kicked her in the head and back while she was lying dazed on the floor. When she asked another employee, Brandon Wittenberg, to call the police, appellant told him Melissa would be dead before the police got there. The next day as she drove her five year old son out of town, appellant followed in his car. She said he would “sometimes get in front of me, sometimes behind me, sometimes beside me.” He forced her to pull off the road and told her he would “come after me and my son.” As she was delivering some of appellant’s belongings to the home of a mutual friend, after the breakup, appellant arrived and struck her in the face several times. She testified that on one occasion appellant took her car keys, knocked her into her car, and “placed his hands around my neck.”

On November 28, 1998, she said appellant called her and insisted he was coming over to talk. She told him there was nothing to talk about. She left and spent the night with her parents. The next morning when she returned with her son, she heard the attic door in her bedroom close. She told her son to get back in the car, and she called to appellant that she knew he was there and she was going to call the police. Officer Puckett arrived, followed shortly by Officer James Abbey. She asked Officer Puckett not to arrest appellant, “just let him know he cannot come back, it is over.” When Officer Abbey arrived appellant was given the Miranda warnings, searched, and found to be carrying handcuffs, a sheath knife with a six inch blade, gloves, two rolls of duct tape, a nylon rope, a flashlight, and a multi-purpose tool containing pliers, a screwdriver, and knives. She said appellant did not threaten her, he sat in a chair in tears begging her to work things out, as she stood in the doorway. Michael Phillips testified that he and appellant were good friends. He said that when Melissa returned appellant’s things to Phillips’ house, appellant arrived while Melissa was in the yard. He said she came inside “frantically upset and crying” and told him appellant had hit her. When he asked appellant if it was true, appellant said it was.

Officer John Thessing testified that he interviewed Melissa Mahan following the episode at Michael Phillips’ house. He said she was “quite upset and distraught, she was trying to get appellant to leave her alone.” He said she told him appellant had hit her several times and had threatened to kill her son.

Officer Christopher Padgett testified that he took a report from Melissa Mahan at police headquarters around 11:30 p.m. on February 13, 1998. He described her as “very upset and crying, she kept repeating that her ex-boyfriend would not leave her alone.” She told him appellant had threatened her and her son, paging her and coming to her house. Officer Padgett examined her pager, which had a coded message. He asked appellant what the message was and appellant told him it meant, “I love you to death.”

Officer James Abbey testified he was Officer Puckett’s back-up on November 29 and participated in appellant’s arrest at Ms. Mahan’s house. He identified the articles appellant was carrying at the time of his arrest. He said appellant’s vehicle was parked two and one-half blocks away partially hidden behind a dumpster. Officer Abbey recovered a receipt from Wal-Mart indicating the duct tape, rope, flashlight, and pliers had been purchased that morning.

Officer Bart Puckett’s testimony from the bond revocation hearing was introduced over the objection of the defense. He came on duty about 6:00 a.m. Because Ms. Mahan had requested extra patrol, he drove by her house earlier and saw nothing out of the ordinary. Later he saw her car in the drive, a door standing open, her son in the back seat and Melissa Mahan in her doorway calling to someone. When he approached the house, appellant came out. Officer Puckett asked appellant why he was there and appellant told him he just wanted to talk to Melissa for five minutes. Ms. Mahan told Officer Puckett that appellant had been in her house, had jumped out of the attic, and that she wanted him out of her house.

When Officer Abbey arrived, appellant was searched, and the various articles removed from his belt and pockets. Officer Puckett testified that when he and appellant were back at police headquarters, appellant was again warned pursuant to Miranda and that he told Officer Puckett he had entered the house through an attic vent, that he planned to tie Melissa up, kill her, and then himself. Asked if he would have killed her son, appellant answered, “I don’t know. I guess.” Asked what he would do that day if he were released, he said he would probably try to finish what he had started, “kill Melissa.”

Appellant did not challenge the State’s proof. The single defense witness, Josh Edwards, testified that he had worked with appellant and that they had roomed together for a few weeks. He said Melissa Mahan and appellant seemed to be congenial, and he never saw any signs of physical abuse or violence. He described appellant as happy and carefree, never angry.

Returning to the issue of the Confrontation Clause, the State maintains that the Confrontation Clause was not raised in the trial court and, therefore, is not preserved for appellate review. Appellant does not controvert the State’s contention. Prior to trial, the State filed a motion in limine asking the court to admit Officer Puckett’s testimony pursuant to Ark. Rule Evid. 804(b)(1) based on his being unavailable. Appellant filed a motion in opposition based on several grounds, including the Confrontation Clause. Appellant’s motion was not ruled on. At a pretrial conference shortly before trial the State profferred Officer Puckett’s testimony. The appellant objected on a number of grounds not including the Confrontation Clause. The State’s point is well taken. See Hall v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998). However, since the majority has opted to address the argument I feel obliged to follow suit.

If there were any serious suggestions that Officer Puckett’s testimony was suspect or unreliable, the majority might be on firm ground. But the fact is, his testimony is fully consistent with the other evidence in the record. The majority opinion states that Officer Puckett’s testimony was the only direct proof of appellant’s intent. With due deference to the majority, I submit that the assertion short-changes the record. That may have been the only testimonial evidence of appellant’s specific intent on the morning of November 29, but there was no shortage of direct testimony that appellant had threatened to kill Melissa Mahan on several occasions. She testified to death threats by appellant toward her and her son; Brandon Wittenberg testified to death threats by appellant. Officer Padgett testified to appellant’s message on Melissa Mahan’s pager, “I love you to death.” Officer Abbey’s testimony that appellant’s car was parked two and one-half blocks away hidden behind a dumpster may not be direct evidence of appellant’s intent, but it is highly suggestive of an ulterior motive of some kind. But laying all that aside, the tangible evidence of appellant’s intent could hardly be more incriminating. There was the physical evidence of appellant’s having broken into Melissa Mahan’s house through an attic vent and the muddy foot prints on the porch near the vent from appellant’s boots. Most compelling were the items appellant was carrying with him at the time. They provide the near equivalent of a smoking gun. They were, in fact, precisely the tools one would expect to find on someone bent on such a venture.

The majority opinion states that Officer Puckett’s testimony contradicts Ms. Mahan’s testimony that she was not threatened by appellant. But nothing in Puckett’s testimony implies that she was. The fact that Ms. Mahan did not feel threatened during those few minutes she stood in the doorway before the police arrived says little one way or the other of what might have happened had not the police arrived when they did.

Nor am I persuaded that Rule 804(b)(1) required the exclusion of Officer Puckett’s testimony. The bright-line demands of the Rule were scrupulously observed: appellant was represented by counsel; the declarant, Officer Puckett, was under oath; Puckett was subject to cross examination; and the proceedings were heard before a tribunal capable of rendering a judicial transcript, and did so. The majority challenges the proceeding on several grounds: appellant lacked a similar motive and opportunity to cross-examine Officer Puckett at the bond hearing; the lawyer who represented appellant at the bond hearing was not appellant’s counsel at the trial; Officer Puckett’s testimony is stigmatized by the fact that he had asked Melissa Mahan to have lunch; and a bond revocation is non-adversarial and entails a lesser standard of proof than is required in a criminal trial.

Admittedly, a trial and a bond hearing are not identical, but neither are they “significantly different” within the context of Rule 804. A common purpose involves the quantum of proof the State expects to produce to link the accused to the crime with which he stands charged. Moreover, at the bond revocation hearing the State was required to prove that appellant had committed a felony while free on bail on the pending charges. That was the objective of Officer Puckett’s testimony — proving the same felony for which appellant was later tried. Defense counsel’s motive to offset that testimony would have been essentially the same at either proceeding.

As for the opportunity to cross-examine Officer Puckett at the bond hearing, the record discloses that counsel for appellant questioned Puckett at four separate intervals during his testimony, and there is not the slightest indication that his questioning of Officer Puckett was restricted.

The fact that Officer Puckett’s interest in Melissa Mahan seems to have gone beyond mere professionalism raises concerns, but only momentarily. The social interaction was minimal ■ — ■ Thanksgiving dinner with the Mahan family. More importantly, there is no indication that his testimony was colored to curry favor with her. In fact, his actions bebe that suggestion, since he arrested appellant notwithstanding her pleas to the contrary.

Lastly, the fact that there was a change of counsel between the bond hearing and the trial cannot be used defensively to defeat Rule 804. The United States Supreme Court pointed out the fallacy of that contention in Ohio v. Roberts, supra:

Nor does it matter that, unlike Green, respondent had a different lawyer at trial from the one at the preliminary hearing. Although one might strain one’s reading of Green to assign this factor some significance, respondent advances no reason of substance supporting the distinction. Indeed, if we were to accept this suggestion, Green would carry the seeds of its own demise; under a “same attorney” rule, a defendant could nullify the effect of Green by obtaining new counsel after the preliminary hearing was concluded.

448 U.S. at 72.

For the reasons stated, I would affirm the judgment appealed from. I am authorized to say that STROUD, C.J., and ROBBINS, J., agree.

It is not disputed that Officer Puckett was in uniform in Kosovo, Serbia.

The statement in the majority opinion that appellant has not appealed from the convictions for burglary, terroristic threatening, stalking, and batttery is demonstrably incorrect. See Notice of Appeal (Record, p.66) and Appellant’s Brief (p. 3).

The majority opinion refers to this revocation hearing, as “an unrelated case.” True, in a sense, but it should be noted that it involved a similar pattern of abuse between the same parties.