Atchley v. State

Cite as 2013 Ark. App. 727

ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-12-485

BRANDON ATCHLEY Opinion Delivered December 11, 2013
APPELLANT
APPEAL FROM THE MISSISSIPPI
V. COUNTY CIRCUIT COURT,
CHICKASAWBA DISTRICT
[NO. CR-11-35-(PH)]
STATE OF ARKANSAS
APPELLEE HONORABLE PAMELA
HONEYCUTT, JUDGE

AFFIRMED

BRANDON J. HARRISON, Judge

Brandon Atchley appeals a conviction of aggravated robbery for which he received

ten years’ imprisonment in the Arkansas Department of Correction. Atchley argues that the

circuit court abused its discretion when it excluded the proffered testimony of Osceola Police

Officer Kyle Carr. Officer Carr told the court outside the presence of the jury that a man he

had picked up during a traffic stop mentioned—without being prompted to do so—that he

had heard of a robbery in Keiser, that he was in Manila when it occurred, and that the county

had picked up Brandon Atchley.

Atchley does not challenge the sufficiency of the evidence against him. He contends

only that excluding Officer Kyle Carr’s testimony prevented the jury from considering so-

called witness inconsistencies, which amounts to an abuse of discretion. The State counters

that the proffered testimony does not have any tendency to make any consequential fact more

or less probable. E.g., Barrett v. State, 354 Ark. 187, 189, 119 S.W.3d 485, 492 (2003). We
 Cite as 2013 Ark. App. 727

reproduce the entire proffer below:

MR. DABNEY: We had to take your testimony outside the presence of the jury.
So that’s why they’re not here right now.

KYLE CARR: All right.

MR. DABNEY: State your name, please.

KYLE CARR: Kyle Carr.

MR. DABNEY: Kyle, where do you work?

KYLE CARR: Osceola Police Department.

MR. DABNEY: What’s your rank?

KYLE CARR: Patrolman.

MR. DABNEY: How long have you been with them?

KYLE CARR: Two and a half years.

MR. DABNEY: On February 13th in the early afternoon, did you have occasion
to make a traffic stop on a Christopher Randolph?

KYLE CARR: Yes.

MR. DABNEY: That was on driving on a suspended driver’s license?

KYLE CARR: Correct.

MR. DABNEY: Did you actually put him in your vehicle and take him to the
station?

KYLE CARR: Correct.

MR. DABNEY: Did he make any statement to you on the way?

KYLE CARR: He asked me have I heard about the robbery in Keiser, and I told
him yes.

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MR. DABNEY: What did he say?

KYLE CARR: That he had been in Manila, that he didn’t have anything to do
with it and that the county had picked up Brandon Atchley.

MR. DABNEY: Was this under questioning by you?

KYLE CARR: No.

MR. DABNEY: It just came out?

KYLE CARR: He just asked me.

MR. DABNEY: Did it surprise you that he just started talking about it?

KYLE CARR: A little, yeah, I guess.

MR. DABNEY: A little bit. Did he tell you he had an alibi?

KYLE CARR: He just said he was in Manila.

MR. DABNEY: In Manila?

KYLE CARR: Yes.

MR. DABNEY: I showed you a document a while ago. Do you remember how
tall he was?

KYLE CARR: Five eleven.

MR. DABNEY: Five eleven?

KYLE CARR: Yes.

MR. DABNEY: Thank you Officer.

THE COURT: I assume you didn’t have any questions, Ms. Dean?

MS. DEAN: No, ma’am.

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KYLE CARR: Am I done?

THE COURT: Is this witness excused?

MR. DABNEY: He’s done. Thank you for staying around.

Circuit courts have broad discretion concerning evidentiary issues, including

determining the admissibility of evidence; we do not reverse absent an abuse of discretion.

Ratterree v. State, 2012 Ark. App. 701. To abuse its discretion the court must act

improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91, 161

S.W.3d 785 (2004).

The circuit court did not abuse its discretion by not allowing Officer Carr to tell the

jury about the encounter he had with Christopher Randolph. In Birts v. State, our supreme

court addressed the standard for admitting evidence that tends to incriminate someone other

than the accused:

A defendant may introduce evidence tending to show that someone other than
the defendant committed the crime charged, but such evidence is inadmissible
unless it points directly to the guilt of the third party. Evidence which does no
more than create an inference or conjecture as to another’s guilt is inadmissible.

....

[T]he rule does not require that any evidence, however remote, must be
admitted to show a third party’s possible culpability. . . . [E]vidence of mere
motive or opportunity to commit the crime in another person, without more,
will not suffice to raise a reasonable doubt about a defendant’s guilt: there must
be direct or circumstantial evidence linking the third person to the actual
perpetration of the crime.

This court later reconsidered the Zinger test and concluded that it complied
with the requirement announced in Holmes v. South Carolina, 547 U.S. 319,

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126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), that such a test focus on the strength
of the evidence implicating the third person and not on the relative strength of
the prosecution’s evidence against the defendant. We recently affirmed the
Zinger test for admissibility of third-party exculpatory evidence in State v.
Harrison, 2012 Ark. 198.

Birts v. State, 2012 Ark. 348, at 6–7 (internal citations omitted) (quoting Zinger v. State, 313

Ark. 70, 75–76, 852 S.W.2d 320, 323 (1993)).

Atchley and his accomplice were detained shortly after the robbery based on

eyewitness identification. Moreover, we do not see how the proffered testimony “points

directly” to Christopher Randolph so as to raise a reasonable doubt on who actually

committed the crime for which Atchley was tried and convicted. Officer Carr’s testimony

was therefore. Brandon Atchley’s conviction is affirmed.

Affirmed.

PITTMAN and WYNNE, JJ., agree.

Mike Dabney, Deputy Public Defender, for appellant.

Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.

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