Moore v. State
2017 Ark. App. 39
| Ark. Ct. App. | 2017Background
- On Oct. 24, 2014, neighbors Gibbs and Greb observed dangerous dogs belonging to Andrea Moore and Michael Turner loose in the area; they and neighbor Johanson warned nearby families and the dog owners.
- Turner attempted to corral the dogs and was bitten; an altercation between Turner and Gibbs/Greb ensued; Gibbs and Greb stayed in the road; Moore came outside carrying a .38 revolver in a holster.
- Gibbs and Greb testified Moore unholstered and pointed the gun at them; Moore denied unholstering or pointing the gun. Photographs taken by Gibbs showed Moore holding the gun at the roadside and were admitted into evidence.
- Deputy Creekmore arrived after dispatch upgraded the call to a report of a female with a gun, secured a loaded .38 revolver (4 ball rounds and 1 hollow point), and testified no one mentioned Turner being struck by a vehicle.
- At trial defense recalled Gibbs, who testified the timestamps on his cell-phone photos (1:19 and 1:20) might be inaccurate. Defense then sought to call an undisclosed ‘‘expert’’ witness (Calen) to rebut Gibbs on timestamps; the court excluded Calen because he was undisclosed and had been in the courtroom during the rule.
- Moore was convicted by a jury of aggravated assault; on appeal she argued the court erred by excluding Calen’s testimony as necessary rebuttal evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in excluding undisclosed expert (Calen) offered as rebuttal | Moore: Calen was necessary rebuttal to Gibbs’s testimony that photo timestamps were inaccurate | State: Calen was undisclosed and present during the rule; rebuttal cannot be used to respond to defense-elicited testimony to avoid disclosure rules | Court: Exclusion affirmed — testimony was not true rebuttal and defense failed to proffer testimony, so no prejudice shown |
Key Cases Cited
- Washington v. State, 377 S.W.3d 518 (Ark. App. 2010) (standard: admissibility rests in trial court’s discretion; reversal requires abuse and prejudice)
- Kincannon v. State, 151 S.W.3d 8 (Ark. App. 2004) (rebuttal witness cannot be used to circumvent disclosure by responding to testimony elicited by the party offering rebuttal)
- Hajek-McClure v. State, 450 S.W.3d 259 (Ark. App. 2014) (genuine rebuttal must respond to new matters presented by the opposing party)
- McEwing v. State, 237 S.W.3d 43 (Ark. 2006) (party failing to proffer excluded testimony cannot show prejudice for appellate review)