Perry v. State
2014 Ark. 406
Ark.2014Background
- Perry was convicted of capital murder and aggravated robbery by a Pulaski County jury.
- Sentences: life imprisonment without parole for capital murder and 35 years for aggravated robbery.
- Evidence centered on an El Chico restaurant robbery/murder in Little Rock on April 15, 2012.
- Witnesses Barbee, Dobbins, Brooks, and Smith linked Perry to the crime; Dobbins testified about marijuana use.
- Perry challenged several trial rulings and sought a new trial based on missing key witnesses and barbee's positive identification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the circuit court abuse its discretion in denying a mistrial when counsel-witness issue arose? | Perry’s counsel questioned Katrina; State exploited witness exclusion. | Counsel should not be forced to testify; prejudice from inquiry. | No abuse; credibility/Rule 615 concerns addressed; mistrial denied. |
| Did the court improperly place the judge as trier of Smith’s credibility? | State’s questioning bootstrapped credibility to the judge. | Judge did not express credibility; admonition cured prejudice. | No reversible error; admonition cured any prejudice. |
| Was testimony that Perry smoked marijuana admissible under Rule 404(b)? | Evidence of other crimes lacked independent relevance. | Res gestae context makes it admissible. | Admissible under res gestae; no abuse of discretion. |
| Was Brooks’s testimony about Kiywuan’s statements properly admitted as nonhearsay? | Statements were not co-conspirator admissions; improper reliance. | Statements fit Rule 801(d)(2)(v) as co-conspirator statements. | Admissible; sufficient prima facie showing of conspiracy found. |
| Was Perry entitled to a new trial due to Barbee’s positive identification not anticipated? | Non-preservation of the issue; Williams witness would have aided defense. | Issue not preserved for review. | Issue not preserved; affirm denial of new trial. |
Key Cases Cited
- Green v. State, 2013 Ark. 497 (Ark. 2013) (mistrial standard and abuse of discretion review)
- Williams v. State, 2014 Ark. 253 (Ark. 2014) (admonition can cure prejudice from improper remark)
- Swanigan v. State, 316 Ark. 16 (Ark. 1994) (credibility/competency distinction when witness violates sequestration rule)
- Thomas v. State, 107 Ark. 469 (Ark. 1913) (prosecutor’s improper appeal to judge’s view of evidence)
- West v. State, 255 Ark. 668 (Ark. 1973) (improper questioning about credibility; remedy by admonition)
- Moore v. State, 372 Ark. 579 (Ark. 2008) (evidentiary discretion on co-conspirator statements)
- Cook v. State, 350 Ark. 398 (Ark. 2002) (conspiracy/Rule 801(d)(2)(v) admissibility)
- Laswell v. State, 2012 Ark. 201 (Ark. 2012) (Rule 404(b) eligibility and purpose under res gestae)
- Thessing v. State, 365 Ark. 384 (Ark. 2006) (res gestae purposes to show surrounding circumstances)