*1 erroneous, we da’s is not affirm. court parental rights clearly decision is reversed on for review. appeals’ petition
Anarian Chad
STATE of Arkansas
JACKSON
CR 03-800
Supreme 4, 2004 delivered November Opinion denied December [Rehearing 9, 2004.] *3 Larkowski, Larkowski, B. and & Jeremy Lowrey; Hampton by: Jerry for appellant. Beebe, Gen., Holt,
Mike Gen., Kent G. Ass’t by: Att’y Att’y appellee. Robert L. Brown, Anarian Chad Justice. from his
Jackson, conviction for mur- der and his sentence of life We affirm conviction imprisonment. and sentence. The facts from at trial are gleaned these. On testimony 5, 2001, a witness observed Charles
January he was shot Raynor to death in his front Little Rock. same witness had yard behind, two men observed victim from at which approach time fell to the When he Raynor tried ground. get up, Raynor Examiner, Dr. William Medical The State’s Chief shot
was again. killed Sturner, gunshot was at trial that Raynor testified to the head. wound Bush, who trial, from Chris
Also at the State presented and murder murder for Raynor’s to first-degree had already pled guilty that Bush testified a sentence of years’imprisonment. had received forty about “was talking him Raynor had told previously Jackson about [Jackson],” and “things little and stuff’ saying girls [Jackson] murder, of the stated that the day did not like it. Bush Jackson friend, Mark,” a “Little driven around by were being he and Jackson that he Bush testified in his front yard. when saw Raynor standing they him, caliber .40 and that carrying revolver with had a .357 Jackson semi-automatic gun. around Little Mark to told park Bush testified house, out of then and that Bush got comer from side of the house car, walked down the along went alley, first said that started shooting Bush where standing. Raynor back to the car. five times and then ran he himself shot about and that and came running finished shooting He further testified him, he had the found admitted that when the behind him. Bush him, he had which was used to kill caliber Raynor .40 gun house.” from a obtained “dope Todd from Officer also The State presented
Hurd, the Little Rock Police detective with a gang-intelligence as both a was classified who testified that Department, the terms in front of jury He defined and “banger.” “slinger” as follows: *4 to, term, referred commonly asit’s is a street or “slanger”
“Slinger” on the streets. deals They’re slinging dope is a who person dope. — that is a member a is a that’sreferred gang And “banger” person will; shoot- rivalriesif you to as into reallybeing gang referred at, members. and other gang conflict with other having gangs ing Posse, also was a leader of the West Side He further stated that Jackson Rock, Piru, and that a in Little Raynor as the West Side known gang Hustlers, another in Monroe gang was a member of the Street Posse, that as a leader of the West Side area. He said Little Rock over the main authority younger gang would be figure Jackson Bush, members, have been below who would like Chris Jackson hierarchy. gang’s Lab firearms-and-tool- Crime State Ronald Andrejack, were examiner, that four .40-caliber casings, mark testified death, found at the scene of were all fired from the Raynor’s .40-caliber that was retrieved and that a piece weapon copper from a .38-caliber bullet taken from could jacket Raynor’s body have been fired not the .357 but .40-caliber by Magnum, pistol that fired the casings.
Two other witnesses for the State were treated as hostile wit- nesses. Markevious and Rodrick testified that King Pennington they did not remember statements to Detective Stuart Sullivan of the giving Little Rock Police When testified were unable they they Department. statements, to remember their the State and obtained from sought circuit court the to introduce into evidence permission transcripts both witnesses’ before a federal grand jury. King’s testimony affirmed a statement he had to Detective Sullivan which he given named the members of the West Posse and Side discussed times when to other members and to him and directed them gave guns gang Jackson to seek out members of the Monroe Street Hustlers. Pennington’s affirmed his statement to Detective Sullivan that grand-jury testimony had rewarded Bush for him a car. shooting Raynor by giving Griffin, cousin, Takesha first was also called to the State and was treated as a hostile testify by witness. She denied that she a statement involve- gave police regarding Jackson’s ment in death. stated She that she was on crack Raynor’s at high the time of the statement and that she was at the Little Rock kept Police for five or six Department She added that she days. or do willing to leave the say anything Her department. before the federal was also introduced grand into jury evidence. The then State called Detective Eric Knowles of the Little Rock Police who took Ms. Department, Griffin’s statement. He oath, testified that her statement was taken under which was administered An audio deputy prosecutor. Ms. tape Griffin’s statement was admitted into evidence and for the played statement, In that Ms. jury. Griffin testified that admitted Bush, because killing Raynor had tried Raynor supposedly kill at least four times. She further stated that she had heard on the street that had wanted the same Raynor girl. addition, she told the detective that told her he had “a .44” that Bush had “the .357” at the time of the shooting.1 *5 throughout Ms. Griffin refers to a gun caliber, “.44” but of the rest State’s case the is referred to as a “.40” caliber. under testified that Ms. Griffin was not
Detective Knowles
free to leave and that she
at the time of her statement
arrest
time. Detective
the entire
friendly
very
cooperative
appeared
White,
Police
who was also
of the Little Rock
Department,
John
statement,
that he
at the time of Ms. Griffin’s
testified
present
withdrawal at the time of her
no
of
observed
drug
symptoms
testified that after
Detective Sullivan
statement. Finally,
Mirandized, he admitted to
in the West
guy”
being
“top
of murder and sentenced as
Side Posse.
was convicted
in this
noted
already
opinion.
I. Gang Expert
on
that the
as his first
argues,
point
appeal,
prosecu-
Hurd,
tor’s introduction
of
from Officer Todd
testimony
than a character
amounted to no more
purported gang expert,
that the
fails to meet
assassination. He claims
testimony
specifically
Pharmaceuticals,
standards of Daubert Merrell Dow
reliability
Inc.,
In Brunson v.
matter within the trial court’s and we will not reverse such a decision absent an abuse of discretion. Rule 702 of ArkansasRules on Evidence entitled reads: “Testimony Experts” scientific,technical, “If or other will assistthe specializedknowledge trier of fact to understand the evidence or to determine fact issue, skill, a witness as an qualified expert by knowledge, experi- ence, education, thereto in the form of an may testify training,
303 saidthat if some reasonablebasis or otherwise.”We have opinion that the has of the knowledge subject exists witness demonstrating that of the evidenceis admissibleas beyond ordinaryknowledge, expert testimony. 309,
In the instant we conclude that it was not necessary the circuit court to in a Daubertor Kumho Tire of the engage analysis outlined in particular questions relating reliability brief.2 As the Ninth Circuit Court of observed in a similar Appeals following questions outlines the brief: the Daubert case testimony by police gang expert, involving kind of which is factors are to this simply inapplicable and the based ón knowledge garnered by experiences F.3d 1160 (9th 2000). See UnitedStatesv. Cir. Hankey, expert. we with Kumho Tirethat whether agree Accordingly, within trial court relies on the factors outlined in Daubertis specific *7 of the case. the circuit court’s discretion and on facts depends us, In the case the circuit court did not the Daubert before employ criteria, but Hurd testified that he had been in the Officer working unit of the Little Rock Police since gang intelligence Department He 1995 and had interviewed over 300 members. personally gang that he had documented and added personally gang tattooing and familiar with the locations of the graffiti personally gangs a and their rivalries. He had also been in qualified gang expert other courts of law. Because Officer Hurd’s testimony pre in mised his over upon personal experiences dealing gangs number of it differs from which rests years, testimony expert foundation. that the circuit on scientific We conclude purely did court not abuse its discretion in to conduct a Daubert failing to determine the Hurd’s Officer analysis reliability testimony. Moreover, the circuit court did not abuse its discretion by ruling that the was reliable based on Officer Hurd’s testimony knowledge and experiences.
c. Nature Prejudicial further, however, and that even if Officer goes urges reliable, Hurd’s render his knowledge experience testimony should not have been because it consisted testimony permitted character, and inadmissible evidence hearsay regarding Jackson’s as it related to his reference to as a particularly “slinger” and a He maintains that this violated his “banger.” testimony right (and been) 1. Whether a or ... tested”; can be has “theory technique subjected 2. Whether it “has review been peer publication”; high in Whether, 3. there is a “known or respect particular potential technique, controlling rate of error” and whether there are “standards technique’s operation”; “ ” enjoys general
4. Whether
‘a
within a
theory
technique
acceptance’
“
‘relevant scientific community. [’ ”]
and Fourteenth
under the Sixth
a fair and
trial
to
Amendments.
impartial
by jury
Indeed,
was tainted at the
he claims that his trial
references.
outset
“banger”
“slinger”
court has
testimony
This
recognized
utility
previously
aby gang expert.
Johninson
of such testi-
that where the relevance
we observed
(1994),
demonstrated,
the member-
on
has been
mony
expert
and conduct of
street gangs
particular
ship, organization, purposes,
that,
court went further
be admissible.
said
this
may
Having
defendant’s
and affirmed the circuit court’s denial of the
Johninson
from a
We noted that
gang
proffered testimony
broad overview of the urban
expert.
“[t]he
subculture that the
gang
prospective
direct,
witness
. . . had no
reference to
expert
provided
particular
the victim and his associate.”
This court has observed that evidence of other motive, or acts be admissible to wrongs, may prove opportunity, *8 intent, or absence of preparation, knowledge, identity, plan, State, 180, See, mistake or accident. Andersonv. 357 Ark. 163 e.g., S.W.3d 333 alsoArk. R. Evid. (2004). See admission 404(b). of evidence under is Rule committed to rejection 404(b) court, sound discretion of the trial and this court will not reverse absent of manifest abuse of that discretion. id.As this See showing State, 455, court saidin Morrisv. 358 Ark. 193 243 S.W.3d recently (2004), circumstance that ties a defendant to the crime or raises any motive for the crime is relevant and possible independently admissible as evidence. The fact that the two at issue had gangs been in a females, and had been “back and forth” over strong rivalry going Hurd,
as testified to Officer relevant seems to certainly Nevertheless, motive in Officer Hurd’s killing Raynor. was a and a undoubt- “slinger” “banger” was harmful to is whether this edly question, though, Jackson. unfair nature of his prejudice outweighs probative testimony. 403; State, 62, SeeArk. R. Evid. v. Branstetter 57 S.W.3d 105 (2001). Other have reached different results jurisdictions compa- 544,
rable situations. See State v. 146 N.H. A.2d 776 715 Agotte, (2001) in arson that defendant had re- (testimony prosecution fire with insinuations in that defendant ported prior argument stated the fire was used to establish and deemed prior propensity
306 Ellis, 1108, v. 315 Ill. 3d
extremely
prejudicial); People
App.
N.E.2d 736 (2000)
defendant was
member
(evidence
gang
relevant
to show common
or motive where
design, purpose,
victim was rival
member and was shot
death
while
gang
selling
Torres,
149,
State v.
47 Conn.
We conclude that it was an abuse of discretion for the circuit court to allow Officer Hurd to was a testify “slinger” Nonetheless, and a we also “banger.” conclude that duplicate presented federal jury through grand-jury established that transcripts was indeed a clearly is, someone “banger,” involved in testified gang killings. King before the federal that in the grand jury year gave orders to West Side multiple Posse members to shoot gang *9 members of the Monroe Street Hustlers. testified Pennington before the federal that grand awarded for jury head points Jackson members, shots of rival ordered four gang two shootings, gave rewards to two members for gang car to shootings, including Bush. Markevious also testified before federal King grand jury that was the leader of West Side Posse and that King Jackson started cocaine for the at selling fourteen. Takesha gang age Griffin testified before the federal that called himself grand jury Jackson Posse, to a by and in answer question the West Side the leader of involved was gang of the jury, agreed a member grand admitted into were testimony this grand-jury Transcripts drugs. evidence. one of the addition, testified that guns Bush Chris All house.” Posse from a West Side “dope came used in the killing Todd Hurd’s description evidence is cumulative of this aas “slinger.” Jackson error occasioned by hold that we any
Accordingly, as Hurd’s reference of Officer court’s allowance circuit Jackson a reasonable rendered harmless beyond banger slinger See, v. Gaines testimony. e.g., the admission of doubt subsequent results State, (2000) (no prejudice 340 Ark. 8 S.W.3d cumulative); admitted merely evidence erroneously where 436 (1999) (under v. Criddle the rule is when 18 (1967), 386 U.S. California, Chapman involved, is over but evidence of issue is guilt constitutional can declare constitutional the error we slight, whelming a reasonable doubt). it is harmless error harmlessso as beyond long II. Grand-JuryTranscript Pennington claims, admission of next that the as his point, Jackson trial vio- at the testimony jury Rodrick grand-jury Pennington’s 802, as well as the Evidence 801 and Arkansas Rules of lated of the United of the Sixth Amendment Clause Confrontation there was no that this is because He maintains States Constitution. about laid for foundation Pennington’s knowledge underlying result, and, his hearsay activities gang further contends under Rule 802. and inadmissible both statements were highly prejudicial, Pennington’s grand-jury because references to other shootings of their unsubstantiated gang rewarded Bush him and for the claim that set in motion by with a car for Raynor. shooting based on did not The State object responds was already until after grand-jury testimony Pennington’s hearsay make did not into evidence. It further asserts admitted that the evidence at issue was secondary below any argument reasons, the State For these the first as he does now on appeal. hearsay, and, in did not at claims that object opportunity Thus, addition, on for appeal. has grounds objection changed is not maintains his preserved appellate the State argument that the further submits grand-jury review. State evidence. admitted as substantive was properly *10 308
a. Preservation that
We conclude the issue is for our hearsay preserved review. At the close of Pen- State’s redirect examination to admit sought nington, prosecutor Pennington’s grand-jury and that he stated would substitute a redacted of it. copy counsel defense redacted giving Pennington’s Upon grand-jury 12, 2002, on the of December morning prosecutor that did noted while he not believe defense had counsel any content, to its it to him for review as the objections provided “[w]e directed, I Court and so it’s to him to make his guess objections up that, to that.” The circuit court “He do can agreed, saying: co-counsel can assisthim he’s while on those might focusing things sure to make that we as we can be get on all those.” specific later, not rest, It was until some time when State was about to that defense made a counsel hearsay objection Pennington’s time, At that defense counsel raised the grand-jury testimony. on objection Rodrick Defense “outstandinghearsay Pennington.” counsel that State had failed to establish a foundation argued for certain statements made in before the Pennington’s testimony federal circuit court overruled the grand jury. objection.
Our review of the record demonstrates that the circuit court on certainly entertaining redacted planned objections version of the its grand-jury admis testimony following original sion. Because it counsel in a appears objected timely fashion the concurrence of the trial after judge prosecutor version, State’s redacted we receiving conclude issue is for review. preserved further to the State issue on the objects hearsay
basis has his on changed argument appeal. According State, to the no was made at objection trial. It secondary hearsay is that an cannot his elementary appellant on change argument and that he limited to the and nature of the appeal scope made below. See Hunter v. argument We S.W.2d (1997). has disagree changed It to this court that argument. maintained both at appears trial and now on that no foundation was laid as to how appeal the information Pennington about to which he got testi fied, even uses he the terms classic though hearsay secondary Hence, conclude hearsay we the issue was interchangeably. pre served. *11 merits, Evidence 801(d)(1) Arkansas Rule of to the
Turning is that not hearsay: one of statement defines type Not A statement not hear- Are is (d) Hearsay. StatementsWhich if: say the trial Witness.The declaranttestifiesat
(1) PriorStatementby the to subject concerning or and is cross-examination hearing statement, with testimony inconsistent his (i) and the statement and, and if criminal was under oath proceeding, given offeredin a trial, other of at a or pegury hearing, the subject penalty (ii) in a or consistent or proceeding, disposition [deposition], or charge his and is offered to rebut an express implied testimony motive, him recent fabrication or influence or of against improper of a after (iii) or one of identification made person perceivinghim[.] Ark. R. Evid. 801(d)(1). us, In the testified case before at Pennington Jackson’s
trial and was
to cross-examination
counsel
subject
by Jackson’s
his
statements.
his
concerning
grand-jury
Clearly,
grand-jury
trial,
was inconsistent with
at
testimony
Jackson’s
trial,
because at the
he denied ever
statement
giving
he
officers
of events which
had
having
knowledge
any
previ
discussed with those same officers. Because his
ously
grand-jury
belied his lack of
of events and because it
knowledge
under
and was
at
oath
of
given
subject
penalty
perjury
another
and because
to cross-
proceeding
Pennington
subject
trial,
examination at
we
that his
hold
testi
grand-jury
Jackson’s
did not
as
under
801(d)(1).
Rule
mony
hearsay
qualify
III.
Clause
Confrontation
next
out-of-court
statements that
urges
and Markevious
made to the
as well
Pennington
King
grand jury,
the statements made Ms.
and her
Griffin to
grand jury
trial,
sworn statement
to the
all which were admitted at
police,
lacked
indicia of
and failed to fall
within
any
reliability
to the
rule that
made
would have
their admis-
exception
hearsay
He
this court to over-
sibility constitutionally
urges
permissible.
State,
v.
turn its
decision in
prior
Jones
based on the United States
Court’s decision
(1984),
Supreme
v.
He
that there is no
521 U.S.
(1999).
argues
Lilly Virginia,
distinction between the statements
under
and
admissible
Jones
under
Arkansas Rule of Evidence
those found
801(d)(1)
He
unreliable
further
maintains
goes
inherently
Lilly.
while
Griffin
Markevious
Ms.
were avail-
Pennington,
King,
cross-examination,
able for
is not
examination
meaningful
when the declarants are
now
no
professing
knowledge
events to
statement alluded.
asserts that
prior
is clear and that without the statements in
prejudice
question,
there was no corroboration of Bush’s accomplice testimony.
is not
well-taken. In
argument
supra,
Jones
this court examined
argument
of one
transcript
Jones’s
the State’s witness’s
was not admissible. In that
prior testimony
case,
and Dennis Williams were
with bur-
*12
charged
jointly
Jones
and
Williams was tried and
glary
convicted
aggravated robbery.
first, and he testified at
own
his
trial. When called to
at
testify
State,
trial
the
he refused to
by
The
against
testify
Jones’s
Jones.
circuit
State
court
the
to introduce the
of
permitted
transcript
Williams’s earlier
On
testimony.
argued
Will-
appeal, Jones
iams’s
was inadmissible.
court
testimony
This
prior
disagreed
affirmed the
of the circuit court.
ruling
We noted
since the
Evidence,
General
had
the
Rules of
Assembly
Uniform
adopted
“such
sworn statements are now admissible as substantive
prior
311,
evidence in criminal
283
cases.”
Ark. at
Again, Lilly easily distinguishable. to there was an unsworn statement that was officers given police case, while Mark was in In the instant each custody. of the and, thus, witnesses’ oath under grand-jury given addition, had the indicia of under required Ms. reliability Lilly. Griffin’s statement to officers was also under oath. given Moreover, cross-examine was able to the State’s witnesses Jackson trial. his fact that the witnesses claimed during to have Despite to, no of the events memory testified was able previously Jackson Hence, them. confront his under Confrontation rights reasons, not Clause were For these we decline impaired. invitation to overturn supra. Jones IV Model Instructions Accomplice next advances that the circuit court argument Jackson erred in his phe instructions rejecting proposed limiting relating of Bush as an He designation asserts that when accomplice. Bush, circuit court so thus designated corroborative requiring evidence, with designation, AMI Crim. 2d together made liable strictly actions Bush. Jackson concludes the failure to give instruction proposed limiting resulted in a of his deprivation fundamental to trial right by jury. proffered instruction: following
The designation of Bush Chris as an is an accomplice evidentiary ruling and does only not relieve any way your you responsi- bility determine whether the State independently has proved beyond reasonabledoubt that Anarian was an accomplice Chris Bush. That instruction was refused proffered circuit court. was, however, follows, instructed as jury accord AMI Crim. 2d 401: case, In this the State does not contend Anarian Chad acted alone in the commissionof the offenseof Murder in the FirstDegree. A person for the criminallyresponsible conduct of another he when is an person in the accomplice commissionof the offense. *14 An who accompliceis one in directly participates commis- who,
sion an offense or with the purpose or promoting of an facilitating commission offense:
313 the other Solicits, person or coerces (sic),encourages aides offense; or commit in aid, the other
Aids, person to aid or attempts agrees the offense. committing planning conduct,or a to his with respect with
A acts purpose person in conduct thereof, to engage consciousobject it is his result when such a result. to cause of that nature or instruction, of this given second sentence claimsthat it is the which was an that Bush accomplice, the declaration together is incorrect. actions. That liable for Bush’s renders strictly instruction the model is misreading It appears unclear. is somewhat admittedly, argument although, given, 2d 401 to of AMI Crim. second sentence reads the He apparently the conduct of is criminally responsible say: [Bush] “[Jackson] of the offense.” the commission in when is an accomplice [Bush] however, be read: us, the sentence should It clear to is for the conduct is criminally responsible [Bush] “[Jackson] the of- to the commission of is an accomplice when [Jackson] fense.” 401, 2d 2d AMI Crim. to AMI Crim.
In addition that if the finds jury part, given, provides, committed, did not a crime was while being was only present act, have no he not an We then accomplice. have a legal duty task to that it was its instructed doubt that the jury fully That determina- was an whether accomplice. determine the instructions virtue of given. not tion was preordained it clear that non-model has made This court perfectly finds the circuit court are to be when instructions given only jury the law or do do not state instructions accurately that the model See, at hand. on the e.g., instruction subject not contain necessary Here, State, 275 (1994). Ark. 887 S.W.2d Hill v. states the law. See Calloway model instruction accurately jury 571 (1997) (rejecting appellant’s Ark. that AMI instruction holding “mere proffered presence” the law of reflects 2d 401 accurately completely Crim. did not err that the circuit court We hold liability). accomplice instruction. rejecting proposed *15 V As the Fact Accomplice AccessoryAfter next that AMI Crim. 2d 401 defines accom- argues Jackson as “one who in the commission an plice directly of participates claims, offense” that this omits scienter He any requirement. moreover, the model instruction no time limitation on the places out in set the second half of the sentence in the requisite “purpose” model instruction. is
We It law in Arkansas and memori- disagree. boilerplate alized in our model to instruction that be an one has accomplice, to the in commission of the or offense with the participate directly offense, of the of the commission purpose facilitating promoting aid, solicit, or coerce its encourage, accomplishment. Jackson certain situations that are argues not relevant to this hypothetical case or first His a concerns situation where persuasive. hypothetical a driver of a car removes robbers from the scene without knowing that a had occurred. Those facts are robbery far afield from the case at hand. second scenario concerns a who arrives person after a murder and assists the crime scene. That cleaning up also is scenario not relevant to the case before us. presently
To
this court has held
a
that model
repeat,
jury
instruction shall be used unless the circuit court concludes
it
does not
state
law. Moore
See
accurately
Ark.
VI. Seizureand Improper Statements Suppressionof For his final contends that the circuit point, court erred in that his initial detention was a ruling seizure permissible reasonable supported by criminal suspicion This activity. so, maintains, he where especially officers did not know police who was at the time he was asserts that his stopped. constituted a detention and that both the stop show of authority and the threat of force a led to a He seizure. maintains drug dog circumstances, that these with the clear intent of together him, detain led him to believe that he was not free to sum, leave. In he claims that he had reasonable expectation and that there must be privacy facts rise to an articulable give or reasonable of criminal conduct for a suspicion permissible stop He concludes that because the transpire. his case stop seizure, an constituted unconstitutional his subsequent interroga- tion be should excluded on this basis. statement, a motion the denial of suppress
In reviewing
of review:
standard
has
on the following
this court
relied
motion to
trial
denial of a
suppress
court’s
reviewing
evidence,
totality
reviewbasedon
we conduct denovo
*16
circumstances,
fact for clearerror
of historical
findings
reviewing
to reasonable
give
suspi
thosefacts
rise
and
whether
determining
cause,
drawnby
due
to inferences
weight
cion or
giving
probable
See
to the trialcourt’sfindings.
the
and
deference
trialcourt
proper
618, 110
State,
Davisv.
(2003);
S.W.3d272
353Ark.
v.
Cummings
State,
406,
(2003).
Ark.
with He testified that approached Jackson. officer, as a and if himself showed his asked badge, Jackson him, could he to which “sure.” speak responded Jackson and, Detective testified that King very cooperative Jackson identification that he was Mc- upon request, presented “Brady stated, that At the detective he knew that McCoy Coy.” point, used an alias and that he knew the bus used by Jackson Jackson aware had several station. Detective was also King Jackson He warrants. testified felony outstanding prior identification, him did his he not giving recognize Jackson. Detective added that could King knowing possibly Jackson be based on information he had been he asked dangerous given, if he was in his carrying any drugs guns bag. According Jackson detective, to the then “no.” detective responded Jackson asked if he could the black search and agreed, bag. Jackson Detective testified that to search his own King began bag. Jackson The detective he said that after wanted to telling Jackson himself, search the on the bag put bag ground time, from it. detective stated that at this he away stepped tackled him under arrest.3 placed
Detective Treece also testified at the suppression hearing. He stated that he and were Rex outside the door of standing just the bus when came off the bus. He testified that them, startled when he saw he appeared off stepped bus, and went around the door of bag high, the bus. picked up station, Detective Treece testified that went into bus *17 he at back him and made glanced contact. detective eye stated further that Rex was not or when growling barking Jackson exited the bus. He stated that he was with Detective when he King asked for to search his and that until permission bag, Jackson was the on he did not know who was. ground, The circuit court denied the motion and ruled: suppression
I think
fact
given the
that
been
off that
they’d
he was
tipped
and
the behavior that
coming
the officers noted
be
would
—
sufficientgiven the
those two
given
the
things,
tip-off coupled
with the behavior
the
that
and
he held the
way
That would be
bag.
sufficientto seek
under
two
cooperation
rule
two. And then
point
the false identification would be sufficient to
further with an
go
at
arrest
that
for
point actually
obstructing governmentaloperations
—
since
were
alerted to the name
they
already
that
to
according
their testimony,
Brady
this name
that
by
was
used
McCoy
being
later
drugs
bag,
Rex
alerted to
inside
that is
but
not
for
pertinent
purposes
subject
of the
and in
fact, was
of a
to
court of
present appeal,
separate appeal
appeals.
See
v.
(2004).
State, 86
39, 158 S.W.3d
that
court
case,
Ark.App.
appeals
the drugs. This court declined
review
that decision
the court of
suppressed
by
appeals.
in the
issue
instant case is whether the
and whether his
stop
improper
subsequent
about
gang
statement
in the
be
should
leadership
suppressed.
So,
motion to suppress
your
seeking.
were
they
that
person
willbe denied.
and the statement
evidence
reconsideration,
court
the circuit
for
filed a motion
motion as well.
denied that
he was confronted by plain-
claims on appeal
attack dog,
had an
one of whom
apparent
clothes policemen,
asked him for
but also
ask
not
officers did
simply
questions,
maintains,
threat
This,
an
created
implicit
he
identification.
he
him the
impression
show of
gave
force and
authority
was,
fact,
he
“seized.”
to leave and
not free
the United
(2002),
In officers at the were Little Rock police Airport several white males to be hope heroin. spotting reported transporting the and a observed
They
appellant
companion walking
the
his
concourse. Meadows and
friend walked
the
through
past
back,
officers and
“started
aroused the officers’
looking
at
Ark.
when
switched his
off the bus and
got
saw the
He
police dog.
immediately
to his other arm and lifted it
bag
He then
high.
up
the
entered
bus station and turned to look back at officer
police
and the
at the
dog.
officers were
bus station with
police
for
interdiction.
was
dog
This
not
drug
drug
where
police stop
in the
at
person stopped
simply standing
wrong
place
State,
time.
See Stewart
wrong
319 be had to officers that with not We do agree Jackson and ask him in order to crime stop a him for specific investigating himself. that he identify not did identification that request We hold stop the extent To seizure.
constitute an impermissible Jackson this inconsistent is (2004), Ark. App. it. we overrule opinion, to conducted has been pursuant of the record
A search error has been and no reversible Rule 4-3 (h), Court Supreme found.
Affirmed.
Hannah, dissents. J., I Hannah, dissent. dis- I dissenting. respectfully
Jim Justice, error occasioned that with the holding “any majority’s agree to Hurd’s of Officer testimony court’s allowance the circuit by a harmless was rendered beyond slinger banger testimony.” doubt subsequent reasonable admissibility who, member consistent was a gang State sought prove members, member shot his rival traits of gang with the character gang Hurd, trait, on Officer character the State To show this put Raynor. behavior, the terms who first defines “slinger” an in gang expert Next, as a is classified slinger when asked whether “banger.” done both.” is both. He’s Hurd “Chad or a Officer replies: banger, concluded that Officer The circuit court Defense counsel objected. Hurd: that he knows of his own personal as an right testify expert
has because he’s been already from whatever the thing knowledge I’m as far as that goes, and a So banger. as both slinger qualified Now, into any I don’t want to get to overrule that... really going crimes. of the other
* * * the circuit court It recognized appears be crimes would other prejudicial concerning Jackson. crimes, other yet did not allow concerning circuit court as a Hurd’s classification of slinger did allow Officer it Further, refers to criminal activity. a classification banger, commit- had allowed Hurd to the circuit court testify *20 ted both allowed, of criminal Thus types Hurd is activity. virtue by terms, of his own definition of the to state that is a shooter Jackson dealer, and a in a case where is drug with charged shooting Jackson I cannot Raynor. simply agree that this majority’s holding admitted in testimony, court, error although circuit harmless a reasonable doubt. beyond The dismisses Officer Hurd’s majority as testimony merely cumulative because was to the “duplicate testimony presented jury federal through that grand-jury established transcripts that clearly is, was indeed a that someone ‘banger,’ involved in gang Jackson Most killings.” is the troubling rationale for majority’s concluding that Officer Hurd’s reference to as a “slinger” merely Jackson First, cumulative evidence. states: majority “Markevious King also testified before the federal that grand jury was the Jackson leader of the West Side Posse and that started cocaine King selling for the at gang fourteen.” age Apparently, concludes majority that since cocaine, were in the same King sold gang, King then it follows that also sold cocaine. The relevant is as testimony follows: King
Chad Jackson, also known as has been “Dirty,” WSP for three years is the leader.
In the Spring King into the jumped WSP. Q: How oldwere when you you first involved got withWestSide? twelve, A: Around about elevenor twelve.
Q: And were you involvedin sellingcocaineat that age? — A: fourteen, Not at that Around age. aboutlike that’swhen I I mean, startedsellingcocaine. does not that King testify addition, sold cocaine. In does not King the testify directed him to sell cocaine for gang. deems this majority cumulative, apparently assuming acts of one member be gang used may to establish that another member of the same has committed gang those same acts. Next, the states: “Takesha majority Griffin testified before the federal grand called jury himself the leader of Posse, West Side and in answer to a a member of the question by grand that the jury, agreed was involved gang drugs.” relevant is as follows: WSP, for everybody though, a leader in ... Was Chad Q: it? was a part called himself mean, because he that was I because yeah,
A: leader.
* * * other anything involved they do or are drugs, DoQ: they just the drugs? than Drugs.
A: *21 mem- of whether to the answers Griffin “yes” question does not state “do She bers of the West Side Posse drugs.” was a dealer. drug Bush testified states that “Chris Finally, majority from a West Side Posse in the came one of the used killing guns is as follows: house.’” The relevant ‘dope from, Chris? Q: gun Where did you get A: At the house we had. do mean?
Q: you What little house on 15th. A: We had a dope A house? Q: dope
A: Yeah. “we,” whose house was that? is “we”? When
Q: you say And who the litde in the hood. homeys A: me and Just West Side? Q: meaning All right,
A: Yeah. Did live there?
Q: actually someone
A: Yeah.
Q: What was his name? A: I can’t recall that name. He was a fiend. dope Q: So that was some just place y’all out. hung Yes, A: sir.
* * * Here, it that the has appears concluded that majority since Bush testified that one of the used in the guns came from a killing house” and since members of the “dope West Side Posse “hung house,” out” at the as a Posse, member of the “dope West Side was a dealer. The evidence drug mentioned is not cumulative to majority Hurd’s as a description “slinger.” Further, I do not believe that Officer Hurd’s “slinger” reference was relevant. The states that fact majority that the “[t]he two at issue had gangs been in a and had been strong rivalry going ‘back and forth’ over females . . . seems certainly relevant motive in killing Raynor.” fails to majority explain Jackson’s how status as a dealer is relevant drug motive Jackson’s if that killing motive was Raynor, related to their membership in rival and their gangs argument certain women. concerning *22 However, was not “slinger” relevant. it was highly do, What the State prejudicial. intended to Officer through Hurd’s was introduce testimony, evidence of bad char- acter to therewith, prove in the conformity commission of the crime. This court has allowed the State to do so. I would not.
I would reverse and remand.