Swanigan v. State
| Decision Date | 21 February 1994 |
| Docket Number | No. CR,CR |
| Citation | 316 Ark. 16,870 S.W.2d 712 |
| Parties | Terry Wayne SWANIGAN, Appellant, v. STATE of Arkansas, Appellee. 93-1127. |
| Court | Arkansas Supreme Court |
Wm. R. Simpson, Jr., Public Defender, Jerry J. Sallings, Sandra S. Cordi, Deputy Public Defenders, Little Rock, for appellant.
Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.
The appellant, Terry Wayne Swanigan, raises a single point on appeal from his criminal conviction of the offense of first-degree murder and his sentence of life imprisonment, contending that the trial court erred in failing to exclude the testimony of a witness for violation of Ark.R.Evid. 615. His argument has no merit, and the judgment of the trial court is affirmed.
Swanigan was charged with capital murder in the December 1992 shooting death of Lewis Allen, a fourteen-year-old. The State waived the death penalty, and, following a jury trial, Swanigan was found guilty of first-degree murder and was sentenced to life imprisonment.
Evidence presented at trial indicated that, before the murder, Swanigan and the victim, Allen, encountered each other on a street near The Meat Store, a Little Rock butcher shop and grocery store. According to Tim Henderson, a friend who was walking with Allen and Andre Williams, another youth, to the store, the trio saw Swanigan talking to someone in a truck. He pulled off his jacket and walked toward them as if he wanted to fight.
When Swanigan approached the three youths, witness Henderson testified, Allen put his hand in his coat, as if he had a gun (although the witness claimed never to have seen one), and said to Swanigan, "I don't think that you want to step." Another witness, Everett Lauderdale, testified that after the confrontation, Swanigan went to his house, which was near The Meat Store.
Meanwhile, Allen, Henderson, and Williams entered the shop. They were soon followed by Swanigan, carrying a pistol, which, according to Henderson, Swanigan pointed in Allen's face, saying, According to another witness, Cody Nelson, an employee of The Meat Store, a struggle ensued over the gun. At that point, Nelson testified, he heard Swanigan say to Allen, "Punk, I'll kill your m______-f______ ass." In the scuffle, Allen fell backwards, and Swanigan fired at him. Witness Henderson stated that three shots were fired in the store and that Allen attempted to escape through the front door. He collapsed on a sidewalk outside and died from a gunshot wound in the chest.
On appeal from his first-degree murder conviction, Swanigan argues that the trial court committed reversible error in denying the defense motion to strike the testimony of prosecution witness Cody Nelson for violation of Ark.R.Evid. 615, the witness-exclusion rule. That rule provides, in relevant part: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion."
During cross-examination of witness Nelson, who was working in The Meat Store at the time of the shooting, defense counsel inquired about the presence of other people near the meat counter:
Q Were there other people working back there?
A Yeah.
Q Who was?
A Antoine Young.
Q Antoine Young. Is there anyone else working back there?
A No.
Q All right. Didn't you have a customer there?
A Yeah.
Q Okay.
A That's not--He said this, that's what I heard, but I'm not sure.
Q Okay. So you--
A He told me he had a customer, but I wasn't--
Q When did he tell you that?
A He told me--Well, he told me today.
A Yes.
Q When were y'all discussing the testimony about this?
A It was probably when we went to lunch.
Q When you went to lunch? Okay.
At that, the defense attorney requested permission to approach the bench, and the following discussion occurred:
Although Antoine Young had apparently been subpoenaed as a potential witness, he was never called to testify.
This court had the occasion, in Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987), to examine Ark.R.Evid. 615 and to address its operation and application exhaustively. There we held that a trial court has very narrow discretion to exclude the testimony of a witness for noncompliance with an exclusion order pursuant to Rule 615. A trial judge can exercise that narrow discretion to exclude a witness's testimony only when the noncompliance is had with the consent, connivance, or procurement of a party or his attorney. Id. The violation by a witness of the rule of sequestration through no fault of, or complicity with, the party calling him, should go to the credibility rather than to the competency of the witness. Id.
In the Blaylock opinion, we cited Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976), and Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975), for the controlling rationale regarding the rarely exercised discretion to exclude testimony for noncompliance with Rule 615. We stated that, with the offending witness subject to punishment for contempt and the adverse party free to raise the issue of credibility in argument to the jury, the party who is innocent of the rule's violation should not ordinarily be deprived of the testimony.
The standard of narrow discretion, we noted in Blaylock v. Strecker, "remains as it has been for many years." 291 Ark. at 345, 724 S.W.2d at 473. We have not changed our stance in subsequent decisions, nor do we see any reason to change it now. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987).
There are three possible methods of enforcement of an exclusion order that are available to a trial judge: (1) citing the witness for contempt; (2) permitting comment on the witness's noncompliance in order to reflect on his credibility; and (3) refusing to let the witness testify. Blaylock v. Strecker, supra. In the following portion of cross-examination, which occurred directly after the trial court refused to strike witness Nelson's testimony, defense counsel pursued the possibility of further noncompliance with the rule and raised...
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