Allen v. State, 012021 ARCA, CR-20-295

Docket Nº:CR-20-295
Attorney:James Law Firm, by: Alex A. Morphis and William O. Bill James, Jr., for appellant. Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.
Judge Panel:Virden and Hixson, JJ., agree.
Case Date:January 20, 2021
Court:Court of Appeals of Arkansas

2021 Ark.App. 22




No. CR-20-295

Court of Appeals of Arkansas, Division I

January 20, 2021


James Law Firm, by: Alex A. Morphis and William O. "Bill" James, Jr., for appellant.

Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.


Jeffery Ryan Allen appeals his conviction of terroristic act. He argues that the circuit court erred by denying his directed-verdict motion and by admitting into evidence a pellet gun found in his car, Carolyn Coffman's testimony, and a pretrial identification. We affirm.

On November 16, 2018, the State charged Allen with terroristic act related to an October 5, 2018 road-rage incident in which Allen shot Amber Busby's vehicle with a pellet gun.

On December 12, Allen filed a discovery motion asking for all audio and visual recordings, including dash-camera, body-camera, and mobile-video recordings. On December 21, Allen filed a motion for preservation of evidence asking the State to preserve all evidence including body-camera and mobile-vehicle recordings.

Also on December 21, Allen filed a motion to suppress Busby's identification of him in a photo lineup. He alleged that the lineup was unduly suggestive, was unconstitutional in nature, and tainted any subsequent identification.

On September 3, 2019, the State filed a notice of intent to offer Rule 404(b) evidence and explained that it intended to introduce evidence that Allen had shot another vehicle in the same area the day following the incident with Busby.

The court held an omnibus hearing on December 5. At the hearing, Busby testified that she had been driving on Brockington Road in Sherwood between 4:30 and 5:00 p.m. on October 5, 2018, when a dark-colored sedan cut in front of her. She slammed on her breaks and avoided a collision with the car, but the male driver made unfriendly gestures toward her. She explained that she resumed driving and that the car followed her on the road. She stated that the driver then waved a black, rod-like object outside the driver-side window and that shortly thereafter, the rear window of her car completely shattered. Busby testified that she initially believed she had been shot but later realized that glass from the shattered window had hit her face. She explained that she put her vehicle in park and that she saw the male driver on the side of the road "taunting" her. Busby testified that another driver witnessed the incident and provided her with the license plate number for the dark-colored sedan.

The police arrived and ran the license. Busby testified that she heard from the police that the vehicle was registered to "Jeffery Allen" but that she did not know a Jeffery Allen. She further testified that following the incident, she went to the Sherwood Police Department and that Detective Jeremy Swilley showed her a photo lineup of multiple suspects. She stated that the lineup did not include the suspects' names.

Detective Swilley testified that he met Busby at the Sherwood Police Department following the road-rage incident and that Allen became a suspect after a witness provided his license plate number. He stated that he did not know Allen prior to that date and that he used a computer program to generate a photo lineup using Allen's driver's-license photo. Swilley testified that he presented Busby with the lineup with Allen's photo and five photos of other men who had similar physical appearances to Allen. The photos were labeled with numbers. Swilley explained to Busby that the suspect may or may not be in the lineup, and Busby circled the number associated with Allen's photo. Following Detective Swilley's testimony, the court denied Allen's motion to suppress Busby's pretrial identification of him.

The court then addressed the State's Rule 404(b) evidence. Specifically, the State informed the court that it planned to call Carolyn Coffman, who would testify that Allen shot her vehicle while she was traveling near Brockington Road on October 6, 2018, the day after the incident with Busby. Allen objected to Coffman's testimony and argued that it was prejudicial and would not establish that Coffman's vehicle was shot. The court granted the State's motion to admit the evidence.

Allen then orally moved to suppress a pellet gun that officers seized from his vehicle at the time of his October 6 arrest following the incident with Coffman. He argued that officers located the pellet gun during a warrantless search of the car. In response to Allen's motion to suppress the gun, the State offered Officer Benjamin Witherspoon's testimony.

Witherspoon testified that on October 6, 2018, he and other officers responded to multiple emergency calls that an individual in a sedan had been shooting at other vehicles on the road. He testified that they located the vehicle, identified the driver as Jeffery Allen, and arrested him for driving with a suspended license. He further stated that due to Allen's arrest, they impounded his car and inventoried its contents. He testified that they located a black pellet gun in the car. He further testified that he had a body camera and that the patrol car had a camera. He had not reviewed the recordings associated with the traffic stop.

Following Witherspoon's testimony, Allen asked the court to reserve a ruling on his motion to suppress the pellet gun because he needed more time to inspect the inventory list. The court granted Allen's request.

Thereafter, on December 31, 2019, Allen filed a written motion to suppress the pellet gun found in his vehicle following his October 6 arrest based on an improper inventory search. He also filed a separate motion to suppress the pellet gun based on the State's failure to comply with its disclosure obligations and spoliation. He asserted that the State had failed to preserve and produce the recordings of his October 6 arrest; thus, the court should exclude the gun that officers seized during the arrest.

The court held a bench trial on January 6, 2020. The court first addressed Allen's outstanding motions to suppress the pellet gun, and Allen relied on his argument in his written motions. As to Allen's argument concerning an invalid search of his vehicle, the State responded that the officers executed a valid inventory search, and even if they did not, the pellet gun was in plain view from outside the car window. The court noted the State did not "need a search warrant when [the gun] is in plain sight in the back seat." However, the court again reserved a ruling on the motions.

Busby and Detective Swilley testified consistently with their testimony from the pretrial hearing. Coffman then testified that on October 6, 2018, she was driving near Brockington Road when she saw a dark-colored sedan with a pole protruding from the rear driver-side window. She explained that as she moved away from the car to avoid the pole, two objects hit her car making loud noises. Coffman initially believed that the driver of the car had...

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