Bragg v. State

• Decision Date: 27 May 1997
• Docket Number: No. CR,CR
• Citation: 946 S.W.2d 654,328 Ark. 613
• Parties: Rodney BRAGG, Appellant, v. STATE of Arkansas, Appellee. 96-820.
• Court: Arkansas Supreme Court

Page 654

946 S.W.2d 654

328 Ark. 613

Rodney BRAGG, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-820.

Supreme Court of Arkansas.

May 27, 1997.

Charles L. Honey, Prescott, for appellant.

Winston Bryant, Attorney General, Gil Dudley, Assistant Attorney General, Little Rock, for appellee.

CORBIN, Justice.

Appellant Rodney Bragg appeals the judgment of the Nevada County Circuit Court convicting him of delivery of a controlled substance (cocaine), a Class Y felony, in violation of Ark.Code Ann. § 5-64-401 (Repl.1993), sentencing him to life imprisonment, and ordering him to pay a fine of $25,000. We have jurisdiction of this appeal pursuant to Ark. Sup.Ct. R. 1-2(a)(2) (as amended by per curiam July 15, 1996). Appellant raises five points for reversal. We find no error and affirm.

I. Facts

The testimony presented at trial reveals the following facts. On March 26, 1993, Agent Keith Ray, an undercover officer for the South Central Drug Task Force, and Mark Smith, a confidential informant, went to the residence of John Noland in Prescott for the purpose of purchasing cocaine. Agent Ray told Noland that he wanted to buy $50 worth of crack cocaine and Noland indicated that he had someone there who could help him. Noland then led Agent Ray to the kitchen door, where he instructed Ray to wait. Agent Ray observed three men sitting at the kitchen table with a large amount of what appeared to be crack cocaine. After Noland had spoken to one of them, that man got up from the table and came to where Agent Ray was standing and asked Ray what he wanted. Again, Agent Ray indicated that he wanted to buy $50 worth of crack cocaine. The man then handed Agent Ray one piece of the rock-like substance and Ray paid him $50.

After they had left the residence, Agent Ray described for Smith, who was not present during the drug transaction, the man from whom Ray had purchased the drugs. Smith told Agent Ray that the man may have been Noland's cousin, Rodney Mitchell. When Agent Ray later viewed photographs of Mitchell, however, he indicated that Mitchell was not the person who sold him the cocaine. Agent Ray was unable to identify the suspect for approximately one year.

On March 1, 1994, in Clark County Agent Ray conducted another undercover drug transaction, this time with another informant, Steve Krite. Agent Ray gave Krite $125 and Krite purchased several rocks of crack cocaine from a man he knew as "Rodney." During the transaction, Agent Ray positioned his vehicle where he could view the delivery, and he was able to see the man selling the cocaine. Recognizing the man as the suspect in the 1993 drug transaction, Agent Ray ran a check on the vehicle license number, and it came back to Appellant, Rodney Bragg. Agent Ray later contacted the Nevada County Sheriff's Office and obtained a photograph of Appellant, who Agent Ray positively identified as the individual who sold him the crack cocaine on March 26, 1993.

II. Composition of the Jury and Venire

For his first two points for reversal, Appellant challenges the composition of both the petit jury that heard his case and the venire from which the jury was chosen. Appellant argues that the jury venire was not representative of the overall population of Nevada County, and that the State had systematically excluded black persons from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

A. Jury Venire

At trial, after the petit jurors had been selected but before they had been sworn, Appellant moved to quash the jury venire because it was not representative of a fair cross-section of the community in that the number of black persons on the venire was not proportionate to the percentage of black persons residing in Nevada County.

The Equal Protection Clause is not violated unless the State has engaged in the purposeful or deliberate denial to blacks, on the basis of their race, of participation in the administration of justice by selection for jury service. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). The appellant carries the burden of proving the systematic exclusion of black jurors from the venire. Id. In order to establish a prima facie violation of the fair-cross-section requirement of the Sixth Amendment, an appellant must show the following: (1) The group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 42-43, 930 S.W.2d at 314-15 (citing Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). This test requires a fair and reasonable representation of the distinctive group in every venire from which juries are selected, not just the particular venire summoned at a defendant's trial. Id. Once the appellant makes a prima facie showing of racial discrimination, the burden shifts to the State to justify its procedure. Id.

Although blacks clearly represent a distinctive group in the community, Appellant has failed to offer any proof concerning the composition of the population and the number of registered voters in Nevada County. Furthermore, Appellant has not provided us with any proof as to the composition of the jury venire called in his case, let alone the entire jury pool or master list from which each venire is chosen. Without such proof, Appellant has failed to make a prima facie showing of racial discrimination in the jury-selection process. We therefore conclude that the trial court did not err in denying Appellant's motion to quash the jury venire.

B. Petit Jury

Appellant next argues that the State systematically excluded three black persons from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The record reflects that there were eleven white persons and one black person seated on Appellant's jury.

The Equal Protection Clause forbids prosecutors from challenging potential jurors solely on the basis of race. Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996). In order to prevail on a Batson argument, a defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge. Bell, 324 Ark. 258, 920 S.W.2d 821. A prima facie case may be established by: (1) Showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecutor during voir dire. Id. One of the best answers to a challenge of racial discrimination is to point to a jury that is comprised of any members of the race in question. Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996). Here, the State made no challenge to Appellant's prima facie case of discrimination and proceeded to give its race-neutral explanations. The relevant inquiry is, thus, whether the trial court was correct in denying the motion based on the reasons given by the State. Id.

At trial, the prosecutor explained that he had chosen to strike Charles Toliver because he had prosecuted Toliver several times in the past for driving while intoxicated, in which Toliver was represented by Appellant's counsel, Mr. Honey, and because Toliver stated that he had served twelve years in the National Guard with John Noland, a potential accomplice to the charges against Appellant. Additionally, the prosecutor stated that he had also prosecuted Toliver's son in the past.

Similarly, the prosecutor stated that he had chosen to strike Queen Esther Hayden because he had prosecuted her son, who was ultimately convicted of the charges and imprisoned, as well as two of her grandsons, one who was still serving time in prison and the other who was in the custody of the State's juvenile facilities. The prosecutor indicated that he had also chosen to strike Hayden due to her admitted close personal relationship with Fanae Noland, wife of John Noland.

Finally, the prosecutor stated that he had chosen to strike James Edward Cole because he had prosecuted Cole's stepson a few years before on charges of rape and carnal abuse, and the stepson was convicted and sentenced to prison for the charges. The prosecutor stated further that while Cole's stepson was serving his prison sentence, working as a trustee in the Nevada County jail, he left the jail and went to the home of a convicted drug dealer and purchased some crack cocaine.

Additionally, the prosecutor informed the trial court that had another potential juror, Clara Taylor, a white person, not been excused for cause, he would have used a peremptory challenge to strike her due to the fact that he had recently prosecuted her daughter.

After hearing argument from both sides, the trial court found that there was a reasonable and rational basis for the State's decisions to strike all three jurors and denied Appellant's motion. Our standard of review is whether the trial court's findings were clearly against the preponderance of the evidence. Cleveland, 326 Ark. 46, 930 S.W.2d 316; Bell, 324 Ark. 258, 920 S.W.2d 821. We conclude that the State provided sufficient racially neutral explanations as to its use of the three peremptory challenges and, as such, the trial court was correct in denying Appellant's motion to quash the jury.

III. Hearsay

For his third point for reversal, Appellant argues that the trial court erred in allowing into evidence three hearsay statements made by Agent Ray. The State contends that the statements were not hearsay because they were not offered as evidence of the truth of the matter asserted. Hearsay is any statement made by an out-of-court declarant that is...