Brown v. State
| Decision Date | 04 January 2007 |
| Docket Number | No. CR 06-737.,CR 06-737. |
| Citation | 246 S.W.3d 414,368 Ark. 344 |
| Parties | John H. BROWN, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
David O. Bowden, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, for appellee.
John H. Brown appeals his conviction of sexual assault in the first-degree and sentence of twenty-five years in prison. He argues that the jury's finding of guilt is not supported by substantial evidence, that the trial court erred finding that a calendar was protected by the work-product doctrine, that the trial court erred by denying the right to a full, fair and public trial, that the trial court erred in denying Brown a recognized defense, and that prosecutorial misconduct denied him a fair trial. We hold there is no error and affirm. This appeal comes to this court by way of a petition for review. Ark. Sup.Ct. R. 6-4. The court of appeals reversed and remanded this case. See Brown v. State, 95 Ark.App. 348, 237 S.W.3d 95 (2006). When we grant a petition for review, this court reviews the case as if the appeal had originally been filed in this court. Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005).
Brown is accused of having inserted his finger into the vagina of fifteen-year-old H.M. H.M. was the sole witness and provided the evidence of the alleged crime. In July 2003, she awoke at about 4:00 a.m. to find her sleeping bag unzipped, pulled down, and Brown with his hand down her pajama pants inserting his finger into her vagina.
Brown argues that there is insufficient evidence to support the jury verdict. Sufficiency of the evidence is challenged by a directed-verdict motion. See Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). At the close of the State's case, Brown moved for a directed verdict, arguing that H.M.'s testimony was "incredible and unworthy of belief." He did not specify the element the State failed to prove. At the close of the defense case, Brown again moved for a directed verdict, arguing that a reasonable finder of fact could not find beyond a reasonable doubt that Brown committed the crime. He alleged that the State had failed to prove the elements of the crime charged, but he did not specify the element the State failed to prove. At the close of all the evidence, Brown simply renewed his prior directed-verdict motions without further argument. The element of the crime that the State failed to prove must be specifically identified in a motion for a directed verdict. McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003). Here, Brown failed to specify the element and the proof that was missing. Therefore, his claim of insufficient evidence is not preserved for appeal.
At trial, Brown attempted to show H.M. should not be believed because she could not recall dates and because she contradicted herself on events and dates. During cross-examination of H.M., Brown discovered the State had a calendar setting out events and dates. He argues both that there was a discovery violation by the State in not disclosing the calendar prior to trial and that the circuit court erred in finding at trial that the calendar was work product. Brown failed to obtain a ruling on the issue of a failure to comply with pretrial discovery obligations. A failure to obtain a ruling is a procedural bar to this court's consideration of the issue on appeal. Jolly v. State, 358 Ark. 180, 189 S.W.3d 40 (2004). However, he obtained a ruling that the calendar was work product. That issue may be heard on appeal.
At a bench conference, Deputy Prosecuting Attorney Rebecca Bush stated, Work product in the context of this case is "records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of his staff or other state agents." Ark. R.Crim. P. 17.5(a). Certainly notes could be memoranda containing the opinions, theories or conclusions of the prosecuting attorney or members of his or her staff. Bush specifically argued to the circuit court that "it's our notes," ... "it's our work-product." She further represented that the calendar was "not part of our case file."1
A careful examination of the testimony of H.M. and her mother R.M. raises serious concerns about whether the calendar actually contained work product. H.M. testified that she and her mother created the calendar. R.M. testified that she created the calendar, and that Bush did not participate in its creation. However, Bush told the circuit court that members of the prosecuting attorney's office were on the calendar notes. We cannot reach the issue of whether the calendar contained work product because Brown did not proffer the calendar and make it part of the record. Where evidence is excluded by the circuit court, the party challenging that decision must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003). The substance of the evidence in this case is not apparent. The evidence concerning what is written on the calendar is conflicting; however, this court cannot review a document that is not before it.
Brown next asserts that he was denied the right to a full, fair and public trial when the circuit court excluded members of H.M.'s family from the courtroom while H.M. testified. The State moved in limine to exclude family members from the courtroom during H.M.'s testimony, and Brown opposed the motion. The motion was granted; thus, the circuit court ruled against Brown, and he could raise that issue on appeal. However, the issue was revisited just after the jury was selected and before opening statements. Brown's counsel asked the court to visit with H.M. in camera to determine "how committed she is to this." "This" was a reference to her desire not to testify in front of family. The circuit court did not interview H.M. and stated that it had based its decision on its duty to make sure that a witness testifies free of intimidation. The court further stated that the fair thing would be to exclude family members on both sides. A discussion followed regarding whether H.M.'s mother R.M. would testify and whether she would be in the courtroom while H.M. testified. The deputy prosecuting attorney stated that as the mother of a minor victim R.M. had the right to be in the courtroom when her daughter testified, but that she would not be present. Brown's counsel then stated, "Then I want the entire family excluded, Your Honor ... If one goes, I want all of them out." Thus, while the circuit court initially ruled against Brown, he was in agreement with the court's subsequent decision that all family members of both sides were to be excluded when H.M. testified. He may not now attack and appeal from a decision to which he agreed. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001).
Brown argues that by denying him the opportunity to put on the testimony of Lieutenant Earnest Whitten of the Little Rock Police Department, he was denied the ability to put on a defense. He alleges that Whitten's testimony would have shown that this case was a sham and one of "vindictive" prosecution. However, Whitten's testimony was not...
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