Buckley v State, 99-1081

• Decision Date: 07 July 2000
• Docket Number: 99-1081
• Citation: 20 S.W.3d 331
• Parties: Gyronne BUCKLEY v. STATE of Arkansas CR 99-1081 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Gyronne BUCKLEY v STATE of Arkansas

CR 99-1081 ___ S.W.3d ___

Opinion delivered July 7, 2000

Supreme Court of Arkansas

Appeal from Clark Circuit Court; John Alexander Thomas, Judge; reversed and remanded.

1. Evidence -- other crimes or wrongs -- when admission of reversed. -- A trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion.

2. Mistrial -- decision to order discretionary. -- The decision to order a mistrial and retry a criminal defendant lies within the sound discretion of the trial judge, and will be upheld absent an abuse of discretion; the trial court should resort to a mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected.

3. Jury -- burden of showing bias -- when trial court's finding reversed. -- A jury is presumed to be unbiased and qualified to serve, and the burden is on the appellant to show otherwise; it is for the trial court to decide whether the jurors are qualified, and that finding will not be reversed absent a showing of abuse of discretion.

4. Criminal procedure -- sentencing -- admissible evidence. -- The language of Ark. Code Ann. § 16-97-103 makes it clear that certain evidence is admissible at sentencing that would not have been admissible at the guilt phase of the trial; the introduction of evidence during this stage must be governed by the rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal; however, once the jury has determined that the defendant is guilty, additional evidence, even evidence regarding attempted crimes, may be admissible if it gives the jury as much information as possible when it makes its sentencing decisions.

5. Evidence -- sentencing phase -- hearsay admitted. -- Even though evidence of prior drug sales by appellant would certainly have given the jury more information to make its sentencing decision, the evidence was still subject to the rules of evidence; here, the officer's testimony about prior drug buys, which occurred before he became a task force officer, was necessarily hearsay because the officer did not have personal knowledge of the events; it was clear from the officer's testimony that he gained his knowledge of a 1988 drug buy from reading a court docket; this was hearsay under Ark. R. Evid. 801; moreover, the officer's testimony regarding purported buys in 1994, 1995, and 1996 were similarly objectionable in that he demonstrated no first hand knowledge of the facts to which he testified.

6. Evidence -- erroneously admitted hearsay found prejudicial --reversed. -- Where the trial court erred in its admission of hearsay and the jury used the hearsay testimony to impose a punishment of two life sentences, prejudice was demonstrated, and accordingly, the supreme court reversed the decision of the trial court.

7. Mistrial -- failure to grant -- prejudice must be shown to succeed on appeal. -- In order to succeed on appeal from a denial of a mistrial, an appellant must show that the trial court abused its discretion in failing to grant the mistrial and that there was prejudice in the trial court's ruling on the issue of the juror and alternate.

8. Jury -- appellant never objected to alternate juror --argument moot. -- Where there was no indication in the abstract or record that appellant opposed the seating of the alternate as a member of the jury, appellant's failure to object to the alternate being seated, and his decision not to use the alternate instead of the questionable juror when he had a choice, rendered his argument, which was that the choice given to given him was unacceptable, moot.

9. Jury -- retaining questionable juror -- trial technique. -- Appellant's decision to continue with the questionable juror appeared to be one of trial technique or tactic in that his argued reason for deciding to retain her was because he was afraid of how a change might appear to the jury and of speculation the other jurors might make on such a change; seating or exclusion of a juror may be a trial technique, and appellant did not show the jury in place was biased against him.

10. Mistrial -- denial of affirmed. -- Where appellant failed to object to seating of the alternate juror, and he decided not to use the alternate, but chose instead to retain the questionable juror, the trial court's denial of appellant's motion for a mistrial was affirmed.

11. Criminal procedure -- alternate sentencing -- discretionary with trial court. -- No error was found in the trial court's refusal to consider the possibility of probation for delivery of cocaine, an alternative sentence available at the trial court's discretion, under Ark. Code Ann. § 5-64-601 and § 5-4-104; although probation is an alternative sentence available for cocaine delivery offenses such as this under Ark. Code Ann. § 5-4-104(e)(1)(A), § 5-64-401(a)(1)(i), and § 5-4-301(a)(1), the decision to allow alternative sentencing is reviewed for an abuse of discretion; on remand, the giving of an instruction regarding probation as an alternative sentence would be in the trial court's sound discretion. [cme]

Jack T. Lassiter and Pamela Epperson, for appellant.

Mark Pryor, Att'y Gen., by: Kelly K. Hill, Deputy Att'y Gen. and David R. Raupp, Sr. Ass't Att'y Gen., for appellee.

Lavenski R. Smith, Justice.

Appellant Gyronne Buckley appeals his convictions on two counts of delivery of a controlled substance, both Class Y felonies, for which he was sentenced to two consecutive life terms by a Clark County jury. Buckley asserts that four trial errors require reversal. One occurred during the guilt phase of the trial and three during the sentencing phase. We find merit in Buckley's contention that the trial court erred in admitting certain hearsay evidence in the sentencing phase of his trial and therefore reverse and remand for new sentencing.

Facts

Buckley's arrest and subsequent conviction followed two arranged drug purchases from Buckley by informant Corey Livsey. Arkadelphia Police arrested Livsey on January 12, 1999, for shoplifting. In exchange for dismissing these charges against him, Livsey agreed to participate in attempted crack cocaine purchases from Buckley under the supervision of the Arkadelphia Police Department and the South Central Drug Task Force, which operated in Clark County. Police released Livsey from custody that same afternoon. Livsey returned to the police department early that same evening, and the Arkadelphia police officers and the Drug Task Force officers wired Livsey with a body microphone so they could listen to Livsey as he attempted to buy drugs from Buckley.

The officers expected the sale to take place at Buckley's residence. They dropped Livsey off in Buckley's neighborhood a couple of blocks away from Buckley's home. According to Livsey, who testified at trial, Buckley invited him inside after he knocked at the door of Buckley's house. According to Livsey, he pulled forty dollars from his pocket and asked to buy crack cocaine, using slang terms to ask for the drugs. The audio tape, however, itself contained no conversation clearly indicating that a drug transaction was taking place. Livsey testified that he bought two rocks of cocaine for $20 apiece, and then left the house. The police picked up Livsey a few blocks away and retrieved the drugs from him. The participating officers testified at trial that they searched Livsey before the transaction took place to verify that he had no drugs on his person before the sale, and also searched him afterward to verify that he no longer had the task-force money on his person. The following day, January 13, 1999, the officers arranged another "buy" with Livsey, who once again wore a body microphone. Just as the previous day, the officers took Livsey to Buckley's neighborhood and dropped Livsey off with his bicycle. Livsey rode his bicycle to Buckley's house, played basketball with some teenagers outside, and spoke with Buckley. According to Livsey, the pair went into Buckley's backyard, and Buckley sold Livsey more crack cocaine. Livsey then left the house and was picked up by the officers. The police searched Buckley's house on January 14, 1999, and gathered tweezers, aluminum foil with marijuana seeds in it, a pill bottle with white residue in it, and a plastic sandwich bag with residue in it at the scene. On the same date, the police arrested Buckley for selling cocaine to Livsey. The Clark County Prosecuting Attorney filed a felony information on January 14, 1999, charging Buckley with two Y felonies for the delivery of a controlled substance.

On May 17, 1999, Buckley's attorney filed a motion in limine requesting, in part, that the trial court exclude anticipated testimony about Buckley's reputation as a drug dealer. The defense pointed out that Buckley had never been arrested or convicted on any prior drug-related crimes. The trial court ruled that the State could not present such evidence unless the defense put it at issue. The trial court reserved its decision on the use of this information during the sentencing phase of the trial.

A jury trial began on May 25, 1999. During voir dire, the jury was selected from a panel of twenty-five venire persons, including seven African-Americans. Of these seven venire persons, three were excused for cause, one was excused because she had been subpoenaed by the defense, and the State struck the fifth with a peremptory challenge which survived a Batson challenge by the defense. Juror Number Five, Tennie Wilson, was the only African-American chosen from the venire to serve on the jury. Buckley did not raise any jury-selection issues on appeal.

The State presented six witnesses in its case in chief: Dan Hedges, William Summerville, Jr., ...