Bunn v. State

• Decision Date: 22 May 1995
• Docket Number: No. CR94-1081,CR94-1081
• Citation: 898 S.W.2d 450,320 Ark. 516
• Parties: Richard Thomas BUNN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 450

898 S.W.2d 450

320 Ark. 516

Richard Thomas BUNN, Appellant, v. STATE of Arkansas, Appellee.

No. CR94-1081.

Supreme Court of Arkansas.

May 22, 1995.

Kent McLemore, Fayetteville, for appellant.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant, Richard Thomas Bunn, appeals his conviction of three counts of delivery of a controlled substance, cocaine, and asserts the following five points of error: (1) that the trial court erred in failing to grant his motion for severance of Count III from Counts I and II of the offenses charged; (2) that the trial court abused its discretion in admitting his "mug shot" into evidence; (3) that the trial court erred in admitting into evidence transcripts of recordings of two of the drug transactions; (4) that the trial court erred in admitting and allowing testimony about a letter purportedly written by him, in which he allegedly threatened a witness for the State; and (5) that the trial court erred in failing to declare Arkansas's bifurcated sentencing procedures unconstitutional. Finding merit in the appellant's claim that the trial court erred by refusing to sever offenses prior to trial, we reverse and remand.

Facts

In October of 1993, Leslie Blackburn contacted the Fourth Judicial Drug Task Force about working as a confidential informant. Blackburn, who was serving a ten-day jail sentence, told officers that he could buy some cocaine from the appellant, Richard Thomas Bunn, as he "had been there before to buy it." On October 21, 1993, Blackburn had a meeting with officers at the Fayetteville Police Department to arrange for a drug buy from Bunn. Blackburn's person was searched for money and drugs, and, finding neither, officers wired him with a body microphone and gave him $50.00 to purchase the cocaine. Officers drove Blackburn to the area of Bunn's trailer at 2605 Villa Boulevard, # 1, where he entered to find Bunn, Andy Holm, Isaac Allen, "Amp," Sandra Williams, and Sabrina Williams inside. According to Officer McCarty, who, together with other officers, was conducting visual and audio surveillance, Blackburn exited the trailer six minutes later, turned a rock of cocaine over to officers, and told them he had purchased it from Bunn. Blackburn was returned to the police department, searched, then taken back to the area of Bunn's trailer approximately twenty-five minutes later, where he was again searched for drugs and money with negative results, given $50.00, and wired with a body microphone. Blackburn once again entered Bunn's trailer, where he stayed between fourteen and sixteen minutes, purchased a rock of cocaine from Bunn, and turned it over to officers.

Two days later, on October 23, 1993, Darryl Williams, who had been working as a confidential informant since July of 1993 in order to help pay his bills, met with officers to arrange for a drug buy from Bunn. Williams was searched for money and drugs with negative results, wired with a body microphone, and given $50.00 before he was dropped off near Bunn's trailer. Williams, who did not know Bunn, entered the trailer, recognized someone that he "knew from the streets" named Billy Joe, and returned a rock of crack cocaine to officers approximately four minutes later, describing the seller as a person who looked like the actor-dancer Gregory Hines. According to Officer McCarty, as he and other officers had been given this description before and "figured it was Bunn," they showed Williams a "mug shot" of Bunn upon their return to the police department, from which he identified Bunn as the person who had sold him the cocaine.

Bunn was charged by felony information with three counts of delivery of a controlled substance, cocaine. Counts I and II each alleged that Bunn had illegally delivered approximately 1/4 gram of crack cocaine to a confidential informant (i.e., Blackburn) in exchange for $50.00 on October 21, 1993. Count III alleged that Bunn had delivered approximately 1/4 gram of crack cocaine to a confidential informant (i.e., Williams) in exchange for $50.00 on October 23, 1993. Prior to trial, Bunn filed a motion to sever Count III from Counts I and II of the offenses charged, as well as a motion to declare Act 535 of 1993, Arkansas's bifurcated sentencing procedures, unconstitutional. The trial court denied both motions, and at trial, the State offered the testimony of both informants, Officer McCarty, and Norman Kemper, a forensic chemist with the State Crime Lab, who examined the three "rocks" and determined that each was cocaine base. It was through Officer McCarty's testimony that the State sought and obtained admission, over objection, of Bunn's "mug shot," as well as two transcripts of the taped transactions, in which Officer McCarty had identified Bunn as the seller of the cocaine "based upon what the informant had told him." Officer McCarty further stated that while he had been around Bunn before and knew what his voice sounded like, he could not positively identify the voice on the tape as being Bunn's. The State rested.

After renewing his motion to sever Count III, Bunn presented the testimony of Isaac Allen and Melvin "Big" Salley, both of whom, after listening to the tape of the Blackburn transaction, concluded that the voice of the seller was not Bunn's, but was Andy Holm's, and both of whom denied seeing Bunn sell cocaine to Blackburn. Bunn rested his defense and again renewed his motion to sever.

As rebuttal evidence, the State presented the testimony of Sabrina Williams, a sixteen-year-old convicted felon who testified that she knew Bunn, as he was her mother's former boyfriend, and that Bunn had "sold crack cocaine twenty times." According to Sabrina, he would get the cocaine from her, then bring her back the money. Sabrina's mother, Sandra Williams, corroborated her daughter's testimony. Admitting that she was presently facing drug and forgery charges, and that she was expecting to receive favorable treatment in return for her testimony, Sandra testified, over objection, that she had received a letter from Bunn in late December of 1993, or early January of 1994, in which Bunn threatened her, stating that, "If you let someone find this letter or you tell on me, I will hunt you down." Also over Bunn's objection, the State sought and obtained admission of the letter into evidence.

As further rebuttal evidence, Andy Holm testified on behalf of the State, and while admitting he had sold drugs while living with Bunn in Bunn's trailer, and that he had sold drugs to Blackburn one or two times, he denied having sold to him twice in the same day. He further testified that Bunn had also sold drugs, as Bunn "would knock on the doors, show me the amount of money he had and I would give him the dope," and he (Holm) "would hear people coming in" and "would put two and two together."

At the conclusion of the State's rebuttal testimony, Bunn did not renew his motion to sever. Thereafter, the case was submitted to the jury who found Bunn guilty of the counts as charged, and the trial court conducted sentencing procedures as required by Act 535 of 1993, after which, the jury assessed punishment. As a result, the trial court sentenced Bunn to a forty-two-year term of imprisonment, encompassing the counts charged, as well as a theft of property charge to which Bunn pleaded guilty, and a revocation of probation charge. It is from this sentence that Bunn appeals.

I. Motion to sever

For his first argument on appeal, Bunn asserts that the trial court erred in refusing to grant his motion to sever Count III of the information from Counts I and II. Prior to trial, Bunn filed a written motion to sever the offenses pursuant to Ark.R.Crim.P. 22.3, arguing that severance was necessary to achieve a fair determination of his guilt or innocence of each offense. At a pre-trial hearing, counsel for Bunn agreed that the charges were of the same or similar character, but argued that Count III should be severed from Counts I and II because it was "not part of the same single scheme or plan as the first two ..." After hearing argument from the State, the trial court ruled on the motion as follows:

Well, the State is alleging that these are all a part of a common scheme or plan and if, by chance, the proof is otherwise, then I think the Court is still permitted to sever out one or more of the counts. But those are all the allegations made by the State. It's sort of a matter of proof at this point. It seems to me, as I've just inquired, they're identical charges, although they did--apparently these alleged offenses occurred at some--two on one particular occasion; one at some later time but, nonetheless, still in fairly close proximity to the earlier conduct or alleged conduct so I'm going to deny the motion. You may want to raise it at some point during the trial.

Bunn renewed his motion to sever the offenses at the close of the State's case, and again after the presentation of his case, but before the State offered rebuttal testimony. The trial court denied the motion, concluding that the testimony of the witnesses showed a common scheme or plan, and that "all offenses were very similar, if not identical."

The trial court's rulings were in error. Arkansas Rules of Criminal Procedure 21 and 22 provide for joinder and severance of offenses, respectively. We have said that Rule 22.1(b) does not require that a motion to sever be renewed at the end of all the evidence but "before" or at the close of all the proof. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). Thus, as Bunn renewed his motion to sever at the close of the State's case-in-chief and at the end of his case, he did so "before or at the close of all the evidence" in conformance with the rule.

Rule 21.1 is a broad rule, allowing for joinder of offenses when they "(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or a...