Dillon v. State

• Decision Date: 19 January 1993
• Docket Number: No. CR,CR
• Citation: 844 S.W.2d 944,311 Ark. 529
• Court: Arkansas Supreme Court
• Parties: Kendall DILLON, Appellant, v. STATE of Arkansas, Appellee, 92-58.

Page 944

844 S.W.2d 944

311 Ark. 529

Kendall DILLON, Appellant, v.STATE of Arkansas, Appellee,

No. CR 92-58.

Supreme Court of Arkansas.

Jan. 19, 1993.

Harold W. Madden, Tom F. Donovan, No. Little Rock, for appellant.

Clint Miller, Sr. Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

The appellant, Kendall Dillon, raises sixteen points in his appeal from a conviction for rape and a sentence of thirty-three years.Three points concern prosecutorial misconduct in the cross-examination of two defense witnesses and of Dillon himself.We agree that the cumulative effect of statements made by the prosecutor in the cross-examination was prejudicial to Dillon and denied him a fair trial.We, therefore, reverse and remand the case for a new trial.

FACTS

On November 19, 1990, Kendall Dillon, who at the time was a Pulaski County Deputy Sheriff, was charged with the crime of rape.The charge resulted from an incident that occurred at about 5:00 a.m. on October 10, 1990, when Dillon, who was in his patrol car, stopped Tammy Falcone, an employee of the Checkmate Club, near McCain Mall in North Little Rock.According to Falcone's testimony, Dillon called in her license and tag numbers and informed her that a warrant had been issued for her arrest for hot checks.He instructed her to follow him in her car.She obeyed, and followed him to Sherwood, where they parked in a lot near Kiehl Avenue.Dillon ordered her into his car and then drove her to a secluded gravel road.

Falcone offered Dillon her tip money if he would let her go, but he replied that he wanted her, not her money.She told him that she wanted to go home to her children, but Dillon began playing with her hair, kissing her, fondling her breasts, and inserting his fingers in her vagina.Falcone testified that she feared she would die if she attempted to get away.When a car passed by, Dillon stopped.He then returned her to her car and warned her not to tell anyone.

Two days later, on October 12, 1990, Dillon stopped Brenda Kaup, according to her testimony at trial, and instructed her to raise her brassiere and pull down her pants and panties while she sat in his patrol car.No criminal charges were filed in connection with that incident, but Kaup sued Dillon in federal district court.Kaup's testimony was admitted at Dillon's trial.

Dillon was convicted and sentenced after a three-day trial.

I.PROSECUTORIAL MISCONDUCT

Dillon points to several instances of prejudicial statements made by the prosecutor at trial, none of which was supported by proof.

The first was in the form of a question on cross-examination to Lieutenant Mike Adams of the Pulaski County Sheriff's Department under whom Dillon worked:

PROSECUTOR: Were you aware of any complaints against Mr. Dillon about his treatment of women, particularly threatening, to plant drugs on them in exchange for sex?

DEFENSE COUNSEL: Your Honor, I object to that characterization; it is a leading statement.

THE COURT: Don't lead your witness, Ms. Ferrell.You may rephrase the question.

DEFENSE COUNSEL: Your Honor, may I approach the bench?

THE COURT: Please do.

(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)

DEFENSE COUNSEL: Your Honor, that question was leading.The allegation was made from specific acts, and I would--

THE COURT: I sustained your objection to the leading.

DEFENSE COUNSEL: And it was rude of Ms. Ferrell because of the specific act that was implied.

PROSECUTOR: He opened the door by saying that he did a good job and how he arrested these women in performance of his duties is relevant to how he would do his job.

DEFENSE COUNSEL: Not to that kind of question, Your Honor.He didn't open any door, and I do move for a mistrial.

THE COURT: Denied.

DEFENSE COUNSEL: And I ask for the Court to instruct the jury.The question was improper and they're to disregard it.

THE COURT: I'm not going to over-emphasize it, but ... I'm going to sustain your objection to the leading question.

Without any proof to support the insinuation, the prosecutor forged the distinct impression in the minds of the jurors that complaints against Dillon existed for threatening to plant drugs on women in exchange for sex.

The second improper comment occurred in the prosecutor's cross-examination of Chief Deputy Jerry Bradley of the Faulkner County Sheriff's Department:

PROSECUTOR: Well, were you aware of whether--Were you aware that the defendant resigned from the Conway Police Force?

BRADLEY: Yes.

PROSECUTOR: So you are aware of why he resigned from the Conway Police Force?

BRADLEY: I have no direct knowledge of why he resigned.

PROSECUTOR: You have no direct knowledge?

BRADLEY: No.

PROSECUTOR: You have no direct knowledge, but you are aware that it's because he forced sex on--

DEFENSE COUNSEL: Your Honor, I want to object to her making any statement of--

THE COURT: Now, just a minute.If he doesn't know why, doesn't have any direct knowledge of it, then that's it.

PROSECUTOR: Are you also aware that he resigned from the Morrilton Police Force?

BRADLEY: Yes, Ma'am.

PROSECUTOR: So you're aware of why he resigned there, as well, aren't you?

BRADLEY: No.

PROSECUTOR: And are you aware--

BRADLEY: I have no direct knowledge of why he resigned from any department.He also worked for Mayflower at one time, but I--

PROSECUTOR: And you know he resigned from Mayflower?

BRADLEY: Yes.

PROSECUTOR: And you know he resigned from UCA?

BRADLEY: I'm sorry.I don't ever remember him working for UCA.

PROSECUTOR: As a security at UCA?

BRADLEY: No, I don't.I don't remember that.

PROSECUTOR: So you're aware that he resigned from Mayflower, that he resigned from Conway, he resigned from Morrilton, and now you're aware that he resigned from the Pulaski County Sheriff's Department.Is that correct?

BRADLEY: I didn't know he had resigned from Pulaski County.I didn't know what his involvement there was.

PROSECUTOR: And are you aware that these were all forced resignations?

DEFENSE COUNSEL: Your Honor, I want to object to that.And at this time, Your Honor, may I approach the bench?

(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)

DEFENSE COUNSEL: Your Honor, the witness has testified that he had no direct knowledge.She is asking, "Are you aware that he was forced to resign?"He's already said he had no direct knowledge.At this time, I'd move for a mistrial.She has prejudiced us before this jury--

THE COURT: But--

DEFENSE COUNSEL:--and it's totally prejudicial, after he said that he had no direct knowledge of it.

THE COURT: How much more do you want him to say about it?

PROSECUTOR: I elicited of him--but this is my last question of this witness.

DEFENSE COUNSEL: It's one too many, Your Honor.

THE COURT: I'm not going to order a mistrial at this point, but don't do that any more.

PROSECUTOR: Okay, no, Your Honor.

THE COURT: You're that close to it.

PROSECUTOR: I don't dare.

DEFENSE COUNSEL: And, Your Honor, at this time, we'd ask--

THE COURT: Your motion is denied.

DEFENSE COUNSEL: But--Now, I understand that, but I have one more, and I ask that the jury be instructed to disregard that question.

(THEN, in the hearing of the jury.)

THE COURT: All right.Ladies and gentlemen of the jury, you'll disregard that last question which was asked by Ms. Ferrell.Let's move along.Any other questions of Chief Deputy Bradley?

PROSECUTOR: No, Your Honor.

Here, the prosecutor adroitly presented a mandated resignation due to "forced sex" in Faulkner County and then suggested "forced resignations" or suspensions in four other law enforcement agencies, including the Pulaski County Sheriff's Department and one security position at the University of Central Arkansas.Again, no proof was presented by the state to substantiate these implications of the most serious order.It is evident that the trial judge was alarmed by this strategy, and he told the prosecutor that she was "that close" to a mistrial.

The prosecutor next cross-examined Dillon on his suspensions from various law enforcement agencies:

PROSECUTOR: And you testified on direct that you've been a police officer with the Pulaski County Sheriff's Department for seven and a half years.Right?

APPELLANT: Yes.

PROSECUTOR: And that you left the Narcotics Division when you were promoted.Correct?

APPELLANT: Yes.

PROSECUTOR: But during that seven and a half years, that wasn't the first time you were suspended, was it?

APPELLANT: No.

PROSECUTOR: You'd been suspended before for taking a woman to--

DEFENSE COUNSEL: Your Honor, I want to object.

....

THE COURT: You may ask him if he has been suspended and then ask him what for.If it goes to truthfulness, I'll allow it.

PROSECUTOR: Okay.

(THEN, in the hearing of the jury.)

PROSECUTOR: Have you been suspended before?

APPELLANT: Yes.

PROSECUTOR: What was it for?

DEFENSE COUNSEL: Your Honor, at this time, I'd like to state that unless it has do with truthfulness or untruthfulness, I would object to the question.

THE COURT: Well, you see, I don't know.

DEFENSE COUNSEL: Well, then no proper foundation has been laid for the question.

THE COURT: Overruled.Go ahead.

PROSECUTOR: What was it for?

APPELLANT: I'd have to refer to the letter of suspension.I believe it was for not remaining quiet in school and misuse of a department vehicle.

PROSECUTOR: Misuse of a department vehicle?What did you misuse it for?

DEFENSE COUNSEL: Your Honor, I object.That has nothing to do with truthfulness or untruthfulness.

(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)

THE COURT: Do you have proof as to what he's been suspended for?

PROSECUTOR: Yes, I do.

THE COURT:...