Dixon v. State

• Decision Date: 28 September 1992
• Docket Number: No. CR,CR
• Citation: 839 S.W.2d 173,310 Ark. 460
• Parties: Eddie DIXON, Jr., Appellant, v. STATE of Arkansas, Appellee. 92-165.
• Court: Arkansas Supreme Court

Page 173

839 S.W.2d 173

310 Ark. 460

Eddie DIXON, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-165.

Supreme Court of Arkansas.

Sept. 28, 1992.

Wayne Emmons, West Memphis, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Eddie Dixon and Tony Evans were charged as principals or in complicity with each other with two counts of delivery of a controlled substance--cocaine. Dixon's motion to sever was granted and he was tried separately from Evans. The state's evidence consisted essentially of the following:

On February 9, 1991, undercover officers Darryl Scrivens and Bobby Allison drove to a certain location in Blytheville. Allison was wearing a concealed microphone. Tony Evans approached the vehicle and sold one rock of crack cocaine to the officers. They asked to buy a larger quantity of cocaine and Evans said he would have to get someone else to provide a larger amount. He left to contact his supplier. Moments later, a white Chevy Blazer arrived at the scene and parked some distance from the undercover officers. The Blazer had one occupant in addition to the driver. The officers watched as Evans went to the passenger side of the car, obtained a plastic bag containing fifteen rocks of cocaine and brought it to the undercover officers. They gave $250 to Evans which he took to the person in the Blazer, allegedly appellant, who then left the area.

Officer Darryl Scrivens testified that he had previously seen the passenger in the Blazer and had a photograph of him which had been provided to him at the start of the operation. Scrivens stated that he went back to his meeting area and picked out the picture of the appellant as the person that had provided the cocaine for the transaction.

A jury trial was held on September 25 and 26, 1991. The jury found Dixon guilty of one count of delivery of a controlled substance, cocaine, and imposed a fine of $25,000 and a life sentence in the Arkansas Department of Correction. Dixon appeals from the judgment of conviction asserting six points for reversal. Finding no error, we affirm the judgment entered pursuant to the verdict.

I

THE TRIAL COURT ERRED IN PERMITTING THE CO-CONSPIRATOR'S

STATEMENTS TO BE ADMITTED INTO EVIDENCE

Appellant contends initially that the trial court erred in permitting the statements of the co-conspirator to be admitted into evidence. Prior to trial, appellant moved to suppress the statements which accomplice Tony Evans made to the undercover officers and which were recorded on the microphone worn by Allison. Appellant contends the statements, which implicated Eddie Dixon, were hearsay and were not statements of a co-conspirator in that they were not made during the course of and in furtherance of a conspiracy. After opening statements, the trial court ruled that it would conditionally admit the statements of the co-conspirator and at the close of the state's case as well as at the close of the evidence, would consider whether prima facie evidence of a conspiracy had been presented.

During the testimony of Darryl Scrivens, the state asked whether Evans had mentioned a name when he was asked about the purchase of an 8-ball of cocaine. Appellant objected on lack of proof of a conspiracy. The court overruled the objection and permitted the question to be answered conditionally upon the state later proving the conspiracy independent of the testimony.

A tape recording of the conversation between Scrivens and Evans was played for the jury. The actual tape is in the record, but it was not transcribed or abstracted. Officer Scrivens did state part of the conversation with Evans during his testimony. Scrivens testified that Evans had said "Eddie has the best thing going" and that, "Eddie didn't have powder." Evans also said that Eddie was "legit". After the appellant made a motion for a directed verdict at the close of the state's case, the court made a finding that sufficient evidence existed to make a fact issue for the jury on the existence of a conspiracy independent of the conspiratorial statements made by Evans.

First, appellant contends that the trial court erred in not making a definitive ruling regarding the admissibility of the co-conspirator's statements. The appellant relies on United States v. Offutt, 736 F.2d 1199, 1200 (8th Cir.1984) in which the Eighth Circuit stated that a trial court may conditionally admit a statement of an alleged co-conspirator and the government must then prove by a preponderance of the independent evidence that the statement was made by a co-conspirator during the course of and in furtherance of the conspiracy. Further, at the close of all the evidence, the district court should make an explicit finding for the record regarding the admissibility of the statement. But in Offutt, the government was charging an express conspiracy by a number of individuals to import drugs into Arkansas from Florida over a period of days. Here, the entire enterprise required only a matter of minutes and, except for the telephone call, occurred in its entirety in plain view of the undercover officers. In that context the trial court was fully justified in concluding that there was sufficient proof that Evans and Dixon were acting in concert. Under our cases the sufficiency of the evidence of a conspiracy so as to permit the statements of a co-conspirator is ordinarily decided by the trial court. Jackson v. State, 267 Ark. 891, 591 S.W.2d 685 (1980); Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978); Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972); Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970). However, no prejudice resulted in the submission of that issue to the jury. Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 145 (1985).

Appellant also contends that the co-conspirator's statements were inadmissible in that they were not made in the furtherance of a conspiracy. He argues that the taped statement of Tony Evans might possibly show a delivery or sale of cocaine but did not show that a conspiracy existed.

Ark.R.Evid. 801(d)(2)(v) provides that a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy is not hearsay. See also Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978); Lopez v. State, 29 Ark.App. 145, 778 S.W.2d 641 (1989); Mock v. State, 20 Ark.App. 117, 725 S.W.2d 1 (1987); Sweat v. State, 5 Ark.App. 284, 635 S.W.2d 296 (1982).

Evans's statements were clearly within the scope of Rule 801. They were made during the course of the criminal conduct, which occurred within a brief interval in time, and they were designed to further the specific objective of such conduct, i.e., a purchase by the officers of some fifteen rocks of crack cocaine. Evans was both promoting the product of his confederate and abetting a completion of the sale. The trial court did not err in admitting the statements in evidence.

II THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A MISTRIAL

Appellant contends the trial court erred in denying his motion for a mistrial prompted by the state's opening statement. The prosecuting attorney remarked that there was a problem with street dealers in Blytheville. Appellant objected and the objection was sustained. Further on, the prosecuting attorney described the area where the officers went as "an open air drug market." Appellant's objection to that remark was also sustained. After defense counsel completed his opening statement, he moved for a mistrial on the ground the state had improperly referred to the statements of the accomplice as well as Blytheville's drug trafficking problems and the open air drug market. The trial court denied the motion for a mistrial and appellant renews the argument on appeal. He insists the statements were prejudicial in that they characterized the appellant as a street dealer and in an open air drug market and even though the objections were sustained, the damage had been done.

First, the motion was not timely. Appellant waited until after he had completed his opening statement before requesting a mistrial. In Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986), this court noted that it was proper to deny a motion for a mistrial when the request was not made at the first opportunity.

Second, because both of appellant's objections during the state's opening statement were sustained, he had received all the relief requested at that time. One cannot complain about a favorable ruling granting all relief requested. Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991); Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990).

Further, the prosecutor merely referred to matters which were developed by the evidence during the trial. Where evidence is admissible, a party is entitled to refer to it during opening statement. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). Also, a prosecutor is allowed to argue any inference reasonably and legitimately deducible from the evidence. Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982). At trial, the jury heard evidence of the co-conspirator's statements and the identification of the appellant. The testimony also described various purchases of drugs near the area that this transaction took place. Given this evidence, the jury could have concluded that there was a drug problem in the Blytheville area. We have frequently held that a mistrial is an extreme remedy that should be granted only where an error is so prejudicial that justice cannot be served by a continuation of the trial. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992); Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992); Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990). The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in the absence of an...