Henderson v. State

• Decision Date: 13 November 1995
• Docket Number: No. CR95-326,CR95-326
• Citation: 910 S.W.2d 656,322 Ark. 402
• Parties: Grover HENDERSON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 656

910 S.W.2d 656

322 Ark. 402

Grover HENDERSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR95-326.

Supreme Court of Arkansas.

Nov. 13, 1995.

John M. Pickett, Texarkana, for Appellant.

Kent G. Holt, Asst. Attorney General, Little Rock, for Appellee.

GLAZE, Justice.

Appellant Grover Henderson was convicted of delivery of a controlled substance (three rocks of crack cocaine) and sentenced to life imprisonment. He was also fined $5,000. He appeals on multiple grounds. We affirm.

Jerry Revels was a resident of Stamps and a confidential informant of then Stamps Chief of Police, Al Dyar. Chief Dyar knew Revels was a drug user, and for a period of time he paid Revels $50 per drug buy to make cases for prosecution against drug sellers. On the night of April 23, 1993, Revels was involved in a drug buy for Dyar. According to the testimony of Dyar at trial, he and Revels had discussed making a buy from a person named Lamont Reynolds. Dyar first searched Revels and then gave him a micro-cassette tape recorder to record the events and $20 to purchase the cocaine. Dyar situated himself where he could observe the purchase. Dyar saw Revels talk with Reynolds and then continue on where Revels met Henderson. Dyar, who was thirty-five or forty yards down the road, stated that he saw Henderson pull a pill bottle out of his sock and remove a packet of tinfoil. Revels took the tinfoil and gave Henderson the $20 bill. When Revels returned to Dyar's truck, Dyar opened the tinfoil and saw three rock-like substances. Dyar rewound the tape and he and Revels listened to it on the return to the police station where the cocaine and tape were turned over to Joe Thomas of the drug task force. Later that same evening, Revels gave a hand-written statement in which he described buying "three rocks" from Henderson for $20.

On August 22, 1993, Revels signed an affidavit under oath at the request of Henderson's defense counsel. In that statement, he averred that Henderson, whose nickname was "Knot," had never sold him any rock cocaine during April of 1993. He stated that he talked to Henderson on the night of April 23, 1993, about buying crack cocaine but that a sale was not made. He stated that Chief Dyar coached him to make the statement that he bought drugs from Henderson that night, although in reality he bought the cocaine from a person coming out of Henderson's house. He stated that Dyar threatened to use a burglary charge against him, if he did not implicate Henderson.

Because of Revels's conflicting statements, a lie detector examination was scheduled before State Police Investigator Jerry Reed. The meeting occurred on September 16, 1993, but before the polygraph was administered, Revels told Investigator Reed that he had lied in his August 22 affidavit to Henderson's defense attorney and that the first statement given to Chief Dyar on April 23, 1993, was the truth. Revels then gave the investigator a handwritten statement describing Henderson's sale of the crack cocaine to him for $20. He later told the investigator that he had given the contrary affidavit to Henderson's defense counsel because Henderson had threatened him.

Trial in this matter was originally scheduled for December 6, 1993, but Revels did not appear for trial, and the prosecutor asked for and was granted a continuance. On December 8, 1993, Revels was located by Lafayette County Deputy Sheriff Peter Briggs and arrested for failure to appear at trial. On that same date, Revels gave a statement, revealing that on December 5, 1993, Henderson told Revels that he heard Revels had been subpoenaed for trial but that the subpoena had not been served. Revels's December 8 statement further reflected that Henderson told Revels that he did not have to go to court, and if Revels wanted to lay low for a while, he could stay out of sight until everything blew over. Revels further stated that Henderson picked him up the morning of the trial, took him to the Livingston Motel in Springhill, Louisiana, paid for the room, and gave him money for food.

On August 29, 1994, trial of this matter commenced. The prosecutor called Jerry Revels as a state witness. However, when Revels testified that Henderson had always wanted him to come to court to testify, the prosecutor moved to declare Revels a hostile witness, which the trial court granted. The prosecutor then used Revels's December 8 written statement to impeach Revels's trial testimony. Later, on redirect examination of Revels, theprosecutor offered into evidence Revels's earlier statements to Al Dyar on April 23, 1993, and to Investigator Reed on September 16, 1993, wherein Revels reaffirmed his April 23 drug buy from Henderson. Defense counsel stated that he had no objection to the introduction of these two statements.

Chief Dyar also testified for the state concerning his observations of Henderson's involvement in the drug sale and, in addition, the micro cassette tape evidencing a drug transaction between Revels and Henderson was played for the jury. Chief Dyar and Officer Briggs both had identified the voices on the tape as being those of Revels and Henderson. Based on this evidence, the jury found Henderson guilty.

Henderson first contends that the state's evidence is insufficient to support the judgment. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Only evidence supporting the verdict will be considered by this court on appeal. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

As set out factually above, Chief Dyar witnessed Henderson's participation in the crack cocaine transaction with Revels. In addition, that sale had been tape recorded, and after Henderson's voice was properly identified on the tape, that tape was introduced to corroborate the other proof showing Henderson's participation in the drug sale. While Henderson questions on appeal the credibility of Chief Dyar, Dyar's credibility was a matter for the jury to weigh and resolve. Henderson also says the tape, standing alone, was too cryptic to show delivery of the drugs beyond a reasonable doubt, and without the written statements Revels made to Chief Dyar on April 23, 1993, and Investigator Reed on September 16, 1993, no sense could be made of what was said on the tape. ¹ He now asserts those two statements were prior inconsistent statements and should not have been given substantive effect. Henderson, however, failed to make that point below, and as mentioned hereinabove, Henderson simply stated he had no objection to the trial court's admitting those two statements into evidence. In sum, the trial court correctly ruled the state's evidence was sufficient to support a conviction.

Henderson next argues that the state's evidence showing Henderson had tampered with a witness some six months after the April 23, 1993 drug sale constituted reversible error because it was impermissible evidence of a separate crime or wrong under Ark.R.Evid. 404(b). He also claims such evidence was inadmissible since it was used to impeach on a collateral matter and also it was utilized as substantive proof, rather than for impeachment purposes.

Other jurisdictions have recognized similar evidence of subsequent crimes or wrongs as probative of consciousness of guilt. Coronado v. State, 654 So.2d 1267 (Fla.Dist.Ct.App.1995) (subornation of a witness); Peoples v. State, 874 S.W.2d 804 (Tex.Ct.App.1994) (threat to a witness); Byrd v. State, 634 A.2d 988 (Md.Ct.Spec.App.1993) (attempted subornation of a witness); see also State v. Broussard, 649 So.2d 726 (La.Ct.App.1994). This court has also permitted the introduction of other crimes or wrongs as relevant to show consciousness of guilt. See Massengale v State, 319 Ark. 743, 894 S.W.2d 594 (1995); citing Spicer v. State, 32 Ark.App. 209, 799 S.W.2d 562 (1990) (refusal to take a breathalyzer test); Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994) (escape); Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993) (attempt to cover up crime); Morris v. State, 21 Ark.App. 228, 731 S.W.2d 230 (1987) (persuasion of witness to change testimony). In the Spicer and Morris cases, the court of appeals specifically discussed consciousness of guilt as an exception to Rule 404(b). Certainly a factfinder is entitled to know whether a defendant attempted to thwart his prosecution by secreting a witness who had implicated him in the charged offense. Thus, we hold that the proof regarding Henderson and his travel with Revels to Louisiana on the day set for trial was relevant circumstantial evidence of his knowledge or consciousness of guilt and was not unfairly prejudicial.

Because we decide that the evidence of witness tampering is relevant and strongly probative of a defendant's knowledge or consciousness of guilt, we must also reject Henderson's argument that such evidence was inadmissible as collateral matter. See Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). And for the same reason, Henderson's claim that the trial court erred in allowing Revels's December 8, 1993 statement to Officer Briggs is also of no import. ² As we have already held, other like evidence was properly introduced to show Henderson's role in assisting Revels's earlier absence from trial, and Revels's December 8 written statement was merely cumulative evidence and not prejudicial. See Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995).

Before leaving this part of Henderson's argument, we mention his brief contention that the trial court erroneously admitted hearsay evidence through Deputy Sheriff Briggs's testimony on what the register at the Livingston Motel in Springhill, Louisiana showed for the dates December 6, 1993, through December 8, 1993....