Henderson v. State, CR

• Decision Date: 13 June 1983
• Docket Number: No. CR,CR
• Parties: Mark Christian HENDERSON, Appellant, v. STATE of Arkansas, Appellee. 82-155.
• Court: Arkansas Supreme Court

Page 16

652 S.W.2d 16

279 Ark. 435

Mark Christian HENDERSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 82-155.

Supreme Court of Arkansas.

June 13, 1983.

Philip M. Clay, Glenwood, and James C. Graves, Nashville, for appellant.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Mark Christian Henderson, the appellant, was convicted of the January 30, 1982, capital felony murders of Steve Francis and Diane Francis in Arkadelphia. He was sentenced to life imprisonment without parole. We reverse and remand for a new trial. Jurisdiction is in this Court pursuant to Rule 29(1)(b).

We first address appellant's meritorious argument that the trial court erroneously limited cross-examination of the accomplice.

Two people were murdered during the course of a robbery. The appellant, Mark Henderson, was charged with both capital felony murders. He was subjected to the penalties of death or life imprisonment without parole. Ark.Stat.Ann. § 41-1501 (Repl.1977). In contrast, Jeffrey A. Brown, an admitted accomplice, was allowed to plead guilty to murder in the first degree which carries a penalty of not less than ten nor more than forty years, or life with the possibility of parole. Ark.Stat.Ann. §§ 41-901 and 41-1502 (Supp.1981). The admitted accomplice, who had been allowed to plead guilty to the lesser charge, took the stand during the State's case-in-chief and testified that the appellant was the one who actually murdered the victims. The defense attorney, in cross-examining the accomplice, asked, "What kind of a deal are you getting for yourself, Mr. Brown?" The prosecuting attorney objected and the court sustained the objection.

The ruling was erroneous. We have consistently taken the view that full cross-examination should be allowed in order to show bias. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). This is especially true in the case of an accomplice since his testimony is the direct evidentiary link between the defendant and the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1981). In Klimas v. State, 259 Ark. 301, 305-06, 534 S.W.2d 202, 205 (1976), we stated:

It is generally permissible for a defendant to show by cross-examination anything bearing on the possible bias of the testimony of a material witness. Bethel v. State, 162 Ark. 76, 257 S.W. 740; Ringer v. State, 74 Ark. 262, 85 S.W. 410; Annot. 62 A.L.R.2d 611 (1958). This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities. Stone v. State, [162 Ark. 154, 258 S.W. 116]; Boyd v. State, [215 Ark. 156, 219 S.W.2d 623]. See also Campbell v. State, 169 Ark. 286, 273 S.W. 1035; Alford v. U.S., [282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1930) ]. The test is the expectation of the witness and not the actuality of a promise. State v. Little, [87 Ariz. 295, 350 P.2d 756]; Spaeth v. United States, 232 F.2d 776, 62 A.L.R.2d 606 (6 Cir., 1956).

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Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Indeed, the State does not contest the argument that the ruling was erroneous. Instead, it contends that no proffer was made and thus no reversal should be had on this point. Ark.Unif. Rules of Evid. 103(a) and 103(a)(2) provide:

Rule 103. Rulings on evidence.--(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

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(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Normally, we will not consider a point involving the exclusion of evidence when there was no proffer of excluded evidence because we have no way of knowing the substance of the evidence. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). However, there is no need for a proffer in either of two situations. First, there is no need for a proffer where the substance of the offer was apparent from the context within which the questions were asked. Rule 103(a)(2). Here, the distinction between charges of capital felony murder with a possible sentence of death and murder in the first degree with a maximum sentence of forty years or life with the possibility of parole is obvious to one trained in law. A jury is not trained in criminal law and might not understand that the accomplice may well have taken a desperate option and prevented risking his own life by blaming the appellant. This is the very type of evidence of bias which the defendant is entitled to present for a jury to weigh. The substance of the answer to the question objected to is apparent to us. Second, in this situation it is normally only the prosecutor and the accomplice who know what expectation, if any, the state is holding out for the accomplice. The defendant and his attorney do not usually have this information. Rule 103(a)(2) does not contemplate a proffer of evidence when the information is unavailable to the cross-examiner. The exclusion of evidence of possible bias or possible prejudice by the accomplice is sufficient. A proffer was not necessary.

The error is prejudicial and requires that we reverse the case. However, we must also address appellant's next argument in great detail because, he argues, it requires not only reversal but also dismissal. That issue is whether there was sufficient corroboration, independent of the testimony of the admitted accomplice, to sustain the conviction.

The testimony of an accomplice must be corroborated by other independent evidence which tends to connect the defendant with the commission of the crime. It is not sufficient to prove that the crime was committed and the circumstances of the crime. Ark.Stat.Ann. § 43-2116 (Repl.1977); Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978). The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980), citing Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960); Anderson v. State, 256 Ark. 912, 511 S.W.2d 151 (1974). Corroboration must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice's testimony. Olles v. State, 260 Ark. 571, 573, 542 S.W.2d 755, 758 (1976), citing Yates v. State, 182 Ark. 179, 31 S.W.2d 295 (1930). In addition to being substantive, the corroborating evidence must be substantial. Olles, 260 Ark. at 573, 542 S.W.2d at 757. Substantial evidence is stronger evidence than that which merely raises a suspicion of guilt. It is evidence which tends to connect the accused with the commission of the offense charged. However, it is something less than that evidence necessary in and of itself, to sustain a conviction. Olles, 260 Ark. at 573, 542 S.W.2d at 757-58; Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). The corroborating evidence may be circumstantial, but it must be of a material nature and legitimately tend to connect the accused with the commission of the crime. Pollard, 264 Ark. at 756, 574 S.W.2d at 658, citing Roath v. State, 185 Ark. 1039, 50 S.W.2d 985 (1932). Corroboration may be furnished by the acts, conduct, declarations or testimony of the accused. Olles, 260 Ark. at 574, 542 S.W.2d at 758. False statements to the police and flight by an accused may constitute corroborating evidence. Bly, 267 Ark. at 619-20, 593 S.W.2d at 454. On the other hand, an explanation by the accused of suspicious circumstances may be considered in determining whether the corroborating evidence is sufficient. Olles, 260 Ark. at 575, 542 S.W.2d at 759, citing King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973).

To test the sufficiency of the corroborating evidence in this case we eliminate the testimony of Jeffrey Brown, the accomplice, and determine whether the testimony of the other witnesses establishes the crime and tends to connect the accused with the commission of that crime.

Brian Francis, the older brother of victim Steve Francis, testified that Steve was a regular seller and consignor of marijuana. Often he would consign marijuana to someone in order for that person to resell it and pay him. Brian Francis testified that on the evening of January 30, 1982, Steve Francis had between an ounce and two and one-half ounces of marijuana in a brown bag. Steve also had $90 in his billfold. Robert Cooper and Mark Batson, both Arkadelphia policemen, testified that they found the victims Steve Francis and Diane Francis in their Chevrolet automobile on Hunter Street in Arkadelphia shortly after 5:00 a.m. on January 31. Both were dead. Dr. Fahmy A. Malak, the State Medical Examiner, testified that both victims died between 10:00 and 11:00 p.m. on January 30, 1982 from contact gunshot wounds to their heads. He removed the bullet fragments and supplied them to the State Crime Laboratory.

Ralph Turbyfill, the Chief Latent Fingerprint Expert with the State Crime Laboratory examined the victims' Chevrolet automobile but found only the victims' fingerprints. He found mud on the back seat floorboard which indicated that at some time someone entered the back seat from the passenger side and exited on the driver's side. He also found the brown bag in which the victim usually kept marijuana. It contained one plastic bag containing marijuana and a number of unused baggies.

Jack Ursery of the Arkansas State Police searched...