Henderson v. State

• Decision Date: 14 January 1974
• Docket Number: No. CR,CR
• Citation: 503 S.W.2d 889,255 Ark. 870
• Parties: Jess HENDERSON, Appellant, v. STATE of Arkansas, Appellee. 73--129.
• Court: Arkansas Supreme Court

Page 889

503 S.W.2d 889

255 Ark. 870

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

No. CR 73--129.

Supreme Court of Arkansas.

Jan. 14, 1974.

Charles W. Atkinson, Fayetteville, for appellant.

Jim Guy Tucker, Atty. Gen., by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant Jess Henderson relies upon five points for reversal of his conviction of the offense of delivery of a controlled substance, heroin. They are:

I. The Court erred in refusing to quash the indictment.

II. The Court erred in refusing to grant a mistrial.

III. The Court erred in refusing to grant a directed verdict.

IV. The Court erred in refusing to give defendant's requested Instructions No. 1 and 3.

V. The Court erred in refusing to grant a new trial.

We find no merit in any of them.

I. Appellant was indicted by a grand jury. He was charged with unlawfully delivering heroin on May 11, 1972, in violation of Act 67 of 1972 and Act 590 of 1971. The name of the person to whom the delivery was made was not alleged in the indictment. The indictment did not specifically allege that appellant was not a person authorized to deliver heroin. His motion to quash the indictment, which included these and other grounds not argued here, was denied. The trial court, however, treated his pleading as a motion for a bill of particulars. The state filed a bill of particulars, stating that the delivery was made to Janice Sue Smith. No further objection to the indictment was made by appellant prior to trial. The action of the trial court was proper under Ark.Stat.Ann. § 43--1024 (Repl.1964) which permits the prosecuting attorney to amend an indictment or file a bill of particulars. The bill did not, however, state that Henderson was unauthorized to deliver such drugs. There was no error in this respect. It was only necessary that the indictment name the offense and the party charged. Ark.Stat.Ann. §§ 43--1006, 43--1008 (Repl.1964). It is not necessary that the acts constituting the offense be stated unless the offense could not be charged without doing so. Estes v. State, 246 Ark. 1145, 442 S.W.2d 221. The act which appellant was accused of violating contains a section, now appearing in Ark.Stat.Ann. § 82--2630 (Supp.1971), providing that it is unnecessary for the state to negate any exemption or exception in the act in any indictment and that the burden of proof of any exemption or exception is upon the person alleging it. This section also contains a provision that in the absence of proof that a person is the duly authorized holder of an appropriate registration, he is presumed not to be, and that the burden of proof is upon that person to rebut the presumption. The act under which appellant was charged provides that '(e)xcept as authorized by this Act, it shall be unlawful for any person to deliver, * * * a controlled substance.' There was no error in this regard.

II. Appellant's contention that a mistrial should have been granted is based upon multiple actions of the trial judge. After the jury was selected but before any evidence had been presented, appellant, out of the hearing of the jury, registered an objection to the introduction of any evidence pertaining to any crime other than that charged in the indictment, and, specifically, relating to the death of Janice Sue Smith, to whom the state contended the heroin was delivered. The trial judge refused to restrict the prosecuting attorney at that time, but admonished him not to inject this fact unless necessary. During the opening statement by the prosecuting attorney, appellant's objection to a statement to the effect 'that we are dealing with human lives' was overruled. The first witness called was Dr. Mae Nettleship, who, in responding to a query whether she had done a drug or blood analysis on Janice Sue Smith, stated that she had done an autopsy. Appellant's attorney promptly objected, asked that the jury be admonished not to consider this statement and warned that, upon repetition, he would request a mistrial. The court did not specifically rule on the objection or admonish the jury. Later, when asked if it were possible for her from her observations to make a determination as to the time of injection of heroin, this witness stated she and Dr. Vinzant worked together, and he always made the observations and conclusions in relation to the time of death. When appellant objected, the circuit judge admonished the jury to disregard that part of the testimony relating to death. No motion for the declaration of a mistrial was made.

Thereafter, the prosecuting attorney was permitted to question Dwight Wells, over appellant's objection, about his having purchased heroin from appellant on the date the offense was alleged to have occurred. When the prosecuting attorney repeated a question to Wells, a witness called by the state, as to whether he saw appellant give any drugs to Janice sue Smith, appellant's attorney objected on the basis that this was an attempt to impeach the state's witness. The prosecuting attorney then asked and received permission to treat Wells as a hostile witness, claiming surprise on the basis of a pretrial statement made by him to the prosecuting attorney. The court granted this permission and allowed the prosecuting attorney to ask leading questions, all over appellant's objection. After a few questions with reference to testimony given the prosecuting attorney by Wells some time before the trial, appellant's attorney objected and moved for a mistrial on the basis of these questions, together with the circuit judge's remarks in overruling appellant's objection that the witness was not hostile, that it was sufficient that the prosecuting attorney was taken by surprise, that the witness was a hostile witness and that the prosecuting attorney could ask leading questions. After the witness had been extensively examined and cross-examined about the statement, the prosecuting attorney asked the witness whether the content of the statement or his testimony was the truth. When the court overruled appellant's objection that the question invaded the province of the jury as the judges of the credibility of the witness, appellant moved for a mistrial on the basis of the court's remarks.

Although appellant seems to take the position that he made numerous motions for a mistrial, we find only two occasions when such a motion was made, and they related more particularly to remarks by the circuit judge. There was no error in the court's holding that there was a basis for the claim of surprise, so it was proper for the court to permit the prosecuting attorney to cross-examine Wells about his prior inconsistent statement. Ark.Stat.Ann. § 28--706 (Repl.1962); Fisher v. State, 241 Ark. 545, 408 S.W.2d 894; Shands v. State, 118 Ark. 460, 177 S.W. 18. We find no abuse of discretion in permitting the cross-examination or denying the motions for mistrial.

III. Appellant contends there is no evidence that he delivered heroin to Janice Sue Smith. This question must be approached with the understanding that the delivery may be shown by circumstantial, as well as direct, evidence. See Miller v. City of Helena, 224 Ark. 1016, 277 S.W.2d 841; Dixon v. State, 67 Ark. 495, 55 S.W. 850; Wimberly v. State, 214 Ark. 930, 218 S.W.2d 730. As we view the matter, appellant's principal complaint is that there is no direct evidence that he made the delivery. But we find the circumstantial evidence to rise above that we have held to be insufficient in other cases because it left the jury only to speculation and conjecture in determining whether any other hypothesis except the defendant's guilt was reasonable. See, e.g., Jones v. State, 246 Ark. 1057, 441 S.W.2d 458.

In spite of the fact that Dwight Wells, the principal witness for the state, was obviously reluctant to testify in the case, and there were conflicts and inconsistencies in his testimony, we cannot say that it was not substantial. Wells, a resident of Huntsville, said he had lived with Janice Sue Smith off and on for four or five years, and was living with her on May 11, 1972, the date of the alleged offense. There are many facts disclosed by Wells' testimony which are undisputed and as to which there is no question about the inferences to be drawn. He testified to the following before being granted immunity for prosecution:

He had been a user of whatever drug was available including heroin. The Smith girl also used drugs including heroin. He had known henderson for a couple of years, and had purchased drugs from him on several occasions. On May 11, 1972, he and Janice Sue came to Fayetteville in Wells' car to get some drugs.

When asked to whom he went to obtain the drugs, Wells responded that he'd rather not ansewr the question. The prosecuting attorney stated he would like to grant the witness immunity from prosecution, and appellant objected. The court directed the witness to answer, advising him that testimony he gave would not be used against him in a criminal prosecution, except for perjury. The witness still seemed reluctant to answer the prosecuting attorney's questions, but said that he saw Janice get her drugs. When asked if she got them from Henderson, Wells said he'd rather not say and then denied knowledge of the identity of the person from whom she got her drugs. He stated that she saw Henderson, that he (Wells) was present and received an affirmative answer to his inquiry whether Henderson had any drugs, and that Henderson gave Wells some heroin wrapped in a little package at the time Janice Sue was in another room. He then related substantially the following:

He and Janice Sue arrived at Henderson's apartment on Cleveland Street about dark, but found him at a house next door. They then went with Henderson to his apartment. Wells took with him the drgus given him by Henderson, which were worth $10 and wrapped in a little package. Janice Sue did not have any drugs at that...