Hudson v. State

• Decision Date: 11 February 2004
• Docket Number: No. CA CR 02-1283.,CA CR 02-1283.
• Citation: 85 Ark. App. 85,146 S.W.3d 380
• Parties: Allen Wayne HUDSON v. STATE of Arkansas.
• Court: Arkansas Court of Appeals

146 S.W.3d 380

85 Ark. App. 85

Allen Wayne HUDSON v. STATE of Arkansas.

No. CA CR 02-1283.

Court of Appeals of Arkansas, Division III.

February 11, 2004.

Appeal from the Circuit Court, Carroll County, Alan D. Epley, J Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, for appellee.

ANDREE LAYTON ROAF, Judge.

Appellant Allen Wayne Hudson was convicted of first-degree murder and aggravated robbery, for which he was sentenced as an habitual offender to respective terms of imprisonment of forty-two years and twenty years, to be served consecutively. On appeal, Hudson argues that the trial court erred in: (1) erroneously admitting into evidence a prior consistent statement of a witness pursuant to Ark. R. Evid. 801(d)(1)(ii); (2) admitting evidence of other crimes and bad acts pursuant to Ark. R. Evid. 404(b); (3) sentencing him for both first-degree murder and aggravated robbery when both offenses were committed by the same act and one was an element of the other, which was double jeopardy under the state and federal Constitutions; (4) failing to perform its gate-keeping function in allowing expert testimony on blood-spatter pattern analysis because such evidence is not reliable or relevant scientific evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We affirm on all points.

Hudson was charged as an accomplice to capital murder and aggravated robbery in connection with the death of Grace Vowell, a ninety-three-year-old resident of Green Forest, Arkansas. Vowell was bludgeoned to death while in her bed with what was later determined to be a claw hammer. Three other defendants, Ronald Garner, Damon Fuson, and Sony Weathereal, were also charged as accomplices to the aggravated robbery and murder. Hudson does not challenge the sufficiency of the evidence to support the convictions; thus, a detailed recitation of the facts is unnecessary.

Hudson, the three other defendants, and Donna Clark went to the victim's home on the night of December 10, 1999, with the purpose of getting money to buy drugs. While Clark remained in their vehicle to act as a lookout, Hudson and the other three entered the house where the robbery and murder were committed. Weathereal and Clark testified about Hudson's involvement in the crimes, and Weathereal further testified that he saw Hudson wash his hands and burn his shirt under a bridge afterwards. Several of the State's witnesses, including Rachel Popeet and Delsey Webber, testified about statements Hudson made to them after the murder in which he acknowledged his involvement.

After all of the evidence was presented, the trial court instructed the jury that Clark and Weathereal were accomplices to the robbery and murder by their own testimony and that their testimony must be corroborated by other evidence. After deliberation, the jury convicted Hudson of the lesser-included offense of first-degree murder, as well as aggravated robbery. Hudson was sentenced to twenty years' imprisonment for the aggravated robbery conviction and forty-two years' imprisonment for the first-degree murder conviction. The trial court ordered that the sentences be served consecutively.

Hudson first argues that, because the defense' cross-examination of Delsey Webber did not imply that she had changed her initial statement to the police, the trial court erroneously admitted into evidence her two prior statements pursuant to Ark. R. Evid. 801(d)(1)(ii). This issue arose during the defense's cross-examination of Webber, when she was questioned extensively about a prior videotaped conversation with Officer Brad Handley of the Green Forest Police Department on March 26, 2001, the same day that she was interviewed by the prosecutor and received a subpoena to testify in the case. The conversation came about because Webber, who was nervous about testifying, called Handley after receiving the subpoena and asked that he meet her.

After Webber confirmed during direct examination that no one had told her what to say in her testimony, defense counsel showed her the transcript of the March 26 conversation and questioned her as to whether Handley had advised her to testify that Hudson had "wanted to buy some dope," in response to anticipated questioning. Webber was also confronted with the March 26 statement to impeach her testimony that she had not tried to commit suicide or had not told anyone that she was the star witness in the case in order to be the center of attention. She was also questioned about a portion of her recorded conversation with Handley where she stated that the prosecutor had told her to look at him before answering any questions at trial and that he would signal her whether to answer or not. In addition, Webber was questioned as to where she was currently living and as to who was paying the bill. Webber replied that she was staying in a motel and that Carroll County was paying for it, although probably just through that night.

On re-direct, the prosecutor sought to introduce Webber's March 7 written statement to police, in which she first discussed her conversation with Hudson and what he had told her regarding Vowell's murder. Defense counsel objected, and the prosecutor replied that it was for the purpose of rebutting an express accusation that her testimony at trial was recently fabricated. The trial court overruled the objection, agreeing that the defense had made express or implied charges of recent fabrication or improper influence or motive in connection with Webber's trial testimony, especially considering the inquiry into Webber's current living conditions. The March 7 statement was then admitted by the trial court, with a limiting instruction to the jury that the statement was not to be considered for the truth of the matter asserted, but only to show that it was consistent with Webber's testimony at the trial.

After further re-direct examination on the March 26 conversation between Webber and Handley, where she attempted to explain what she had meant when she had stated that the prosecutor had told her to look at him before answering any questions at trial, the prosecutor sought to introduce the tape recording of this conversation. The prosecutor argued that the improper motive the defense had tried to establish was from this conversation and that the jury needed to hear the entire tape to understand the context in which she made that statement. Although he initially suggested that the entire tape be played, defense counsel objected when the prosecutor sought to introduce it. The trial court allowed its introduction, stating that the defense had placed into issue what Webber had told Handley in relation to her anticipated testimony.

Hudson now argues on appeal that the trial court erred in allowing both the March 7 and 26 prior statements of Webber into evidence under Ark. R. Evid. 801(d)(1)(ii). The general rule is that a prior consistent statement of a witness is not admissible to corroborate or sustain his testimony given in court, as to allow such statements would be self-serving and cumulative. Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999). However, according to Ark. R. Evid. 801(d)(1)(ii), a prior statement by a witness is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is "consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive." See also Frazier v. State, 323 Ark. 350, 915 S.W.2d 691 (1996). "The word `recent,' describing the fabrication, is merely a relative term, meaning that the challenged testimony was supposedly fabricated to meet the exigencies of the case." Jones v. State, 318 Ark. 704, 724, 889 S.W.2d 706, 716 (1994). Thus, this principle has no application when a witness had the same motive for fabrication when the statement was made as he had when he testified in the case. Id.

Hudson argues that he did not assert in his cross-examination that Webber had changed her testimony from her earlier statements to police, but was merely impeaching her credibility in general. Hudson asserts that he only referred briefly to the prior statements in question and that the trial court's admission of these statements were only used to bolster Webber's testimony at trial, which is not permitted under Rule 801(d)(1)(ii). As the State argues, contrary to Hudson's assertions, an examination of the record demonstrates that the cross-examination of Webber was primarily centered on the March 26 statement. Not only did the defense impeach Webber's testimony at trial in several instances by referring to the transcript of this March 26 conversation, but also expressly and impliedly suggested several different motives and influences on Webber's trial testimony, such as that Officer Handley told her what to say at trial during the March 26 conversation, that she was the "star witness" and would make things up and lie to be the center of attention, and that she was being provided room and board in exchange for her testimony.

These attempts to portray that Webber had recently fabricated her testimony and that there were improper influences and motives on her trial testimony allowed the prosecution to properly admit her prior consistent statements under Rule 801(d)(1)(ii). These suggestions of improper influence and fabrication occurred subsequent to Webber's March 7 statement to police, which was given before she learned that she would be subpoenaed to testify in Hudson's case. Thus, this statement was properly admitted into evidence.

The tape recording of the March 26 statement was also properly admitted pursuant to this rule. In Frazier v. State, supra, the trial court allowed a prior consistent statement by a witness to be...