McCoy v. State

• Decision Date: 07 October 2010
• Docket Number: No. CR 10–472.,CR 10–472.
• Citation: 2010 Ark. 373,370 S.W.3d 241
• Parties: James Kenneth McCOY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 373

370 S.W.3d 241

James Kenneth McCOY, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 10–472.

Supreme Court of Arkansas.

Oct. 7, 2010.

Timothy R. Leonard, Hamburg, for appellant.

Dustin McDaniel, Att'y Gen., by: John T. Adams, Ass't Att'y Gen., for appellee.

JIM GUNTER, Justice.

Appellant was convicted of aggravated residential burglary and rape and now appeals his convictions, arguing the circuit court erred in (1) denying his motion to admit other acts regarding prior sexual conduct with the victim; (2) denying his motion for mistrial during voir dire; and (3) allowing improper impeachment evidence during sentencing. We find no error and affirm on all points.

Because appellant is not challenging the sufficiency of the evidence supporting his convictions, only those facts necessary for a basic understanding of the case and those pertinent to the points on appeal will be discussed. In a felony information filed August 31, 2009, appellant was charged with aggravated residential burglary and rape. On January 21, 2010, appellant filed a motion to admit evidence of other acts with the complaining witness under the Arkansas rape-shield statute, codified at Ark.Code Ann. § 16–42–101 (Repl.1999). In response, the State argued that appellant's suggestion of prior sexual contact between himself and the victim was in stark contrast to the statements he initially made to the police, in which he denied any knowledge of the victim, and the State asked that the motion be denied.

On January 26, 2010, immediately prior to trial, a hearing was held to decide the motion. At the hearing, appellant testified that prior to the night of the alleged attack, October 11, 2008, he did not know the victim, Brenda Drake, as “Brenda Drake”; instead, he knew her as “Bren.” He testified that she worked at the Tobacco Outlet and that he frequented both the Tobacco Outlet and the carwash next door. He said that she used to stand in front of the store, smoke a cigarette, and tell him how pretty his car was. He said that they spoke on several occasions. Appellant testified that he had previously had sexual relations with Ms. Drake and that the night of October 11, 2008, was the second time he and Ms. Drake had sex.

On cross-examination, he explained that the first time they had sex involved a similar situation to the second time, namely involving drugs. Specifically, he stated that, both times, he bought some hydrocodone pills for Ms. Drake because she asked him to. He also stated that they had consensual sex at her house both times and that she had invited him to her house.

Brenda Drake testified that she knew appellant only as a customer, that she knew him only by his nickname, Cornbread, and that she knew he drove a white Cadillac because she had seen it at the store. She testified that he had never been to her house prior to October 11, 2008, and that no one called her “Bren” for short.

Officer Don Hollingsworth testified that he had several previous dealings with appellant.He testified that approximately ten months after the incident occurred, a CODIS hit from the State Crime Lab identified appellant as a match for the evidence collected from the victim. The police obtained an arrest warrant based on the CODIS hit, and appellant was arrested and interviewed. In a videotaped statement, appellant denied knowing the victim. Later, after the information was filed, appellant told Officer Hollingsworth that Ms. Drake was just mad because appellant had taken her money. Officer Hollingsworth also testified that Ms. Drake had never identified appellant as her attacker.

After hearing testimony, the court ruled that this was a “classic case” for application of the rape shield statute. The court held that appellant could testify as to his version of what happened on the night of the alleged incident, but the court would not allow testimony on prior acts.

The case then proceeded to trial, and during the voir dire of the jury pool, the prosecutor made the following statement: “Now, in this case, the Defendant has told us that his defense is that this was consensual sex.... Does anybody have a reasonable doubt now because I told you the Defense is saying it was consensual sex?” After the prosecutor posed this question to at least twelve individual prospective jurors, and briefly questioned one of those jurors about a conversation the juror had with the defendant prior to the trial that morning, defense counsel asked to approach the bench and moved for a mistrial. Defense counsel stated: “Your Honor, Mr. Cason [the prosecutor] has just told the jury that the Defendant is going to say it's consensual sex; thus, taking his right to not testify away from him. He now has to testify. And I would move for a mistrial.” The prosecutor denied that he had spoken for the defendant and argued that he had just stated the defense he had been told would be offered. The court made the following ruling: “I sure don't think that's going to prejudice the jury. It may mean—it may even help you. You may not have to call him. He's already said it. No. I don't have a problem with that.” The court then denied the motion for mistrial.

During the State's case-in-chief, Robert Jackson, an emergency ambulance service employee, testified that he was working on October 10, 2008, and responded to a call to the Exxon Station in Warren.¹ He testified that the victim had obvious injuries to her face and that most of the blood on her face appeared to be dried, although there was some wet blood on the top of her head. He testified that she had blood smeared on her arms and her face, that she had scuff marks on her knees, and that she complained of some pain to her side area. Jackson testified that the cuts on the victim's face were fairly deep.

Tiffany Spencer Holland, an employee of the Bradley County Medical Center, testified that the victim was brought to the emergency room and had multiple lacerations on her face. The victim also had lacerations on her hand and the bottoms of her feet, and she told Holland that she had been the victim of a sexual and physical assault in her home. She told Holland that someone had entered her home, pinned her down on the bed, choked her, and raped her. Holland testified that the victim had visible redness on her neck and some abrasions. The victim told Holland that she was unaware if her attacker had used a weapon to cut her, and she refused pain medication, stating that she was numb. Dr. Kerry Pennington, the victim's physician, also testified as to the extent of the victim's injuries and noted that she had sustained a direct-type blow to the head that caused a laceration of the scalp.

Officer Jeremy Chapman testified that he responded to a call to the Exxon Station and found the victim standing outside in a bloody t-shirt. The victim told him that she had been raped in her home, that she had run out of the house and to the Exxon Station, and that the man sounded like he was black. He also testified that there was a report of items stolen from the victim that night, specifically a .22 Ruger handgun and a Motorola cell phone.

Jennifer Beaty, a forensic DNA examiner at the Arkansas State Crime Lab, testified that the DNA taken from vaginal swabs of the victim was consistent with appellant and originated “within all scientific certain[ty]” from appellant.

The victim, Brenda Drake, testified that she recognized appellant as a customer at both Carl's Shoe Store, where she previously worked, and the Tobacco Outlet. She testified that she knew his nickname because, several months previous to the night in question, his car had “burned up” at the Exxon Station, and he had come in the store and was talking about it. She said that, at that time, she asked the cashier who he was. She stated that she knew his nickname, but that she never called him by name and that he had never called her by her name. She testified that on the night of October 11, 2008, she awoke to a swishing sound and then she couldn't breathe because someone was choking her. She testified that she lost consciousness several times. She testified that her assailant raped her and that he called her by name, Brenda. After the attack, she told her assailant that she needed to use the bathroom and then ran from the house and to the Exxon Station for help. She testified that she did not know who did it, but that the man was tall, slim, and sounded black, with a deep, gravelly voice.

Officer Don Hollingsworth testified that he developed appellant as a suspect and questioned him after administering his Miranda rights. The videotape of this interview was then shown to the jury. The officer explained that the interview took place approximately ten months after the alleged rape and that, during the course of the interview, he never showed appellant a picture of the victim.

During the defendant's case-in-chief, appellant testified that he had stated in his initial interview that he did not know Brenda Drake, but that was because he knew her as “Bren” and they had not shown him a picture of her. Appellant testified that on the day in question, he was washing his car at the carwash beside the Tobacco Outlet and Drake was outside smoking. She spoke to him and asked him to “check with her,” meaning to come by her house. He went by her house that night, and she asked if he could get her some pills, specifically Xanax. She gave him $60, so he left and bought $40 worth of Xanax and a $20 rock of crack cocaine for himself. He returned to her house and smoked the crack in the front room while she did her pills in the bedroom. When he went back into the bedroom, she had already started taking off her clothes. He stated that they had consensual sex, and afterward, she asked if he could get her some more pills. She gave him $100 and he left, but he came back and told her that someone had stolen the money, although it was really in his pocket. She grabbed the money out of his front...