Pryor v. State

• Citation: 27 S.W.3d 440
• Decision Date: 20 September 2000
• Docket Number: 99-726
• Parties: Jerry PRYOR v. STATE of Arkansas CA CR 99-726 ___ S.W.3d ___ Opinion delivered
• Court: Court of Appeals of Arkansas

Jerry PRYOR v STATE of Arkansas

CA CR 99-726 ___ S.W.3d ___

Opinion delivered September 20, 2000

Court of Appeals of Arkansas

Divisions III, IV, and I

Appeal from Howard Circuit Court; Ted C. Capeheart, Judge; reversed and remanded.

1. Evidence -- offer of proof. -- An offer of proof is not necessary when the substance of the evidence sought to be introduced is apparent from the context within which the questions are asked.

2. Evidence -- failure to make formal proffer not fatal --substance of evidence readily apparent. -- The failure of appellant to make a formal proffer was not fatal where the substance of the evidence was readily apparent from the question posed to the witness, his denial, the subsequent questioning of appellant's alibi witness, and defense counsel's argument to the trial court.

3. Evidence -- argument raised below -- could be addressed on appeal. -- Where appellant argued at trial that he was attempting to elicit evidence of a prior inconsistent statement, a direct reference to Ark. R. Evid. 613(b), the argument was appropriately made to the trial court and could be addressed on appeal.

4. Evidence -- ruling on -- trial court accorded wide discretion. -- A trial court is accorded wide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion.

5. Evidence -- relevant evidence discussed. -- As a general rule, all relevant evidence is admissible; relevant evidence is any evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

6. Witnesses -- credibility always in issue -- proof of bias always relevant. -- A witness's credibility is always in issue, subject to attack by any party; the scope of cross-examination extends to matters of credibility; a matter is not collateral if the evidence is relevant to show bias, knowledge, intent, or interest; proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of awitness's testimony; in other words, matters affecting the credibility of a witness are always relevant.

7. Witnesses -- cross-examination -- admissibility of prior inconsistent statements. -- The cross-examiner should be given wide latitude because cross-examination is the means by which to test the truth of the witness's testimony and the witness's credibility; prior inconsistent statements are admissible because they are not hearsay.

8. Evidence -- statement should have been admitted as prior inconsistent statement -- reversed & remanded for new trial. -- Where the State's case rested on the testimony of two eyewitnesses, one of whom was the victim of the alleged robbery, the victim admitted that he had committed perjury in the suppression hearing, had been drinking on the night of the alleged robbery, and had told an improbable story, and this improbable tale was corroborated by the other eyewitness, the trial court committed reversible error when it refused to allow the defense counsel to impeach the eyewitness, excluding as hearsay testimony a statement purportedly made by the eyewitness that was in direct conflict with his testimoy on direct examination; the statement was admissible pursuant to Ark. R. Evid. 613 as a prior inconsistent statement; the impeachment of the eyewitness's credibility would have further weakened the State's case; exposing the eyewitness's willingness to lie under oath was an indispensable part of appellant's defense, and the trial court erred in excluding the testimony; reversed and remanded for a new trial.

9. Evidence -- exclusion of testimony was not harmless error. -- Because the case rested entirely on the credibility of two witnesses, the State's contention that the exclusion of one eyewitness's testimony could be harmless error was rejected by the appellate court.

10. Appeal & error -- appellant failed to timely object to in-court identification at trial -- issue not preserved for review. -- Where appellant failed to object to the victim's in-court identification until after the State had rested, the issue was not preserved for review; failure to object to an in-court identification prevents the issue from being considered on appeal. [cme]

Alvin Schay, for appellant.

Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

Andree Layton Roaf, Judge.

Jerry Pryor was convicted in a Howard County jury trial of robbery and sentenced as an habitual offender to forty years in the Arkansas Department of Correction. On appeal he argues that the trial court erred in: 1) refusing to allow him to impeach one of the State's witnesses with a prior inconsistent statement; and 2) denying his motion to suppress an in-court identification by the victim. We agree that the trial court erred in refusing to allow evidence of the prior inconsistent statement, and reverse and remand for a new trial.

Pryor does not challenge the sufficiency of the evidence, only two evidentiary rulings. Accordingly, only a brief recitation of the facts is necessary. On the night in question, the victim, Quirimo Morales, was sleeping in his car outside his apartment in Nashville. According to Morales's testimony, he had visited his daughter in Hot Springs earlier that morning until 1:00 a.m., then had visited a cousin in Glenwood, and arrived back at his residence at approximately 5:00 a.m. At about 5:30 a.m., he was awakened from a sound sleep by a punch in the jaw, and a black man, whom he had never seen before but subsequently identified in a police photo line-up as Pryor, was in the process of stealing his wallet. According to Morales, the assailant threw the wallet down when he discovered that it had no money in it and ran away. Jeffrey Hubbard, a neighbor, claimed that he witnessed the robbery and identified Pryor as the robber.

The first point dealt with cross-examination of Hubbard, one of the State's witnesses. On direct, Hubbard admitted that he was convicted of aggravated assault in 1997 and was on probation at the time of the incident. He claimed that he was aware that Morales had parked outside, and when he looked out of his window to check on him, he saw a tall black man standing over him. According to Hubbard, he recognized Pryor, an acquaintance of thirteen or fourteen years, and called out to him. Pryor then turned and ran down the street. Hubbard stated that he did not notice an odor of alcohol about Morales. Hubbard also admitted that he had talked to Robert Willis after the robbery, but denied that he told Willis that Morales was drunk and passed out in the car on the morning of the robbery. Hubbard also admitted that he had a run-in with Pryor about a month before the robbery.

Robert Willis was called by Pryor as an alibi witness. Willis testified that he saw Pryor while he was on the way to work, between 5:00 a.m. and 5:20 a.m. He then was questioned about encountering Hubbard after the robbery. He admitted that he talked to Hubbard. When Pryor's trial counsel attempted to ask the question: "And what did [Hubbard] tell you about the condition that Quirimo Morales was in the morning that . . .." The State objected on hearsay grounds. Pryor argued that the question went to Hubbard's credibility and, among other things, that he was attempting to elicit a prior inconsistent statement. The trial court sustained the objection, stating that it did not fall under one of "twenty-eight" hearsay exceptions.

The second point deals with the suppression of the identification testimony by the victim, Quirimo Morales. In a pretrial hearing on Pryor's motion to suppress the identification, Officer Thomas Free of the Nashville Police Department testified that Jeffrey Hubbard contacted him and told him who had robbed Morales. He subsequently went to Aero Metalcraft where he interviewed Hubbard and asked Hubbard and Morales to look at a photo lineup. He stated that both Hubbard and Morales picked Pryor out of the lineup, and that Hubbard did not influence Morales's selection in any way. The photo array was not abstracted. Morales testified that he picked Pryor out because he recognized him from the robbery. He also stated that he had never seen Pryor before the robbery, but that he had seen him a few days after the robbery when he was with Hubbard, and that Hubbard had pointed Pryor out and said, "Hey that's the guy who robbed you." However, Morales claimed that he recognized Pryor's face from the robbery and only asked Hubbard for Pryor's name. Morales also claimed that he was sleeping in his car because he was comfortable, and he denied being intoxicated. He stated that he was awakened when Pryor punched him in the jaw. By that time, Pryor had already taken his wallet. According to Morales, he viewed Pryor for "three to five minutes," but he later revised downward his estimate to two to three minutes. Morales also denied that it was too dark to see Pryor clearly, and he stated that his efforts to describe his assailant were hampered by his inability to speak English.

At trial, Morales made an in-court identification of Pryor. However, during his testimony, Morales's story changed. He admitted that he had been drinking, but had not admitted it to the police because he already had two DWIs. He also stated that he had seen Pryor two times since the robbery. Pryor did not object to the admission of Morales's identification testimony until his directed verdict motion.

Pryor first argues that the trial court committed reversible error when it refused to allow the defense counsel to impeach a State witness, excluding as hearsay testimony by Robert Willis concerning a statement that Hubbard purportedly made to Willis that Morales was intoxicated at the time of the robbery. Citing Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982), h...