Scroggins v. State
| Decision Date | 22 February 1993 |
| Docket Number | No. CR,CR |
| Citation | 848 S.W.2d 400,312 Ark. 106 |
| Parties | George SCROGGINS, Appellant, v. STATE of Arkansas, Appellee. 92-887. |
| Court | Arkansas Supreme Court |
Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.
Herbert Hawkins and the appellant, George Scroggins, were charged with delivery of a controlled substance, methamphetamine, in exchange for money.
After a jury trial, Mr. Scroggins was found guilty and sentenced to forty years in the Department of Correction and fined $50,000. Mr. Hawkins was found not guilty.
In particular, Mr. Scroggins questions the admissibility of an informant's prior recorded testimony and the sufficiency of the evidence. He also presents numerous other assignments of error. Inasmuch as his arguments are meritless, we affirm the trial court.
Although some of the arguments raised by appellant involve admissibility of evidence, we will not consider trial errors until after we have determined sufficiency of the evidence, including that which perhaps should not have been before the jury. Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
Mr. Scroggins argues that the trial court erred in denying his motion for directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Harris v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). In reviewing the denial of a motion for directed verdict, the evidence is viewed in the light most favorable to the appellee, considering only the evidence that tends to support the verdict. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). On appellate review, we need only "ascertain that evidence most favorable to the appellee, and if there is substantial evidence to support the verdict, we affirm." Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). We find the evidence more than sufficient.
David Cains' testimony incriminated Mr. Scroggins. In his testimony, Mr. Cains' discussed the drug deal he made with Mr. Scroggins as well as referring to past transactions of drug sales with him. Evidence presented at trial indicated that prior to Mr. Scroggins' visit to Cains' home, the Drug Task Force searched the home for drugs to ensure that the house was clear of drugs and remained outside watching the house as Mr. Scroggins arrived. Shortly after Mr. Scroggins delivered the drugs, Drug Task Force members entered Mr. Cains' home and secured the drugs allegedly delivered by Mr. Scroggins. The methamphetamines, according to a task force member's testimony, were discovered underneath Mr. Cains' pillow. A chemist testified that he tested the drugs and found them to be 91.9 grams of methamphetamine.
Determining credibility of witnesses is within a jury's domain. See Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991). Obviously, here, the jury believed the prosecution's witnesses, and their testimony is more than sufficient to support the jury's verdict.
Mr. Cains, a confidential informant on behalf of the State, gave testimony during a suppression hearing in this case and was subject to cross-examination by Scroggins' attorney. Cains was murdered prior to trial. After a hearing to determine the admissibility of his testimony, the trial court determined that because Cains was subject to a "well-developed" cross-examination, his testimony was admissible at trial. Over the defendant's objections, a tape and its transcription of Mr. Cains' testimony were submitted to the jury.
On the tape, Mr. Cains testified that he had been arrested on September 29, 1990 for delivery of a controlled substance and felon in possession of a firearm. When his house was searched the day of his arrest, police discovered 2.5 ounces of amphetamine and 5 ounces of marijuana. Cains claimed that he obtained the amphetamine from Mr. Scroggins approximately three days earlier.
As a result of his arrest, Cains agreed to be a confidential informant and set up a meeting with Mr. Scroggins to purchase methamphetamines. That same day Mr. Cains telephoned Scroggins to buy "motorcycle parts"--their code for methamphetamine. About eleven o'clock that evening, Mr. Scroggins and Mr. Hawkins showed up at Mr. Cains' house. Scroggins gave Cains the drugs and told him that he could pay later.
The test for determining whether hearsay evidence should be admitted when the declarant is unavailable is provided in A.R.E. Rule 804(b)(1) which states:
Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(Emphasis added.)
The question of admissibility of an unavailable witness' testimony was fully addressed in Scott and Johnson v. State, 272 Ark. 88, 612 S.W.2d 110 (1981). In deciding that the testimony from a preliminary hearing was inadmissible, this court stated:
There has traditionally been an exception to the right of confrontation where a witness who testified at a prior trial is unavailable at a later judicial proceeding. State evidentiary rules can fall within this exception if two tests are met. First, the witness must be unavailable.... Next, the evidence must be reliable ... [A]dmission depends upon the circumstances surrounding the hearing. In the case of a preliminary hearing admission depends upon what kind of hearing is involved and whether it is a "full fledged" hearing or a limited one.
(Emphasis added; citations omitted.) Scott and Johnson, 272 Ark. 88, 92-93, 612 S.W.2d 110.
By applying the Scott and Johnson analysis to the facts at hand, we hold that Cains' testimony was clearly admissible. Obviously, Cains was unavailable, and the circumstances of the suppression hearing insured the reliability of his testimony which was given under oath and before a judicial tribunal. Counsel for Mr. Scroggins was present and cross-examined Mr. Cains extensively.
The suppression hearing was held upon a motion by the defense to suppress statements taped during phone conversations between the confidential informant, David Cains, and Mr. Scroggins.
At the suppression hearing, Mr. Cains testified as to his arrest and subsequent agreement with authorities to serve as a confidential informant. He discussed how he and the appellant used the term "motorcycle parts" to describe methamphetamines and how Scroggins and co-defendant, Hawkins, had arrived at his house and engaged in a drug deal.
Mr. Scroggins' counsel was able to cross-examine Mr. Cains thoroughly. Although the purpose of the suppression hearing was to determine whether taped phone conversations between Cains and Scroggins should be suppressed, counsel for Mr. Scroggins went far beyond this issue in his cross examination. It is obvious that defense counsel's primary purpose in cross-examination was to impeach Mr. Cains, and for eight full pages of hearing transcript, he did just that. We agree with the trial court's finding that the cross-examination was "well-developed." For example:
Q. Have you ever been arrested on any other charges--not convicted, but arrested other than what you've told today?
A. On any felony charges?
Q. Any charges.
A. A couple of speeding tickets.
Q. Anything else?
A. Not that I can remember.
Q. Have you committed any felonies and not gotten caught that you haven't been arrested for?
A. No, sir, not to my knowledge.
. . . . .
Q. Okay. Now, you said that you had called up George and told him that you had a man that had large amounts of money who wanted to buy some parts. Is that correct?
A. Yes, sir.
Q. When did this conversation take place?
A. On the afternoon of September 29th.
Q. After you were--you were arrested?
A. Yes, sir.
Q. But, we don't have that on the tape, do we?
A. You don't have what on the tape?
Q. The fact of the--when you said you had a man that had a large amount of money that wanted to sell-finance some drugs.
A. I believe that's in the--in the trans--I haven't heard the tape, but in the transcripts there was--the conversation that I had a man with some money that wanted to purchase some amphetamine.
Q. How much money were you talking about? What did you tell him?
A. I don't believe we discussed any particular--any particular amount.
Q. All right. And, this two and a half ounces of methamphetamine, how much is that worth?
A. That's an arbitrary amount actually. Some people sell it for more than other people sell it for.
Q. How much were you planning on paying for it?
A. For what he was going to bring?
Q. Uh, huh.
A. The four ounces that he was going to deliver?
Q. Uh, huh.
A. Six thousand dollars.
Q. That's how much that you--that you were planning on paying it?
A. That's what I was planning on paying for it.
Q. How did you know that was the amount of money you were going to pay for it?
A. Because that's what we--our previous dealings had been.
Q. How many times have you bought drugs from him in the past?
A. (There is no response.)
Q. Do you have a problem with the question?
A. (The witness indicates affirmatively.)
Q. How many times have you bought drugs in the past?
A. Uh, a couple of occasions.
Q. Two occasions?
A. Two occasions.
Q. All right. And the occasion before this one we are talking about, when was it?
A. Two or three days--approximately two or three days before that.
Q. And, how much did you buy at that time?
A. I didn't buy any of it.
Q. Well, you said you bought some from him on two or three different...
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