State v. Brown

• Decision Date: 16 April 2009
• Docket Number: No. CR 08-826.,CR 08-826.
• Citation: 2009 Ark. 202,307 SW 3d 587
• Parties: STATE of Arkansas, Appellant, v. John H. BROWN, Appellee.
• Court: Arkansas Supreme Court

307 S.W.3d 587

2009 Ark. 202

STATE of Arkansas, Appellant, v. John H. BROWN, Appellee.

No. CR 08-826.

Supreme Court of Arkansas.

April 16, 2009.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellant.

Law Offices of John Wesley Hall, Jr., by: Patrick J. Benca, Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

The State of Arkansas appeals an order of the Saline County Circuit Court granting postconviction relief to Appellee John H. Brown in accordance with Arkansas Rule of Criminal Procedure 37. On appeal, the State argues that the circuit court erred in concluding that Brown had demonstrated the prejudice required for postconviction relief pursuant to Rule 37 and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because postconviction proceedings under Rule 37 are civil in nature, the State is entitled to appeal from the circuit court's grant of Brown's Rule 37 petition. See, e.g., State v. Dillard, 338 Ark. 571, 573, 998 S.W.2d 750, 751-52 (1999). Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(7) (2008). We reverse and remand to the circuit court for further findings.

Brown was charged by information filed November 17, 2003, with one count of sexual assault in the first degree. The information listed the date of the alleged offense as "on or about" July 15, 2003. The information was amended on August 9, 2004, to reflect that the alleged offense occurred "on or about" the time period between July 1, 2003, and July 15, 2003. According to the affidavit for warrant of arrest filed with the original information, Brown was accused of digitally penetrating the vagina of his then fifteen-year-old niece, H.M., who was under his temporary care at the time. The affidavit stated that H.M.'s parents reported the incident to the Saline County Sheriff's Office on August 4, 2003.

Brown was tried before a jury on September 1 and 2, 2004. At the trial, H.M. testified that the digital penetration occurred on July 8, 2003, at precisely 3:56 a.m. She further testified that she left Brown's residence and stayed at her grandparents' home on July 9, 2003, and that her parents picked her up from there on July 11, 2003. On cross-examination, Brown's trial counsel pointed out that the affidavit for warrant of arrest, prepared by Detective Aaron Washington of the Saline County Sheriff's Office and based upon H.M.'s statement, stated that the date of the digital penetration was July 15, 2003. H.M. testified that she had told prosecutors when the alleged offense occurred. She also stated that her mother had helped her remember and "figure out exactly how our summer went." With regard to what she had told the investigating officers at the time of her statement, H.M. stated that she informed them that she could point out the date on a calendar and that she knew that it had occurred on a Tuesday, but that the officers did not ask her to point to the date on a calendar.

As Brown's trial counsel elicited testimony from H.M. regarding when she left Arkansas and moved to Virginia with her family, H.M. stated, "I don't remember any of this. I'd have to look at a calendar, the calendar that my mom wrote down all her notes from." H.M. said that the calendar was in the prosecutor's possession. At a bench conference immediately thereafter, Brown's counsel informed the circuit court that the calendar had not been provided to the defense during discovery. The prosecutor stated that the calendar was made in preparation for trial, that it contained notations written by the prosecutors, and that it was the State's work product. Brown's counsel disagreed and moved for a mistrial on the basis that the calendar had not been provided in accordance with Arkansas Rule of Criminal Procedure 17.1; the court denied this motion. The court also declined to give Brown's trial counsel an opportunity to review the calendar. On redirect examination, H.M. stated that her mother had helped her construct the calendar and that they "sat down for about a week to figure out exactly how the whole thing went on the calendar." H.M.'s mother testified that she had constructed the calendar but that she "did not sit down with H.M. and go over anything."

Brown was convicted and sentenced to a term of twenty-five years' imprisonment. Following the filing of the judgment and commitment order, Brown filed a motion for new trial based in part on the prosecution's failure to provide the calendar. He argued that the date of the alleged sexual assault was critical to his defense and that the calendar could have contained exculpatory material, making it discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This motion was deemed denied. Brown filed a timely notice of appeal of his conviction.

The Arkansas Court of Appeals reversed and remanded for a new trial, holding that the circuit court erred in ruling that the calendar was work product of the prosecution. Brown v. State, 95 Ark.App. 348, 237 S.W.3d 95 (2006). The court of appeals opinion noted that the State had conceded at oral argument that the calendar was not work product; however, the court nevertheless chose to fully examine the issue. Id. at 357 n. 1, 237 S.W.3d at 101 n.1. The court held that the calendar did not fall under the work-product exception of Arkansas Rule of Criminal Procedure 17.5(a), which exempts disclosure of "research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of his staff or other state agents." Id. at 359, 237 S.W.3d at 102. The court pointed to H.M.'s testimony regarding her mother's help in constructing the calendar, which demonstrated that the calendar was "a statement of the witness's belief about dates," rather than a document containing the prosecutors' beliefs. Id. The court also held that the calendar was discoverable under Arkansas Rule of Criminal Procedure 17.1 as exculpatory information regarding the offense charged. Id. at 359, 237 S.W.3d at 103. Specifically, the court noted that the prosecution's failure to provide the calendar precluded Brown from establishing a time line and arguing that the State's key witnesses were not credible, as he was not permitted to see how dates on the calendar corresponded with dates that he was hospitalized or that H.M.'s family was out of state. Id.

The court of appeals rejected the State's argument that the absence of the calendar in the record prevented a meaningful review of the circuit court's ruling. Id. at 359-60, 237 S.W.3d at 103. Brown's failure to proffer the calendar for the record was blamed on the State's failure to provide it, the circuit court's erroneous work-product ruling, and the circuit court's refusal to allow Brown to examine the calendar during a recess. Id.

This court granted the State's petition for review and affirmed Brown's conviction. Brown v. State, 368 Ark. 344, 246 S.W.3d 414 (2007). We held that a review of the circuit court's work-product ruling was impossible without the availability of the calendar:

A careful examination of the testimony of H.M. and her mother R.M. raises serious concerns about whether the calendar actually contained work product. H.M. testified that she and her mother created the calendar. R.M. testified that she created the calendar, and that Bush did not participate in its creation. However, Bush told the circuit court that members of the prosecuting attorney's office were on the calendar notes. We cannot reach the issue of whether the calendar contained work product because Brown did not proffer the calendar and make it part of the record. Where evidence is excluded by the circuit court, the party challenging that decision must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. The substance of the evidence in this case is not apparent. The evidence concerning what is written on the calendar is conflicting; however, this court cannot review a document that is not before it.

Id. at 347, 246 S.W.3d at 416 (internal citations omitted).¹

Brown filed a timely petition for postconviction relief under Rule 37.1, arguing in part that his trial counsel's failure to proffer the calendar for the record constituted ineffective assistance of counsel. At the hearing on the petition, Brown presented the testimony of Jim Robinson, a friend and former employee, in order to establish that he had an alibi for the date of July 8, 2003. Specifically, Robinson testified that he and Brown left for an out-of-town fishing trip on July 7 and returned home at approximately 6:30 or 7:30 a.m. on July 8.

Brown also elicited testimony from Rebecca Bush, the lead prosecutor, who stated that she first saw the calendar immediately before the September 1, 2004 trial date. Bush testified that H.M.'s mother used the calendar as a family calendar during the month of July 2003, marking various birthdays, anniversaries, and due dates for bills. In a meeting with prosecutors in July of 2004, H.M. was able to remember that the digital penetration had occurred on a Tuesday but was not sure whether it was July 8, 2003, or July 15, 2003. H.M.'s mother then consulted the calendar, because both H.M. and her mother remembered that H.M.'s mother was informed of the allegations at a wedding they had attended that month. Because the calendar showed that the wedding occurred on July 13, 2003, the information was amended to include July 8, 2003, as part of the time period of the alleged offense. In addition, H.M.'s mother added several notations to the calendar describing where various family members were at various times. These notations were made before the calendar was received by the prosecutors. Shortly before the start of trial, the calendar was made available to the prosecutors, who...