Campbell v. State

2014 Ark. App. 171

432 S.W.3d 673

Tyrone James CAMPBELL, Appellant

v.STATE of Arkansas, Appellee.

No. CR–12–782.

Court of Appeals of Arkansas.

March 12, 2014.

Mosemarie Dora Boyd, Van Buren, for appellant.

Dustin McDaniel, Att'y. Gen., by: Laura Shue, Ass't. Att'y. Gen., for appellee.

PHILLIP T. WHITEAKER, Judge.

Appellant Tyrone Campbell was charged with one count of first-degree terroristic threatening and one count of aggravated assault. A Sebastian County jury acquitted Campbell of the aggravated-assault charge but convicted him of first-degree terroristic threatening. The jury sentenced Campbell to six years' suspended imposition of sentence and to pay $1000 in restitution. We affirm.

The charges against Campbell stemmed from a series of incidents involving his wife's work supervisors, Joe White and Chris Gosch. After his wife was fired from a Fort Smith Taco Bell, Campbell drove to the Taco Bell, where he drove his car at White and Gosch at a high rate of speed and made a slashing motion across his neck at the two men. He subsequently told a Taco Bell corporate secretary to tell the two men that “someone is going to die tonight.” Campbell does not challenge the sufficiency of the evidence on appeal. Instead, he assigns error to the circuit court's denial of his motion for new trial (raising several separate arguments as to jury misconduct and one argument as to witness exclusion). In addition, Campbell argues that the circuit court erred in denying his request to instruct the jury on the lesser-included offense of second-degree terroristic threatening and that the court erred by failing to admonish the jury in response to allegedly inflammatory comments made by the prosecutor during voir dire and opening arguments. Finally, Campbell raises an argument that cumulative error warrants a new trial.

I. New Trial Motion

The decision whether to grant or deny a new trial lies within the sound discretion of the trial court, and this court will reverse that decision only if there is a manifest abuse of discretion. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003); Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002). A trial court's factual determinations on a motion for a new trial will not be reversed unless clearly erroneous, and the issue of witness credibility is for the trial court to weigh and assess. Smart, supra.

A. Jury Misconduct

Campbell's first three arguments on appeal pertain to alleged errors in the circuit court's denial of his motion for new trial based on claims of juror misconduct. Because they are somewhat intertwined, we address them together.

Following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct. Holloway v. State, 363 Ark. 254, 213 S.W.3d 633 (2005). The appellate courts will not presume prejudice in such situations. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). Jurors are presumed to be unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Holloway, supra. Whether prejudice occurred is a matter for the sound discretion of the circuit court. Id.

Juror misconduct may require a new trial. The threshold issue, however, is whether the evidence of that misconduct is admissible under Arkansas Rule of Evidence 606(b). Rule 606(b) provides that a juror may not testify as to any matter or statement occurring during the course of deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict, or concerning his mental process in connection therewith. Nor may a juror's affidavit or evidence of any statement by him be received on such matters. Ark. R. Evid. 606(b) (2012). A juror may, however, testify about whether “extraneous prejudicial information” was improperly brought to the jury's attention or whether any “outside influence” was improperly brought to bear on any juror. Id. Rule 606(b) embodies the public interest in preserving the confidentiality of jury deliberations and ensures that jury deliberations remain secret unless it becomes clear that the jury's verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence. Milner v. Luttrell, 2011 Ark. App. 297, 384 S.W.3d 1; Waste Mgmt. of Ark., Inc. v. Roll Off Serv., Inc., 88 Ark.App. 343, 199 S.W.3d 91 (2004).

Campbell asserts that one of the jurors, Anthony Pearn, read an alternative written jury instruction during deliberations. This claim is based on an allegation by another juror, William Bish. Bish reported that Pearn had read an instruction on terroristic threatening that was not the same as the model instruction given to the jury by the court.

The circuit court heard testimony from Pearn and the jury foreman, James Phelps. Both jurors denied that they or any other juror brought an alternative jury instruction into the jury's deliberations. Both were adamant that the only instructions considered by the jury were those provided by the court.

Their testimony, however, was contradicted by Bish, who stated that Pearn had read an instruction from “a single sheet of paper.” This instruction, which was not the same as the model instruction given by the court, allegedly explained that terroristic threatening “means all that matters is that the victims felt that they were threatened. It doesn't matter what the defendant's intent was.” Bish admitted, however, that he had never actually read the instruction himself. He acknowledged that he had heard the court read the instructions to the jury and conceded that he did not remember if those instructions “were word for word the same as what was read in the jury room.” He further claimed that he believed the instruction read by Pearn “came out of the same packet the judge had given us because I never saw it come from anywhere else. I mean, I didn't see anyone bring any other descriptions or bring their own paperwork in there or whatever.”

To the extent that Campbell complains that an extraneous instruction was physically interjected into the jury's deliberations, the circuit court made no factual findings to that effect. It is an appellant's burden to obtain a clear ruling on an issue from the trial court. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164; Turner v. State, 2012 Ark. App. 150, 391 S.W.3d 358. Absent such a ruling, there is nothing for this court to review. Dixon, supra. Accordingly, we do not address Campbell's argument on this point.

Campbell alternatively asserts that Pearn verbalized inaccurate information to the jury pertaining to the definition of terroristic threatening. Essentially, Campbell alleges that Pearn improperly invoked his knowledge of criminal law during voir dire, such that his “qualifications and credentials readily impl[ied] that he is an expert on the subject of terroristic threatening, which likely caused other jurors to believe him.” Campbell challenges the jury's purported reliance on Pearn's expertise in the field of criminal law.

Again, the circuit court heard testimony from Pearn, Phelps, and Bish about this alleged inaccurate information and purported reliance. Bish said that the jury had a lengthy discussion of the terroristic-threatening charge. He stated that the description of terroristic threatening that the jurors discussed was “that it is not what the intent or what was exactly said, it is how the victim feels.” Pearn admitted that he participated in the discussion of the definition of terroristic threatening, but he “thought that that was the purpose of our deliberations” and that it was “based on the instruction that we were given.” Pearn denied being any more influential than any of the other jurors.

Campbell then attempted to ask Pearn whether he had ever summarized the law on terroristic threatening as focusing on the perception of the victim, rather than the intent of the defendant. The court sustained the State's objection to that question, agreeing that it went “to why they made the decision they made.” Campbell argued that the question went to the content of both the extraneous material and the conversations in the jury room; the court, however, ruled that Pearn had already testified that there was no extraneous material and it therefore would not allow the question.

During the examination of Phelps, the court disallowed counsel from asking Phelps whether Pearn had told the other jurors that he had recently served on another jury. Counsel suggested that if Pearn had held himself out to the other jurors as having experience in law enforcement and appeared to be an expert on the subject of terroristic threatening, then the other jurors might have given Pearn's opinions “extra respect.” The court rejected that argument, finding that a juror's personal life experiences do not constitute extraneous prejudicial information. The court also sustained repeated objections to counsel's attempts to ask Phelps whether the jury had ever discussed Campbell's intent, finding that such questioning went to the jurors' deliberations.

The court ultimately denied Campbell's motion for new trial, finding that it was improper for counsel to attempt to impeach a jury's verdict by affidavits obtained from members of the jury panel. The court likewise found no merit to Campbell's argument that Pearn's alleged expertise constituted extraneous prejudicial information, and it thus denied Campbell's motion for new trial. On this issue, the court made a finding that Pearn's knowledge would not constitute extraneous, prejudicial information. This ruling was correct.

This court has held that “knowledge obtained by a juror and brought into the jury room from the ordinary scope of his life experiences, including knowledge obtained through his profession or vocation, does not qualify as “ ‘extraneous prejudicial information’ as contemplated by Rule 606.” Houchins v. Home Care...