Craven v. State, CR-18-806

2019 Ark. App. 271

577 S.W.3d 42

Jerrod CRAVEN, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-806

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered May 15, 2019

Rehearing Denied July 17, 2019

Hodge Calhoun Giattina, PLLC, Little Rock, by: Robert E. Hodge III, for appellant.

Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

BRANDON J. HARRISON, Judge

Jerrod Craven appeals his convictions on two counts of aggravated robbery and one count of theft of property, arguing that the circuit court erred in (1) denying his motion for directed verdict, (2) limiting the defense's cross-examination of Jalen Hudson, and (3) finding that Hudson's interview with the prosecutor was not a statement. We affirm.

In a felony information filed 27 March 2017, Craven was charged with committing two counts of aggravated robbery and one count of theft of property on 30 November 2016. The information was amended in June 2017 to add Jalen Hudson as a codefendant.

In April 2017 and again in August 2017, Craven moved for discovery, specifically any written or recorded statements made by any codefendant or other State witness. Immediately prior to the jury trial on 19 June 2018, the circuit court convened a hearing on those motions and other preliminary matters. The State explained that Hudson had agreed to testify and admit that he previously lied to police officers about a third person who was involved in the November 30 robbery. The State voiced concern that defense counsel would attempt to bring up other aggravated-robbery charges against Hudson in Ashley County, and it asked that Hudson's cross-examination be limited in scope. The defense responded that it had a right to impeach the witness with prior lies, but the State asserted that if the witness takes the stand and admits he lied, then he cannot be impeached.

The State also said it had recently become aware that Hudson had an additional warrant for aggravated robbery out of Little Rock but that the warrant had not yet been served. So, the State asserted, Hudson would "be required to take the Fifth Amendment through discussions with his attorney and so those questions and the facts have no relevance because he cannot answer them." The defense objected and argued that "Hudson discussed this very case that he's not been served on with Detective Bryant and Detective Oberle when they initially took his statement," and "the case where he's not been served on is a critical part of the basis for the affidavits for search warrant on not only Mr. Craven's case but Mr. Hudson's other case which he's pled guilty to." The defense contended that it had a constitutional right to impeach the credibility of the State's key witness. The State responded that Hudson was taking the Fifth regarding a separate case, not the case currently on trial. The State explained that Hudson was charged with committing two aggravated robberies on December 11; one charge to which he had already pled guilty (the Sherwood robbery), and one charge for which he had not yet been served with a warrant (the Little Rock robbery). The aggravated robbery in the current case occcured on November 30 in Jacksonville, and Hudson had relevant testimony about that robbery.

The court ruled that the defense could not "talk about the case in which there's a warrant. There will be no mention of a warrant. That's not relevant to this case." Defense counsel continued to argue that Hudson had lied to police about the December 11 incident during its investigation of the November 30 incident, so it was relevant. The court reiterated, "The warrant and anything related to it, you can't talk about it."

At trial, the State presented the following testimony. Rachel Hale, the assistant manager at the Dollar General on Military Road in Jacksonville, testified that on 30 November 2016, she and a coworker were preparing to close the store when she heard a voice say "[l]eave the money there and give me all your money." Hale looked up from the register and saw a man with a gun in his hand. Another man approached her with a backpack and directed her to put the money in the bag. After retrieving money from the other registers and the safe, Hale and her coworker were directed into the restroom. As soon as the restroom door closed, Hale used her cell phone to call 911. Hale said that one of the men was wearing a dark hoodie, dark pants, dark gloves, and a handkerchief covering his face. The other man was wearing blue jeans with an emblem on the pockets and brown gloves. She confirmed that the Dollar General had a video-surveillance system. On cross-examination, she said she could not identify either man. Christina Waltman, the other Dollar General employee that was present on November 30, provided testimony similar to Hale's. She said that one man was wearing a black hoodie and the other man was wearing a gray hoodie; the man with the gray hoodie had the gun, and the man with the black hoodie had the backpack. She also confirmed that she could not identify either man.

Investigator Mike Bryant, an employee of the Pulaski County Sheriff's Office, testified that he had investigated the aggravated robbery that occurred on November 30. Bryant obtained surveillance footage from the store and described the actions on the video while it was played for the jury. The footage showed the man in the gray hoodie speaking on a cell phone while walking around the store.

Before the State called Jalen Hudson as a witness, the attorneys and the court had another discussion about the scope of Hudson's testimony. The court reiterated, "You-all can ask him any questions you want to about whatever it is that's relevant. Then you can ask him about the warrant, but you cannot ask about any specifics behind the warrant." Defense counsel continued to argue that he should be allowed, under Ark. R. Evid. 608(b), to inquire about additional instances of untruthfulness committed by Hudson to show his bias and motive. The court ruled that defense counsel could not "ask successive questions about the different instances because they wouldn't be relevant in this matter."

Hudson testified that he knew Craven and that they had attended Arkansas Tech together. Hudson said that he participated in the aggravated robbery of Dollar General on November 30 with Craven and Stacy Cox. While Craven and Cox went into the store, Hudson drove around and talked on the phone with Craven. Hudson identified Cox as the man wearing the gray hoodie and Craven as the man wearing the black hoodie. He confirmed there was a gun used in the robbery.

Hudson also confirmed that he had a prior conviction for conspiracy to commit aggravated robbery in Ashley County and had pled guilty to two counts of aggravated robbery; one count pertaining to the November 30 robbery and another that occurred on December 11. Hudson's plea agreement required that he give truthful testimony at Craven's trial. Hudson also acknowledged a recent warrant for his arrest issued in Little Rock but said that his negotiated plea did not include that case. He admitted that he had lied in a statement given to Officer Bryant and told him that it was Joseph Aikens, not Stacy Cox, who was the third participant in the November 30 robbery. Hudson said he and Cox were close and that he was trying to protect Cox. Hudson had also lied and said that Craven was involved in the December 11 robbery, when in fact only he and Cox were involved.

On cross-examination, Hudson confirmed that the November 30 robbery occurred in Jacksonville, and the December 11 robbery occurred in Sherwood. He again said he was aware of the Little Rock warrant but that he was asserting his Fifth Amendment right not to incriminate himself. Based on an email he had received from the prosecutor regarding Hudson's expected testimony, defense counsel proceeded to question Hudson about a statement he gave to the prosecutor around June 8, which led to the following colloquy.

PROSECUTOR : I mean, at this point he's using hearsay without the ability to cross-examine me. I was just giving him a general understanding of the facts and I was writing down facts as I was talking. I'm not sure what was right and what was wrong. It was just a general idea of what was being said.

THE COURT : So this is a statement he gave to you.

PROSECUTOR : It's not necessarily the statement. It's my summary of my understanding at the time.

THE COURT : So you weren't sitting in a room taking that down.

PROSECUTOR : No, no. This was—this was at least hours, if not the next day. I mean, I think he can ask him what's true and what's not true. But not in reference to that statement. That was just to give him an idea of the witness testimony.

DEFENSE : This is another statement given in this case.

THE COURT : This is not a statement.

PROSECUTOR : I could be wrong, yeah.

DEFENSE : It's his recollection of the statement. It was given to him directly.

THE COURT : That's just his notes. Is that what it is?

PROSECUTOR : Yes.

THE COURT : Your notes?

PROSECUTOR : Yes. And we give it to the defense attorney so that he's aware of it. It wasn't meant to be impeached.

THE COURT : It's not a statement.

DEFENSE : Okay. Note my objection, Your Honor.

THE COURT : Yes, sir.

Hudson acknowledged that he had agreed that in exchange for his truthful testimony, he would receive a sentence of twelve years' imprisonment on the two aggravated-robbery charges from November 30 and December 11, and twenty years' imprisonment in the Ashley County robbery, all to run concurrently.

After Hudson's testimony concluded and the jury was dismissed for the day, defense counsel made the following proffer:

I had previously objected to the motion in limine wherein the court had cautioned me and directed me not to inquire as to [an] armed robbery, aggravated robbery, occurring at Springer Boulevard in Little Rock, Arkansas, on December the 11th of 2017. I had what I would describe as impeachment evidence to

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