Roseby v. State

Dexter ROSEBY v. STATE of Arkansas

CR 97-122                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 18, 1997


1.   Appeal & error -- challenge to sufficiency of evidence addressed before
     other issues. -- When an appellant challenges the sufficiency of
     the evidence, the appellate court addresses the issue before
     all others.  

2.   Motions -- directed verdict -- specific motion required. -- Rule 33.1 of
     the Arkansas Rules of Criminal Procedure requires a criminal
     defendant to make a specific motion for a directed verdict
     that apprises the trial court of which element of the crime
     the State has failed to prove.

3.   Motions -- directed verdict -- motion lacked specificity -- issue not
     preserved for appeal. -- Where, at the conclusion of the State's
     case, appellant made a directed-verdict motion, stating that
     the State had failed to present direct evidence linking him to
     the crime, but did not mention in his motion that the State
     failed to prove the "premeditated and deliberate" element of
     capital murder, the supreme court concluded that appellant did
     not preserve the issue for appeal.

4.   Attorney & client -- right to counsel of choice not absolute. -- The
     right to counsel of one's choice is not absolute and may not
     be used to frustrate the inherent power of the court to
     command an orderly, efficient, and effective administration of
     justice.

5.   Attorney & client -- change of counsel -- granting of continuance
     discretionary -- factors considered. -- It is within the trial
     court's discretion to grant a continuance so that a criminal
     defendant may obtain a new attorney, and this decision will
     not be reversed absent an abuse of discretion; in making this
     determination, the trial court may consider the following
     factors: (1) the reasons for the change; (2) whether other
     counsel has already been identified; (3) whether the defendant
     has acted diligently in seeking the change; and (4) whether
     the denial is likely to result in any prejudice to defendant.

6.   Attorney & client -- change of counsel -- no abuse of discretion in denial
     of continuance. -- Where the trial court found that appellant's
     attorney was competent and had diligently filed several
     pretrial motions on his behalf, and where appellant's attorney
     had been working for him for approximately eight or nine
     months, yet appellant had waited until the day of the trial to
     ask for a new attorney, the supreme court could not say that
     the trial court had abused its discretion when it denied
     appellant's motion. 

7.   Jury -- Batson challenge -- three-step analysis. -- In considering an
     argument that the State used its peremptory challenges at
     trial to exclude African-Americans from the jury in violation
     of the Equal Protection Clause of the Fourteenth Amendment as
     construed in Batson v. Kentucky, 476 U.S. 79 (1986), the
     supreme court applies the following three-step analysis:
     first, the defendant must make a prima facie case that racial
     discrimination is the basis for excluding the juror; secondly,
     if the court concludes that the defendant has made this
     showing, the State must provide a racially neutral explanation
     for striking the juror, and the trial court must then
     determine from all the relevant circumstances the sufficiency
     of the offered explanation; finally, if the court is not
     satisfied with the State's explanation, it must conduct a
     sensitive inquiry, and the defendant must explain how the
     State's racially neutral explanation is merely a pretext.

8.   Jury -- Batson challenge -- burden of persuasion -- deference accorded
     trial court's determination. -- In a Batson challenge, the ultimate
     burden of persuasion regarding racial motivation rests with,
     and never shifts from, the opponent of the strike; the supreme
     court accords great deference to the trial court's
     determination of whether the peremptory strike was exercised
     in a discriminatory manner and reverses that decision only if
     it is clearly against the preponderance of the evidence.

9.   Jury -- Batson challenge -- prima facie determination -- when moot. -- A
     prima facie determination under Batson is moot on appeal where
     the trial court has skipped this step and has ruled upon the
     second issue of whether the State had provided a racially
     neutral explanation; however, it is the court's failure to
     render a ruling on the prima facie determination, and not the
     State's decision to offer a racially neutral explanation
     instead of attacking the establishment of a prima facie case,
     that renders the issue moot.

10.  Jury -- Batson challenge -- prima facie determination -- trial court ruled
     on issue -- not moot. -- The supreme court concluded that
     although, in this case, the State offered a racially neutral
     explanation instead of attacking the defendant's prima facie
     case, the trial court ruled on the prima facie issue when it
     declared that there was no evidence of systematic
     discrimination; hence, the issue was not moot.


11.  Jury -- Batson challenge -- prima facie case of discriminatory use of
     peremptory challenges -- elements. -- A prima facie case of the
     discriminatory use of peremptory challenges may be established
     by: (1) showing that the totality of the relevant facts gave
     rise to an inference of discriminatory purpose; (2)
     demonstrating the total or seriously disproportional exclusion
     of African-Americans from the jury; or (3) showing a pattern
     of strikes, questions, or statements by a prosecutor during
     voir dire.

12.  Jury -- Batson challenge -- trial court's ruling that appellant failed to
     establish prima facie not clearly against preponderance of evidence. --
     The supreme court could not say that the trial court's ruling
     that appellant had failed to establish a prima facie case of
     the discriminatory use of peremptory challenges was clearly
     against a preponderance of the evidence where three of the
     eleven seated jurors were African-American, and several other
     African-Americans remained in the gallery, which constituted
     a very persuasive challenge to the establishment of a prima
     facie case; where appellant did not present any evidence that
     the prosecutor made racial statements or asked racial
     questions; and where appellant did not present any other
     evidence or factors that might have allowed the court to infer
     that the State was using its peremptory challenges in a
     discriminatory manner.

13.  Evidence -- impeachment -- witness's prior statement admissible where
     reasonable person could infer that two statements were produced by
     inconsistent beliefs. -- An "inconsistent statement," as used in
     Ark. R. Evid. 613, is not limited to those instances in which
     diametrically opposite assertions have been made; a witness's
     prior statement is admissible whenever a reasonable person
     could infer on comparing the whole effect of the two
     statements that they have been produced by inconsistent
     beliefs.

14.  Evidence -- impeachment -- trial court did not abuse discretion in
     allowing. -- Considerable discretion must be given to the trial
     court when determining where to draw the line in the
     impeachment of a hostile witness; where an impeached witness
     was appellant's relative and was clearly hostile to the State,
     and where the witness claimed that she had been threatened by
     several people not to testify, the supreme court could not say
     that the trial court abused its discretion when it found that
     the witness's assertions that she could not recall her
     statements to a detective were sufficiently inconsistent to
     allow her to be impeached with her prior statement under Ark.
     R. Evid. 613(b).

15.  Evidence -- impeachment -- proper cautionary instruction given twice. --
     The supreme court also found no error in the trial court's
     allowing impeachment of a hostile witness because the court
     properly instructed the jury on inconsistent statements and,
     in response to a query during deliberations, repeated its
     prior instruction; thus, the jury was given the proper
     cautionary instruction not once, but twice, and the supreme
     court stated that it could assume that the jury heeded the
     court's admonishment.

16.  Evidence -- hostile witness not called for sole purpose of introducing
     inadmissible hearsay through impeachment. -- Where there was no
     evidence that the State knew that a hostile witness would
     contradict her earlier statement to a detective, the supreme
     court did not find that the State called the witness for the
     sole purpose of introducing inadmissible hearsay under the
     guise of impeachment and thus found no reversible error.


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
affirmed.
     Willard Proctor, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly K. Hill, Deputy Att'y
Gen., for appellee.

     Annabelle Clinton Imber, Justice.
     The appellant, Dexter Roseby, was sentenced to life
imprisonment without parole for the capital murder of Lee Andrew
Byrd, Jr. Roseby raises four arguments on appeal.  Finding no
reversible error, we affirm.
     On January 8, 1996, Officer Timothy Hobbs discovered the body
of Lee Andrew Byrd, Jr., in the snow-covered woods behind the
Pilgrim Rest Baptist Church in Woodson.  Byrd had been shot once in
the back of his left thigh, and bled to death.  A jury found Dexter
Roseby guilty of the capital murder of Byrd under Ark. Code Ann. 
5-10-101(a)(4) (Supp. 1995), which states that a person commits
capital murder if he or she kills another person with a
"premeditated and deliberate purpose."  Because the State did not
seek the death penalty, the court imposed the sentence of life
imprisonment without parole.  From his judgment and commitment
order, Roseby filed a timely notice of appeal.
                 I.  Sufficiency of the Evidence
     Roseby challenges the sufficiency of the evidence to support
his conviction of capital murder.  When an appellant challenges the
sufficiency of the evidence, we address the issue prior to all
others.  Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); cert.
denied, 117 S. Ct. 436 (1996); Misskelley v. State, 323 Ark. 449,
915 S.W.2d 702 (1996), cert. denied, 117 S. Ct. 246 (1996).  On
appeal, Roseby claims that his conviction must be reversed because
the State failed to present sufficient evidence that he killed Lee
Andrew Byrd with a "premeditated and deliberate purpose" as
required by Ark. Code Ann.  5-10-101(a)(4) (Supp. 1995).
     We have held on numerous occasions that Ark. R. Crim. P. 33.1
requires a criminal defendant to make a specific motion for a
directed verdict that apprises the trial court of which element of
the crime the State has failed to prove.  Travis v. State, 328 Ark.
442, 944 S.W.2d 96 (1997); Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997);
Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). 
Specifically, in Webb we refused to consider the appellant's
argument that the State failed to prove that he killed the victims
in a premeditated and deliberate manner because the appellant
failed to raise this issue in his motion for directed verdict. 
Webb, supra.
     At the conclusion of the State's case, Roseby made a motion
for a directed verdict stating that the State had failed to present
direct evidence linking Roseby to the crime.  Roseby did not
mention in his motion that the State failed to prove the
"premeditated and deliberate" element of capital murder.  Hence, we
conclude that Roseby has not preserved this issue for appeal.
                  II.  Motion for a Continuance
     For his second argument, Roseby contends that the trial court
erred when it denied his request for a continuance so that he could
obtain another attorney.  It is well settled that the right to
counsel of one's choice is not absolute and may not be used to
frustrate the inherent power of the court to command an orderly,
efficient, and effective administration of justice.  Edwards v.
State, 321 Ark. 610, 906 S.W.2d 310 (1995); Leggins v. State, 271
Ark. 616, 609 S.W.2d 76 (1980).  Hence, it is within the trial
court's discretion to grant a continuance so that a criminal
defendant may obtain a new attorney, and this decision will not be
reversed absent an abuse of discretion.  Edwards, supra; Cooper v.
State, 317 Ark. 485, 879 S.W.2d 405 (1994).  In Edwards, we further
explained that in making this determination, the trial court may
consider the following factors:  1) the reasons for the change, 2)
whether other counsel has already been identified, 3) whether the
defendant has acted diligently in seeking the change, and 4)
whether the denial is likely to result in any prejudice to
defendant.  Edwards, supra.
     In this case, Roseby's attorney announced on the morning the
trial was to begin that his client wanted him to withdraw from the
case so that he could obtain another attorney.  Roseby then
explained to the judge that he wanted a continuance because he and
his attorney were not prepared for trial.  Roseby further alleged
that his attorney rushed him into a decision regarding his trial,
and that he did not adequately discuss the case with him.  Roseby,
however, did not disclose whether he had already obtained
substitute counsel.
     The trial court found that Roseby's attorney was competent and
had diligently filed several pretrial motions on Roseby's behalf. 
Moreover, the judge was greatly influenced by the fact that
Roseby's attorney had been working for him for approximately eight
or nine months, yet Roseby waited until the day of the trial to ask
for new attorney.  Based on these facts, we cannot say that the
trial court abused its discretion when it denied Roseby's motion. 
Accordingly, we also affirm on this point.
               III.  Use of Peremptory Challenges
     Next, Roseby argues that the State used its peremptory
challenges at trial to exclude African-Americans from the jury in
violation of the Equal Protection Clause of the Fourteenth
Amendment as construed in Batson v. Kentucky, 476 U.S. 79 (1986). 
In making this determination, we apply the following three-step
analysis.  First, the defendant must make a prima facie case that
racial discrimination is the basis for excluding the juror. 
Second, if the court concludes that the defendant has made this
showing, the State must provide a racially neutral explanation for
striking the juror.  The trial court must then determine from all
the relevant circumstances the sufficiency of the offered
explanation.  Finally, if the court is not satisfied with State's
explanation, it must conduct a sensitive inquiry, and the defendant
must explain how the State's racially neutral explanation is merely
a pretext.  See, Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996),
cert. denied, 117 S. Ct. 979 (1997). 
     As the United States Supreme Court recently noted in Purkett
v. Elem., 514 U.S. 765 (1995), "the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the
opponent of the strike."  Moreover, we afford great deference to
the trial court's determination of whether the peremptory strike
was exercised in a discriminatory manner, and we reverse that
decision only if it is clearly against the preponderance of the
evidence.  Sonny, supra. 
     According to the above analysis, we must first determine
whether Roseby established a prima facie case of discrimination. 
After asking a juror a couple of questions, the State asked the
judge to excuse the juror, and the following colloquy occurred:
     ROSEBY:  I understand the State has struck an African-
     American Juror who from -- after asking basically one
     question.  There's a question in my mind as to what they
     could've [sic] gleaned from  -- his demeanor was similar
     to that of the other witnesses.  There was nothing about
     what he said, so we would ask that he be reseated under
     Batson v. Kentucky because there doesn't seem to be any
     sort of legitimate reason for striking him, other than
     his race.

     STATE:  Your honor, he failed to make eye contact.  He
     was unresponsive to my questions. I've sat other African-
     Americans on the panel and did not strike those
     individuals.  There's still African-American potential
     jurors out in the gallery.

     COURT:  Well, I think out of the eleven different
     remaining, there's three black folks on the jury.  So I
     just don't think there's any systematic exclusion.  I
     don't think that the State should have to respond to that
     at this point.  If I see that there is something
     systematic, I'll require it then.
     On appeal, the State argues that the preliminary inquiry of
whether Roseby made a prima facie case is not moot because the
State proceeded to offer a racially neutral explanation instead of
addressing whether a prima facie case had been established.  We
have previously held that the prima facie determination is moot on
appeal when the trial court skipped this step and ruled upon the
second issue of whether the State had provided a racially neutral
explanation.  Wooten, supra; Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585
(1996).  However, it is the court's failure to render a ruling on
the prima facie determination, and not the State's decision to
offer a racially neutral explanation instead of attacking the
establishment of a prima facie case, that renders the issue moot. 
See Wooten, supra; Cleveland, supra; Prowell, supra.    
     In this case, the State offered a racially neutral explanation
instead of attacking the defendant's prima facie case.  However,
unlike Wooten, Cleveland, and Prowell, we find that the trial court
ruled on the prima facie issue when it declared that there was no
evidence of systematic discrimination.  Hence, the issue is not
moot, and we must determine if the trial court's ruling in this
regard is clearly against the preponderance of the evidence.
      A prima facie case of the discriminatory use of peremptory
challenges may be established by:  1) showing that the totality of
the relevant facts gave rise to an inference of discriminatory
purpose, 2) demonstrating total or seriously disproportional
exclusion of African-Americans from the jury, or 3) showing a
pattern of strikes, questions, or statements by a prosecutor during
voir dire.  Bragg, supra; Wooten, supra; Mitchell v. State, 323
Ark. 116, 913 S.W.2d 264 (1996). 
     In this case, three of the eleven seated jurors were African-
American, and there were several other African-Americans remaining
in the gallery.  Although this is not the end to our inquiry, we
have previously held that this is a very persuasive challenge to
the establishment of a prima facie case.  Bragg, supra; Cleveland,
supra.  Additionally, Roseby did not present any evidence that the
prosecutor made racial statements or asked racial questions. 
Finally, Roseby did not present any other evidence or factors that
might have allowed the court to infer that the State was using its
peremptory challenges in a discriminatory manner.  Based on these
facts, we cannot say that the trial court's ruling that Roseby
failed to establish a prima facie case was clearly against a
preponderance of the evidence.  Accordingly, we affirm on this
point.
                          IV.  Hearsay 
     Finally, Roseby argues that the trial court violated Ark. R.
Evid. 613 when it allowed the State to impeach Lynette Daniels with
questions about a prior unsworn statement.  During the trial, the
State called Lynette Daniels to the stand and asked her a series of
questions regarding her contact with the defendant in early
January.  Daniels explained that she saw Roseby at a liquor store
early that afternoon, and that he drove her to her grandmother's
home which was next door to the victim's house.  Daniels then
denied seeing Roseby approach the victim's home, and denied that he
made any statements to her about the victim.  At this point,
Daniels admitted that several people had threatened to kill her if
she testified in court.  The State then asked Daniels if she
recalled giving an unsworn statement to Detective Ward on January
11, 1996, and Daniels answered in the affirmative.  When the State
attempted to ask Daniels about statements she made to Detective
Ward, Roseby promptly objected claiming that the State could not
impeach her because she had not yet made an inconsistent statement. 

     The State then asked Daniels to review her unsworn statement
to refresh her memory.  Daniels replied, "I don't remember telling
him this because I was under the influence of drugs. I can't
remember."  Daniels then reviewed the statement and again declared,
"I just don't remember telling him all this; I don't."  The State
then asked Daniels the following series of questions over Roseby's
objections:
     STATE:  Did you tell Detective Ward that Dexter told you
     he --

     DANIELS:  I don't remember.

     STATE: -- was looking for Junior?

     DANIELS:  I don't remember. I don't remember.

     STATE:  Did you tell Detective Ward that they went to
     Junior's house looking for him? 
      
     DANIELS:  I don't remember telling him that either.

     . . . .

     STATE:  Did you tell Detective Ward that they said they
     were going to kill him?

     DANIELS:  No, I don't remember telling him that.
     On appeal, Roseby claims that the above testimony was allowed
into evidence in violation of Ark. R. Evid. 613(b) which states
that:
     Extrinsic evidence of a prior inconsistent statement by
     a witness is not admissible unless the witness is
     afforded an opportunity to explain or deny the same and
     the opposite party is afforded an opportunity to explain
     or deny the same and the opposite party is afforded an
     opportunity to interrogate him thereon, or the interests
     of justice otherwise require. This provision does not
     apply to admissions of a party-opponent as defined in
     Rule 801(d)(2).
We find that this argument fails for several reasons.
     First, Roseby argues that the State should not have been
allowed to impeach Daniels with her unsworn statement to Detective
Ward because she declared that she could not remember instead of
directly contradicting her prior statements.  We have previously
explained that an "inconsistent statement" as used in Rule 613, is
not limited to those instances in which diametrically opposite
assertions have been made.  Truck Ctr. v. Autrey, 310 Ark. 260, 836 S.W.2d 359 (1992); Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190,
697 S.W.2d 114 (1985).  Rather, we have adopted Judge Weinstein's
view that a witness's prior statement is admissible whenever a
reasonable man could infer on comparing the whole effect of the two
statements that they have been produced by inconsistent beliefs. 
Truck, supra; Flynn, supra.
     Of particular applicability to this case is our holding in
Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981).  As in this
case, in Chisum a hostile witness, who was the defendant's sister,
claimed that she had forgotten what she had told the police in a
prior unsworn statement.  Id.  The State then allowed the witness
to review her prior statement in an effort to refresh her
recollection.  Id.  After reviewing the statement, the witness
again claimed that she did not recall any of her prior statements
implicating the defendant.  Id.  We found her statements that she
"forgot" were sufficiently inconsistent to allow the introduction
of her prior sworn statement.  We have reached this same conclusion
in numerous cases where a witness claimed to have forgotten a prior
statement that is unfavorable to the defendant. Hughey v. State,
310 Ark. 721, 840 S.W.2d 183 (1992); Flynn, supra; Humpolak v.
State, 175 Ark. 786, 300 S.W.2d 426 (1927); Billings v. State, 52
Ark. 303, 12 S.W. 574 (1889).
     As in Chisum, Daniels was the defendant's relative and she was
clearly hostile to the State.  In addition, Daniels claimed that
she had been threatened by several people not to testify.  In
Hughey, supra, we clarified that considerable discretion must be
given to the trial court when determining where to draw the line in
the impeachment of a hostile witness.  In light of these facts, we
cannot say that the trial court abused its discretion when it found
that Daniels's assertions that she could not recall her statements
to Detective Ward were sufficiently inconsistent to allow her to be
impeached with her prior statement under Rule 613(b).   
     Additionally, we find no error because the trial court
properly instructed the jury as follows:
     Evidence that a witness previously made a statement which
     is inconsistent with his testimony at trial, may be
     considered by you for the purpose of judging the
     credibility of the witness but may not be considered by
     you as evidence of the truth of the matters set forth in
     that statement.
During deliberations, the jury sent a note to the judge asking if
they could consider the statements Lynette Daniels made to Officer
Ward, and the trial court repeated its prior instruction.  Thus,
the jury was given the proper cautionary instruction not once, but
twice, and we can assume that the jury heeded the court's
admonishment.  See Hughey, supra.  
     Moreover, we do not agree with Roseby's assertion that our
decision in Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983),
is controlling.  In Roberts, an eyewitness gave an unsworn
statement to the police implicating the defendant in the murder of
the defendant's wife.  Id.  The witness later gave the police two
additional statements in which he admitted that his original
statement was untrue.  Id.  At trial, the State called the witness
to the stand and impeached him with his initial statement that
implicated the defendant. Id.  We held that such impeachment was "a
mere subterfuge" for the State's true intention of introducing the
hearsay statement as substantive evidence of the defendant's guilt. 
Id.  We also found that the limiting instruction to the jury
directing them to consider the statements for impeachment only did
not cure this error.  Id. 
     In this case, there was no evidence that the State knew that
Daniels would contradict her earlier statement to Detective Ward. 
Thus, we do not find that the State called Daniels for the sole
purpose of introducing inadmissible hearsay under the guise of
impeachment.  Thus, as with Roseby's other three arguments on
appeal, we find no reversible error.
             V.  Arkansas Supreme Court Rule 4-3(h)
     In accordance with Ark. S. Ct. R. 4-3(h), the record has been
reviewed for rulings decided adversely to Roseby but not argued on
appeal, and no reversible errors were found.
     Affirmed.