{ "id": 6136406, "name": "Emmanuel Joseph LEE v. STATE of Arkansas", "name_abbreviation": "Lee v. State", "decision_date": "2008-03-12", "docket_number": "CA CR 07-429", "first_page": "23", "last_page": "32", "citations": [ { "type": "official", "cite": "102 Ark. App. 23" }, { "type": "parallel", "cite": "279 S.W.3d 496" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "91 Ark. App. 138", "category": "reporters:state", "reporter": "Ark. 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Code Ann. \u00a7 5-37-207", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2006, "opinion_index": 0 }, { "cite": "77 Ark. App. 20", "category": "reporters:state", "reporter": "Ark. 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Marshall Jr., Judge.\nA jury convicted Emmanuel Lee of fraudulently using a credit card belonging to Border Express, a company that had hired Lee to drive a truck. Lee attacks his conviction with three arguments. He challenges the sufficiency of the evidence. He argues that the circuit court should have suppressed certain evidence. And he contends that the circuit court violated the Confrontation Clause by allowing the investigating police officer to testify about what the deceased owner of Border Express told the officer on the night of Lee\u2019s arrest.\nI.\nTo avoid any double-jeopardy issue, we take the sufficiency argument first. Standridge v. State, 357 Ark. 105, 112, 161 S.W.3d 815, 818 (2004). We consider the entire record (including the evidence that Lee challenges on appeal) in the light most favorable to the jury\u2019s verdict. Cook v. State, 77 Ark. App. 20, 31, 73 S.W.3d 1, 7 (2002). Lee fraudulently used the Border Express credit card if, with the purpose to defraud, he used the card without the company\u2019s authorization. Ark. Code Ann. \u00a7 5-37-207 (Repl. 2006).\nBorder Express hired Lee to drive a rented Penske truck loaded with wine racks from Fort Smith to Wisconsin and back. Border Express gave Lee a credit card to use for gasoline. Lee arrived back in Fort Smith late (due to mechanical problems), dropped off the rented truck, and went home. Then he and his neighbor, Robert Peterson, drove to a convenience store in Lee\u2019s pick-up truck. Lee told Peterson that he needed to fill up his truck, and a fifty-five gallon drum, with gasoline \u2014 because he needed to go get a Border Express truck that had run out of gas on the side of the road. Then Lee pumped $150.00 worth of gasoline and tried to pay with Border Express\u2019s credit card. When the card was declined, the clerk called the store owner, who then called the police.\nOfficer Mark McGraw came to the store. He questioned the clerk, Lee, and Peterson. According to McGraw, Lee told him what he had told Peterson: Lee had permission to use the card to buy gasoline for a stranded Border Express truck. At trial, Lee denied making this statement. Lee testified that he told Peterson and Officer McGraw that Border Express was paying him for the recent trip by letting him use the card to fill up his truck and buy a barrel-full of gasoline for his girlfriend to use while he was out of town. Officer McGraw also called Don Jordan, the owner of Border Express. Among other things, Jordan told the officer that he had deactivated the credit card and that Lee did not have permission to use the card. Officer McGraw then arrested Lee.\nAt trial, and over Lee\u2019s objection, Jordan\u2019s statements came in through Officer McGraw\u2019s testimony. Jordan\u2019s daughter, who had taken over Border Express after her father\u2019s death, testified that she had found no record of a personal-use arrangement with Lee involving the credit card. She said that the company\u2019s books showed that Lee later received a check for his work. She knew of no instance in which her father had paid a driver with gasoline through a company card.\nHaving heard all this evidence, the jury was justified in finding Lee guilty. Jordan\u2019s testimony \u2014 through Officer McGraw \u2014 established that Lee used the card for himself without authorization. Jordan\u2019s daughter\u2019s testimony was evidence that Lee did not have permission to use the card. And Lee\u2019s inconsistent statements about why he was buying gasoline were circumstantial evidence of guilt. Bennett v. State, 297 Ark. 115, 119-22, 759 S.W.2d 799, 801-03 (1988). Contrary to Lee\u2019s contention, the fact that Peterson eventually paid for all the gasoline that night did not erase Lee\u2019s failed effort to use the company\u2019s card. The jury was entitled to convict based on the substantial evidence of Lee\u2019s guilt. Cook, supra.\nII.\nLee\u2019s suppression argument also fails. The State is correct that Lee\u2019s failure to follow Rule of Criminal Procedure 16.2(b) by filing a pretrial motion to suppress would have justified the circuit court\u2019s outright denial of his at-trial motion. Holt v. State, 15 Ark. App. 269, 271, 692 S.W.2d 265, 267 (1985). The circuit court, however, exercised its discretion, as the Rule allows, and decided Lee\u2019s motion on the merits. We will therefore consider the merits too. Lee contends that Officer McGraw should have given him a Miranda warning before questioning him at the convenience store. McGraw having failed to do so, Lee continues, all his statements to McGraw at the store should have been suppressed.\nLee is mistaken. Rule of Criminal Procedure 3.1 allows police officers to detain persons for as long as fifteen minutes to investigate crimes. Lee made no showing that Officer McGraw detained him longer than this period while the officer asked questions about what happened. Lee was not in custody until McGraw arrested him and refused to let him drive his pick-up truck home. State v. Spencer, 319 Ark. 454, 457, 892 S.W.2d 484, 485-86 (1995). Having considered the totality of the circumstances on de novo review, we affirm the circuit court\u2019s denial of Lee\u2019s motion to suppress. Summers v. State, 90 Ark. App. 25, 31, 203 S.W.3d 638, 641 (2005).\nIII.\nWe hold, however, that Lee is entitled to a new trial. The circuit court\u2019s decision to allow Officer McGraw to testify repeatedly about everything that Jordan told him violated the Confrontation Clause of the Sixth Amendment to U.S. Constitution. Despite several objections from Lee at trial, the circuit court allowed Officer McGraw to give the following testimony on direct examination in response to the deputy prosecutor\u2019s questions.\nQ. All right. So, when you talked with Mr.Jordan about this card that was in the defendant\u2019s possession, what did \u2014 what did you ask Mr. Jordan about this fuel card, and what did he tell you?\nA. He said he had just spoken with Mr. Lee on the phone. Er, he said that Mr. Lee didn\u2019t have permission to use the vehi \u2014 er \u2014\nQ. He didn\u2019t have permission to use the card?\nA. No, Sir. He didn\u2019t have permission to use it.\nQ. Okay.\nA. The, er, the card, he was very adamant that Mr. Lee had worked for him only one time, maybe, a week earlier, and was late in returning the vehicle, and he was very upset about that.\nQ. So, Mr. Jordan was adamant that he was not allowed to use this card?\nA. Yes, he was.\nQ. When the vehicle, that he\u2019d used that one time, that he was employed for Mr. Jordan, when the vehicle was returned, did Mr. Jordan tell you whether or not this defendant had given him the card back?\nA. No, he \u2014 he did not receive the card or the manifest for the, er, loadings driving report.\nQ. And did Mr. Jordan tell you why he, er, I guess, deactivated \u2014 for lack of a better term, deactivated that fuel card?\nA. Er, he specifically said he feared that Lee would try to use that fuel card.\nQ. He specifically said he feared that the defendant would try to use the fuel card?\nA. Yes, Sir.\nQ. And that\u2019s why he deactivated it?\nA. Yes.\nThen, after cross-examination, the prosecutor covered one area on redirect. He asked Officer McGraw: \u201c|J]ust for the jury, again, er, what did Mr. Jordan say about his Wright Express fuel card and whether or not this defendant could use it.\u201d The last words that the jury heard from the police officer were Jordan\u2019s statements that Lee should have returned the card but he didn\u2019t, he (Jordan) feared Lee would try to use the card, and he canceled it.\nThe Confrontation Clause mandates that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.\u201d In Crawford v. Washington, 541 U.S. 36, 42-69 (2004), the Supreme Court examined the history behind the Clause and overruled its then-leading decision on point. The Court held that confrontation \u2014 the opportunity for cross-examination \u2014 is what the Constitution requires to test the reliability of testimonial statements offered at trial to prove the truth of the matter asserted. 541 U.S. at 63-69. Where testimonial evidence is offered, \u201cthe Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination.\u201d 541 U.S. at 68. Arkansas has recognized and applied Crawford several times. E.g., Dednam v. State, 360 Ark. 240, 200 S.W.3d 875 (2005).\nHere, Jordan\u2019s death made him unavailable. So that aspect of the inquiry is easy. Cf. Seaton v. State, 101 Ark. App. 201, 205, 272 S.W.3d 854, 857 (2008). Were Jordan\u2019s statements testimonial? The circuit court ruled that they were not because Jordan was dead and he had made them during a police investigation where no one would expect an opportunity for cross-examination. This was error.\nIn Davis v. Washington, 547 U.S. 813 (2006), the Court answered a question left open in Crawford, and defined testimonial and nontestimonial statements.\nStatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.\n547 U.S. at 822.\nJordan\u2019s responses to Officer McGraw\u2019s questions were testimonial. There was no ongoing emergency at the convenience store. All the circumstances objectively indicated this fact and that the primary purpose of Officer McGraw\u2019s questioning of Jordan was to establish past events potentially relevant to prosecuting Lee. Ibid. Thus the very reason relied on by the circuit court for admitting this evidence over Lee\u2019s objection is the reason that the Confrontation Clause applies to it.\nCrawford also recognized, however, that the Confrontation Clause \u201cdoes not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.\u201d 541 U.S. at 59 n.6 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). Our courts have noted and applied this exception. E.g., Brunson v. State, 368 Ark. 313, 322, 245 S.W.3d 132, 140 (2006); Dednam, 360 Ark. at 246-49, 200 S.W.3d at 879-81; Wooten v. State, 93 Ark. App. 178, 181-83, 217 S.W.3d 124, 126-27 (2005).\nAs Dednam carefully articulates, the key is the purpose for which the State offers the out-of-court statement. 360 Ark. at 246-48, 200 S.W.3d at 879-81. The State argues, citing some of these precedents, that no confrontation problem exists in this case. According to the State, the \u201cofficer\u2019s testimony about Jordan\u2019s statements was to explain why he took the step of arresting [Lee], and was not presented for the truth of what Jordan had told either the officer or [Lee].\u201d\nWe disagree. The record shows no such limited intention or effort by the State at trial. The argument made below by the State, and accepted by the circuit court, was that Crawford simply did not apply at all because this case involved a dead witness and no formal interrogation. Unlike in Dednam, for example, the prosecutor did not offer testimonial statements to show the reason for an action taken by police. Dednam, 360 Ark. at 246-47, 200 S.W.3d at 879-80. Unlike in Street, testimonial statements were not offered in rebuttal to the defendant\u2019s testimony to dispute his claim that his confession was the coerced and parroted version of a co-defendant\u2019s confession. Street, 471 U.S. at 413-14. Unlike in Wooten, Jordan\u2019s statements went to the core of the crime being tried, they were not offered on a side issue (a prior battery report) in the face of a video-taped confession to the alleged murder. Wooten, 93 Ark. App. at 181-83, 217 S.W.3d at 126-28. And unlike in Brunson, Jordan\u2019s testimony was not admitted for the limited purpose of corroborating other witnesses\u2019 testimony that an event had occurred (a protective order was issued during a volatile relationship). Brunson, 368 Ark. at 322, 245 S.W.3d at 140. In each of these precedents, the State sought to admit testimonial evidence for a limited, non-hearsay purpose on a marginal issue. Here, Jordan\u2019s testimony was about the core of the State\u2019s case on the crime charged.\nThe transcript demonstrates why the State offered this testimony from the first witness in its case in chief: for the truth of Don Jordan\u2019s statements that Lee used the card without authorization. The prosecutor hammered the key points on direct and redirect \u2014Jordan was \u201cadamant\u201d that Lee did not have permission to use the card, and Jordan canceled the card because he \u201cfeared\u201d exactly what the State had to prove actually happened. The circuit court erred as a matter of law by holding that Jordan\u2019s death and the circumstances of his statements made Jordan\u2019s words to Officer McGraw nontestimonial.\nThe Confrontation Clause error, however, is not the end of our analysis. We must also consider the Jordan/McGraw testimony solely as an evidentiary matter. If the testimony given was admissible for any purpose, then we must affirm unless Lee sought and was denied a proper limiting instruction which would have cured any prejudice. Ark. R. Evid. 105; Chisum v. State, 273 Ark. 1, 6-9, 616 S.W.2d 728, 730-32 (1981). We thus come back to the State\u2019s contention that the Jordan/McGraw conversation was admissible to show the basis for action \u2014 the officer\u2019s arrest of Lee. Dednam, 360 Ark. at 246-48, 200 S.W.3d at 879-81. Lee did not request a limiting instruction. The circuit court offered to give one; Lee thanked the court for doing so, but maintained that any such instruction would be ineffective to remedy the lack of cross-examination.\nBefore Officer McGraw testified about Jordan\u2019s statements to him, the court told the jury that it could \u201cput whatever reliability [ ] or credibility that you wish to make as far as the statements offered here, today, by this officer of someone who\u2019s deceased.\u201d Lee did not object to this defective instruction, did not abstract it, and does not seek reversal based on it. Cf. Lamb v. State, 372 Ark. 277, 285, 275 S.W.3d 144, 151 (2008) (failure to object to limiting instruction waives any alleged error about its efficacy). We therefore do not evaluate the limiting instruction in deciding this case. Instead, we quote it to show the contours of the alleged error that we do confront.\nWe hold that the Jordan/McGraw testimony as given was not admissible for any purpose. As Lee argued below, we agree that no limiting instruction would have tempered these repeated and strident words, untested by cross-examination, which the jury heard from Jordan through Officer McGraw about the central disputed issue in this case: Lee\u2019s authority to use the credit card. Of course Officer McGraw should have been allowed to testify that he had called Jordan that night. And we do not hold that, with a proper limiting instruction, the circuit court would have abused its discretion by allowing the policeman to take the next step and testify simply that Jordan did not confirm Lee\u2019s version of events. This is not the question presented. Unlike in Dednam, in this case we face no such limited testimony. Instead, the Jordan/McGraw testimony as given presents one of those instances where, in light of issues being tried, these untested statements from a central hut absent witness were so explosive that an admonition or other limiting instruction could never cabin their effect. Cf. Green v. State, 365 Ark. 478, 496, 231 S.W.3d 638, 652 (2006); Grummer v. Cummings, 336 Ark. 447, 450, 986 S.W.2d 91, 93 (1999).\nFinally, the State suggests that any error here was harmless because the proof of Lee\u2019s guilt was overwhelming. We are not persuaded. Absent Jordan\u2019s testimony, the case against Lee is decidedly weaker. We cannot say with conviction that the Confrontation Clause error was harmless beyond a reasonable doubt. Sparkman v. State, 91 Ark. App. 138, 142, 208 S.W.3d 822, 825 (2005).\nReversed and remanded.\nHart and Bird, JJ., agree.", "type": "majority", "author": "D.P. Marshall Jr., Judge." } ], "attorneys": [ "Constance Grayson, for appellant.", "Dustin McDaniel, Att\u2019y Gen., by: Nicana C. Sherman, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Emmanuel Joseph LEE v. STATE of Arkansas\nCA CR 07-429\n279 S.W.3d 496\nCourt of Appeals of Arkansas\nOpinion delivered March 12, 2008\nConstance Grayson, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Nicana C. Sherman, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0023-01", "first_page_order": 51, "last_page_order": 60 }