{ "id": 6138517, "name": "Raymond WARREN v. STATE of Arkansas", "name_abbreviation": "Warren v. State", "decision_date": "1997-11-05", "docket_number": "CA CR 97-164", "first_page": "155", "last_page": "162", "citations": [ { "type": "official", "cite": "59 Ark. App. 155" }, { "type": "parallel", "cite": "954 S.W.2d 298" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "322 Ark. 647", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447563 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "663" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0647-01" ] }, { "cite": "314 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912743 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "371" }, { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ark/314/0361-01" ] }, { "cite": "325 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369138 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "245" }, { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0237-01" ] }, { "cite": "320 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451240 ], "weight": 4, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0100-01" ] }, { "cite": "890 S.W.2d 602", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1455739, 1453575 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/318/0689-01", "/ark/319/0291-01" ] }, { "cite": "318 Ark. 689", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455739 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/318/0689-01" ] }, { "cite": "55 Ark. App. 275", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142314 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/55/0275-01" ] }, { "cite": "310 Ark. 358", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898897 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0358-01" ] }, { "cite": "314 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912729 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0008-01" ] }, { "cite": "291 Ark. 268", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872714 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0268-01" ] }, { "cite": "291 Ark. 575", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872612 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "581" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ark/291/0575-01" ] }, { "cite": "300 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886908 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "364-65" }, { "page": "158" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/300/0360-01" ] }, { "cite": "328 Ark. 613", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50374 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "627" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0613-01" ] }, { "cite": "320 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451172 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "493-94" }, { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/ark/320/0489-01" ] }, { "cite": "319 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453650 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "138" }, { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ark/319/0132-01" ] }, { "cite": "329 Ark. 73", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236242 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "79" }, { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/ark/329/0073-01" ] } ], "analysis": { "cardinality": 756, "char_count": 13434, "ocr_confidence": 0.735, "pagerank": { "raw": 1.0504881428589067e-07, "percentile": 0.5538575801137441 }, "sha256": "a38e2dc2b677aee8f6727fcca0764709171d018f2c56f5ef9e333169a036945a", "simhash": "1:a32c4c04714ed58f", "word_count": 2213 }, "last_updated": "2023-07-14T22:52:20.779016+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Meads, J., agree." ], "parties": [ "Raymond WARREN v. STATE of Arkansas" ], "opinions": [ { "text": "Terry Crabtree, Judge.\nRaymond Warren was convicted by a jury of possession of cocaine. Warren alleges three eviden-tiary errors in the trial. We find sufficient error in appellant\u2019s first point to reverse his conviction, and we address his second two points on appeal for the limited purpose of giving guidance to the trial court since the same issues are likely to arise again on retrial. See Pyles v. State, 329 Ark. 73, 79, 947 S.W.2d 754, 757 (1997).\nAppellant was stopped on November 18, 1994, for speeding. The officer detected the odor of intoxicants, conducted field sobriety testing, and then arrested appellant. Officers then searched his vehicle, finding a loaded .38 caliber revolver and a cellophane bag containing nine pieces of an off-white roclc-like substance later determined to be crack cocaine. Officers also found $1,335 in bills and a large number of coins on appellant\u2019s person.\nA civil forfeiture proceeding ensued over the $1,335 pursuant to Arkansas Code Annotated \u00a7 5-64-401 (Supp. 1995). In that action, the court found that appellant had won this money in a crap game shortly before his arrest, and that the State had failed to prove it was proceeds or profits from a drug sale. However, despite this determination before Judge Samuel Turner in the civil forfeiture action, the State successfully introduced the money into evidence in the criminal trial.\nAlso, on May 11, 1995, officers obtained a warrant and searched appellant\u2019s residence, finding additional drug paraphernalia and drug residue. Charges stemming from this search were dismissed, but the State successfully introduced the seized paraphernalia in the present case.\nAppellant\u2019s first point on appeal is that the trial court erred by admitting evidence seized in a search six months after the arrest for which appellant was being tried. The evidence consisted of scales, a plate with crack cocaine, and a pill bottle with cocaine residue. The trial court allowed this evidence to be admitted under Ark. R. Evid. 404(b) and the probative/prejudicial balancing test of Rule 403.\nRule 404(b) states:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\nIn the present case, the trial court ruled, as abstracted:\nIn view of the issues raised by the defense in the jury selection process, the Court is going to rule that the evidence is admissible under Rule 404(b) for another purpose such as proof of knowledge, intent, absence of mistake or accident, to rebut the suggestion made by the defendant\u2019s attorney during the jury selection process that these items were placed, without the defendant\u2019s knowledge, in the vehicle. I am willing to give a cautionary instruction in relation to this testimony. I am also willing to limit the manner in which the evidence is presented to present it in as bare a fashion as possible and also one that would limit any prejudicial effect.\nIn his pretrial ruling on the motion in limine to exclude the fruits of the later search, the trial court cautioned defendant\u2019s attorney about possibly \u201copening the door\u201d to such evidence by disclaiming ownership of the drugs. Appellant contends his strategy was simply to force the State to prove each element of its case, and that his argument was purposefully limited to avoid disclaiming ownership of the drugs, which would have allowed extrinsic evidence to prove he had possessed drugs on other occasions. However, the trial court found fault in appellant\u2019s attempted line of questioning in voir dire. Essentially, appellant\u2019s attorney queried the potential jurors about whether they loaned their cars to people and whether they searched under the seat for contraband when the cars were returned. The State successfully objected to this line of questioning, and the standard instruction about statements of counsel not amounting to evidence was given. However, the trial court found that this exchange was sufficient to imply to the jurors that appellant was disclaiming ownership of the drugs, and therefore opened the door to the State to show his proximity to drugs and paraphernalia in the search six months later.\nAppellant now emphasizes that his questions in voir dire were timely and successfully objected to by the State, effectively closing any door he may have inadvertently opened. Also, appellant argues that under the same reasoning, a plea of not guilty could amount to an implication of a disclaimer of ownership, opening the door to admission under 404(b). Appellant\u2019s argument goes on to say,\nIt is difficult to understand how possession of controlled substance and paraphernalia alleged to be in the appellant\u2019s residence on May 11, 1995, can be relevant or probative to whether he had possession of a controlled substance under the seat of his vehicle on November 18, 1994. A future act certainly does not prove knowledge of a past act.\nIn response, the State simply argues that the evidence tending to prove some material point, rather than just labeling appellant a criminal, is admissible under 404(b) with a proper cautionary instruction. Lindsey v. State, 319 Ark. 132, 138, 890 S.W.2d 584, 587 (1994). Further, the State argues that it is proper to rebut defense claims of lack of knowledge by introducing evidence of other wrongs. Neal v. State, 320 Ark. 489, 493-94, 898 S.W.2d 440, 443 (1995). However, Neal is distinguished because in the present case, the appellant did not testify, and his only denial of knowledge is a strained implication from counsel\u2019s attempted line of questions during voir dire.\nAppellant argued vigorously to the trial court that its ruling was highly prejudicial, and would have the effect of labeling the defendant a \u201cdrug dealer\u201d to the jury based on facts wholly outside of the present information. Notably, the evidence admitted was from subsequent actions, and not prior acts as usually is the case under this rule. Appellant states in his brief that all of the cases that deal with Rule 404(b) involve prior acts. The State did not refute this assertion, but our own research discovered that subsequent actions have been admitted to show intent, but none of these cases have been so far removed in time or as tenuous in their link to the proffered evidence as the present case. For example, in Bragg v. State, 328 Ark. 613, 627, 946 S.W.2d 654, 661 (1997), the supreme court affirmed the trial court\u2019s admission of testimony about a subsequent drug transaction. However, in Bragg, the subsequent act was relevant to the State\u2019s challenged identification of the defendant and to show intent or lack of mistake regarding the drug charge stemming from a transaction one year prior.\nAlso, the case of Parker v. State, 300 Ark. 360, 364-65, 779 S.W.2d 156, 158 (1989), allowed subsequent acts to be admitted under Rule 404(b). However, the subsequent acts in Parker were closely linked in time as a part of the State\u2019s evidence of the defendant\u2019s plan to murder an entire family. The court reasoned, \u201cthe entire sequence of events was such an inseparable whole that the State was entitled to prove the entire criminal episode.\u201d Id. (citations omitted). However, the present case is easily distinguished since there is no indication that the initial traffic stop is part of a criminal episode culminating six months later in the search of appellant\u2019s house and the seizure of paraphernalia.\nFinally, the case of Thrash v. State, 291 Ark. 575, 581, 726 S.W.2d 283, 286 (1987), allowed evidence of subsequent acts under Rule 404(b) when subsequent burglaries established a time-frame that was independently relevant, and where the burglaries were committed with the same modus operandi, or same unique method of operation. Id. (citing Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987).) However, the facts here include neither a time frame for the commission of a crime, nor a unique method of operation.\nThe standard of review is a high hurdle in overturning a trial court\u2019s evidentiary ruling under Rule 403 or 404(b). The standard of review of a trial court\u2019s weighing of probative value against unfair prejudice is whether the trial court abused its discretion. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993). The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992).\nHowever, we find appellant\u2019s argument logically and legally persuasive. The limited case law holding subsequent acts admissible under Rule 404(b) is factually distinguishable from the present case. Further, the prejudicial impact of allowing the jury to see additional drug-related evidence stemming from an entirely separate, distinct, and remote (six months later) event is clearly prejudicial, and lacks any logical connection to the stop for speeding six months earlier. Accordingly, we hold that the trial court abused its discretion by admitting evidence that was seized six months after the act for which appellant was being tried, and that lacked any temporal or logical link to the current charge.\nReversing appellant\u2019s conviction on this first point renders his second two points moot, but we address them below to the extent that they may be revisited in a subsequent trial.\nFor his next point, appellant argues that the failed civil forfeiture proceeding to seize the $1,335 in currency as drug proceeds should completely bar its introduction in the instant criminal matter because of the court\u2019s finding of fact that the money was gambling proceeds. This action, appellant argues, also violated Rule 403 because it was intentionally misleading to the jury and highly prejudicial to the defendant. Without citing any case law, the appellant broadly argues that admitting the money was a violation of res judicata, and the civil judgment and finding of fact should have estopped the State from introducing the money in the criminal matter.\nCollateral estoppel bars the relitigation of issues, while res judicata bars the relitigation of claims. The policy consideration behind both theories is the finality of litigation. See gen. Newbern, Ark. Civil Prac. and Proc. (2d ed.), \u00a7 26-13; Coleman\u2019s Serv. Ctr. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). Collateral estoppel is more appropriate in the present case since appellant seeks to bar admission of a single fact already judicially determined.\nThe State contends that even though a civil court made a specific finding-of-fact to the contrary, the criminal court may allow into evidence the seized money and argue that it had a tendency to make the existence of any fact more probable. The State argues that this Rule 401 analysis' amounts to a lower burden of proof than what the State faced at the forfeiture hearing, and is therefore proper. In the alternative, the State argues that even if the money was improperly admitted, any error is harmless because of the overwhelming proof of guilt.\nBased on the potential independent relevance of the evidence, we find that the trial court did not abuse its discretion in admitting the money found on the person of the appellant at the time of the arrest.\nAppellant\u2019s final argument is based on the trial court allowing the State to essentially reopen its case and put on rebuttal evidence outside the scope of appellant\u2019s defense case, and based on the prosecutor\u2019s implied comment on appellant\u2019s failure to testify in his own defense. The trial court denied appellant\u2019s motion for a mistrial.\nDeclaration of a mistrial, of course, is a drastic remedy and is proper only when the error is beyond repair and cannot be corrected by any curative rebef. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). In addition, the granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).\nTurner v. State, 325 Ark. 237, 245, 926 S.W.2d 843, 848 (1996).\nHere, the State admits that a prosecutor\u2019s comment on a defendant\u2019s failure to testify can violate the right against self-incrimination sufficient to justify a mistrial. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). However, the State argues that the prosecutor\u2019s comments were merely proper argument about the defendant\u2019s knowledge, a necessary element of the crime. Further, counsel are given some latitude in opening and closing remarks, Littlepage v. State, 314 Ark. 361, 371, 863 S.W.2d 276, 281 (1993), and remarks during closing that require reversal are rare, requiring an appeal to the jurors\u2019 passions. Mills v. State, 322 Ark. 647, 663, 910 S.W.2d 682, 691 (1995). The remarks here do not appeal to the jurors\u2019 passions, and do not otherwise appear to require the drastic remedy of a mistrial.\nReversed and remanded.\nRobbins, C.J., and Meads, J., agree.", "type": "majority", "author": "Terry Crabtree, Judge." } ], "attorneys": [ "Daniel G. Ritchey, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Kelly Terry, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Raymond WARREN v. STATE of Arkansas\nCA CR 97-164\n954 S.W.2d 298\nCourt of Appeals of Arkansas Division III\nOpinion delivered November 5, 1997\nDaniel G. Ritchey, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kelly Terry, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0155-01", "first_page_order": 183, "last_page_order": 190 }