{
  "id": 6139571,
  "name": "Johnny STEPHENS v. STATE of Arkansas",
  "name_abbreviation": "Stephens v. State",
  "decision_date": "2007-03-21",
  "docket_number": "CA CR 06-687",
  "first_page": "196",
  "last_page": "201",
  "citations": [
    {
      "type": "official",
      "cite": "98 Ark. App. 196"
    },
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      "cite": "254 S.W.3d 1"
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  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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    "name_long": "Arkansas",
    "name": "Ark."
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    {
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          "parenthetical": "holding that reference to a defendant's use of methamphetamine had no independent relevance to murder and kidnapping charges"
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        6135963,
        298590
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      "cite": "59 Ark. App. 1",
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      "cite": "Ark. Code Ann. \u00a7 5-53-105",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 2005,
      "pin_cites": [
        {
          "parenthetical": "providing that it is not a defense to perjury that the \"oath was administered or taken in an irregular manner\" or the \"person administering the oath lacked authority to administer the oath if the taking of the oath was required by law\""
        }
      ],
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    {
      "cite": "Ark. Code Ann. \u00a7 5-53-101",
      "category": "laws:leg_statute",
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      "pin_cites": [
        {
          "parenthetical": "A"
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    {
      "cite": "Ark. Code Ann. \u00a7 5-53-102",
      "category": "laws:leg_statute",
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      "year": 2005,
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          "page": "(a)"
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    {
      "cite": "Ark. Code Ann. \u00a7 16-43-212",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
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      "year": 2005,
      "pin_cites": [
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        {
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    {
      "cite": "614 S.W.2d 259",
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      "year": 1981,
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    {
      "cite": "1 Ark. App. 245",
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        6141767
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  "analysis": {
    "cardinality": 562,
    "char_count": 12160,
    "ocr_confidence": 0.761,
    "pagerank": {
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      "percentile": 0.3367182797143772
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    "sha256": "bb1c28694ac7188304790c740957fc341b8fe486d2375f157b25b9419a539677",
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  "last_updated": "2023-07-14T22:09:49.949226+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Pittman, C.J., and Bird, J., agree."
    ],
    "parties": [
      "Johnny STEPHENS v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Josephine Linker Hart, Judge.\nA jury found appellant, J Johnny Stephens, guilty of first-degree murder in the death of Jamar Jordan. On appeal, appellant argues that the circuit court erred by permitting the State to introduce as substantive evidence a witness\u2019s prior inconsistent statement and by permitting a witness to testify that he called appellant\u2019s pager for the purpose of purchasing drugs from appellant. We conclude that this evidence was erroneously admitted, and accordingly, we reverse and remand for a new trial.\nDuring the trial, the State called as a witness Dedrick Weems. Weems testified that he knew appellant and the victim, Jamar Jordan. The State asked Weems about a statement he gave to Little Rock Police Department Detective Keith Cockrell. Weems testified that the statement was untruthful, that he had only stated to Cockrell what another detective told him to state, and that he did not know if appellant shot Jordan.\nThe State then offered the statement into evidence. A transcript of Weems\u2019s statement begins by Cockrell stating that a deputy prosecuting attorney, Jack McQuary, .was present. Mc-Quary then placed Weems under oath and told him that, if he did not tell the truth to Cockrell, he could be prosecuted for false swearing or perjury. Following this, McQuary stated, \u201cOkay, at this time I will be leaving the interview.\u201d Cockrell then questioned Weems. To summarize the interview, Weems stated that, after he delivered cocaine to appellant and was leaving, Jordan drove by appellant\u2019s residence, stopped, and spoke to Weems. Weems stated that he then saw appellant run from the porch of a residence and shoot Jordan several times. Weems further stated that appellant and another person, Greg Peterson, had been best friends, that Peterson had been killed, and that appellant was mad about it and had stated that if he ever caught \u201cone of them boys slipping, I\u2019m gonna nail one of them.\u201d Weems further stated, \u201cSo that night man, he caught Jamar slipping and dealt it.\u201d\nAt trial, the State offered the statement into evidence and argued that, in accordance with Rule 801 (d)(l)(i) of the Arkansas Rules of Evidence and Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 259 (1981), Weems\u2019s statement was not hearsay because Detective Cockrell took the statement after Weems had been placed under oath by a deputy prosecuting attorney. Counsel for appellant objected, asserting, among other arguments, that the statement was hearsay. The court overruled appellant\u2019s objection. On appeal, appellant again argues that the statement was hearsay.\nRule 801 (d)(1)(i) provides that \u201c[a] statement is not hearsay if. . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . inconsistent with his testimony and, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding.\u201d The statute governing the issuance of subpoenas by prosecuting attorneys provides in part that \u201cprosecuting attorneys and their deputies may issue subpoenas in all criminal matters they are investigating and may administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them.\u201d Ark. Code Ann. \u00a7 16-43-212(a) (Supp. 2005). We note that \u201c[a] person commits perjury if in any official proceeding he or she makes a false material statement, knowing it to be false, under an oath required or authorized by law.\u201d Ark. Code Ann. \u00a7 5-53-102(a) (Repl. 2005). For the purposes of the perjury statute, an \u201cofficial proceeding\u201d is \u201ca proceeding heard before any legislative, judicial, administrative, or other government agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or depositions in any such proceeding.\u201d Ark. Code Ann. \u00a7 5-53-101 (4)(A) (Repl. 2005). In Slavens, this court held that a prior inconsistent statement given under oath to a deputy prosecuting attorney pursuant to a prosecutor\u2019s subpoena was admissible as substantive evidence in accordance with Rule 801 (d) (1) (i).\nAppellant argues that, in contrast to Slavens, the deputy prosecuting attorney here placed Weems under oath and then left the interview, which was then conducted by Cockrell. Appellant asserts that the interrogation was not an \u201cofficial proceeding\u201d because Cockrell was not authorized to take the statement and that consequently Weems was not subject to the penalty of perjury when he answered Cockrell\u2019s questions. Appellant concludes that Weems\u2019s statement should not have been admitted under Rule 801(d)(l)(i).\nThe State asserts that any complaints about the validity of the oath cannot be raised by appellant and in any event may only be raised by Weems. See Ark. Code Ann. \u00a7 5-53-105 (Repl. 2005) (providing that it is not a defense to perjury that the \u201coath was administered or taken in an irregular manner\u201d or the \u201cperson administering the oath lacked authority to administer the oath if the taking of the oath was required by law\u201d). But it is not the validity of the oath we are concerned about here, as we must still determine whether this was a \u201cproceeding\u201d contemplated by Rule 801(d)(l)(i), and this necessarily requires that we consider any attendant irregularities. Here, the prosecutor\u2019s subpoena was not used for the deputy prosecutor\u2019s investigation \u2014 who left the interrogation \u2014 but instead was used for the detective\u2019s investigation. The Arkansas Supreme Court has previously noted that it is illegal to use a prosecutor\u2019s subpoena power to obtain the presence of a witness for questioning by a police officer, absent the prosecutor. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). Further, Ark. Code Ann. \u00a7 16-43-212(a) provides that prosecutors may administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them, indicating that it is the prosecutor who is to take the testimony. Thus, Cockrell was not the proper party to take testimony. Moreover, given this irregularity, the statement was not taken during an \u201cofficial proceeding\u201d such that a false statement would be subject to the penalty of perjury, as Cockrell was not an official authorized to take the statement. Because the statement was taken in contravention of Ark. Code Ann. \u00a7 16-43-212(a), not by a prosecutor but instead by a police officer, and further considering that the testimony was not given at an \u201cofficial proceeding\u201d such that Weems was subject to the penalty of perjury, we conclude that the testimony was not given during a \u201cproceeding\u201d contemplated by Rule 801(d)(l)(i), and Slavens is not controlling. Thus, we conclude that the statement was improperly admitted, and accordingly, we reverse and remand for a new trial.\nOn this point, the State further asserts that reversal is not warranted because Weems\u2019s hearsay statement was cumulative to other evidence admitted without objection, particularly the testimony of the only eyewitness who testified about the shooting, Marcus Coleman. The erroneous admission of hearsay evidence is not reversible error if it is cumulative to other evidence admitted without objection. See, e.g., Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996). Weems\u2019s hearsay statement, however, provided the only evidence of a possible motive for the shooting. Accordingly, the hearsay was not cumulative. Furthermore, the hearsay was not cumulative because Weems\u2019s statement was based on his own observations \u2014 not Coleman\u2019s observations. Moreover, while an evidentiary error may be declared harmless if the evidence of a defendant\u2019s guilt is overwhelming and the error is slight, see, e.g., Green v. State, 59 Ark. App. 1, 953 S.W.2d 60 (1997), we cannot say that the error was harmless, as the hearsay provided the jury with a second eyewitness account.\nWe also reverse on appellant\u2019s second allegation of error. Police discovered a pager at the crime scene and later determined that Stuart Fijo had made calls to that pager. At trial, Fijo testified that he knew appellant by the name of \u201cJay\u201d and that when he called the pager, appellant would \u201cbring me drugs.\u201d Citing Rule 404(b) of the Arkansas Rule of Evidence, appellant argues, as he did immediately prior to Fijo\u2019s testimony below, that the testimony, insofar as it indicated that Fijo called appellant to obtain drugs, was not admissible because it was not relevant to the charged crime and was highly prejudicial.\nRule 404(b) provides that \u201c[e]vidence 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,\u201d but that it may \u201cbe admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\u201d Evidence that is offered pursuant to Rule 404(b) must be independently relevant in that it tends to prove a material point. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006).\nThe State submits that the evidence was introduced to explain how Fijo knew appellant. We conclude that while Fijo\u2019s testimony that he called the pager to contact appellant was relevant to establish appellant\u2019s identity, Fijo\u2019s testimony regarding the purpose for calling appellant was not independently relevant to prove a material point related to the murder charge. See Green, 365 Ark. at 497-98, 231 S.W.3d at 654 (holding that reference to a defendant\u2019s use of methamphetamine had no independent relevance to murder and kidnapping charges). Nor do we conclude, as suggested by the State, that it was part of the res gestae. With respect to drug use as part of the res gestae of the crime, the Arkansas Supreme Court has stated that evidence of drug use and drug dealing is part of the res gestae where it was intermingled and contemporaneous with the commission of the crimes charged. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006). Here, appellant\u2019s alleged providing of drugs to Fijo was unrelated to Jordan\u2019s death. Consequently, we conclude that the circuit court improperly admitted the testimony.\nReversed and remanded.\nPittman, C.J., and Bird, J., agree.\nAs a third point for appeal, appellant argues that the circuit court erred in refusing to grant a mistrial after a witness for the State testified that appellant was \u201clocked up.\u201d During the colloquy with the court, however, the State observed that the comment by the witness was inadvertent. Given this, we do not address the issue, as it is not likely to recur on retrial.\nWe disagree with the State\u2019s assertion that appellant\u2019s argument was not raised below. At trial, the State sought admission ofWeems\u2019s statement under Rule 801 (d) (l)(i) and Slavens, and appellant made a hearsay objection, which the court overruled. Then, during a bench conference prior to the admission ofWeems\u2019s statement, counsel for appellant argued that Slavens was not applicable. The State asserted that the statement was admissible under Slavens, where a deputy prosecutor questioned the declarant under oath. Counsel for appellant responded that the \u201cdeputy prosecutor didn\u2019t question Mr.Weems. A police officer did.\u201d The State responded that it does not \u201cmatter who questions him. The question is whether or not he was placed under oath.\u201d The court concluded that Weems was under oath, so Weems\u2019s statement was not hearsay and that according to Slavens, the statement could be admitted as substantive evidence. To summarize, the State sought admission of the statement, appellant argued that the statement was hearsay, the State cited Slavens and argued the statement was not hearsay, appellant distinguished Slavens, and the court concluded that Slavens was controlling. We conclude that appellant\u2019s argument at trial challenging the applicability of Slavens preserved the point for appeal.",
        "type": "majority",
        "author": "Josephine Linker Hart, Judge."
      }
    ],
    "attorneys": [
      "Bill Luppen, for appellant.",
      "Mike Beebe, Att\u2019y Gen., by: Vada Berger, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Johnny STEPHENS v. STATE of Arkansas\nCA CR 06-687\n254 S.W.3d 1\nCourt of Appeals of Arkansas\nOpinion delivered March 21, 2007\n[Rehearing denied April 25, 2007.]\nBill Luppen, for appellant.\nMike Beebe, Att\u2019y Gen., by: Vada Berger, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0196-01",
  "first_page_order": 226,
  "last_page_order": 231
}