{ "id": 1880841, "name": "Lee D. NARD v. STATE of Arkansas", "name_abbreviation": "Nard v. State", "decision_date": "1990-12-17", "docket_number": "CR 90-111", "first_page": "159", "last_page": "163-B", "citations": [ { "type": "official", "cite": "304 Ark. 159" }, { "type": "parallel", "cite": "801 S.W.2d 634" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "301 Ark. 107", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885518 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0107-01" ] }, { "cite": "302 Ark. 498", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884334 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0498-01" ] }, { "cite": "275 Ark. 252", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753613 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0252-01" ] }, { "cite": "754 F.2d 277", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 288375 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/754/0277-01" ] }, { "cite": "290 Ark. 293", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873685 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0293-01" ] }, { "cite": "262 Ark. 267", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675841 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0267-01" ] }, { "cite": "4 Ark. App. 326", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141990 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "the court of appeals, citing Rule 803(8" }, { "parenthetical": "the court of appeals, citing Rule 803(8" } ], "opinion_index": 0, "case_paths": [ "/ark-app/4/0326-01" ] }, { "cite": "282 Ark. 274", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740708 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/282/0274-01" ] }, { "cite": "303 Ark. 202", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882725 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0202-01" ] }, { "cite": "Ark. Code Ann. \u00a7 12-12-313", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(d)", "parenthetical": "Supp. 1989" } ], "opinion_index": 0 }, { "cite": "488 U.S. 33", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495401 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/us/488/0033-01" ] }, { "cite": "300 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886908 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/ark/300/0360-01" ] }, { "cite": "Ark. Code Ann. \u00a7 12-12-313", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(d)", "parenthetical": "Supp. 1989" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 625, "char_count": 11563, "ocr_confidence": 0.893, "pagerank": { "raw": 5.198000121667228e-07, "percentile": 0.94031138494947 }, "sha256": "4707e5f72d9a202e93c385ab1d9a5b1432a0f934ddcfb590f5acff1b9e4bd760", "simhash": "1:fe58b0be6d6a93fe", "word_count": 1883 }, "last_updated": "2023-07-14T15:15:14.712931+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin and Brown, JJ. not participating." ], "parties": [ "Lee D. NARD v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis is a criminal case in which appellant was convicted on three counts of delivery of cocaine arising out of alleged transactions on May 30, 1989, July 12, 1989, and August 18,1989. He was sentenced to forty years and a $25,000 fine on each count, and the terms of imprisonment were set to run concurrently. On appeal, appellant raises two points for reversal.\nAppellant first complains that, in trying one of the three charges against him, viz., the August 18 transaction, the prosecutor failed to comply with Ark. Code Ann. \u00a7 12-12-313(d) (1) (Supp. 1989). Simply put, the prosecutor, in attempting to prove one of the three charges against the appellant, improperly introduced a chemical analysis report through Norman Kemper, a chemist with the State Crime Laboratory, who had not personally performed the analysis. The analysis report was purportedly prepared by Keith Kerr, another chemist who worked in the laboratory. In introducing the report, the state had Kemper acknowledge Kerr\u2019s signature, which appeared at the bottom of the report, and further had him relate that Kerr was a certified drug chemist who had worked in the crime laboratory for the past three years. Citing \u00a7 12-12-313(d)(1), appellant objected to the report\u2019s introduction because the report had not been properly attested. The trial court overruled appellant\u2019s objection, indicating the report\u2019s introduction had been previously decided in \u201cpre-trial.\u201d\nIn explanation of the trial court\u2019s \u201cpre-trial\u201d remark, our review of the record reflects that, before lunch break on the day of trial, the prosecutor informed the trial court that Kerr could not testify due to a scheduling conflict that made him a witness elsewhere in the state. The prosecutor stated that, in lieu of Kerr\u2019s live testimony, he would introduce Kerr\u2019s report pursuant to \u00a7 12-12-313(d)(1), after deleting a reference to another case mentioned in the report. The trial court asked if there was any objection to the report if the deletion was made. The appellant responded, \u201cNo.\u201d The state argues the appellant should have objected at this time rather than doing so later when the report was offered during Kemper\u2019s testimony. In other words, since appellant did not object at the first opportunity to the report\u2019s introduction, the state claims he waived his objection. See Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984).\nWe reject the state\u2019s contention. Upon revealing his inability to present Kerr as a witness, the prosecutor informed the trial court and appellant that he would introduce Kerr\u2019s report under \u00a7 12-12-313(d)(1) and specifically indicated that the report would be duly attested. While appellant interposed no objection at this initial opportunity, it nowhere appears in the record that appellant was aware that the report to be offered by the state would not be properly attested. When the state actually introduced the report at trial, appellant objected the report did not, in fact, comply with \u00a7 12-12-313(d)(1) because it merely contained a certification, not an attestation or \u201clanguage to the effect [the report] was sworn to.\u201d Thus, under these circumstances, we believe the appellant\u2019s objection was timely.\nIn addressing appellant\u2019s first argument, we note \u00a7 12-12-313(a) (Supp. 1989) provides that, subject to the rules of criminal procedure, courts shall receive drug analysis reports as competent evidence when the reports are duly attested to by the executive director or his assistants, associates, or deputies. Section 12-12-313(d)(1) further provides as follows:\n(d)(1) All records and reports of evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the employee who performed the analysis.\nHere, the disputed drug analysis report reflected Kerr\u2019s signature and it was stamped with the words \u201cThis is a True and Certified Report of the Analysis of the Indicated Sample.\u201d Superimposed on these words was a notary seal and the signature of \u201cR.L. Keith,\u201d notary public. The question arises as to whether this certification and notarization satisfies the \u201cduly attested to\u201d requirement under \u00a7 12-12-313(d) (1). We hold the state\u2019s report was not attested in the manner contemplated by \u00a7 12-12-313(d)(1).\nAttest has been defined as follows: \u201cTo bear witness to, certify; declare the truth of, in words or writing, esp. affirm in an official capacity; to attest the truth of a statement.\u201d See The Random House Dictionary of the English Language.\nSection 12-12-313(a) and (d)(1) clearly permitted Kerr\u2019s chemist report to be admitted into evidence for the truth of the findings and statements contained in it if Kerr had attested to their validity. In fact, the General Assembly appears to have provided this exception for the introduction of this type governmental report in criminal proceedings, assuming it meets the prerequisites of the statute; otherwise, such reports are considered inadmissible hearsay under Rule 803(8)(iii) of the Uniform Rules of Evidence. See also Llewellyn v. State, 4 Ark. App. 326, 630 S.W.2d 555 (1982) (the court of appeals, citing Rule 803(8), affirmed the trial court\u2019s exclusion of a chemist\u2019s report as inadmissible hearsay because the testifying witness, the supervisor of the State Crime Laboratory, did not have any personal knowledge of the drug testing done by the chemist who performed the tests and prepared the report.)\nConsidering the major purposes of \u00a7 12-12-313, to allow hearsay reports under limited conditions, we feel confident that the General Assembly intended for the phrase \u201cduly attested to\u201d to require more than the mere signature of the person or chemist who performed the analysis, as was the situation here. Undoubtedly, some indicia of truthfulness must attend such a report\u2019s admissibility when it is introduced into a criminal proceeding as competent evidence. That assurance of truthfulness can best be given by the one who performed the tests and made the analysis as is provided by \u00a7 12-12-313(d)(1).\nBefore leaving this first point, we note the state\u2019s alternative argument that even if the report was not admitted properly under \u00a7 12-12-313(d)(1), there was no prejudice because the police officer involved in the drug transaction testified and could identify the substance. See Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). While such testimony of an officer may be elicited so as to prove an item to be a controlled substance, the state in this case never asked the officer to give her opinion as to whether the substance she purchased and obtained through appellant\u2019s assistance was cocaine.\nWe do agree with the state\u2019s argument that its failure to prove the one drug charge against appellant does not require the reversal of the other two counts. The state presented strong proof to establish appellant\u2019s guilt as to these other drug delivery charges, and we have held that when a judgment in a criminal case is correct as to the one count but erroneous as to another, this court has the power to sever the judgment and affirm the count(s) upon which there was a proper conviction and reverse the other count. Martin v. State, 290 Ark. 293, 718 S.W.2d 938 (1986). From our examination of strong evidence in this case, we believe the jury\u2019s verdict giving the maximum penalty on the other two counts to run concurrently was not affected by the one erroneous conviction which we hold must be reversed. See Id.; Lee v. Lockhart, 754 F.2d 277 (8th Cir. 1985).\nIn his second point, appellant contends Officer Barbara Crow\u2019s rebuttal testimony was improper and therefore reversible error. Appellant\u2019s defense was that he never sold, purchased or delivered any cocaine, and he had never seen Officer Crow who testified he had. Appellant\u2019s wife, Jannette, corroborated her husband\u2019s story and specifically denied having met Crow during one of the drug transactions. The state called Crow to rebut Jannette\u2019s version. Clearly Crow\u2019s testimony involved a collateral matter, viz., whether she had ever met appellant\u2019s wife during one of the drug deals. We have held that a witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982).\nAlthough we agree, and the state seems to conclude, that Crow\u2019s rebuttal testimony was error, we cannot agree such error requires reversal. This court will not reverse a conviction for an error which is unaccompanied by a showing of prejudice. Richmond v. Smith, 302 Ark. 498, 791 S.W.2d 691 (1990); Goldsmith v. State, 301 Ark. 107, 782 S.W.2d 361 (1990). Here, appellant simply failed to show any prejudice resulting from Crow\u2019s rebuttal testimony.\nThomas A. Potter, for appellant.\nMary B. Stallcup, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee.\nFor the reasons given above, we reverse and dismiss the one delivery of cocaine count that allegedly occurred on August 18, 1989, but affirm the remaining two convictions and sentences.\nKemper performed the tests on the substances obtained in the other two drug transactions with which appellant was charged, and appellant does not challenge the testimony and evidence underlying those charges.", "type": "majority", "author": "Tom Glaze, Justice." }, { "text": "SUPPLEMENTAL OPINION OF DENIAL OF REHEARING\nJANUARY 22, 1991\nTom Glaze, Associate Justice.\nIn its petition for rehearing, the state does not take issue with this court\u2019s reversal of appellant\u2019s conviction of the delivery of cocaine count that allegedly occurred on August 18, 1989. However, it does argue that this court should have remanded that count for retrial rather than dismissing it. The state is correct, and therefore we modify our December 17,1990 opinion to reflect a remand of that count.\nThis court has held that reversal for trial error will not preclude retrial. Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989). More specifically, when a reviewing court determines that a defendant\u2019s conviction must be set aside because certain evidence was erroneously admitted against him, the double jeopardy clause does not forbid his retrial so long as the sum of the evidence offered by the state and admitted by the trial court \u2014 whether erroneously or not \u2014 would have been sufficient to sustain a guilty verdict. Lockhart v. Nelson, 488 U.S. 33 (1988).\nHere, the point requiring reversal was the trial court\u2019s erroneously admitting into evidence a chemical analysis report which did not conform to the requirements of Ark. Code Ann. \u00a7 12-12-313(d)( 1) (Supp. 1989). This was clearly trial error. However, when considering the report and other evidence presented by the state, sufficient evidence existed to support the conviction or count in issue. Accordingly, we must reverse and remand that count for possible retrial.\nAppellant also petitions for rehearing, but in doing so, merely reargues his earlier contention that Officer Crow\u2019s rebuttal testimony was both improper and prejudicial. Because his petition constitutes nothing more than reargument, we deny appellant\u2019s petition. See Ark. Sup. Ct. R. 20(g).\nCorbin and Brown, JJ. not participating.", "type": "rehearing", "author": "Tom Glaze, Associate Justice." } ], "attorneys": [ "Thomas A. Potter, for appellant.", "Steve Clark, Att\u2019y Gen., by: Theodore Holder, Asst. Att\u2019y Gen., for appellee.", "Thomas A. Potter, for appellant.", "Mary B. Stallcup, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Lee D. NARD v. STATE of Arkansas\nCR 90-111\n801 S.W.2d 634\nSupreme Court of Arkansas\nOpinion delivered December 17, 1990\n[Supplemental Opinion on Denial of Rehearing January 22, 1991.]\nThomas A. Potter, for appellant.\nSteve Clark, Att\u2019y Gen., by: Theodore Holder, Asst. Att\u2019y Gen., for appellee.\nCorbin and Brown, JJ., not participating." }, "file_name": "0159-01", "first_page_order": 191, "last_page_order": 197 }