{ "id": 1912767, "name": "Nylon VICK v. STATE of Arkansas", "name_abbreviation": "Vick v. State", "decision_date": "1993-11-01", "docket_number": "CR 93-668", "first_page": "618", "last_page": "627", "citations": [ { "type": "official", "cite": "314 Ark. 618" }, { "type": "parallel", "cite": "863 S.W.2d 820" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "311 Ark. 529", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896975 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0529-01" ] }, { "cite": "298 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889869 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0091-01" ] }, { "cite": "295 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893824 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0178-01" ] }, { "cite": "308 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904367 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0154-01" ] }, { "cite": "310 Ark. 575", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898949 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0575-01" ] }, { "cite": "840 S.W.2d 797", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1898804 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0690-01" ] }, { "cite": "310 Ark. 691", "category": "reporters:state", "reporter": "Ark.", "year": 1992, "opinion_index": 0 }, { "cite": "483 U.S. 171", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28364 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/483/0171-01" ] }, { "cite": "312 Ark. 106", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935064 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0106-01" ] }, { "cite": "408 U.S. 204", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782725 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/408/0204-01" ] }, { "cite": "309 Ark. 124", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906009 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0124-01" ] }, { "cite": "300 Ark. 174", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886800 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0174-01" ] }, { "cite": "313 Ark. 426", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914584 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0426-01" ] }, { "cite": "770 S.W.2d 653", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1888395, 1888358 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0025-01", "/ark/299/0024-02" ] }, { "cite": "299 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888395 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0025-01" ] } ], "analysis": { "cardinality": 808, "char_count": 15319, "ocr_confidence": 0.918, "pagerank": { "raw": 1.4422463485087104e-07, "percentile": 0.6533618369256277 }, "sha256": "f14869332af735247870d5577bcd2223a1c942b8409936eac79d929a4c64da3b", "simhash": "1:0a7ecf86682cdd28", "word_count": 2561 }, "last_updated": "2023-07-14T21:22:56.854306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Nylon VICK v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nThe appellant, Nylon Vick, was convicted of rape and kidnapping in 1993. He had previously been convicted of the same charges in 1988, and we affirmed those convictions. Vick v. State, 299 Ark. 25, 770 S.W.2d 653 (1989). He subsequently filed a pro se petition for a writ of habeas corpus in federal court which was ultimately granted on grounds of ineffective counsel and a new trial was conducted in 1993 which resulted in renewed convictions.\nThe appellant now appeals his 1993 convictions on two grounds: (1) the trial court erred by allowing into evidence the transcript of the testimony of Lillie Oliver, a witness at the previous trial who did not appear at the 1993 trial; and (2) the trial court abused its discretion by denying appellant\u2019s motion for a mistrial because of testimony concerning the victim\u2019s character. Neither of these arguments has merit, and we affirm.\nOn June 22,1988, the victim who was a college student was selling books door-to-door in Little Rock for a company named Southwestern Company. At trial, she testified that on that date, she entered the home of the appellant to sell him books. During her presentation, Vick left the living room and returned with a pistol in his hand. He restrained the victim for a period of three days, forced her to use drugs, and raped her orally, anally, and vaginally. The rapes occurred repeatedly. She attempted to escape once and was captured and dragged back into the house. On the third day, she escaped successfully, ran to a nearby house, and contacted the police. She identified Vick from a photo spread at the Little Rock Police Department.\nOn retrial, the jury found Vick guilty of two counts of rape. He was sentenced to two terms of life in prison to be served consecutively. He was also found guilty of kidnapping and sentenced to an additional term of thirty years.\nI. FORMER TESTIMONY OF UNAVAILABLE WITNESS\nThe appellant initially contends that the trial court abused its discretion by allowing the State to read to the jury the testimony of a purportedly unavailable witness, Lillie Oliver, given at the previous trial. In support of this contention, the appellant posits a two-prong argument. First, he argues that the State failed to make a good faith effort to locate Lillie Oliver by reasonable means as required by Ark. R. Evid. 804(a)(5). Secondly, he argues that it was improper to admit the former Oliver testimony because the federal district court granted a writ of habeas corpus based on ineffective counsel at the first trial, which casts doubt on defense counsel\u2019s cross-examination of Oliver. Thus, under his theory, the former testimony of Ms. Oliver was not sufficiently developed to constitute a hearsay exception under Ark. R. Evid. 804(b)(1). Finally, he argues that his right to confront a witness under the Sixth Amendment was denied him.\nA witness is unavailable when absent from the trial and the proponent of the statement has been unable to procure the attendance or testimony by process or other reasonable means. Ark. R. Evid. 804(a)(5); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993). The party offering the testimony has the burden of proving the witness unavailable. Register v. State, supra; Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Also, the party seeking to introduce the prior testimony of an unavailable witness must show that a good faith effort has been made to procure the attendance of the missing witness. Register v. State, supra; Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992).\nIf a witness is unavailable, it is clear under our Rules of Evidence that former transcribed testimony of that witness may be presented at a second trial:\n(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:\n(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.\nArk. R. Evid. 804(b)(1).\nAt a pre-trial hearing, Durthey Bishop, an investigator for the office of the prosecuting attorney, described his work to locate Ms. Oliver in detail. He stated that he began the search in December of 1992 with a subpoena which listed Ms. Oliver\u2019s home address and telephone number. He checked the address and found that her house had been torn down. He then obtained a subpoena to research Ms. Oliver\u2019s past telephone records and found that her telephone had been disconnected. Bishop then contacted gas, electricity, and water utilities. He sought information indicating shut-off dates for old services and reconnect dates for new services. Nothing new was discovered. Bishop checked these records twice to be sure of their accuracy.\nAdditionally, Bishop asked about Ms. Oliver in her old neighborhood in Little Rock. Again, he was unsuccessful in obtaining information leading to Ms. Oliver\u2019s whereabouts. He also contacted Social Services to determine whether Ms. Oliver had received any type of support. This inquiry also was unrevealing. At the suggestion of Social Services, Bishop initiated a search of local nursing homes. During the pretrial hearing, he admitted that he had only contacted one nursing home but had made plans to contact several more in the area. He also stated that another caseworker had begun to check each nursing home. Bishop next reviewed criminal records. Though some criminal information was uncovered for a Lillie Oliver, he concluded that the person was not the Lillie Oliver in question due to an age discrepancy.\nThe appellant counters this testimony with the argument that his check of criminal records divulged a Lillie Oliver which the State was unable to locate. Based on this finding, appellant asserts that the State has not demonstrated a good faith effort to find Oliver. The appellant argues too that the State\u2019s failure to check each nursing home in Pulaski County is yet another demonstration of its lack of good faith.\nWe disagree. The State exerted considerable effort in its search for Oliver, and the search was thorough. A good faith effort to procure Oliver\u2019s presence for trial was certainly illustrated by Bishop\u2019s testimony, even though each nursing home in Pulaski County was not visited and a \u201cLillian Oliver\u201d listed in the criminal records was ultimately not found. We have no difficulty in affirming the trial court\u2019s finding of unavailability under Ark. R. Evid. 804(a)(5).\nNor should Ms. Oliver\u2019s testimony be barred for lack of opportunity to develop her testimony at the first trial under Ark. R. Evid. 804(b)(1) or as a violation of the appellant\u2019s right to confront witnesses under the Sixth Amendment. Mancusi v. Stubbs, 408 U.S. 204 (1972).\nThe essence of Ms. Oliver\u2019s testimony at the previous trial with pertinent cross-examination follows:\nOLIVER: Well, I was standing on the edge of my yard talking with one of those sanitary boys that works for the Sanitary Department, and this girl come running up. She was frightened to death. To me she was.\nAnd she grabbed me, and she asked me could I help her. And I asked her what\u2019s the matter? I said, \u201cNo.\u201d I said, \u201cI cannot help you.\u201d I said, \u201cYou just keep running.\u201d I said, \u201cRun on around there.\u201d I said, \u201cI can\u2019t help you.\u201d I said, \u201cWhat is it?\u201d She said there was a man after her to kill her. I said, \u201cWell, honey, run right around that other house,\u201d and she did.\nCross-examination then proceeded as follows:\nDEFENSE COUNSEL: Mrs. Oliver, I just have one question. Did you see anybody running after her?\nOLIVER: Well, I never seen nobody.\nDEFENSE COUNSEL: Okay.\nOLIVER: I did not.\nDEFENSE COUNSEL: Okay, you stood out there sometime after she passed you?\nOLIVER: Well, a few minutes later, because I was so weak that I couldn\u2019t stand too much longer.\nDEFENSE COUNSEL: And, okay, you were with a garbage man?\nOLIVER: Yes, but he was getting ready to pull off, then, at that time.\nDEFENSE COUNSEL: Okay.\nOLIVER: Uh huh (Meaning yes).\nAfter the preceding testimony was read into the record, counsel for the appellant proffered questions to the judge which he would have asked had Ms. Oliver been present at the trial:\nIf the live witness were here, I would refer to Defense Exhibit No. 1 (a photograph of the area where the appellant and Ms. Oliver lived) and ask where she lived in that (sic) to give the jury a better idea of where her house was and what her viewing position was, and if it conflicted, in fact, with the path that this lady was supposed to have run.\nWe first observe that the appellant clearly had the opportunity to cross-examine Ms. Oliver at the first trial under the hearsay exception for former testimony set out at Ark. R. Evid. 804(b)(1). Moreover, we do not agree that defense counsel\u2019s cross-examination of Ms. Oliver, albeit brief, warrants a reversal in this case. Our conclusion is bolstered by the questions proffered by counsel at the second trial which he contends he would have asked had she been present. The questions about location of the houses and Ms. Oliver\u2019s ability to see the victim\u2019s path of escape do not appear to develop Ms. Oliver\u2019s testimony appreciably more than the questions asked. Hence, we are unpersuaded that those questions are crucial to establishing the reliability of Oliver\u2019s testimony. At best, the proffered questions appear to be of marginal benefit to the appellant\u2019s cause. In sum, we conclude that the cross-examination was sufficient to afford the trier of fact a reasonable basis to evaluate the truth of Ms. Oliver\u2019s statements. See Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).\nWe turn next to the Confrontation Clause argument, which is related to the hearsay argument. The federal district court made no specific finding that defense counsel was ineffective in cross-examining Lillie Oliver at the first trial. In 1972, the United States Supreme Court decided a similar issue in Mancusi v. Stubbs, supra. There, the Court held that when a witness is unavailable and a party seeks to introduce former testimony of that witness as evidence in a new trial, such testimony meets the requirements of the Confrontation Clause if that prior testimony bears \u201cindicia of reliability.\u201d As in the instant case, in Mancusi the first conviction of the defendant was reversed because of ineffective assistance of counsel. However, in making that determination, the habeas court did not focus on the cross-examination of witnesses. Defense counsel was presumed ineffective because the time between appointment of counsel and the trial date was so short \u2014 four days. The Mancusi Court concluded that because the habeas court had not addressed itself to the effectiveness of the examination of the unavailable witness, the mere finding of ineffectiveness due to the brevity of preparation time did not determine the reliability of the former testimony.\nLikewise, in the habeas corpus review in the case before us, the premise for ineffectiveness was prior counsel\u2019s deficient investigation and preparation prior to trial. No specific finding was made that the cross-examination of Lillie Oliver was deficient or inadequate. As in Mancusi, we cannot say that the finding of ineffectiveness in trial preparation by the federal district court casts doubt on the reliability of Ms. Oliver\u2019s testimony. Nor do we conclude that the cross-examination itself rendered her testimony unreliable. We note on this point that reliability may be determined by the fact that the declaration to be admitted falls within a firmly rooted hearsay exception. Bourjailly v. United States, 483 U.S. 171 (1987); Bussard v. State, supra. Here, Ms. Oliver\u2019s testimony falls within such an exception as former recorded testimony. There was no error in the admission of Ms. Oliver\u2019s former testimony.\nII. CHARACTER TESTIMONY\nFor his second point, the appellant contends that the trial court should have granted a mistrial when three witnesses gave testimony describing the victim\u2019s character in violation of Ark. R. Evid. 404(2).\nA motion for mistrial is only appropriate where the error is beyond repair and cannot be corrected by any curative relief. Sullinger v. State, 310 Ark. 691, 840 S.W.2d 797 (1992); Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). The trial court has wide discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of discretion or manifest prejudice to the complaining party. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).\nThe first testimony complained of was given by DeShonda Davis:\nAfter we all looked out, well, see, my mom and my stepdad, they didn\u2019t believe us, because they figured that (the victim) wouldn\u2019t be with anyone, you know, like him.\nFollowing this statement, Vick objected and moved for a mistrial. The trial court correctly denied this motion since any error occasioned by this statement was plainly not beyond repair. Sullinger v. State, supra. The appellant then requested an admonishment. The court obliged and correctly admonished the jury to disregard the statement.\nThe second statement was given by Sandra Smith who stated about the victim: \u201cShe was a real nice young lady.\u201d The appellant again moved for a mistrial which was denied. However, in this instance the appellant failed to request an admonition, and none was given. This statement by Smith hardly warranted the drastic remedy of a mistrial declaration. Moreover, because the appellant failed to request curative relief, the trial court did not err in failing to admonish the jury. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988). It is clearly the appellant\u2019s obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal. Sullinger v. State, supra; Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989).\nThe third and final remarks complained of were made by Sally Morris, who stated:\n[T]hey recruit college students, and they sell us on being above average, you know.\nThey didn\u2019t take the average student.\nFollowing these remarks, Vick failed either to object and request an admonishment or to move for a mistrial. Accordingly, any argument regarding this statement is not preserved for appeal. Davasher v. State, supra.\nNor do we give credence to the appellant\u2019s contention that the cumulative effect of these statements was prejudicial. We have entertained an argument of cumulative error in rare and egregious cases. See, e.g., Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993). This is not such a case. No prejudice aggregated under these facts to require a reversal.\nThe record has been reviewed in this case for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and none has been found.\nAffirmed.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, by: Sandra S. Cordi, Deputy Public Defender, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Cathy Derden, Asst. Att\u2019y Gen., for appellee. ." ], "corrections": "", "head_matter": "Nylon VICK v. STATE of Arkansas\nCR 93-668\n863 S.W.2d 820\nSupreme Court of Arkansas\nOpinion delivered November 1, 1993\nWilliam R. Simpson, Jr., Public Defender, by: Sandra S. Cordi, Deputy Public Defender, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Cathy Derden, Asst. Att\u2019y Gen., for appellee. ." }, "file_name": "0618-01", "first_page_order": 650, "last_page_order": 659 }