{ "id": 3655839, "name": "Andre Deon McEWING v. STATE of Arkansas", "name_abbreviation": "McEwing v. State", "decision_date": "2006-06-01", "docket_number": "CR 05-1366", "first_page": "456", "last_page": "463", "citations": [ { "type": "official", "cite": "366 Ark. 456" }, { "type": "parallel", "cite": "237 S.W.3d 43" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "338 Ark. 152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243602 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0152-01" ] }, { "cite": "339 Ark. 266", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130662 ], "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "citing McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999)" }, { "parenthetical": "citing McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999)" } ], "opinion_index": 0, "case_paths": [ "/ark/339/0266-01" ] }, { "cite": "290 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873777 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0556-01" ] }, { "cite": "306 Ark. 464", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900955 ], "weight": 3, "year": 1991, "pin_cites": [ { "parenthetical": "citing Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986)" }, { "parenthetical": "citing Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986)" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0464-01" ] }, { "cite": "338 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243448 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0178-01" ] }, { "cite": "337 Ark. 219", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240934 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0219-01" ] }, { "cite": "334 Ark. 43", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655515 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0043-01" ] }, { "cite": "334 Ark. 285", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655480 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0285-01" ] } ], "analysis": { "cardinality": 705, "char_count": 13973, "ocr_confidence": 0.777, "pagerank": { "raw": 2.937389239216311e-07, "percentile": 0.8478409359001239 }, "sha256": "29fa0b95a5d4db75c5aed8e03a83149d7ef4243e54ab2572bb317d086de1acda", "simhash": "1:c33f6d26a5b1c209", "word_count": 2424 }, "last_updated": "2023-07-14T19:04:10.654271+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Andre Deon McEWING v. STATE of Arkansas" ], "opinions": [ { "text": "Jim Hannah, Chief Justice.\nAppellant Andre Deon McEwing was charged with aggravated robbery, theft of property, and first-degree battery in connection with the assault of Floyd Ross and the subsequent theft of his vehicle. A Pulaski County jury found him guilty of all three charges, and McEwing was sentenced to a term of life imprisonment for aggravated robbery, forty years\u2019 imprisonment for theft of property, and forty years\u2019 imprisonment for first-degree battery as a habitual offender, with the sentences to run concurrently. McEwing\u2019s sole point for reversal is that the circuit court abused its discretion in excluding one of his alibi witnesses from testifying at trial. As this is an appeal in which a term of life imprisonment has been imposed, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and, accordingly, we affirm.\nAt trial, the State\u2019s central witness was the victim, Floyd Ross. Ross testified that on Christmas Eve of 2003, he went to the area of Arkansas Baptist College, in Little Rock, to find some firewood to buy. While in the vicinity of the college, Ross was stopped by a man he identified as McEwing, whom he had met the previous October at a college event. McEwing told Ross that he was having car trouble and needed help. According to Ross, McEwing told him that he was cold, and Ross let him sit in his car as he drove toward McEwing\u2019s van. Once inside Ross\u2019s vehicle, McEwing waved a friend over, and the friend got in the backseat of Ross\u2019s vehicle. Ross testified that he \u201cgot a gut feeling,\u201d looked in the backseat via the rearview mirror, and saw that McEwing\u2019s friend had a gun.\nMcEwing\u2019s friend fired a shot but missed Ross, breaking out Ross\u2019s driver\u2019s side window. McEwing then pushed Ross into the backseat and shot him in the buttocks. Ross told the jury that he was begging for his life, trying to get out of the back door of the vehicle, and struggling with the man in the backseat who was trying to keep him inside the vehicle.\nRoss testified that he managed to get out of the vehicle and watched as McEwing drove it away. The van, which McEwing had claimed was broken down, then pulled in after Ross\u2019s vehicle and drove away after it. Ross ran to a nearby house and contacted the police, and paramedics took him to a hospital for treatment of his gunshot wound. On the night of the shooting, Ross was unable to identify McEwing by any name other than Big Dre. The next day, however, Ross gave McEwing\u2019s full name to Little Rock detectives. Ross testified that he eventually recovered his vehicle in Monticello, Arkansas.\nAt trial, McEwing sought to mount an alibi defense. On the morning of trial, he notified the State that he had two alibi witnesses: his mother, Annette McGee, and another woman named Janelle Young. Both women were expected to testify that McEwing was in Dermott at the time the alleged offense occurred in Little Rock. The State objected to allowing the witnesses to testify as follows:\nDeputy Prosecuting Attorney: The other issue, your Honor, regards defense witnesses.\nThe Court: Okay.\nDeputy Prosecuting Attorney: Apparently, Mr. Sullenberger found out about two witnesses on Friday and notified yesterday, which was approximately 24 hours before the trial. Then this morning, he notified us that one of those witnesses won\u2019t be testifying, but yet a new witness will testify. This is the \u2014 I believe, third trial setting. And the only reason that it\u2019s going today and not last Thursday, when there were no witnesses \u2014 and even at the Omnibus Hearing, when asked, there were no witnesses. First trial setting, no witnesses. Second trial setting, when he didn\u2019t show up on time, no witnesses. And now we\u2019re here the day of trial; we get a new witness. The day before trial we get a new witness. This is basically trial by ambush at this point, where we\u2019re stuck not being able to prepare for this. If it were \u2014 if the shoe were on the other foot and these were substantive witnesses, I don\u2019t think that the Court would allow us to introduce them and hold us to our burden of proof. And I just ask the same.\nThe Court: Mr. Sullenberger?\nDefense Counsel: This is a \u2014 what Mr. Finklestein is saying is true, your Honor. And Annette McGee is one of those. She is Mr. McEwing\u2019s mother. She is mentioned in the report as owning the vehicle that was allegedly used in this \u2014 this robbery. The other one, I was not made aware of until this morning. These witnesses are crucial for the defense, your Honor. If the State would like to take some time to interview those witnesses that would be fine with me, your Honor.\nThe Court: Who\u2019s the other witness? What\u2019s their \u2014\nDefense Counsel: Her name is Janelle Young.\nThe Court: Well, what is she going to testify to?\nDefense Counsel: That \u2014 both of them will testify that Mr. McEwing was in Dermott at the time the alleged offense occurred.\nThe Court: Well, they\u2019re alibi witnesses.\nDefense Counsel: They are.\nThe Court: Why \u2014 why weren\u2019t they made available until today?\nDefense Counsel: I had asked \u2014 called and asked Mr. McEwing a couple of weeks ago to furnish me with a witness list or any witnesses that he would have. And I\u2019ve had no contact with him until Friday \u2014Thursday and Friday of last week.\nDeputy Prosecuting Attorney: So if he shows up for trial last week on, I believe it was a Wednesday, with no witnesses. He comes here. We\u2019re ready \u2014 you know we\u2019re ready for trial but another case goes. And so he doesn\u2019t have any witnesses. He comes two and a half [sic] late for his jury trial on Thursday. Again, with no witnesses and gets what he wanted, which was he didn\u2019t want to go to trial that day. And now we\u2019re stuck with \u2014 okay, well now we have alibi\u2019s [sic] that, you know, in a case that happened I think it was Christmas Eve 2003. And lo and behold, you know, almost two years later we come up with alibi\u2019s [sic] on the eve of trial \u2014 or sorry, the day of trial with one of them. I just think it\u2019s unfair to the State to have to \u2014you know, based on the defendant\u2019s conduct. I\u2019m not saying Mr. Sullenberger did anything wrong. And in fact, I\u2019m saying it\u2019s the defendant who created this situation and now is trying to gain some benefit from it.\nDefense Counsel: Your Honor, Ms. McGee is mentioned in the file and she was her [sic] last Thursday. She\u2019s been here every time, she tells me.\nThe Court: Okay. Well, what I\u2019ll do is this. I\u2019ll let the State talk to both the witnesses, Janelle \u2014 what is her last name?\nDefense Counsel: Young.\nThe Court: Young and Annette McGee. I\u2019m not going to \u2014 if the State won\u2019t allow you all \u2014 if you all can\u2019t prepare a response to the \u2014 to their testimony, I\u2019m going to exclude Janelle Young. If McGee, Annette McGee is in the file, then I\u2019E aEow her to testify, but I\u2019E exclude JaneEe Young if the State doesn\u2019t \u2014 if they can\u2019t, because they may want to do her record or find out on that. It\u2019s just unfair. You can\u2019t do that. I won\u2019t aEow it unless the State has had a chance to talk to the witness and if it feels that it can adequately do a cross examination then I\u2019E aEow it. But otherwise I\u2019m not going to aEow that witness to testify. AE right.\nThus, the circuit court allowed the testimony ofMcEwing\u2019s mother because her name was contained in the State\u2019s file as having been associated with the case from the beginning. However, the circuit court\u2019s ruling on JaneEe Young was postponed until later, and depended on the State\u2019s ability to prepare a cross-examination of Young.\nThis issue of Young\u2019s testimony was taken up again at the close of the State\u2019s case, at which time the circuit court excluded her, as foEows:\nDefense Counsel: The witness \u2014 my other witness?\nThe Court: Did you guys have a chance to talk to the other witness?\nDeputy Prosecuting Attorney: Your Honor, we\u2019ve had so many problems getting our own witnesses here.\nThe Court: Okay. AE right. I\u2019E aEow the one witness, the mother.\nDefense Counsel: Okay. For the record, I would Eke to state that I think, you know, they could\u2019ve caEed and checked or had their office in the five hours, four hours that we\u2019ve been here and caE ACIC at least and check and see if she had any record or anything Eke that.\nThe Court: AE right.\nMatters pertaining to the admissibility of evidence are left to the sound discretion of the circuit court, and we will not reverse such a ruling absent an abuse of that discretion. See, e.g., Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Nor will we reverse absent a showing of prejudice, as prejudice is not presumed. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999). Here, the circuit court excluded the testimony of Young based upon the defense\u2019s failure to disclose the name of the witness until the morning of trial. Ark. R. Crim. P. 18.3 provides the applicable discovery rule in criminal cases:\nSubject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.\nThe State moved for discovery of defense witnesses on May 5, 2005. However, McEwing did not disclose the two alibi witnesses until the morning of trial, on August 23, 2005. Sanctions by the circuit court for failure to adhere to discovery rules include granting a continuance, excluding the evidence, or ordering the discovery. Ark. R. Crim. P. 19.7; see also Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999).\nIn the instant case, the circuit court excluded Young\u2019s testimony because it determined that the State was unable to adequately prepare a response to her testimony. McEwing contends that the State conducted a competent cross-examination of McEwing\u2019s mother without prior notice of her status as a witness. And, further, McEwing contends that the State had several hours in which to use its considerable investigatory and support-staff resources to look into the criminal history and general background of Young. Thus, McEwing submits that the late notice of Young as a possible witness should not have been a bar to her testimony. We disagree.\nAs noted in the testimony above, the circuit court allowed McEwing\u2019s mother to testify because her name was disclosed in the case file. Furthermore, McEwing\u2019s argument that Young should have been allowed to testify because the State had several hours in which to look into her background ignores the fact that the circuit court stated that it would not allow Young to testify unless the State had a chance to talk to her and adequately prepare a cross-examination. The deputy prosecuting attorney stated that he did not have an opportunity to speak with Young in the hours prior to trial. This court has noted that discovery in criminal cases, within constitutional limitations, must be a two-way street. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991) (citing Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986)). This interpretation promotes fairness by allowing both sides the opportunity to full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays during the trial. Mitchell, supra (citing Weaver, supra). Here, the circuit court excluded Young because it determined that it was unfair to the State to allow her to testify. The circuit court did not abuse its discretion.\nMoreover, as noted by the State, McEwing failed to demonstrate that he was prejudiced by not being allowed to call Young as an alibi witness. Although McEwing claims that Young, like McGee, would testify that McEwing was in Dermott on Christmas Eve in 2003, the substance of Young\u2019s testimony is not evident from the record as McEwing failed to proffer her testimony. This court has held that a proffer of excluded testimony is necessary in order to determine whether an appellant has suffered prejudice. See, e.g., Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999) (citing McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999)). Nevertheless, McEwing argues that in this case, a proffer was unnecessary because the record already reveals that Young was going to testify to his alibi. McEwing contends that the exclusion of Young\u2019s testimony caused prejudice to his case, and that this is apparent without a proffer. In support of this proposition, McEwing states that this case was all about credibility, and that Young would have perhaps been more credible in the content of her testimony. He also argues that, in any event, what is less speculative is that any witness other than a criminal defendant\u2019s mother would have had less perceived or actual bias than the mother. The problem with this argument, which is illustrated by the language McEwing uses to make it, is that it is based purely on speculation. Although the record reveals that McEwing expected Young to provide an alibi in her testimony, without the proffer, we would be forced to speculate if we were to presume prejudice and reverse on this basis. This we will not do.\nIn sum, because McEwing failed to disclose Young as a defense witness until the day of trial, the circuit court did not abuse its discretion by excluding her as a witness. Furthermore, McEwing failed to proffer her testimony for appellate review or to otherwise show prejudice from the exclusion. In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to the appellant, and no prejudicial error has been found.\nAffirmed.", "type": "majority", "author": "Jim Hannah, Chief Justice." } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, and Lance Sullenberger, Deputy Public Defender, by: Erin Vinett, Deputy Public Defender, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Andre Deon McEWING v. STATE of Arkansas\nCR 05-1366\n237 S.W.3d 43\nSupreme Court of Arkansas\nOpinion delivered June 1, 2006\nWilliam R. Simpson, Jr., Public Defender, and Lance Sullenberger, Deputy Public Defender, by: Erin Vinett, Deputy Public Defender, for appellant.\nMike Beebe, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0456-01", "first_page_order": 480, "last_page_order": 487 }