{
  "id": 8154167,
  "name": "Howard H. NEAL, Jr. v. STATE of Arkansas",
  "name_abbreviation": "Neal v. State",
  "decision_date": "2009-01-22",
  "docket_number": "CR 08-859",
  "first_page": "389",
  "last_page": "394",
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      "cite": "375 Ark. 389"
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      "cite": "291 S.W.3d 160"
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    "name_abbreviation": "Ark.",
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    "name": "Arkansas Supreme Court"
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      "reporter": "Ark.",
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      "year": 2006,
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    {
      "cite": "368 Ark. 256",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        3798454
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      "weight": 2,
      "year": 2006,
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  "last_updated": "2023-07-14T22:36:16.941269+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Howard H. NEAL, Jr. v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Donald L. Corbin, Justice.\nAppellant Howard H. Neal, Jr., appeals his conviction for capital murder and kidnapping in the Pulaski County Circuit Court. Appellant\u2019s sole point on appeal is that the trial court abused its discretion in refusing to allow a witness to testify on the basis that Appellant failed to disclose in a timely manner to the State that the witness would be testifying. As Appellant was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1). We affirm.\nAs Appellant does not challenge the sufficiency of the evidence supporting his conviction, a brief recitation of the facts will suffice. On October 23, 2005, Jacquelyn Polk left her five-year-old daughter, Jasmine Peoples, at the home of Polk\u2019s friend, Shavonda Perry. Polk was taking Perry to visit a relative in a nursing home, while Ronald Redden and others stayed with Jasmine and another child. While Jasmine was asleep in the front room, and the second child was asleep in a bedroom, Appellant walked in the front door of the apartment and exited out the back door, where he spent about fifteen minutes wandering around the backyard, talking to himself. Appellant then reentered the apartment stating, \u201c \u2018I want all you M-F-ers to get out of my house.\u2019 \u201d He then told Redden, \u201c \u2018I\u2019m going to kill every last one of y\u2019all, and I\u2019m going to start with your ass.\u2019 \u201d Appellant then attacked Redden, stabbing him in the neck. Redden and the others fled the apartment, inadvertently leaving behind the two children.\nThe Jacksonville Police Department was called to the scene, and by the time officers arrived, Appellant had barricaded himself in the apartment. Sergeant Chris Burrough attempted to make contact with Appellant. He tried to convince Appellant to release the two children, but Appellant refused to do so. Because the apartment\u2019s front door was blocked by furniture, the department\u2019s entry team, a group of officers specifically trained in making entry into high-risk situations, was called. The entry team ultimately accessed the apartment through the back door and took Appellant into custody. Captain Kenny Boyd, a member of the entry team, began searching for the two children. After moving an overturned couch and televison set, Captain Boyd discovered a child\u2019s body lying face down underneath the furniture. The child, who also had an extension cord around her neck, was later identified as Jasmine. The second child was found unharmed. An autopsy of Jasmine revealed numerous blunt-force and sharp-force injuries, but the ultimate cause of her death was compressional asphyxia, which was consistent with a heavy object or objects being placed on top of her chest.\nAppellant was charged with capital murder and kidnapping. He was tried before a jury, convicted and sentenced to life imprisonment without the possibility of parole on the charge of capital murder and twenty-two years\u2019 imprisonment on the charge of kidnapping, with the sentences to be served concurrently. This appeal followed.\nAs his sole point on appeal, Appellant argues that the trial court abused its discretion in refusing to allow a witness, Melody Perry, to testify on behalf of the defense at trial. Appellant concedes that he violated Ark. R. Crim. P. 18.3, in that Ms. Perry\u2019s name was not provided to the State in a timely manner. He argues, however, that the sanction for such a violation is left to the discretion of the trial court, and here the trial court abused that discretion by denying Appellant\u2019s request that Ms. Perry be allowed to testify. In support of this contention, Appellant avers that there was no evidence that he deliberately violated Rule 18.3, as he learned of Ms. Perry\u2019s testimony the morning of trial. Moreover, Appellant argues it was an abuse of discretion because (1) Ms. Perry was the only known witness who could cast doubt on the State\u2019s theory of the case; (2) the State would not have been surprised by Ms. Perry\u2019s testimony as they cross-examined her during the defense proffer of her as a witness; (3) the State could have easily rebutted Ms. Perry\u2019s causation testimony; and (4) it was for the jury, not the judge, to decide if Ms. Perry\u2019s testimony was credible.\nThe State counters that no mention was ever made of Rule 18.3 at trial. The State objected to Ms. Perry testifying on the basis that she was not named as a witness during voir dire and that the State had not subpoenaed witnesses who could rebut Ms. Perry\u2019s testimony, as there was no indication that the entry into the apartment would be an issue at trial. The State contends therefore that it was within the trial court\u2019s discretion to preclude Ms. Perry from testifying. As to Appellant\u2019s contention that the trial court abused its discretion in judging Ms. Perry\u2019s credibility, the State argues that this court can affirm the trial court\u2019s ruling for any reason. Finally, the State avers that Appellant cannot demonstrate prejudice resulting from the trial court\u2019s ruling, as he all but concedes that Ms. Perry\u2019s testimony was not to be believed.\nMatters pertaining to the admissibility of evidence are left to the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. Spring v. State, 368 Ark. 256, 244 S.W.3d 683 (2006); McEwing v. State, 366 Ark. 456, 237 S.W.3d 43 (2006). Furthermore, this court will not reverse absent a showing of prejudice, as prejudice is not presumed. Id.\nIn the present case, after the jury was selected, but prior to any opening statements, Appellant\u2019s counsel notified the trial court and the State that it had just learned of a witness with potentially exculpatory information. Specifically, Melody Perry, who had originally been approached by an investigator for the defense regarding any knowledge she might have of the location of another potential witness, came forward and notified Appellant\u2019s counsel that she was present at the time that officers from the Jacksonville Police Department entered the apartment through the front door, pushing over the furniture that had been piled against the front door. Appellant requested that he be allowed to call Perry as a defense witness. The State objected, arguing that the jury had already been seated and those members were selected based on whether they knew anyone involved with the case and that it had based its witness list on the announced witnesses. The trial court announced that it was taking the matter under advisement.\nAt the end of the first day of trial, Appellant was allowed to proffer Perry as a witness. Perry stated that she approached defense counsel and stated that she was standing in front of the apartment during the standoff and could see inside through a slit in the curtain. Inside she saw furniture barricading the front door. Perry-stated that after about an hour or an hour-and-a-half, police \u201cstarted barging in the front door and the back door.\u201d Upon cross-examination, Perry admitted that Appellant was her first cousin. At the conclusion of Perry\u2019s proffered testimony, the trial court ruled that it was not going to allow her to testify at trial since she had come forward at the last minute and had no credibility.\nUnder Rule 18.3,\n[s]ubject 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.\nDiscovery in criminal cases, within constitutional limitations, must be a two-way street. See McEwing, 366 Ark. 456, 237 S.W.3d 43. This interpretation promotes fairness by allowing both sides the opportunity for full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays at trial. Id. In McEwing, this court held that a trial court did not abuse its discretion in prohibiting an alibi witness from testifying on behalf of the appellant when the appellant attempted to call the witness the morning of trial. In so ruling, this court stated that the trial court\u2019s decision to exclude the witness was based on a determination that it would be unfair to the State to allow the witness when the appellant sought to call her the morning of trial. Id.\nWhile McEwing is distinguishable on the basis that there was a blatant violation of Rule 18.3 involved there, the underlying principle that it would be unfair to the State under Rule 18.3 to allow a witness who comes forward the morning of trial to testify is the same in both cases. Even though in the present case it is clear that Appellant was unaware of Ms. Perry and her potential testimony, we still cannot say that the trial court abused its discretion in excluding her as a witness. While the trial court improperly ruled on Ms. Perry\u2019s credibility, as credibility matters are within the province of the jury, see, e.g., Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008), this court can affirm the trial court if it reached the right result even for the wrong reason. See Jarrett v. State, 371 Ark. 100, 263 S.W.3d 538 (2007). Accordingly, there is no merit to Appellant\u2019s argument on appeal.\nAffirmed.\nAppellant was also charged with battery in the first degree relating to his attack on Redden, but this charge was later dismissed upon motion by the State.",
        "type": "majority",
        "author": "Donald L. Corbin, Justice."
      }
    ],
    "attorneys": [
      "William R. Simpson, Jr., Public Defender, Kent C. Krause, Deputy Public Defender, and Bret Qualls, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.",
      "Dustin McDaniel, Att\u2019y Gen., by: Brad Newman, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Howard H. NEAL, Jr. v. STATE of Arkansas\nCR 08-859\n291 S.W.3d 160\nSupreme Court of Arkansas\nOpinion delivered January 22, 2009\nWilliam R. Simpson, Jr., Public Defender, Kent C. Krause, Deputy Public Defender, and Bret Qualls, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Brad Newman, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0389-01",
  "first_page_order": 419,
  "last_page_order": 424
}