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Johnson v. State11/30/2005
NOT DESIGNATED FOR PUBLICATION
A Phillips County jury convicted appellant Courtney Johnson of two counts of aggravated robbery and sentenced him to serve ten years in the Arkansas Department of Correction. Johnson argues on appeal 1) that the trial court erred by excluding witness testimony as hearsay and 2) that the trial court abused its discretion when it dismissed a juror for cause. We disagree and affirm.
I. Hearsay
Arkansas Rule of Evidence 801 (c) (2005) defines hearsay as "a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted." While hearsay is generally inadmissible, see Ark. R. Evid. 802, matters 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. See, e.g., Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). A showing of prejudice is required for reversal; prejudice may not be presumed. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Bell, supra.
At trial, witness Jessica Coffer testified that around midnight on October 25, 2004, Johnson robbed her at gunpoint while she was making a bank deposit in the course of her duties as an assistant manager of a Pizza Hut restaurant. Coffer further testified on cross-examination that her positive identification of Johnson as the perpetrator was based on the fact that his face was approximately twelve inches from her face during the robbery and that she had worked with Johnson previously at a Ryan's restaurant.
Johnson's defense to the robbery was that he was misidentified by the alleged victim of the crime. During Johnson's direct examination of defense witness Tim Covington the following exchange occurred:
Q: Now, you worked with Ms. Coffer also at Pizza Hut, also, didn't you?
A: Yes, sir.
Q: Did you have any conversation with her regarding this robbery?
A: She told me when I got to work, she was like "you know we got robbed." And I was like, "for real." She was like, "yeah." But as far as-she, like described the person and all that. I was just listening. She said that and we went on working.
Q: Did the description she give you match that of Courtney Johnson?
Prosecutor: I object, your Honor, hearsay.
A: No.
Johnson argues that the question posed to Covington did not require him to repeat or offer any out-of-court statements and thus was not hearsay. This is misleading. While Covington's above response of "no" was itself not hearsay, the question required his answer to correlate Coffer's hearsay statement and his opinion as to its accuracy. The hearsay rule cannot be so easily circumvented by asking for the substance of an out-of-court statement rather than for an exact quotation. Robinson v. State, 255 Ark. 485, 500 S.W.2d 929 (1973). The hearsay rule would cease to exist if it could be so easily circumvented. Id. It was therefore not an abuse of discretion for the trial court to exclude the question and answer.
Johnson also contends that the purpose of his question of whether Coffer's hearsay statement was an accurate description of him was to impeach Coffer's testimony. Arkansas Rule of Evidence 613(b) states:
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate
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