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2017 Ark. 31
SUPREME COURT OF ARKANSAS
No. CR-16-427
Opinion Delivered: February 16, 2017
DERRICK GERADE LAMBERT
APPELLANT APPEAL FROM THE DREW
COUNTY CIRCUIT COURT
V. [NO. 22CR-15-2]
STATE OF ARKANSAS HONORABLE SAM POPE, JUDGE
APPELLEE
AFFIRMED; COURT OF APPEALS
OPINION VACATED.
JOHN DAN KEMP, Chief Justice
Appellant Derrick Gerade Lambert was convicted by a Drew County jury of one
count of felon in possession of a firearm, and he was sentenced to a term of four years’
imprisonment in the Arkansas Department of Correction. After trial, Lambert filed a motion
for new trial, which was denied. For reversal, Lambert contends that the circuit court erred
in denying his motion for directed verdict because the State failed to present sufficient
evidence that he possessed the firearm. He further contends that the circuit court erred in
denying his motion for new trial because the State withheld exculpatory evidence from the
defense.1 We find no error and affirm.
1
Lambert originally appealed to the court of appeals, which affirmed. See Lambert v.
State, 2016 Ark. App. 229,
490 S.W.3d 325. Lambert then petitioned this court for review,
and we granted the petition. When we grant a petition for review, we consider the appeal
as though it had been originally filed in this court. E.g., Schneider v. State,
2015 Ark. 152,
459 S.W.3d 296.
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I. Sufficiency of the Evidence
A person who has been convicted of a felony is prohibited from possessing or owning
any firearm. Ark. Code Ann. § 5-73-103(a)(1) (Repl. 2016). Lambert conceded at trial that
he is a convicted felon, but he argued in his directed-verdict motion that the State failed to
present sufficient evidence that he possessed a firearm. In reviewing a challenge to the
sufficiency of the evidence, this court determines whether the verdict is supported by
substantial evidence, direct or circumstantial. E.g., Airsman v. State,
2014 Ark. 500,
451
S.W.3d 565. Substantial evidence is evidence that is forceful enough to compel a conclusion
one way or the other beyond suspicion or conjecture.
Id.,451 S.W.3d 565. The evidence
is viewed in the light most favorable to the State, and only evidence supporting the verdict
will be considered.
Id.,451 S.W.3d 565.
The following evidence was presented at trial. At approximately 2:00 a.m. on
December 11, 2014, Special Agent John Carter of the Tenth Judicial Drug Task Force
initiated a traffic stop of a Chevrolet Tahoe for having no rear license plate. The vehicle was
driven by Misty Johnson. Alex Harrington was a front-seat passenger, and Lambert was
sitting in the backseat on the passenger side. While Carter spoke with Johnson and obtained
her license and information, Lambert opened the rear passenger door and tried to exit the
vehicle. Carter told Lambert to stay in the vehicle. Meanwhile, Officer Ben Michel arrived
on the scene to assist with the traffic stop. Carter asked Johnson to step out of the vehicle
and then advised Michel to “keep an eye on” Harrington and Lambert. Michel stated that,
while he watched the vehicle, he did not see anyone “pass anything around the car” and
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that he “didn’t see anything handed from the front to the back.” Carter testified that he did
not see Harrington turn around in his seat and reach over the backseat. Carter further
testified he observed Lambert moving around a lot inside the vehicle.
Carter requested consent from Johnson to search the Tahoe. Johnson testified that
she consented to the search. She also testified that both Lambert and Harrington had told
her not to allow the search. While searching the vehicle, Michel pulled down the backseat
armrest and saw a gun. Johnson denied that the gun belonged to her and said that she had
no idea how or when the gun was placed in the vehicle. Lambert denied that the gun
belonged to him. He maintained that the gun had been placed under the armrest by
Harrington, the front-seat passenger.
On appeal, Lambert contends that this evidence failed to prove that he possessed the
firearm. A conviction for violating section 5-73-103(a)(1) may be based on actual or
constructive possession. See, e.g., Jones v. State, 355 Ark. 630,
144 S.W.3d 254 (2004). In
this case, the State relied on a theory of constructive possession. Constructive possession of
contraband means knowledge of its presence and control over it. See Cary v. State,
259 Ark.
510,
534 S.W.2d 230 (1976); see also United States v. Roberts,
953 F.2d 351, 353 (8th Cir.
1992) (noting that “constructive possession” has been defined as “knowledge of presence
plus control”). Possession may be imputed when the contraband is found in a place that is
immediately and exclusively accessible to the accused and subject to his or her dominion
and control, or to the joint dominion and control of the accused and another. Cary,
259
Ark. 510,
534 S.W.2d 230.
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Joint occupancy of a vehicle may raise an inference of constructive possession of
contraband, but it is insufficient, by itself, to establish that possession. See Garner v. State,
355 Ark. 82,
131 S.W.3d 734 (2003). There must be some additional factor linking the
accused to the contraband.
Id.,131 S.W.3d 734. Among the factors this court has considered
in cases involving vehicles occupied by more than one person are (1) whether the
contraband was found on the same side of the car seat as the accused was sitting or in near
proximity to him and (2) whether the accused acted suspiciously before or during the arrest.
Plotts v. State,
297 Ark. 66,
759 S.W.2d 793 (1988); see also Loggins v. State,
2010 Ark. 414,
372 S.W.3d 785 (noting that an accused’s suspicious behavior coupled with proximity to
the contraband is clearly indicative of possession).
In the present case, the State presented sufficient evidence to establish that Lambert
constructively possessed the contraband. Although there was joint occupancy of the vehicle,
the State presented other evidence linking Lambert to the gun. The gun was found in the
backseat where Lambert had been the sole passenger. The compartment in which the gun
was found was immediately and exclusively accessible to Lambert. Moreover, Lambert
behaved suspiciously before and during the traffic stop. He told Johnson not to allow the
officers to search the vehicle, he exited the vehicle before the police could approach it, and
he moved around a lot inside the vehicle. We conclude that substantial evidence supports
Lambert’s conviction for felon in possession of a firearm and that the circuit court did not
err in denying Lambert’s motion for directed verdict.
II. Motion for New Trial
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Lambert next contends that the circuit court erred in denying his motion for new
trial because the State withheld exculpatory evidence from the defense. The decision
whether to grant or deny a motion for new trial lies within the sound discretion of the
circuit court. E.g., Clark v. State, 358 Ark. 469,
192 S.W.3d 248 (2004). We will not reverse
a circuit court’s order granting or denying a motion for a new trial unless there is a manifest
abuse of discretion.
Id.,192 S.W.3d 248.
Lambert alleged in his motion that the prosecutor had withheld exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963), which requires the State to disclose
all favorable evidence that is material to the guilt or punishment of an individual.
Specifically, he alleged that the State failed to disclose an exculpatory statement by
Harrington, the front-seat passenger in the vehicle during the traffic stop. Harrington was
subpoenaed by both the State and the defense to testify at Lambert’s trial. Harrington failed
to appear at trial. Lambert alleged that the State suppressed testimony favorable to him
because the State told Harrington the day before trial that he was not required to appear
and testify.
At the hearing on Lambert’s motion for new trial, Harrington testified that he had
received a subpoena to appear as a witness for the State at Lambert’s trial. He further testified
that a day or two before trial, he met with the prosecuting attorney, who asked him whether
his story would be the same as it had been at a prior revocation hearing. Harrington told
the prosecutor that he would testify at trial that neither he nor Lambert had a gun.
According to Harrington, after his meeting with the prosecutor, someone from the
prosecutor’s office called his mother and told her that he had been released from his
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subpoena. Harrington acknowledged that he had also been subpoenaed by the defense, but
he stated that he did not go to court because the prosecutor’s office “said I was released, that
I didn’t have to go.” On cross-examination, the State questioned Harrington about his
testimony from his previous revocation hearing. Harrington agreed that, at the prior hearing,
he had testified that he did not know there was a gun in the back console.
Carol Strickland, Harrington’s mother, also testified. Her mother-in-law, Cheryl
Jefferson, worked at the prosecutor’s office. According to Strickland, Jefferson called her the
day before trial and told her that Harrington “didn’t have to show up for court cause it was
over with for him.” Strickland also testified that, on the day of trial, police officers came to
her home looking for Harrington and told her that he needed to be in court. Strickland and
Harrington went to the prosecutor’s office and spoke with assistant Amy Evans, who
confirmed that the State had released Harrington from its subpoena. Evans testified that she
checked the clerk’s file to see whether defense counsel had issued a subpoena for Harrington.
She stated, “I looked on the Clerk’s file, computer that we have access to to [sic] see if a
subpoena had been file marked with the Clerk, and I did not see one.”2 Evans testified that
she had not told Harrington, nor had she told anyone to tell Harrington, that he did not
have to come to trial if he was subpoenaed by the defense. After the hearing, the circuit
court denied the motion, finding that Harrington’s testimony would not have made a
difference in the outcome of the trial.
2
The record reflects that the subpoena was filed with the clerk on July 27, 2015, five
days after trial.
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On appeal, Lambert contends that, as a result of the State’s suppression of evidence
favorable to him, he was “denied a fair opportunity to present exculpatory eye witness
testimony that he did not have a gun, denying him a fair trial.” He also contends that the
circuit court erred in ruling that Harrington’s testimony would not have made any
difference, because “the credibility of witnesses is an issue for the fact finder.”
“[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.
Evidence is material “if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.” Strickler v. Greene,
527 U.S. 263, 280 (1999).
In the present case, even assuming that the State suppressed Harrington’s statement,
Lambert cannot show that he was deprived of a fair trial due to the unavailability of
Harrington’s testimony. See, e.g., Murchison v. State, 249 Ark. 861,
462 S.W.2d 853 (1971)
(stating that, when considering a motion for new trial on the ground that evidence was
suppressed, the primary focus of the inquiry is to determine whether, in light of the
circumstances, the defendant has been deprived of a fair trial by the unavailability to him of
the particular testimony). At the hearing on the motion for new trial, Harrington stated that
he would have testified at trial that he never saw Lambert with a gun. Harrington also stated
that he had told the prosecutor’s office that neither he nor Lambert had a gun. Johnson, the
driver, testified at trial that she had not seen Lambert with a gun. Harrington’s testimony
that Lambert did not have a gun would have been cumulative to the testimony of Johnson.
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Here, Lambert has failed to demonstrate prejudice because there was not a reasonable
probability that the outcome of the trial would have been different if Harrington had
testified. We hold that the circuit court did not abuse its discretion in denying Lambert’s
motion for new trial.
Affirmed; court of appeals opinion vacated.
BAKER and HART, JJ., dissent.
JOSEPHINE LINKER HART, Justice, dissenting. The majority’s conclusion that
there was no Brady violation because Alex Harrington’s testimony would have been
“cumulative” is simply wrong. The statements by the three occupants of the vehicle differed
markedly.
Misty Johnson testified that she neither saw a gun nor did she see anyone put the
gun behind the armrest. Johnson’s testimony tended to exonerate her completely, partially
exonerate Harrington, and left open the possibility that Lambert could have possessed the
gun and possibly placed it behind the armrest. Lambert testified that he saw Harrington
with the gun and saw Harrington conceal it in the armrest. His testimony exonerated him
and Johnson, but implicated Harrington. Harrington’s testimony at the hearing on
Lambert’s new-trial motion exonerated Lambert and him, but tended to implicate Johnson,
who was the driver and car owner of the vehicle. This testimony was not “cumulative”
under any analysis.
Resolving the issue of which witness or witnesses were telling the truth and which
witness or witnesses were lying is exclusively within the province of the jury. Allowing the
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State to deny the jury all of the relevant testimony so that it can do its job denies Lambert
one of our most fundamental constitutional rights—the right to a fair trial.
I respectfully dissent.
BAKER, J., joins.
John F. Gibson, Jr., for appellant.
Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.
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