The Arkansas Court of Appeals recently upheld the conviction of a Drew County man sentenced to 55 years in prison for aggravated residential burglary and manslaughter in the 2017 beating death of 67-year-old George Flowers.
On appeal, Jeremy L. Huskey, 39, challenged the sufficiency of the evidence to support that he was the person who committed the crimes, the admission of the Flowers’ statement under the excited-utterance exception to the rule against hearsay, the admission of that statement in violation of his right to confront the witness against him, and the admission of a prior bad act.
Flowers was at his residence in July 2017 when someone broke in and beat him severely. He later died from blunt-force trauma to his head.
Huskey, who was later tried and convicted of the crimes, challenged whether the prosecutor presented sufficient evidence to identify him as the person who committed the crimes.
Arkansas Court of Appeals review of the case:
Christy Johnson, who had allowed Flowers to live with her for about a year, wanted him to move. While she waited for Flowers to find another place to live, Johnson moved in with her brother, John Etheridge, who lived in a house about 75 yards away from Johnson’s house.
Johnson was dating Huskey, and Etheridge had seen Huskey drive a small blue car when he visited Johnson. Etheridge had heard Johnson complaining about Flowers to Huskey, who told Johnson “if you want him out, I’ll get him out.” Ethridge recalled Huskey confront Flowers, and during the encounter, Huskey “b**ch slapped” Flowers.
About two weeks later, at around 10:30 p.m., Etheridge saw the same small blue car pull up and stop at Johnson’s house and leave less than 10 minutes later. Etheridge and his son went outside and saw Flowers on the ground between the two houses. They helped him up and to Etheridge’s house where Etheridge’s mother tended to Flowers’ bloody wounds. Flowers had a deep cut on his left elbow; his nose was cut and appeared nearly torn off; he had a head injury behind his left that looked like he had been hit with a tire tool; his bottom lip appeared to be fileted; his hands were torn up.
When Ethridge asked Flowers what happened, Flowers said Huskey had come to the door, stormed inside, hit him in the face, knocked him against the entertainment center, caused him to fall on the floor, and kicked him repeatedly. Although Flowers’ attacker had a shirt wrapped around his face, Flowers knew it was Huskey because he recognized Huskey’s voice. Huskey had told Flowers to “get the f**k out of Christy’s house.”
Etheridge called 911 and reported that Huskey had beaten Flowers. Law enforcement officers responded to the call and took pictures of Flowers’ injuries, but Flowers refused medical treatment. A Drew County deputy said Flowers told him who had assaulted him.
A few days later, Flowers’ condition deteriorated. He was hospitalized, and ultimately died. An autopsy revealed all the injuries to Flowers’ thin body and the damage to his head. His death was ruled a homicide because he died as a result of blunt-force head trauma.
Johnson admitted that she had initially lied to the police, telling them that she and Huskey had been at his aunt’s house, but in truth, Huskey had gone to see Flowers to convince him to move out. Huskey, who had been drinking, came back about fifteen minutes later and told Johnson that Flowers “would leave now.” She said that Huskey wanted to get rid of Flowers so he could move in with her. Johnson later asked Huskey why he had done that to Flowers, and Huskey replied, “You wanted him out of your house.” Johnson said that she initially lied because Huskey told her to, and she was afraid of him.
On appeal, Huskey argued that there were no witnesses to the attack, there was no DNA to connect him to the attack, and Flowers identified him only by his voice and not by his face.
“This argument is unpersuasive,” the Arkansas Court of Appeals said. “The victim positively identified (Huskey) as the man who had severely beat him, and (Huskey) admitted to Christy that he had attacked George to get him to move. We consider only the evidence that supports the verdict, and credibility findings are for the jury to make. We hold that there is substantial evidence to support the jury’s finding that (Huskey) was guilty of aggravated residential burglary and manslaughter.”
Huskey’s remaining three points on appeal challenge the admission of certain testimony.
Huskey challenges the Drew County Circuit Court’s finding that Flowers’ statement to Etheridge identifying Huskey as his assailant fell within the excited-utterance exception to the rule against hearsay.
Minutes after Flowers had been severely beaten, he was upset and crying, lying on the ground, bleeding, trying to reach his neighbor’s house. Flowers required physical assistance to get up and move. When asked what happened, Flowers immediately told Etheridge what Huskey had done to him and why he knew it was Huskey.
Huskey argued that Flowers’ statement was not spontaneous, excited, or impulsive but was rather an answer to Etheridge’s direct question.
“Whether a declarant makes statements in response to questions is not dispositive of whether they are the product of the exciting event,” the Arkansas Court of Appeals said. “The relevant inquiry is whether the statement was made under the stress of excitement or was made after the declarant had calmed down and had an opportunity to reflect, which is a matter within the circuit court’s sound discretion. Admissibility is not to be measured by any precise number of minutes, hours, or days but requires that the declarant is still under the stress and excitement caused by the event. We hold that George’s statement identifying appellant as his attacker is precisely the kind of excited utterance contemplated by Rule 803(2). The circuit court, therefore, did not abuse its discretion on this evidentiary ruling.”
Huskey next contends that the circuit court abused its discretion in permitting Flowers’ statements to Etheridge to be relayed to the jury because he was deprived of his constitutional right to confront this witness against him.
Huskey “fails to persuade,” the Arkansas Court of Appeals said.
“The circuit court did not address the confrontation-clause argument, and defense counsel did not request a ruling on that aspect of his argument. Because (Huskey) failed to obtain a ruling on this argument, it is not preserved for appellate review,” the Arkansas Court of Appeals said. “Even if the confrontation clause had been violated in this instance, which we do not decide, any such alleged error would be harmless beyond a reasonable doubt because (Flowers’) statements were cumulative to other testimony and evidence before this jury. Evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be prejudicial. (Johnson) testified to (Huskey’s) admission that he had attacked (Flowers); the photographs and autopsy report substantiated the severity of (Flowers’) extensive injuries; a deputy also confirmed that (Flowers) identified (Huskey) as his attacker. Thus, (Flowers’) statements were merely cumulative and cannot support reversal.”
In his final point on appeal, Huskey contends that the circuit court abused its discretion in permitting Etheridge to testify about him “b**ch slapp[ing]” Flowers a couple of weeks prior to the attack. He claims that this testimony was impermissible under Arkansas Rule of Evidence 404(b).
Arkansas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Alternatively, Huskey argues that pursuant to Rule 403, any probative value of the testimony was substantially outweighed by the danger of unfair prejudice or confusion of the issues. Huskey argues that the slapping incident was too dissimilar to the subsequent attack to be relevant and was used only to portray appellant as a bad person, resulting in unfair prejudice.
“Any evidence that is relevant to explain the act, show a motive, or illustrate the accused’s state of mind may be independently relevant and admissible,” the Arkansas Court of Appeals said. “The theory of this case was that (Huskey) wanted to move in with (Johnson) and that he took extreme measures to get (Flowers) to move out. The State alleged that (Huskey) first intimidated and slapped (Flowers), and when that did not work, (Huskey) more viciously attacked (Flowers). (Huskey’s) defense rested on his assertion that the State could not prove that he was the person who attacked (Flowers). This testimony about slapping (Flowers) was relevant and probative to support the State’s evidence that (Huskey) had the motive to commit the crimes and that he was, in fact, the perpetrator. The circuit court did not abuse its wide discretion in finding this to be admissible and finding its probative value not to be outweighed by unfair prejudice.”