Case Number: 2018 Ark. 71
Judge: SHAWN A. WOMACK
Court: SUPREME COURT OF ARKANSAS
Plaintiff's Attorney: Karen Virginia Wallace, Ass’t Att’y Gen
Defendant's Attorney: Lee D. Short
Description: Darren Duncan was convicted of capital murder in connection with the death of
Courtney London. The State waived the death penalty, and therefore Duncan received a
life sentence without the possibility of parole as required by law. Duncan makes a single
argument on appeal. He contends that the trial court erred in allowing Latrenda Gibson to
testify and, in the alternative, in denying his motion for a continuance. Duncan argues
that the trial court’s rulings on this issue were in error due to the relatively late disclosure
of the State’s intent to have Gibson testify. We affirm.
The State only learned from the victim’s family that Gibson was a witness to the
crime after 4:00 p.m. on the day before the trial was set to begin. The State immediately
(1) requested a statement from Gibson and (2) notified defense counsel of this
development. Defense counsel received this notice by 5:00 p.m. The State received
Gibson’s statement at approximately 7:00 p.m. and faxed a copy of it to defense counsel
immediately. The parties informed the trial court of these developments the next
morning. The State explained the relevance of Gibson’s testimony, pointed to the State’s
immediate disclosures as evidence that there was no attempt to “sandbag” the witness,
and argued that there would be no prejudice to Duncan if defense counsel received an
opportunity to speak with Gibson before she testified. The State also committed to
turning over Gibson’s criminal-history report once it was generated. Defense counsel
countered that Gibson should not be allowed to testify due to the lateness of the
developments and, in the alternative, that the trial court should grant a continuance to
allow the defense more time to prepare. The trial court denied the request for a
continuance, citing scheduling concerns. The court deferred ruling on the substantive
question of whether it was appropriate for Gibson to testify until the next day because the
testimony would not take place until then in any case. The court agreed that defense
counsel should have full access to Gibson and receive a copy of her criminal-history
report. Returning to the issue on the second day, the court was satisfied that defense
counsel had an opportunity to interview Gibson and had received a copy of the report.
The trial court allowed Gibson to testify.
Gibson testified that she saw London and others quarreling while she was sitting
in her parked car across the street with her sister and daughter. She testified that Duncan
then sped onto the scene in his girlfriend’s car and emerged with a gun, “wanting to know
who wants to fight and who play [sic] with guns or whatever.” Gibson claimed Duncan
then got back into the car and drove off, driving close by London in the process. Gibson
testified that she feared for her safety at this point and began driving away. She claimed
there was a flash, followed by Duncan’s car speeding past her own. By the time she
turned her car around, London had been shot and was on the ground. She further testified
that she did not see London with a gun or anyone take a gun from him. Gibson spoke
with a police officer the night of the crime, but she did not plan to testify until the
prosecutor contacted her immediately before the trial. She cited her poor health and the
fact that she had expected her daughter to give a statement identical to her own as the
reasons for her failure to speak with the authorities between the night of the crime and the
day before the trial. On cross-examination, defense counsel was able to explore several
issues that were uncovered in the interview with Gibson. Gibson acknowledged that she
would likely test positive for marijuana at the time of her testimony, that she had been in
a romantic relationship with London’s father for fifteen years, that she considered
London to be like a son to her, and that she had pleaded guilty to felony abuse of an adult
while employed at a nursing home.
We review the trial court’s evidentiary decisions for an abuse of discretion. White
v. State, 367 Ark. 595, 601, 242 S.W.3d 240, 246 (2006). The same standard applies to
the decision to deny a continuance. Hickman v. State, 372 Ark. 438, 442, 277 S.W.3d
217, 222 (2008).
Arkansas Rule of Criminal Procedure Rule 17.1 requires the prosecuting attorney
to disclose the names and addresses of the “persons whom the prosecuting attorney
intends to call as witnesses” at trial. Rule 19.2 makes clear that the obligation of
disclosure is ongoing, continuing up to and through trial. See Ark. R. Crim. P. 19.2. If the
trial court determines that these rules were violated, Rule 19.7 provides a number of
potential remedies, such as permitting additional discovery, exclusion of the offending
evidence, granting a continuance, or entering an alternative appropriate order. See Ark. R.
Crim. P. 19.7. We have held that permitting “a recess to interview the witness” is
sufficient to cure defects in the disclosure process in some circumstances. Nooner v.
State, 322 Ark. 87, 100, 907 S.W.2d 677, 684 (1995).
It is uncontested in this case that the prosecuting attorney made defense counsel
aware of Gibson’s likely participation in the trial within minutes of contacting her, faxed
a copy of Gibson’s statement to defense counsel immediately upon receiving it, and
similarly provided Gibson’s criminal-history report as soon as it was generated. This
diligence satisfies the written command of Rule 19.2 to “promptly notify opposing
counsel” about new witnesses and information. Ark. R. Crim. P. 19.2. When last-minute
evidence or witnesses arise, however, the trial court must inquire “whether last minute
preparation was abused” or “used as a ploy or subterfuge to gain advantage over the
opposing party.” Nooner, 322 Ark. at 101, 907 S.W.2d at 684. The trial court asked
questions clearly meant to detect whether any bad faith of this sort on the part of the
prosecution existed. Both in the initial conference on the morning of the first day of trial
and in the conference on the second day, the trial court confirmed that the State only
recently learned of Gibson through no fault of its own, that the State divulged all required
information promptly, and that defense counsel had an opportunity to speak with Gibson.
There was no facial violation of the rules governing disclosure, and the trial court
conducted an inquiry into any potential ulterior motives for the timing of the State’s
disclosure of Gibson’s name. Under these circumstances, we cannot say that the trial
court abused its discretion by allowing Gibson to testify or by denying Duncan’s request
for a continuance.
Duncan cites several cases to challenge this conclusion, but they are inapposite.
He cites Henry v. State, 29 Ark. App. 5, 775 S.W.2d 911 (1989), as an example of a
reversal over an improper late disclosure. In Henry, however, the disclosure defect was
that the State failed to turn over crime laboratory results that were in the State’s
possession long before they were disclosed. Id. As discussed above, it is not disputed in
this case that the State promptly disclosed Gibson’s identity as a witness as soon as it
learned of her. Next, Duncan cites McEwing v. State, 366 Ark. 456, 237 S.W.3d 43
(2006), because the trial court there excluded a defense witness identified the day before
trial, and we upheld that decision. Duncan contrasts this exclusion of a defense witness
with the admission of a prosecution witness here and asserts that “[w]hat is good for the
goose should be good for the gander.” Even ignoring the different facts of these cases,
this argument misunderstands the standard of review. Simply pointing to an instance in
which we affirmed a trial court’s reaching a different conclusion in different
circumstances says nothing about whether the trial court in this case abused its discretion.
Beyond this foundational flaw in the argument, McEwing is readily distinguished from
the present case in that, unlike Duncan, the State in McEwing would not have had an
opportunity to interview the last-minute witness before she testified. See id. at 461, 237
S.W.3d at 47. Similarly, Duncan’s reliance on N.D. v. State, 2011 Ark. 282, 383 S.W.3d
396, fails because that case also turned on the last-minute witnesses being unavailable for
an adequate interview by the adverse party prior to the proceedings. Defense counsel in
this case spoke with Gibson before she testified and was able to conduct an effective
Outcome: As required by Ark. Sup. Ct. R. 4-3(i) (2017), the record has been examined for
reversible error. None has been found.