text:
    Tony Reed THOMAS v. STATE of Arkansas
    CR 90-66
    795 S.W.2d 917
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990
    [Rehearing denied October 15, 1990.]

      James B. Bennett, for appellant.

      Steve Clark, Att’y Gen., John D. Harris, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

On the afternoon of March 31,1989, Tony Reed Thomas was observed by El Dorado police officer Jeffrey Everetts driving a 1980 Cadillac with a Texas license plate and playing a stereo in violation of an anti-noise ordinance. Everetts followed the Cadillac until he felt the area was such that he could give chase if the driver tried to flee and at that point turned on his blue light. The Cadillac continued for another mile, at an excessive speed, stopping after Everetts turned on his siren.

Thomas had no driver’s license but gave his date of birth and claimed to have a Texas driver’s license. Everetts radioed the information to headquarters and the National Crime Information Center (NCIC) reported that Tony Thomas, same date of birth, was wanted in Texas for escape.

Everetts also observed that the Cadillac’s vehicle identification number (VIN) had been removed from the dash. A VIN was found on the left door but it did not coincide with the license plate number (Texas XNB 228) and Thomas could not produce vehicle registration papers which matched either the number of the license plate or the VIN from the door. Moreover, radio inquiry concerning the license plate number indicated there was no information on file and no owner identification. These factors led Everetts to suspect the Cadillac was stolen. Thomas told Everetts the person wanted for escape was a different Thomas and Everetts informed him he would have to straighten that out at police headquarters.

The vehicle was towed by a wrecker and when they reached headquarters Everetts, assisted by Officers Sartor and Gorum, began an inventory search. They saw a piece of crack cocaine on the floor of the car immediately behind the passenger’s seat. In the back of the vehicle a panel of stereo speakers had been installed and behind it the officers found two packets containing some forty-five particles of crack cocaine and eleven sacks of marijuana.

Tony Thomas was charged with possessing cocaine and marijuana with intent to deliver and with operating a vehicle at a high rate of speed in the vicinity of pedestrians. Thomas was convicted and sentenced to fifty years and fined $16,000. By this appeal, Thomas challenges his conviction on four assignments of error: his motions to suppress and for a continuance should have been granted, evidence of two prior felony convictions was erroneously admitted at trial, and the circumstantial evidence on which his conviction was based was not consistent only with guilt and inconsistent with every other reasonable conclusion. We find no merit in these contentions.

Motion to Suppress

Thomas argues that his arrest was merely a pretext so that his car could be searched in violation of the Fourth Amendment. He points out that the police learned that the Tony Thomas wanted in Texas was Tony Lewis Thomas rather than Tony Reed Thomas and since the police had this information before the inventory search began there was no valid reason to proceed with the search. Finally, he argues that the inventory search was not done in conformity with an ordinance of the City of El Dorado. For all these reasons Thomas submits the trial court erred in not suppressing the cocaine and marijuana for use as evidence at his trial.

In reviewing the ruling of the trial court on a motion to suppress evidence on Fourth Amendment grounds, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Rodriguez v. State, 299 Ark. 421, 773 S.W.2d 821 (1989).

It is settled law that a search may be pretextual when a stop or an arrest is shown to be merely ostensible, a pretense to mask an underlying desire to search and seize suspected contraband. United States v. Lefkowitz, 285 U.S. 452 (1932). However, there was no lack of evidence here that the initial stop was attributable either to the noise ordinance or excessive speed, or both, and nothing to suggest that some other motivation existed. Thomas denied that he tried to evade the officer, or that he was speeding, but those were matters of credibility for the trial court. Thomas did not refute the testimony that he was playing the stereo at a high level. In short, the record reflects that Everetts made a lawful stop based on specific and articulable reasons [Hill v. State, 275 Ark. 71,623 S.W.2d 284, cert. denied 459 U.S. 882 (1982)], for conduct occurring in his presence and the developments that followed were in accordance with constitutional constraints. The relevant test is whether the search was reasonable. United States v. Rabinowitz, 339 U.S. 56 (1950). It is now beyond serious dispute that inventory searches are recognized as an appropriate and necessary exception to the warrant requirement of the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367 (1987). Their use is for the mutual protection of the detainee and the police.

Another phase of the argument relates to Ordinance No. 1384 regulating the operation of towing vehicles on the streets of El Dorado, including the storage and protection of vehicles towed by such vehicles. Section 16 provides that, “Wrecker drivers shall prepare an inventory of material items in the vehicle to be towed. This is to be witnessed by the investigating officer.” Thus appellant charges that the police violated their own official policy in making their own inventory search. We disagree. Nothing in the ordinance suggests in the slightest that wrecker drivers are given the exclusive authority to conduct inventory searches in all cases, including potential criminal cases. The ordinance plainly is intended to apply to the general operation of towing companies so as to minimize the problems attendant on disabled and wrecked vehicles. Nothing in the ordinance creates an inference that the police are not to conduct an inventory search when circumstances warrant. We find no merit in the argument and note that it was not offered in the trial court.

As to the follow-up report from the NCIC clarifying that the subject wanted for escape was a different Tony Thomas, Officer Everetts testified that he did not learn of the second NCIC report until the following day. Even so, the appellant maintains that the report arrived at 5:08 p.m., whereas the radio log reflects that Everetts did not leave the point of arrest until about 5:15 p.m.; thus, appellant argues, the police had information at their disposal before the inventory search began which would have removed any suspicion that appellant was wanted for escape. Since the law favors a “collective information” approach in determining the existence of probable cause [Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), Perez v. State, 260 Ark. 438, 541 S.W.2d 915 (1976)], it is only fair, appellant submits, for the reverse to be true as well. But the issue is not so easily answered, as LaFave makes clear in analyzing the impact on probable cause when the police have been given incorrect information:

The point is not that probable cause is lacking because it turned out that the “facts” upon which the officer acted were actually not true, for quite clearly information sufficient to establish probable cause is not defeated by an after-the-fact showing that the information was false, any more than information insufficient to show probable cause can be found adequate on the basis of an after-the-fact showing that in fact the conclusory allegations were correct.
Rather, the point is that the police may not rely upon incorrect or incomplete information when they are at fault in permitting the records to remain uncorrected.

2 W. LaFave, Search and Seizure, § 3.5(d) (1987).

However, we need not resolve that problem here, because it is clear that even if the outstanding arrest warrant factor were removed, the police still had reasonable grounds to suspect the Cadillac was stolen and would have detained Thomas on that basis:

Q. Mr. Everetts, you’ve stated that you were going to have the vehicle towed because the problem with the escape warrant on Mr. Thomas. In the event there had not been an escape warrant on Mr. Thomas and you had determined that the YIN number was missing, would you have also towed the car for that reason?
A. Yes, sir. If he could not have showed proof of ownership or showed any kind of positive identification on the car as the bill of sale or anything.
Q. So in this case is it my understanding that there were two reasons the vehicle was towed, is number one, the escape warrant and no identification of the vehicle being impounded for inventory purposes to protect—because of the speakers, number two, because of the vehicle in your mind might have been stolen because you’ve got as reported things that don’t match, that being the license plate, missing VIN number, the VIN number and paperwork in the glove box?
A. Yes, sir.

It is equally clear that the trial court relied on the fact that Thomas was stopped in the first instance for a traffic violation, at which point the officer found no VIN on the vehicle, no registration, no driver’s license and no vehicle registration papers. Nor did the appellant make any attempt at the suppression hearing to show that the evident uncertainty as to the vehicle ownership and registration were explainable.

In sum, it is clear the police had sound reasons to stop Thomas and, from the evolving circumstances, to believe he may have been involved in criminal activity. A.R.Cr.P. Rule 3.1.

Motion for Continuance

On the day before appellant’s trial, the state amended the information to charge Thomas as an habitual offender. Thomas moved for a continuance, which was denied and he now contends the ruling constitutes reversible error. Motions for continuance address the discretionary power of the trial courts and reversal is dependent upon a demonstration of abuse. Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). To prevail, an appellant must also make a showing of prejudice. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). No such showing having been made, or seriously contended, the point of error must fail for lack of merit.

Evidence of Prior Conviction

In two authenticated copies of District Court judgments from Harris County, Texas, the judge and clerk duly certified and attested to the authenticity of attached copies of judgments of felony conviction involving Tony Reed Thomas. However, in the blank in the body of the declaration where the name of the signing judge should be typed or printed, nothing appears. Appellant argues that these omissions render these documents insufficient under A.R.E. 803, 901 and 902.

There is, however, no requirement that prior felony convictions must be authenticated. Certified copies are sufficient. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1989). Arkansas Code Annotated § 5-4-504 specifically permits the use of certified copies and, indeed, allows for the establishment of previous felony convictions “by any evidence that satisfies the trial court beyond a reasonable doubt.” (Our emphasis.)

Motion For a Directed Verdict

When the state rested its case the appellant moved for a directed verdict and argues on appeal that the trial court’s denial was incorrect. Without any implication of merit, the argument may be answered by noting that the motion was not renewed at the close of the trial. Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989); A.R.Cr.P. Rule 36.21(b).

The judgment appealed from is affirmed.

       The hazardous driving charge was dropped.

         Record, p. 70.

       Record, p. 151.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Muhammad DAWAN v. STATE of Arkansas
    CR 90-75
    795 S.W.2d 50
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990

      William R. Simpson, Jr., Public Defender, by: Judy Rudd, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gén., by: R.B. Friedlander, Solicitor Gen., for appellee.
   David Newbern, Justice.

Muhammad Dawan was sentenced to imprisonment for 33 years upon being convicted of burglary, theft, and second degree assault. The crimes arose from a single incident or series of incidents. Dawan’s appeal of the burglary and theft convictions is solely on the basis of insufficiency of the evidence. We agree with the trial court’s conclusion that the evidence was sufficient and find no error in the overruling of Dawan’s motion for a directed verdict. The judgment is affirmed.

On the evening of May 8, 1989, after dark, officers Smith and King observed a gold colored Datsun car on the parking lot of the Hackman Paint and Supply Store at 714 Ringo in Little Rock which is in an area where businesses are not open at that time of the evening. The car left the parking lot and began driving away without lights. Officer King testified that the car was “fleeing” from the parking lot.

The officers followed the Datsun, and the driver of the Datsun began to take evasive action, winding up at a dead end in the lot of a car dealership. Ron Stout, the passenger in the Datsun, got out of the car and ran. He was chased down by Officer King. Officer Smith approached the Datsun which was being driven by Dawan. He asked Dawan to get out of the car. Dawan said he would, but he was trying to get the car into reverse gear. He succeeded and began backing the car up. To avoid being struck by the open driver’s side door, Smith was forced to jump over another nearby vehicle, injuring his leg in the process.

Dawan drove the car into several other vehicles on the lot and finally stopped. Officer Smith arrested him. Found in the Datsun were a number of tools, such as air brushes and air sanders, which had been stolen that evening from the Hackman store.

Stout testified that he had burglarized the store and had only asked Dawan to help him pick up some tools that belonged to him and that Dawan was unaware of the burglary. On cross-examination, however, Stout admitted that he had stated at a hearing at which he pleaded guilty that he had assisted Dawan in burglarizing the hardware store.

Dawan’s point is that no one testified directly that Dawan participated in the burglary and he should not have been convicted solely on the basis of having been driving the car in which the tools were found.

In reviewing sufficiency of the evidence, we consider the evidence in the light most favorable to the state and affirm if there is substantial evidence to support the verdict. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985). Circumstantial evidence may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). The circumstances in this case constituted sufficient evidence to sustain the conviction.

The inference that Dawan knew the origin of the tools in his car could be drawn from the fact that he attempted to flee from the officers. Flight from the place where a crime has been committed may be considered as evidence of guilt, Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984), as may being found in possession of stolen property. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In addition, the jack which was found at the scene of the burglary and which apparently was used to break the plate glass window of the store was of the type normally found in a Datsun.

Through the cross-examination of Smith, the jury also learned that in another proceeding Smith had clearly implicated Dawan in the commission of the burglary and theft.

Affirmed.


author: Tom Glaze, Justice.

text:
    Ronnie BIRCHETT v. STATE of Arkansas
    CR 90-48
    795 S.W.2d 53
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990

      Craig Lambert, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

In September 1985, appellant was charged with first degree murder. At trial, in March 1986, he requested the court to instruct the jury on hindering apprehension or prosecution as a lesser included offense, and as a result, the jury found him guilty of hindering apprehension and sentenced him as a habitual offender to a term of forty years. On appeal, we affirmed. Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987).

Three years after his conviction, appellant filed this habeas corpus proceeding contending that the hindering apprehension crime for which he was convicted is not a lesser included crime of first degree murder with which he was charged. He asserted that he had never been formally charged with the hindering apprehension offense, and therefore, the trial court had no jurisdiction to enter a conviction judgment for the “unrelated and uncharged” crime of hindering apprehension. The trial court denied appellant’s petition for writ of habeas corpus and upon review of that decision, we affirm.

Recently, we had occasion to consider the narrow scope of the remedy available under habeas corpus proceedings and reiterated the settled rule that a petition for such a writ is only proper when it is shown that a commitment is invalid on its face or the court lacked jurisdiction. Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989). It is also important to note that a writ of habeas corpus will not issue to correct errors or irregularities occurring at the trial since the remedy in such case is by appeal. Goodman v. Storey, 221 Ark. 308, 254 S.W.2d 63 (1952).

Unquestionably, the appellant here had been correctly charged with murder and the trial court, entering its conviction, clearly had jurisdiction over appellant’s person as well as the criminal matter involved. Appellant’s actual argument is that the trial court was somehow divested of that jurisdiction upon his requesting, and the court’s granting, an erroneous instruction which resulted in his conviction of a different felony from the one charged, viz., hindering apprehension instead of murder. We cannot agree.

As we have already pointed out, the trial court had both personal and subject matter jurisdiction of this case. While the court may have erred at trial by granting appellant’s request to instruct the jury on hindering apprehension as a lesser included offense, this error would not take away the court’s subject matter jurisdiction. Appellant could have appealed the trial court’s ruling to determine whether the hindering apprehension instruction was erroneously given and reversible or whether he invited such error for which he could not complain. See Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). In other words, if the trial court erred in its decision or proceeded irregularly within its assigned jurisdiction, as was the case here, the appellant’s remedy was by direct action in the erring court or by appeal.

Because we conclude the appellant’s commitment judgment is not facially invalid and the court entering it had jurisdiction of this cause, we affirm the trial court’s denial of appellant’s petition.

       While appellant had three years to file a Rule 37 petition, he failed to do so.


text:
    Allen DUNLAP v. STATE of Arkansas
    CR 90-79
    795 S.W.2d 920
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990
    [Rehearing denied October 15, 1990.]

      John Wesley Hall, Jr., P.C., by: Craig Lambert, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Allen Dunlap, appellant, is the owner and operator of two “adult” entertainment establishments in Little Rock—American Arcade and United Arcade. As a result of a vice investigation conducted in 1987 and 1988 by the Little Rock Police Department, appellant was charged with promoting obscene materials in violation of Ark. Code Ann. § 5-68-303 (1987). Appellant’s first trial resulted in a mistrial because the jury could not reach an unanimous verdict.

When the appellant was retried, the state introduced into evidence two video tape movies, “Nasty Habits Are Hard to Break” and “Girls on F Street”, and a magazine, “Black Girls White Cocks.” These pornographic materials were bought in the appellant’s establishments by Detective Carlos Corbin during the investigation. Appellant was convicted and sentenced to six years imprisonment and a $ 10,000 fine. He argues five points of error on appeal. We find no error and therefore affirm.

Under Ark. Code Ann. § 5-68-303, unless certain defenses contained in Ark. Code Ann. § 5-68-308 apply, a person commits promoting obscene materials if he knowingly promotes, or has in his possession with the intent to promote, any obscene material. Obscene material means material which does the following:

(A) Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct;
(B) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary standards; or
(C) Taken as a whole, lacks serious literary, artistic, political or scientific value.

Ark. Code Ann. § 5-68-302(4) (1987).

In one of his points on appeal, the appellant argues that our Obscenity Law is unconstitutional under the first and fourteenth amendments to the United States Constitution. We summarily dismiss this point by stating that we rejected this same argument in an earlier case involving the appellant. Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155 (1987). Our Obscenity Statutes were drafted pursuant to the guidelines set out by the Supreme Court in Miller v. California, 413 U.S. 15 (1973), which has recently been reaffirmed in Fort Wayne Books, Inc. v. Indiana, 109 S. Ct. 916 (1989).

We next address the appellant’s sufficiency of the evidence argument. Appellant argues that the trial court erred in denying his motion for a directed verdict because the state failed to prove the scienter element of the offense—that he knowingly promoted obscene materials. Specifically, appellant states that he was not present when the pornographic materials were purchased by Detective Corbin and that he had not seen either of the two films.

While knowingly is not defined under the Arkansas Obscenity Law, it is defined under the general criminal statutes as the following:

A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

Ark. Code Ann. § 5-2-202(2) (Í987). In obscenity cases, the Supreme Court has stated that it is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. Hamling v. United States, 418 U.S. 87 (1974). It is not necessary to prove that a defendant had knowledge of the legal status of the materials. Id.

As we have stated numerous times, we treat directed verdicts as challenges to the sufficiency of the evidence. See, e.g., Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). In reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the appellee, and affirms if there is any substantial evidence in support of the verdict. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In determining the sufficiency of the evidence, it is permissible for the court to only consider the testimony that tends to support the verdict of guilt. Id.

Here, appellant is the sole owner and proprietor of both “adult” establishments, and all the utility and tax records are in his name. As shown by photographs introduced into evidence by the appellant, both of the “adult” business establishments had magazines, movie tape boxes and sexual devices displayed on the walls. Since the magazines were in clear plastic covers, their front covers were in plain view of anyone in the store. Appellant testified that he and his employees screen the movies and admitted that most of his stock was “pretty well” hard-core sexual conduct.

Sexually explicit photographs visible on the covers of magazines on display have been held sufficient to demonstrate that the defendant knowingly promoted and sold obscene material. See State v. Simmer, 772 S.W.2d 372 (Mo. 1989). Here, the cover of the magazine, “Black Girls White Cocks,” featured a lurid photograph of a woman showing her genitalia and being penetrated in the anus by a man. On the back cover, two naked women are pictured with men ejaculating on their breasts. In addition, the magazine’s front cover contained sexually explicit language stating the magazine contained pictures of sexual intercourse and oral sex between women and men. Considering appellant’s ownership and personal involvement in the business along with the sexually explicit materials on display on the premises, the jury, at the very least, surely could have reasonably inferred appellant was aware of the contents or character of the magazines and other materials that were for sale or rent.

If any doubt of appellant’s knowledge still lingered after such evidence, we would also note that the jury learned from the appellant’s own testimony that he had been convicted under this same obscenity statute before. See Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155 (1987). Evidence of prior arrests or convictions for violations of obscenity laws has been held to be probative in showing the defendant’s knowledge. See State v. McKinney, 718 S.W.2d 583 (Mo. App. 1986). We believe the evidence presented below was more than sufficient to support the jury’s determination that the appellant had knowledge of the contents, nature and character of the pornographic materials.

In his second point, appellant argues that the trial court erred in admitting the video movie “Girls on F Street” into evidence. The movie, “Girls on F Street,” was not listed in the information or shown at the first trial. Before this second trial, a pre-trial conference was conducted and the appellant and the deputy prosecutor discussed the evidence to be presented. The deputy prosecutor informed the court and the appellant that he intended to limit the sexual materials to be introduced to those items that had been purchased rather than those obtained in a search. In this connection, the state announced it planned to introduce two movies, “Nasty Habits” and “Girls on F Street.” The prosecutor further indicated that he would not show the movie “Cheek to Cheek,” which was shown at the first trial, and defense counsel acknowledged that this change in evidence would shorten the trial by an hour and a half.

At trial, appellant interposed his objection to the showing of “Girls on F Street,” saying that “it had not dawned on [him] until opening statement that ‘Girls on F Street’ was not in the last trial.” Appellant said that allowing “Girls on F Street” to be shown would amount to amending the information. The prosecutor interjected that he understood appellant agreed to the showing of this “purchased” movie, and after appellant acknowledged he was not surprised and was aware of the movie, the trial court overruled the appellant’s objection.

We have held that it is only necessary that an indictment name the offense and the party to be charged. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988); Ark. Code Ann. § 16-85-405 (1987). Defendants may be charged by either indictments or informations. See Ark. Const, amend. 21, § 1. The state is not required to include a statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. David, 295 Ark. 131, 748 S.W.2d 117. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. Fortner v. State, 258 Ark. 591, 528 S.W.2d 378 (1975).

In this case, the state’s information was definite in its setting out the obscenity law with which appellant was charged. Appellant was made fully and timely aware of the evidence, including “Girls on F Street,” which the state intended to use to prove its case. The appellant’s attorney, himself, admitted below that he was not surprised by the film. Under Ark. Code Ann. §16-8 5-405 (a) (2) (1987), no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of any defect, which does not tend to the prejudice of the substantial rights of the defendant on the merits. Appellant offered no suggestion at trial, or in this appeal, how he was, or could have been, prejudiced by the “Girls on F Street” movie, especially in light of the hard-core nature of the other movie shown, “Nasty Habits.” In sum, we cannot say that the appellant was prejudiced by the showing of the film “Girls On F Street.”

Next, the appellant argues that the trial court erred in failing to give the following requested jury instruction:

If, upon the entire case, the jury is unable to ascertain the meaning of “patently offensive,” “contemporary community standards,” “prurient interests,” or “serious value,” then the prosecution has failed to prove its case beyond a reasonable doubt. The jury is not permitted to speculate or guess at the meaning of these terms. If you are of the opinion that these elements are incapable of objective measurement, then you should return a verdict of not guilty.

The trial judge gave jury instructions that defined obscenity, hard-core sexual conduct, sexual conduct, prurient interest, sadomasochistic abuse, knowingly, promote, material and explained the contemporary community standard. The jury was also instructed that the state must prove every element of the offense charged.

We have held that where there is even the slightest evidence to warrant an instruction, it is error to refuse it. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985). We find no error here. The jury was properly instructed on the terms contained in the Obscenity Statutes. Appellant’s requested jury instruction, on the other hand, emphasizes some of these statutory terms contained in the instructions given by the trial court and suggests that the jury may not be able to ascertain the meaning of those terms.

One instruction should not be emphasized over others. See Bennett v. State, 302 Ark. 179, 789 S.W.2d 436 (1990). Further, it is error to give inconsistent and conflicting instructions. Jones v. State, 89 Ark. 213, 116 S.W. 230 (1909). The jury instructions given at trial followed the definitions found in our Obscenity Statutes which we have upheld. Dunlap, 292 Ark. 51, 728 S.W.2d 155 (1987). To the contrary, the appellant’s instruction suggests that the terms in the jury instructions are vague. For this reason, we believe the appellant’s requested instruction was incorrect. It is not an error to refuse an instruction that is not a correct statement of law. See Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976).

Finally, the appellant argues that his sentence of six years imprisonment and a $10,000 fine violates the eighth amendment’s prohibition against cruel and unusual punishment. We disagree. Appellant’s conviction for promoting obscene materials is a Class D felony. Ark. Code Ann. § 5-68-303(c). Under Ark. Code Ann. § 5-4-401(a)(5) (1987),thesentencefora Class D felony shall not exceed six years. This court has held that we will not reduce or compare sentences which are imposed within the statutory limits. See Shields v. State, 281 Ark. 420, 664 S.W.2d 866 (1984). Unless the punishment is a barbarous one unknown to law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community, we will not find that punishment authorized by statute is cruel or unusual. Parker v. State, 290 Ark. 94, 717 S.W.2d 197 (1986). As stated earlier, we also note that the jury was made aware of the fact that this was the appellant’s second conviction for this type offense. This knowledge could well have been a factor in the jury giving the appellant the maximum statutory sentence.

For the reasons stated above, we affirm.


text:
    Dagoberto FERNANDEZ v. STATE of Arkansas
    CR 90-65
    795 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990

      Charles A. Potter, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals his conviction of possession of cocaine with intent to deliver for which he was sentenced to forty years imprisonment and fined $20,000. His sole argument for reversal is that the trial court erred in finding he knowingly and voluntarily consented to the search of the vehicle he was driving and in refusing to suppress the cocaine obtained during the search. Although we believe the record supports the validity of the consent search, we need not discuss that issue in detail because appellant lacked standing to challenge the vehicular search in the first place. Because he lacked such standing, we affirm.

On the morning of August 21, 1988, state police officers, Mike Brown and Wallace Martin, while on routine patrol, were passed by a car driven by the appellant. Officer Brown testified that his vehicle was traveling at sixty-five miles per hour and that he clocked appellant’s vehicle at sixty-eight miles per hour. Appellant also made an improper lane change after passing the officers. The officers stopped appellant, and after doing so, Brown approached appellant’s car while Officer Martin remained with the patrol car. Brown obtained appellant’s drivers license and directed Martin to run a check on it. Meanwhile, Brown began writing out a warning ticket for speeding and improper lane change when Martin notified Brown that appellant’s drivers license had expired.

According to Brown, he then became suspicious when appellant told him that he had borrowed the car from a friend and that he was en route to Little Rock to pick up his wife. However, appellant did not know the name of the person from whom he had borrowed the car, did not know where he was supposed to pick up his wife and could not even produce a phone number to call in order to contact his wife. At this point, Brown directed the appellant’s passenger, Mr. Lucio Cerda, to step out of the car and asked him where he and appellant were going. Mr. Cerda informed Brown that they were going to Mississippi to buy a wrecked car. While he had been talking to the two men, Brown learned from Martin that the appellant had a criminal history. Brown testified that the men became increasingly nervous during his conversation with them.

Brown said that he began to suspect criminal activity, and accordingly, he informed appellant that he would like to search the vehicle if appellant would consent to the search. Brown then produced a consent-to-search form which outlined in English and Spanish the individual’s rights with respect to a consensual search.

At this point, substantial disparity exists between appellant’s and the officers’ versions of what then took place. In sum, the officers testified they read the entire consent search form to appellant in English and appellant, who spoke good English, also read the rights portion of the form which was in Spanish. Brown testified appellant indicated he understood the search form completely. Appellant, on the other hand, claimed the search form was never read to him and that he could not read English and could only “kind of’ read Spanish. He further asserted he did not understand the form or the English words added to it providing the officers could search the entire car. The officers’ and appellant’s testimonies also conflicted as to whether appellant was threatened with incarceration if he refused to sign the consent form.

Relevant to the standing issue before us, both appellant and Mr. Cerda testified that the car belonged to neither of them. Appellant testified that he merely accompanied Mr. Cerda on the trip in order to see his girlfriend in Little Rock and to help Mr. Cerda drive. He did not know the car’s owner or where Mr. Cerda had gotten the car. Appellant said that, at the time he was stopped, he had relieved Cerda from driving and had been driving for only twenty minutes. Mr. Cerda claimed that he had borrowed the car from his boss, whom Cerda thought owned it, but Cerda further related that he has since been sued by the car’s real owner. Neither appellant nor Mr. Cerda asserted any ownership claims to the seized cocaine.

In this matter, the appellant bore the burden of proving not only that the search of the car he drove was illegal, but also that he had a legitimate expectation of privacy in that car. Rawlings v. Kentucky, 448 U.S. 98 (1980); Rakas v. Illinois, 439 U.S. 128, 131, n. 1 (1978); see also Rodriquez v. State, 299 Ark. 421, 773 S.W.2d 821 (1989); Tippitt v. State, 294 Ark. 342, 742 S.W.2d 931 (1988). A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. Rakas, 439 U.S. at 134. Here, appellant failed to show that he had a legitimate expectation of privacy in the car. As previously noted, the proof revealed either that appellant borrowed the car from a friend whom he could not identify, or, in contrast to that story, that Cerda had borrowed the car, but that neither appellant nor Cerda actually knew who owned the car. In any event, appellant never showed that he or Cerda lawfully owned or possessed the car. Because appellant failed to establish his expectation of privacy in the searched automobile, we conclude he had no standing to challenge the officers’ search as unconstitutional.

Affirmed.

       After hearing the conflicting versions of what occurred, the trial judge, in refusing to suppress the evidence, explained that he believed both appellant and Mr. Cerda understood the English language, pointing out that Cerda had answered a question put to him by appellant’s counsel before the court interpreter related the question in Spanish.


author: Otis H. Turner, Justice.

text:
    Rodney Lamont HARRIS v. STATE of Arkansas
    CR 90-104
    795 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990

      William R. Simpson, Jr., Public Defender, and Howard Koopman, Deputy Public Defender, by: William M. Brown, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

The appellant, Rodney Lamont Harris, seeks a reversal of his conviction on charges of aggravated robbery and theft of property of a value in excess of $2,500. The convictions resulted in sentences of forty years and thirty years, to run consecutively.

The appeal is totally without merit, and we affirm.

Testimony at trial established that the appellant, having wrapped a shirt around a comb, represented to Melinda Agar, the owner of a business, that he was holding a gun. The appellant then demanded Agar’s car keys and the money from the shop’s cash register. The appellant took the money, amounting to $534, and drove away in Agar’s Nissan Maxima automobile. Some ten days later, following police pursuit, the automobile was wrecked. At trial it was established that the automobile had a value in excess of $2,500. The jury found the appellant guilty of both aggravated robbery and theft of property in excess of $2,500, and sentenced him as an habitual offender.

The appellant gave a lengthy statement to the police shortly after his arrest, which detailed his commission of the crimes and discussed other instances, of theft. The state elected not to introduce the statement but relied instead on the testimony of the victim and the police officers.

The appellant attempted to introduce the statement into evidence in lieu of taking the witness stand to testify in his own behalf. The trial court did not permit the introduction of the statement by the defendant. The sole issue on this appeal is the somewhat convoluted argument that the defendant, by choosing not to take the witness stand, became “unavailable” and that his statement was therefore admissible as an exception to the hearsay rule pursuant to A.R.E. Rule 804(b)(5).

The appellant argues, with a sort of Wonderland logic, that his Fifth Amendment rights were violated because his refusal to take the witness stand — an assertion of those constitutional rights — rendered him “clearly unavailable as a declarant as required under the Arkansas Uniform Rules of Evidence 804.” Therefore, he reasons, his statement should have been admitted. This is a novel strategy which, if it had merit, would prove a bonanza for any number of criminal defendants wishing to get their exculpatory statements to the jury without exposing themselves to cross-examination by taking the witness stand. The position of the appellant is totally without any merit.

A point of major concern in this case is the fact that the appellant seeks a reversal dependent upon a statement which he has not abstracted. A failure to abstract such a critical document precludes the court from considering the statement or its contents for any purpose. As we stated in Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989): “It is fundamental that the record on appeal is confined to that which is abstracted.” See also Richardson v. State, 283 Ark. 82, 671 S.W.2d 164 (1984).

Affirmed.


author: Dale Price, Justice.

text:
    Donald Ray HOOKS v. STATE of Arkansas
    CR 90-68
    795 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990

      William R. Simpson, Jr., Public Defender, and Thomas B. Devine III, Deputy Public Defender, by: Andy O. Shaw, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

Donald Ray Hooks was convicted of delivery of Dilaudid, a controlled substance. The jury considered the appellant’s status as an habitual offender and sentenced him to life in prison. On appeal, Hooks argues that the evidence was not sufficient to convict him, either as a principal or an accomplice, and that the court erred in instructing the jury on accomplice liability. Finding no error, we affirm.

In determining whether there is sufficient evidence to support a verdict, we review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support a guilty verdict. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). We set out the following facts in light of this standard.

The appellant was arrested as part of an undercover operation conducted by the narcotics division of the Little Rock Police Department. Patrolman James King was assigned to drive around the area of 30th and Wolfe Streets in Little Rock. As King was driving, he was flagged down by a man named Michael Ray Mitchell. Standing with Mitchell was the appellant. Both men walked toward Officer King’s car, but the appellant stopped on the corner while Mitchell walked directly up to King. King informed Mitchell that he wanted to purchase Dilaudid pills. Mitchell said, “Drive around the corner, I will be back with you in a minute.” As King drove away, he saw Mitchell walk back and make contact with the appellant, and the two men began walking together.

After circling the block, King was flagged down again by Mitchell. Once again, Mitchell and the appellant were walking together. The appellant stopped short of coming up to King’s vehicle, but Mitchell did approach the vehicle and handed King two pills. The pills were later positively identified by the State Crime Lab as Dilaudid. King paid for the pills with three $20 bills, the serial numbers of which had been previously recorded. As King drove away, he saw Mitchell and the appellant exchange “high fives.”

King radioed a description of both men to other narcotics officers who were in the area. Two officers spotted Mitchell and the appellant at the corner of 30th and Wolfe. The officers identified themselves as policemen. Mitchell was apprehended immediately, but the appellant turned and fled. He was caught after being chased a half a block. Officers found $20 of the “buy” money in Mitchell’s possession; the other $40 was found in the appellant’s left front pocket.

The issue is whether this evidence is sufficient to convict the appellant of delivery of a controlled substance, either as a principal or an accomplice. Evidence is sufficient to support a conviction if it is substantial, meaning the jury could have reached its conclusion without resort to speculation or conjecture. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). Much of the evidence against the appellant is circumstantial, but circumstantial evidence is sufficient to constitute substantial evidence. Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989). We find there is sufficient evidence in this case from which the jury could have determined the appellant was an accomplice in the illegal transaction.

An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, advises or aids another person in committing the offense. Ark. Code Ann. § 5-2-403 (1987). Presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Many factors in this case suggest joint participation of the appellant and Michael Ray Mitchell in the drug transaction. The fact that Mitchell asked Officer King to drive around the block, walked back to the appellant, then provided the drugs when the officer returned, suggests that Mitchell either consulted with the appellant about the transaction or actually obtained the drugs from him. The exchange of “high-fives” between Mitchell and the appellant is evidence that the two had successfully completed a common venture. The appellant, when approached by police, fled to elude capture, which we have said is relevant in corroboration of evidence tending to establish guilt. Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987). Finally, when the appellant was apprehended shortly after the sale occurred, he was in possession of $40 of the “buy” money.

The appellant claims there are inconsistencies in the evidence. Officer King’s report, which was written up by another officer, did not mention the “high-fives” or that the appellant had been standing with Mitchell when he first saw them. There was also testimony from Mitchell that he had given the appellant the $40 in repayment of a loan. Where the testimony is conflicting, we do not pass upon the credibility of the witnesses. Credibility of the witnesses and the weight to be given testimony are matters for the jury. Brown v. State, supra.

As there was sufficient evidence to support the appellant’s conviction as an accomplice, there was no error in instructing the jury on accomplice liability.

Pursuant to Supreme Court Rule 11(f), an examination of the record has been made and no other errors prejudicial to the appellant were found.

Affirmed.


author: Per Curiam.

text:
    Theron WATSON v. STATE of Arkansas
    RC 90-35
    795 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered September 17, 1990

      James R. Marschewski, Deputy Public Defender, for appellant.
    No response.
   Per Curiam.

This is a motion by the petitioner, Theron Watson, for a rule on the clerk to file a record tendered 67 days late. Contained in the motion is a statement by Mr. James Marschewski, the Public Defender for Sebastian County, from which it appears that he, as Watson’s attorney, had inadvertently failed to file the record in Watson’s appeal and in which he accepts responsibility for the failure to comply with Ark. R. App. P. 5.

Rule 5 provides that the record on appeal shall be filed with the clerk of this court within 90 days of the notice of appeal unless the trial court grants an extension. The order of extension must, however, be entered before the expiration of the 90 day period, and in no event shall the time be extended more than seven months from the date of the entry of the judgment.

In this case, Watson obtained valid extensions through April 29,1990, for filing his transcript. On that date, however, he failed to tender the transcript and failed to obtain an extension. Consequently, Watson did not comply with Rule 5.

In Harkness v.State, 264 Ark. 561, 572 S.W.2d 835 (1978), where a deputy public defender miscalculated the time for filing an appeal for the petitioner by two days, this court granted the petitioner’s motion for rule on the clerk and stated that it would amount to a denial of the petitioner’s constitutional right of appeal for the court to refuse to grant his motion as such a miscalculation amounted to ineffective assistance of counsel.

Mr. Marschewski’s failure to file the record in this case is a denial of Watson’s constitutional right of appeal and constitutes ineffective assistance of counsel. Consequently, we grant Watson’s motion for rule on the clerk and direct that a copy of this per curiam be forwarded to the Committee on Professional Conduct.


author: Robert H. Dudley, Justice.

text:
    Lucio H. CERDA v. STATE of Arkansas
    CR 90-73
    795 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered September 24, 1990

      Charles A. Potter, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of possession of a controlled substance with intent to deliver and was sentenced to life in prison and a $250,000.00 fine. We reverse and dismiss because there was insufficient evidence to support the verdict.

The facts presented the jury are straightforward and simple. Appellant and Dagoberto Fernandez were traveling east on Interstate 30 near Hope when they were stopped by a State Policeman for speeding. Fernandez was driving, and appellant was a passenger. Appellant may have been asleep in the back seat, but the arresting officer was not certain. The officer talked with both appellant and Fernandez. The statement they gave him contained a “big discrepancy.” The jury was not told what the discrepancy was. Fernandez told the officer that the car had been loaned to him by a friend. Appellant told him they were on their way to Mississippi in a borrowed car. The officer obtained Fernandez’s written consent, in Spanish, to search the car, and subsequently found four and one-half pounds of cocaine inside a recess of the rear bumper. Appellant and Fernandez whispered to one another in Spanish when the officer began to search under the rear of the car. In the officer’s opinion they were “extremely nervous.”

In determining whether there is sufficient evidence to support a jury verdict, this court views the evidence in the light most favorable to the appellee and affirms the verdict if there is substantial evidence to support it. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Substantial evidence is that which is of sufficient force to compel a conclusion one way or another. Id. It must be more than mere speculation or conjecture. Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986).

In order to prove a defendant is in possession of a controlled substance, constructive possession, which is the control or right to control contraband, is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. But, “when the evidence of possession is purely circumstantial, there must be some factor, in addition to joint occupancy of the place where narcotics are found, linking the accused with the narcotic in order to establish joint possession of it.” Cary v. State, 259 Ark. 510, 518, 534 S.W.2d 230, 236 (1976). See also Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985).

Where there is joint occupancy of the premises in which contraband is found, “the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband.” Plotts v. State, 291 Ark. 66, 69, 759 S.W.2d 793, 794 (1988).

The evidence in this case is not sufficient to compel the conclusion that appellant had knowledge of the presence of cocaine in the car and control over it. The contraband was not in plain view, on appellant’s person, or in his immediate proximity, but was hidden in a recess of the car’s rear bumper where appellant very well could have been unaware of it. Appellant was not the owner of the vehicle and had no possessory interest in or control over it. The fact that appellant and Fernandez told conflicting stories is insignificant since the jury was not told whether the stories conflicted on a major point or some unimportant detail. The fact that appellant was extremely nervous is some indication of guilty knowledge, but does not compel such a conclusion since nervousness during an arrest and search would be expected. The fact appellant whispered to Fernandez is some indication appellant was trying to keep some information from the officer, but appellant’s use of Spanish is not such an indication, since it was his native tongue. In sum, the finding of guilt had to be based upon speculation and conjecture because there was no substantial evidence to support it.

We are aware from the record of the suppression hearing in this case, and from the companion case of Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990), that the State had a stronger case than was presented to the jury. However, in determining whether there is sufficient evidence to support a jury verdict, we can consider only that evidence which was in fact presented to the jury.

Reversed and dismissed.


author: Steele Hays, Justice.

text:
    Sherman Dale RENSHAW v. STATE of Arkansas
    CR 90-102
    795 S.W.2d 925
    Supreme Court of Arkansas
    Opinion delivered September 24, 1990

      Terry Crabtree, for appellant.

      Steve Clark, Att’y Gen., Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This appeal concerns post-conviction relief. The only question is whether the trial court erred in denying appellant’s claim of ineffective assistance of counsel. However, we do not address that issue as the case is affirmed on other grounds.

On December 2,1988, Arkansas State Police Trooper, Bob Massey, observed appellant driving erratically and crossing the center line on Highway 71, near Bentonville. Massey pulled appellant over and upon questioning him, detected a strong odor of alcohol. Massey transported appellant to the Bentonville Police Department where appellant refused to take any sobriety tests.

Massey received information from the state police headquarters that appellant was wanted for a parole violation in Texas and Texas wanted appellant held for extradition. Massey was further advised that appellant was an escape risk. In the course of searching appellant Massey found two plastic bags, one containing methamphetamine and the other, cocaine.

Appellant was subsequently charged by information on January 5, 1989, by the district prosecuting attorney, with two counts of possessing a controlled substance. On April 17,1989, a suppression hearing was held on these charges and after the evidence and testimony were received, but before the trial court made a ruling, appellant tendered a guilty plea. After a discussion and explanation the court accepted the plea and ordered a presentence report.

On June 27,1989, appellant filed a motion to withdraw his guilty plea, doubtless prompted by our rulings in Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), and Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), both handed down on May 1, 1989, holding that we would require strict compliance with the certification of law enforcement officers under Ark. Code Ann. § 12-9-101 through 111 (1987). In his motion, appellant alleged that he should be allowed to withdraw his guilty plea in order to correct a manifest injustice; that the officer who had arrested him was not properly certified under the regulations established by the Arkansas Commission on Law Enforcement Standards, and by Grable, supra; that the actions of the arresting officer should be held invalid; and that any evidence taken as a result of the arrest should be suppressed.

On July 26,1989, a hearing was held on appellant’s motion to withdraw his guilty plea, as provided by A.R.Cr.P. Rule 26.1. The state presented evidence to show that Officer Massey was properly certified, and the trial court so found. The trial court then accepted appellant’s guilty plea and sentenced him to a total of fifty years.

On August 22, 1989, with newly appointed counsel, appellant filed a new trial motion, alleging ineffective assistance of counsel. Appellant urged that his former attorney had failed to subpoena the proper witnesses and records at the July plea withdrawal hearing to show that the state’s evidence of Massey’s proper certification was incorrect. On October 13, 1989, a hearing was held and appellant attempted to show that because Officer Massey was not in fact certified, his attorney was ineffective.

The trial court concluded that even if the former attorney had failed to call witnesses the appellant had not shown prejudice because it was clear that Officer Massey was a certified law enforcement officer and met the minimum standards at the time of appellant’s arrest. The trial court did reduce appellant’s sentence to forty years, but otherwise affirmed the judgment entered in July.

On appeal appellant claims the trial court erred, arguing that Officer Massey was in fact not properly certified and that appellant therefore did suffer prejudice because he was precluded from challenging his arrest and moving to suppress the evidence on that ground. As noted previously, we affirm the trial court’s ruling on other grounds.

Appellant rests his argument on Grable, supra, and Mitchell, supra, where we held an arrest was invalid when the arresting officers were not properly certified pursuant to Ark. Code Ann. § 12-9-108(a) (1987). However, appellant misconstrues that holding in the context of this case. In both Grable and Mitchell, the focus was on the lack of any valid charging instrument against the defendants. The arresting officers’ warrant or citation in those cases was the only charging document presented as filed against the defendants. The state failed to present evidence that an alternate and valid charging document had also been filed. The point in both was that the state had simply failed to file a valid charge, a constitutional requirement. See Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). The consequence was that the state could not proceed with the prosecution. To this same effect see Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), and Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990).

The problem that was present in both Grable and Mitchell does not exist in this case as the appellant was separately charged by a prosecutor’s information. Appellant’s argument that the arresting officer was not properly certified is rendered moot by the fact that he was charged by a valid information.

The judgment is affirmed.

       Specifically, the motion alleged that the officer had not had an oral examination by a psychologist, at the time the officer had made the arrest.


text:
    Graves HARRISON, Jr. v. STATE of Arkansas
    CR 90-98
    796 S.W.2d 329
    Supreme Court of Arkansas
    Opinion delivered September 24, 1990
    [Rehearing denied October 29, 1990.]

      Honey & Honey, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Graves Harrison, Jr., the appellant, was convicted of eight counts of theft. Harrison was the manager of the Hope Grain Drying Cooperative. Testimony presented to the jury showed that Harrison engaged with others in a scheme whereby he made out eight checks on the cooperative supported by false rice and soybean receipt entries. The checks were cashed by persons who received a percentage of the money, and Harrison received the remainder. The jury found him guilty on each count and recommended a sentence, which the court imposed, of ten years imprisonment and a fine of $ 15,000 on each count. The decision is affirmed. Additional facts will be discussed as we consider each of Harrison’s nine points of appeal.

1. Discovery failure; ineffective assistance

Harrison’s trial counsel filed a discovery motion, and the prosecution responded by stating an open file policy. The lawyer viewed the file and announced to the court that he was satisfied with the prosecution’s response to his request. There was thus no objection at the trial to the prosecution’s response to the discovery request. We do not consider on appeal an issue not presented to the trial court. Willis v. State, 299 Ark. 356, 772 S.W.2d 584 (1989).

Harrison’s appellate counsel argues, without citation of authority, that Harrison is not bound by his trial counsel’s statement because trial counsel had sought to be relieved of the case. Earl v. State, 212 Ark. 5, 612 S.W.2d 98 (1981), is cited for the proposition that the open file policy is not a satisfactory discovery response. There we pointed out that such a policy may save time for the prosecution and defense but it may hinder a reviewing court’s effort to know precisely what was furnished to the defense and thus whether Ark. R. Crim. P. 17.1 was followed.

The argument here boils down to a contention that the conviction should be reversed because trial counsel was ineffective, a contention which cannot be raised for the first time on direct appeal of the judgment. Allegations of ineffective assistance of counsel may not be raised for the first time on appeal. Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). In those cases we pointed out that the proper method of raising the issue of ineffective assistance of counsel was spelled out in Ark. R. Crim. P. 37. It is now found in Rule 36.4. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989).

2. Denial of continuance

Harrison was represented by appointed counsel at the trial. On the day the trial was to begin, appointed counsel moved for a continuance on the ground that Harrison had arranged a loan from a friend and wished to hire other counsel. The court inquired whether the appointed counsel was ready to try the case. He said he was, and the motion was denied as untimely.

On appeal Harrison argues he was denied his right to counsel guaranteed by the Sixth Amendment to the United States Constitution. That argument was not made to the trial court, and thus we will not consider it. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989).

Denial of continuance is not error unless it amounts to an abuse of discretion. Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). Once competent counsel has been obtained, the delay involved in changing counsel must be balanced against the public’s interest in the prompt dispensation of justice. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). We find no abuse of discretion.

3. The number of offenses

A motion was made on behalf of Harrison to dismiss all but one of the counts of the information. The stated ground was that the obtaining of money through the unauthorized checks was a “continuing course of conduct” and amounted to only one offense, citing Ark. Code Ann. § 5-1-110 (1987). The statute prohibits conviction of more than one offense if, “[t]he conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted. . . .” In response the prosecution argued that each check represented a separate event and that, but for two of them, each was written on a different date. The court inquired whether the two checks written on the same date were cashed at different times, and the response of Harrison’s counsel was that they were “separate events.”

On appeal, Harrison’s argument differs materially from that accompanying his motion. He now contends that because the checks were cashed on three separate dates, there should have been three charges rather than eight. The material shift is from emphasis on a continuing course in misusing the checks to the cashing of them on only three dates. A party may not change the ground of objection from the one made at trial to a different one on appeal. Taylor v. State, supra; Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988); Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (Supp. opinion on denial of rehearing, 1986).

4. Appointment of experts

Harrison asked the court to appoint a certified public accountant and a person familiar with managing a grain drying business to assist him in investigating his case. The motion was denied, but not until the court had ascertained that there would be no testimony about complicated grain drying operations or financial transactions. Harrison acknowledges that the decision whether to grant the request was within the discretion of the trial court, but he argues the denial of the motion was prejudicial because the request was a reasonable one.

We can find nothing about this case requiring the testimony of such experts, and thus we find no abuse of discretion.

5. Biasing the jury

The judge asked prospective jurors if they would be embarrassed if the decision turned out to be contrary to the testimony of a witness or witnesses they might meet on the street the day after the trial. He asked, “Is there any one of you who are acquainted with one of these witnesses who feels like that knowledge is likely to cause you to be prejudiced for or against the state because of that knowledge?”

Harrison contends the question reflected a bias of the court toward the prosecution case. Even if this argument could be perceived as having some merit, we would ignore it, as no objection to the court’s inquiry was made at the trial. Smart v. State, 297 Ark. 324, 761 S.W.2d 915 (1989).

6. Verdict form

The argument on this point is that, instead of stating the allowable sentence for each offense in the statutory language of “not less than five (5) years nor more than twenty (20) years,” the form contained a blank line with “(5-20 years)” beneath it. Instead of providing for a fine “not exceeding fifteen thousand dollars ($15,000)” the form contained a blank line and “(up to $15,000)” beneath it.

Here again, even if there were some merit to this point, no such objection was made at the trial, and we will not consider the argument.

7. Denial of new trial motion

After the jury returned its verdict, Harrison’s counsel sought to inquire about an alleged friendship between the jury foreman and the chairman of the board of the cooperative. The court refused to permit further voir dire of the juror.

In making the objection, Harrison’s counsel stated that information had come to him “during the trial” that the juror might be biased. The objection was thus clearly untimely and thus cannot be the basis for reversal. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).

8. Refusal to require pre-sentencing report

The court denied Harrison’s request to have a presentencing report prepared so that the court could learn of Harrison’s clean record. We need only point out here that there is nothing in the statute on pre-sentencing reports, Ark. Code Ann. § 16-90-105(b) (1987), which could be considered as making them mandatory. Subsection (a) of the statute provides that after a finding or verdict of guilty has been returned, sentencing may occur. Subsection (b) provides that the court may receive a presentencing report or evidence in mitigation. Clearly the decision whether to permit such evidence is within the discretion of the judge, and we find no abuse in these circumstances.

9. Error in the commitment order

Some confusion occurred when the judge pronounced the sentence. However, it was satisfactorily resolved when the judge clearly stated that he meant Harrison to have consecutive ten-year sentences on the first four convictions and consecutive sentences on the other four as well, but that the two effective 40-year terms were to run concurrently to each other. The sentence was thus to total 40 years.

The original commitment order provided for an 80-year sentence. Both the state and Harrison recognized that the order was in error. On September 10, 1990, we granted the state’s motion to supplement the record with a corrected commitment order stating that the sentence to imprisonment is for 40 years.

Affirmed.


text:
    Augusta ALLEN, Jr. v. STATE of Arkansas
    RC 90-47
    795 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered September 24, 1990

      Henry Swift, for movant.
    No objection.
   Per Curiam.

Appellant, Augusta Allen, Jr., by his attorney, has filed for a rule on the clerk.

His attorney, Henry J. Swift, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Antonio Demarion COLEY v. STATE of Arkansas
    CR 90-83
    795 S.W.2d 356
    Supreme Court of Arkansas
    Opinion delivered September 24, 1990

      John Ogles, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Per Curiam.

The briefs in this case are considered to be insufficient for determination of the appeal because of a failure to comply with the Arkansas Supreme Court Rules.

Our rules relating to content and organization of briefs on appeal are quite specific, and the briefs in this instance are woefully inadequate.

Arkansas Supreme Court Rule 9(b) requires a jurisdictional statement. No jurisdictional statement is included in the appellant’s brief. Furthermore, Rule 9(b) requires a statement of the case, without argument, sufficient to enable the court to gain an understanding, not only of the nature of the case, but also of the general fact situation. The appellant’s statement contains nothing more than a bare statement of the charges and results of the trial.

Rule 9(c) next requires that the appellant list and separately number the points relied upon for reversal. The appellant here not only fails to list the points relied upon for reversal, but under the “Argument” portion of the brief, he lists as his only challenge the sufficiency of the evidence relating to aggravated robbery. However, under the same heading, he proceeds to argue the sufficiency of the evidence to sustain a forgery conviction.

Rule 9(d) requires an abstract of the records consisting of an impartial condensation of the matters necessary to an understanding of all questions presented to this court. In addition to arguing portions of the record which have not been abstracted, the appellant clearly abstracted only those parts favorable to his argument for reversal.

Finally, Arkansas Supreme Court Rule 11(f) provides that in cases where, as here, the sentence is life imprisonment, the court must review all errors prejudicial to the appellant. In order to make that review possible, the rule requires the appellant to abstract all of the objections that were decided adversely to him in the trial court, together with such parts of the record as are needed for an understanding of the objection. The appellant did not comply with this rule.

Rule 11 further requires that the state make certain that all exceptions have been so abstracted and mandates that the state brief all points argued by the appellant together with any other points which appear to the Attorney General to involve prejudicial error. In this case, no such certification was made by the state.

In those instances where the appellant’s brief is thought by the state to be deficient, those deficiencies may be called to the court’s attention and, at the option of the appellee, a supplemental abstract may be included as part of the appellee’s brief. Arkansas Supreme Court Rule 9(e)(1). Here, the appellee neither noted the deficiencies of the appellant’s brief nor submitted a supplemental abstract; yet the state argued unabstracted portions of the record.

This case is remanded for rebriefing and the parties are subject to the briefing provisions of Arkansas Supreme Court Rule 11(a), with the transcript considered to be lodged as of this date.

Remanded for rebriefing.


text:
    John FINN v. W.J. “Bill” McCUEN, Secretary of State
    90-232
    799 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered September 26, 1990

      Robert S. Shafer, William H. Sutton, and Larry L. Page, for petitioners.

      Steve Clark, Att’y Gen., by: Jeffery A. Bell, Deputy Att’y Gen., for respondent.
   Per Curiam.

John Finn and Don Elliott have filed an original action in this Court challenging the sufficiency of the statewide initiative providing for the “Lottery Amendment.” They ask that the matter be treated as a preferential cause and be tried at once. The respondent, W.J. “Bill” McCuen, Secretary of State, asks that the action be dismissed as untimely.

We order an expedited briefing schedule with the parties being directed to brief both the dismissal motion and the merits of the case.

Marcus Holbrook has filed a motion for leave to intervene. His motion is granted.

Robert G. Walker, Winfred W. Batch, and Clarence J. Rice have filed a motion for leave to intervene; Their motion is granted.


author: Jack Holt, Jr., Chief Justice.

text:
    Alex McKINNEY v. STATE of Arkansas
    CR 90-95
    797 S.W.2d 415
    Supreme Court of Arkansas
    Opinion delivered October 1, 1990

      Bracey & Bracey, by: Bill E. Bracey, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Alex McKinney, was convicted of murder in the first degree for the shooting death of his girl friend, Lora Chapman, and sentenced to 40 years imprisonment.

On appeal, McKinney argues that: 1) the trial court erred in granting the jury’s request, during deliberation, to rehear the court reporter’s audio tape of a prosecution witness; and 2) the verdict was not supported by sufficient evidence. We disagree and affirm.

Since McKinney’s second contention is that the evidence was insufficient to sustain the verdict, we will consider it first.

SUFFICIENCY OF THE EVIDENCE

On the morning of March 26, 1989, McKinney and Lora Chapman, who resided together with their three-year-old daughter, began arguing. Testimony at trial revealed that the couple came in and out of the house and argued in and around the cars parked in the carport and yard. During their arguments, Lora Chapman was shot.

Witnesses who heard the gunfire all claim to have heard at least two shots. One neighbor claimed she heard three “popping” noises. McKinney’s next door neighbor, James Moore, testified that when he first heard the arguing from his window, he observed Lora Chapman sitting inside a white Cadillac parked in their carport and McKinney standing by the driver’s side. The couple returned inside with McKinney holding a gun and following behind Ms. Chapman. Moore later witnessed the couple walking around the other car, a brown Citation, with McKinney still in possession of the revolver. At that time he called the police. Moore subsequently heard two shots but did not witness the shooting.

Lora Chapman’s aunt, Jeana Henton, was inside the couple’s house and was awakened by their talking. She heard them go in and out of the house several times and observed them arguing in the carport from the living room window. Henton later heard a gunshot, returned to the window, and witnessed McKinney shoot Lora Chapman. “I saw her run around to the driver’s side and as soon as she got there, he shot.”

McKinney, testifying in his own defense, claimed the shooting was an accident. He stated initially that Ms. Chapman had procured a gun from the Cadillac and that he had taken it from her. Later, during a chase around the Citation, in which he was attempting to retrieve the car keys from Ms. Chapman, the gun accidentally discharged.

According.to Dr. Fahmy Malak, state medical examiner, the bullet entered the upper lip and traveled downward, and from left to right, and lodged above the right collar bone. It was Dr. Malak’s opinion that the bullet was fired from a distance of four to five feet.

Further testimony from Berwin Moore, a firearm’s expert with the state crime lab, established that in testing the revolver, he was unable to get the gun to discharge accidentally.

At the close of the state’s case, and at the conclusion of the trial, McKinney moved for a directed verdict on the basis that there was insufficient evidence in which the jury could find McKinney guilty of first degree murder. Both motions were denied. In determining whether there is substantial evidence to support the verdict, we review the evidence in the light most favorable to the appellee and consider only the testimony which tends to support the guilty verdict. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Substantial evidence has been defined as evidence which is of sufficient force that will compel a conclusion one way or another. The evidence must be beyond mere suspicion or conjecture. See Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).

Based on the testimony at trial, we conclude that there was substantial evidence to support the jury’s verdict of murder in the first degree. Witnesses heard at least two shots and observed the couple outside arguing. McKinney was seen holding a revolver, and Jeana Henton claims to have seen him intentionally shoot Lora Chapman. McKinney argues that Henton’s testimony is suspect because of her relationship to the victim and the fact that she was not wearing her glasses at the time of the incident. We have long held, however, that credibility of witnesses is for the jury to determine. Stewart v. State, 297 Ark. 429, 762 S.W.2d 794 (1989).

McKinney further contends that the jury relied on circumstantial evidence for their finding of premeditation and deliberation, and that no motive had been established. First, the law assigns equal weight to direct and circumstantial evidence in determining whether there is substantial evidence to support the jury’s verdict. Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989). Furthermore, Henton’s testimony that she saw McKinney shoot the victim is not circumstantial, but rather direct evidence of McKinney’s state of mind. It is well established that premeditation and deliberation need not exist for any length of time and can be formed on the spur of the moment. See Ford v. State, 297 Ark. 77, 759 S.W.2d 556 (1988); Davis v. State, 257 Ark. 771, 475 S.W.2d 155 (1972). Evidence of motive, existing before the commission of the crime, may be relevant to the defendant’s mental state, but is not required. The sudden, yet deliberate, action of McKinney revealed through Jeana Henton’s testimony, in addition to other evidence established at trial such as the firing of two shots, was enough to warrant the jury’s finding of first degree murder.

REHEARING OF TESTIMONY

McKinney argues that the trial court erred in allowing the jury to rehear certain testimony during its deliberation. The record reveals that, during their deliberation, the jury members returned to open court whereupon the foreperson related that “the jury had a question about Mr. Moore’s testimony, about the time and time frame, in any way that we can.” The trial judge responded that the jury could request to hear any portion of the testimony over again; the foreperson then requested they be allowed to do so. Thereafter, Moore’s testimony, recorded on audio tape, was played to the jury. McKinney objected, claiming that it was prejudicial error to allow the jury to single out certain testimony, thereby lending undue emphasis and credit to one witness.

On appeal, McKinney supports his objection to the playing of the recorded testimony by contending that the trial court violated a provision of Ark. Code Ann. § 16-89-125(e) (1987), thus denying him due process.

We note that this exact contention was not raised at trial and ordinarily we do not consider different grounds for objection on appeal. See Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). However, because McKinney’s objection at trial was, in substance, a due process objection and touched on the circumstances under which a trial judge can provide the jury with additional information during deliberation, as governed by the foregoing statute, we find his argument to be sufficiently before us on appeal.

Section 16-89-125(e) states:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties. (Emphasis ours.)

McKinney argues that this section establishes a prerequisite that there must be a showing to the trial court that a disagreement exists between them before the jury can receive the requested information and that the trial court erred as no such “disagreement” was shown, rather only an assertion that they had a “question.”

McKinney cites Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986) and Williams v. State, 264 Ark. 77, 568 S.W.2d 30 (1978) for our holding that the provisions of the statute are mandatory and should be strictly construed. Tarry and Williams are easily distinguishable from the present case. In Tarry, we found prejudice to the defendant because the judge entered the jury room and entertained questions from the foreman. Williams involved a situation where the jury asked the bailiff, at the door to the jury room, whether “it would matter” if one of the jurors was acquainted with the state’s witness. Our concern in both cases was that the jury’s inquiries were not made in open court in the presence of each other and in the presence of counsel. It was this concern, that the procedural requirements of section 16-89-125(e) be followed, that prompted our admonition of strict compliance with the statute.

On several other occasions we have made mention that section 16-89-125(e) is mandatory. However every one of these cases, without exception, involved communications between the court and less than the full jury, or communications made either out of open court or outside the presence of counsel. See generally, Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986); Golf v. State, 261 Ark. 885, 552 S.W.2d 236 (1977); Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973) Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971); Rollie v. State, 236 Ark. 863, 370 S.W.2d 188 (1963); and Aydelotte v. State, 177 Ark. 595 (1926). From this history, it is apparent that our requirement that the statute be strictly followed focuses not on the express reason for the jury to request the information, but the procedure by which the request is presented. This concern is evident from our holding in Rollie, supra, in which we said:

This statute requires in unambiguous language that the entire jury and no less a number thereof must be present before the court and counsel for the parties, or notice given to counsel, upon any proceedings affecting the rights of the defendant or the state as defined in this statute. Its provisions are mandatory.

Although one jurisdiction, under a comparable statute, appears to require a finding of “jury disagreement” as a prerequisite to the rehearing of testimony, we do not share its view. See Jones v. State, 706 S.W.2d 664 (Tex. Cr. App. 1986). Other states, with statutes identical to ours, have adopted a more sensible approach. In Tabor v. State, 582 P.2d 1323 (Okla. Crim. App. 1978), the jury foreman advised the court that there was uncertainty as to the exact wording of one of the witness’s testimony and requested that it be read to them. Defense counsel objected that there was no “disagreement” between the jury members. In concluding that the jury’s uncertainty amounted to “disagreement” under their statute, the court quoted from Jones v. State, 456 P.2d 610, 612 (Okla. Crim. App. 1969):

We interpret the mandatory aspect of 22 O.S.A. § 894 to be that which provides for the return of the jury to the courtroom, and for the notification of the parties to the trial that the jury is being returned for additional information or instructions. The determination of whether or not the jury’s request is required lies within the judicial discretion of the trial judge.

Similarily, in People v. Butler, 47 Cal. App. 3d, 273, 120 Cal. Rptr. 647 (1975), the California Court of Appeals rejected the state’s “mechanical” argument that the statute was not followed because the jury foreman’s statement “we couldn’t really hear [the testimony] correctly” did not indicate any “disagreement”. “The argument of the attorney general ignores a respected line of authority which holds that upon request by the jury for the re-reading of testimony, such assistance must be given.” The court later added:

Although the mandate of penal code § 1138 is an important protection for a party, it is the right of the jury which is the primary concern of the statute; its provisions do not delegate to the trial judge, the parties, or their attorneys, the right to determine the jury’s wishes.

These cases, although conceding that the procedural provisions of the statute are mandatory, nonetheless vest discretion in the trial judge as to whether to grant the jury’s request and, if so, to what extent. The trial court’s discretion in this matter is recognized by a number of jurisdictions that are governed by statutes similar to ours, as well as those without such statutes. See State v. Nowakowski, 188 Conn. 620, 452 A.2d 938 (1982); State v. Couch, 103 Idaho 205, 646 P.2d 447 (1982); People v. Cyr, 113 Mich. App. 213, 317 N.W.2d 857 (1982); and Givens v. State, 705 P.2d 1139 (Okla. Crim. App. 1985).

It is our view that this discretion should extend to a determination of whether or not the jury has expressed sufficient disagreement or confusion over some aspect of the testimony, thereby warranting a repeat of some portion of it.

This same view was espoused by the Idaho Court of Appeals, which stated: “We hold that the rule in Idaho requires the trial court to attempt to meet any reasonable request by the jury for the re-reading of testimony.” State v. Couch, 103 Idaho at 208, 646 P.2d at 450. The concern of the Idaho court was to ensure that none of the parties suffered prejudice as opposed to enforcing literal compliance with their statute, which is identical to ours. “From the jury’s request for a transcript of the tape recording, the court could infer the jury had some disagreement concerning the evidence. The jury had a right to review this evidence.” Id. Likewise, in Lovelady v. State, 478 P.2d 983 (Okla. Crim. App. 1970), the court, after noting the discretionary role of the trial court in granting the request, held that because the jury requested three times to rehear testimony “there must have been some disagreement between them as referred to in the statute.”

We acknowledged the discretionary aspect of section 16-89-125(e) in Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). After reviewing the discretionary standards in other jurisdictions, we adopted the approach that “the trial judge should honor any request of a jury to hear specific evidence in the absence of some compelling reason why it should not be granted and that the action of the trial court in doing so should not be reversed in the absence of a manifest abuse of discretion.”

In sum, the question of whether a jury is in sufficient disagreement or confusion to merit the requested information should be examined on a case by case basis. While we are not in favor of granting the request merely to refresh a juror’s recollection, (see Galiger v. Hansen, 133 Mont. 34, 319 P.2d 1051 (1957)), we do not feel a literal argument must arise between jurors before they can receive requested evidence. Here, the jury was plainly in doubt regarding Mr. Moore’s testimony and stated there were questions concerning the time frame involved. This was enough to justify a replaying of the evidence under section 16-89-125(e) and under the standard we established in Gardner v. State, supra.

The thrust of our reasoning was well expressed by the New Jersey Supreme Court in State v. Wolf, 44 N.J. 176, 207 A.2d 670 (1965):

When a jury retires to consider [its] verdict, [its] discussion may produce disagreement or doubt or failure of definite recollection as to what a particular witness said in the course of his testimony. If they request enlightenment on the subject through a reading of his testimony, in the absence of some unusual circumstance, the request should be granted. The true administration of justice calls for such action.

Under the circumstances in this case, we hold that the jury’s request to rehear testimony sufficiently indicated “disagreement” under our statute. Also, we note that no prejudice was suffered by McKinney as a result of the repetition of testimony since both the direct and cross-examination portions were replayed; nor was there any effort by the jury to spotlight a small bit of evidence which could work to McKinney’s detriment. See Mack v. State, 265 Ark. 257, 577 S.W.2d 596 (1979).

Affirmed.

Glaze, J., concurs.


text:
    Maurice CLEMMONS v. STATE of Arkansas
    CR 90-137
    795 S.W.2d 927
    Supreme Court of Arkansas
    Opinion delivered October 1, 1990

      William R. Simpson, Jr., Public Defender, and Llewellyn J. Marczuk, Deputy Public Defender, by: Richard Lewallen, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of burglary and theft of property in excess of $2,500.00 in value. He was sentenced to two thirty-year terms to be served consecutively. He makes two assignments of error. We affirm the judgment of conviction.

At trial leg irons were placed on the appellant and, in addition, the trial judge directed a uniformed sheriff deputy to sit inside the rail of the bar directly behind the appellant. The appellant does not question the use of leg irons but argues that placing the uniformed officer directly behind him was so inherently prejudicial that he was denied his right to a fair trial.

Central to the issue of a fair trial is the principle that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485 (1978). Uniformed officers and their seating arrangement can pose a real threat to the fairness of the factfinding process. Holbrook v. Flynn, 475 U.S. 560 (1986). Whenever a courtroom arrangement is challenged as inherently prejudicial the question is not whether the jurors expressed a consciousness of some prejudicial effect, but rather whether an unacceptable risk of prejudicial effect is presented. Id. at 570. This is a matter to be given close scrutiny by the reviewing court. Id. at 568.

Close scrutiny is not always fatal. There are times when the risk of prejudicial effect must be weighed against the State’s interest in safety, security, and order. In Holbrook v. Flynn, 475 U. S. at 568, the opinion of the Court provides:

In Illinois v. Allen, 397 U.S. 337 (1970), the Court emphasized that a defendent may be prejudiced if he appears before the jury bound and gagged. “Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Id., at 344. Yet the Court nonetheless observed that in certain extreme situations, “binding and gagging might possibly be the fairest and most reasonable way to handle” a particularly obstreperous and disruptive defendant. Ibid.

On the other hand, in Estelle v. Williams, 425 U.S. 501, 503-504 (1976), the Court noted that when an accused is forced to wear prison garb the jury might be prejudiced, and the wearing of such attire serves no useful State purpose.

Here, placing the appellant in leg irons and seating a uniformed deputy sheriff directly behind him was inherently prejudicial. Common sense immediately told each juror that, in the judge’s mind at least, this defendant was an unusually dangerous man. Only in the rarest circumstances will the State’s interest in security and order justify such action, and this is one of those rare circumstances.

The countervailing security factors in this case are as follows: The appellant had been convicted of three previous felonies, with each of the previous trials being before the same judge. Appellant had injured his mother immediately before the trial started and had threatened the trial judge. In addition, just before his omnibus hearing officers found a metal plate hidden in appellant’s sock. In sum, the trial judge objectively knew that the appellant was dangerous, that he had threatened the judge and, on the occasion when he had the hidden metal plate, may have commenced a course of conduct designed to injure the judge or others. Thus, some extreme measures were justified for safety and security of the courtroom.

In order to determine which measure is to be employed, a trial judge must carefully weigh the various options. Holbrook v. Flynn, 475 U.S. at 569. For example, a non-uniformed bailiff outside the rail of the bar is preferable to a uniformed one. Placing a bailiff, even in uniform, in the spectators area is less likely to cause prejudice than placing a uniformed guard next to the accused. Shackling an accused with leg irons and handcuffs and removing all throwable items from the counsel table could, in some cases, be preferable to placing a uniformed guard behind the accused. However, in this case, the trial judge stated that he was worried about the safety of the defense counsel and the deputy prosecuting attorney, as well as the jury. All were close to the accused. Defense counsel tacitly recognized the danger as he stated:

I don’t have any problem with the leg irons. And, for the record, he is in street clothes. So, I appreciate that. But, if the guard could just sit there, he’s a large man, almost as big as I am, and it restricts his movement with the leg irons on him.

The probable prejudice to the accused was not impermissible, even when strict scrutiny is applied, because of the real danger presented by appellant, and the lack of meaningful alternatives. Accordingly, we find no error in the trial court’s ruling.

Appellant’s next assignment is much easier to decide. He contends that the State did not prove by substantial evidence that the property stolen had a value of $2,500.00 or more. The argument is wholly without merit.

The victim of the burglary, a state trooper, testified that some of his property had been stolen and some of it had been damaged by the burglar. He testified that his insurance company paid him $8,597.06 for both the stolen and damaged property. Appellant did not object to the testimony as hearsay. We have long held that hearsay evidence admitted without objection may constitute substantial evidence to support a conviction. Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988); Murray v. State, 275 Ark. 46, 628 S.W.2d 549 (1982); Arkansas State Highway Comm’n v. Bradford, 252 Ark. 1037, 482 S.W.2d 107 (1972); and McWilliams v. R. & T. Transport, Inc., 245 Ark. 882, 435 S.W.2d 98 (1968), citing older cases. The appellant cites a Court of Appeals case, Robinson v. State, 10 Ark. App. 423, 664 S.W.2d 890 (1984), which provides “testimony based on conclusions or hearsay is not substantial evidence.” The Robinson case, id., is overruled to the extent it conflicts with our cases.

However, even considering the hearsay as substantial evidence, the jury would still have to speculate as to which part of the $8,597.06 in value constituted stolen property and which constituted damaged property. The answer was supplied on redirect examination when the owner, the trooper, testified that the stolen VCRs and television set amounted to more than $2,500.00 in value.

Affirmed.