text:
    Minnie PRYOR v. STATE of Arkansas
    CR 93-156
    861 S.W.2d 544
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Rees Law Firm, by: Paul N. Ford, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is an appeal from two convictions for delivery of crack cocaine. The appellant, Minnie Pryor, was sentenced as a habitual offender and received 35 years and a fine of $25,000 for one conviction and 20 years on the second, with the time to serve to run consecutively. She raises several points on appeal, none of which has merit. We affirm.

On November 22,1991, investigator Roger Mashburn of the Wynne Police Department met with an informant, Sammy White, for the purpose of setting up a drug buy from Minnie Pryor. White went to Pryor’s home at 1201 West Poplar in Wynne, where he purchased six rocks of crack cocaine from the appellant for $50.00. On November 23, 1991, Investigator Neal Webster dropped the same Sammy White off at the appellant’s house at the same location to make a buy. White purchased crack cocaine for $100.00. The appellant was arrested and charged with two counts of delivery of a controlled substance. Subsequently, an amended information was filed charging the appellant as a habitual offender.

At the trial of this matter Kim Brown, a chemist for the Arkansas State Crime Lab, testified that she had tested the substances that had been purchased from Pryor in November 1991 and that they tested positive for a cocaine base. She added that she received the substances in question from Wilbur English of the Cross County Sheriffs Department.

The State then moved to introduce State’s Exhibit #2, a sealed envelope purporting to contain crack cocaine purchased from Pryor on November 22, 1991. The court received the evidence without objection from Pryor’s counsel. The State then offered into evidence State’s Exhibit #3, the purported controlled substance purchased from Pryor on November 23, 1991. After the defense responded that it had no objection to the introduction of this evidence, Exhibit #3 was also received.

Sammy White later testified that he had purchased the crack cocaine from the appellant on November 22, 1991, and November 23, 1991. The prosecutor asked this witness several questions which culminated in White’s answer that his sister had been sold drugs by Pryor. Defense counsel objected and asked that the jury be admonished. The trial court admonished the jury not to consider White’s response.

After White’s testimony, the State rested and defense counsel asked to make several motions. In chambers, he moved to strike State’s Exhibits 2 and 3 — the crack cocaine — on the basis that the State failed to prove that the chain of custody had been preserved. The trial court denied the motion.

Counsel also moved for a mistrial, citing the numerous questions the State asked White which led to his comment about Pryor’s selling drugs to his sister. The State argued that the motion was untimely and contended that the defense had opened the door for these questions. The motion was denied.

Defense counsel then raised the issue of whether the appellant could be charged as a habitual offender. Of the appellant’s two alleged convictions, according to the argument, one involved a nolo contendere plea for possession of a controlled substance. The trial court ruled that the nolo contendere plea counted as a prior conviction for purposes of the habitual offender statute and that the State could cross-examine the appellant regarding the two convictions.

Minnie Pryor testified in her case-in-chief and denied selling crack cocaine on November 22, 1991, and November 23, 1991. She introduced docket sheets as defense exhibits evidencing her nolo contendere plea to possession of a controlled substance and her guilty plea to forgery. She was cross-examined on both convictions.

The jury returned a verdict of guilty on the two November 1991 counts for delivery of crack cocaine.

During the penalty phase, the State argued that the jury should impose the maximum penalty stating that the Department of Corrections had a “place for her for as long as she is physically able to stay there.” Defense counsel, in his closing argument, retorted that Pryor was age 42 and that in 60 years she would be 102. The prosecutor responded in his closing argument that if Pryor received a 60-year sentence, she would be out in 20 years. The defense objected to this argument and asked for an admonishment and mistrial. The State responded that the defense had opened the door for the response on time to be served. The court instructed the jury that it was not to consider the State’s remarks about what period of time someone might serve as a result of whatever penalty was assessed. The court then denied the motion to declare a mistrial.

The appellant was sentenced to a total of 55 years on the two counts and a fine of $25,000.00.

For her first point, Pryor contends that the trial court erred when it denied her motion to exclude the crack cocaine tested by the State Crime Lab because the State did not prove that the chain of custody had been preserved. Specifically, the appellant claims that there was no record of how the evidence was transported from the Cross County Sheriffs Department to the Crime Lab. The chemist from the Crime Lab did testify that the cocaine was delivered to her by Wilbur English, but Pryor argues that English should have testified to establish this. The appellant further contends that the evidence was tampered with because the informant, Sammy White, stated that he purchased more than three rocks of cocaine. However, when the exhibit was introduced into evidence, it only contained three rocks.

We agree that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992); Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989). It is not necessary that the State eliminate every possibility of tampering; instead, the trial court must be satisfied that in all reasonable probability the evidence has not been tampered with. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Holbird v. State, 301 Ark. 382, 784 S.W.2d 171 (1990). However, in order to raise the issue of untrustworthiness due to a break in the custody chain, an objection must be made at the time the evidence in question is offered. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). A chain of custody objection made after the evidence has been admitted is not timely. Id.

Here, the appellant did not object to the introduction of State’s Exhibit #2 and specifically stated that there was “no objection” to the introduction of State’s Exhibit #3. Instead, she waited to object to both exhibits until after the State had rested. This failure to act at first opportunity resulted in an objection that was untimely. The issue is not preserved for appeal.

Pryor’s second asserted claim of error is that the trial court abused its discretion in not granting a mistrial after the prosecutor questioned Sammy White in a manner which suggested other drug involvement by the appellant. She argues that the prosecutor acted in bad faith in pursuing a line of questioning intended to elicit a response from White that Pryor sold drugs to his sister. The colloquy at trial was this:

PROSECUTOR: Let’s go back. Why would Minnie buy - sell to you?
WHITE: Well, I had a sister that was on crack cocaine for a while and there was at least three drug dealers that would sell to her. Okay, and she was so bad that Mrs. Pryor she was taking clothes-
DEFENSE COUNSEL: Your Honor, I am going to object to this. I have talked to him and I know what he is going to do. He’s going to tell this jury things that other people have told him and these are things that people have told him.
PROSECUTOR: Your, Honor, all I have asked him was why would she sell to him.
THE COURT: I think he can tell why he thinks she would sell to him. That is his opinion. On the other hand though, Mr. White, I don’t want you telling what other people have told you. I want you to tell us what you know from your own observations.
WHITE: Your Honor, I know this for a fact.
THE COURT: Go ahead, Mr. Noblin.
PROSECUTOR: Go ahead.
WHITE: That she was selling drugs to my sister and she was taking stuff like clothes from the kids and toys for Christmas and stuff like this.
DEFENSE COUNSEL: Your Honor, I would like to have this matter proceed outside the presence of the jury.
THE COURT: Mr. Noblin, the objection is going to be sustained. We need to go on to something else.
DEFENSE COUNSEL: Your Honor, I would like for the jury to be told to disregard that.
THE COURT: The jury will be admonished that the last response, you are not to consider that. We are not here concerning that issue.

Later after the State had rested, defense counsel argued that he did not believe an admonishment cured the prejudice and moved for a mistrial, which was denied.

This motion, too, was not timely. Motions for mistrial must be made at the first opportunity. Dixon v. State, supra; Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). That was not done in this instance, and we need not address the issue.

For her next two points, Pryor argues that she was prejudiced by the trial court’s failure to prohibit the State from questioning her about her past conviction for possession of a controlled substance and further by allowing consideration of this conviction for habitual offender purposes. She concedes that Ark. R. Evid. 609 states that prior convictions may be used for impeachment purposes under certain circumstances. However, she claims that her previous conviction for possession was in fact a no contest plea where no finding of guilt occurred and was, thus, inappropriate for impeachment. Moreover, she had admitted to her criminal record on direct examination.

We disagree with Pryor’s argument. This court has consistently treated convictions based on nolo contendere pleas as convictions. See, e.g., Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990); Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988); Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987). As such, these pleas readily fall within the confines of Rule 609 and the Habitual Offender Statute. Indeed, the Arkansas Court of Appeals recently counted three nolo contendere pleas as convictions for habitual offender purposes. See Stevens v. State, 38 Ark. App. 209, 832 S.W.2d 275 (1992).

The question then becomes whether use of the nolo contendere plea for impeachment was unduly prejudicial under Rule 609. We do not believe it was. This conviction was already before the jury by virtue of Pryor’s direct testimony. Pryor then denied the charges against her for drug dealing on cross examination. Surely, a prior conviction for drug possession irrespective of no specific finding of guilt was probative of Pryor’s credibility. We conclude that there was no abuse of discretion by the trial court in its ruling.

We turn to Pryor’s final point which is that the prosecutor irrevocably tainted the trial by reference to specific parole possibilities. We reiterate the statements at issue:

DEFENSE ATTORNEY IN CLOSING ARGUMENT : I’m going to stick up for the minimum punishment to be imposed. Minnie Pryor told you she was 42 years old. In 20 years she will be 62 years old. Sixty years from now she’ll be 102 years old.
PROSECUTOR IN CLOSING ARGUMENT: Now he came up here and argued that if she gets 60 years she’ll be 102. If she gets 60 years and stays clean, she’ll be back in 20. Let’s not play any games about it. You give her 20 years, she’ll be back in 5 to 10.

The trial court sustained an objection to the prosecutor’s remarks and defense counsel then stated: “Your honor, I would ask that the jury be told to disregard those remarks and I ask for a mistrial.” The court then instructed the jurors not to consider the prosecutor’s comment on time to be served and denied the request for a mistrial.

There is no question but that comments on parole by the State are to be avoided, and we have so stated. See, e.g., Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). Nevertheless, in the case before us defense counsel precipitated the comment by arguing to the jury, in effect, that Pryor would be required to serve the full term of years and that if sentenced to 60 years, she would serve 60 years. This statement was misleading.

Defense counsel misinformed the jury and opened the door and invited a response to his absolute statement that Pryor would be in prison for all of the time assessed. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991). We note, too, that the defense counsel asked for an admonishment and that the jury was instructed not to consider the remarks of the prosecutor. Under these circumstances, we cannot say that the trial court erred in refusing to declare a mistrial.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Billy J. BRITTON v. STATE of Arkansas
    CR 93-832
    861 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Kearney Law Office, by: John L. Kearney, for appellant.
    No response.
   Per Curiam.

Billy J. Britton, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Billy J. Britton will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied.


author: Per Curiam. David Newbern, Justice,

text:
    Barry Lee FAIRCHILD v. Larry NORRIS, Acting Director, Arkansas Department of Correction
    93-975
    861 S.W.2d 111
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      P.A. Hollingsworth; Elaine R. Jones, Richard H. Burr, Theordore M. Shaw, and Steven W. Hawkins, for NAACP Legal Defense and Educational Fund, Inc.; and Herbert C. Rule III and Charles W. Baker, for petitioner-appellant.

      Winston Bryant, Att’y Gen., by: Kyle R. Wilson, Asst. Att’y Gen., for respondent-appellee.
   Per Curiam.

We deny appellant’s request for stay of execution. Appellant offers several legal arguments which essentially are based upon his being presumptively mentally retarded. The issue of whether appellant is mentally retarded has previously been rejected by United States District Judge G. Thomas Eisele in Fairchild v. Lockhard, 744 F.Supp. 1461 (1989). Judge Eisele decided appellant voluntarily, knowingly and intelligently waived his Miranda rights before confessing his involvement in the robbery, rape and murder of Ms. Mason. In making this ruling he determined appellant was not retarded.

Judge Eisele made his rulings after appellant and the State of Arkansas presented a voluminous amount of evidence bearing on appellant’s mental history and evaluations offered through witnesses, including psychiatrists. His memorandum opinion setting out the underpinnings of his rulings covers seventy-eight pages. The Eighth Circuit reviewed Judge Eisele’s findings and affirmed them in a decision handed down on November 10, 1992. Fairchild v. Lockhard, 979 F.2d 636 (8th Cir. 1992), cert. denied 497 U.S. 1052 (1990). Accordingly, we hold appellant cannot reassert the issue of his mental retardation and is precluded from doing so under the doctrine of collateral estoppel. Ashe v. Swenson, Warden, 397 U.S. 436 (1970); National Farmer’s Union Standard Insurance v. Morgan, 966 F.2d 1250 (8th Cir. 1992); see generally Judgments, 50 C.J.S. § 754 (a), p. 267 (1947).

Appellant seeks relief based upon Act 420 of 1993 which bans the execution of a person who is mentally retarded only when a jury unanimously determines that the person was mentally retarded at the time of the murder. Based upon our analysis above, such Act simply does not apply here because appellant is not mentally retarded. We note the same definition of mental retardation contained in Act 420 was the definition used by Judge Eisele in reaching his decision pertaining to appellant’s mental state. In addition, because appellant emphasizes to some extent in his contention that his I.Q. was in the low 60’s in 1983, we further note that Judge Eisele specifically rejected appellant’s contention in this respect, and opined the best tests, administered under optimal circumstances, would yield an I.Q. for appellant somewhere between 75 and 87.

Motion for stay denied.

Hays and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. Counsel for Barry Lee Fairchild have asked that we stay his execution long enough to consider whether the execution would constitute cruel or unusual punishment as proscribed by Ark. Const. art. 2, § 9. Their theory is that Act 420 of 1993, by prohibiting executions of retarded persons, has brought into question whether execution of Mr. Fairchild would be prohibited by our Constitution. They also cite a survey showing that a majority of Arkansas citizens oppose execution of retarded persons. They ask that the execution, which is set for September 22, 1993, be stayed long enough to allow them to address on appeal the constitutional issue which was presented earlier to the Jefferson County Circuit Court which rejected their contention.

My colleagues choose to deny the stay on the ground that there has been a decision that Mr. Fairchild is not retarded, and thus the policy of Act 420 does not apply to him. They are applying the doctrine of collateral estoppel. I do not believe the doctrine applies in this case, and I conclude there has been no decision on that matter binding in the circumstances of the appeal counsel wish us to consider.

In Fleming v. Zant, 386 S.W.2d 339 (Ga. 1989), the Georgia Supreme Court was faced with a situation much like the one before us now. The Georgia legislature had passed an act like Act 420 subsequent to the trial and sentencing of Fleming. The Georgia Supreme Court, applying the Georgia Constitution, concluded that the execution of a retarded person would constitute cruel and unusual punishment, and the case was sent back to a trial court for a determination whether Fleming was retarded. The difference between the Fleming case and the one now before us is that the United States District Court for the Eastern District of Arkansas concluded that Fairchild was not retarded. Fairchild v. Lockhart, 744 F.Supp. 1429 (E.D. Ark. 1989). The Georgia Supreme Court had no such ruling before it in the Fleming case. If the decision of the Federal Court that Fairchild is not retarded is conclusive and binding on us, then the majority is correct in refusing to grant the stay, but that depends on application of the doctrine of collateral estoppel. Were it not for the application of that doctrine and the majority’s conclusion that we are bound by the Federal Court decision, I feel sure the stay would be granted.

Counsel for Mr. Norris correctly assert that the doctrine of collateral estoppel had four elements, each of which must be satisfied. The elements are:

1. The issue must be the same as that involved in a prior litigation.
2. The issue must have been actually litigated.
3. The issue must have been determined by a valid and final judgment.
4. The determination must have been essential to the judgment.

See East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986); Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983).

When the Federal Court considered the question whether Mr. Fairchild was retarded it was for the purpose of determining whether he had the capacity to waive his right not to incriminate himself after having been informed of that right. In other words, the question before the Court was whether it was proper for the Court in Fairchild’s trial to have admitted evidence of his confession. On the very face of it, that is a different issue from the one we are concerned with now, i.e., whether Fairchild should be executed. If, however, we define “issue” more narrowly to be whether he is retarded, then perhaps it can be said the issue has been decided; but that is not enough. We must also find that the decision that Mr. Fairchild is not retarded was, in the words of requirement 4., “essential to the judgment.” See Farris v. State, 303 Ark. 541, 798 S.W.2d 103 (1990), and Hyde v. Quinn, 298 Ark. 569, 769 S.W.2d 24 (1989), in which we mention the requirement that the decision of the issue be essential to the judgment for collateral estoppel to apply.

If a retarded person can waive the right not to incriminate himself or herself, whether he or she is retarded may be relevant to a decision whether the confession is admissible, but is it “essential?” I think not. The Federal Court perceived the difference by referring to expert testimony concluding that mildly retarded persons may indeed have the capacity to waive the rights described in the Miranda case.

If the Federal Court decision that Fairchild was retarded had been an alternative ground for deciding that Fairchild was unable to waive his Miranda rights, we would have to conclude it was binding. See 1 B James W. Moore et al., Moore’s Federal Practice ¶ 0.443 [5] (Supp. 1988). It was, however, simply a conclusion separate from the waiver issue and not a basis for the decision. That becomes clear upon realization that a retarded person may waive the right not to engage in self incrimination. See Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992); Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987) (defendant with an I.Q. of 62 found capable of waiving Miranda rights). See also Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990).

The materials presented to us indicate that, despite the Federal Court’s conclusion that Fairchild is not retarded, he could present a very convincing case to the contrary. If that is so, and if as I conclude we are not bound by the Federal Court’s opinion that Fairchild is not retarded, then I believe a serious issue would be presented to us as was presented to the Georgia Supreme Court in the Fleming case. Under these circumstances we should stay the execution to consider the appeal.

I respectfully dissent.

Hays, J., joins this dissent.

       The fact that there has been a judicial determination relating to Barry Lee Fairchild’s allegation of mental retardation distinguishes this case from the Georgia case cited by petitioner-appellant, Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989).


text:
    Lawrence Charles GARRETT v. STATE of Arkansas
    CR 93-965
    861 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Kearney Law Office, by: John Lee Kearney, for appellant.
    No response.
   Per Curiam.

Lawrence Charles Garrett, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Lawrence Charles Garrett will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied.


text:
    Kenneth W. GLOVER v. Honorable Phillip H. SHIRRON
    93-887
    861 S.W.2d 110
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Bridewell & Bridewell, by: Laurie A. Bridewell, for petitioner.

      Winston Bryant, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner Kenneth W. Glover moves this court for a writ of mandamus, a stay of the chancellor’s order entered June 17, 1993, pending appeal, and an emergency accelerated hearing. We deny most of the relief requested but temporarily stay that part of the chancellor’s order which would terminate the supervised visitation of the two children pending the appeal of this matter.

Petitioner Glover contends that his former wife, Paula Langford, sexually abused the couple’s two minor daughters during visitation. He sought termination of those visitation rights in Langford. The chancellor’s order following trial determined that the proof of sexual abuse was insufficient to terminate visitation. In that June 17, 1993 order, he continued visitation rights in Langford predicated on supervision by Langford’s mother. Supervised visitation, according to the order, would terminate December 31, 1993.

Petitioner Glover appealed the chancellor’s order to the Arkansas Court of Appeals by notice of appeal filed on August 6, 1993. He also allegedly has refused to permit visitation with Langford, which led to a show cause hearing for contempt set for August 13,1993. Glover’s petition for mandamus was anattempt to prevent the contempt hearing from transpiring and to prohibit the chancellor from acting further in this case. In that same petition, Glover argued that a stay of the chancellor’s order was necessary because supervised visitation could well expire before an appeal was finalized, thereby subjecting the daughters to potential risk.

This court has jurisdiction of this petition because relief in the form of mandamus was requested. Ark. Const. art 7, § 4; Ark. Sup. Ct. R. (a)6. We see no reason not to stay the expiration of supervised visitation pending appeal. Such a stay presents no impediment to the appeal. Nor do we anticipate any interference with the rights of the parties or with the chancellor’s order resulting from such a stay.

We do note that there is an additional order by the chancellor acting in his capacity as juvenile judge which was entered June 15, 1993, and which finds probable cause that the daughters are dependent/neglected. The order mandates supervision by the Arkansas Department of Human Services during the girls’ visits with Langford and was apparently precipitated by a more recent allegation of sexual abuse made against the mother. The status and duration of this supervision by DHS is not revealed in the record before us, and we are unable to consider that order.

Supervised visits by Mrs. Hobby, the girls’ maternal grandmother, should continue under the chancellor’s June 17, 1993 order pending the appeal of this matter to the Arkansas Court of Appeals. Expiration of these supervised visits under the chancellor’s order is stayed pending appeal.


text:
    Bill D. HENDRICKSON v. STATE of Arkansas
    CR 93-898
    861 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Meredith Wineland, for appellant.
    No response.
   Per Curiam.

Bill D. Hendrickson, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Meredith Wineland, admits by motion and brief that the record was tendered late due to a mistake on her 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 In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    SUNLAND ENTERPRISES, INC. v. ANDREWS, et al
    93-789
    861 S.W.2d 311
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Kaplan, Brewer, & Maxey, P.A., by: Philip E. Kaplan, for appellant.

      Stuart Law Firm, P.A., by: J. Michael Stuart, for appellee.
   Per Curiam.

Intervenor Sunland Enterprises, Inc. moves this court for a Rule on the Clerk and advances the argument that the Supplemental Decree in this matter was the final judgment which disposed of all issues regarding all parties, including the issues brought to conclusion by an earlier decree. According to the argument, the record which was tendered in timely fashion with respect to the Supplemental Decree was also effective with respect to the original Decree. We do not agree and rule that the appeal was only perfected for the Supplemental Decree.

The plaintiffs in this matter were homeowners who sued the Cabot Planning Commission to enjoin a developer, Sunland, from road construction that would affect their lots. Sunland intervened. On October 21, 1992, the chancery court in its Decree permanently enjoined the road construction at issue and assessed costs and attorney fees against Sunland. Sunland moved to amend the decree and for a new trial on October 30, 1992. No ruling was made on that motion, and it was deemed denied under Ark. R. App. P. 4(c) on November 29, 1992.

On December 22,1992, a Supplemental Decree was entered for the purpose of supplementing the October 21,1992 decree. In that decree, plaintiffs’ prayer for a writ of mandamus was denied; Sunland’s cross complaint was dismissed (this was also apparently done in the original decree); and prior rulings of the chancery court on motions by the parties were memorialized. The Supplemental Decree states that “the decree filed herein on October 21, 1992 shall remain in full force and effect and is supplemented by the rulings herein which are meant to completely dispose of all issues in litigation and to be a final judgment on all issues.”

Sunland also filed its notice of appeal on December 22,1992, which stated that the appeal was taken from both the October 21, 1992 Decree and the December 22, 1992 Supplemental Decree. An extension for filing the record was timely filed and granted until July 19, 1993.

Sunland tendered the record on July 14, 1993, and it was refused by the clerk of this court as untimely. The motion for rule on the clerk followed.

Sunland fervently contends that the Supplemental Decree was the final judgment under Ark. R. Civ. P. 54(b) and that an appeal from the October Decree would have been futile since all the issues had not been disposed of. While that may well be, the fact that a supplemental decree may have been warranted as a clean-up measure does not absolve an appealing party from the responsibility of filing the transcript relative to the original decree in a timely manner.

Our rule on the timely filing of the record when an extension has been requested is clear:

In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment, decree or order, or from the date on which a timely postjudgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later.

Ark. R. App. P. 5(b). Here, the postjudgment motion regarding the October 21, 1992 Decree was deemed denied on November 29,1992. The seven-month period from that date expired on June 29, 1993, and the record was not tendered until July 14, 1993.

The clerk correctly refused to file the record with respect to the October 21,1992 Decree. The record, however, was timely filed regarding the December 22, 1992 Supplemental Decree. Only the issues between the parties embraced in the Supplemental Decree shall be considered on appeal.


author: Steele Hays, Justice.

text:
    Calvin and Richard LEAVY v. STATE of Arkansas
    CR 93-218
    862 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered September 27, 1993
    [Rehearing denied November 1, 1993.]

      McArthur & Finkelstein, by: Hugh Finkelstein, for appellant Calvin Leavy.

      Rice & Adams, by: Gene D. Adams, Jr., for appellant Richard Leavy.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

      Holt, C.J., not participating.

   Steele Hays, Justice.

This case primarily concerns a conviction under our continuing criminal enterprise statute, (CCE), Ark. Code Ann. § 5-64-414 (1987), a part of the Uniform Controlled Substances Act, Ark. Code Ann. §§ 5-64-101 through 5-64-1005 (1987). Five points are raised on appeal.

As a result of undercover work by the police, Calvin and Richard Leavy, appellants, were charged with violations of the Controlled Substances Act. Richard Leavy was found guilty of five drug offenses and sentenced to nineteen years. Calvin Leavy was found guilty of four charges: CCE, public servant bribery, delivery of cocaine, and use of a communication facility in furtherance of a drug felony. On those charges Calvin received respective sentences of life, six years, twenty-five years and ten years.

The first argument is the only point in common: both appellants contend the trial court erred in allowing the jury to use transcriptions of tape recordings while the tapes were being played as evidence during the trial.

A detective from the Little Rock Police Department, Mark Ross, pretending to be receptive to bribery, had several conversations with Calvin about bribes Calvin would pay Ross for warning him about impending police surveillance and raids. Ross was wired during these conversations and the state introduced the tapes and their transcriptions at trial.

Detective Ross testified the recordings were transcribed promptly after the tapes were made and were an accurate reproduction of the tapes. He stated that sometimes background noise made transcription difficult and when words were inaudible the secretaries would type “inaudible.” The court overruled appellants’ objection and allowed the jury to use the transcriptions to follow the taped conversations, reminding the jury that the transcriptions were not evidence but merely an aid, and if there were any discrepancies between the tape and the transcription, the tape would govern.

The use of transcriptions in this context has been raised before and the rule is settled. If the transcript of a tape is essentially accurate, it is admissible if it would otherwise be necessary to play the tape several times for the jurors. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). Detective Ross so testified. The decision is discretionary with the trial court, Id, and we find no abuse of discretion. Appellants have pointed neither to inaccuracies nor prejudice, and we do not reverse absent a showing of prejudice.

The remaining points relate only to Calvin Leavy. He argues the trial court erred in upholding § 5-64-414 (1987) against his contention that the statute was void for vagueness. Appellant was convicted under Arkansas’s CCE statute, § 5-64-414, which provides:

Continuing criminal enterprise.
(a) A person commits the offense of engaging in a continuing criminal enterprise if he:
(1) Violates any provision of subchapters 1 through 6 of this chapter which is a felony, except § 5-64-401 (c); and
(2) The violation is a part of a continuing series of two (2) or more felony offenses of subchapters 1 through 6 of this chapter, except § 5-64-401 (c):
(A) which are undertaken by that person in concert with five (5) or more other persons with respect to whom that person occupies a position of organizer, a supervisory position, or any other position of management; and
(B) From which that person obtained substantial income or resources.

Calvin Leavy submits that three elements of the statute are unconstitutionally vague:

1) “Continuing series of two or more felony offenses.”
2) “A position of organizer, a supervisory position, or any other position of management.”
3)“Substantial income or resources.”

This statute adopts essentially the same language of the federal “kingpin” statute, 21 USC § 848 (Supp. 1992), as to the provisions under consideration here. This argument has not been decided by the United States Supreme Court, but there is agreement among those circuits that have considered the issue, upholding the statute against attacks for vagueness. See United States v. Valenzuela, 596 F.2d 1361 (9th Cir. 1979) (and cases cited therein); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976) (and cases cited therein). Both Valenzuela, supra, and Kirk, supra, state that due process requirements of definiteness are violated by a criminal statute that fails to provide adequate notice to a person of ordinary intelligence that his or her contemplated conduct is unlawful. To the same effect see State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992).

Calvin maintains that “continuing series of two or more felony offenses” does not tell us if the offense requires any “breaks in the activities” and does not provide a time frame within which the offenses must have occurred. We believe the language “two or more felony offenses” is sufficiently clear in itself and whether interruptions occur in criminal conduct pertinent to the act is essentially irrelevant. As to a “time frame,” this point has not been addressed elsewhere but the wording suggests the correlation between the offenses must be such that they can reasonably be considered part of the same enterprise. The two felonies in the case against Calvin Leavy occurred within seven months of each other and thus clearly fall within a reasonable time frame. Nor does appellant argue otherwise. See Burrow v. State, 282 Ark. 479, 669 S.W.2d 441 (1984); United States v. Kirk, supra.

As to the argument that “organizer” and “substantial income” are impermissibly vague, these terms were specifically considered in Valenzuela, supra. The court concluded:

Similarly, the words encompassed within the phrase “organizer, a supervisory position, or any other position of management” enjoy a wide currency in the business community and are commonly understood by members of the general public. In enacting § 848, Congress was clearly concerned with large-scale profit-making enterprises engaged in the illegal importation, manufacture and distribution of controlled substances. The language under consideration was clearly chosen to distinguish minor enterprise “employees” from those who conceive and coordinate enterprise activities.
Finally, we see no fatal vagueness problem in the requirement that a criminal enterprise defendant must have received “substantial income or resources” from his or her activity. The criminal enterprise statute would have been valid even if Congress had omitted such a financial limitation. We see no reason to strike down the statute because Congress has chosen to provide some measure of protection to petty criminal enterprise defendants in this regard.

See also, Hughey v. State, 310 Ark. 721, 840 S.W.2d 721 (1992) (discussing the consensus of other jurisdictions interpreting “organizer”). We agree with the reasoning in Valenzuela, supra, and hold the challenged provisions of our statute are not unconstitutionally vague. United States v. Kirk, supra.

Next, Calvin argues the trial court erred in finding the evidence sufficient to sustain the verdict for the CCE offense. Proper motions for a directed verdict challenging the sufficiency of the evidence were made by appellant at the end of the state’s case and again at the end of the trial. Those motions were denied on both occasions. On appeal, appellant argues there is insufficient evidence for two elements of the crime: 1) proof of leadership and 2) proof of substantial income.

We summarized the management proviso of the CCE statute in Hughey v. State, supra:

The government need not establish that the defendant managed five people at once, that the five acted in concert with each other, that the defendant exercised the same kind of control over each of the five, or even that the defendant had personal contact with each of the five. In essence the management element is established by demonstrating that the defendant exerted some type of influence over another individual as exemplified by that individual’s compliance with the defendant’s directions or instruction. (Emphasis in original.)

On appeal, appellant does not challenge proof of the number of individuals under appellant’s control, only that there was no proof appellant functioned as a manager. We disagree. While there were discrepancies in the testimony, there was nevertheless the following: 1) Testimony by Detective Ross that appellant had made reference to the business as being “his” business; 2) Willie Peoples testified that he and other dealers turned over the money from drug sales to appellant; and 3) Peoples also testified that appellant was the one in their group responsible for keeping track of the drugs being marketed. This evidence is sufficient to show appellant exerted some type of influence over other individuals.

As to whether appellant obtained “substantial income,” we need only note that Peoples testified that on an average week he took in between $36,000 and $54,000. This was for only one of appellant’s several dealers, and only an average week. This constitutes “substantial income.” See Hughey v. State, supra.

As his next point appellant argues the trial court erred in admitting into evidence a comment he had made to Detective Ross. During the state’s case, Ross testified as follows:

It was at this time that Detective Cox and I were approaching a card table that had dominoes on it. Calvin Leavy was one of four people sitting at the card table. He was bouncing a small infant, I would guess eight months, six months old, on his knee.
At this time, Calvin Leavy made the statement to me that when this child grows up, that he was going to have the small child out there selling drugs for him. That he couldn’t wait for the baby to grow up because he was going to have him out there selling drugs for him.

An element of continuing criminal enterprise is whether the defendant is a leader, organizer or manager of the drug enterprise. Thus, at issue was whether Calvin held a managerial role. His avowed intent to put his child to work for him would be relevant as to whether Calvin viewed himself as an organizer and entrepreneur in the drug business. Obviously there is some prejudicial effect from appellant’s statement, but the balancing of probative value against prejudice is left to the sound discretion of the trial judge and will not be reversed absent a manifest abuse )f that discretion. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 1992). There was no abuse under the circumstances.

Finally, Calvin argues the trial court erred in failing to set iside two of the charges on grounds that sentencing violated the principles of double jeopardy.

In order to prove the CCE offense under § 5-64-414, one of the necessary elements is that the defendant committed “two or more felony offenses” which are part of the Controlled Substances Act. Calvin Leavy was charged with delivery of cocaine, § 5-64-401 (e), and use of a communication facility in causing or facilitating the commission of any drug felony under the act, § 5-64-417. Calvin was convicted on the CCE offense for which the state had used these two offenses for the “two or more felony offenses” element of the crime. He was also convicted separately on the cocaine and communication facility charges. Appellant argues that conviction of both the CCE and the other two drug offenses violates the double jeopardy clause. We decline to address the argument because there was no objection before the trial court on the ground now argued. When the sentencing hearing was held, the trial court first read the four convictions and sentences as found by the jury. The court then asked if appellant would like to say anything before a decision was made, and the defense replied:

We would argue that there is no law on this subject so we can’t cite you anything to help in the decision. But in order to convict on the continuing criminal enterprise, you have to find the defendant guilty of the other acts that he’s been found guilty of.
That being true, it seems that it would be improper to run the sentences any way but concurrent because the other offenses are so inherently a part of the continuing criminal enterprise.

The court ordered that of the four convictions, all were to run concurrently except the sentence of twenty-five years, which was to run consecutively. There was no more discussion and the hearing was adjourned.

The state argues, correctly we think, that a proper objection was not made. Counsel only requested concurrent sentences. There was no motion to set aside the convictions nor any argument affecting double jeopardy. A similar situation arose in Robinson v. State, 278 Ark. 516, 648 S. W.2d 444 (1983), where appellant only argued for concurrent sentences at trial but argued double jeopardy and lesser included offenses on appeal. We wrote:

A fair reading of the record reflects that counsel sought leniency in the sentence, not to prevent any conviction or sentence at all for one of the offenses charged. A timely and appropriate objection must be made to preserve an objection on appeal.

The same is true in this case and no proper objection was made below.

Affirmed.

Holt, C.J., not participating.


author: David Newbern, Justice.

text:
    Sherman D. NOBLE v. STATE of Arkansas
    CR 93-427
    862 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered September 27, 1993
    [Rehearing denied November 1, 1993.]

      Mark F. Hampton, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.

      Brown, J., would grant rehearing.

   David Newbern, Justice.

Sherman Noble pleaded guilty to capital felony murder and was sentenced to life imprisonment without parole. On appeal, Noble contends the Trial Court should have granted his motion to suppress his in-custody statement made to the police. He argues the statement was involuntary.

The basis of this appeal of a guilty plea conviction is Ark. R. Crim. P. 24.3(b), which states:

(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Nothing before us shows that Mr. Noble conditioned his guilty plea by reserving, in writing, his right to appeal. Nor is there any indication that the Trial Court or the prosecutor consented.

Absent any showing that these requirements were met, we dismiss the appeal.

Appeal dismissed.


author: Tom Glaze, Justice.

text:
    Robert Lynn SMITH v. STATE of Arkansas
    CR 93-372
    862 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered September 27, 1993

      R. Brent Crews, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Robert Lynn Smith appeals his conviction for delivery of cocaine. His sole point for reversal is that, contrary to Ark. R. Evid. 404(b), the trial court impermissibly allowed into evidence proof of bad acts of the accused.

In this case, Smith was charged with having sold cocaine to an undercover officer, Phillip Crutchfield, on December 29,1990. Prior to trial, Smith explained to the trial court that he had three other cases pending in which he had been charged with past drug dealings with Crutchfield and such events purportedly took place in 1990 on November 30th, December 3rd and December 8th. He asked the trial judge to prohibit the prosecutor from eliciting testimony from Crutchfield concerning the earlier drug transactions. The prosecutor responded, saying Rule 404(b) permitted him to ask Crutchfield about these earlier events in order to establish Smith’s identification as the perpetrator of the December 29 crime. The trial court denied Smith’s motion, but warned the prosecutor “not to waive the files in front of the jury.”

Actually, the prosecutor at trial limited his questions to Crutchfield as follows:

Q: [I]f you will, listen very carefully. I don’t want to know what you did other than let me ask you, on December 8th, 1990, did you have occasion to see this defendant seated to my left?
A: You said the 8th? Yes, I did.
BY MR. CREWS: Object, Your Honor, renew my previous objection to this line of questioning.
BY THE COURT: Overruled.
Q: And on November 30th, 1990, did you have occasion to see the defendant seated to my left over here?
A: Yes, I did.
Q: Okay. So you were quite familiar on December 29th, 1990 with this defendant, is that correct?
A: Yes.

As can be seen by the colloquy above, Crutchfield never mentioned having bought or sold cocaine or any controlled substance from Smith on the three prior dates, so no evidence of other crimes, wrongs or acts was introduced by the state. Although Smith contends the prosecutor’s questions were unnecessary because Smith later testified that he knew Crutchfield, the state had its own case to prove and it had no assurance that Smith would testify in his case-in-chief.

Because the state’s examination of Crutchfield did not involve other crimes, wrongs or acts by Smith, we conclude Rule 404(b) was not violated, and Smith’s conviction should be affirmed.

       Smith mentions in his argument that the state, on cross-examination, asked him whether he had sold cocaine to Crutchfield on the three prior dates, and while Smith denied having done so, he claims this was a thinly veiled attempt to circumvent Rule 404(b). First, no objection was made to the state’s cross-examination bearing on this point. Second, the state’s cross-examination of Smith simply cannot be equated to an offer of prior bad acts under Rule 404(b).


author: Donald L. Corbin, Justice.

text:
    Freddie Lee ROBINSON v. STATE of Arkansas
    CR 93-297
    861 S.W.2d 548
    Supreme Court of Arkansas
    Opinion delivered September 27, 1993

      G. Keith Watkins, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Freddie Lee Robinson, was charged by felony information with committing the first degree murder of Tony Harper and the second degree battery of Anthony Brown. An Independence County jury convicted appellant of second degree murder and second degree battery. The trial court entered an order sentencing appellant as an habitual offender to serve concurrent terms of 40 years and 15 years at the Arkansas Department of Correction. For reversal of the judgment, appellant asserts two points of error. We find no merit and affirm.

Appellant first contends the trial court abused its discretion in granting the state’s motion in limine to exclude evidence of altercations with persons other than the victims. Appellant proffered evidence showing he had been beaten on two previous occasions in Independence County by persons other than the victims in the current case; that he suffered serious bodily injuries on both occasions; that after one of the altercations, appellant suffered a head injury causing him to be hospitalized locally for two hours and then transported by helicopter to a trauma treatment center in Memphis; that both altercations were reported to law enforcement officers and the prosecuting attorney; that no further investigations were made and no charges were filed as a result of the two altercations.

Appellant’s defense to the crimes charged was justification. He argues these prior altercations with others would be relevant to show his state of mind — the need to defend his life — during the incident giving rise to this case. The trial court stated the facts surrounding the two altercations were probative of appellant’s subjective fear. However, the two altercations were separate from the one being tried and thus the trial court ruled the probative value was outweighed by the unfair prejudice of misleading and confusing the jury. The trial court therefore excluded all evidence, from sources other than appellant, relating to the two prior altercations.

Appellant claims the trial court’s ruling was an abuse of discretion for three reasons. First, he argues the ruling is inconsistent because it allows one witness (himself) to testify as to the two altercations, but prevents other witnesses (the proffered witnesses, including two law enforcement officers and an emergency room physician) from testifying to the same two events. Second, he argues the ruling violates his constitutional rights by forcing him to testify against himself in order to present his defense. Third, he argues the ruling violated his constitutional rights further because it prevented him from calling witnesses on his own behalf.

We do not address the constitutional arguments because the record before us does not indicate they were presented to the trial court. The denial of any right, even a constitutional one, must be objected to at trial to be preserved for appeal. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Constitutional objections and fundamental constitutional rights can be waived if not adequately preserved for appeal. Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ark. R. Evid. 403. As with other evidentiary determinations, the balancing of probative value against prejudice is a matter left to the trial court’s sound discretion, and its decision on such a matter will not be reversed absent abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Appellant took the stand and testified that the unrelated altercations caused him to fear for his safety in the instant case and that he acted in self defense. A defendant may put on evidence of specific prior acts of a victim to demonstrate that the victim was the aggressor. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981). As the challenged evidence did not concern the victims, we cannot say the trial court abused its discretion in excluding the proffered evidence.

Finally, appellant claims he was erroneously sentenced under the habitual offender statute. Appellant reasons that the records of three of the six prior convictions did not reflect he was represented by counsel at the time of pleas to the offenses. This court has held that a record of a prior conviction may be used for enhanced sentencing purposes if the record of such conviction shows on its face that the accused was represented by counsel at the time of the plea. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980).

Appellant did not abstract the judgments of the prior convictions nor any other record of them. Although he did abstract the trial court’s ruling on each conviction, we have no abstract of the actual convictions from which to review the accuracy of the trial court’s rulings. We have said many times, in cases not involving the death penalty or life in prison, we will confine our review to the record which has been abstracted in the briefs of the parties. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). We do not depart from this long standing rule of the court.

The judgment of conviction is affirmed.


text:
    Claude WALLACE v. STATE of Arkansas
    CR 93-127
    862 S.W.2d 235
    Supreme Court of Arkansas
    Opinion delivered September 27, 1993
    [Rehearing denied November 1, 1993.]

      Paul J. Tuefel and Martin E. Lilly, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Claude Wallace, was convicted by a jury of two counts of rape, two counts of kidnapping, and one count of burglary and sentenced to two consecutive life sentences plus one hundred sixty (160) years in prison and a fine of fifteen thousand dollars ($ 15,000). Appellant raises five points on appeal.

On June 8, 1991, two sisters, M. W., who was twelve years old, and A. C., who was seven years old, were raped by a man who entered their home during the early morning hours.

Appellant first argues the trial court erred by refusing to suppress the in-court identification by M. W. because of a tainted pre-trial identification procedure.

We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. In making that determination, we first look at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. It is the appellant’s burden to show that the pretrial identification procedure was suspect.

Dixon v. State, 310 Ark. 460, 468-69, 839 S.W.2d 173, 178 (1992) (citations omitted).

The identification to which appellant objects was made within an hour of M. W.’s escape from her attacker. A police officer was taking M. W. to the hospital to be examined and took M. W. to view appellant on the porch of the house where he was found. Appellant was surrounded by police officers and was the only black male on Ihe porch. The officer asked M. W. to look at appellant and determine whether he was the one who raped her. When she viewed appellant, M. W. identified him as her attacker. While we find this identification procedure was probably impermissibly suggestive, that does not end our inquiry.

Even if the identification technique used is impermissibly suggestive, an in-court identification is admissible if the identification in question is reliable. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992).

[I]t is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Further, we do not reverse a trial court’s ruling on the admissibility of an identification unless it is clearly erroneous, and we do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification.

Id. at 482, 839 S.W.2d at 8 (citation omitted).

Having found the pretrial identification procedure impermissibly suggestive, we must determine whether there were sufficient aspects of reliability surrounding the identification to permit its use. The factors used in measuring reliability are: (1) the opportunity of the identifying witness to observe the accused at the time of the criminal act; (2) the lapse of time between the occurrence and the identification; (3) any inconsistencies in the description given by the witness; (4) whether there was prior misidentification; (5) the facts surrounding the identification; (6) and all other matters relating to the identification process. Dixon, 310 Ark. 460, 839 S.W.2d 173.

We turn now to the facts of this case and address each of these factors:

1. The opportunity to view. M. W. was in the same room with her attacker for approximately four hours, during which time she testified he forced her to kiss him and to have oral, vaginal and anal sex with him. M. W. testified that while her head was covered most of the time with a shirt, she did remove the shirt at one point when it was getting light and she got a look at her attacker’s face.

2. The lapse of time. M. W. was taken to view appellant less than an hour after she escaped from her attacker.

3. The accuracy of the description. M. W. described her attacker as a tall black male, with short hair, wearing blue jeans either without a shirt on or with a blue t-shirt. M. W. also told police that appellant would have vomit on him because he had thrown up during the rape and she had also thrown up. Appellant is a tall black male with short hair. When police found appellant less than an hour after M. W. escaped, he was wearing blue jeans with a dried substance on them which was later determined to be vomit. Appellant was not wearing a shirt when the officers found him lying on the couch in the house, but put on a blue t-shirt which was lying near the couch when officers asked him to get dressed.

4. Prior misidentification. M. W. never identified anyone other than appellant as her attacker.

5. The surrounding facts. When M. W. viewed appellant, he was the only black male present and he was surrounded by police officers. M. W. was driven by appellant’s residence by a police officer to see if she could identify appellant.

6. Other matters. Two days later M. W. picked appellant out of a photo line-up composed of six photographs of black males with similar build and hair as appellant. While M. W. initially picked two photographs that might be her attacker, she narrowed it down and picked appellant. M. W. also said at the time of the photo line-up she was positive it was appellant who raped her. Under the circumstances of the case, we cannot say M. W.’s in-court identification was unreliable. Thus, the trial court did not err in refusing to suppress M. W.’s in-court identification.

Appellant next argues there was no probable cause to arrest him. While an invalid arrest may call for the suppression of a confession or other evidence, it does not entitle the defendant to be discharged from responsibility for the offense. O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984). Appellant has not alleged that any evidence should have been suppressed as a result of his allegedly illegal arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution nor as a defense to a valid conviction. United States v. Crews, 445 U.S. 463 (1980).

Appellant’s third argument on appeal is that the trial court erred when it refused to grant a mistrial because the courtroom deputies left handcuffs and a metal detector on a table which appellant alleged was in view of the jury. A mistrial is an extreme and drastic remedy which should only be granted when there has been an error so prejudicial that justice cannot be served by continuing the trial. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). There was no such error in this case.

The hearing in chambers reveals that the handcuffs and metal detector were left on a side table which was being used by appellant and his counsel to prepare for trial. The trial judge stated he didn’t even think the jurors were able to see the handcuffs and metal detector and denied the motion. We have held that brief encounters between a defendant in restraints and jurors is not necessarily prejudicial. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Here, there is no evidence the jury saw appellant in restraints, only that the jurors may have seen handcuffs and a metal detector on a table across the room from appellant. The trial judge has the discretion to take security measures. Handcuffs and metal detectors are commonly used security measures. In this instance, there is no evidence the presence of the handcuffs and metal detector on a table across the room from appellant was prejudicial. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 111 S. Ct. 1123 (1991).

Appellant next argues it was error for the trial judge to allow A. C.’s mother to accompany her to the witness stand while she testified. Appellant objected to A. C.’s mother accompanying her to the witness stand because she might “nod her head or grab [A. C.’s] hand.” Although appellant alludes in his argument to the fact that A. C.’s mother was holding her while she testified, there is no evidence of this in the transcript. The only discussion in the transcript concerned A. C.’s mother “accompanying” her to the witness stand.

We first note that under Ark. R. Evid. 616 A. C.’s mother had the right to be present in the courtroom during the trial. Ark. R. Evid. 616; Kester v. State, 303 Ark. 303, 797 S.W.2d 704 (1990). Appellant contends it may have been possible for A. C.’s mother to communicate non-verbally with her, but there is no evidence such communication occurred and the mother was instructed by the trial judge not to make any comments. Whether it was improper for the trial judge to allow the victim’s mother to accompany her to the witness stand is of no consequence since appellant has not shown that any prejudice resulted. Prejudice is not presumed and we do not reverse absent a showing of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

For his last argument on appeal, appellant argues the trial court erred in not dismissing the charges against him for violation of the speedy trial rule. Ark. R. Crim. P. 28.1(b) requires trial to be held within twelve (12) months of appellant’s arrest, excluding necessary periods of delay authorized by Ark. R. Crim. P. 28.3. Here, it is undisputed the time for trial commenced running on June 8, 1991, the date of appellant’s arrest. The trial began on July 13,1992, 35 days after the speedy trial period.

Once it has been determined that a trial is held after the speedy trial date has expired, the state has the burden of showing that any delay was the result of appellant’s conduct or was otherwise legally justified. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). We note that Ark. R. Crim. P. 28.3(i) requires the trial court to enter written orders or make docket notations specifying the reasons for the delays and the specific dates or number of days to be excluded. Id. Here, the court made no such written orders or docket notations. However, the court’s failure to make such notations does not result in automatic reversal. Id. When a case is delayed by the accused and that delaying act is evidenced by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i). Hubbard, 306 Ark. 153, 812 S.W.2d 107.

Appellant in this case filed a motion for psychiatric evaluation on July 29,1991. This motion was granted on October 4, 1991, and an order for commitment to the Arkansas State Hospital not to exceed thirty days was filed on that same day. Appellant was evaluated by Tom Heisler, Ph.D., at the Craig-head County Jail on April 13, 1992. Ark. R. Crim. P. 28.3(a) provides:

The following periods shall be excluded in computing the time for trial:
The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.

Thus, thirty (30) days can be excluded from the time period during which the trial court was deciding appellant’s motion for psychiatric evaluation. That leaves only an additional five days for which the state must account. The time period from October 4, 1991, to April 13, 1992, is also excludable since this delay resulted from appellant’s request for a psychiatric evaluation. Ark. R. Crim. P. 28.3(a). Thus, the state has met its burden and the trial was held within the speedy trial requirements.

Under Ark. Sup. Ct. R. 4-3(h), the record has been reviewed concerning the rulings made against appellant by the trial judge during the trial, and we find no error. For the reasons stated above, we affirm.


text:
    Stephen PARTIN v. STATE of Arkansas
    CR 93-682
    862 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered September 27, 1993

      Charles A. Potter, for appellant.
    No response.
   Per Curiam.

For his motion for reconsideration of this court’s denial of his July 5, 1993 request for writ of certiorari, appellant tenders the affidavit of Betty Voltz, court reporter, which states that she has been unable to prepare the records in this case, but given an additional thirty days, she will do so. Appellant had obtained a court order extending the time to file the transcript in this cause until June 17, 1993, which date was the maximum length of time to lodge such transcript with this court. Prior to June 17, 1993, appellant timely filed his motion requesting the court reporter to file the record in this matter, but having stated no reason for the delay, we denied his request.

The court, having now been given the reason for the transcript having not been timely filed, grants appellant’s petition for writ of certiorari and directs Ms. Voltz to complete and file the transcript forthwith.

The court forwards a copy of this per curiam to the Board of Certified Reporter Examiners for any action it may deem necessary under its rules.

Corbin, J., not participating.