author: John A. Fogleman, Justice.

text:
    Jack STANLEY III v. STATE of Arkansas
    CR 75-46
    527 S.W. 2d 613
    Opinion delivered September 8, 1975

      Patrick Dale O’Rourke, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Stanley seeks post-conviction relief from his sentence to life imprisonment for first degree murder of his step-father. The judgment of conviction was appealed to this court. See Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72. Permission to proceed under Criminal Procedure Rule 1 was granted by this court on March 4, 1974. Stanley’s petition was based upon his contention that a pretrial confession made by him was improperly admitted into evidence because there was no knowing and intelligent waiver of his privilege to remain silent and to have the advice of counsel before making any statement. Concededly, no objection on this ground to the introduction of appellant’s statement was made at his trial. Nc assertion was made on appeal that this evidence was constitutionally infirm. The circuit court proceeded under Criminal Procedure Rule I (C) in denying Stanley’s petition. We affirm.

As a basis for his present contention, Stanley alleged that: he was 14 years of age and a student in the ninth grade at the time; he was not given the opportunity to consult with his mother and no attempt was made by the police to obtain her permission to question him; the officer interrogating him informed him that if he gave a statement nothing would happen to him other than being sent to the state hospital.

The trial judge entered extensive and detailed findings of fact and conclusions of law, after having reviewed the transcript of Stanley’s trial. This same judge presided at that trial. The circuit judge found considerable evidence in the transcript of the trial to support a finding that the statements made by Stanley were freely and voluntarily made and that he was possessed of adequate intellectual capacity to knowingly and intelligently waive his right to remain silent. Certain statements in the state’s brief in the court below were quoted in the circuit judge’s findings because of their aptness. For the same reason, we quote a substantial part of those adopted by him, viz:

The petitioner’s defense at the trial was insanity. In view of the overwhelming evidence against the petitioner it is clear that insanity was the only defense reasonably available to the petitioner. A careful examination of the petitioner’s written statement now under attack shows that it complements the testimony of defense witness, Dr. Donald Chambers, the psychiatrist who testified to the petitioner’s insanity. In the written statement the petitioner states that since his grandmother died he had missed her so much and would get a feeling of ‘kill, kill, kill’ in his head. At the end of the petitioner’s statement he talks about what was going through his mind at the time his mother arrived at home and after he heard Detective Davis say that his stepfather was dead. He said, “I don’t know why I did it. There was something in me that just says ‘kill, kill, kill’ ”.
On direct examination Dr. Donald Chambers testified that the death of petitioner’s grandmother created severe depression in the petitioner. The petitioner’s statement is consistent with that diagnosis. Dr. Chambers went on to testify that the death of petitioner’s grandmother produced homicidal preoccupation and ruminative thinking which occurred several weeks prior to the shooting of Mr. Reynolds. Dr. Chambers described ruminative thinking as a few thoughts which just continually circle in the mind; one single idea, one single effect attached to the idea. The portion of the petitioner’s statement where he said he had the thought “kill, kill, kill” certainly complements the testimony of Dr. Chambers. A complete review of the record in this case shows why defense counsel did not ask for a Denno hearing and did not object to the introduction of the petitioner’s written statement at the time of trial. This was obviously a part of defense counsel’s strategy in interposing the defense of insanity. *****
The record in the case at bar as reviewed in it [s] entirety is replete with evidence of the petitioner’s guilt. The admissibility of much of the evidence was not subject to reasonable attack by the defense counsel. In the face of all of these things defense counsel was forced to develop a strategy for the trial of the case. The only reasonable solution available was to interpose the defense of insanity. The statement now questioned by the petitioner was self-serving in many respects in that it complemented the psychiatric testimony offered on behalf of the petitioner.
It is true that petitioner’s defense counsel did not object to the admissibility of the statement now under attack, but not because of incompetence. On the contrary, the failure to object came about after careful preparation for trial and the development of prudent trial strategy by counsel. During the cross examination of Detective Davis, defense counsel very alertly brought out that the portion of the statement which complemented the psychiatric testimony was in the own words of the petitioner rather than in the words of the detective. This indicates thorough preparation and trial by preconceived strategy by laying the groundwork for the insanity defense through the state’s very first witness. This strategy is in no way shocking to the conscience nor does it make a mockery of justice.

The record of the trial sustains these statements. While we might not be fully justified in saying that the only reasonable strategy available was the defense of insanity, we can say with assurance that it appears to have been the most reasonable course, and that it was pursued with unusual vigor by appellant’s appointed counsel, both in the trial court and the appellate court. We may add that this attorney also sought to exclude certain evidence which he considered inflammatory on the basis that Stanley conceded at the trial that he had committed the act of fatally shooting his stepfather. Expert witnesses on the defense of insanity related incriminating statements of Stanley to them on direct examination and at least one of them included the gist of a statement to a police officer as a factor in evaluating Stanley’s mental condition. Thus it is clear that this attorney sought to use the incriminating statements of Stanley for advantageous purposes in support of the plea of insanity and in an effort to exclude damaging evidence.

Although the circuit judge felt that an attack on the competency and effectiveness of counsel was inherent in the allegations of Stanley’s petition, we consider this to be no more than peripheral. It is quite significant to us that neither petitioner, his trial court counsel, nor his attorney on appeal make any such assertion. But we do agree that, in order for Stanley to succeed on his petition it would be necessary that he make such a showing. The statement on his behalf most nearly approaching such an argument is the statement of appellant’s brief here that the record is devoid of evidence to show that Stanley joined with his attorney in waiving his right to challenge the “confession”. In determining a petitioner’s entitlement to a hearing, however, the court is limited to the allegations of the petition before it. In this case, the, obvious strategy employed, the obvious wisdom of that strategy, and the fact that appellant has never sought to assert any reason for his not having made any objection to the introduction of his statements in the trial court on the grounds now asserted — particularly after three members of this court voted to deny him permission to proceed on the present petition for failure to do so — are sufficient basis for the denial of an evidentiary hearing. See Clark v. State, 255 Ark. 13, 498 S.W. 2d 657; Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668; Coleman v. State, 257 Ark. 538 (27 Jan. 1975), 518 S.W. 2d 487.

The judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    John R. MOSELEY v. STATE of Arkansas
    CR 75-71
    527 S.W. 2d 616
    Opinion delivered September 8, 1975
    [Rehearing denied October 13, 1975.]

      James R. Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant, John R. Moseley, was indicted by the Pulaski County Grand Jury for the delivery of a controlled substance, amphetamine sulfate dextro, in violation of Act 590 of 1971 as amended. On arraignment Moseley pleaded not guilty and filed a motion to quash the indictment on the ground that a narcotics agent, one of the prosecuting witnesses, and other unauthorized personnel were in the grand jury room when the indictment was returned. The motion to quash the indictment was denied by the trial court and upon jury trial Moseley was found guilty and sentenced to ten years in the Arkansas Department of Correction and fined $5,000.

On appeal to this court the judgment was reversed and the cause remanded with directions that the indictment be quashed (John R. Moseley v. The State of Arkansas, 256 Ark. 716, 510 S.W. 2d 298). The indictment was quashed by the trial court in compliance with the mandate of this court. Subsequently, on August 21, 1974, the prosecuting attorney filed information again charging Moseley with the same offense. Moseley interposed the plea of double jeopardy and after denial of additional motions in the trial court and in this court, the case proceeded to jury trial and Moseley was again found guilty and a sentence of eight years imprisonment and a $5,000 fine was imposed. Upon appeal from this second conviction Moseley relies on the following points for reversal:

“I. The lower court erred in overruling the motion of the defendant to dismiss case number CR-74-1318 for the reason that the defendant has been placed in double jeopardy.
II. The court erred in not granting a mistrial when it appeared that the jurors had, contrary to the court’s instructions, read an account of the trial in the newspaper.”

We find no merit to either contention.

The general rule on the first point involved is set out in 22 C.J.S. Criminal Law § 273 as follows:

“An accused cannot benefit by the verdict of the jury if he chooses to appeal from it; hence, he is estopped to plead a prior conviction where his conviction has been reversed for error on an appeal or writ of error brought by himself. ...”

This court has consistently followed the above rule. In Paschal v. State, 245 Ark. 396, 432 S.W. 2d 879 (1968), a felony conviction was reversed because the trial court erroneously refused to direct a verdict for the accused on the ground that the evidence was insufficient to support the conviction. We remanded the case for a new trial and in reviewing the claim of double jeopardy, we quoted from Miller, Criminal Law, § 186 (c) (1934), as follows:

“ ‘At the common law neither the defendant nor the. King could appeal from a judgment upon the verdict of guilty or acquittal. However, both in England and in the United States, the privilege has been granted to the defendant to appeal from a judgment on a verdict of conviction. Consequently the reason for the old rule making former conviction a proper plea in bar of a second prosecution under such circumstances, has ceased to exist and it is now generally recognized as no infringement on defendant’s rights, to require that if a conviction be set aside on appeal, he should be returned to the trial court for a new trial.’ ”

In Paschal, supra, we also, expressed the same view by quoting with approval from the early case of Johnson v. State, 29 Ark. 31 (1874), as follows:

“ ‘It is true that, by a constitutional provision as well as by the common law, no man can be twice put in jeopardy for life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford him the opportunity of another trial.’ ”

In support of his argument of double jeopardy the appellant cites Ark. Stat. Ann. § 43-1224 (Repl. 1964) as follows:

“Acquittal or conviction as bar. An acquittal by a judgment on a verdict, or a conviction shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the acquittal or conviction took place.”

The appellant apparently overlooks the statutory definition of “conviction” as set out in Ark. Stat. Ann. § 43-1224.3 (2) (Supp. 1973) as follows:

“There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court.” (Emphasis added).

The cases cited by the appellant are distinguishable on their factsTrom the case at bar. In State v. Ward, 48 Ark. 36, 2 S.W. 191 (1886), Ward was indicted for embezzlement. He demurred to the indictment; the demurrer was sustained as to the one count and overruled as to the others. A jury was impaneled and sworn and at the close of the day, the trial not being concluded, they were allowed by the court upon consent of the parties to separate. On the second morning of the trial one of the jurors was absent on account of the sickness of one of his family and the court then, for the first time discovering that the defendant had not been arraigned and had not entered a pie? to the indictment, upon a motion of the prosecuting attorney, discharged the jury. Ward then moved the court for his discharge upon the ground that he had been in jeopardy. The court granted his prayer and dismissed the indictment and the state appealed. In that case this court said:

“It is the established rule that when a jury in a criminal case is impaneled and sworn in a court of competent jurisdiction to try the prisoner, under an indictment sufficient in form and substance to sustain a conviction, he is in jeopardy. He is then entitled to a verdict which will bar further prosecution for the same offense, and an unnecessary discharge of the jury without his consent does not deprive him of the right to the bar.” Citing Whitmore v. State, 43 Ark. 271.”

As already stated, the trial court granted Ward’s motion for his discharge and the state was the appellant in that case. In the Ward case this court further stated:

“ [I]t is unnecessary to consider what effect, if any, under che provisions of our statutes, the absence of arraignment and plea may have had upon the trial in this case, for, upon looking at the indictment, it is discovered to be insufficient to sustain a judgment of conviction, and nothing that could have been done under it, short of an actual acquittal or conviction, could have conferred upon the accused immunity from further prosecution for the same offense. The statute provides that an acquittal or conviction by a judgment or a verdict shall bar any other prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the trial took place. (Mansfield's Digest, sec. 2176.) But there was no verdict or judgment in this case, and short of these the rule is, that where the indictment is so defective that the defendant, if found guilty, will be entitled to have the judgment entered thereon against him reversed for error, he has not been in jeopardy. 1 Bish. Crim. Law, sec. 121; Whitmore v. State, sup; Atkins v. State, 16 Ark. 568.”

In Harp v. State, 59 Ark. 113, 26 S.W. 714 (1894), the appellant was indicted for perjury in connection with the sale of liquor to a minor. A trial jury was impaneled and rendered a verdict of not guilty. The trial court then entered an order that “The defendant be held in custody to await the action of the grand jury in said cause.” The next day the grand jury returned its second indictment for perjury in connection with the same sale to the same individual. The state interposed a demurrer to the plea of double jeopardy at the second trial and the demurrer was overruled. The appellant was convicted and, of course, this court reversed.

In the case at bar Moseley also argues that on his former appeal (Moseley v. State, supra) this court only reversed and remanded with ae directions that the indictment be quashed and that his conviction was not reversed and remanded for a new trial. We answered this argument contrary to Moseley’s contention in Upton v. State, 255 Ark. 1071, 502 S.W. 2d 454 (1973). See also Cole v. State, 211 Ark. 836, 202 S.W. 2d 770 (1947), where we in effect held that in order to constitute former jeopardy a jury must be impaneled and sworn under a valid indictment, or there must be an acquittal or conviction by ajudgment under Ark. Stat. Ann. § 43-1224 (Repl. 1964).

As to appellant’s second point, one of the jurors admitted reading a newspaper account of the first day of appellant’s trial but under questioning by the court, thejuror stated that he had formed no opinion as a result of the article and that the article did not affect his opinion in the case. We are of the opinion that the trial court did not abuse his discretion in refusing to grant a mistrial. See Howell v. State, 220 Ark. 278, 247 S.W. 2d 952 (1952).

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Robert CLARK v. STATE of Arkansas
    CR 75-47
    527 S.W. 2d 619
    Opinion delivered September 8, 1975

      Kenneth C. Coffelt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Bill D. Etler, Dep. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The appellant Robert Clark was convicted on two counts of delivering a controlled substance (marijuana). For reversal he contends among other things that the trial court erred in not directing a verdict in his favor and in the manner of selecting the jury.

We find the evidence sufficient to sustain the conviction. Appellant’s defense was entrapment, and a fact question was raised as to whether he did what he was already willing and ready to do or whether the criminal design originated with the undercover officer.

The trial court had available for purposes of this trial a panel of 27 petit jurors. Prior to the trial the trial court had required all of the petit jurors to fill out a written questionnaire which contained such information as the juror’s name and address, his spouse’s name, the occupation of both the juror and his spouse and whether the juror had been a complaining witness in a criminal proceeding. The questionnaires were filled out under oath and were available to the lawyers in attendance upon the court at least one full workday before the trial. During the voir dire, the trial court would not permit appellant’s counsel to go over these same questions with the jurors. However, the trial court did permit and expect appellant’s counsel to ask other questions of each petit juror during the voir dire. From the panel of 27 petit jurors the trial court caused 12 jurors to be drawn and seated. Each juror was then examined by the State and then by the appellant. However, under the procedure used by the trial court all twelve jurors had to be examined before any peremptory challenges were permitted, and following the examination of the 12 jurors, the State then had to exercise its peremptory challenges and then appellant was required to make his challenges. After a juror was once accepted, the trial court would not permit a peremptory challenge to be exercised against such juror. After some of the original 12 jurors called had been stricken by peremptory challenges, the trial court would cause additional jurors to be called to make a total of 12. This procedure was continued until 12 jurors had been selected. Appellant attacks the jury selection as hereinafter set out.

First: Appellant contends that he was denied a full drawn panel of 24 jurors. We find no merit in this contention. The statute, Ark. Stat. Ann. § 39-216 (Repl. 1962), upon which appellant relies as requiring a panel of 24 jurors has been repealed by Acts of 1969, No. 568. The number of jurors to be selected for the panel is left to the discretion of the Circuit Judge. See, Ark. Stat. Ann. § 39-209 (Supp. 1973).

Second: We find no merit to appellant’s contention that the trial court erred in not permitting him to ask again the simple questions that had been answered on the jury questionnaire. Ark. Stat. Ann. § 39-226 (Repl. 1962), provides:

“In all cases, both civil and criminal, the court shall examine all prospective jurors under oath upon all matters set forth in the statutes as disqualifications. Further questions may be asked by the court, or by the attorneys in the case, in the discretion of the court.”

We note that the record shows that appellant’s counsel was permitted to examine each juror extensively enough to make any challenges for cause or peremptorily and also to sufficiently familiarize himself with any communication problems that a juror might have.

Third: Appellant contends that the trial court erred in not requiring the State to first accept or reject each juror as he was examined. The statute involved, Ark. Stat. Ann. § 43-1903 (Repl. 1964), being Criminal Code § 193, provides:

“In a prosecution for felony, the clerk, under the direction of the court, shall draw from the jury box the names of twelve [12] petit jurors, who shall be sworn to make true and perfect answers to such questions as may be asked them touching their qualifications as jurors in the case on trial, and each juror may be examined by the State and cross-examined by the defendant, touching his qualification. If the court decide he is competent, the State may challenge him peremptorily or accept him, then the defendant may peremptorily challenge or accept him. If not so challenged by either party, he shall stand as a juror in the case, and each of the twelve [12] jurors shall be examined and disposed of in like manner. If any of said jurors are disqualified or challenged, the clerk shall draw from the box as many more as may be required, and as often as may be required, until the jury shall be obtained, or the whole panel exhausted.”

It can be seen from this statutory scheme that the State is first required to accept or reject an individual juror before the defendant is required to accept or reject an individual juror. A number of cases beginning with Lackey v. State, 67 Ark. 416, 55 S.W. 213 (1900), have consistently given this construction to the statute, supra. The State to sustain this conviction does not contend that the procedure used is authorized by statute but argues that appellant has not demonstrated any prejudice. Of course, the rule is that prejudice is presumed from an error unless the contrary affirmatively appears, Crosby v. State, 154 Ark. 20, 241 S.W. 380 (1922). Furthermore, since the State here exercised 4 of its 6 and the appellant 5 of his 8 peremptory challenges on the first 12 jurors drawn from the panel, it at once becomes obvious that it was an advantage to the State to be able to examine all of the next 9 jurors before exercising its last two challenges — i.e., it could peremptorily challenge the least desirable of the nine jurors instead of rejecting them one at a time. Consequently, we must hold that the trial court erred in requiring the appellant to examine all of the jurors drawn from the panel each time before the State was required to either accept or reject a juror.

Fourth: We find no merit in appellant’s contention that the trial court should have permitted him to peremptorily challenge a juror already seated in the box. See Jeffries v. State, 255 Ark. 501, 501 S.W. 2d 600 (1973).

Appellant makes a number of other arguments which we do not reach as they are not likely to arise on a new trial.

Reversed and remanded for new trial.


author: Frank Holt, Justice.

text:
    Rodger DYER v. STATE of Arkansas
    CR 75-58
    527 S.W. 2d 622
    Opinion delivered September 8, 1975

      Bill E. Ross, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

This appeal results from the denial of appellant’s petition for postconviction relief. He was convicted of first degree murder and sentenced to life imprisonment in 1970. There was no appeal. In 1972, appellant filed a Rule 1 petition alleging violation of certain constitutional rights. The trial court denied the petition without an evidentiary hearing pursuant to the provisions of our Criminal Procedure Rule 1 (C). Ark. Stat. Ann. Vol. 3A (Supp. 1973) p. 127. There was no appeal from that ruling. Two years later, appellant filed a second Rule 1 petition asserting the same violations of his constitutional rights as previously alleged plus additional allegations. The court denied the second petition without an evidentiary hearing according to the provisions of Rule 1 (C): i.e., after reviewing the motion in conjunction with all the official records, files and transcripts. This appeal follows the denial of the second Rule 1 petition.

Appellant first presents the argument “that in order to satisfy [his] constitutional right to assistance of counsel at all stages of the criminal proceedings an attorney should be appointed in each Criminal Procedure Rule No. 1 proceeding even though” the trial court is authorized to proceed, as here, pursuant to paragraph (C). This issue was determined adversely to appellant in Winberry v. State, 256 Ark. 65, 505 S.W. 2d 497 (1973). There we said. “**** the court was not obliged to appoint counsel for appellant when the court determined there was no necessity for an evidentiary hearing.” Appellant, however, insists that we should repudiate and overrule this recent case because it is contrary to our state and federal constitution. We disagree and adhere to our decision. There is no constitutional right to appointed counsel in state postconviction proceedings. Noble v. Sigler, 351 Fed. 2d 673 (8th Cir. 1965), cert. denied 385 U.S. 853, 87 S. Ct. 98, 17 L. Ed. 2d 81 (1966). There is was further said that these “**** proceedings are civil rather than criminal in nature ****.” However, our Rule 1 (D) provides that an indigent is entitled to counsel whenever there is an evidentiary hearing or an appeal, as here, from the denial of a postconviction petition.

Appellant next asserts that it was reversible error not to permit him to be present at the original Rule 1 hearing as was requested in his petition. Again, we reiterate that a petitioner does not have the right to be present whenever his petition for postconviction relief can, as here, be processed pursuant to paragraph (C) of our Rule 1. Robertson v. State, 252 Ark. 333, 478 S.W. 2d 878 (1972); and Grayer v. State, 242 Ark. 640, 414 S.W. 2d 870 (1967).

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Frank James FREEMAN, Clarence J. ROLAND Jr. and Herod Louis BOYD v. STATE of Arkansas
    CR 75-67
    527 S.W. 2d 623
    Opinion delivered September 15, 1975
    (Rehearing denied October 20, 1975.]

      Jeff Duly and W. Harold Flowers, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Jack T. Lassiter, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Frank James Freeman, Clarence J. Rolan»!, Jr., and Herod Louis Boyd, appellants herein, were charged and convicted of possessing, with intent to deliver, a controlled substance, namely heroin, the jury fixing the punishment of each at 30 years imprisonment in the Arkansas Department of Correction. From the judgment so entered, appellants bring this appeal. For reversal, three points are argued, which we proceed to discuss.

“I.

THE COURT ERRED IN OVERRULING THE MOTION FOR CONTINUANCE.”

The record reflects that appellants Freeman and Roland were arrested on July 10, 1974, and thereafter had contact with an attorney who apparently arranged to represent them. On September 26, 1974, one day before trial, Roland and Freeman filed a motion for continuance, stating that they had learned they were required to pay a fee of $5,000 each to the attorney, and that it was impossible for them to pay such a fee; that they had been assured that they would be defended by the attorney up until September 18, at which time they were informed that he would not defend them; that they then contacted present counsel and made arrangements to employ him; that they had been offered the services of the public defender’s office of Washington County, but preferred to retain their own counsel. It was asserted that it was impossible for present counsel to prepare fully and completely to defend them in the time allowed, and a continuance of not less than two weeks was sought. This motion was evidently presented to the court on the day of trial, and denied. Of course, a ruling upon a motion for continuance is within the sound discretion of the trial court, and the action of that tribunal will not be reversed absent a clear abuse of discretion. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320 and Perez v. State, 236 Ark. 921, 370 S.W. 2d 613. In Perez, it was pointed out that the burden rests on an appellant to demonstrate an abuse of discretion by the trial court in denying a continuance. Actually, we have a number of cases where no abuse of discretion was found which involved lesser periods of time for preparation than in the instant case. In Brown v. State, 252 Ark. 846, 481 S.W. 2d 366, we upheld the denial of a motion for continuance where a defendant changed counsel five days prior to trial; in Gathright v. State, 245 Ark. 840, 435 S.W. 2d 433, a like ruling was upheld where new counsel was employed seven days prior to trial, and in Ebsen v. State, 249 Ark. 477, 459 S.W. 2d 548, we likewise found no abuse of discretion where counsel was retained three days prior to trial after previous counsel had withdrawn due to the appellant’s failure to pay him. In the case before us, counsel was retained nine days in advance of the trial.

It might be pointed out that appellants have not shown in their motion, nor their brief, how, or why, they were incapable of preparing an adequate defense, i.e., there are no facts alleged or shown, only a bare allegation that there was not enough time.

The motion also includes an allegation that counsel had “been informed on September 25, 1974 of articles in the newspaper concerning said case that tend to prejudice the citizens of Washington County against these defendants and that an application for change of venue may be necessary to protect the rights of these defendants.” This phase of the motion that a continuance should be granted is not mentioned in the argument, but, of course, we could hardly find an abuse of discretion where an attorney merely alleges that he might find it necessary to subsequently file an application for change of venue. We hold that the court did not err in failing to grant the motion.

“II.

THE COURT ERRED IN OVERRULING THE MOTION FOR A MISTRIAL ON ACCOUNT OF NEWSPAPER AND RADIO PUBLICITY.”

After 12 jurors and an alternate had been seated, a motion for mistrial was made which was heard by the court in chambers. This motion was based on the fact that a Fayetteville newspaper had, on either the same day the trial commenced (Friday, September 27, 1974) or Thursday, September 26, published an article to the effect that a fourth defendant had pleaded guilty to the charge, and a smaller article appearing in a Springdale newspaper was to the same effect. Both mentioned that the trial of the three appellants was commencing “today,” and mentioned appellants by name, and the Fayetteville newspaper article set out some of the details relative to the arrests. It appears that there had also been radio “spots.”

It is argued that publication of these articles was prejudicial to the rights of appellants, but under the circumstances as shown by the record, we cannot agree. The court very carefully questioned the jurors as to whether they had read the news article, and all answered in the negative. The court then further addressed the jury as follows:

“THE COURT: Mr. Carlson, Mrs. Stubblefield, Mrs. Karp, Mrs. Caudle, Mrs. Miller, Mrs. Lewis, Mr. Cheatham, Mrs. Canup, Mrs. Bradshaw, Mr. Barnes, Mrs. Pruitt, Mr. Carter, Mrs. Burgess, I will ask all thirteen (13) of you individually. You have not heard anything today or heard anything yesterday about it by word of mouth or any news media whatsoever?
(All answer, “No” and shake their heads negatively.)”

Of course, a mere reading of a newspaper account of an incident does not, in itself, disqualify a juror since the juror might be able to put aside any opinion formed. Davis v. State, 251 Ark. 771, 475 S.W. 2d 155, and Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670. But were it otherwise, there still would be no merit in appellants’ contention, for here we have every member of the jury stating that they had not read the articles nor heard news comment. Certainly, it cannot be assumed that these jury members prevaricated in answering the court’s questions.

“HI.

THE COURT ERRED IN ADMITTING IN EVIDENCE THE PISTOLS ALLEGEDLY FOUND IN THE AUTOMOBILE OCCUPIED BY THE DEFENDANTS, ROLAND AND FREEMAN.”

The officers, who apparently had information of the purported drug activities of appellants, had arranged a stakeout at a motel where a plainclothes officer was to make a purchase. Police personnel observed a Maverick automobile, in which appellants came to the motel, park at a service station near the motel. After the sale was made, appellants were arrested as they sat in this car. Near one of the appellants, on the backseat, was a nickelplated revolver, and on the right floorboard was a brown paper sack which contained a fully loaded pistol. These weapons were offered into evidence at the trial by the state and appellants contend that this constituted error, stating, “These pistols had absolutely nothing to do with the crime charged.” As authority for the position taken, appellants cite the case of Cabbiness v. State, 241 Ark. 898, 410 S.W. 2d 867. We do not consider Cabbiness as authority to sustain appellants’ argument. There, Cabbiness, a resident of Little Rock, was charged with a burglary occurring in Berryville, Arkansas. After his arrest, police illegally searched his apartment in Little Rock and found a revolver. This revolver was described to the jury before the trial court upheld an objection to the evidence. The prosecuting attorney made another reference to the revolver and Cabbiness moved for a mistrial. This motion was denied, but the trial court polled the jurors, each of whom stated that he could disregard the reference to the revolver. In reversing the judgment of conviction, this court pointed out that the pistol and any reference to it were inadmissible on two grounds, first, because it was the fruit of an illegal search, and second, it was not related to the crime for which defendant was being tried; it was observed that the error was not cured by the subsequent poll of the jury “which tended to emphasize the error rather than to correct it.” While this is the only case relied on by appellants, we think it well to mention two others, Rush v. State, 238 Ark. 149, 379 S.W. 2d 29, cited in Cabbiness, and Everett v. State, 231 Ark. 880, 333 SW. 2d 233, cited in Rush. In Rush v. State, supra, the defendant was charged with killing his stepfather with a .22 caliber rifle, in conspiracy with two other individuals. A .22 caliber pistol was offered into evidence by the state. Without going into detail, let it suffice to say that this pistol admittedly was not used, and further, had no connection with the murder. We said:

“The pistol in question is very heavy for a .22 caliber; it has a 9-inch barrel, and is rather wicked looking. The very fact that the pistol was admitted in evidence could have had a tendency to confuse the jury, notwithstanding there is no contention on the part of the State that the pistol was used in the killing. In these circumstances we do not think the pistol was admissible in evidence. Everett v. State, 231 Ark. 880, 333 S.W. 2d 233.”

In Everett, the defendant was charged with murder in a shooting death resulting from a barroom fight. Also, state witnesses testified that several knives had been found in the area. There was no contention that Everett or the victim had used a knife, nor did any witness so testify, and this court, in reversing, held that the introduction of the testimony relating to the knives was irrelevant to the charge of murder, and noted that no showing had been made that the testimony was not prejudicial.

We think it is apparent that the circumstances mentioned in these cases are entirely different from the circumstances of the case at issue. Certainly, in Cabbiness, a pistol obtained by an illegal search from a man’s home, miles away from the scene of a crime, and no contention being made that Cabbiness was in possession of a pistol during the burglary, was not proper evidence. Nor could weapons offered in evidence which were not connected with the crime have any probative value whatsoever; not only that, the introduction of such weapons could be confusing, as pointed out in Rush.

Here, however, we think the pistols were relevant to the issue for which appellants were standing trial. We would think it to be a matter of common knowledge that narcotics transactions are frequently attended by morally offensive circumstances, and immoral participants. The possession of two pistols by the appellants at the time such transaction was allegedly attempted would appear to have some probative force on the question of what business the men were about. The early case of Carr v. State, 43 Ark. 99 (1884) appears to be a leading decision in this state on admissibility of evidence comprising the res gestae of a criminal offense. There, the court explained the principle of res gestae as follows:

“Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. They are proper to be submitted to a jury, provided they can be established by competent means, sanctioned by law, and afford any fair presumption or inference as to the question in dispute .... Now circumstances and declarations which were contemporaneous with the main fact under consideration or so nearly related to it as to illustrate its character and the state of mind, sentiments or dispositions of the actors are parts of the res gestae.”

In the very recent case of Turner v. State, 258 Ark. 425, 527 S.W. 2d 580, we again had occasion to comment:

“Circumstances so nearly related to the main fact under consideration as to illustrate its character and the state of mind, sentiment and disposition of the actor are parts of the res gestae, which embraces not only the actual facts of the transaction and the circumstances surrounding it, but also matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality part of the occurrence.”

The state introduced this evidence as another circumstance to indicate the criminal intent of appellants. We are of the view that the possession of a loaded weapon, in the vicinity of the attempted sale, by those charged with possession with intent to deliver heroin, and found in the automobile in which the heroin had been brought to the site of the transaction, involving thousands of dollars, is part of the res gestae and pertinent evidence on the question of intent. The court did not err in admitting the pistols in evidence.

Affirmed.

       Freeman and Roland were represented by the same attorney, and Boyd was represented by separate counsel, not counsel here representing Boyd on appeal.

      Boyd did not file such a motion..

      The date of the plea of the fourth defendant is not clear because the Springdale newspaper reported that the plea was entered on “Thursday,” while the Fayetteville newspaper, which is dated Friday, September 27, states the plea was entered “Today”; this difference is not pertinent to the conclusion reached.

       The newspaper articles referred to under the first point were not mentioned in the motion for a mistrial.

       The record does not reflect whether this revolver was loaded.

        In Stewart and McGhee v. State, 257 Ark. 753, 519 S.W. 2d 733 (1975), we affirmed first degree murder convictions. Evidence reflected that several persons, including appellants, went to the home of the victim, who, according to testimony, dealt in drugs, for the purpose, according to witnesses, “to take some dope and we would get it with a gun if it was necessary. ” The victim was killed at the door of his apartment.

       This particular attempted sale (10 plastic containers, each containing heroin), never consummated, involved $16,000.00.


author: George Rose Smith, Justice.

text:
    Ann LANG v. STATE of Arkansas
    CR 75-68
    527 S.W. 2d 900
    Opinion delivered September 15, 1975

      McArthur, Lofton & Wilson, for appellant.

      Jim GuyTucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged with first degree murder, the information asserting that she shot her husband on October 31, 1973. The jury found her guilty of second degree murder and fixed her punishment at imprisonment for 21 years. The three points for reversal all have to do with the admissibility of evidence.

First, the prosecution introduced as witnesses Raymond Jackson and his wife, who testified that in November or December, 1971, or January, 1972, Mrs. Lang asked Jackson if he knew anyone that she could hire to kill her husband. Mrs. Lang indicated that she would pay the person with insurance money of from $10,000 to $30,000. Defense counsel objected to the testimony on the ground that the statements were too remote, having been made almost two years before the homicide.

The testimony was properly admitted in evidence. Threats, although not communicated to the victim of the homicide, are admissible as tending to show ill will and motive. Crowe v. State, 178 Ark. 1121, 13 S.W. 2d 606 (1929). Remoteness in time is to be considered when the interval between former difficulties and the homicide is so great as to indicate that they had their origin in independent causes. Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889). In McElroy v. State, 100 Ark. 301, 140 S.W. 8 (1911), we upheld the admissiblity of threats made about a year and a half before the homicide. Underhill points out, with regard to proof of marital difficulties, that the fact that such troubles cover a period of years and continue down to the death strengthens such evidence. Underhill, Criminal Evidence, § 645 (5th ed., 1957).

In the court below, the State, before calling the Jacksons as witnesses, had introduced Mrs. Lang’s confession. There she said that she and her husband had had nothing but trouble since they were married in 1953. “The trouble started nine months after we were married when Charles brought home gonorrhea and beat me up because I resented it. During our married life he has brought home gonorrhea on four occasions and each time fights would happen. During the past three or four years we have had no actual fights, but have argued constantly.” In the light of those circumstances the incident related by the Jacksons was not so remote as to be without probative value. The weight of the evidence was of course for the jury to determine.

Secondly, the prosecutor expressed surprise when the Jacksons testified that the incident occurred as far back as late 1971 or early 1972. The court permitted the State to prove, for impeachment purposes, that the Jacksons had told an investigating officer, a few months after the homicide, that Mrs. Lang’s statements to them had been made in the spring or summer of 1973.

The officer’s testimony was not admissible. Such prior inconsistent statements are sometimes admissible for impeachment but never as substantive evidence of their truth. Comer v. State, 222 Ark. 156, 257 S.W. 2d 564 (1953). “For such evidence to be admissible, however, the witness to be impeached must have given substantive testimony damaging to the party who seeks to attack his credibility. It is settled that inconsistent prior statements cannot be used to impeach a witness who merely fails to give the positive testimony that the party expected from him.” Milum v. Clark, 225 Ark. 1040, 287 S.W. 2d 460 (1956). That principle applies here. We cannot say that the error was not prejudicial, because it improperly suggested to the jury that the damaging statements might have been made only a few months before the homicide.

Thirdly, it is contended that the defense should have been allowed to introduce the results of a lie-detector test to which Mrs. Lang submitted. It is argued that the State and Mrs. Lang had stipulated that the test results would be admissible. The stipulation, however, plainly contemplated that the test would be made in the future, after the date of the stipulation. The test in question was made several weeks before the stipulation and consequently was not within the scope of the parties’ agreement.

Reversed and remanded for a new trial.


text:
    Gary Dean FOOTS et al v. STATE of Arkansas
    CR 74-72
    528 S.W. 2d 135
    Opinion delivered September 15, 1975

      John E. Hooker, Eugene Hunt and Robert F. Morehead, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The five appellants, charged with first degree rape, were found guilty by a jury and were sentenced to imprisonment for 30 years. Their six points for reversal must be separately considered.

I. The proof is sufficient to support the convictions. At about 1:30 a.m. on June 24, 1973, the prosecutrix and another married woman, traveling by car, were trying to find their way back to a camp on the Arkansas River, to rejoin their husbands upon a fishing trip. They were stopped at gun point by the five defendants, who were in another car. According to the State’s testimony, the five men all raped the prosecutrix, in turn. The State’s proof also showed that at least four of the defendants, after their arrest, admitted having had intercourse with the prosecutrix but insisted that it was with her consent, it was for the jury to say which version was the true one.

II. The deputy prosecuting attorney, in his opening statement, told the jury that the State’s evidence would show that four of the defendants made oral confessions to the authorities. The court overruled defense counsel’s request for a mistrial, stating that the court would instruct the jury that arguments and statements by attorneys are not evidence, and adding that “you [the jury] will disregard that statement at this time.” During the trial Officer Enderby testified that four of the defendants had stated that they had had sexual intercourse with the prosecutrix (two of them saying that a gun was used).

It is now argued that the oral statements were admissions rather than confessions, so that the opening statement was misleading. Even so, the court’s ruling was right. A mistrial is such a drastic measure that it is appropriate only if justice cannot be served by a continuation of the trial. Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690 (1969). It frequently happens that an attorney, in good faith, goes too far in telling the jury what he expects the testimony to show. Obviously a mistrial cannot be declared every time an opening statement is challenged by the other side. Here the trial court promptly instructed the jury to disregard the statement “at this time.” At the close of the case the court gave AMI 101, which told the jury that opening statements are not evidence and should be disregarded if they have no basis in the evidence. AMI Civil 2d, 101 (1974). There is no indication that the prosecutor’s remark was made in bad faith. We conclude that the court’s admonitions to the jury were sufficient to set the matter straight.

III. During the trial the defense sought to introduce the testimony of two polygraph examiners, H.G. Kelley and police sergeant Don Wall. The testimony was offered pursuant to pre-trial stipulations which recited that the defendants “will submit to polygraph tests” and that “any and all polygraph examination results taken” by the defendants may be introduced in evidence. The trial judge refused to allow Kelley’s testimony on the ground that his examinations had been made before the stipulations and refused to allow Wall’s testimony on the ground that he was not a qualified expert witness in polygraphics.

We think the trial judge correctly interpreted the stipulation, which contemplated tests to be made thereafter. Lang v. State, 258 Ark. 504, 527 S.W. 2d 900, also decided today. Hence Kelley’s testimony was properly excluded. Officer Wall testified that he was an intern in polygraphics, not a licensed examiner, and that his tests were reviewed by his supervisor. See Ark. Stat. Ann. § 71-2207 (Supp. 1973). We find no abuse of the trial court’s wide discretion in determining the qualifications of an expert witness. Fireman’s Ins. Co. v. Little, 189 Ark. 640, 74 S.W. 2d 777 (1934). Furthermore, there was no proffer of either witness’s testimony; so we have no assurance that upon a new trial it would be helpful to the defense.

IV. It is argued that the trial judge should have declared a mistrial when it was discovered that the witness room had not been closely guarded and that one or more outsiders had gone into that room. When the matter was brought up by defense counsel the court took a recess and heard all the testimony that was offered. As in Pleasant v. State, 15 Ark. 624 (1855), nothing prejudicial to the defense was shown. In fact, counsel were evidently satisfied and did not even ask that the court take any action; so there is nothing before us for review.

V. It is argued that the court should not have sent the jury back for further deliberation when they reported at midnight that they were hopelessly deadlocked at 11 to 1. Again there is nothing before us, because no objection was made to the court’s action.

VI. During the last ten days before the case was to be tried several motions were filed asking that the jury panel be quashed, on constitutional grounds. On the day before trial defense counsel asked that Judge Williams, who had appointed the jury commissioners, disqualify himself from hearing the motions. Judge Williams promptly granted that request but did not postpone the trial. Thereafter Judge Bairn was designated to hear the motions. At the conclusion of a great deal of testimony the motions were denied.

We find no violation of the defendants’ constitutional right to be tried by jurors who were selected with fairness and impartiality. The defendants, who are all black, failed to show systematic exclusion of blacks from juries in Jefferson county br any other constitutional defect in the selection of the jury.

There were seven jury commissioners, four white and three black. According to the proof, they worked long and diligently in an effort to make an impartial selection of qualified jurors. They eventually selected 1,250 names, which were placed in the jury wheel from which the actual panel was drawn by chance.

For reversal counsel rely almost entirely upon cases such as Cassell v. Texas 339 U.S. 282 (1950), in which the court held that it is the duty of jury commissioners to familiarize themselves with the qualifications of eligible jurors in the county, without regard to race or color. In Cassell the proof showed that blacks had been systematically excluded from grand juries for several years. The reason was that the all-white jury commissioners had selected jurors from among their acquaintances, and they knew no eligible Negroes. In that fact setting the court said that the commissioners were under a duty to familiarize themselves with eligible jurors.

That case bears no resemblance to this one. Here three of the jury commissioners were black. The commissioners did not limit the selection process to their acquaintances. No systematic exclusion of blacks is shown. To the contrary, the list of 1,250 names appears to be fairly representative as a cross-section of persons qualified for jury service. Counsel’s argument rests almost entirely upon the jury commissioners’ admission that they did not affirmatively seek to broaden their knowledge of prospective jurors in the county. Such action, however, was unnecessary, for no constitutional defect in the actual selection is shown. See Mitchell v. Stephens, 8th Cir., 353 F. 2d 129 (1965), where the testimony adduced by the defense was much stronger than it is here, but the court upheld the method of selection. We find it unnecessary to discuss this issue at length, for the extensive proof simply fails to show any constitutional infirmity in the selection of the jury.

Affirmed.


text:
    Frank POLLARD v. STATE of Arkansas
    CR 75-59
    527 S.W. 2d 627
    Opinion delivered September 15, 1975

      Charles S. Gibson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Frank Pollard was convicted of first degree rape in the Desha County Circuit Court and was given the minimum sentence of 30 years in the penitentiary. On appeal to this court he assigns two alleged errors as follows:

“I. The court erred in admitting evidence of the defendant’s identification in a pretrial lineup, in violation of defendant’s right to counsel guaranteed by the 6th and 14th Amendments to the United States Constitution.
II. The court erred in admitting evidence obtained as a result of an unlawful search and seizure.”

We shall consider the assignments of error in the order designated and shall review the evidence in more detail in connection with the second assignment. We find no merit in the appellant’s first assignment.

The appellant was arrested on October 12, 1974. He was identified in a police lineup conducted four days later. The information charging the defendant with the crime for which he was convicted was filed on October 21, 1974.

In support of his argument that he was not represented by counsel at the pretrial lineup in violation of his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution, the appellant relies on the United States Supreme Court decision in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). The Wade case dealt with post-indictment lineup. In Kirby v. Illinois, 406 U.S. 632 (1972) the United States Supreme Court held that until the government has commenced prosecutorial proceedings against the defendant by indictment or information, the case has not reached the “critical stage of the prosecution” where the guarantees of the Sixth Amendment are applicable. We followed the reasoning in Kirby in King v. State, 253 Ark. 614, 487 S.W. 2d 596 (1972), where this court said:

“Furthermore, a person’s right to counsel at a lineup procedure attaches only when adversary judicial proceedings are initiated against him. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411. In the case at bar the appellant was charged by an information after the assertedly unconstitutional lineup procedure; therefore, since the lineup procedure, following appellant’s arrest, preceded appellant’s being formally charged with any criminal offense, the proceeding was not ‘a criminal prosecution’ at which he had a constitutional right to be represented by counsel. Kirby v. Illinois, supra.”

In support of his first assignment the appellant also argues that the lineup was unnecessarily suggestive because the prosecuting witness observed the accused coming from the jail cell area prior to the lineup; that Tresha McGhee and Jacqueline Davis viewed the lineup at the same time, and that Jacqueline Davis was more definite as to identification at the lineup than was the victim, Tresha McGhee. We do not agree that the mere fact that the witnesses saw the appellant walking from the cell area to the lineup was suggestive because the witnesses also saw other participants coming to the lineup from the same area. In King v. State, 253 Ark. 614, 487 S.W. 2d 596 (1972), where a witness had seen the accused wearing handcuffs prior to seeing him in the lineup, we said:

“There is no evidence this incident and the momentary observation and recognition by the prosecutrix was anything other than co-incidental. Nothing was said or done by anyone to unduly direct any attention toward the appellant as being the assailant.”

“A very substantial likelihood of irreparable misidentification” was the evil to which Stoval v. Denno, 388 U.S. 293 (1967), was directed and it’s this likelihood which violates a defendant’s right to due process. Neil v. Biggers, 409 U.S. 188 (1972). In Neil the United States Supreme Court pointed out that the “totality of circumstances” is to be considered in determining whether a showup or a lineup presents a substantial likelihood of irreparable misidentification, and in Neil the court said:

“We turn, then, to the central question, whether under the ‘totality of circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. ”

Both of the prosecuting witnesses in the case at bar testified that they had seen the appellant playing basketball on a court near the victim’s home and recognized him by voice and appearance during the commission of the crime. By the appellant’s own election at the trial a confrontation in open court was avoided for the express purpose of avoiding the possibility of in-court identification. The appellant testified that the victim Tresha McGhee and the prosecuting witness Jacqueline Davis were together when they viewed the lineup in which he participated. There was other evidence, including the testimony of the identifying witnesses, that they viewed the lineup separately. We conclude that the possibility that either Tresha McGhee or Jacqueline Davis identified the wrong man in the lineup is remote and we find no merit to this contention.

As to appellant’s second assignment, we conclude that the judgment must be reversed and this case remanded for a new trial. There is no question that Tresha McGhee, a 12 year old child, was the victim of a vicious rape some time after midnight on October 12, 1974. The uncontraverted evidence is to the effect that Tresha McGhee and her 14 year old cousin Jacqueline Davis were sleeping together in Tresha’s bedroom in her mother’s home on the night of October 11; that some time after midnight Tresha was awakened by a man who carried a long barrel gun and had a towel around his head or over part of his face. The bathroom light was on in the house and the intruder struck Tresha on the head with the barrel of the gun while demanding that she get out of bed and go with him.

Tresha testified that when she was first awakened by the intruder’s demands, she thought it was someone playing a joke, but that her cousing Jacqueline was also awakened and advised her to do what the man said. She said she did as the man demanded and that he took her from the house through the backdoor. She said she got a “pretty close look” at him as they passed between the lighted bathroom and the kitchen, and that she had seen him previously playing basketball at a basketball court near her home. She said the man took her about a block from her home to near a church house where he raped her and threatened to kill her if she didn’t stop crying. She said as an automobile passed near them, she was forced to hide behind some trees in a vacant lot; that she was then taken across the street through some briers and brush to a grassy area where she was again raped. She said her assailant warned her against telling anyone about what had happened and then let her go. She said she ran toward her home and was picked up in a car by a friend of her mother who was out searching for her. The victim was taken immediately to a hospital where the rape was medically and unquestionably confirmed.

Deputy Sheriff Roy Hogg testified that about 1:15 o’clock on October 12 he received a call pertaining to the alleged rape, and that he made the initial investigation. He said he observed a garbage can turned upside down on a folding chair outside the bathroom window where the screen had been removed, and that he dusted various items for fingerprints and then returned to the police station where he studied his notes until daylight. He said that after daylight he returned to the victim’s home and retraced with her the route followed when she was taken from her home. He said the route pointed out to him led approximately three blocks from the girl’s home to the rear of a church house on Cherry Street where the victim pointed out the spot where she was raped. He said the route then continued southwest for approximately two blocks and through some blackberry briers on the rear of a lot behind a dwelling house off Cherry Street, where the prosecuting witness pointed out the spot where she was again raped. He said the two girls told him the man’s name was Frank and he and the chief of police had been driving around all morning looking for the appellant. He said they took him into custody about 11:00 o’clock on October 12 when they found him standing about 150 or 200 feet across the street from the victim’s home. He said the appellant was identified in the lineup by Tresha and also by Jacqueline. The record then recites as follows:

“Q. Did Tresha McGhee give you a description of what he was wearing?
A. Yes, sir.
Q. And based upon that description did you recover any clothes that he was wearing on the early morning hours of October the 12th?
A. Yes, sir, I did.
Q. When this occurred? And where did you recover them?
A. At Mr. Chapman’s house where Mr. Pollard was staying.
Q. Okay, and what did you recover?
MR. GIBSON: I object, Your Honor, unless it is shown these items were recovered as a result of a lawful search. He hasn’t laid the foundation for the introduction of this type of evidence.
THE COURT: The question before the Court now is, what did you recover? He hasn’t offered any items. I think the question is permissible. I will overrule your objection.
MR. GIBSON: Note our exceptions.
Q. What did you recover?
A. A pair of light tan pants.
Q. Light tan pants?
A. Yes, sir.
Q. And who owned the house there?
A. Mr. Chapman.
Q. And did you determine from your investigation that’s where the defendant lived?
A. Yes, sir.
Q. And did you determine from your investigation whether or not the defendant had these particular pants on the early morning hours of 1:00 o’clock?
MR. GIBSON: I am going to object to that, that calls for a conclusion.
THE COURT: Sustain the objection.
Q. And you said that’s where Mr. Pollard lived?
A. Yes, sir.
Q. And you recovered a pair of tan trousers?
A. Yes, sir.
Q. Okay, now then, the second place that you described Tresha took you to describe the terrain from the church to this second point?
A. It was vacant lots and what I would call fence rows where the edge of the property would have hedge rows and brier vines.
Q. Okay, these trousers that you recovered at Chapman’s house, what kind were they?
A. They were dress trousers.
MR. GIBSON: Now, Your Honor, I am going to object about any more testimony about these pants unless it is shown they were seized as a result of a lawful search, and it’s already been testified to that they were recovered from where this defendant lives and I assume at the time they were recovered he was in jail.
THE COURT: I sustain the objection.”

The appellant testified in his own defense. He said he was staying with his grandfather, Frank Chapman, in Dumas and had been in the area about ten months. He said he did not know Tresha McGhee or the other prosecuting witness. He said he had seen Tresha playing basketball but that he had never talked to her. He testified on direct examination that on the night in question he was at a cafe across town about six blocks from where he played basketball; that he got into an altercation with a boy named Dan Davis and another boy, and that about six boys jumped on him and interrupted his fight with Davis. He said one of the boys in the fight ran away and jumped a fence and that he later saw another one of the boys he had had trouble with at another cafe and he told him to wait until he came back. He said he then went to his cousin’s house and obtained a .20 gauge shotgun with the intention of finding the boys and scaring them with the shotgun. He said he walked over town a lot looking for the boys; that he searched for his assailants until 3:00 or 4:00 o’clock in the morning of October 12. He said he was unable to find the boys so he hid his shotgun near a church house on Cherry Street and spent the rest of the night in the house of a friend named Jessie Malone. He said he got up from bed at his friend’s house about 9:00 o’clock on October 12, and then he testified as follows:

“Q. All right, and then what did you do?
A. I went over to my grandfather’s house and changed clothes because the clothes I had on had blood stains in them from where the boys jumped on me the night before and bloodied my nose and I went over to my grandfather’s house and changed clothes and then I went downtown and looked for Dan Davis because we was going to fight fist to fist I’ll say, but I never did see him, so I went back over to my cousin’s house that next morning after I left out from downtown and he was in the house so I went in and we talked and I went to use the restroom and I came back out and a boy named, they called him Jelly, I don’t know, Robert Turner, we saw him there.
Q. Who?
A. Robert Turner, they call him Jelly.
Q. All right.
A. And so Robert Lee was telling Jelly that a girl had been raped last night and so I came out of the restroom and I asked him what did he say. ...”

This hearsay was objected to and the objection sustained. The appellant then continued as follows:

“Q. All right, forget that conversation, what did you do then?
A. So I went out to the car and the next thing I know Sheriff Hogg and Chief Morgan drove up and they asked me about a shotgun, they said, ‘Where that shotgun we heard you had last night.’ And so I told them I didn’t have a shotgun, and they took me down to City Hall and Sheriff Hogg told the Chief to lock me up and Sheriff Hogg told me that he was holding me on investigation. So they locked me up and I stayed under investigation for three days before I knew anything, then the fourth day they brought Tresha and her cousin up to identify me, and they had I guess four or five other boys off the street and they had two drunks up there, and I didn’t hear the conversation what they were saying and we had numbers and they brought her back in and she took a brief look, they came in at the same time and she took a brief look and. they left back out and went back downstairs and I don’t know what they told them, but anyway they carried me back down and locked me up and the next two days or so they brought warrant issued to me and said I was charged with rape.”

On cross-examination of the appellant by the state’s attorney the record is as follows:

“Q. What kind of trousers were you wearing on the night of October the 12th?
A. Well, they was white or beige looking.
Q. White and beige looking?
A. Right.
Q. Did they have a cuff on?
A. Yes they did.
Q. And when did you say you pulled these clothes off?
A. The next morning.
Q. The next morning?
A. The next morning.
Q. And where did you pull them off?
A. Over at my grandfather’s house, Frank Chapman’s.
Q. Would you look at these and see if those are . . .
MR. GIBSON: Now, Your Honor, I would want to object unless he can show how he got those clothes.
MR. TRAFFORD: I just asked him to see if he could identify them.
THE COURT: Overrule your objection.
MR. GIBSON: Sir?
THE COURT: Overrule your objection.
MR. GIBSON: Note our exceptions.
A. Yes, these are mine.
Q. Those are your trousers?
A. Right.
Q. These are the ones that you had on the night of October the 12th, is that correct?
A. That is correct.
Q. And you pulled them off at your grandfather’s house th. next morning?
A. I did.
Q. And they are a beige color?
A. Well, to me they are beige. To you?
MR. TRAFFORD: Your Honor, I would offer these into evidence as plaintiff’s exhibit No. 1.
MR. GIBSON: I object, Your Honor, because the sheriff’s testimony is that he just went in the house and got these without a search warrant. Now they have been introduced and it’s proof of unlawful search and seizure.
THE COURT: Let them be introduced.
MR. GIBSON: Note my exceptions.”

On cross-examination the appellant admitted that he did not tell the sheriff or other officers about the individuals assaulting him, and that he denied to them he had a gun. On cross-examination he testified that he continued to carry the gun for about 30 minutes after he obtained it, and that he hid it in some bushes near a church on Cherry Street. He denied that he had been through any brier or thickets and his testimony on cross-examination continued as follows:

“Q. Did you run through those brushes and briers?
A. No.
Q. Did you walk through them with these trousers?
A. I wasn’t in the brushes.
Q. Well, you had these trousers on though didn’t you?
A. Yes.
Q. And did you run through some briers? Do these knit breeches have snags in them?
A. Yes, they had snags in them.
Q. They had snags in them?
A. Yes, sir.
Q. Well, would that indicate that you run through some briers ?
MR. GIBSON: I object to that question, it calls for a conclusion.
THE COURT: Sustain the objection.
Q. Now, did you go back and get this shotgun any time during the night?
A. I did.
Q. About what time?
A. Ah, I say about one I went back and got it.
Q. You got it about one o’clock?
A. I did.
Q. Did you give it to the police officers?
A. No I didn’t.
Q. Did you tell them where it was?
A. No I didn’t.
Q. Did you tell them you had a shotgun?
A. No I didn’t.
Q. Why didn’t you?
A. Well, for the simple reason that I had heard that Tresha had been raped that night and they was looking for someone with a shotgun.”

The appellant admitted that he attempted to escape from jail. He said his purpose in attempting to escape was that he wanted to prove his innocence as to the rape charge. He then testified that he had known both Tresha and Jacqueline by sight but did not know them by name. He said they also knew him by sight; that they had seen each other while playing basketball.

The arguments to the jury were transcribed and in the opening argument for the state appears the following:

“Tresha also told us that the man was wearing beige colored pants. The defendant, upon questioning on cross examination verified that he had on a pair of beige trousers that night, that he pulled these off at his grandfather’s the next morning about 10:30 in the morning, and this is what he was wearing, and this is what Tresha and Jackie said he had on, beige colored trousers. Tresha said they went through a brier patch in them, as you recall, over next to the church, south of the church. You will notice the snags in the knit trousers. What does this indicate to you? You will notice the snags all over the trousers. When you walk through briers normally, particularly with knit, you normally snag them pretty badly.”

In the closing argument the state’s attorney, referring to the appellant, argued as follows:

“He comes in with his beige pants. There was light to see beige pants, light to see the color of a man’s pants whether coming in or going out. The little girl who was sleeping with Tresha saw her leave, she immediately went to tell, there was light coming in the bathroom and they say the man had beige pants, and that’s what he said he had. ‘This is the pants that I was wearing that night’ is further evidence.”

The state contends on appeal that the admission of the trousers into evidence over appellant’s objection was not prejudicial since the facts that the trousers tended to establish were admitted on cross-examination. We do not agree. The appellant denied that he waded through brush or briers while wearing the trousers on the night of the crime and it was apparently obvious the trousers had been worn through briers or brush. No testimony was elicited as to blood stains appearing anywhere on the trousers accepted in evidence, but it must be remembered that the appellant testified he got blood on his trousers from his bleeding nose, and that was the reason he changed clothes at his grandfather’s house. The trial court sustained the appellant’s objection to the introduction of the trousers by the state on direct examination of the officer who obtained the trousers from the appellant’s grandfather’s home. The state was then permitted to do indirectly what the court correctly had ruled it could not do directly. See Anderson v. City of El Dorado, 243 Ark. 137, 418 S.W. 2d 801.

The state contends on appeal that if admitting the trousers was prejudicial, the judgment of the trial court should not be reversed, but that the cause should be remanded to the trial court for an evidentiary hearing to determine whether in fact the trousers were the fruit of an illegal search and seizure. The proper time for an evidentiary hearing is before the evidence is admitted and considered by the jury. It appears from the record that the state had ample opportunity to establish the legality of this evidence when the trousers were first offered in evidence during the direct testimony of Deputy Sheriff Hogg. Officer Hogg testified that the trousers were obtained from Mr. Chapman’s house where the appellant Pollard was staying and the objection which was sustained to their introduction was premised, “unless it is shown these items were recovered as a result of a lawful search,” and the proper foundation laid for the introduction for this type of evidence. It would have been a simple matter to have asked Officer Hogg, preferably in chambers, just how he went about obtaining the trousers from Mr. Chapman’s house.

When the appellant objected to the introduction of the trousers for the reason they were the product of an unlawful and unreasonable search and seizure, (see Walton & Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462 [1968]) and the objection was properly sustained by the trial court, the state then had the burden of offering proof of the competency of the evidence before it could again be offered and accepted either on direct or cross-examination of witnesses. The state made no effort to produce a search warrant or show that Mr. Chapman or anyone at his residence, consented to the search in which the trousers were obtained. See Dickson v. State, 254 Ark. 250, 492 S.W. 2d 895 (1973). It is true that one who seeks to suppress evidence on the ground that the state violated his constitutional rights in making a search has the burden of establishing the defect in the search warrant used. Prichard v. State, 258 Ark. 151, 523 S.W. 2d 194 (1975). But in the case at bar the appellant contended there was no search warrant at all, or permission to search.

The state cites Williams v. State, 250 Ark. 859, 467 S.W. 2d 740 (1971) for the proposition that the introduction of the trousers was harmless error. The Williams case is not in point since in that case it was not even contended that the alleged prejudicial evidence was seized through an illegal search, or was the product of a violation of the Federal Constitution. Where the invasion of rights guaranteed by the Federal Constitution is involved, we are obliged to follow the harmless constitutional error rule set forth in Chapman v. California, 386 U.S. 18 (1967). The Chapman case involved the failure of the accused to testify but in formulating the rule the United States Supreme Court referred to the case of Fahy v. Connecticut, 375 U.S. 85 (1963), a case involving unreasonable search and seizure, saying:

“There is little, if any, difference between our statement in Fahy v. Connecticut about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard of all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.”

The trousers involved in the case at bar were obtained from the appellant’s home. Their introduction into evidence was objected to because they were obtained through an illegal search without a warrant or consent. The objection was sustained by the trial court but, nevertheless, the trousers were admitted into evidence without an evidentiary hearing. We are unable to say the error was harmless especially in light of the emphasis placed on their condition by the state’s attorney. Certainly the state failed to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman, supra). We conclude, therefore, that the judgment must be reversed and this case remanded for a new trial.

The judgment is reversed and the cause remanded.


text:
    John Henry CURRY v. STATE of Arkansas
    CR 75-74
    527 S.W. 2d 902
    Opinion delivered September 15, 1975

      McArthur, Lofton & Wilson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcombe, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

A jury convicted appellant John Henry Curry of delivering a controlled substance (marijuana) and fixed his punishment at five years in the penitentiary. For reversal he contends that the evidence was insufficient to sustain the verdict.

The record shows that P. J. Randall, an undercover police officer, casually met appellant in a bar and asked him if he knew where Randall could “cop a lid”. When appellant replied that he did, Randall slipped appellant SI5 and appellant left on his bicycle. When appellant returned he gave Randall a “lid” of marijuana. Thereafter, the two of them and appellant’s girl friend smoked a marijuana cigarette. On cross-examination Randall admitted that he already knew the price of a “lid” and that there was no discussion as to price with the appellant.

Our Controlled Substance Act, Ark. Stat. Ann. § 82-2601(f) [Supp. 1973], provides:

“ ‘Deliver’ or ‘delivery’ means the actual, construetive, or attempted transfer from one person to another of a controlled substance in exchange for money or anything of value, whether or not there is an agency relationship.”

Appellant argues that the foregoing definition does not contemplate a situation, such as here, in which an undercover policeman furnishes the money and induces one to go get a controlled drug. We cannot agree with appellant’s contention. See United States v. Pruitt, 487 F.2d 1241 (8th Cir. 1973). Thus, as we read the definition set out above, it makes no difference, on a motion for directed verdict, whether the transferor acts as an agent of the purchaser or the seller. The act is condemned anytime the transfer is “in exchange for money or anything of value.”

Affirmed.


text:
    Willard L. MARTIN v. STATE of Arkansas
    CR 75-75
    527 S.W. 2d 903
    Opinion delivered September 15, 1975

      Buford Gardner, Jr., Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of second degree kidnapping in violation of Ark. Stat. Ann. § 41-2308 (Supp. 1973). His punishment was assessed at three years in the State Department of Correction. We first consider appellant’s contention for reversal that the evidence was insufficient to justify the verdict and, therefore, the court erred in not directing a verdict of acquittal. We cannot agree.

It is well established that on appeal we consider only that evidence, and all reasonable inferences deducibie therefrom, which is most favorable to the appellee and if it is substantial, we affirm. Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975); and Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974). The prosecutrix identified the appellant as the individual who kidnapped her on August 7, 1969. She testified that the appellant, a stranger, came to her door asking for a drink of water, which she provided. When she complied with his second request, he jerked her from the doorway of her house, dragged her around the house and said he was going to take her with him. He told her she was going to “stay all night with him.” She continued to resist and he threatened her by placing a knife to her throat, saying he would kill her if she did not “get over the fence.” After crossing the fence, he drag¿ i her into a field on the other side of another fence and into the edge of some woods. During this time he asked her “if I wanted to do anything.” Following her refusal and continued entreaties, he returned her to the house. During her struggle with the appellant, she noticed the name “Billy” tattooed on his shoulder. Several other witnesses identified appellant as being in the rural area within approximately four miles of the scene of the kidnapping some two days before the alleged offense. It appears he was a nonresident hitchhiker attempting to locate a relative in the community. There were witnesses who testified that the physical condition of the field near the house indicated the struggle described by the victim. We hold the evidence was amply substantial to support thejury’s verdict. The appellant’s alibi that he was in another state at the time was a matter for the jury to consider in resolving the conflicting evidence.

We next consider appellant’s assertion that the court erred in not striking the testimony of certain witnesses who observed, as previously indicated, the appellant in the vicinity a few days before the alleged kidnapping. It is appellant’s argument that the testimony of these witnesses is neither material nor relevant to the issue because his whereabouts two days before the crime has no relation to the proof of his committing the crime. We disagree. It is well settled that evidence is relevant and admissible if it tends to prove an issue or constitute a link in the chain of proof, even if other evidence is required to supplement it. Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965); Williams v. State, 237 Ark. 569, 375 S.W. 2d 375 (1964); Glover v. State, 194 Ark. 66, 105 S.W. 2d 82 (1937); Tullis v. State, 162 Ark. 116, 257 S.W. 380 (1924); and Austin v. State, 14 Ark. 555 (1854).

Appellant also contends that the court erred in admitting into evidence two photographs of the appellant which were taken approximately two years after the alleged offense. We disagree. One of the photographs depicts the name “Billy” on the left upper arm. The victim testified that she observed this tattoo during her struggle. Another picture showed the words “Crime don’t pay” tattooed on his chest. The photographer identified the pictures as being an accurate representation of the appellant in 1970. A witness who observed the shirtless appellant in the vicinity a few days before the offense testified that he noticed the chest tattoo and that the photograph was a correct representátion of what he saw at that time.

The test of whether photographs are admissible as evidence is the fairness and correctness of the portrayal of the subject depicted. Also the. admissibility of photographs is largely within the sound discretion of the trial court, which we do not disturb unless there is an abuse of discretion. Wheeler, Adm’x v. Delco Ben., 237 Ark. 55, 371 S.W. 2d 130 (1963). In the case at bar, we are of the view the photographs properly met the requisite standard and the court did not abuse its discretion.

Neither can we agree with appellant that he was denied the right to a speedy trial. Appellant invokes the terms of Ark. Stat. Ann. § 43-1708 (Repl. 1964) and argues that he was not brought to trial as the statute requires before the end of the second term of the court having jurisdiction of the offense. The trial court found the appellant was not denied a speedy trial inasmuch as he refused to waive extradition from another state where he was serving a prison term and that the Arkansas officials had acted in good faith in attempting to extradite him. In fact, it is admitted that the appellant was “during all this time, resisting his return to Arkansas for trial.” Appellant cannot refuse to waive extradition and at the same time contend he is being denied a speedy trial within the terms of our two term discharge statute. § 43-1708, supra. Thorne v. State, 247 Ark. 346, 445 S.W. 2d 481 (1969). Cf. Morris v. Wyrick, Warden, 516 F. 2d 1387 (8th Cir. 1975).

Subsequent to appellant’s brief by his counsel, the appellant additionally contends, pro se, that Ark. Stat. Ann. § 43-1602 (Repl. 1964) requires the kidnapping charge filed against him on December 5, 1974 (five years after the allege.d offense) be dismissed. This statute provides that an indictment or information in a felony, such as here, be filed within three years of the commission of the offense. The court found, however, that the original information (which it appears could not be found) was filed within the three year statutory limitation. There is no contention the court’s finding is contrary to the evidence. Furthermore, Ark. Stat. Ann. § 43-1604 (Repl. 1964) provides that whenever a defendant is a nonresident, as here, the time limitation does not apply. Grayer v. Stale, 234 Ark. 548, 353 S.W. 2d 148 (1962).

Affirmed.


text:
    Richard SMITH v. STATE of Arkansas
    CR 75-84
    528 S.W. 2d 359
    Opinion delivered September 22, 1975

      Bill E. Ross, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In March, 1974, the appellant was found guilty of burglary and was sentenced to 21 years in the penitentiary. He did not appeal. Later on he filed the present petition for postconviction relief under Criminal Procedure Rule 1. In appealing from the denial of his petition he argues four grounds for reversal.

First, we find no denial of the appellant’s right to a speedy trial. After the information was filed in 1972, Smith escaped from jail and left the state. He was arrested in Mississippi and sentenced to prison there. He concedes that it was then his duty to affirmatively request a trial in Arkansas in order to set our statute in motion. Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970). His only request, however, was made under our statutory Interstate Agreement on Detainers. Ark. Stat. Ann., Title 43, Ch. 32 (Supp. 1973). That request was ineffective, because Mississippi had not adopted the statute and hence was not a party to the interstate agreement. Young v. State, 254 Ark. 72, 491 S.W. 2d 789 (1973). Smith was promptly tried after he was returned to Arkansas.

His second and third contentions assert matters that occurred before trial: That bail was fixed in an excessive amount, and that conditions in the county jail were so insanitary and oppressive as to constitute cruel and unusual punishment. Neither point falls within the scope of Rule 1. The denial of bail is not a ground for the dismissal of criminal charges, Small v. City of Little Rock, 253 Ark. 7, 484 S.W. 2d 81 (1972), and certainly does not affect the validity of the sentence. Jail conditions fall in the same category, there being no contention that the conditions complained of affected the petitioner’s trial or sentence.

Fourth, it is argued that some of the prospective jurors, before the trial began, overheard a discussion about the merits of the case and about the appellant’s criminal record. At the Rule 1 hearing the petitioner testified that after the trial someone told him about the incident. The rules of evidence apply to such a hearing. Lewis v. State, 251 Ark. 128, 471 S.W. 2d 349 (1971). Hence the trial court properly sustained an objection to the petitioner’s testimony, as it was hearsay.

Affirmed.

Fogleman, J., not participating.