author: DONALD L. Corbin, Justice.

text:
    James A. FERGUSON v. STATE of Arkansas
    CR 99-999
    33 S.W.3d 115
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Paul Petty, Madison P. Aydelott, III, and Patrick J Benca, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant James A. Ferguson was convicted in the Woodruff County Circuit Court of the first-degree murder of his wife, Brenda Ferguson, and sentenced to life imprisonment. Appellant raises six points for reversal: (1) the evidence was insufficient to support his conviction; (2) he was denied a speedy trial; (3) the trial court erred in refusing to strike a potential juror for cause; (4) he was prejudiced by a witness’s references to his having taken a polygraph test; (5) the trial court erred in refusing to grant a change of venue; and (6) the trial court erred in denying his motion to suppress taped custodial statements between Appellant and another jail inmate. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1 — 2(a)(2). We find no error and affirm.

I. Sufficiency of the Evidence

Appellant argues that there was insufficient evidence to convict him of the first-degree murder of his wife. Specifically, he contends that the proof failed to establish that the body discovered by the sheriff’s department was that of his wife. We disagree.

The record reflects that on March 15, 1996, Brenda Ferguson was contemplating leaving her husband, Appellant. Around 8:00 or 8:30 p.m. that evening, Brenda was seen at a convenience store in McCrory, Arkansas. Fler eyes were red and her mascara had run from crying. According to the cashier, Becky Mitchell, Brenda was wearing jeans, a T-shirt, and a blue windbreaker. Mitchell described the T-shirt as having something about nurses on it either “Nurses do it better,” or “Nurses are special,” or something similar. Mitchell let Brenda use the telephone. After she had done so, Brenda remained inside the store, where she stood near the front, watching out the window. After some time had passed, Brenda asked Mitchell if she could use the restroom. She then left the store, and Mitchell observed her outside in the parking lot. While Brenda was walking across the parking lot, Mitchell noticed a large, light yellow, older Ford truck pull up near her. There were two people in the truck. The driver got out of the truck and was apparently arguing with Brenda. While they were arguing, the driver snatched the blue windbreaker off Brenda. Mitchell could see that Brenda was trying to get away from the driver. Eventually, however, Brenda got into the truck. The driver then drove away, and that was the last time Mitchell saw Brenda.

Around 8:35 p.m. that evening, Brenda made a telephone call to her friend, Ruth Ann Bull. She described Brenda as being upset and having a shaky voice. During the call, Brenda reported that Appellant had been verbally abusing her. Brenda stated that he was on the back porch, playing loud music, and saying things that a normal person would not say. Brenda told her friend that she was going to move out and get an apartment of her own. At one point during their conversation, Brenda told Bull to hold on because she thought Appellant might be listening to their conversation. When Brenda returned to the phone, she reported that she could not find her husband. Before they hung up, Ruth told Brenda that she could stay with her if she needed a place to stay that night. That was the last time Bull spoke to her friend.

Later that same evening, between 10:00 or 10:30 p.m., Chief Stacy Barker, of the McCrory Police Department, was on routine patrol near the Fergusons’ home. When he stopped at the intersection adjacent to their house, Barker reported hearing a loud slam, like a tailgate being shut. When he looked over, he saw Appellant standing in his carport closing the tailgate of his truck. Fie then saw Appellant quickly go inside his house. Barker described Appellant’s truck as an older-model, light yellow Ford. He stated that the truck was backed up to the kitchen door.

The next day, Appellant reported his wife missing to the sheriff, Jack Caperton. Appellant reported that Brenda had gone walking the night before and never returned home. He stated that she had been wearing a blue T-shirt, blue jeans, and white tennis shoes. He stated that the T-shirt had a picture of a stethoscope on it and was from the Harding School of Nursing. He also stated that she had been wearing her jewelry.

Brenda’s body was discovered in a ditch about thirteen miles south of Augusta, Arkansas, on May 1, 1996. She was wearing the clothes described by Appellant and Becky Mitchell. Particularly, the T-shirt she was wearing had a stethoscope and some writing on it. She was also, wearing a wristwatch, a ring, and a necklace. She was not wearing any shoes or socks. According to the medical examiner, the body was badly decomposed. There was duct tape around her head, covering her airways. The cause of death was either suffocation from the duct tape or as a result of the skull fractures on the left side of her head.

In addition to the foregoing evidence, the jury also heard the testimony of three men who were in the Woodruff County jail with Appellant. Collectively, they testified that Appellant admitted that he had killed his wife. According to their testimony, Appellant overheard Brenda talking on the telephone and saying that she was going to leave him. When he confronted her in the kitchen, she pulled away from him and fell and hit her head on the stove. Appellant feared that she would call the police when she woke up, so he taped her head with duct tape, put her in a blanket, and put her in his truck. Appellant admitted that she was still alive when he taped her head. While he was placing her in the back of his truck, Appellant saw a police officer go by his house. Fie was startled and proceeded to move Brenda back into the house. He later put her back into his truck and disposed of her body. The next day, he reported her missing. According to one of the jail witnesses, Charles Rogers, Appellant expressed concern that he had forgotten to remove Brenda’s rings and had also forgotten to put shoes on her.

At the conclusion of the State’s case, Appellant moved for a directed verdict on the ground that there was not sufficient evidence for the jury to determine the identity of the body. A motion for directed verdict is a challenge to the sufficiency of the evidence. Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Id. On appeal, this court views the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it. Id.

We conclude that the foregoing constitutes sufficient evidence from which the jury could have determined that the body found in the ditch on May 1, 1996, was that of Brenda Ferguson. Despite the fact that the body was very decomposed when it was found, there was sufficient evidence that it was Brenda Ferguson: (1) she was wearing blue jeans and a T-shirt with a stethoscope and nursing theme on it, just as was described to police by Appellant and Becky Mitchell; (2) she had on jewelry, as described by Appellant to the police; and (3) she had duct tape on her head and was not wearing any shoes, as Appellant had described to his fellow inmates. Additionally, the jury heard testimony to the effect that March 15, 1996, was the last time that anyone saw Brenda Ferguson alive. We thus affirm the trial court’s denial of a directed verdict.

II. Speedy Trial

For his second point for reversal, Appellant argues that the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial. Rules 28.1(c) and 28.2(a) of the Arkansas Rules of Criminal Procedure require the State to bring a defendant to trial within twelve months from the date a charge is filed in circuit court. See Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998). If, however, prior to that time, the defendant has been arrested and is lawfully set at liberty, the defendant must be brought to trial within twelve months from the date of arrest. Rule 30.1 provides that if a defendant is not brought to trial within the requisite time, he or she will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that offense. Once the defendant presents a prima facie case of a speedy-trial violation, i.e., that the trial is or will be held outside the applicable speedy-trial period, the State has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Dean v. State, 339 Ark. 105, 3 S.W.2d 328 (1999); Eubanks, 334 Ark. 21, 972 S.W.2d 234.

The first thing we must determine is when the speedy-trial period commenced. Appellant asserts that the relevant date is May 3, 1996, the date that he was arrested. The State contends that Appellant never produced any evidence showing when he was arrested, and that this court should therefore consider the date the charge was filed, June 24, 1996, as the relevant date. We agree with the State that it is not clear from the record when Appellant was arrested; however, the record demonstrates that Appellant was initially placed in jail on May 7, 1996, and was brought before a judge for a probable-cause determination on May 9, 1996. Accordingly, we will use May 7, as the date that commenced the speedy-trial period. Appellant was not tried until February 3, 1999, 1,002 days after his initial incarceration. Appellant has thus established a prima facie violation of his right to a speedy trial. We must now consider whether there are any periods of time to be excluded from that calculation.

This case is somewhat difficult because some of the excludable periods overlap one another. Notwithstanding, our review of the record demonstrates that there are four types of excludable periods: (1) the delay resulting from the grant of a nolle prosequi; (2) delays caused by pretrial motions filed by Appellant; (3) the delay caused by defense counsel’s statement to the trial court that he. would seek a writ of prohibition; and (4) continuances granted at Appellant’s request. We discuss each of these periods separately.

A. Nolle Prosequi

The first excludable period in this case is 251 days, beginning April 24, 1997, when a nolle prosequi was granted, and ending December 31, 1997, when the charge was refiled. Rule 28.3(f) of the Arkansas Rules of Criminal Procedure provides for the exclusion of:

The time between a dismissal or nolle prosequi upon motion of the prosecuting attorney for good cause shown, and the time the charge is later filed for the same offense or an offense required to be joined with that offense.

The prosecutor filed the motion for nolle prosequi on April 22, 1997. The motion reflected that one of the State’s key witnesses had recanted her testimony two weeks before and had since gone back to her original statement, but this time described an additional potential defendant in the crime. The motion also reflected that two other witnesses had informed the State that they wanted special treatment from the prosecutor in exchange for their testimony. The trial court granted the nolle prosequi on April 24, 1997. The order specifically provided that there was good cause to grant the motion, and that “the justification for the nol pros is not for problems of the State with the Arkansas Rules regarding speedy trial.” The transcript of the proceeding reflects that the deputy prosecutor informed the trial court:

The defense counsel, Paul Petty, and I have agreed to an order, a written order, nolle prosequing. And the reason that we have a written order is that there is an expressed provision that this nolle prosequi is not for purposes of speedy trial. Mr. Petty understands the problems that we have had with witnesses changing testimony in this case, and we would have to continue to investigate before a posture —■ being able to take to trial.

Though the record does not reflect that defense counsel was present at the foregoing proceeding, the prosecutor’s assurance to the court are confirmed by the fact that the order granting the nolle prosequi was signed “APPROVED” by both the deputy prosecutor and defense counsel.

Appellant argues on appeal, as he did in his motion to dismiss, that the 251 days should not be excluded because the nolle prosequi was not granted for good cause. The State argues that this argument must fail because Appellant did not make a contemporaneous objection to the trial court’s finding that the nolle prosequi was granted for good cause. We agree with the State’s argument on this point.

A contemporaneous objection to the excluded period is necessary to preserve the argument in a subsequent speedy-trial motion. See Dean, 339 Ark. 105, 3 S.W.3d 328; Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996); Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995). The reason for requiring a contemporaneous objection is to inform the trial court of the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. Dean, 339 Ark. 105, 3 S.W.3d 328. The idea is to give the trial court the opportunity to fashion a different remedy. Id.

Here, defense counsel indicated that he did not oppose either the motion to nolle prosequi or the specific finding in the order that the motion was being granted for good cause shown. This is apparent from counsel’s approval of the order granting the nolle prosequi. We are not persuaded by the assertion that the only thing counsel approved was the entry of an order that freed his client. This would have been the result even if counsel had not signed the order.

Additionally, we are not persuaded by Appellant’s contention that the holding in Carter v. State, 280 Ark. 34, 655 S.W.2d 379 (1983), supports his argument that the time to contest good cause is when the motion to dismiss for lack of speedy trial is filed. That decision merely reflects that the time to establish good cause is when it becomes relevant. Moreover, at the time that the nolle prosequi was granted in Carter, in November 1980, Rule 28.3(f) contained no requirement for a showing of good cause. That rule was amended in June 1981, and now provides for an exclusion from the time for speedy trial “upon motion of the prosecuting attorney for good cause shown.” (Emphasis added.) Clearly, under the current Rule 28.3(f), the time for showing good cause is at the time the motion to nolle prosequi is heard. Correspondingly, the time to object for a lack of good cause is also at the time the motion is heard. Thus, because Appellant waited until after the motion for nolle prosequi had been granted and the charge against him had been refiled, and because defense counsel approved of the order granting the nolle prosequi, his challenge to the finding of good cause is untimely. Accordingly, we affirm the trial court’s ruling that this period of time, 251 days, is excluded from the one-year period for speedy trial.

B. Delays Caused by Appellant’s Pretrial Motions

Periods of time attributable to delays from pretrial motions filed by the defendant may be excluded from the speedy-trial period under Ark. R. Crim. P. 28.3. See Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). Rule 28.3(a) provides:

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. [Emphasis added.]

In Gwin, we addressed for the first time the meaning of the phrase “hearings on pretrial motions.” The State had argued that the period of time excluded by this phrase extends from the filing of the motion until the motion is heard by the court and no more than thirty days after the court takes the motion under advisement. We held:

We agree with the State’s interpretation that the excluded period contemplated by the rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard by the court and not more than thirty days thereafter. This construction is consistent with our cases on defendant competency hearings also found in Rule 28.3. We note this is also consistent with the federal speedy-trial rule.

Id. at 306, 9 S.W.3d at 503-04 (citation omitted) (footnote omitted).

Here, the record reflects that numerous pretrial motions were filed by Appellant and heard by the trial court during different hearings. For example, on July 15, 1996, Appellant filed a motion to suppress the custodial statements made by Appellant to his fellow inmates. On August 5, 1996, a continuance was granted upon agreement of the parties to obtain additional information from the lead police investigator that was pertinent to his pretrial motions. The suppression hearing was held on November 4, 1996. At the conclusion of the hearing, the trial court took the motion under advisement and requested briefs from both sides. No ruling was made within thirty days after the hearing. The thirtieth day from the date of hearing was December 3, 1996. Thus, under our holding in Gwin, the period of time from July 15 to December 3, 141 days, should be excluded from the calculation of speedy trial as a period of delay attributable to hearings on a pretrial motion. Similarly, on December 4, 1996, Appellant filed a motion for a pretrial hearing to set bond. The motion was heard on February 3, 1997. Accordingly, the period of time from December 4, 1996, to February 3, 1997, 61 days, should be excluded.

We thus conclude that these two periods of delay, totaling 202 days, should be excluded from the calculation of speedy trial pursuant to Rule 28.3(a), as they were the result of delays from pretrial motions filed by Appellant. Although the trial court did not rely on these specific periods of delay in denying the motion to dismiss, we are not constrained by the trial court’s rationale and may go to the record for additional reasons to affirm. See Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993).

C. Counsel’s Statements

The next period that we believe should be excluded from the time for speedy trial is that resulting from defense counsel’s statement that he would seek a writ of prohibition. The record reflects that Appellant filed a motion to dismiss for lack of speedy trial on January 26, 1998, and a hearing was held on February 2, 1998. After hearing arguments from both sides, the trial court denied the motion. The following exchange then occurred between defense counsel, Paul Petty, and the trial court:

Mr. PETTY: Your Honor, then I feel I must be compelled to tell the Court that I am going to file a Writ of Prohibition. I assume from this moment on any time that extends this time for trial will he charged against the defendant.
The COURT: I would think so, from this time on yes.
Mr. PETTY: And if I’m right, then I’m right, and if I’m wrong then I guess this case will come back up at some point in time.
The Court: That would be my understanding of the procedure. Are you going to do that today, I suppose, or tomorrow?
Mr. Petty: I — I will file it, Your Honor, and will be a copy to [the deputy prosecutor] for his approval this afternoon.
The Court: Okay.

The record does not reflect that a writ of prohibition was ever sought by Appellant.

The State argues that counsel’s statement amounted to an unconditional waiver of Appellant’s right to speedy trial from February 2, 1998, until the trial on February 3, 1999. Appellant, however, argues that counsel’s assumption that the time would be charged to him was conditioned upon his pursuit of a writ of prohibition. Since no writ was ever sought, Appellant argues that the time for speedy trial was not tolled by counsel’s statements. Appellant contends that it should have been obvious to both the State and the trial court that he had not pursued the writ as of March 1998. Fie relies on the following docket entries:

3/19/98 Cont. on Motion of Defendant Aug. 3, 98 Term / Pre-Trial June 30, 1998
9/24/98 Cont. on Motion ofDefendant Feb. 1, 99 Term / P-T Jan. 4, 1998

We agree with Appellant’s argument on this point.

This court has long recognized that a defendant has no duty or obligation to bring himself or herself to trial; rather, the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. See Eubanks, 334 Ark. 21, 972 S.W.2d 234; Tanner, 324 Ark. 37, 918 S.W.2d 166. In the present case, we have no hesitancy in concluding that counsel’s statement had a tolling effect on the speedy-trial period, based on his assertion that he would seek a writ of prohibition. See Rhodes v. Capeheart, 313 Ark. 16, 852 S.W.2d 118 (1993). The question, however, is whether the tolling effect extended up to the date of trial, one year and one day later. Under the particular facts of this case, we conclude that it did not. On this point we disagree with the State that anything short of a specific reassertion of his speedy-trial right by Appellant would have tolled the time indefinitely, even up to ten years. Given the foregoing docket entries made by the trial court, the State was undoubtedly aware that no writ of prohibition had been sought by Appellant. Otherwise, there would be no need for continuances of the trial date. Accordingly, we conclude that only that time from February 2, 1998, to March 19, 1998, a total of 45 days, should be excluded.

D. Continuances Requested by Appellant

As discussed in the previous section, Appellant requested and was granted two continuances, the first from March 19, 1998, to August 3, 1998, 137 days, and the second from September 24, 1998, to February 1, 1999, 130 days. It is undisputed that these periods should not be charged against the State. Delays resulting from continuances given at the request of the defendant are excluded in calculating the time for a speedy trial. Eubanks, 334 Ark. 21, 972 S.W.2d 234; Rhodes, 313 Ark. 16, 852 S.W.2d 118.

In sum, Appellant was arrested for the murder of his wife and initially placed in jail on May 7, 1996. He was tried on February 3, 1999, after the passage of 1,002 days. The excludable periods outlined above are as follows: (1) 251 days from April 24, 1997, to December 31, 1997, resulting from the grant of a nolle prosequi; (2) 141 days from July 15, 1996, to December 3, 1996, resulting from the hearing on the motion to suppress; (3) 61 days from December 4, 1996, to February 3, 1997, for the hearing on the motion for bond; (4) 45 days from February 2, 1998, to March 19, 1998, resulting from the delay caused by counsel’s announced intention to seek a writ of prohibition; (5) 137 days from March 19, 1998, to August 3, 1998, resulting from Appellant’s requested continuance; and (6) 130 days from September 24, 1998, to February 1, 1999, resulting from Appellant’s requested continuance. These six periods total 765 days. Subtracting those periods from the total time of 1,002 days, it is clear that Appellant was tried within the 365-day period for speedy trial. We thus affirm the trial court’s denial of Appellant’s motion to dismiss.

III. Challenge to Juror

For his third point for reversal, Appellant argues that the trial court erred in denying his motion to strike juror Richard Bryson for cause. Appellant’s motion below was based on the fact that Bryson had been employed as a Woodruff County deputy sheriff while Appellant was in jail, and that he had some conversations with Appellant at the time. After the trial court denied his motion to strike the juror for cause, Appellant used a peremptory challenge to remove the juror. Later on, after Appellant had used all his peremptory challenges, he attempted to strike juror Lisa Miller. Because he had used all his peremptory challenges, Miller was seated on the jury. At no time during the proceedings below, or even on appeal, did Appellant argue that Miller should have been removed from the jury for cause. Indeed, the record reflects that defense counsel told the trial court that he was just trying to use all of his peremptory challenges.

Appellant now argues that it was error for the trial court to deny his motion to strike Bryson for cause. He contends that because the trial court denied his motion to strike Bryson for cause, he was forced to accept Miller, whom he asserted that he would have used a peremptory challenge to strike. This court has recently held that the loss of peremptory challenges cannot be reviewed on appeal, and that the focus on appeal should be on the persons actually seated on the appellant’s jury. See Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). To challenge a juror’s presence on appeal, an appellant must demonstrate that he exhausted his peremptory chailenges and that he was forced to accept a juror who should have been excused for cause. Id. In other words, for us to review this issue, Appellant must have asked the trial court to remove Juror Miller for cause, and the trial court must have improperly denied the request. Id. Because Appellant failed to challenge Juror Miller for cause, we do not consider this claim.

We are not persuaded by Appellant’s rebanee on the holding in Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982), wherein this court observed:

The appellant argues that the trial court erred in failing to excuse for cause venireman Clarence Davis. The appellant excused Davis peremptorily. Although he later exhausted his peremptory challenges, the record does not reflect that any juror was seated, or forced upon him, whom he would have excused if he had been entitled to another peremptory challenge. Consequently, this issue may not be raised on appeal. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); and Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

Id. at 275, 641 S.W.2d at 12. Appellant contends that this holding is in conflict with the later holdings in Bangs and Willis. We disagree. The foregoing language does nothing more than point out that the appellant failed to make an assertion that he would have used a peremptory challenge to strike the juror. Hobbs stops short of holding that such an assertion is all the appellant would have to make. In this respect, the holdings in Bangs and Willis merely expand upon the holding in Hobbs. We thus affirm the trial court’s ruling on this issue.

IV Reference to Polygraph Test

For his fourth point for reversal, Appellant argues that the trial court erred in denying his motion for mistrial when a witness made two references to Appellant’s having taken a polygraph test. The State argues that this argument is procedurally barred because Appellant failed to object or move for a mistrial at the first opportunity. We agree with the State.

The law is well settled that to preserve an issue for appeal, a defendant must object at the first opportunity. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Swanigan v. State, 336 Ark. 285, 984 S.W.2d 799 (1999); Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997) . Similarly, motions for mistrial must be made at the first opportunity. Id. The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Pyle, 340 Ark. 53, 8 S.W.3d 491 (citing Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998) ).

The record here demonstrates that the two references to Appellant’s having taken a polygraph test were made during his cross-examination of Ruth Ann Bull. The colloquy between the witness and defense counsel is as follows:

Q. Is there any reason that you didn’t tell [Officer] Gary McKue that you went in the home and visited the home?
A. No, there’s not any reason at all.
Q. They just did not ask you about it?
A. Ah — I doubt if I was asked. I’m surprised I didn’t mention that because I had two or three policemen in my yard the next time Jim Ferguson called. I had my daughter go get the police so they could overhear his conversation. I kept him on the line as long as I could so we could —
Q. (Interposing) you mean later that day?
A. Oh, no. This was after he’d taken his lie detector test; he called me, and the first thing he said was “Ruth Ann did my wife tell you that she was leaving me.”
Q. When was that?
A. Right after they had taken him to, I believe, Forrest City, and ah tested him, the — however you say it, he took a lie detector test.

Following this exchange, defense counsel continued to cross-examine the witness, without making any objection to the foregoing testimony. Indeed, the record reflects that the motion for mistrial was not made until after the prosecutor had finished redirect of the witness. Thus, Appellant’s failure to make a contemporaneous objection to this testimony prevents him from asserting on appeal any error on the part of the trial court for admitting the evidence. See Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999).

Moreover, despite the procedural bar, Appellant has failed to show that the trial court erred in denying his motion for mistrial. A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999). The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the decision will not be disturbed on appeal. Id. We defer to the trial court, as it is in a superior position to determine the effect of the allegedly prejudicial remark on the jury. Id. Furthermore, where the possible prejudice could have been cured by an admonition by the trial court, this court has found no abuse of discretion when defense counsel has refused the trial court’s offer of such a curative instruction. See Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995).

Here, the record shows that defense counsel’s motion for mistrial was based on his assertion that the witness’s reference to a polygraph test was improper and prejudicial. Defense counsel did not specify what alleged prejudice had occurred. The trial court denied the motion. At that point, the trial was recessed for the day. The next morning, before any further testimony had been taken, defense counsel renewed his motion for mistrial, arguing that the remarks about the polygraph test tainted the jury to the point that Appellant could not receive a fair trial. The trial judge indicated that he had given some thought to the motion overnight, and that he came to the conclusion that the witness’s remarks were probably just as prejudicial to the State as they were to the defense, because the jury was not informed as to the results of the test. The trial judge thus denied the motion for mistrial. He offered to instruct the jurors that they should disregard any statement about the polygraph test, but this offer was rejected by defense counsel.

Under the circumstances, Appellant has failed to demonstrate that the trial court abused its discretion by denying the mistrial. The witness’s remarks were spontaneous and obviously not solicited by the prosecution. More importantly, there was no prejudicial inference from the witness’s remarks, as it was not evident from her testimony how Appellant scored on the test. This court has held that “the fact that the jury is apprised that a he detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences [that] might be raised as to the result are not prejudicial.” Wingfield v. State, 303 Ark. 291, 296, 796 S.W.2d 574, 576 (1990) (citing Johnson v. Florida, 166 So.2d798 (Fla. 1964)). Accordingly, we affirm the trial court’s ruling on this issue.

V. Change of Venue

For the fifth point for reversal, Appellant argues that the trial court erred in denying his motion for a change of venue. The record reflects that Appellant presented testimony from three witnesses to support his claim that it was not possible for him to receive a fair trial in Woodruff County. The hearing on the motion was held on August 6, 1998, over two years after the crime was committed. Appellant’s first witness, Ray Waters, was the public defender of Woodruff County. He testified that the Ferguson murder case had been the topic of much conversation in the county, and that there had been some local newspaper reports about it. However, when asked about the possibility of picking an impartial jury in Woodruff County, Waters stated: “I can’t say that there wouldn’t be twelve (12) in the county whose minds aren’t made up.” Appellant’s second witness, Mary Johnson, stated only that she had talked about the murder with other people when it first happened. On cross-examination, she admitted that she mainly talked to people in McCrory about the case, but that she did not know what people in other parts of the county were saying. Appellant’s last witness, Dawn Odem, a revenue agent in Woodruff County, stated that the murder had been the topic of much discussion in the courthouse and the county in general. She then stated that she did not think it would be possible for Appellant to pick a jury that was impartial and unbiased. She did not provide any specific facts to support her opinion.

The State countered with three of its own witnesses, who collectively opined that the murder had initially been a hot subject, but that people had not made up their minds against Appellant. At the conclusion of the hearing, the trial court found that there had not been any evidence as to the feeling amongst all the citizens of the county. The court pointed out that most of the testimony pertained to citizens in McCrory and Augusta. The trial court thus concluded that Appellant had failed to meet his burden of demonstrating that there was countywide prejudice against him.

A change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county. Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996). This requires a movant to show that there is countywide prejudice against him. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982). A defendant is not entitled to jurors who are “totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial.” Rankin v. State, 329 Ark. 379, 396, 948 S.W.2d 397, 406 (1997) (quoting Gardner v. State, 296 Ark. 41, 52, 754 S.W.2d 518, 523 (1988)). The standard of reviewing the denial of a motion for change of venue is whether there was an abuse of discretion by the trial court. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).

In the present case, we cannot say that the trial court abused its discretion in denying the change of venue, especially given that Appellant makes no argument that the jury that was ultimately seated was biased against him. To the contrary, the record demonstrates that the defense voiced its approval of each and every person selected to be seated on his jury. “[T]here can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court.” Bell, 324 Ark. at 264, 920 S.W.2d at 824. Accordingly, we affirm on this point.

VI. Denial of Suppression of Taped Statement

For his last point for reversal, Appellant argues that the trial court erred in denying his motion to suppress a taped conversation between Appellant and a fellow inmate, Charles Rogers. The record reflects that two inmates, Steven Nevels and Charles Rogers, reported to Investigator Dale Arnold that Appellant had made statements to them regarding the murder of his wife. As a result of the inmates’ information, Arnold asked Rogers if he would be willing to wear a body mike in his cell. Rogers agreed. According to Arnold, he instructed Rogers not to raise the subject of the murder, but to converse about it if Appellant raised the subject. The taped conversation occurred on June 7, 1996.

The record reflects that the tape was never used at trial. The record also reflects that the trial testimony of Nevels and Rogers did not concern any statement Appellant made after June 5, 1996. Accordingly, Appellant cannot demonstrate prejudice. This court will not reverse a trial court’s ruling denying suppression of a taped statement where that statement was not used against the appellant at trial. See Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999); Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). Prejudice is not presumed, and this court will not reverse absent a showing of prejudice. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). We thus affirm on this point.

VII. Rule 4-3(h) Compliance

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

       The docket also reflects a continuance granted on agreement of both parties from August 5, 1996, to November 4, 1996. That period, however, is included in the period resulting from the delay associated with Appellant’s pretrial motion to suppress.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Francisco Godinas BARCENAS v. STATE of Arkansas
    CR 00-693
    33 S.W.3d 136
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Troy R. Douglas, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Francisco Godinas Barcenas appeals from a judgment of conviction for sexual misconduct, which is a Class A misdemeanor, and from a fine of $1,000. The basis for his appeal is that a language barrier existed which hampered his ability to voluntarily, knowingly, and intelligently give an inculpatory statement to police officers. Thus, he contends that the trial court erred in denying his motion to suppress that statement. We agree with Barcenas that his Miranda rights were not knowingly and intelligently waived, and we reverse the judgment and remand.

The facts of this matter occurred in Mena during the late evening hours ofjune 13, 1998. Earlier the same evening, Barcenas, age 25, and his wife, Arlita, had attended a family pool party with Arlita’s cousin, N.W, who was age 14, and others. The group returned to Barcenas’s home and played cards and ate pizza. There was conflicting testimony about the extent to which Barcenas had been drinking, although N.W. testified that Barcenas had been drinking beer since about 9:30 p.m.

At about 12:30 a.m., while Arlita was asleep on a roll-a-way bed in the living area, Barcenas and N.W. were playing cards. At that time, Barcenas put his hand up N.W.’s shorts and under her underwear and digitally penetrated her vagina. This occurred, according to NW, for ten or fifteen minutes. Barcenas’s young child, Lorenzo, then awoke and asked Barcenas for popcorn. N.W. went to the kitchen to microwave popcorn, and there Barcenas again, according to NW, digitally penetrated her. He also reached under her shirt and touched her on top of her bra. When Arlita entered the kitchen, this activity ceased.

On June 26, 1998, N.W. went to the Mena Police Department and complained about what Barcenas had done to her. Mena police officers went to Barcenas’s house on June 27, 1998, and asked him to come down to the police station for an interview. According to Sergeant Cecil Knox, Barcenas was initially given his Miranda warnings and admitted that he had “touched” N.W. The police officers then decided to videotape Barcenas’s statement.

Barcenas does not read or write English and speaks broken English. His native language is Spanish, and he is not an American citizen. No other Spanish-speaking person was available to assist Barcenas during the custodial interrogation. The questioning began with Sergeant Cecil Knox and Sergeant Bill Head in attendance, neither of whom spoke Spanish. The Miranda warnings were repeated in English several times and explained in different words, when it was clear that Barcenas had not initially grasped their meaning. During the statement, Barcenas pointed to his crotch and admitted that he had touched N.W. there. The videotaped interview lasted about fifteen to twenty minutes.

On July 1, 1998, Barcenas was charged with first-degree violation of a minor, which is a Class C felony. On February 17, 1999, he pled guilty to violation of a minor in the second degree, a Class D felony, and was sentenced to a suspended sentence of seventy-two months. The next day, on February 18, 1999, the trial court permitted Barcenas to withdraw his plea for good cause shown due to the language barrier. Specifically, the trial court said that Barcenas “did not knowingly and intelligently enter a plea of Guilty to the aforesaid charge due to a language barrier.”

On February 24, 1999, the trial court held a hearing on Barcenas’s motion to suppress the statement made to Mena police officers. The basis for the suppression motion was the language barrier and the fact that the statement was involuntary and not knowingly and intelligently made. On March 11, 1999, the motion was denied, and Barcenas was tried by a jury for first-degree violation of a minor. He was found guilty of the lesser offense of sexual misconduct and sentenced to pay a fine of $1,000.

The issue before us in this appeal is whether the trial court erred in denying Barcenas’s motion to suppress which included whether the Mena police officers obtained Barcenas’s statement in violation of his Miranda rights in that the statement was involuntary and not knowingly and intelligently made.

The standards for examining custodial statements have been made clear by this court. We review a trial court’s ruling on a motion to suppress by making an “independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State.” Wright v. State, 335 Ark. 395, 403-04, 983 S.W.2d 397, 401 (1998) (citing Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998)). The ruling will only be reversed if it is clearly against the preponderance of the evidence. See id. An accused’s statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that the custodial statement was given voluntarily and was knowingly and intelligently made. See Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998) (citing Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997)). We make an independent review of the totality of the circumstances surrounding the confession to determine whether the appellant knowingly, voluntarily, and intelligently waived his constitutional rights. See id. (citing Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997)).

Initially, the State argues that Barcenas’s appeal must fail for procedural reasons. According to the State, Barcenas’s abstract reveals no ruling by the trial court on the suppression motion. We disagree. The abstract and record reflect the trial court’s docket which contains this entry in connection with the suppression motion, “Motion to suppress denied.” Moreover, the trial court allowed the State to play the videotape of the statement to the jury, after a renewed motion to suppress by defense counsel. We hold that the issue is preserved for our review.

On the merits, we follow our standards and make an independent determination based on the totality of the circumstances. Here, after reviewing the videotape, it is clear to this court that Barcenas was not fully aware of his Miranda rights when he made his statement. That, of course, is the critical test. As this court said in Smith v. State, supra, a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” as well as whether the accused made the choice uncoerced by the police officers to waive his rights are the essential focal points in determining whether a waiver was knowingly and intelligently made. Smith, 334 Ark. at 204, 974 S.W.2d at 434 (citation omitted). Barcenas, however, appeared perplexed in the videotape by the Miranda warnings, which had to be repeated and explained in different ways in a language not his own. Furthermore, his answers to the Miranda warnings appear at times unintelligible, and there is no transcript of the videotape prepared by the court reporter, apparently because of the difficulty in doing so. We are further influenced by the fact that even though the trial court denied Barcenas’s motion to suppress, twenty-one days earlier it granted a motion for withdrawal of a guilty plea due to the language barrier and because the plea had not been knowingly and intelligently made.

We, therefore, reverse the trial court’s order denying suppression of the videotaped statement. Because unfair prejudice to Barcenas resulted from playing the videotaped statement to the jury, we also reverse the judgment of conviction and remand for further proceedings.

Reversed and remanded.

       Though the record is not clear on this, it appears that technically this occurred during the early morning hours of June 14, 1998.

       In Barcenas’s abstract, he reports that the “Court reporter has certified [the tape] and that she attempted, without success, to transcribe [the] interview.”


author: ROBERT L. Brown, Justice. Tom Glaze, Justice,

text:
    John JOHNSON and Jay Shue v. Randy JOHNSON, Pulaski County Sheriff, and the Honorable Marion Humphrey, Circuit Judge, Pulaski County Circuit Court
    00-1320
    33 S.W.3d 492
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for petitioners.

      Kaplan, Brewer & Maxey, P.A., by: Philip E. Kaplan and Regina Haralson, for respondents.
   ROBERT L. Brown, Justice.

This is an original action involving an Emergency Petition for a Writ of Habeas Corpus, or, Alternatively, a Writ of Certiorari or Stay of Contempt Order. The petitioners are John Johnson and Jay Shue, who are deputy prosecuting attorneys for the Sixth Judicial District. The respondents are Randy Johnson, who is Pulaski County Sheriff, and Judge Marion Humphrey, who is circuit judge for the Pulaski County Circuit Court. The petition arises out of the judge’s incarceration of the deputy prosecutors for criminal contempt, after they refused to proceed with the jury trial in the case of State v. Christopher Lee McBride and Nicolus Nigel Smith. We grant the petition for writ of certiorari in part and deny it in part. We further dissolve our temporary stay order.

On July 21, 2000, Christopher McBride and Nicolus Smith were charged with first-degree murder. On August 24, 2000, Judge Humphrey signed two scheduling orders regarding the first-degree murder charges against McBride and Smith. Both orders specified that a two-day jury trial would take place on November 15 and 16, 2000. On the afternoon of Thursday, November 9, 2000, deputy prosecutor Shue filed a motion for continuance on behalf of the State and set out the grounds for the motion:

The State has ordered transcripts from the bond hearing held in this matter on September 15, 2000. We have not received these and need them for preparation purposes and for use at trial.

On Tuesday, November 14, 2000, Linda Lee, who is the case coordinator for Judge Humphrey, advised the deputy prosecutors that the continuance motion had been denied.

On Wednesday, November 15, 2000, the deputy prosecutors and defense counsel for McBride and Smith met in the courtroom prior to convening formally for the trial. Judge Humphrey inquired as to whether the State was ready for trial and deputy prosecutor Shue answered that the State was not because the State still needed the transcript of the four-hour bond hearing which actually took place on September 19, 2000 — not September 15, 2000. According to Shue, the State needed the specific testimony of Shontae Jackson, who was a key witness for the State in the prosecution of McBride and Smith. According to Shue, Jackson had given “two prior sworn statements” to police detectives but had recanted his statements at the bond hearing and admitted that he had lied to the detectives.

The judge responded that the State knew what Jackson testified to at the bond hearing and that there was no need for a continuance based on transcription of those statements. Deputy prosecutor Shue replied that the State could not call Jackson as a witness, when it was more than likely that Jackson was going to be arrested for perjury. It would be suborning perjury, according to Shue, to call Jackson as a witness. Shue went on to emphasize that Jackson was an essential witness for the State but that the perjury issue had to be first resolved. Upon the judge’s inquiry, Shue asserted that the State needed the transcript of the bond hearing to make a decision on charging Jackson and that he did not know what effect a criminal charge would have on his testimony regarding McBride and Smith.

Shue admitted that Jackson had not been subpoenaed, but defense counsel for McBride volunteered that Jackson was currently waiting in his office. The judge again remarked that he did not believe that a transcript of the September bond hearing was necessary to try the case. Shue stated that he was absolutely surprised by Jackson’s testimony at the bond hearing. He further advised the judge, in arguing that no prejudice would occur by a continuance, that the two defendants were out on bond and that there were approximately 187 days left to run under the speedy-trial rule.

Both defense counsel then advised the judge that they were ready for trial. Shue stated that he told Ms. Lee, the case coordinator, that the State was not ready for trial. Ms. Lee stated to the court that she instructed Shue that a continuance would not be granted and that she did not know whether he had subpoenaed his witnesses for trial or not. Shue announced that he was not prepared to go to trial and asked for a hearing on the matter. The court responded: “Well, just because you file a motion [for continuance] doesn’t mean the Court’s going to grant it.”

Deputy prosecutor Johnson reiterated that Shue had told Ms. Lee the State was not ready for trial. Johnson added that this is unavoidable, since the transcript for the bond hearing had not been prepared and since the State needed to know with certainty what Jackson said at that time. Defense counsel for Smith interjected that the audio tape of the bond hearing had always been available to the deputy prosecutors and that they were using the perjury charge as leverage and to “hold that over [Jackson’s] head.” Shue denied that.

The judge denied the motion for continuance. He explained that a jury trial the previous day had gone until eight o’clock at night so that the McBride/Smith trial could commence and that he was feeling the pressure of the speedy-trial rule on other pending trials based on a list of cases sent over by the prosecutor’s office. The judge concluded that the trial would proceed and that Jackson should be brought to the courtroom.

Prospective jurors were then sworn in, the charges were read, and the judge gave the potential jurors initial instructions. Voir dire of the jury pool took place and anticipated witnesses were brought in. At that point, the deputy prosecutors asked to approach the bench and in a sidebar conference out of the jury’s hearing advised the judge that they had no witnesses. The judge asked if the State was going to nolle pros the case, and deputy prosecutor Johnson asked again for a continuance. The judge replied that he had already ruled against a continuance and it was up to the State either to nolle pros the case or go forward. The judge added that he was going to submit the matter to the Arkansas Committee on Professional Conduct.

This discussion followed:

Mr. JOHNSON: That’s fine, your Honor. But the Court cannot compel us to announce ready when we’re not ready.
The COURT: You have an alternative.
Mr. JOHNSON: We’re not prepared to nolle pros.
The Court: You know you have a year to refile.
Mr. Johnson: I do, but that subjects these defendants to being rearrested and —
The COURT: I’m going to order you to get your witnesses over here.
Mr. JOHNSON: We haven’t subpoenaed the witnesses.
The Court: Why not?
Mr. JOHNSON: For the reasons we stated previously.
The COURT: We’re going to trial. Do you understand that?
Mr. PROCTOR: I move to dismiss, your Honor.
Mr. CLOUETTE: I would join in that.
THE COURT: The Court’s not going to do that. You get the witnesses over here or be held in contempt of court on your part.
Mr. JOHNSON: May I make a record?
The Court: No.
Mr. JOHNSON: We’ve not issued any subpoenas. The Court doesn’t have the power to order them to appear when there’s no subpoenas that exist.
The COURT: I said for you to get them over here. You know who your witnesses are.
Have I told you that I was not going to go forward with this trial today?
Mr. JOHNSON: No, sir, you have not.
The Court: Is it your understanding that you decide when a case is tried in this court?
Mr. JOHNSON: No, sir, that’s not my understanding. My understanding is —
The Court: Why didn’t you have the witnesses here?
Mr. JOHNSON: It’s my understanding — first of all, your Honor, we tried to — we did move —
The COURT: I’m not saying that. I’m not saying that. Why don’t you have your witnesses here and you know this case was set for trial?
Mr. JOHNSON: Because we’re not ready to go forward today.
The COURT: Then if you’re not ready to go forward on the trial, why aren’t you nolle prossing the case:
Mr. JOHNSON: Because we have a year in which to take a case to trial. It’s only been six months.
THE COURT: That’s not your decision to make, how we do the docket in here.
Mr. JOHNSON: I suppose the Court has other remedies; but I’m not going to move to nolle pros it.
The Court: I’m going to call Mr. Jegley [the prosecuting attorney] on this one.
(THEREUPON, in the presence and hearing of the jury, the following proceedings occurred.)
THE COURT: Ladies and gentlemen of the jury, you all may stay here for a moment, we have a problem.
(THEREUPON, court was in recess for approximately five minutes, then the following proceedings occurred.)
The Court: Mr. Shue, Mr. Johnson.
(THEREUPON, counsel for the State and Defense approached the Bench, where the following proceedings occurred out of the hearing of the jury.)
The COURT: Now, for purposes of the record, you’re saying that you’re not going to call any witnesses?
Mr. JOHNSON: Your Honor, for the record, what I’m saying is that we cannot announce ready for trial today.
The COURT: You’re not going to call any witnesses?
Mr. Shue: We can’t.
The Court: Both of you are in contempt of court. Go with the bailiff.
Mr. JOHNSON: May I make a record on that your Honor?
The Court: No.
Mr. JOHNSON: You’re denying me the opportunity to make a record?
The Court: Yes.
Mr. JOHNSON: You’re arresting me and not giving me the opportunity to make a record?
The Court: Yes.
Mr. JOHNSON: May the record reflect that I asked to make a record on this particular point and I was denied by the Court.

After these events, the judge advised the jury about what had occurred with respect to the continuance motion, its denial, the lack of the deputy prosecutors’ preparation for trial, and the refusal of the State to nolle pros. The court concluded by saying: “But there has to be some order established as to who’s running this court. And the prosecutor’s office is not running the First Division of Pulaski County Circuit Court. And they can be let out when they decide that they’re going to subpoena witnesses and get those people here for a trial.”

The deputy prosecutors were taken to jail and immediately had the Attorney General’s Office file the petition which is before us today. We granted a temporary stay of the circuit court’s contempt order by per curiam order dated November 16, 2000, and asked for simultaneous briefs on the merits of the petition. On November 20, 2000, the judge entered an order holding Shue and Johnson in criminal contempt pursuant to Ark. Code Ann. § 16-10-108 (Repl. 1999), for failing to go forward with the trial after the jurors had been sworn in and further for refusing to nolle prosequi the case.

As posited to us by the deputy prosecutors, the issue for this court to resolve is whether the circuit judge’s contempt order should be quashed. First, they claim that their conduct was not contemptuous. Second, they argue that even if their conduct was contemptuous, summary imposition of contempt and the meting out of punishment were not proper, and another judge should determine the matter after notice and an opportunity to defend.

We begin by discussing our standards for the issuance of either a writ of certiorari or a writ of habeas corpus. We have recently said that a writ of certiorari is appropriate when it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion by the trial judge and when there is no other remedy. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000); Arkansas Pub. Defender Comm’n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000). We have further said that certiorari is available in the exercise of our superintending control over a tribunal, when that tribunal is proceeding illegally and where no other mode of review is provided. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994).

This court has stated that even though a writ of certiorari may be requested, we have determined to review ordinary contempt proceedings under the rules and statutes pertaining to appeals and not by certiorari. See Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985). Nevertheless, in Bates v. McNeil, supra, we distinguished Frolic Footwear and stated that the remedy of an appeal was useless when contemnors had to remain in jail pending a show-cause hearing. In that case, we held that certiorari was the proper remedy. The same is true in the instant case. The remedy of direct appeal would be useless to the deputy prosecutors. Without this court’s temporary stay, they might still be incarcerated. As in Bates v. McNeil, supra, we hold that here certiorari is the proper remedy.

A writ of habeas corpus is granted for a person “detained without lawful authority” or “imprisoned when by law he is entitled to bail.” Ark. Code Ann. § 16-U2-103(a) (1987). We have held that a person detained without lawful authority occurs when the commitment order is invalid on its face or the circuit court lacked jurisdiction to enter the order. Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997) (per curiam), Mitchell v. State, ex rel Henslee, 233 Ark. 578, 346 S.W.2d 201 (1961). In the case before us, we cannot say that the circuit judge’s contempt order was invalid on its face or that the judge lacked jurisdiction to enter the order.

We turn then to an analysis of whether Judge Humphrey’s contempt order constituted a plain, manifest, clear, and gross abuse of discretion and, thus, whether certiorari lies. The Arkansas Constitution gives the General Assembly the power to regulate by law punishment for contempt “not committed in the presence or hearing of the courts, or in disobedience of process. Ark. Const, art. 7, § 26. Accordingly, our criminal contempt law is first found in our statutes, which read in part:

16-10-108. Contempt.

(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following, acts, and no others:
(3) Willful disobedience of any process or order lawfully issued or made by it[.]
(b)(1) Punishments for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court. However, the fines shall in no case exceed the sum of fifty dollars ($50.00) nor the imprisonment ten (10) days.
(c) Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his defense.

Ark. Code Ann. § 16-10-108 (Repl. 1999).

Where a person is held in contempt for failure or refusal to abide by a judge’s order, the reviewing court does not look behind the order to determine whether it is valid. McCullough v. State, 339 Ark. 288, 5 S.W.3d 38 (1999); Etoch v. State, 332 Ark. 83, 964 S.W.2d 798 (1998); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). The fact that a decree or order is erroneous does not excuse disobedience on the part of those who were bound by its terms until reversed. Carle, 311 Ark. at 480, 845 S.W.2d at 9 (quoting Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906)). However, if the contemnor was making a legitimate and successful challenge to the validity of the order, we may look beneath the order and recognize substantive error as a defense to contempt. Id. On the other hand, if the contemnor merely refused to comply with an order that was clearly within the judge’s jurisdiction and power, we will not look behind that order. Carle, 311 Ark. at 481-82, 845 S.W.2d at 10. This court has stated that an act is contemptuous if it interferes with a court’s business or proceeding, or reflects upon the court’s integrity. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).

Contempt is divided into criminal contempt and civil contempt. The purpose of criminal contempt is to preserve power, vindicate the dignity of the court, and punish for disobedience of the court’s order. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). Civil contempt is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties. Id. at 139, 752 S.W.2d at 276; see also Hicks v. Feiock, 485 U.S. 624 (1988). This court has said: “The substantive difference between civil and criminal contempt often becomes blurred.” Fitzhugh, 296 Ark. at 139, 752 S.W.2d at 276.

A judge’s power to punish for criminal contempt is not limited by § 16-10-108. The power to punish for contempt is inherent in the courts, and it goes beyond the power given to judges by statute. Carle, 311 Ark. at 483, 845 S.W.2d at 11; see also Hodges, 321 Ark. at 11, 901 S.W.2d at 3; Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984) (court held that inherent power to punish for contempt resides in all courts, includes the right to inflict reasonable and appropriate punishment, and cannot be removed by enactment of laws to the contrary). Moreover, this court has specifically interpreted § 16-10-108(a)(3) (willful disobedience of a judge’s order) as not being a limitation on the inherent power of the court to impose a punishment for disobedience of the court’s process or order in excess of the statutory provisions. See Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). Further, before a person may be held in contempt for violating a judge’s order, the order alleged to be violated must be definite in its terms as to duties imposed, and the command must be express rather than implied. Hodges, 321 Ark. at 17, 901 S.W.2d at 6; see also McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989) (court reversed contempt finding that the trial court did not issue any orders in definite terms as to the duties imposed upon alleged contemnor). When a party does all that is expressly required of him, it is error to hold him in contempt. Hodges v. Gray, supra.

The deputy prosecutors raise several points in support of their position that the judge’s contempt order must be quashed:

• They contend that the circumstances of this case did not warrant contempt in order to preserve the dignity of the court or to punish disobedience. The need to exercise the contempt power was not plain and unavoidable.
• It was impossible for them to comply with the judge’s order to proceed with the trial.
• The judge’s contempt order amounts to punishment for seeking a continuance.
• The judge was not explicit as to what order the deputy prosecutors had violated.
• The judge was without the authority to order them to nolle pros the first-degree murder charges.
• Another judge should decide the contempt matter after a show-cause notice and opportunity to defend.

We view the essential question before us as whether Judge Humphrey acted within the bounds of his discretion in holding the deputy prosecutors in contempt for not being ready for trial on the ordered date. A case, albeit a civil one, that bears much similarity to the case at hand is Carle v. Burnett, supra. In Carle, the attorney who became the contemnor represented the husband in a divorce action. The husband had also been charged criminally for beating his wife. As a result, a civil and a criminal action involving the husband were both proceeding at the same time. The attorney moved for a continuance of the divorce trial three times on multiple grounds, including the ground that a key witness was not available. The third motion was made three days before trial. All continuance motions were denied. On the date of the divorce trial, the husband’s attorney refused to proceed with the trial and moved to withdraw as counsel. The sitting judge cited the attorney for contempt, and because a motion for his recusal was pending, he recused. A second judge was appointed to hear the contempt matter, and after a hearing, he sentenced the attorney to ninety days in jail for criminal contempt. The case was appealed to this court, and we affirmed the contempt finding because it was based on the attorney’s failure to comply with a court order to go to trial. We noted that this was contempt in front of the judge and that the judge could punish the attorney under his inherent power and not be bound by the penalty limitations of § 16-10-108(b)(l). Though we held that the contempt citation was valid, we also held that the punishment of ninety days was unduly harsh, and we modified the penalty to five days and a fine of $500.

In the case before us, trial had been set since August 14, 2000, which was almost three months before the trial date, and no continuance had been granted. Despite this, the prosecutors appeared on the day of trial unprepared and without any witnesses. This conduct appears to this court to be in direct violation of the judge’s scheduling orders. Surely, the mere filing of a motion for a continuance does not mean that the prosecutors are absolved from all trial preparation. See Florence v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996) (mere filing of a motion does not continue a jury trial). By a rule of criminal procedure, this court has emphasized that control of the trial calendar is a matter that rests solely with the trial judge who shall provide for the scheduling of cases upon the calendar. Ark. R. Crim. P. 27.2. The scheduling of cases, we have said, is tantamount to a direct order of the court. Rischer v. State, 307 Ark. 429, 821 S.W.2d 25 (1991). Moreover, we have said that the trial judges of this state have an obligation to assure that their courts are conducted in an orderly and correct manner. See, e.g., Florence v. Taylor, supra.

The prosecutors correctly argue that a circuit judge cannot order a prosecutor to nolle pros a case. That authority resides solely within the bailiwick of the prosecutor. See Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977) (neither trial court nor appellate court may compel a nolle prosequi). But that fact does not minimize the essential point that the deputy prosecutors violated the court’s order in that they were not ready for trial on the appointed day. Nor can we give credence to the prosecutors’ argument that they were not explicitly aware of what court order they were violating by not being ready for trial. They knew that trial was scheduled for November 15 and 16, 2000, and that a continuance had not been granted. They also had known about the bond hearing and Shontae Jackson’s recanting of his testimony for almost two months. Yet, they had not made a decision on whether to charge him with perjury, though they had had ample time to do so. The judge, under these circumstances, could certainly view the prosecutors’ conduct as direct interference with the court’s business and as willful disobedience of a court order.

The fact that the contemnors in this case were prosecutors and not defense counsel or attorneys in a civil proceeding affords no protection. Prosecuting attorneys are clearly subject to contempt citations to the same extent as other attorneys. See, e.g., State v. Hooker, 763 So.2d 738 (La. Ct. App. 2000) (held district attorney in contempt of court for not releasing defendants; remanded for consideration of lower fine); State v. Casey, 2000 W.L. 166112 (La.), cert denied, 121 S. Ct. 104 (Oct. 2, 2000) (assistant district attorney held in contempt for willfully disobeying court order to timely file Sentence Review Memorandum; $250 fine affirmed); In Re McGinty, 30 Ohio App. 3d 219, 507 N.E.2d 441 (1986) (assistant county prosecutor deliberately interfered in private conversation between defense counsel and client and attempted to intimidate defense counsel, all in judge’s presence; fine of $100 affirmed); People v. Endress, 245 N.E.2d 26 (Ill. App. 1969) (state’s attorney held in contempt and fined $100 for failure to comply with pretrial discovery order; order confirmed unless state’s attorney complies).

It is true that in the instant case had the prosecutors called their first witness and otherwise been unprepared and lost the case that double jeopardy would have attached and retrial would have been precluded. See Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998). It is also true that defense counsel moved to dismiss the criminal charges and the circuit judge could have done that but refused to do so. But neither of those circumstances militates against a trial judge’s authority to hold a prosecutor in contempt for not being ready for trial.

Under facts similar to the case at hand, the Colorado Supreme Court affirmed a criminal contempt order against an assistant district attorney who refused to proceed with trial after the trial judge ruled against him on an evidentiary matter. Turner v. District court, 188 Colo. 146, 533 P.2d 498 (1975) (en banc). In Turner, the trial judge suppressed the defendant’s incriminating statement to a police officer on the day of, but before, commencement of a jury trial. The assistant district attorney asked for a continuance of the trial for an interlocutory appeal, and this was denied. The trial judge began voir dire of the jury panel. The assistant district attorney advised the trial judge that the judge did not have the power to deny his motion for continuance, and the district attorney refused to proceed with the trial. The trial judge then held the assistant district attorney and his trial assistant in contempt, fined them, and dismissed the case. In affirming the trial court, the Colorado Supreme Court said:

The jury had been empaneled and had been interrogated by the court at the time the district attorney refused to proceed. The trial judge had to determine whether he would surrender his control over the proceedings and allow the district attorney to determine the trial procedures which were going to be followed in this case. The district attorney did not seek to dismiss his case against Montoya, but sought to test the court’s authority to control the course of the trial. The acts complained of occurred in the presence of the court and effectively stopped the trial of the case. This contemptuous conduct of the district attorneys cannot be condoned. Pittman v. District Court, 149 Colo. 380, 369 P.2d 85 (1962).

533 P.2d at 500-01.

In the case at hand, the deputy prosecutors also did not nolle pros the case because of their lack of preparation and failure to subpoena witnesses but sought to test the court’s authority to control the course of proceedings. This, in the words of the Colorado Supreme Court, cannot be condoned. We deny the petition for writ of certiorari on the issue of whether a citation for contempt was appropriate in this case.

The State in its brief directed our attention to two contempt cases involving attorneys who sought continuances, but they are not on point. See Atkinson v. Lofton, 311 Ark. 56, 842 S.W.2d 425 (1992); Clark v. State, 291 Ark. 405, 725 S.W.2d 550 (1987). In Atkinson, there was no evidence in the record that defense counsel would have refused to proceed to trial had his continuance motion been denied. In Clark, we reversed a contempt order where the trial judge held a lawyer in contempt for filing a motion for the judge to recuse. The Clark fact situation does not approximate the facts of the instant case.

The next question is whether Judge Humphrey properly exercised his authority in assessing punishment against the deputy prosecutors. The deputy prosecutors urge that the judge should have recused and that, in any event, they were entitled to notice and an opportunity to be heard. We disagree. The prosecutors filed no motion for Judge Humphrey to recuse. In addition, they argued their position in favor of a continuance and against proceeding to trial fully and comprehensively before the judge. The issue was one of proceeding to trial which the prosecutors refused to do in direct contravention of the trial judge’s scheduling order. This occurred in front of the judge and under our statutes and under the judge’s inherent authority punishment could summarily be meted out. See Ark. Code Ann. § 16 — 10—108(c) (Repl. 1999); Carle v. Burnett, supra.

We do question, nonetheless, the severity of the punishment. Judge Humphrey provided for no limit on the jail time to be served. Clearly, unlimited jail time is unduly harsh and constitutes an unreasonable punishment. We modify the contempt punishment to time already served in jail, and we assess a $100 fine against each deputy prosecutor. See Carle v. Burnett, supra.

There are two remaining points that must be addressed. After citing the deputy prosecutors for contempt, the judge told the jury that the prosecutors could be let out when they decide to subpoena witnesses for trial. That suggests remedial or civil contempt. But the judge had already declared a mistrial, of course, and there was no way the matter would be tried on November 15 and 16, 2000. Also, the docket sheet prepared for the deputy prosecutors on November 15, 2000, reflects criminal contempt, and in his November 20, 2000 order, the judge referred to the contempt as criminal contempt. We have already alluded to the fact that often the two contempts blur. See Fitzhugh v. State, supra. We conclude that the judge’s entered order controls and that the contempt was criminal contempt. We do not consider as pivotal the fact that the judge described the deputy prosecutors’ incarceration in his explanation to the jury as more in the nature of civil contempt. What .is pivotal is that the deputy prosecutors disobeyed a court order scheduling the matter for trial, and their punishment, therefore, was appropriate.

We would be remiss if we did not comment on the judge’s handling of the contempt matter. It would have been eminently preferable for the judge to have declared a mistrial, dismissed the jury, and then assessed a specific punishment against the deputy prosecutors for criminal contempt. In the heat of the moment, this was not done.

The dissent argues that the deputy prosecutors’ conduct was not contemptuous, but that is not the case. As already related, their refusal to proceed with trial on the ordered date most certainly interfered with the business or proceeding in the judge’s court. See Hodges v. Gray, supra. Moreover, it was willful disobedience of the judge’s order. Fitzhugh v. State, supra. There were ways the deputy prosecutors could have resolved the perjury question relating to Shontae Jackson, and they simply were not pursued. Were we to countenance the deputy prosecutors’ actions in this case, control of trial settings and the management of a judge’s docket would be transferred from the court to the litigants. That cannot be. A contempt sanction is the authority available to a trial judge for maintaining order and respect within the courtroom. Carle v. Burnett, supra. Furthermore, this is not a case where the judge cited the deputy prosecutors for contempt for filing a continuance motion, as the dissent would have it, but a case where they were cited for refusal to proceed to trial. Refusal to proceed to trial was not the issue in the case cited by the dissent. See Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986).

The dissent also claims that the deputy prosecutors’ due process rights were violated in that they were denied the right to be heard. However, the deputy prosecutors amply voiced their reasons for not being ready for trial, as previously set out in this opinion, and made their position fully known to the trial judge. The judge, nevertheless, disagreed and found their conduct to be contemptuous. He punished them summarily, which he had every right to do. See Ark. Code Ann. § 16-10-108(c); Hodges v. Gray, supra.

Conclusion

We deny the petition for writ of certiorari with regard to the contempt citation, but grant it with regard to the punishment and modify the punishment to jail time already served and a fine of $100 to be assessed against each deputy prosecutor. A copy of this opinion will be sent to the Arkansas Professional Conduct Committee.

Arnold, C.J., and Glaze, J., dissent.

Tom Glaze, Justice,

dissenting. The majority opinion concludes that deputy prosecutors, John Johnson and Jay Shue, were guilty of criminal contempt. Nowhere in the record is it revealed that they impugned the trial court’s dignity or that court’s dignity needed vindicating. What the record does show is that the learned trial judge lost his judicial temperament, and should have voluntarily recused, so another judge could impartially decide the criminal contempt issue. The record is punctuated with the judge’s impatience and short fuse in the proceeding below.

The judge’s obvious frustration grew from the State’s filing a motion of continuance five days before the trial date, November 15, 2000. At a pretrial hearing on November 15, the judge asked the deputy prosecutors why they were not ready for trial. The prosecutors respectfully tried to explain. Mr. Shue reminded the judge that, at a September 19, 2000, bond hearing, they had learned one of the State’s essential witnesses, Shontae Jackson, had given a sworn statement which conflicted with two statements he had previously given the police. The prior statements implicated defendants Christopher Lee McBride and Nicolus N. Smith in a murder, but his bond-hearing testimony apparently recanted his earlier statements.

On the same day of the bond hearing, Mr. Shue asked the judge’s court reporter for a certified transcription of the four-hour hearing and was told she could not have the transcript ready until January of 2001 — after the date set for McBride’s and Smith’s murder trial. Shue and one of the defense attorneys, Willard Proctor, presented this transcript delay problem to the judge, who stated, “We’d take [it] up at the appropriate time.” Thus, at this stage of the criminal proceeding, the trial court’s court reporter was on record as not being able to transcribe the four-hour bond hearing in time for a trial which was to take place in about two months, and the trial court had refused to discuss or resolve the State’s problem until the “appropriate time.” Defense counsel readily knew that the State was trying to obtain Jackson’s transcribed testimony, and he stated he understood the problem and would not object to the State’s request for continuance. The foregoing facts reveal the trial court, its personnel, and defense counsel knew of the prosecutors’ plight, and the judge could have resolved this problem well in advance of trial.

In addition, the prosecutors had some real legal issues lurking if they had not attempted to obtain Jackson’s transcribed, certified statement. One, while the majority suggests the prosecutors could have listened to the tape of the bond-hearing proceeding, the State would need the certified statement for impeachment purposes; if it discovered Jackson had lied, they would also need the statements before filing perjury charges against Jackson. Second, once the State was forced to call its first witness without knowing whether Jackson’s testimony would hurt or help its case-in-chief, double jeopardy would attach and the defendants could not be retried even if the State later discovered Jackson agreed to offer false testimony favoring the defendants. In short, it would have been foolish for the State to proceed in the murder case against the defendants without having Jackson’s sworn statement transcribed and certified by the proper court official.

After deputy prosecutors Shue and Johnson offered explanations why they could not proceed to trial and call their first witness, the judge became incensed, disallowing the prosecutors to make a record. The judge’s remarks are as follows:

The Court: The Court’s not going to do that. You get the witnesses over here or be held in contempt of court on your part.
Mr. JOHNSON: May I make a record?
The Court: No.
4= * *
The COURT: Now, for the purposes of the record, you’re saying that you’re not going to call any witnesses?
Mr. JOHNSON: Your Honor, for the record, what I’m saying is that we cannot announce ready for trial today.
The Court: You’re not going to call any witnesses?
Mr. Shue: We can’t.
The COURT: Both of you are in contempt of court. Go with the bailiff.
Mr. Johnson: May I make a record on that your Honor1
The Court: No.
Mr. JOHNSON: You are denying me the opportunity to make a record?
The Court: Yes.
Mr. JOHNSON: You’re arresting me and not giving me the opportunity to make a record?
The Court: Yes.
Mr. JOHNSON: May the record reflect that I asked to make a record on this particular point and I was denied by the Court. (Emphasis added.)

The present case is not the first one where a trial judge has shown personal frustration over whether a pretrial motion was either vexatious or filed for purposes of delay. In Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986), the court, quoting Johnson v. State, 87 Ark. 45, 112 S.W. 143 (1908), stated the following:

The mere filing and presentation of a motion or repeated motions which are thought to be for the purpose of vexation or delay, do not constitute contempt of court. The court may, in the exercise of its inherent powers, strike them from the files because they are not presented to subserve the ends of justice, and are merely for vexation or delay, but, unless they are presented in a contemptuous or disrespectful manner, or unless they contain matter which of itself constitutes contempt, the court cannot treat them as contemptuous merely because they are thought to be for vexation or delay. Take, for instance, motions for continuance or change of venue. The court may well treat repeated motions of this kind as dilatory in their purpose, and refuse to hear them; but, if they are presented in a respectful manner, it shows no contempt of court, and cannot be so treated, unless they involve some violation of the court’s order, so as to amount to an obstruction of the administration of justice. (Emphasis added.)

The record fails to show Shue or Johnson filed the State’s continuance motion for the purpose of obstructing the administration of justice. In the present case, the deputy prosecutors filed only one motion for continuance, and as can be seen from the record, they were respectful at all times in making their remarks and responses in support of their motion to the judge. Here, the trial judge tried to compel the prosecutors to go to trial or to nolle pros the case against the defendants. As the majority opinion recognizes, a judge cannot order a prosecutor to nolle pros a case. Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977). Nor, it can be said, can a prosecutor “run” a court’s docket as the judge expressed and believed was happening in this case. The prosecuting attorney and the trial court each have respective roles and authority to exercise to see that the administration of justice is achieved and a fair trial is obtained by the state and the defendants. The facts and record before this court reflect that, in this particular case, the prosecutors had very good reasons for requesting a continuance, they did it respectfully and timely, giving the judge sufficient time to avoid the cost of summoning a jury. The judge knew two months ahead of trial that his court reporter had problems getting Jackson’s testimony so the State could utilize it in preparation for and at trial, but he chose to delay resolving the matter until the day of trial. As pointed out, one of the defense counsel understood the State’s dilemma and, with the slightest bit of cooperation between the prosecutors and the judge, this entire contempt proceeding could have been avoided. While the majority opinion reads that the deputy prosecutors failed to pursue resolving Jackson’s possible pegured testimony problem, that simply is not true. As discussed above, they tried to obtain the necessary transcript of Jackson’s testimony from the court reporter as soon as they learned that Jackson made such a statement, they unsuccessfully approached the judge for assistance and a ruling on the issue, and they finally requested a timely continuance to permit them the opportunity to resolve the matter. In this latter instance, it was the trial judge’s case coordinator, not the judge, who conveyed the prosecutor’s motion would be denied without a hearing. In any event, the judge’s decision to hold the deputy prosecutors in criminal contempt is erroneous and unsupported by the record.

The foregoing provides reasons alone for granting the deputy prosecutors’ petition for writ of certiorari, but it is also important to at least mention how the judge’s decision to impose criminal contempt sanctions violates the prosecutors’ due process rights. The contempt power “does not provide the trial court with carte blanche authority to issue orders of body attachment, detention, and custody, while ignoring portions of statutory provisions relating to contempt proceedings, and without affording procedural protections of due process of law to the parties being placed in arrest and custody.” Bates v. McNeil, 318 Ark. 764, 768-69, 888 S.W.3d 642, 645 (1994). The United States Supreme Court has also spoken on this subject, holding in Taylor v. Hayes, 418 U.S. 488 (1974), that “[e]ven where summary punishment for contempt is imposed during trial, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocation.” Taylor, 418 U.S. at 498 (citing Groppi v. Leslie, 404 U.S. 496 (1972)) (internal quotations omitted). Judge Humphrey flatly denied Johnson and Shue the right to make a record and refused to afford them a hearing. The judge also denied the request of deputy prosecutor Tonia Goolsby to stand in for Johnson and Shue, telling her that the two would “have to stand before the court themselves.”

In conclusion, then, I believe not only that the actions of Johnson and Shue did not constitute contempt, but also that their due process rights were neglected in the process. For these reasons, I dissent.

ARNOLD, C.J., joins this dissent.

       In his November 20, 2000 order, the trial judge did allude to a hearing to be held on November 16, 2000, on the contempt matter, but that hearing did not take place due to this court’s temporary stay of the judge’s order that the deputy prosecutors be incarcerated.