text:
    Jerry L. EDMOND v. STATE of Arkansas
    CR 01-1050
    85 S.W.3d 551
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      David Mark Gunter, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Appellee, by and through counsel Mark Pryor, Attorney General, and Brad Newman, Assistant Attorney General, has filed a Motion to Dismiss Appeal. On July 11, 2002, this court granted the State’s Motion for Compliance with Ark. Sup. Ct. R. 4-3(h) and directed appellant to file his brief by August 10, 2002. To date no brief has been filed nor has appellant filed a motion for an extension of time in which to file his brief.

On July 20, 2002, this court entered a Per Curiam in this matter ordering David Mark Gunter, counsel for Appellant Jerry L. Edmond, to appear before us on June 27, 2002, to show cause why he should not be held in contempt for failing to file his client’s brief as previously ordered. On July 5, 2002, this court entered a Per Curiam in this matter as a result of the June 27, 2002 hearing, holding Mr. Gunter in willful contempt of this court and ordered him to pay a $250.00 fine.

Based on the circumstances described above, we order Attorney Gunter to file the Appellant’s brief immediately, and further order that he appear before this court on Thursday, October 10, 2002, at 9:00 a.m., to show cause why he should not be held in contempt for failing to file his client’s brief as ordered.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Androus HALL v. The Honorable L.T. SIMES, Judge
    CR 00-465
    85 S.W.3d 509
    Supreme Court of Arkansas
    Opinion delivered September 25, 2002

      Pro Se Petition for Writ of Mandamus; granted.

      Petitioner, pro se.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.
   Per Curiam.

On April 18, 2000, Androus Hall filed a petition for writ of mandamus in this court contending that the Honorable L. T. Simes, Circuit Judge, had failed to act within a reasonable time on a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37 that was filed in his court on December 11, 1998. On April 20, 2000, Judge Simes was contacted by mail to ascertain the status of the Rule 37 petition. There was no response to the letter, and no response to the mandamus action was filed by the Attorney General. The compliance reports filed by Judge Simes with the Administrative Office of the Courts for the periods since the Rule 37 petition was filed made no mention of the Hall petition until the report filed in January 2002. The compliance reports since that time have not mentioned the Hall petition, but instead have reported no cases under submission for over ninety days. It is thus not clear whether Judge Simes considers the Hall matter to be “under submission.”

On July 11, 2000, Judge Simes was contacted by mail again about the status of the Rule 37 petition. On August 11, 2000, a copy of an order entered by Judge Simes was received stating that the Rule 37 petition had been set for hearing on November 17, 2000. On December 12, 2000, Judge Simes was contacted by mail inquiring as to status of the matter and responded by return letter that an attorney had been appointed to represent petitioner Hall and that “this matter is now moving forward.” On January 3, 2001, a copy of an order entered December 21, 2000, was received which provided that a second hearing would be scheduled so that Hall’s attorney would have time to acquire the necessary transcripts and research the case.

On January 5, 2001, a letter was received from the attorney appointed to represent Hall in which counsel said that he was unable to locate a Rule 37 petition filed in 1998 in the court’s file but there was an amended Rule 37 petition filed April 7, 1999, and other pleadings filed by Hall after that date pertaining to the Rule 37 proceeding. On March 20, 2001, Judge Simes was contacted by mail regarding the status of the Rule 37 proceeding. On April 24, 2001, Judge Simes forwarded a copy of an order relieving counsel of responsibility for representing Hall.

On May 9, 2001, a letter was received from Judge Simes stating that he allowed counsel to withdraw because counsel was associated with the public defender and thus could not receive payment for his services as counsel. Judge Simes also expressed concern for whether payment for legal services could be paid to a private attorney if one was appointed to represent Hall. He said that he would immediately communicate with the Administrative Office of the Courts and seek input on whether a private attorney could be paid and that he would keep this court and the Office of the Attorney General informed on the status of the Rule 37 proceeding. On October 11, 2001, a deputy attorney general reported that he had contacted Judge Simes’s office by telephone and urged prompt action on the pending Rule 37 matter. No further communication was received from Judge Simes, and on October 26, 2001, Judge Simes’s office was contacted by telephone regarding the matter. The case coordinator forjudge Simes said that an order would likely be entered that day and forwarded here. On October 30, 2001, the telephone call was confirmed with a certified letter asking that the final order be forwarded here. There was no response to the letter, and on November 7 and 9, 2001, messages were left on the court’s answering machine requesting the order. No response to the messages was received, and the circuit clerk reported on November 13, 2001, that the Hall order had not been entered. On November 20, 2001, Judge Simes entered an order setting the Rule 37 petition for hearing on December 3, 2001. On December 17, 2001, a letter was sent requesting a copy of the final order if one had been entered. There was no response to the letter, but on January 17, 2002, an order was entered setting the Rule 37 petition for hearing on May 24, 2002. On July 16, 2002, inquiry was made again to Judge Simes on whether the final order had been entered. There was no response to that letter and no response to another letter written August 26, 2002.

While we have consistently recognized that the independence of the bench in our judicial system requires that the trial judge control his docket and the disposition of matters filed, this is not to say that a matter should be delayed beyond a time reasonably necessary to dispose of it. Urquhart v. Davis, 341 Ark. 653, 19 S.W.3d 21 (2000); Eason v. Erwin, 300 Ark. 384, 7810 S.W.2d 1 (1989). The Code of Judicial Conduct, Canon 3 (B)(8), requires that a judge dispose of all judicial matters promptly. As Judge Simes has not entered a final order in the Hall matter, which has been pending since December 11, 1998, and has not consistently reported its pending status to the Administrative Office of the Courts, and the Attorney General has not explained the reason for the delay in acting, we must conclude that there is no good cause to justify the delay in ruling on the Rule 37 proceeding instituted by Hall in the Circuit Court of Phillips County.

The petition for writ of mandamus is granted. We direct that Judge Simes enter a order on Hall’s Rule 37 pleadings within seven days of the date of this decision.

A copy of this opinion will be forwarded to the Arkansas Judicial Discipline and Disability Commission.

Petition granted.

       Upon contacting the circuit clerk, it was determined that an order had been entered June 10, 2002, stating that the Hall case and six others were being continued from the May term of court until September 16, 2002, as a result of extraordinary docket congestion.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Angel Chaves FLORES a/k/a Andres Garcia Rivera v. STATE of Arkansas
    CR 01-787
    85 S.W.3d 896
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002
    [Petition for rehearing denied November 7, 2002.]

      W. Gary Kerman, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Angel Chaves Flores appeals the trial court’s denial of his motion for new trial alleging ineffective assistance of counsel. Flores was arrested and charged with murder in the second degree of his wife Lucila Flores and battery in the second degree of Nicolas Reyes. An amended felony information was filed that accused Flores with the crimes of murder in the first degree and battery in the second degree. Flores asserts three errors by trial counsel that he alleges required the trial court to find he was entitled to relief under Rule 37. More particularly, Flores asserts ineffective assistance of counsel in that: 1) trial counsel’s performance was deficient in that he was not functioning as the counsel guaranteed by the Sixth Amendment as evidenced by his acquiescing to Flores being tried to a jury while attired in distinctive jail clothing; 2) trial counsel’s performance was deficient in that he was not functioning as the counsel guaranteed by the Sixth Amendment as evidenced by his acquiescing to Flores being tried to a jury while physically restrained in leg irons; and, 3) trial counsel’s performance was deficient in that he abdicated his duty as counsel as guaranteed by the Sixth Amendment thus fading to subject the State’s case to an adversarial testing and thereby violating Flores’s right to a fair trial. We find reversible error and remand this case for a new trial.

Facts

On June 22, 2000, the police were called to the Floreses’ home after a 911 call to report a domestic disturbance. When the officers arrived, they were met at the door by two small children. The officers could see Flores in the kitchen and as he approached them, they noticed blood on his clothing. One of the officers entered the house and found the victim, Lucila Flores, who was still alive, lying motionless in a bedroom, and there were blood-soaked tissues on the floor. The officer also observed that the phone cord in the room had been cut.

At the hospital, the victim told the treating physician that Flores had beaten her. She had a severely damaged liver and injuries on her buttocks, right side, and back. Additionally, there was evidence of strangulation. The amount of blood that the victim lost was too extensive to save her life, and her cause of death was multiple blunt-force injuries.

At the arraignment in Washington County, Arkansas, Flores was represented by trial counsel. An amended felony information was filed accusing Flores with the crimes of murder in the first degree and battery in the second degree. Trial counsel continued to represent Flores during the jury trial.

During voir dire of the jury panel and during the entire jury trial Flores was dressed in Washington County, Arkansas, jail clothing, which consisted of a black-and-white striped pullover shirt and black-and-white striped trousers. Trial counsel did not file a pretrial motion requesting Flores to appear at trial in civilian clothing. Upon the jury panel viewing Flores so dressed, trial counsel did not move to allow Flores to change into civilian clothing at any time during the trial. Trial counsel did not object to Flores’s appearance in jail clothing at any time during the trial, nor did he move to allow Flores to change into civilian clothing at any time, although Flores’s civilian clothing was brought to the courthouse. Trial counsel did not move for a mistrial, nor did he move for the trial judge to admonish or instruct the jury regarding the clothing.

During voir dire of the jury and during the entire jury trial Flores was restrained in leg irons. Flores was called as a witness in the jury trial and walked from the defense table to the witness box so dressed in Washington County jail clothing and leg iron restraints in full view of the jury. Trial counsel did not file any pretrial motions requesting Flores to appear without restraints. Trial counsel did not object to Flores’s appearance before the jury so restrained. Trial counsel did not move for a mistrial, nor did he move for the trial judge to admonish the jury regarding the restraints. There was no ruling by the trial judge in the record as to the reason for the leg restraints.

There were no pretrial motions made by trial counsel, either orally or written. The State made two pretrial motions: one, motion for disclosure by the defendant of blood, saliva, and hair samples; and two, motion for discovery. There is nothing in the record regarding trial counsel responding to the State’s motion for discovery.

During the trial, the State called eighteen witnesses. Flores was the only witness called on behalf of the defense. Trial counsel waived the opening statement. Trial counsel failed to make one objection in regard to any trial error, thus waiving any trial error.

Flores, admittedly enraged by having discovered the victim having sexual relations with another man, also admitted to slapping the victim, pulling her hair, and choking her. He admitted to hitting her at least seven times, and had previously threatened to kill her. Moreover, the victim’s blood was found on the jeans Flores was wearing when the police arrived at his house. Finally, he told the jury that the victim might have caused the injuries herself.

Roberto Mere was called as a witness on behalf of the State. Mere testified that he worked for a women’s shelter. He testified that Lucila Flores, the victim, told him of a history of abuse by her husband, Angel Flores. He further testified that Lucila Flores told him that she was beaten by her husband the day before, and that Flores had threatened to kill her on four or five occasions, once using a knife. Mere testified without any objection, and there is no record of trial counsel, at any time, moving to attempt to restrict this testimony.

After one day of trial the jury returned a verdict of guilty of murder in the first degree and set the punishment at the maximum of life in the Department of Correction. Flores was also found guilty of battery in the second degree for which the jury recommended eighteen months. The trial judge followed the recommendation of the jury and sentenced Flores to life and eighteen months to run consecutively.

Flores filed a motion for new trial alleging ineffective assistance of counsel, and requested a hearing on the motion. The trial judge denied Flores’s motion in his order, and again in his amended order. This is a direct appeal of that denial of Flores’s motion for new trial wherein Flores alleged ineffective assistance of counsel.

Ineffective assistance of counsel

Flores was unable to follow the traditional route of direct appeal seeking redress for trial errors other than postconviction relief under Rule 37 of Arkansas Rules of Criminal Procedure. Trial counsel failed to file any pretrial motions, failed to make any trial motions, failed to object to any evidence presented at trial. Trial counsel’s inaction waived all possible issues, constitutional or procedural, to be raised on appeal. The failure to interpose an objection or raise an issue in a motion prevents the issue from being raised for the first time on appeal. Objections must be made at trial in order to preserve them for appellate review errors of constitutional dimensions. Clark v. State, 264 Ark. 630, 575 S.W.2d 622 (1978).

Plere, there were no trial errors preserved in this case. However, this Court has ruled that it will address Rule 37 relief on direct appeal if it was first raised during trial or in a motion for new trial and if the facts and circumstances were fully developed either during trial or during other hearings conducted by the trial court. Chavis v. State, 328 Ark. 251. 942 S.W.2d 853 (1997). Flores raised such issues in his motion for new trial alleging ineffective assistance of counsel; therefore, this court can consider Flores’s appeal.

Strickland v. Washington, 466 U.S. 668 (1984), sets out an appellant’s burden when claiming ineffective assistance of counsel. Appellant must demonstrate two components: first, appellant must show that trial counsel’s performance was deficient; and second, appellant must show that the deficient performance prejudiced the defense. Strickland, supra. The first component requires a showing that trial counsel’s errors were so serious that counsel was not functioning as the “counsel” guaranteed the appellant by the Sixth Amendment. Strickland, supra. Trial counsel’s performance must fall below an objective standard of reasonableness. Strickland, supra. The second component requires a showing that trial counsel’s errors were so serious as to deprive the defendant of a fair trial. Strickland, supra. The errors must have actually had an adverse effect on the defense. Strickland, supra.

Unless appellant makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. United States v. Cronic, 466 U.S. 648 (1984). However, prejudice to appellant may be presumed in certain situations. Cronic, supra.

This Court has held many times that it will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Reynolds v. State, 341 Ark. 387, 3 S.W.3d 331 (2000). There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000); Norman v. State, 339 Ark. 54, 2 S.W.3d 772 (1999), (citing Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992)). Matters of trial tactics and strategy are not grounds for postconviction relief. Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1973). However, all strategic decisions must still be supported by reasonable professional judgment. Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995). It has also been held that a court considering a claim of ineffective assistance of counsel must view it through the perspective of the totality of the evidence put before the jury. Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998). The presumption can be overcome by demonstrating that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Carter v. Armontrout, 929 F.2d 1294 (1991). The trial court’s decision to deny postconviction relief will not be reversed unless it was clearly erroneous or clearly against the preponderance of the evidence. Carter, supra.

Jail clothing

At trial, Flores appeared with his trial counsel before a panel of petit jurors from which a jury was to be selected. A jury was chosen from the panel after voir dire. Flores was dressed in Washington County, Arkansas, jail clothing and shackled in leg irons. This clothing consisted of a black-and-white striped pullover shirt and black-and-white striped trousers, which is distinctive, identifiable jail clothing. This fact was contained in the trial judge’s order and amended order.

Flores was required by the trial judge literally to stand before the jury during the trial court’s voir dire, and the trial judge asked trial counsel to ask Flores to stand and face the jury panel. Later in the trial, Flores was identified by two witnesses, Mary Rodriguez and Officer Timothy Franklin, by the jail clothes he was wearing. Flores also testified while wearing jail clothing and while restrained in leg irons.

Trial counsel testified at the hearing on the motion for a new trial regarding Flores being clothed in jail garb. The trial counsel testified that he informed the bailiff that there were civilian clothes for Flores to change into, but trial counsel did not inform the trial court of this fact. The trial counsel further testified that he did not object to Flores being tried before the jury in jail clothing. The trial counsel went on to testify that he failed to file any motions before the trial to have Flores appear without jail clothing, but he thought the bailiff would help Flores change from the jail clothing to civilian attire. Trial counsel testified that Flores’s brother, Marteen, had brought civilian clothing to the courthouse for Flores. Trial counsel did state that he did not want to make matters worse for Flores, since the jury had already seen him. Trial counsel also stated that he did not request an admonishment from the trial judge to the jury.

The record is clear that there was no objection made; there was no motion for continuance to call a new jury panel; there was no request for an admonishment to the jury; nor a request for an instruction regarding Flores’s appearance in jail clothing. The trial court in its amended order ruled that “Petitioner’s counsel did not object to Petitioner’s appearance in jail clothing or formally request that he change into civilian clothing, which clothing had been made available by Petitioner’s brother.”

The rule in Arkansas is that the accused may not be forced to trial in prison garb absent a waiver. Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002). Box is the most recent case holding a defendant cannot be forced to trial in distinctive prison clothing. There cannot be any doubt that appellant has a right to appear in civilian clothing. Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970). In Miller, this court adopted the rule that absent a waiver the accused should not be forced to trial in prison garb. Miller, supra. This was and remains consistent with Article 2, Section 8, of the Arkansas Constitution. Box, supra.

When someone is tried in prison garb, his or her right to a fair trial is placed in serious jeopardy. Box, supra. In Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990), this court stated that central to the issue of a fair trial is the principle that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. Box, supra.

The Box court stated:

When someone appears in prison garb, the decision of the jury may well be based upon his or her prior conviction or status as someone held in custody. In Estelle, supra, the U.S. Supreme Court noted that when an accused is forced to wear prison garb, the jury might be prejudiced, and that the wearing of such attire serves no useful State purpose. Clemmons, supra. This is because once the jury sees the defendant in clothing implying he is a criminal, they may assume he is, and the jury will be biased. The danger in this case is greater than where a prisoner is seen in county-jail clothing. Here, Box appeared in the white uniform of an Arkansas Department of Correction inmate, which showed he was a convicted and incarcerated felon. It might be tempting to enter into argument about whether an average venire member would know the difference in prisoner clothing between that worn by a county inmate and that worn in prison, but such an argument begs the question and discounts the importance of the concern at issue, that of a fair trial. Someone who comes into court in Arkansas in a prison uniform may well be recognized as a sentenced convicted felon, and that is the danger. There is nothing to be gained by trying someone in prison garb. Here, the motivation was to accommodate the jury and save time.

Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002). The Box case deals with prison garb and not jail clothing. However, this is not the distinction this court is facing; rather, it is trial counsel’s performance regarding such attire.

Here, there is no doubt that trial counsel failed to object to the violation of his client’s constitutional right, which, in turn, surrendered one of Flores’s fundamental constitutional rights. This could have been easily prevented had trial counsel made a pretrial motion to allow Flores to appear before the jury in civilian clothing and free of restraints. Further, trial counsel testified that it was not a trial tactic or strategy.

Rule 37 procedure requires that trial counsel’s performance be scrutinized in the light of Strickland v. Washington, 466 U.S. 668 (1984). The failure of trial counsel to make a pretrial motion, the failure of trial counsel to object to Flores appearing before the jury at his trial, and the failure of trial counsel to move for a continuance and require a new jury regarding Flores appearing in civilian clothing did amount to deficient performance of trial counsel under the first prong of the Strickland standard. Trial counsel’s performance, or lack thereof, indeed “fell below an objective standard of reasonableness.” Strickland, supra.

Flores also meets the prejudice prong of the Strickland standard. There is a reasonable probability that, but for trial counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, supra. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986) (citing Mason v. State, 289 Ark. 299, 712 S.W.2d 275 (1986)). Here, there is reasonable probability that the outcome of the trial would have been different, because Flores was convicted of first-degree murder rather than second-degree murder or manslaughter. Therefore, the denial of Flores’s motion for new trial alleging ineffective assistance of counsel was reversible error and required a new trial.

Leg restraints

Flores appeared before the jury panel from which the jury was selected, and during the entire jury trial restrained in leg shackles. The trial court’s order ruled “[T]hat Petitioner appeared before the jury in recognizable jail clothes and leg shackles.” The trial court in its amended order ruled “[T]hat Petitioner appeared with leg irons and shackles.”

Arkansas Rule of Criminal Procedure 33.4, Custody and restraint of defendants and witnesses, states:

Defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining guilt.

Ark. R. Crim. P. 33.4. Arkansas law is clear that defendants shall not be subjected to restraint while in court. There are, however, exceptions. The trial judge must find that the restraints are necessary to maintain order. Illinois v. Allen, 397 U.S. 337 (1970). In that case, the United States Supreme Court held that where it is essential to maintain dignity, order, and decorum in the courtroom, restraints may be used. Illinois, supra.

Here, there were no pretrial motions by trial counsel requesting Flores appear at the trial without restraints, there were no objections to the restraints, nor were there any motions for continuance to select a new jury panel. The trial judge did not find such restraint as being reasonably necessary to maintain order. There is no order in the record of a reason or reasons for Flores being restrained during the trial. There was no admonishment to or instruction to the jury that such restraint is not to be considered in assessing the proof and determining guilt. Trial counsel did not request in any manner for the leg restraints to be removed.

The State, at the hearing on the motion for new trial, produced two Washington County Deputies. One said that Flores became angry once, threw his food, and injured his foot. The other testified that the head jailor had heard from a cell mate that Flores said that “This is the day.” The witness did not know what the statement meant, but assumed that Flores was going to try something. This testimony was not in the trial record, and there was no finding by the trial court as to why Flores should be restrained. However, the trial judge did say “[T]hat Petitioner may have been a safety and flight risk on the date of the jury trial,” and “[T]hat Petitioner was considered a potential flight risk on the date of the jury trial” in his order.

In Clemmons, this court ruled that it was inherently prejudicial where the appellant appeared in leg irons and a uniformed officer was seated directly behind him. Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990). There the defendant had threatened the trial judge, had injured his mother just before the trial, had three previous felony convictions, and on a previous court appearance, had hidden an object that could be used as a weapon. The court found that common sense immediately told each juror that, in the judge’s mind at least, this defendant was an unusually dangerous man. Clemmons, supra. Only in the rarest circumstances will the state’s interest in security and order justify such actions. Clemmons, supra. In Clemmons, the trial judge held a hearing and ruled specifically on the issue of restraints and security. Clemmons, supra.

Here, Flores had no record of prior criminal history, had not caused any previous disruptions in court, and there was no evidence of an attempted escape. Further, there was no ruling by the trial judge because trial counsel did nothing to bring such issues to the trial court’s attention; therefore, trial counsel fails the first prong under the Strickland standard. Further, trial counsel allowing Flores to be placed before a jury in the black-and-white jail uniform and leg restraints was inherently prejudicial; therefore, Flores was deprived of a fair trail, and the denial of his motion for new trial alleging ineffective assistance of counsel is reversible error.

Trial counsel failed to subject the State’s case to adversarial testing

Trial counsel’s abdication of his duties as counsel for Flores is demonstrated by his many errors both pretrial and during the trial. However, this court does not recognize cumulative error. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). Further, conclusory allegations of deficient conduct are insufficient to warrant relief. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). Nevertheless, in this case, there are separate errors by trial counsel that do entitle Flores to relief.

In addition to the issues discussed above, trial counsel failed to provide competent representation. Trial counsel testified at the hearing on the motion for new trial stating, “I had been retained to negotiate a plea and based on my discussions with him at the jail I was trying to follow through on that and commence dialogue that could get a plea bargain under discussion.” Trial counsel’s only real strategy was to negotiate a plea bargain. Instead of deferring to other counsel, trial counsel continued representing Flores when it appeared there would be no plea bargain.

Further, trial counsel had a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strickland, supra. However, “when the appellant shows that defense counsel failed to exercise the customary skills and diligence that a reasonably competent attorney would exhibit under similar circumstances, that presumption must fail.” Starr v. Lockhart, 32 F.3d 1280 (8th Cir. 1994). Here, trial counsel neither investigated the law nor the facts pertaining to Flores’s case. Trial counsel did not use reasonable professional judgment.

The following proof was adduced at the motion hearing regarding trial counsel’s investigation of the facts: trial counsel visited with Flores at least five times; the longest time period trial counsel visited with Flores was one hour and forty-five minutes; trial counsel did not obtain a history of Flores other than where Flores was employed at the time of his arrest; trial counsel did not discuss, or at least at any length, about Flores extreme emotional distress from coming home and finding his wife, the victim, having sexual relations with another man; trial counsel failed to attempt to interview any of the State’s witnesses, except the officer in charge and that was to ask him to assist him in locating the paramour, Nicolas Reyes; trial counsel did not read the entire file that was provided to him by the State, and he testified that “I didn’t read every line, there would be phone calls, dispatches, things of that nature. You would glanced over them”; and trial counsel did not go to the scene of the incident.

Further, trial counsel testified that he refreshed his memory of first- and second-degree murder by reading the statutes, but he failed to look at manslaughter because for purposes of plea discussions, the State was not responding to second-degree murder. Additionally, Trial counsel offered no manslaughter instruction to the trial court. Trial counsel also testified that to some degree he familiarized himself with the Arkansas Rules of Evidence, and he looked over the Arkansas Rules of Criminal Procedure. However, trial counsel did not file a motion for discovery, nor a Brady motion seeking exculpatory evidence in the State’s possession. Trial counsel failed to file any suppression motions seeking to suppress the two statements of Flores, nor did he file a suppression motion seeking to suppress certain evidence seized at the residence. Trial counsel failed to file a motion in limine seeking to suppress the hearsay testimony of Robert Mere and the testimony of Mary Rodriguez.

At trial, trial counsel did not make an opening statement, and at the end of the State’s case, the trial judge gave him an opportunity to make an opening statement and again he waived the opening statement. Trial counsel failed to object once during the trial, thus allowing certain objectionable evidence to be introduced. Trial counsel did not call any witnesses, except-Flores during the guilt phase, and trial counsel failed to call any witnesses during the penalty phase. Finally, trial counsel waived his closing argument in the penalty phase.

From these facts, it is obvious that trial counsel did very little in the way of investigating the facts or the law. He abandoned Flores’s best interests. Trial counsel has a duty to investigate all reasonable lines of defense, or make reasonable determinations that such investigation is not necessary. Strickland, supra. Both prongs of the Strickland standard are met here. Trial counsel’s performance was deficient and fell below an objective standard of reasonableness, and trial counsel’s errors were so serious that Flores was deprived of a fair trial.

In conclusion, we hold that the trial court erred in denying Flores motion for new trial alleging ineffective assistance of counsel. Flores met the Strickland requirements on each of the three bases discussed above.

Rule 4-3 (h)

This court is to review all error prejudicial to Flores in that Flores received a life sentence. Here there are no rulings adverse to Flores as there were no objections, rulings, or requests made by Flores. There was a ruling granting the State’s motion for disclosure by the defendant of blood, saliva, and hair samples. That motion is the only motion by either party wherein the trial court ruled adversely to Flores. However, reversible error was found in that Flores received ineffective assistance of counsel.

Reversed and remanded for a new trial.


author: Tom Glaze, Justice.

text:
    William Burt STRAHAN v. STATE of Arkansas
    CR 01-1231
    85 S.W.3d 891
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002

      Keith Hall, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie R. Kelly, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant William Strahan was charged in the Pine Bluff Municipal Court with one count of third-degree battery. The prosecutor filed a criminal information in Strahan’s case on April 25, 2000, and the case was given the docket number of SDCR-00-2106. Pine Bluff Municipal Judge Robert Tolson signed the criminal summons on April 26, 2000. After consulting with the victim and learning that the victim’s injuries might be more serious than first thought, the prosecutor, Steve Dalrymple, recalled the third-degree battery summons in SDCR-00-2106 on May 1, 2000. This charge was eventually nolle prossed by the prosecutor’s office on June 21, 2000.

However, on June 19, 2000, a criminal summons, numbered SDCR-00-3010, was signed by Judge Tolson; this summons again alleged that Strahan committed the offense of third-degree battery. No criminal information was attached to this summons, but nevertheless, Strahan entered a plea of nolo contendere to the misdemeanor charge and paid a fine of $500.00 on June 23, 2000.

On August 11, 2000, the prosecutor filed a criminal information, with the docket number of CR-2000-724-1, in the Jefferson County Circuit Court, charging Strahan with second-degree battery, a felony. On October 26, 2000, Strahan filed a motion to dismiss the felony charges, arguing that his nolo contendere plea, entered in the municipal court on June 23, 2000, constituted a conviction that, pursuant to the Double Jeopardy Clause, barred the charges in circuit court.

Following a hearing on February 28, 2001, the circuit court denied Strahan’s motion to dismiss on May 23, 2001. The circuit court found that the State had not authorized the summons in the municipal court case, SDCR-00-3010, nor was the State aware of the summons having been issued. The summons also was not accompanied by an affidavit, complaint, information, or indictment, as provided in Ark. R. Crim. P. 6.1(a), nor had it ever been served on Strahan. Consequently, the circuit court held that Strahan’s attempt to enter a plea of nolo contendere was void, and could not serve as an affirmative defense to the State’s filing of the second-degree battery charge against him in circuit court. On appeal, Strahan argues that the circuit court erred in finding that the State’s filing of the felony-second-degree battery case did not violate his double-jeopardy rights.

Ordinarily, a conviction on the merits of an offense “is a bar to prosecution for an offense . . . when the two offenses were committed in the same course of conduct and are of the same character.” Ark. Code Ann. § 16 — 85—712(b) (1987). A former prosecution is an affirmative defense to a subsequent prosecution for the same offense when the former prosecution resulted in a conviction; there is a conviction if the prosecution resulted in a plea of nolo contendere accepted by the court. Ark. Code. Ann. § 5-1-112(2) (Repl. 1997). However, a former prosecution is not an affirmative defense when that prosecution “was procured by the defendant without the knowledge of the appropriate prosecuting official or aggrieved party and with the purpose of avoiding the sentence which might otherwise be imposed.” Ark. Code Ann. § 5-1-115 (Repl. 1997).

Further, Ark. R. Crim. P. 24.3(d) provides that “[n]o plea of. . . nolo contendere shall be accepted by any court unless the prosecuting attorney of the governmental unit in which the offense occurred is given opportunity to be heard at the time the plea is tendered.” This court has strictly interpreted this rule’s requirement that the trial court must give the prosecutor an opportunity to be heard before accepting a guilty plea. See State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 451 (1997) (holding that a trial court cannot accept a guilty plea over the State’s objection).

It is uncontradicted in this case that no one from the prosecutor’s office was present when Strahan entered his plea at the municipal court. Indeed, both the prosecutor, Steve Dalrymple, and the municipal judge agreed that there was no representative of the State in court at the time the judge accepted Strahan’s plea. A plea must be tendered in conformity with the rules under which it is taken. See Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993) (dismissing appeal purportedly taken from a conditional plea of guilt under Ark. R. Crim. P. 24.3(a) because the defendant failed to comply with the rule’s requirements of obtaining the consent of the prosecutor or the trial court). Rule 24.3(d) mandates that the prosecutor be given an “opportunity to be heard” before any plea of guilty or nolo contendere is tendered to and accepted by any court. As noted above, this court has interpreted this requirement strictly. See State v. Vasquez-Aerreola, supra. Therefore, Strahan’s “conviction” in municipal court, procured by Strahan without the knowledge of the prosecutor, cannot serve as an affirmative defense to a subsequent prosecution for the same offense. See Ark. Code Ann. § 5-1-115(2).

For these reasons alone, the trial court’s denial of Strahan’s motion to dismiss the felony charges in circuit court on double-jeopardy grounds is affirmed.

       The State also argued that Strahan’s plea in the municipal court case was tendered without a valid charging instrument having been issued, and was therefore void; however, we need not reach that argument.


author: Donald L. Corbin, Justice.

text:
    Dennis Van JENKINS v. STATE of Arkansas
    CR 02-46
    85 S.W.3d 878
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Dennis Van Jenkins appeals the order of the Pulaski County Circuit Court convicting him of first-degree felony murder, aggravated robbery, and theft of property. He was sentenced to terms of life imprisonment, thirty years’ imprisonment, and ten years’ imprisonment, respectively. The trial court ordered that the ten-year and thirty-year sentences were to run concurrently, but consecutively to the life-imprisonment sentence. Appellant’s sole point on appeal is that there was insufficient evidence of robbery to support his conviction for first-degree felony murder. As this appeal involves a sentence of life imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (2). We find no error and affirm.

The circumstances leading up to this case took place on December 11, 1999. On that day, Appellant was riding around the Little Rock area with Alvin Pugh, Chemer Beene, and Anthony Hawkins when the Cadillac, they were in had a flat tire. The group pulled into a car wash on Wright Avenue in order to repair the flat. According to Appellant, after repairing the flat tire, they were unable to start the car. At that time, Kelin Rudley attempted to assist the group by jumping their battery. While trying to jump the battery, Mr. Rudley was shot in the neck by Appellant. While the circumstances leading up to the shooting are in dispute, the fact that Appellant shot Mr. Rudley was undisputed. It is also undisputed that the group fled in the 1998 Toyota Tacoma truck Mr. Rudley had been driving. Mr. Rudley subsequently died as a result of the gunshot wound.

The following day, police discovered the Toyota truck in front of a trailer on Chicot Road where Pugh lived. Pugh advised police where to look for clothes that were missing from the truck. Police subsequently searched the intersection of Oxford Valley and Churchill Drive where the items of clothing were found. Pugh also told police that Appellant was the one who drove the truck away from the scene of the crime.

Police located Appellant on December 13, and asked him if he could come to the police station to answer a few questions. Appellant complied and eventually gave police a statement admitting to shooting Mr. Rudley, but claiming that he did so in self-defense. Specifically, Appellant claimed that Rudley was mouthing off and acting funny. Appellant said he only shot Mr. Rudley after he “flinched” at him.

Appellant was arrested and charged with capital felony murder, aggravated robbery, and theft of property. At trial, Beene confirmed Appellant’s account that the group had been driving around and stopped at a car wash to repair a flat tire. When the Cadillac would not start again, Beene approached Mr. Rudley and asked if he would jump their battery. She stated that she assisted Mr. Rudley in hooking up the jumper cables, but then walked to the rear of the Cadillac. According to Beene’s testimony, she heard Appellant say to Mr. Rudley, “What the fuck you doing?” She then turned around and saw Appellant holding a gun. Beene stated that she then heard a gunshot and took off running down the street with Hawkins. Appellant and Pugh picked the two up shortly thereafter, and according to Beene, Appellant was driving the truck at that time. Finally, Beene testified that Appellant said to them, “Y’all mother-fuckers think I’m playing. I’ll kill me another mother-fucker, too.”

Detective Ronnie Smith testified at trial that police discovered an abandoned Cadillac in one of the bays at the car wash. A spare tire was on the left rear side of the vehicle and jumper cables were still attached to the vehicle’s battery. Smith stated that he developed Appellant as a suspect based on information from Pugh.

Following Smith’s testimony, the State rested. Appellant then made a motion for a directed verdict challenging the sufficiency of the evidence relating to the charge of the underlying felony, aggravated robbery. The trial court denied the motion. Following the defense’s presentation of evidence, Appellant renewed his motion for a directed verdict. Again, it was denied. The case was subsequendy submitted to the jury, and Appellant was convicted and sentenced as previously stated. This appeal followed.

A motion for a directed verdict challenges the sufficiency of the evidence. Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002); Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001); Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The test for determining sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Pickens, 347 Ark. 904, 69 S.W.3d 10. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id.

On appeal, Appellant argues that the trial court erred in denying his motion for a directed verdict, because the State failed to prove that he killed Mr. Rudley in order to steal his truck. According to Appellant, the evidence presented at trial merely established that an altercation arose between himself and the vietim and that Appellant reacted to a perceived threat. The State counters by arguing that the issue is not preserved for review. According to the State, Appellant’s motion for directed verdict related only to the charge of capital felony murder, but he was convicted of first-degree felony murder; thus, he was required to specify in his motion challenges to the offense charged, as well as any lesser-included offenses. Alternatively, the State argues that there was sufficient evidence to support Appellant’s conviction. While the State’s procedural argument is without merit, we agree that there was sufficient evidence supporting Appellant’s conviction.

In arguing that Appellant failed to make a directed-verdict motion with regard to the lesser-included offense of first-degree felony murder, the State relies on this court’s recent opinion in Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). There, we held that a defendant waived his challenge on appeal to the sufficiency of the evidence supporting a conviction of a lesser-included offense. At trial, the appellant made a specific motion for directed verdict only on the offense of first-degree battery. He was subsequently convicted of the lesser-included offense of second-degree battery. The appellant’s failure to challenge any elements of second-degree battery precluded this court’s review of the issue.

The instant case, however, does not involve a situation where the elements of first-degree felony murder differ from the elements of capital felony murder. In Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), this court elaborated on the reasons behind the rule requiring a specific motion. There, this court stated:

Other practical reasons have caused us to require that the grounds for the motion be specified. In multiple-count cases, which mandate different degrees of culpability for the lesser included offenses, it is easy for an element of one of the counts for lesser included offenses to be overlooked. Since a general motion for a directed verdict does not specify the missing element, the trial court is not apprised of the proof that was overlooked. As a result, the trial court is not made aware of the deficiency. See, e.g., Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992).

Id. at 108, 883 S.W.2d at 832. Thus, the underlying purpose in requiring Appellant to specify the grounds for a directed-verdict motion is not defeated in this case.

Moreover, in Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001), this court stated that when dealing with the crimes of capital murder or first-degree felony murder, the culpable intent or mens rea relates to the crime of the underlying felony, in both cases that crime being aggravated robbery, and not to the murder itself. Here, Appellant made the following motion for directed verdict at the close of the State’s evidence:

Your Honor, Defense would like to at this time make a Motion for a Directed Verdict. We do not feel with the evidence presented today, that the State has established its prima facie case on both counts, on all three counts, capital murder, aggravated robbery and theft of property. The basis for this Motion, Your Honor, is that so far from what this Court has heard the only connection between the Defendant and the commission of an aggravated robbery itself is the testimony of the impeached witness, Chemer Beene, who claims that she saw the Defendant in the driver’s seat of the truck immediately after the shooting occurred. This relatively represents circumstantial evidence of the aggravated robbery. As the Court knows, circumstantial evidence is to be inconsistent with any other possibility. Your Honor, we feel that with the nature of her testimony presented as the Court is aware, that, excuse me, and the absence of any other evidence, that they have not established the prima facie case for aggravated robbery. Therefore, they have also not established the prima facie case for capital murder which necessitates that they prove that aggravated robbery was committed or that the death was committed while in the commission or attempted to commit the aggravated robbery of [sic] furtherance of that or flight therefrom.

Again, once the defense rested, the motion for directed verdict was renewed and stated in relevant part:

We would renew our earlier motions for directed verdict. Again, basically the same argument as before that the circumstantial evidence presented by the State today, which we only believe is circumstantial evidence, does not establish a prima facie case for the three counts today, capital murder, aggravated robbery and theft of property. We do not feel that specifically in Count I that the element of aggravated robbery, that this death was caused in the commission of that, has been established. We do not feel that based on the testimony that, I believe of Chemer Beene that the Defendant was seen briefly in the truck thereafter the shooting occurred establishes these elements, and that would be the basis for our Motion, Your Honor.

Thus, Appellant’s motion for a directed verdict sufficiently apprised the trial court that he was challenging the sufficiency of the evidence of the crime of aggravated robbery, as the underlying offense for the felony murder charge.

Finally, the instructions given to the jury demonstrate that the elements at issue in this case were identical. The capital felony murder instruction and first-degree felony murder instruction given at trial, which are based on our criminal statutes, read as follows:

Dennis Jenkins is charged with the offense of Capital Murder against Kelin Rudley. To sustain this charge, the State must prove beyond a reasonable doubt:
First: That Dennis Jenkins, or an accomplice, committed or attempted to commit the crime of Aggravated Robbery; and
Second: That in the course of and in furtherance of that crime, or in immediate flight therefrom, Dennis Jenkins, or an accomplice, caused the death of Kelin Rudley under circumstances manifesting an extreme indifference to the value of human life.
If you have a reasonable doubt of the Defendant’s guilt on the charge of Capital Murder, you will then consider the charge of Murder In the First Degree.
To sustain the charge of Murder in the First Degree, the State must prove beyond a reasonable doubt that:
[First:] That Dennis Jenkins, or an accomplice, committed or attempted to commit Aggravated Robbery;
Second: That in the course of and in furtherance of that crime, or attempt or in immediate flight therefrom, Dennis Jenkins, or an accomplice, caused the death of Kelin Rudley under circumstances manifesting extreme indifference to the value of human life.

See Ark. Code Ann. § 5-10-101 (a)(1) and § 5-10-102(a)(l) (Repl. 1997).

In short, the elements that the State had to prove in order to obtain a conviction on either charge were identical. Thus, this is not a situation where Appellant in making his directed-verdict motion was required to set forth differing elements. Therefore, Appellant’s motions for directed verdict were properly preserved for review.

Turning now to the merits of Appellant’s point on appeal, our review of the record reveals that there was sufficient evidence to support Appellant’s conviction. Specifically, the State was required to prove and did prove that Appellant murdered Mr. Rudley in the course of or in furtherance of the crime of aggravated robbery, namely, stealing the Toyota truck Mr. Rudley was driving.

In Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993), this court acknowledged that it had decided several other cases where similar arguments were made regarding the lack of proof of robbery or intent to rob to support a capital-murder conviction. There, the court concluded that evidence placing the appellant at the scene of the crime shortly before police discovered the victim’s body and evidence that money was missing from the victim was sufficient to prove that the robbery and the murder occurred in close proximity to one another. Thus, this court concluded that the jury was justified in finding that the two offenses constituted one continuous transaction. Id.

The theory of one continuous transaction was succinctly set forth by this court in Grigsby v. State, 260 Ark. 499, 508-09, 542 S.W.2d 275, 280 (1976) (citations omitted):

The underlying rationale of the felony-murder rule, both statutory and common law, is that the killing constitutes a part of the res gestae of the accompanying felony and both are parts of one continuous transaction. Where the robbery and the killing are so closely connected in point of time, place and continuity of action as to constitute one continuous transaction it is proper to consider both as a single transaction and the homicide as a part of the res gestae of the robbery. The sequence of events is unimportant and the killing may precede, coincide with or follow the robbery and still be committed in its perpetration.

The court further noted that intent may be inferred from the facts and circumstances of the particular case. Ultimately, this court in Grigsby rejected the appellant’s argument that the robbery was an afterthought, as it would require them to take portions of the defendant’s mostly exculpatory statements at face value.

A similar result occurred in Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992). Sanders involved the murder of a man involved in a bootlegging operation. The owner of the building in which the victim’s operation was housed testified that he visited the victim the night before the murder and found him in good health and in possession of an ample supply of beer and whiskey. The next day he found the victim lying in a pool of blood and several cases of beer and pints of whiskey were missing, along with some money he had given the victim the previous evening. This court found such testimony established robbery as the underlying felony for the capital-murder conviction. Id.

Here, Appellant admitted to shooting Mr. Rudley, but denied that it was for the purpose of stealing the truck. Appellant also denied ever driving the truck. As previously pointed out, however, the jury was not obligated to believe Appellant’s claim that he shot Mr. Rudley in self-defense. See Grigsby, 260 Ark. 499, 542 S.W.2d 275. This is particularly true in light of Beene’s testimony that Appellant was the person driving the vehicle immediately following the murder.

Other evidence supporting the jury’s findings included Beene’s testimony that Appellant made statements following the murder to the effect that he would kill again. Takisha Saab, the owner of the truck,- also testified that the hubcaps, a radio, some compact discs, and a laundry basket with clothes were missing from the truck. Finally, Appellant’s own statement, as well as the testimony of Beene, established that the group fled in the truck immediately after the shooting. Thus, there was evidence that the robbery and the murder were closely connected in time, place, and continuity of action. This evidence supports a conclusion that the two crimes constituted one continuous transaction and is sufficient to support Appellant’s convictions of both aggravated robbery and first-degree felony murder. Therefore, the trial court did not err in denying Appellant’s motion for a directed verdict.

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Appellant, and no error has been found.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Susie M. CARTER v. STATE of Arkansas
    CR 01-1380
    85 S.W.3d 914
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002

      D. Wayne Juneau, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

This case concerns the jurisdiction of a circuit court to revoke probation. The appellant challenges the jurisdiction of the circuit court to revoke her probation after the expiration of the probation period, and she also argues that the revocation was not supported by sufficient evidence. We hold that, under the facts of this case, the court did not have jurisdiction at the time it issued its order revoking Ms. Carter’s probation. We therefore reverse and dismiss.

Appellant Susie Carter pleaded guilty to the charge of delivery of a controlled substance and was sentenced to five years’ probation in an order filed on May 13, 1996. Ms. Carter was also ordered to pay fees and fines, to perform community service, to enroll in a substance abuse treatment program, and to enroll in a .GED program.

The State filed the first in a series of petitions to revoke probation in 1997. A second petition to revoke was filed by the State in 1998. On both occasions, the circuit court ordered that Ms. Carter’s probation be continued under the conditions that were originally imposed.

The State then filed a third petition to revoke Ms. Carter’s probation on December 7, 2000, alleging numerous violations of the terms of her probation. A probation revocation hearing was initially set for February 5, 2001. When Ms. Carter failed to appear, the circuit court issued an alias bench warrant for her arrest. After a hearing on March 5, 2001, the circuit court determined that she was indigent, appointed counsel, and set aside the alias warrant. At Ms. Carter’s request, the hearing was postponed until April 2, 2001. Also at her request, the revocation hearing was postponed a second time until May 7, 2001. In an order filed on June 6, 2001, the circuit court revoked Ms. Carter’s probation and sentenced her to a term of twelve years in the Arkansas Department of Correction.

The Arkansas Court of Appeals certified the instant appeal to this court as an issue of first impression and a significant issue needing clarification and development of the law, or overruling of precedent. Thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l), (5) (2002).

Jurisdiction

The order of probation was filed on May 13, 1996. The order revoking probation and imposing sentence was filed on June 6, 2001. Therefore, five years and twenty-four days elapsed between entry of the probation order and entry of the order revoking probation. See Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997) (holding orders are effective upon their entry or filing). For her first point on appeal, Ms. Carter argues that upon the completion of her five years’ probation, the circuit court lost jurisdiction and had no power to revoke her probation. The State replies that the order setting the revocation hearing was issued before the expiration of the probation period; that the original hearing date of February 5, 2001, was within the probation period; and that the hearing was delayed only by Ms. Carter’s actions. Furthermore, the State alleges that Ms. Carter’s failure to appear and subsequent request for a postponement of the revocation hearing tolled the time in which the court had jurisdiction to act. In sum, the State contends the circuit court had jurisdiction so long as some type of process was issued by the State before expiration of the probation period.

The resolution of the jurisdictional issue involves the interpretation of Ark. Code Ann. § 5-4-309 (Supp. 2001). This court adheres to the basic rule that a statute is to be interpreted in order to give effect to the intent of the General Assembly by giving words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993). Criminal statutes are strictly construed with all doubts resolved in favor of the accused. Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997).

With our standards of statutory construction in mind, we turn to the issue of whether the circuit court had jurisdiction under the controlling statutes. We begin with an analysis of whether revocation of probation subsequent to the probation period is indeed a jurisdictional question. A plea of guilty, coupled with a fine and probation, constitutes a conviction. Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). It is well settled that a trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is executed. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001); Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). Thus, the issue of whether a circuit court can revoke probation after the expiration of the probation period is one of jurisdiction. See Gill v. State, 290 Ark. 1, 3, 716 S.W.2d 746, 747 (1986) (holding that without another statutory provision conferring jurisdiction, “the jurisdictional statements contained in §§ 41-1208 and 41-1209 [now §§ 5-4-309 and 5-4-310] control [revocation of probation].”).

Revocation of probation is governed by section 5-4-309 of the Arkansas Criminal Code that provides in pertinent part as follows:

(a) At any time before the expiration of a period of suspension or probation, the court may summon the defendant to appear before it or may issue a warrant for his arrest. The warrant may be executed by any law enforcement officer.
* * * *
(d) If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
(e) The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.

Ark. Code Ann. § 5-4-309 (Supp. 2001) (emphasis added). Prior to adoption of the current criminal code, our case law had only required that the petition to revoke be filed prior to the expiration of the probation period. Parkerson v. State, 230 Ark. 118, 321 S.W.2d 207 (1959). Furthermore, under pre-code case law, the trial court did not lose jurisdiction where the defendant voluntarily and willfully withdrew from the jurisdiction. Reed v. State, 241 Ark. 836, 411 S.W.2d 285 (1967). To explain the intended effect of the codification, we may consider the code commentary. Kyle v. State, supra (noting that the commentary to a statute is highly persuasive, but not controlling). The original commentary states:

The Commission thought it preferable to set out the action necessary to toll the running of the suspension of [sic, or] probation period. That action — i.e., arrest or issuance of an arrest warrant — is the same as that sufficing to toll the statute of limitations for purposes of § 5-1-109.

Original Commentary to Ark. Code Ann. § 5-4-309 at 119 (Repl. 1995). The supplemental commentary states section 5-4-309(e) generally requires “that any revocation of suspension or probation occur within the period of suspension or probation originally imposed by the trial court.” 1988 Supplemental Commentary to § 5-4-309 at 119. Thus, the commentary to section 5-4-309(e) indicates the Arkansas Criminal Code Revision Commission sought to replace the common law exceptions extending jurisdiction with specific statutory exceptions.

In one post-code case, we addressed the question of whether the issuance of an arrest warrant tolls the running of the probation period under section 5-4-309. Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996). The defendant in that case had been sentenced to five years probation on February 15, 1989. Id. On September 27, 1990, a petition for revocation was filed by the State. That same day, a bench warrant was issued for Richmond’s arrest, but he was not served until July 13, 1995, approximately seventeen months after the probation period had expired. Id. Richmond argued that the warrant was not valid because it had not been served prior to the expiration of his probation period. Id. We noted that the warrant for Richmond’s arrest was issued on September 27, 1990, which was well within the five-year probated sentence. Id. Under the plain language of section 5-4-309(e), this court affirmed the trial court’s revocation of Richmond’s probation. Id.

In contrast, the alias warrant in this case was issued for failure to appear. It was not a warrant for Ms. Carter’s arrest for violation of probation. In Arkansas, an alias bench warrant is generally used when a person fails to appear at a court proceeding. See, e.g., Smith v. State, 313 Ark. 93, 95, 852 S.W.2d 109, 110 (1993). We have also acknowledged that an alias warrant is not based on the underlying charge against the person. See Hodges v. State, 267 Ark. 1112, 593 S.W.2d 494 (1980).

Under the plain language of section 5-4-309 (e), revocation of probation subsequent to the expiration of the probation period is only authorized upon an arrest for violation of probation or when “a warrant is issued for his arrest for violation of. . . probation” during the probation period. Ark. Code Ann. § 5-4-309(e). Thus, the alias bench warrant issued for Ms. Carter does not meet the statutory requirements because it was not a warrant issued for her arrest for violation of probation.

The State, however, urges this court to only require substantial compliance with the statutory language in Ark. Code Ann. § 5-4-309(e). To support its position, the State relies on Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984), in which this court allowed substantial compliance with a different portion of an earlier version of the section 5-4-309 — Ark. Stat. Ann. § 41-1208 (Repl. 1977). Reynolds was serving a four-year suspended sentence when he was arrested for theft by receiving. Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396. Six days before his trial on the theft-by-receiving charge, Reynolds was served with a petition for revocation of his suspended sentence, and after a hearing his suspended sentence was revoked. Id. Reynolds argued, in part, that the circuit court was without jurisdiction because he had not been arrested with a warrant for violation of his suspension; rather, he was under arrest on another charge. Id. This court held “[t]he fact that the statute was not strictly complied with would not deprive the trial court of jurisdiction to hear the petition nor void the trial court’s action.” Id. at 100, 666 S.W.2d at 397. From this holding in Reynolds v. State, the State concludes that only substantial compliance with all the provisions of section 5-4-309 is required.

The State then suggests that the official commentary to section 5-4-309 (e) attempts to harmonize the conditions under which a circuit court retains jurisdiction after expiration of the probation period with the general statute of limitations provisions set out in Arkansas Code Annotated section 5-1-109 (Supp. 2001). Because section 5-l-109(f) provides that a “prosecution is commenced when an arrest warrant or other process is issued based on an indictment, information, or other charging instrument,” the State urges this court to allow the issuance of some “other process” to extend the circuit court’s jurisdiction to revoke beyond the probation period.

We decline the State’s invitation to extend our holding in Reynolds v. State, supra, to the facts of this case. The revocation in Reynolds v. State occurred during the period of suspension; therefore, section 5-4-309 (e) was not at issue. Furthermore, Reynolds was arrested for committing a crime that could constitute a violation of the terms of his suspended sentence; whereas, in the instant case, the issuance of the alias warrant for Ms. Carter’s arrest was not “for violation of suspension or probation,” but merely for failure to appear. In view of the plain language in the jurisdictional statements adopted by the General Assembly in section 5-4-309(e), we reject the State’s substantial-compliance argument.

Concerning the original commentary to section 5-4-309 (e), we have already noted that it is not binding on this court; but even if it were, we disagree with the State’s interpretation. The commentary clearly reflects that the Arkansas Criminal Code Revision Commission intended to codify the action necessary to toll the running of the probation period: “[A]rrest or the issuance of an arrest warrant” for violation of probation. Original Commentary to Ark. Code Ann. § 5-4-309. To engraft the words “or other process” onto section 5-4-309 (e), as the State asks us to do, runs counter to the stated intent of the Commission, as well as our well-established policy of strictly construing criminal statutes. Manning v. State, supra. Thus, we decline to adopt a policy of substantial compliance with the jurisdictional requirements of section 5-4-309 (e).

The State also argues that the postponement of the revocation hearing at the request of Ms. Carter should toll the running of the probation period just as a defendant’s request for a continuance prior to trial tolls the running of the speedy-trial period. Such reasoning is without a statutory basis. Section 5-4-309 clearly requires that the revocation order be entered during the probation period unless the probationer is arrested, or an arrest warrant is issued, for a probation violation before the probation period has expired.

When Ms. Carter’s probation period expired without her having been arrested for a probation violation and without an arrest warrant having been issued for violation of probation, the circuit court lost jurisdiction to revoke her probation under Ark. Code Ann. § 5-4~309(e). Because we hold that the circuit court lacked jurisdiction to revoke her probation, we need not address Ms. Carter’s second point on appeal.

Reversed and dismissed.

       Our holding in Bagwell, Pike, McGhee, and Harmon, that a court loses jurisdiction to modify a sentence during a period of probation, has been superceded by Act 1569 of 1999, codified at Ark. Code Ann. § 5 — 4—301 (d) (Supp. 2001). See Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002). In the instant case, however, we are concerned with whether a circuit court loses jurisdiction to revoke probation after the expiration of the probation period.


text:
    David A. KELLY v. STATE of Arkansas
    CR 02-191
    85 S.W.3d 893
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002
    [Petition for rehearing denied October 31, 2002.]

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

On August 21, 2001, Appellant David Kelly was tried and convicted in the Lawrence County Circuit Court of two counts of rape, one count of incest, and one count of battery. He was sentenced to two twenty-year sentences on the rape counts and twelve months on the battery count, all to be served concurrendy. Kelly brings this appeal from the trial court’s refusal to quash a jury panel on grounds of prejudice. We find no merit in Kelly’s argument, and thus, we affirm the decision of the trial court.

During the morning of August 21, the prosecutor was scheduled to give a closing argument in another criminal case, State v. Franklin, at the same time that jury selection was scheduled to begin in the State’s case against David Kelly. When the jury panel reported for duty, the trial court made the following statment: “Now we have the closing argument in this case and as soon as we hear that, we’ll start the next case, okay? So if you’ll just remain, the jury, if you’ll just remain in the courtroom, we’ll get to you shortly.” The jury complied with the court’s request and stayed in the courtroom while the prosecutor gave his closing argument in the Franklin case. The information in that case charged a mother with accomplice liability for rape. The mother allegedly allowed, and possibly supported, sexual relations between two men and her two underage daughters. The charges filed against David Kelly related to alleged sexual misconduct between himself and his underage stepdaughter.

Before voir dire in the instant case, Kelly moved to quash the jury panel alleging that exposure to the closing argument in the Franklin case inevitably tainted the entire panel. The trial court denied the motion to quash and, prior to voir dire, gave the jury panel the following admonition:

All right, Ladies and Gentlemen, you are instructed, this is a preliminary jury instruction, you are instructed that any comment that you may have heard [the prosecutor] make in the previous trial when he was closing is not to be taken into account and is not to affect you in this trial. Those are two separate trials and they don’t have anything to do with each other. One is not to do anything [stc] with the other, so any comment that he may have made is to be disregarded by you in this trial.

During voir dire, defense counsel asked jurors questions about the prosecutor’s closing argument in the earlier case and received no indication of bias.

After jury selection was completed, Kelly renewed his motion to quash the jury. Again, the trial court denied the motion. Kelly was tried and convicted. From the convictions, Kelly now brings this appeal alleging that he was denied his right to an impartial jury and due process as guaranteed under the United States Constitution and the Arkansas Constitution. Because this appeal involves issues of constitutional interpretation and an issue of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(a)(1), l-2(b)(l), (3) (2002).

Kelly’s sole point on appeal is that prejudice should be presumed from the particular facts and circumstances in this case. As the issue raised on appeal is one of first impression, Kelly attempts to draw parallels with four different lines of authority. First, he cites Vasquez v. Hillery, 474 U.S. 254 (1986), and Batson v. Kentucky, 476 U.S.79 (1986), where the United States Supreme Court held that race-based striking of jurors is unconstitutional. Vasquez and Batson are inapposite. Those cases focus on the use of a suspect classification, race, in the selection of jurors. We decline to adopt Kelly’s suggestion that a jury panel’s exposure to a closing argument in a previous case is similar to the prejudice created by systematically striking jurors on racial grounds.

Relying on Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970), Kelly next asserts that substantial irregularities in the selection of jurors provide a basis to presume prejudice. However, the irregularities in Mosby arose out of a departure from statutory procedures governing the jury selection process. Mosby v. State, supra. Such is not the case here as no statutory mandate addresses the trial court’s actions in this case. Thus, Kelly’s reliance on the Mosby case is misplaced.

In his third attempt to suggest an analogous situation, albeit without any citation to authority, Kelly states that jury impartiality is of such sanctity that litigants need not necessarily show prejudice if the circumstances of the jury formation are tainted. This court has held that it will not consider an argument that presents no citation to authority or convincing argument. See Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001). Furthermore, Kelly’s blanket presumption completely ignores well-established legal principles in Arkansas law. Jurors are presumed to be unbiased and the burden is on the appellant to show otherwise. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). Additionally, jurors are presumed to comprehend and follow court instructions. State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000); Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). Kelly concedes that he cannot point to any juror in this case who was prejudiced by the prosecutor’s closing argument in the previous case. Nonetheless, he maintains that prejudice should be presumed from that event. Absent supporting law or a cogent argument, this court will not presume bias or presume that a jury is incapable of following the trial court’s instructions.

Lastly, relying on Mays v. State, 264 Ark. 353, 571 S.W.2d 429 (1978), and Long v. State, 260 Ark. 417, 542 S.W.2d 742 (1976), Kelly claims that a jury’s exposure to a closing argument by the same prosecutor in a previous case involving similar allegations is functionally equivalent to a jury’s exposure to a wholly improper closing argument. We disagree. In the Mays and Long cases, the jury had already heard evidence before the prosecutor made improper statements during closing argument, that is, statements not supported by the evidence. In contrast, no allegation has been made in this case that the prosecutor made any improper remarks following the presentation of evidence. Any taint that may have occurred as a result of the jury’s exposure to the prosecutor’s closing argument in the earlier case was cured by the trial court’s prompt admonition prior to voir dire. Furthermore, defense counsel’s questioning during voir dire failed to disclose any bias on the part of any juror who sat on this case.

While Arkansas law contemplates that an entire jury panel may be challenged, Ark. Code Ann. §§ 16-33-302, 306 (Repl. 1999), we have held that the trial court’s refusal to quash a jury panel is reviewed for an abuse of discretion. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). Based on the facts and circumstances in this case, we cannot say that the trial court abused its discretion in refusing to quash the jury panel.

Affirmed.