text:
    Jesse James TERRY v. STATE of Arkansas
    CR 90-97
    796 S.W.2d 332
    Supreme Court of Arkansas
    Opinion delivered October 1, 1990

      Henry C. Morris, for appellant.

      Steve Clark, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Jesse James Terry, was found guilty of aggravated robbery and, because he was an habitual offender, was sentenced to life in prison. We need not state the facts of the robbery since appellant does not question the sufficiency of the evidence. His primary point of appeal is that the trial court erred in its ruling after he acted in a contumacious manner. The argument is without merit.

On the day of trial, appellant sought a continuance which was denied by the trial court. Appellant became upset, stated, “there ain’t gonna be no court today then,” and walked into the spectator area. The court asked appellant at least six times to return to the table and sit down so the trial could proceed. At one point the court warned, “I would sit down before I have them sit you in the chair.” Appellant did not heed the warning, and the court finally instructed the bailiffs to “do whatever you need to do . . . [i] f you need to cuff him, cuff him.” The transcript notes that a struggle ensued which lasted several minutes, requiring six officers to handcuff appellant. The entire episode took place in front of the prospective jurors. The court immediately admonished the jury to disregard the incident instructing them that it had nothing to do with appellant’s guilt or innocence. Appellant was returned to his jail cell. The judge, attorneys, and court reporter followed him there. The judge informed appellant that he could return to the court room at any time as long as he did so with civility, but that the trial was going to proceed either with or without him. Appellant did not return at that immediate time, and voir dire of the jurors started without him. Shortly thereafter, while voir dire was still proceeding, he returned to the courtroom in handcuffs.

Appellant’s argument involves two distinct constitutional rights: the right of confrontation and the right to a fair trial. His removal from the courtroom raises issues concerning his right of confrontation. His being handcuffed, and the jury’s observation of the melee, raise issues concerning the right to a fair trial, more particularly, his right to a jury that will presume his innocence.

Right of Confrontation

In Illinois v. Allen, 397 U.S. 337, 338 (1970), the United States Supreme Court was faced with the issue of “whether an accused can claim the benefit of this constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.” The Court concluded that a defendant can lose his right to be present at trial if, after being warned that he will be removed from the courtroom, he nevertheless conducts himself in such a manner that his trial cannot proceed. The Court further held that the right to be present at trial could be reclaimed as soon as the defendant is willing to conduct himself in a manner that is consistent “with the decorum and respect inherent in the concept of courts and judicial proceedings.” Id. at 343.

Appellant’s right of confrontation under the sixth amendment to the Constitution of the United States was not violated. He became disruptive, and ignored the court’s warnings to return to his seat. Although the court did not specifically warn appellant that he might be removed from the courtroom before he was actually removed, the court immediately suspended the trial and, along with other essential-persons, went to appellant’s cell to try to convince him to return to the courtroom without being opprobrious, warned appellant that the trial would proceed with or without him, and informed him that he could return at any time as long as he did so without contumacy. Appellant clearly relinquished his right to be present at his trial because of his own actions. He subsequently reclaimed the right by conducting himself in a manner consistent with the decorum that is essential in judicial proceedings.

Presumption of Innocence

The presumption of innocence is not articulated in the Constitution of the United States; however, it is a basic component of a fair trial and the right to a fair trial is a fundamental liberty secured by the fourteenth amendment. Estelle v. Williams, 425 U.S. 501, 503 (1976). Consequently, courts must be vigilant in guarding against dilution of the presumption of innocence so that guilt will be established beyond a reasonable doubt by probative evidence. Deleterious effects on fundamental rights call for close judicial scrutiny. Id. at 504. Factors which might affect a juror’s judgment, however, cannot always be avoided. Id. at 505.

In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court listed three constitutionally permissible ways for a trial judge to handle an obstreperous defendant: “(1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.” The Court recognized that shackles and gags should only be used as a last resort, not only because of the effect they might have on a jury’s feelings about the defendant, but also because such measures themselves are an affront to the dignity of the court. The Court in Williams, supra, reaffirmed the substantial need to impose physical restraints upon contumacious defendants and noted that, “[t]he contumacious defendant brings his plight upon himself and presents the court with a limited range of alternatives. Obviously, a defendant cannot be allowed to abort a trial and frustrate the process of justice by his own acts.” Williams, 425 U.S. at 505. In short, trial judges confronted with disruptive defendants must be given sufficient discretion to handle different situations which may arise in their courtrooms. Illinois v. Allen, 397 U.S. at 343.

A.R.Cr.P. Rule 33.1 comports with the United States Supreme Court cases on this matter:

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.

It is clear from the nature of appellant’s outbursts and the fact that it took six officers to restrain him that the handcuffs were reasonably necessary to maintain order, both at the time of his ouster from the courtroom and continuing after his return. Further, the recorded events speak for themselves concerning the reasons for the restraint. No further reasons were required to be set forth. Finally, the trial court instructed the jury several times that they must disregard the melee in assessing the proof and determining guilt.

In summary, appellant’s own conduct brought about the need for restraint. He was not denied his right to a fair trial.

Appellant’s second point requires little discussion. He argues that the record is silent regarding his legal representation, or waiver thereof, on the two prior convictions used to enhance his punishment. Appellant is mistaken. The record contains two exhibits which establish that appellant was represented by counsel with respect to both of the convictions.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and the Court of Appeals, an examination has been made of all motions and objections decided adversely to appellant, and we find no errors prejudicial to the rights of appellant.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    William Glenn POMERLEAU v. STATE of Arkansas
    CR 90-110
    795 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered October 1, 1990

      William R. Simpson, Jr., Public Defender, and Didi H. Sailings, Deputy Public Defender, by: Thomas B. Devine III, Deputy Public Defender, for appellant.

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

Appellant was charged with capital felony murder in the stabbing death and robbery of David Lynn Kay. After a jury trial in Pulaski County Circuit Court, appellant was convicted of felony murder in the first degree and sentenced to life imprisonment. Appellant’s sole point for reversal is that there was insufficient evidence to support his conviction.

Appellant freely admits he killed Mr. Kay, but he argues that, before he can be convicted of first degree murder under Ark. Code Ann. § 5-10-102(a)(l) (Supp. 1989), the state had to show he murdered Kay in the course and in the furtherance of committing a robbery, which was the underlying felony alleged in the state’s information. Relevant to the facts here, a person commits robbery if he employs physical force upon another in attempting to commit a theft. See Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985); Ark. Code Ann. § 5-12-102 (Supp. 1989). Appellant contends that, taking the state’s evidence in its best light, that evidence shows only that appellant committed a theft after the killing was completed. We disagree.

In Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984), the defendant was charged with capital felony murder, rape and aggravated robbery, and in one count, Owens was charged with employing the use of physical force for the purpose of committing a theft. Similar to appellant’s argument in the present case, the defendant in Owens argued that, while he had confessed to the theft, he claimed the theft was an afterthought to his attack on his victim. In disposing of Owens’s contention, we stated as follows:

We need not attempt to fathom Owens’ mind to determine whether theft came to him as forethought or an afterthought to his attack on Ms. Moore. He admitted having only a few coins when he entered Ms. Moore’s home and then going promptly to purchase and consume drugs. The proof clearly permitted a finding that Owens took the money, and whether his primary purpose was other than obtaining money, it is enough under the circumstances that the murder and the theft occurred during the same brief interval. The jury could have inferred that theft was a purpose behind his assault, it need not have been the only purpose.

Owens, 283 Ark. at 334, 675 S.W.2d at 838.

The case of Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976), is also helpful. There the defendant was convicted of capital felony murder while in the perpetration of a robbery. On appeal, Grigsby argued that his directed verdict motion should have been granted because the only evidence about what happened at the time of the killing showed that he took his victim’s property after the killing and that there was no evidence that the taking was anything other than an afterthought. In rejecting Grigsby’s argument, we concluded that for us to rule as a matter of law that the robbery was an afterthought would require that portions of Grigsby’s statement, which was mostly exculpatory, be taken at face value. We further stated the following:

If indeed Grigsby murdered Childers, and the killing was not accidental, it would be difficult to believe that anything other than robbery motivated the killing. Suffice it to say that the circumstantial evidence here furnishes adequate support for the jury’s finding that Childers was killed in the perpetration of a robbery.

Grigsby, 260 Ark. at 507, 542 S.W.2d at 280.

In the instant case, appellant gave two taped statements wherein he admitted he killed Mr. Kay. As previously mentioned, however, he claims that these statements reflect he only stole Kay’s property after he killed Kay. However, to accept appellant’s contention on this point would require us to take at face value certain portions of his statements, when, to do so, would run contrary to the settled rule that the jury has the right to accept that part of a defendant’s statement and testimony it believed to be true and reject that part it believed to be false. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988); Grigsby, 260 Ark. 499, 542 S.W.2d 275. In addition, in examining appellant’s statements, we note that inconsistencies exist between the two, and some of the assertions contained in both defy common sense or belief.

In sum, appellant’s version of what occurred was that he was hitchhiking from California back to his home in Maryland when Mr. Kay picked him up on Interstate 40 in Little Rock. Appellant accompanied Kay to his home ostensibly for the purpose of having some drinks, yet at all times, appellant kept a weapon (knife) concealed on his body. Appellant says he accepted Kay’s invitation to spend the night on the couch and that he was later awakened by Kay’s attempt to unfasten appellant’s pants. Appellant struck Kay, and he then stabbed Kay several times in the throat. Appellant then claimed Kay, who had been repeatedly stabbed and had no weapon of his own, tried to stop appellant from fleeing out of the carport door of Kay’s house. In their struggle, the two men returned to the inside of the house, where appellant proceeded to stab Kay a total of forty-three times. The state’s medical evidence showed many of Kay’s wounds were defensive in nature. Appellant asserted that, after the stabbing of Kay, his only thought was to “get the hell out of Dodge.” Nonetheless, appellant’s next move was to tie up Kay with his neckties, but he aborted that idea when he discovered Kay was dead. After killing Kay, appellant showered, changed clothes and ransacked the house, taking cash, jewelry, a VCR and Kay’s new automobile.

In viewing the evidence in the light most favorable to the state, we have no hesitancy in concluding that a jury could have inferred that theft was the motivating purpose behind appellant’s attack on Mr. Kay and that Kay’s murder facilitated that purpose. Appellant admittedly did not have enough money to return to his Maryland residence. After going with Kay, appellant spent little time with him before stabbing and killing him — which acts permitted appellant to acquire money, an automobile and other property that allowed him to resume his journey to Maryland. Like the situations that occurred in the Owens and Grigsby cases, the appellant’s killing of Kay and theft of his money and property took place within a brief interval of time.

In considering the evidence and circumstances depicting and surrounding the killing and theft, we believe the jury clearly could have inferred the appellant murdered Kay with the purpose of taking his money and property. Accordingly, we affirm. In affirming, we also state that we have examined all other objections made during the trial pursuant to Sup. Ct. R. 11 (f) and find no error.


author: Otis H. Turner, Justice. Glaze, J.,

text:
    Austin E. SALLEY v. STATE of Arkansas
    CR 90-116
    796 S.W.2d 335
    Supreme Court of Arkansas
    Opinion delivered October 1, 1990

      William R. Simpson, Jr., Public Defender, by: Bret Qualls, Deputy Public Defender, for appellant.

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

The appellant was charged with burglary and attempt to commit capital felony murder. Following a jury trial, he was convicted and sentenced as an habitual criminal to 60 years imprisonment. From that conviction and sentence, this appeal is taken. (The appellant was also sentenced to 10 years on the burglary charge, but that conviction and sentence is not an issue on this appeal.)

For reversal, the appellant first contends that the evidence is insufficient to sustain a conviction for attempted capital murder, and, second, that the trial court committed reversible error by permitting police officers to give “opinion” testimony. We find no reversible error and affirm.

An uninvolved third party observed the appellant and another person in an alley. Their conduct, appearing suspicious, prompted the third party to call the Little Rock police. When the police arrived, the informant pointed out the two individuals who were some distance down the street. The officers, in their patrol car, approached the suspects. Upon arrival, Officer Jeffrey Yant got out of the vehicle and directed the two individuals — one of whom he recognized as Austin Salley, the appellant—to move up against a nearby wall. Salley then reached inside his pants, produced a handgun, and pointed it at Officer Yant. He fired once, missing the officer. Yant took evasive action by diving backwards and rolling to the ground. While Yant was on the ground, the appellant fired two more shots at him, neither of which hit the mark. Salley then ran away, with Officer James Lesher in pursuit. The appellant fired once more at Officer Lesher, with the officer returning fire, none of the shots hitting either party. Salley, who had been recognized, was subsequently arrested, charged, and tried.

The appellant first contends that the state failed to produce any evidence that he acted with premeditation and deliberation in attempting to kill Officer Yant, and was thus entitled to a directed verdict on the attempted capital murder charge.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Henson v. State, 300 Ark. 1, 775 S.W.2d 896 (1989). In a challenge to the sufficiency of the evidence, the Supreme Court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, the Supreme Court need only consider evidence in support of the conviction. Id.

Under Ark. Code Ann. §§ 5-3-201 (1987) and 5-10-101 (Supp. 1989), premeditation and deliberation constitute the necessary mental state for the commission of attempted capital murder. Premeditation and deliberation may be inferred from circumstantial evidence. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). Premeditation and deliberation need not exist for any particular length of time and indeed may be formed almost on the spur of the moment. Id.; Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). These elements may also be inferred from the circumstances of the case, such as the character of the weapon used, the manner in which it was used, and the conduct of the accused under all of the circumstances existing. Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987).

The circumstances in the present case are similar to those in Shaw v. State and Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978), cases involving convictions for attempted capital felony murder of policemen. The chief distinction between those cases and the appellant’s case is the fact that here the officer was not wounded, while in Shaw and Stout, the officers were seriously injured. Otherwise, the situations are comparable involving attempts by police to stop and question persons engaged in suspicious behavior. In all three cases there was testimony that the accused pointed guns at the officers and fired. Here the appellant fired a total of three shots at Officer Yant.

From the circumstances of the shooting, where the appellant had time in which to decide to fire two additional shots at the policeman — to say nothing of an extra shot discharged in the direction of Yant’s partner during the chase — there was certainly substantial evidence from which a jury could infer premeditation and deliberation. See Shaw v. State and Stout v. State.

The appellant next contends that it was error to permit the police officers to give opinion testimony. Upon direct examination, both Officer Yant and Officer Lesher were permitted to testify, over the appellant’s timely objection, that they thought the appellant was trying to kill Officer Yant when he fired at him from point-blank range. Officer Yant described the flash of the pistol and said that he was “looking right down the muzzle.” Officer Lesher testified that the gun was pointed at Officer Yant when the first shot was fired from a distance of 4 to 6 feet.

Counsel for the appellant objected on the grounds that the state was seeking “an opinion.” The prosecution agreed that she was indeed eliciting opinion testimony.

Arkansas Rules of Evidence Rule 701 permits opinion testimony of a lay witness when the opinions are rationally based on the “perception” of the witness and are helpful to a clear understanding of his testimony or a determination of a fact in issue. The testimony of both Officers Yant and Lesher meet the requirements of A.R.E. Rule 701.

In Mathis v. State, 267 Ark. 904, 591 S.W.2d 679 (Ark. App. 1979), an eyewitness to a shooting was permitted to testify that in her opinion the shooting was not accidental as alleged by the defendant. The testimony was approved pursuant to A.R.E. Rule 701. Federal Rules of Evidence Rule 701 has likewise been held to permit such opinion testimony. See United States v. Sheet, 665 Fd.2d 983 (9th Cir. 1982). .

We have previously drawn the fine distinction between a permitted opinion which “touches upon the ultimate issue” and an opinion, not admissible, which “tells the jury what to do.” Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981).

The testimony of the officers — one of them the intended victim — that a handgun was fired point blank at Officer Yant and that the appellant appeared to be shooting to kill is quite different from an expert utilizing established facts and from those facts making a conclusory statement that the actor was “negligent” or “guilty of malpractice.”

Arkansas Code Annotated §§ 5-3-201 and 5-10-101, encompassing the crime of attempted capital felony murder, require an intent to cause death after premeditation and deliberation. The opinion testimony objected to by the appellant deals only with the single element of intent and does not tell the jury to convict; to that extent only it touches upon the ultimate issue. See Gramling v. Jennings; Mathis v. State. The jury is then left to determine the ultimate issue — whether intent plus premeditation and deliberation are proved to the jury’s satisfaction beyond a reasonable doubt. See McClellan v. French, 246 Ark. 728, 439 S.W.2d 813 (1969).

As we find no reversible error, the conviction is affirmed.

Affirmed.

Glaze, J.,

concurring: Regarding appellant’s second contention, I agree the officers’ opinions were properly admitted under A.R.E. Rule 704 and the rationale set out in Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).


author: Dale Price, Justice.

text:
    STATE of Arkansas v. Garland Charles SHERMAN
    CR 90-84
    796 S.W.2d 339
    Supreme Court of Arkansas
    Opinion delivered October 1, 1990

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for petitioner.

      Stripling & Morgan, by: M. Edward Morgan, for respondent.
   Dale Price, Justice.

We are asked to review the decision of the court of appeals in Sherman v. State, 30 Ark. App. 217, 785 S.W.2d 49 (1990). The question presented is whether the appellant may appeal from his plea of guilty. The court of appeals answered this question in the affirmative and gave the appellant the relief he requested. We reverse that decision and dismiss the appeal.

The facts are that the appellant was charged with theft by receiving, a Class C felony. He decided to plead guilty and a plea hearing was held. At the hearing, he was informed that the offense carried a, penalty of three to ten years in prison. He acknowledged that he understood that fact and entered his plea, which was accepted by the trial judge. The judge delayed imposition of sentence pending a presentence investigation.

Two weeks later, the judge received the results of the presentence investigation. The results showed that the appellant had four prior felony convictions. The appellant was not charged as a habitual offender, nor was he informed at the plea hearing that any prior convictions would be used to enhance his punishment. Nevertheless, the judge decided sua sponte to sentence the appellant to thirty years in prison as a habitual offender. The appellant objected immediately, but the judge let the sentence stand. An appeal was taken to the court of appeals. That court reduced the appellant’s sentence to ten years, the maximum allowable for a Class C felony. The state then asked us to review that decision, contending that Arkansas law does not permit appeals from guilty pleas except in very limited circumstances.

We have recognized many times that there is no right to appeal from a guilty plea. See Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1990); Redding v. State, 293 Ark. 411, 783 S.W.2d 410 (1987). See also Ark. Code Ann. § 16-91-101 (c) (1987); A.R.Cr.P. Rule 36.1. The exception to this rule, not applicable here, is contained in A.R.Cr.P. Rule 24.3(b). Nevertheless, the court of appeals, relying on the case of Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988), allowed this appellant to pursue relief on appeal. The reliance on Brimer was misplaced. There, the appellant claimed that the sentence imposed on her as a result of her guilty plea was in excess of that allowed by law. We heard her appeal and remanded the case for resentencing. Reading Brimer, it appears that, in all important respects, it is indistinguishable from the case at bar. In truth, the case can be distinguished. Brimer did not appeal solely from her plea of guilty; she also appealed from the trial court’s denial of her post trial motion to correct an illegal sentence. In retrospect, we should have made this clear for the benefit of future readers of the opinion. We take this opportunity to clarify Brimer. That case does not stand for the proposition that an appeal can be taken from a guilty plea.

We now discuss the decisions which are applicable to this case. Two recent opinions, Henagan v. State, 302 Ark. 599, 791 S.W.2d 371 (1990) and Jonesv.State, 301 Ark. 510,785S.W.2d 217 (1990) (supplemental opinion on denial of rehearing decided May 21, 1990), are helpful in deciding the issue presented. In Jones, the appellant pled guilty to several offenses. After pleading, he asked for jail time credit, which was denied. He appealed from that denial. Despite the state’s argument that we had no jurisdiction of the appeal because it was taken from a guilty plea, we addressed the merits of the case. We characterized the appeal not as one from a guilty plea, but from a post trial motion to correct a sentence, thereby giving us jurisdiction.

In Henagan, supra, the distinction between an appeal from a guilty plea and an appeal from the denial of a post trial motion was addressed again. There, Henagan pled guilty and asked for probation, which the trial court declined to impose. He appealed from that decision. We dismissed his appeal on the ground we had no jurisdiction to hear it. We distinguished the Jones case as follows:

We recently decided in Jones v. State. . .that we could hear an appeal from a decision made pursuant to Ark. Code Ann. § 16-90-111(b)(1) (Supp. 1989) [correction or reduction of sentence] denying jail time credit against a sentence imposed pursuant to a guilty plea. . . .Here we are not dealing with an appeal from the decision on a post trial motion but with an appeal from the sentencing procedure which was an integral part of the acceptance of Henagan’s plea of guilty.

The distinction between Jones and Henagan is a fine one, but it is significant. Jones appealed from the trial court’s failure to modify his sentence by applying jail time credit. The validity of the sentence imposed as a direct result of his guilty plea was not questioned. In Henagan, the appellant simply challenged the sentence he received upon his plea of guilty. The key in each case was whether the appeal was from “the sentencing procedure which was an integral part of the acceptance of [the] plea of guilty.” Failure to credit jail time in Jones was not an integral part of the acceptance of the guilty plea. Failure to impose probation instead of a term of years in Henagan was an integral part of the acceptance of the guilty plea.

The case at bar is controlled by Henagan. The appellant challenges the validity of the sentence he received as a direct result of his guilty plea. Therefore, the appeal is from a sentencing procedure which was an integral part of the acceptance of the appellant’s guilty plea. The appeal must be dismissed.

The appellant is not left without a remedy. A motion to correct an illegal sentence may be filed subsequent to the dismissal of this appeal. Ark. Code Ann. § 16-90-111(b) (Supp. 1989). In the alternative, the appellant may seek relief under A.R.Cr.P. Rule 37. See Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986) (motion to withdraw guilty plea filed after sentencing may be treated as a Rule 37 petition). Even though Rule 37 was abolished in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), the appellant was sentenced while the rule was still in effect.

Appeal dismissed.


text:
    Kenneth D. TRAYLOR v. STATE of Arkansas
    CR 90-119
    795 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered October 1, 1990

      Joe K. Hardin, for appellant.

      Steve Clark, Att’y Gen., by; Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

The appellant was convicted of breaking or entering, theft of property, and of being a felon in possession of a firearm. He raises six issues on appeal. Five of those issues involve direct attacks on his conviction. We consider only the sixth issue in which the appellant claims the trial court should have ordered a new trial due to ineffective assistance of counsel.

Less than thirty days after his conviction, the appellant filed a motion for a new trial asserting that his representation at trial had been inadequate. See A.R.Cr.P. Rule 36.4. The motion was filed in . a timely manner and new counsel was appointed. However, the record does not reflect that the motion was ever acted upon by the trial court. Therefore, as in Mobbs v. State, 303 Ark. 98, 792 S.W.2d 601 (1990), we do not reach the merits of the case. We remand to the trial court for consideration of the post-conviction motion.

Remanded.


author: Per Curiam. Tom Glaze, Justice,

text:
    IN RE: William P. “Billy” SWITZER, Crossett Municipal Judge
    90-8
    796 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered October 1, 1990

      Robert J. Johnson, for petitioner.
    No response.
   Per Curiam.

William P. “Billy” Switzer is the Municipal Judge of Crossett. His present term of office runs through December 31,1990. On November 21,1989, Judge Switzer was indicted by the Grand Jury of Ashley County for the felony of public servant bribery and the misdemeanor of hindering apprehension. A copy of the indictment was certified to the Judicial Discipline and Disability Commission and a hearing was scheduled to determine whether the Commission should recommend to this Court that Judge Switzer be suspended from office while charges were pending. Neither Judge Switzer nor his counsel attended the Commission hearing. The Commission made a finding of fact that the charges affected Judge Switzer’s ability to perform his judicial duties and recommended that this Court suspend Judge Switzer from office with pay pending disposition of the criminal charges against him. This Court, by Per Curiam opinion on February 12, 1990, suspended Judge Switzer from office with pay “pending the disposition of criminal charges against him.”

Judge Switzer has now petitioned this Court to reinstate him to judicial office because “all charges against petitioner have been dismissed.” Because this is the first petition for reinstatement to come before us since the creation of the Judicial Discipline and Disability Commission, we take the opportunity to set forth the procedure involved in such cases.

“The ground for suspension, leave, or removal from office shall be determined by legislative enactment.” Ark. Const, amend. 66(b). (Emphasis in constitution.) Rule 9 of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission provides that the “grounds for discipline are those established” by the constitution of Arkansas and Title 16, Chapter 10, Subchapter 4 of the Arkansas Code Annotated. Clearly then, the legislature is the branch of government empowered to establish the grounds for suspension, other than those set out in the constitution.

Ark. Code Ann. § 16-10-408(1) and (2) (Supp. 1989) provide for suspension with pay while an information or indictment is pending, or while a recommendation by the Commission for removal is pending. Neither such proceeding is now pending and, accordingly, we must vacate Judge Switzer’s suspension.

This does not necessarily mean that the matter is ended. Rule 10(b) of the Discipline and Disability Rules provides that a temporary suspension with pay, as was had in this case, “shall not preclude action by the Commission with respect to the conduct that was the basis for the felony or misdemeanor charge, nor shall the disposition of the charge in any manner preclude such action.” Thus, the Commission might proceed against Judge Switzer on the basis of the alleged misconduct underlying the criminal charges. We express no opinion on such proceedings involving Judge Switzer, as review of such a proceeding might later come before this court.

Perhaps the use of a hypothetical example is the best way to describe such a proceeding: Suppose numerous witnesses saw a judge commit a felony involving dishonesty and he was charged accordingly, but was not afforded a speedy trial and, therefore, the charges against him were dismissed. Although the charges were dismissed, there are numerous witnesses who could testify about the judge’s violation of “ethical standards for judicial office,” see Ark. Const, amend. 66(b), or his committing an act “involving dishonesty.” See Ark. Code Ann. § 16-10-410(b)(3) (Supp. 1989). If the Commission heard the witnesses at a formal disciplinary hearing, and found them credible, it could make such a finding of fact and forward it to this Court. See Rule 11 of the Discipline and Disability Rules. We could suspend the judge with pay while the allegation was pending, Ark. Code Ann. § 16-10-408(2) (Supp. 1989), and, after the formal hearing and a report from the Commission, could permanently remove the judge from office. Ark. Code Ann. § 16-10-410 (Supp. 1989).

Again, we are not expressing an opinion on whether the Commission should proceed further against Judge Switzer. It is our intention to make clear in this precedent setting case that under our law the granting of this petition does not necessarily end the matter.

Petition for Reinstatement Granted.

Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. In my view, the court renders too much advice that simply is unnecessary. Amendment 66 to the Arkansas Constitution, (Ark. Code Ann. § 16-10-408(2) (Supp. 1989)), and Rule 10(b) of the Discipline and Disability Rules are crystal clear. In particular, § 16-10-408(2), in pertinent part, provides that the supreme court may suspend a judge with pay while a recommendation to this court for his or her removal by the commission is pending. The Commission recommended that this court suspend Judge Switzer from office with pay pending disposition of criminal charges against him and this court ratified that recommendation. The Commission has not withdrawn its recommendation and this matter is still pending before the Commission — which is where Judge Switzer should seek his relief. At this stage of the proceeding, this court’s premature intervention can serve only to complicate matters.

I would dismiss Judge Switzer’s petition without prejudice to his filing an appropriate petition with the Commission.

Hays, J., joins this dissent.


author:
Jack Holt, Jr., Chief Justice. Steele Hays, Justice,
      Tom Glaze, Justice,

text:
    Jerry Lee WINGFIELD v. STATE of Arkansas
    CR 90-70
    796 S.W.2d 574
    Supreme Court of Arkansas
    Opinion delivered October 8, 1990

      James R. Marschewski, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On July 19, 1989, the appellant, Jerry Wingfield, was convicted of murder in the first degree and felon in possession of a firearm and sentenced, respectively, to concurrent terms of life and six years in the Arkansas Department of Correction.

Wingfield alleges two points of error on appeal: 1) the trial court erred in failing to grant his motion for mistrial, and 2) the trial court erred in refusing to suppress letters written by him while he was incarcerated. We agree that the trial court erred in failing to grant Wingfield’s motion for mistrial and reverse and remand.

Wingfield initially asserts that the trial court erred in failing to grant his motion for mistrial after a witness referred to a polygraph examination. Upon direct examination of Detective Sergeant J.C. Rider, Fort Smith Police Department, by Wingfield’s attorney, the following exchange occurred:

* * * *
Q Okay. Do you remember Frankie [Frank Boyles, Wingfield’s nephew] denying to you that he was involved in the burglary of the house in Oklahoma, where the murder weapon came from?
A He denied that, to start with, when we first spoke with him in the Oklahoma County jail.
Q Okay. Officer, I’m talking about the April the thirteenth statement. That’s the last reported statement that I have—
A Okay.
Q--On the one, two, three, four, five, sixth page. You
asked him did you not: Okay, did you help him [the defendant] on that, referring to the Mason burglary, because he told you that Jerry burglarized the whole house, didn’t he?
A Yes, sir. But, to start with, he had denied even being there.
Q Yes, sir. He denied being there. He denied, first of all, knowing anything about it, denied knowing where the gun came from isn’t that right?
A To start with.
Q Yeah.
A Yes, sir.
Q And I’m talking about April the thirteenth, you’re sitting down — I mean, he’s still in Oklahoma and you went to talk to him. And on this page, he had still told you that Jerry was the [one] who broke in and got everything?
A Yes, sir. And I have to admit that’s probably a mistake on my part for letting that pass, as I did, because earlier in the day, myself and Sergeant Boyd had interviewed him in the jail before taking him to OSBI headquarters for a polygraph. He had —
MR. MARSCHEWSKI: Your Honor, can we approach the bench.
(AT BARSIDE, OUT OF JURY’S HEARING:)
MR. MARSCHEWSKI: I’m going to make a motion for a mistrial at this time. The officer has referred and implied that they took Frankie Boyles to the OSBI headquarters for a polygraph examination. Judge, I think that that is inadmissible. He doesn’t have to say what it’s about. That is an indication that a jury cannot escape that presumption. That’s why the police believe him, is that somehow that’s related to a polygraph examination. I move for a mistrial and ask that the Court grant it.
THE COURT: It will be denied.
MR. MARSCHEWSKI: Well, Your Honor, then I would like to know if I can go to the issue of the polygraph examination.
THE COURT: It’s up to you.
MR. MARSCHEWSKI: He flunked the polygraph examination, is my understanding, although the OSBI has not provided me that information. I would like to have a recess and ask the State to bring down the polygraph examiner, here, to testify today. And they told me that they would have him here.
MR. BELAND [Prosecuting Attorney]: No, Mr. Marschewski. I didn’t tell you, I said I’d try to get in touch with him. Your Honor, the man’s name is Gary Rogers. He’s stationed out of Ada, I’ve not been able to make contact with him. Mr. Marschewski mentioned nothing about him till —
THE COURT: The statement of this officer, so far, has just been he took him to one. I don’t think we’re getting into that, yet; if you want to go into it, you can do it, but I’m not going to recess for anything, Mr. Marschewski. I don’t think it’s got a thing in the world to do with this case.
MR. MARSCHEWSKI: Yes, Your Honor, because it’s my understanding in taking the polygraph, that they asked him about the murder incident and he flunked it. You know, the officer’s implied to the jury that he has taken him down to the polygraph examination and now
THE COURT: I don’t care whether he did or not. In my opinion, it’s not relevant evidence and shouldn’t be inquired into. If you want to and the State doesn’t object to it, I’ll let you go into all of it, you want to but I’m not going to recess and get anybody here.
(BARSIDE CONFERENCE CONCLUDED)
CONTINUED DIRECT EXAMINATION
* * * *
Q You know, he’s — you know, talking about being able to get them guns and stuff and saying that he might be able to get some guns and stuff like that. Then he came back and told me how’d he’d gotten those guns and then he got into all that stuff, so, then he was always talkin’ about going to Cushing, over to Pat’s. Now, is that right?
A Well, that’s what he told me at the time, sir, but it’s like I told you I made a mistake probably in letting that slide, letting that statement slide and pursuing it any further.
Q You mean not confronting him and telling him that he’s lying to you right then?
A Yes, sir, I let that slide. But he had told me the truth earlier in the day before he ever took the polygraph test about the burglary.
Q You mean he took a polygraph test about the burglary?
A No. He took a polygraph test concerning the homicide.
MR. MARSCHEWSKI: Your Honor —
THE COURT: Mr. Marschewski, you’re asking him about these things.
MR. MARSCHEWSKI: I didn’t ask him about that, Your Honor.
THE COURT: You should have guided him more in his testimony, Mr. Marschewski. Ladies and Gentlemen, whether or not this man took a polygraph test, what its results were is not admissible into evidence. It doesn’t have anything to do with this trial. You’re the searchers of the truth, here, and what you find to be the truth is what it’s going to be.
* * * *

Arkansas law prohibits the admission of polygraph test results, except upon a written stipulation of the parties. See Ark. Code Ann. § 12-12-704 (1987); Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989) (citing Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), cert. denied, 482 U.S. 929 (1987)). Relying on Johnson v. Florida, 166 So. 2d 798 (Fla. 1964), we have also held that any reference to a polygraph test, in the absence of an agreement or other justifiable circumstances, ordinarily constitutes prejudicial error. (Emphasis added.) See Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981) (citing Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980)).

We conclude now, however, that our holdings in Roleson v. State, supra, and Van Cleave v. State, supra, were overbroad and take this opportunity to clarify our position on references to polygraph examinations. While neither the results of a lie detector examination nor testimony that indirectly or inferentially apprises a jury of the results of a lie detector examination are admissible, the fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences might be raised as to the result are not prejudicial. See Johnson v. Florida, supra.

Consequently, a witness’s veracity can not be bolstered or discredited by proof of his taking or refusing a lie detector test, and evidence of a witness’s willingness or reluctance to be examined is also prejudicial and inadmissible to prove consciousness of innocence or of guilt. Id..

It is axiomatic that a mistrial is an extreme and drastic remedy that should only be resorted to when there has been an error so prejudicial that justice could not be served by continuing the trial. The sound discretion of the trial court should not be disturbed unless abuse , of that discretion is shown. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980).

Here, there was no agreement between the parties as to the mention of the polygraph tests or their results, nor were there circumstances which justified a reference to polygraph tests. Further, the two references to a polygraph test, under the facts of this case, make obvious Officer Rider’s attempt to bolster the veracity and credibility of Frank Boyles’s testimony and thereby constitutes prejudicial error. See also Foster v. State, supra. The State’s argument that Wingfield invited the introduction of the error by eliciting Officer Rider’s mention of the polygraph test is without merit. To the contrary, a review of the verbatim testimony between Wingfield’s counsel and Officer Rider reveals that the references to a polygraph test were not responsive to the questions asked.

Wingfield made a timely objection to Officer Rider’s first mention of a polygraph test in connection with Frank Boyles. The trial court’s allowance of additional references to polygraph tests compounded its error, and the trial court’s admonition to the jury as to the inadmissibility into evidence of whether Frank Boyles had taken a polygraph test, or what the results of that test might have been, did not cure the resulting prejudice suffered by Wingfield. See Roleson v. State, supra. Consequently, the trial court abused its discretion in denying Wingfield’s motion for a mistrial.

Accordingly, we need not address Wingfield’s second point of error, and we reverse and remand.

Hays, Glaze and Turner, dissent.

Steele Hays, Justice,

dissenting. The majority concludes in effect that the mere mention of the word polygraph is so drastic that the trial judge’s firm instruction to the jury to disregard it could not remedy the incident and it was manifestly unjust for the trial to continue. Those are the words used by this court in countless cases dealing with mistrial motions because of some unpropitious occurrence during the trial. Johnson v. State, 254 Ark. 293, 493 S.W.2d 115 (1973), is typical. Moreover, the majority declares that the trial judge here abused his broad discretion by failing to recognize the egregious development and continuing the trial.

I respectfully disagree for a number of reasons: it was not the state that elicited the mention of polygraph; by all indications the mention was inadvertent; it was not the defendant but a witness who had taken a polygraph; most importantly, the jurors were not told the results of the polygraph.

In Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978), defense counsel mentioned polygraph in his opening statement, prompting the prosecutor to try to introduce the results of the polygraph which brought on a mistrial motion. Because the results were never before the jury, we affirmed the denial of a mistrial. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), a rape victim referred to a polygraph test administered to her, yet we found no abuse of discretion in the denial of a mistrial because the trial judge promptly admonished the jury to disregard the remark. The identical factors in this case favor affirmance. Noting that results of polygraphs are not ordinarily admissible, the author of Wicks, Justice George Rose Smith, wrote, “It does not follow that every reference to such a test calls for a mistrial, anymore than that is so when the court instructs the jury to disregard a statement based on hearsay.” Id., p. 784.

The trial judge witnessed this incident as it occurred and was better able to determine its cause and effect. I believe his handling of the matter was within the broad discretion invested in the trial courts and we should affirm. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980).

Tom Glaze, Justice,

dissenting. In a prior decision, this court, in misstating the holding in Johnson v. Florida, 166 So. 2d 798 (Fla. Dist. Ct. App. 1964), said that any reference to a polygraph test, in the absence of an agreement or other justifiable circumstances, would constitute error. Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). That misstated rule was again mentioned and applied in Roleson v. State, 272 Ark. 346, 614 S.W.2d 659 (1981). Today, the court corrects that case law by adopting the following rule set out in the Johnson decision:

[W]hile neither the results of a lie detector examination nor testimony which indirectly or inferentially apprises a jury of the results of a lie detector examination is admissible into evidence, the mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any references that might be raised as to the result are not prejudicial. (Emphasis added.)

Although the majority, in correcting this court’s earlier decisions, acknowledges that the mere reference to a polygraph test is not error, it then proceeds to reverse this case for that very reason.

Appellant’s trial strategy was to show that his nephew, Frank Boyles, was the trigger man. Boyles was a witness for the state and gave a first-hand account of the shooting. Boyles had made some inconsistent statements about his participation with the appellant in burglarizing a house and stealing some guns. Appellant hoped to focus on the inconsistencies of Boyles’s statements to the police to impeach his credibility.

In keeping with this objective, appellant called Detective Sergeant J. C. Rider as a witness. Appellant posed questions regarding whether Boyles participated in burglarizing a house and stealing some guns, including the weapon used later to shoot the murder victim, Stella Martin. Rider mentioned the words “polygraph test” two times during appellant’s examination. The first pertinent part of that colloquy is as follows:

Q And I’m talking about April the thirteenth, you’re sitting down — I mean, he’s still in Oklahoma and you went to talk to him. And on this page, he had still told you that Jerry was the [one] who broke in and got everything?
A Yes, sir. And I have to admit that’s probably a mistake on my part for letting that pass, asT did, because earlier in the day, myself and Sergeant Boyd had interviewed him in the jail before taking him to OSBI headquarters for a polygraph. He had —
MR. MARCHEWSKI: Your Honor, can we approach the bench.
(AT BARSIDE, OUT OF JURY’S HEARING.)
MR. MARCHEWSKI: I’m going to make a motion for a mistrial at this time. The officer has referred and implied that they took Frankie Boyles to the OSBI headquarters for a polygraph examination. Judge, I think that that is inadmissible. He doesn’t have to say what it’s about. That is an indication that a jury cannot escape that presumption. That’s why the police believe him, is that somehow that’s related to a polygraph examination. I move for a mistrial and ask that the Court grant it. (Emphasis added.)

As can be seen, even appellant’s counsel was aware Officer Rider had made no direct or indirect mention of any results of a polygraph test given Boyles. Instead, he was of the expressed impression that he was entitled to a mistrial merely because Rider “referred and implied that the [officers] took Frank Boyles to the OSBI headquarters for a polygraph examination.” In denying appellant’s mistrial motion, the judge clearly stated that all Rider had said was that Boyles had been taken to a polygraph test. The judge also admonished appellant’s counsel that he could not call the polygraph examiner as a witness, saying “I don’t think we’re getting into that... I don’t think it’s got a thing in the world to do with this case . . . it’s not relevant evidence and shouldn’t be entered into.”

Besides having failed to show Rider mentioned or implied what the results were of a polygraph given Boyles, appellant also showed no prejudice that could have arisen from Rider’s testimony. Appellant argued that the jury would presume that the police believed Boyles because of the polygraph examination. However, the jury did not hear the results of the polygraph examination but did hear evidence of Boyles’s inconsistent statements. As previously noted, appellant’s questions of Rider directly bore on whether Boyles had participated in a burglary in which the murder weapon was stolen. Boyles testified at trial, as did appellant, on this very subject. They both admitted to having participated in the burglary. Significantly, Boyles also admitted he had given a prior false statement that he never knew where the murder weapon came from. Appellant simply fails to show that the trial judge erred, or if error did occur, that it was prejudicial. This court has said that it will not reverse for errors that do not affect the essential fairness of a trial. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

The second passage or colloquy between Rider and appellant’s counsel where Rider mentioned the words “polygraph test” is as follows:

Q You know, he’s — you know, talking about being able to get them guns and stuff and saying that he might be able to get some guns and stuff like that. Then he came back and told me how’d he’d gotten those guns and then he got into all that stuff, so, then he was always talkin’ about going to Cushing, over to Pat’s. Now, is that right?
A Well, that’s what he told me at the time, sir, but it’s like I told you I made a mistake probably in letting that slide, letting that statement slide and pursuing it any further.
Q You mean not confronting him and telling him that he’s lying to you right then?
A Yes, sir, I let that slide. But he had told me the truth earlier in the day before he ever took the polygraph test about the burglary.
Q You mean he took a polygraph test about the burglary?
A No. He took a polygraph test about the homicide.
MR. MARSCHEWSKI: Your Honor —
THE COURT: Mr. Marschewski, you’re asking him about these things.
MR. MARSCHEWSKI: I didn’t ask him about that, Your Honor.
THE COURT: You should have guided him more in his testimony, Mr. Marschewski. Ladies and Gentlemen, whether or not this man took a polygraph test, what its results were is not admissible into evidence. It doesn’t have anything to do with this trial. You’re the searchers of the truth, here, and what you find to be the truth is what it’s going to be.

As can be readily seen, appellant’s counsel again delved into the conflicting statements Boyles had given concerning the burglary and theft of the guns, including the murder weapon, and Rider again referred to the fact that Boyles had taken a polygraph test. Once more, Rider made no mention of the test results, but even more importantly, this subject was thoroughly covered by counsel for appellant in his trial cross-examination of Boyles, and the jury knew full well that Boyles had previously lied when saying he had not participated in the theft of the guns. It is also noteworthy to mention that Boyles’s credibility was in issue from the outset of his testimony at trial because he admitted early on that he was serving time for the crime of robbery by force.

The trial judge did an excellent job in evaluating and ruling on the testimony given by Rider, Boyles and the appellant. He was correct in ruling that the polygraph test results were not mentioned nor were they admissible. And, in these circumstances where the appellant was able to impeach Boyles’s credibility by showing his inconsistent statements about prior criminal activity, the mention of the words “polygraph test” was not prejudicial. The trial judge further admonished the jury to this effect.

The majority, in my view, is seriously wrong in finding the trial court erred.

Hays and Turner, JJ, join this dissent.

       The trial court instructed as follows: Ladies and Gentlemen, whether or not this man took a polygraph test, what its results were is not admissible into evidence. It doesn’t have anything to do with this trial. You’re the searchers of the truth, here, and what you find to be the truth is what it’s going to be.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Ricky Joe KESTER v. STATE of Arkansas
    CR 90-105
    797 S.W.2d 704
    Supreme Court of Arkansas
    Opinion delivered October 8, 1990

      Phyllis J. Lemons, for appellant.

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

The appellant, Ricky Joe Kester, appeals from being convicted of the rape of his daughter. The conviction must be reversed because of the introduction into evidence of a video tape recording of a conversation between the daughter and a social worker. Additional points of appeal have been raised by Kester. We will discuss those which may arise on retrial.

In June, 1988, Hot Spring County social services workers learned that Kester might have molested his nine-year-old daughter. Interviews were conducted as a result of which Kester left home. In July, Kester was given permission to accompany his wife and children, along with a social worker, to Arkansas Children’s Hospital at Little Rock for an eye examination for his son. While at the hospital, the Kesters asked that the daughter be given a physical examination.

In conjunction with the examination, the daughter was taken into a room by a hospital social worker and questioned about what had happened between her and her father. She said Kester had had vaginal and anal intercourse with her. The conversation was recorded on video tape. The physical examination revealed that the daughter’s hymen was intact but there was some scar tissue and an irregularity described by the examining physician as a “notch.”

Thereafter, the children were removed from the home at the instance of social services, and Kester was charged. The daughter’s deposition was given and recorded on video tape. Both the hospital tape and the deposition were played for the jury. The daughter did not testify.

1. The hospital tape

The video tape of the daughter’s statement to the hospital social worker was admitted as within an exception to the hearsay rule. The court remarked that, as the statement was not taken as a deposition at the instance of the state, there was no requirement for notice or confrontation of the witness by the accused. It was correct to conclude that the statement was not taken as a deposition in accordance with Ark. Code Ann. § 16-44-203 (1987). It was error, however, to conclude that the tape could be admitted as an exception to the hearsay rule.

As we pointed out in Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987), Arkansas Rules of Evidence 803(25) provides a general exception to the hearsay rule for the statements of children under age 10 concerning sex offenses against the child witness. We held, however, that the failure to follow the provisions of §16-44-203 was fatal to the admissibility of a video taped statement of the child witness. The accused’s right of confrontation was violated, and the witness was allowed to testify twice.

The state contends that Kester failed to get a specific ruling on the admissibility of the hospital tape. That is incorrect. As noted above, the court specifically stated it was admissible as an exception to the hearsay rule.

Conceding that the Cogburn case is similar to this one, the state argues that the admission of the hospital tape was harmless error. In the Cogburn case, the child witness testified in person at the trial. Here, the daughter’s deposition video tape was played for the jury in addition to the tape made at the hospital. She was thus allowed to testify twice. The prejudice here is thus the same as that we described in the Cogburn case. There was additional prejudice in that the daughter mentioned anal intercourse in the hospital statement but not in her deposition.

2. The deposition

a. Good cause

Kester also contends that the video tape deposition of the daughter should not have been admitted because the state failed to show “good cause” as required by §16-44-203 (b). We addressed that requirement in McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986). In that case we found that good cause to take such a deposition was shown through the testimony of an 11-year-old’s grandparents to the effect that she was embarrassed and under the care of a psychologist as a result of the incidents which were to be the subject of the trial.

In response to the prosecution’s motion to be allowed to take the deposition, Kester argued that it would violate his right to confront the witnesses against him in a public trial. On appeal he argues that, unlike the McGuire case where good cause was shown by live testimony, the court here relied on a letter from a psychiatric social worker who had consulted with the daughter. The letter stated that it would be “emotionally upsetting” for the child, who was 11 years old at the time of the trial, to testify and that she should not be required to do so. While it is true that Kester was given no opportunity to cross-examine the author of the letter, that objection was not made to the trial court, and thus it could not have been the basis for reversal. Willis v. State, 299 Ark. 356, 772 S.W.2d 584 (1989).

In Cope v. State, 293 Ark. 524, 739 S.W.2d 533 (1987), we described our decision in the McGuire case as holding “the trial judge has considerable discretion in determining if a video taped deposition can be used.” The judge can consider such things as the age of the child, the abuse she apparently has endured, and the testimony of an expert. Our conclusion, for purposes of retrial, is that, although the opportunity to cross-examine the author of the letter was not afforded to Kester, the letter plus the other circumstances of the case make it one in which we could not hold an abuse of discretion occurred.

b. Guardian’s presence

Kester argues it was error to have allowed the legal guardian of the daughter to be present in the courtroom when the daughter’s deposition was taken (and during the trial as well) because Kester had invoked the rule of A.R.E. 615 requiring that witnesses not be present except for their own testimony.

The argument is clearly answered in Rule 616 which provides: “Notwithstanding any provision to the contrary, in any criminal prosecution,. . .in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim’s . . . guardian . . . shall have the right to be present during any . . . deposition or trial of the offense [Emphasis added].”

3. Hearsay statements of witnesses

Social workers testified about statements made to them by the daughter. Kester contends that the court erred in admitting the statements because the court failed to follow the requirements of Rule 803(25)(A)1. which requires the court to find, “in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness. . . .” The rule goes on to state the criteria to be applied in making the determination.

We agree with Kester that the court erred in failing to hold a hearing to assure itself of the trustworthiness of the statements. We cannot suggest the degree to which such a hearing will be needed on remand, given the fact that the court has now heard the witnesses. We caution, however, that the rule must be satisfied before such statements are admitted.

Kester also questions the basic constitutionality of Rule 803(25) in making this point. We settled that issue in favor of the Rule in St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990).

4. Hypothetical questions

One of the social workers, Susan Millard, was allowed to answer a hypothetical question dealing with the manner in which children recall and relate evidence of abuse. Kester argues that Ms. Millard was not an expert and should not have been allowed to answer a hypothetical question. We are satisfied that the court concluded that she was an expert and there was no error.

In Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986), we concluded there was no error in allowing an expert on the subject of the “child abuse syndrome” to testify about child abuse in general. Ms. Millard’s testimony was not to the effect that the daughter had been abused, but was about the general manner in which a child can be expected to relate such an experience. There was no error.

5. Lesser included offense

Kester contends it was error for the court to refuse to instruct on first degree carnal abuse as a lesser included offense. Carnal abuse is not a lesser included offense within the offense of rape. Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986).

Reversed and remanded.

Hays, J., dissenting.

Steele Hays, Justice,

dissenting. I agree with the majority that our holding in Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987), mandates that this case be reversed and remanded. However, I believe we were wrong to decide Cogburn as we did and that mistake should be corrected rather than further compounded. I would overrule Cogburn and affirm.

We have established by several holdings that a statement by a child under ten years of age describing sexual offenses against such child is admissible in any criminal proceeding as an exception to the hearsay rule, provided the court finds the statement is trustworthy in accordance with A.R.E. Rule 803(25)(A)(1). Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988); Smart v. State, 291 Ark. 324, 761 S.W.2d 915 (1988).

Thus, the basis for the exclusion in Cogburn was not the evidence itself, but the form in which it existed, that is, videotape. In other words, the juvenile probation officer could have testified to exactly what the child told her concerning the sexual offenses and who committed them, but because the same statements were recorded on videotape, it was reversible error to admit them as evidence. In reaching that conclusion, this Court in Cogburn mistakenly held that failure to follow the provisions of Ark. Code Ann. § 16-44-203 (1987), which provides for videotaped depositions of minors in sexual offense prosecutions, prevented the admissibility of the videotaped statement of the child witness.

A videotaped deposition is not hearsay. It is akin to in-court testimony. The statements made in the Cogburn video were out-of-court statements offered to prove the truth of the matters asserted and fall clearly within our established exception to the hearsay rule in A.R.E. Rule 803(25)(A). It makes no sense to me to conclude, as in Cogburn, that the witness could testify to what the child told her, but the jurors could not see and hear for themselves exactly what the child said and observe the child’s demeanor as she made her statement. A trial has been aptly described as a search for the truth. Perry v. Leeke, __U.S__, 109 S. Ct. 594 (1989); State v. Tipton, 300 Ark. 211, 779 S.W.2d 138(1989). It seems apparent the truth would be far better served by permitting the jurors to draw their own conclusions from the videotape.


author: David Newbern, Justice.

text:
    Randy D. LEACH v. STATE of Arkansas
    CR 90-51
    796 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered October 8, 1990
    [Rehearing denied November 12, 1990.]

      Callis L. Childs, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellant.
   David Newbern, Justice.

Randy D. Leach seeks a writ of prohibition to prevent his being tried on one conspiracy charge, and he asks that the trial court be instructed to hold an evidentiary hearing to determine whether he should be tried on another. His fundamental point is that he has been convicted on yet a third conspiracy charge and that, because all were included in a single conspiracy, it would constitute double jeopardy to try him again. We have no basis at this stage of the litigation to hold that it would constitute double jeopardy to try Leach on the one charge as to which he seeks the writ. Nor have we a basis for ordering the hearing he requests. The writ is denied. '

Leach was indicted for having conspired with persons named Clements and McMillen to commit aggravated robbery of a WalMart courier. He was indicted separately for conspiring, again with Clements and McMillen, to burglarize the residence of persons named Wilkinson. Leach was a named, but unindicted, conspirator with Clements and McMillen with respect to conspiracies to rob a J.C. Penny’s store and Unique Fashions store.

Leach, asserting his Fifth Amendment right, declined to testify at the trials of Clements and McMillen. Leach was then charged by information with conspiring with Clements and McMillen to steal a flatbed trailer. Leach had been a named but unindicted conspirator with respect to that offense.

The record submitted with the petition now before us contains an order, taken from the record of the proceedings against McMillen, that all of the alleged conspiracies, with the exception of that relating to the theft of the flatbed trailer, were one continuous agreement and thus should be tried as one offense as required by Ark. Code Ann. § 5-3-403 (1987). After McMillen was convicted of the one “merged” conspiracy, he was tried for the flatbed trailer conspiracy and convicted. On appeal we reversed, finding nothing in the record to support the view that the flatbed trailer conspiracy should not also have been included with the others as part of one agreement.

Leach has been tried and convicted of the Wal-Mart courier conspiracy. He contends now that the ruling in the record of the proceedings against McMillen to the effect that all of the conspiracies but the one to steal the flatbed trailer were but one agreement should prevent him from being tried for the Wilkinson conspiracy. In addition, he asks us to order the trial court to hear evidence that the flatbed trailer conspiracy was also a part of the one agreement and thus that he should not now be tried for that offense either.

At first blush, the argument that it is “inescapable” that the Wilkinson and flatbed trailer conspiracies should be treated as part of the one agreement which included the WalMart conspiracy seems compelling. On reflection, however, and viewing the limited purposes of a writ of prohibition, it becomes clear that we should not grant the writ. We have no idea what the evidence in this case will show about whether the conspiracies were separate agreements. The evidence may have been clear in McMillen’s trial that the agreement was continuing and encompassed all the alleged proposed crimes, but judicial notice may not be taken of the record in a separate case. Smith v. Dean, 226 Ark. 438, 290 S.W.2d 439 (1956). See also Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978).

While it may be suspected, we cannot know the evidence will be the same in this case as it was in the McMillen case with respect to the conspiracy or conspiracies. A writ of prohibition will not be granted unless it is clearly warranted. Reynolds v. Rogers, 297 Ark. 506, 763 S.W.2d 660 (1989). Usually we must find that the trial court lacked jurisdiction before we will order the writ. See, e.g., Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988), where we wrote [prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction.” In Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), we granted the writ, although we characterized it as “an appeal from a refusal to grant a summary judgment,” where the court was not lacking in jurisdiction of the subject matter of the case or the parties. We concluded that a trial in the matter at hand would have been useless because its result would have been a foregone conclusion. That holding does not apply here, as we cannot be certain that the testimony and resulting conclusions of the trial court may not be different in Leach’s case from those in McMillen’s.

Leach raises other points and requests including his insistence that we order the circuit court to hold a hearing on the question of whether the flatbed trailer conspiracy was part of the one agreement. Should that charge proceed to trial, we assume Leach will be allowed to move for its dismissal at some point and to present his evidence that it was part of the conspiracy included in the one of which he has been convicted.

Leach asks us to order the circuit judge who tried all of the cases mentioned to recuse because of ex parte communications, and he asks that the information charging the flatbed trailer conspiracy be dismissed because it is solely the result of vindictiveness of the prosecutor toward Leach for his refusal to testify against McMillen and Clements. No authority has been cited which would empower this court to decide these matters prior to the trial court’s decision of them. We assume these matters will be taken up in due course if the remaining indictment and information proceed to trial, and if they are decided adversely to Leach they may be addressed on appeal.

Writ denied.


author: Tom Glaze, Justice. Dale Price, Justice,

text:
    Troy JOHNSON v. STATE of Arkansas
    CR 90-99
    796 S.W.2d 342
    Supreme Court of Arkansas
    Opinion delivered October 8, 1990

      Kenneth A. Hodges, for appellant.

      Steve Clark, Att’y Gen., C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals his conviction on two counts of delivery of a controlled substance for which he was sentenced to thirty-five years imprisonment and a $ 10,000 fine on each count. The prison sentences were ordered to run concurrently. The two crimes for which appellant was charged concerned controlled substance purchases in transactions involving a state police narcotics undercover investigator, Brad Bennett, who was working with a confidential informant, Tony Garcia. On January 9,1989 and January 24,1989, Garcia notified Bennett that appellant was interested in helping Bennett obtain some cocaine. Garcia was present with appellant on both occasions. On January 9th, Bennett gave $325.00 “buy money” to appellant, who later the same day delivered cocaine to Bennett, but on January 24th, Garcia received the “buy money” and delivered the cocaine. Concerning the January 24th transaction, Garcia said that after receiving the “buy money” he later gave it to appellant, and like the January 9th transaction, it was appellant who actually obtained the cocaine that was purchased for Officer Bennett. The three points appellant raises do not challenge the facts surrounding the drug transactions, but instead contest the prosecutor’s pre-trial, conduct.

First, appellant notes that his original trial date was set for August 22, 1989, and that, while his counsel appeared and was prepared to go to trial on that date, he learned that the matter had been continued without notice to him. That same day, defense counsel met with the trial judge and deputy prosecutor and no one seemed clear as to who actually cancelled the trial and told the jury and parties not to attend. The judge instructed the prosecutor io determine who cancelled the trial and whether the confidential informant, Garcia, had reasonable cause for not appearing for trial.

On September 29,1989, appellant moved to dismiss because his counsel had appeared ready for trial on August 22, and the trial had been improperly continued. On October 23, 1989 (the day before the second trial date), the trial judge held a hearing on appellant’s motion and to review the events leading to the delay of the August 22 trial.

The record reflects that Garcia was served by subpoena on July 7,1989, and he was directed to appear for trial on August 29 instead of the August 22 trial date. The record also shows that the state was prepared to go to trial on August 22 but Garcia had been residing in DeQueen and he had been unable to obtain transportation to Russellville for the August trial. Upon conclusion of the October 23 hearing, the trial court found that the state had duly subpoenaed Garcia, that Garcia was a necessary witness and that the delay was not due to the prosecutor’s wrongful conduct. Accordingly, it denied appellant’s motion to dismiss.

Our review of the trial court’s decision on appellant’s motion is controlled by the well-settled rule that a granting of a continuance is in the trial court’s discretion, and we will not reverse unless there is an abuse of that discretion. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Here, Garcia, a necessary witness, apparently had legitimate transportation problems that prevent him from attending the August 22 trial and the state did not cause or contribute to those problems. Thus, we are unable to say the trial judge abused his discretion.

Appellant’s second argument concerns the prosecutor’s failure to produce timely disclosure of Garcia’s identity and address. Appellant requested this information on May 16,1989, and did not receive Garcia’s identity until the original August 22 trial date, even though the prosecutor had this information and had served a subpoena on Garcia on July 7, 1989. Appellant argues this untimely production of Garcia’s identity and whereabouts prevented him from individually investigating and interviewing Garcia.

Appellant’s argument fails for at least two reasons. First, it is obviously inconsistent with his earlier contention that a continuance should not have been granted because, in part, he was prepared and ready for trial on August 22, when he had not, as yet, received any information on Garcia. Secondly, as we have already discussed, the trial court ruled the continuance that occurred on August 22 and the resetting of the trial on October 24, 1989, were proper. During that period of delay, the deputy prosecutor, by letter dated October 5, 1989, informed the appellant that he could contact Garcia by contacting Officer Bennett. The prosecutor also gave defense counsel Bennett’s telephone number. Although this correspondence transpired nineteen days prior to the October 24 trial, we find nothing in the record that indicates the appellant attempted to contact Garcia or that he was prevented in his efforts to do so.

Again, to reiterate the inconsistency in appellant’s arguments, if appellant had been ready for trial on August 22, when he was unaware of Garcia’s identity and whereabouts, it is difficult to understand how he was prejudiced at the October 24 trial, when he had known of Garcia’s identity and could have contacted him at least three weeks prior to trial. As we have stated numerous times, to obtain reversal on appeal, the appellant must show not only error but also prejudice. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989). It is the appellant’s burden to demonstrate prejudicial error, not merely to allege it. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987). The appellant here fails to show how the state’s initial delay in disclosing Garcia’s identity and whereabouts prejudiously affected his trial held on October 24.

Appellant next complains that the prosecutor delayed giving him Garcia’s prior criminal record and did so only several days before the October 24 trial. Garcia’s conviction information was also corrected only one day before trial. Again, appellant fails to establish how he was prejudiced. He knew of Garcia’s felony conviction several days before trial, and he possessed that information when he cross-examined Garcia at trial. If appellant was somehow prejudiced by any delay in receiving this information, appellant simply fails to demonstrate it.

Appellant also suggests other reports and documents were not produced by the state although he requested them in discovery motions. We do not reach those matters, however, because appellant failed to obtain a clear ruling to preserve those issues on appeal. Hamm v. State, 301 Ark. 154, 787 S.W.2d 686 (1990). We also add that the appellant never requested any discovery sanctions that are authorized under A.R.Cr.P. Rule 19.7.

We conclude by saying that the Arkansas Rules of Criminal Procedure contemplate broad and timely pretrial disclosure and the prosecuting attorney’s obligation in this respect are clearly delineated under Rule 17. The record before us reflects that, at times, neither the letter nor the spirit of this Rule was followed. Nevertheless, we affirm the case only because, under the particular facts presented here, we find the appellant was not prejudiced by the state’s actions (or inactions). Even so, a prosecutor’s failure to adhere to the dictates of Rule 17 can easily result in prejudice to a defendant. By the same token, such prejudice can easily be avoided by a good faith compliance with those discovery requirements contained in our discovery rules. Hopefully, our comments made now can serve to encourage expeditious disclosure of information required under our Criminal Procedure Rules and, at the same time, discourage the withholding of materials or information clearly required by those rules.

Because we find no prejudicial error in the case before us, we affirm.

Holt, C.J., and Turner and Price, JJ., dissent.

Dale Price, Justice,

dissenting. I respectfully dissent. I am compelled to write concerning the prosecutor’s tactics in this case.

The first instance of misconduct occurred when the prosecutor failed to furnish to the defendant, as soon as practicable, the names and addresses of all the state’s witnesses, along with the prior convictions of such witnesses. See A.R.Cr.P. Rule 17.1(a)(i) and (vi); A.R.Cr.P. Rule 17.2

On May 16, 1989, over three months before trial was scheduled, the appellant filed discovery motions seeking the names and addresses of prosecution witnesses and seeking the identity of any confidential informants. The state responded with a list of two witnesses. The response also noted that a confidential informant, name and address unknown, would testify. On July 7, 1989, the prosecutor caused a subpoena to be served on the informant, Lazario Garcia. Clearly, the prosecutor knew Garcia’s name and address as early as July 7. Yet six weeks later, on the scheduled trial date of August 22, this information still had not been provided to the appellant.

On August 22, the appellant was finally told of Garcia’s identity, but was not provided with Garcia’s address or his record of prior convictions. On September 29, the appellant was forced to file a motion to compel, asking that the state be ordered to produce the information. On October 5, the state responded, not with pertinent information, but with the suggestion that the appellant contact the informant through another agency, namely the state police. This does not comply with the discovery rules.

The second instance of misconduct concerns the rescheduling of the August 22 trial date. On August 21, appellant’s counsel, while conferring with appellant, received a call from the prosecutor advising them that he, the prosecutor, was requesting a continuance. Appellant’s attorney explicitly objected and demanded the trial proceed the following morning. The prosecutor then notified appellant’s attorney that there would be a hearing on the motion at noon on August 22. Appellant’s attorney appeared in court at 8:30 on August 22 prepared for trial. The appellant, who was incarcerated, was not present nor were the court personnel or prosecuting attorney, the judge or the jury panel. Appellant moved for dismissal of the charges, and a hearing was held on the motion on October 23, 1989, where testimony developed that the prosecutor had been unable to get in contact with Garcia and verify if he would be present. The prosecutor acknowledged that he did not recall talking to the judge but talked to “Roberta or Johna” and a decision was made that the jury would not be called in. That party, who called off the trial and jury, was not the judge, for he ordered an investigation concerning the cancellation. Certainly, the appellant was unaware of the cancellation; he appeared in court on the 22nd ready for trial. The prosecutor cancelled the trial, or caused it to be cancelled, without even contacting the judge or appellant’s counsel. This becomes even more obvious upon viewing the subpoena the prosecutor sent the informant Garcia. The subpoena, served in July, directed Garcia to appear on the wrong date, August 29 rather than August 22.1 conclude that once the prosecutor realized his mistake, he caused the trial to be can-celled. Garcia was a key witness, and the failure to provide the appellant with Garcia’s name prior to trial would prohibit use of Garcia’s testimony. See Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). This manipulation of the judicial process should not pass unnoted. Imagine what would have happened had defendant’s counsel talked to someone other than the judge and, without notice to the prosecutor or judge, called off the jurors and the trial.

I am also troubled by the majority’s reliance on the rule that granting a continuance is within the discretion of the trial court under the facts in this case. The prosecutor was not given a continuance by the court; he gave himself a continuance.

I would reverse and dismiss.

Holt, C.J., and Turner, J., join in the dissent.

       By letter dated October 20, 1989, the prosecutor informed appellant that Garcia had been convicted for a felony theft and had served five years. He later corrected the information to reflect Garcia had been sentenced to five years but had served only three months.