text:
    Dewayne R. LITTLEPAGE v. STATE of Arkansas
    CR 93-471
    863 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Q. Byrum Hurst, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Dewayne R. Littlepage, was convicted of possession of methamphetamine with intent to deliver and sentenced to a term of forty years and a fine of $25,000; possession of drug paraphernalia and sentenced to ten years and a $ 10,000 fine; and being a felon in possession of a firearm and sentenced to six years imprisonment and $10,000. Littlepage was also found guilty of possession of marijuana and sentenced to one year imprisonment and fined $1,000. All the sentences are to run consecutively. He raises four issues on appeal, none of which has any merit.

Dewayne R. Littlepage, along with a passenger, Fred McCaslin, was driving a rented, white Cadillac car bearing Texas tags in Malvern, Arkansas. While on patrol, Officer Ron Ball with the Arkansas State Police followed the automobile through a traffic light as the car made a right turn out of the center lane without a turn signal. Officer Ball followed and called for a registration check to determine the ownership of the car and learned that it was a rental car out of Dallas.

As Officer Ball followed the car further, he observed it hit the fog line, the white line on the right-hand side of the road, at least twice from the time it turned onto Main Street. He stopped the car and asked the driver, Littlepage, for his driver’s license, which had expired about two years earlier. Littlepage produced the rental agreement, which revealed that neither Littlepage nor his passenger was the legal driver.

Officer Ball placed Littlepage under arrest for the expired driver’s license, patted him down, and placed him in the back seat of his police car. Officer Ball then walked to the right side of the Cadillac and shined his flashlight inside the car while watching the passenger in the front seat. The officer observed a nylon holster with what appeared to be the butt of a pistol sticking out from under the driver’s seat. He removed the weapon, which was fully loaded, and got the passenger out of the car. Informed by Littlepage that he was on probation for a felony, Officer Ball gave him his Miranda warnings and arrested him for being a felon in possession of a firearm. The officer then looked under the front seat for any additional weapons and found drugs and drug paraphernalia.

Although no drugs were found on Littlepage’s person or under his seat in the car, his fingerprints were found on an Arkansas Bank & Trust envelope containing three plastic bags with a powder residue. Tests by the Crime Lab revealed that the items seized from the car contained cocaine, methamphetamine and marijuana.

Prior to trial, Littlepage filed a motion to suppress the articles found in the car arguing that the search and stop had been pretextual. In support of this motion, Littlepage revealed that Officer Ball had received a phone call earlier in the week from a confidential informant, relating that a white Cadillac with Texas tags might be used in the course of some kind of drug activity. Littlepage also emphasized that, in Officer Ball’s reports on the arrest, he stated that one reason he stopped Littlepage was because he hit the fog line at least twice and had crossed the solid white line. The court denied the motion to suppress.

I. Sufficiency of the Evidence

For his first argument on appeal, Littlepage contends that the evidence was insufficient to prove that he was in constructive possession of the drugs, drug paraphernalia, and two guns discovered in the vehicle. We disagree.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this 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. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Evidence of Littlepage’s possession of drugs, drug paraphernalia, and weapons is more than sufficient. Officer Ball testified at trial that during the search incident to Littlepage’s arrest for the expired driver’s license, he noticed in plain view a black nylon-style holster, that appeared to contain a pistol, sticking out from under the driver’s seat. After opening the driver’s door, he examined the pistol and found it contained a fully loaded clip. In continuing his search of the car, ostensibly for other weapons, Officer Ball discovered marijuana and a Liquid Wrench can. Noticing that the bottom of the Liquid Wrench can unscrewed, he opened it and found four Ziplock bags containing white powder, two more Ziplock bags with white powder, one Ziplock bag with a hand rolled cigarette, three Ziplock bags containing vegetable material, one vial containing a liquid, four “rocks,” and four syringes.

Thereafter, an inventory search of the car was conducted, and the police found a loaded .45-caliber weapon and a fake battery with a storage compartment in the trunk. Another bag containing white powder was found next to the gas cap. Police also found a pharmacy bag containing some syringes in the console next to the driver’s seat; as well, a bank envelope holding three Baggies covered in white powder residue was also found. Littlepage’s fingerprints matched those found on the envelope.

Jerry Buck, a chemist from the State Crime Lab, testified that the white powdery substance found in the many containers in the vehicle was cocaine. Also found were several pill bottles which contained methamphetamine, codeine, and valium. Marijuana was identified, as well.

On appeal, Littlepage submits that the evidence at trial was insufficient to connect him with ownership of the drugs, drug paraphernalia, and guns. We disagree.

In order to prove a defendant is in possession of a controlled substance, constructive possession is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Neither are exclusive nor actual, physical possession of a controlled substance necessary to sustain a charge. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Constructive possession can be implied when it is in the joint control of the accused and another. Osborne, supra. However, joint occupancy alone is not sufficient to establish possession or joint possession. There must be some additional factor linking the accused to the contraband. Id. In Plotts v. State, 297 Ark. 66, 729 S.W.2d 793 (1988), we enumerated factors that sufficiently link an accused to contraband found in a car jointly occupied by more than one person, including the contraband’s being (1) in plain view; (2) on the defendant’s person or with his personal effects; (3) found on the same side of the car seat as the defendant or in immediate proximity to him; or that the accused (4) owned the vehicle in question or exercised dominion and control over it; and (5) acted suspiciously before or during arrest. Plotts, supra; See also Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991)

Applying these elements to the facts at hand, it is clear that Littlepage was in constructive possession of the drugs, drug paraphernalia, and firearms. First of all, the illicit articles were found in the immediate proximity of its driver, Littlepage, at the time of the arrest. Secondly, Littlepage exercised dominion and control of the car as its driver, his fingerprints were found on an envelope containing cocaine residue, and the loaded pistol was found underneath his seat. Drug paraphernalia, specifically syringes, was found in the console next to him. Taken together, these facts specifically link him to the contraband and prove that he was in constructive possession of the drugs, paraphernalia and firearms.

In sum, we have no hesitancy in holding that the evidence was sufficient to convict on all charges.

II. Legality of Search

In a motion to suppress the results of the search of the car, Littlepage contended that the officer stopped him because of the confidential informant’s tip and not because he had violated a traffic law; therefore, he claims, the stop was pretextual, rendering the search and its results invalid. Since Littlepage has failed to show that he had an expectation of privacy in the rental car, we do not reach the issue of the constitutionality of the search.

After hearing the testimony of Officer Ball, the trial court denied the motion to suppress, explaining:

The motion is denied. There was probable cause for the stop and the arrest. The information received by the officer from the confidential informant had nothing to do with the stop and nothing to do with the arrest. It was based on an illegal turn. This was standard procedure for the State Police. This was a car from out of state, one with which the officer was not familiar so he called in for an identification on that, which he got. The driver’s license of the defendant was expired and there was a gun in plain sight. The officer was aware at this time that Littlepage was on probation. That constitutes a violation. A limited search was then done incident to arrest. All of those things were valid and allowable under the Fourth Amendment. An inventory search was then done at that time after the officer knew that the vehicle was going to be taken into custody. All of the regular procedures were followed, as practiced by the State Police. These items obtained in the search are therefore admissible into evidence if they are relevant to the case.

The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects and against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The rights secured by the Fourth Amendment are personal in nature. Rakas v. Illinois, 439 U.S. 128 (1978). Accordingly, before an appellant can challenge a search on Fourth Amendment grounds, he must have standing. Whether an appellant has standing depends upon whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. See United States v. Erwin, 875 F.2d 268 (10th Cir. 1989).

Here, Officer Ball admitted that he received information a few days prior to the arrest that there was a white Cadillac with a Texas license plate whose occupant, Littlepage, was connected with drugs and might be coming to the Malvern area. Nevertheless, Officer Ball stated under oath that he had stopped Littlepage on the night in question because of the traffic violation and not as a result of the informant’s tip.

In response, the State argues that Littlepage did not have an expectation of privacy in the Cadillac because it was not his car, and, therefore, he could not have a Fourth Amendment right to challenge the search. This argument is correct.

In order to assert his Fourth Amendment rights, Littlepage must at least show that he gained possession from the owner or someone with authority to grant possession. See State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). In Barter, the appellant was stopped while driving a rental car contracted to another individual. When Barter failed to show that he lawfully possessed the car, we held that he had failed to establish a legitimate expectation of privacy in the car searched by the police.

Similarly, in Fernandez v. State, 303 Ark. 230, 233, 795 S.W.2d 52 (1990), we said that the appellant had failed to show that he had a legitimate expectation of privacy in a car when he could not show that either he or his passenger owned or lawfully possessed the car in which the search was conducted.

In this matter, Littlepage bore the burden of proving not only that the search of the car he drove was illegal, but also that.he had a legitimate expectation of privacy in that car. Fernandez, supra, citing Rawlings v. Kentucky, 448 U.S. 98 (1980). The proof revealed that the car Littlepage was driving was rented to Rebecca Jones, who was not present at the time of the arrest. Ms. Jones was the only authorized driver in the rental agreement. Littlepage claimed that Ms. Jones had rented the car for him in Dallas for his use when his own car had broken down, but there was no showing that this assertion had any validity. Besides, the rental agreement authorizing Ms. Jones to drive the car had expired two days prior to Littlepage’s traffic stop and arrest. Clearly, Littlepage failed to establish his expectation of privacy in the searched automobile. Accordingly, we conclude that Littlepage had no standing to challenge the officer’s search as unconstitutional. Because Littlepage had no expectation of privacy in the car, the issue of whether or not this was a pretextual search is of no moment.

III. Severance of Offenses

Prior to trial, Littlepage requested that the offenses be severed on the grounds that to try all of them together would be confusing to the jury and that evidence of some offenses, particularly the felon in possession of a firearm count, would be used as evidence against him on other counts. The trial court denied the motion but agreed, at the State’s suggestion, to bifurcate the firearm possession charge, keeping evidence of the prior conviction from the jury until the sentencing phase. Nevertheless, Littlepage claims that to refuse to sever completely the felon in possession of a firearm charge from the other charges was error.

Littlepage’s argument is based on the fact that, even though the felon in possession charge was not mentioned to the jury during the guilt/innocence phase, the jury still heard evidence concerning the two weapons found in the car along with the drugs.

This argument is meritless. Denial of a motion to sever is proper if the offenses are part of a single scheme or plan or if the same body of evidence would be offered to prove each offense. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). Clearly, the judge sought to protect Littlepage from prejudice by bifurcating the proceedings. This adequately protected him.

IV. Alleged Prosecutoridl Misconduct

For his last argument, Littlepage claims that some of the prosecutor’s remarks during closing argument require that the conviction be reversed. Littlepage’s attorney did make objections to the prosecutor’s remarks, but he neither asked for an admonition to the jury nor for a mistrial. Under the circumstances, Littlepage has no grounds to complain on this issue.

The basis of this issue is the prosecutor’s closing argument in which he stated, in pertinent part:

Prosecutor: Everything in this case points to Dewayne Littlepage’s having been a drug dealer. I have no doubt that Dewayne Littlepage also used some of those drugs but that does not absolve him of the fact that he is also a drug dealer. They had this can for the concealment, they had the battery for concealment. If you want Malvern, Arkansas to be a cruising place for all the drug dealers from Hot Springs, Little Rock and Pine Bluff, all you have to do -
Defense - Your Honor, I object to that. I don’t think the statement is based on any evidence that’s in and he’s trying to inflame the jury.
Court: Ladies and gentlemen, the only thing I can tell you is that if either attorney says anything to you having no real basis in the evidence, disregard it.

The prosecutor then stated again that “[i]f you want Malvern. . .to be the cruising place for the drug dealers from Hot Springs, Little Rock and Pine Bluff, just give him a little tap on the wrist, about 10 years.” Littlepage failed to object to this second reference to out-of-town drug dealers.

Littlepage also objected when the prosecutor said, “What did Ron Ball tell you? He said that two or three days before he had received information about a white Cadillac being driven by somebody named Littlepage.” At that point, the defense asked for a mistrial stating that this was information that had not been presented to the jury during the course of the trial. The trial court disagreed but again admonished the jury that “anything that either attorney says which you find has no basis in the evidence, you should disregard if it’s during their opening statement or their argument.”

As for the first statement that allegedly constituted prosecutorial misconduct, it was harmless, and Littlepage failed to ask for either an admonition or a mistrial when he objected. The court, in response to his objection, reminded the jury that remarks of counsel are not evidence and unless supported by evidence should be disregarded. This admonition cured any possible error. See Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). Besides, this court has said that counsel is to be given some leeway in opening and closing remarks, and counsel are free to argue every plausible inference which can be drawn from the testimony. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). The trial court has a wide latitude of discretion in controlling the arguments of counsel, and its rulings in this regard are not overturned in the absence of clear abuse. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987). The test on appellate review is whether there was a manifest abuse of discretion by the judge in failing to properly act on an objection to improper remarks. Shaw v. State, 271 Ark. 926, 611 S.W.2d 522 (1981).

As for the second instance of alleged prosecutorial misconduct, Littlepage did actually ask for a mistrial. Yet, a mistrial is an extreme remedy which should be granted only where an error is so prejudicial that justice cannot be served by continuation of the trial. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980). Although the prosecutor’s statement in this regard, i.e. that Ron Ball had received information prior to the arrest that Littlepage was coming to Arkansas, was outside the evidence presented to the jury during the trial, the judge’s admonition cured any possible error.

Accordingly, Littlepage’s conviction is affirmed.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Reginald S. McCULLOUGH v. James A. NEAL, Executive Director, Arkansas Supreme Court Committee on Professional Conduct
    92-1108
    862 S.W.2d 279
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Friday, Eldredge & Clark, by: Jerry L. Malone, for appellant.

      Claibourne W. Patty, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Reginald S. McCullough, is an attorney in Little Rock. One of his clients, Jacqualine Dedman, filed a complaint with the Arkansas Supreme Court Committee on Professional Conduct (“Committee”), in which she asserted that Mr. McCullough had been employed by her family in January 1987 to handle the probate of her mother’s estate but had failed to follow up on any details of his work or to keep her reasonably informed as to the status of the case in probate. As of April 17, 1992, probate had not been concluded on the estate.

After reviewing Ms. Dedman’s complaint, Mr. James A. Neal, Executive Director of the Committee, sent by mail a letter to Mr. McCullough advising him of its existence and that, under the Arkansas Model Rules of Professional Conduct, he had twenty days to respond to her complaint. The letter and a copy of Ms. Dedman’s complaint were sent to Mr. McCullough by certified mail, dated April 20, 1992, restricted delivery, at his address as listed with the Clerk of the Arkansas Supreme Court. Although notice was sent to Mr. McCullough on two occasions, the complaint was never picked up, and on May 6,1992, the U.S. Postal Service returned the envelope to Mr. Neal’s office stamped “Unclaimed.”

As a result, Ms. Dedman’s complaint was submitted to the Committee for appropriate action. On August 6, 1992, the Committee caused its Director, Mr. Neal, to send Mr. McCullough another letter by certified mail, informing him that, pursuant to the procedures of the Arkansas Supreme Court regulating professional conduct of attorneys at law, his license to practice law was to be suspended for a period of three months. The letter notified Mr. McCullough that he had a right for a public hearing de novo before the Committee upon written request within twenty days. Delivery was by certified, restricted mail, at the same address as the previous letter on August 6,1992, and was picked up by Mr. McCullough fifteen days later on August 21, 1992. The letter specifically provided that:

It is the decision of the majority of the Committee that your conduct in this matter was a violation of Rules 2.3, 1.4(a) and 8.4(d) of the Model Rules of Professional Conduct as amended by the Arkansas Supreme Court. The Arkansas Supreme Court has adopted these Rules as the standard of conduct for Arkansas attorneys.
These Rules state, in part, that a lawyer shall act with due diligence and promptness in representing a client; shall keep a client reasonably informed about the status of a matter and shall not engage in conduct that is prejudicial to the administration of justice.
You are hereby suspended from the practice of law for this conduct for a period of three (3) months, and the Committee intends to advise the complainant of the specific disciplinary action taken when the matter is concluded.
The Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law provide you have the right to a public hearing de novo, before this Committee upon written request within 20 days. The press will be given advance notice of the hearing and identity of the attorney involved. In the absence of such a request, this suspension will be entered in the files of the Committee and may be considered in determining the action it might take in the event of any further complaints filed against you. Also, this suspension will be filed as a public record with the Clerk of the Arkansas Supreme Court.

Mr. McCullough does not dispute the fact that he received this second letter; his counsel acknowledges its receipt by Mr. McCullough, both in his brief and during the course of oral argument. Mr. McCullough failed to answer to this notification from the Committee or to take any action whatsoever.

On September 12, 1992, some thirty-four days after Mr. McCullough received notice of his suspension and right to a hearing upon written request within twenty days from notice, the Committee caused another letter to be sent to Mr. McCullough, again by certified mail, advising him of his suspension. Shortly thereafter, Mr. McCullough responded by filing a notice of appeal.

On appeal, Mr. McCullough raises six issues centered on the contention that the Committee never acquired jurisdiction over his person and, thus, that its actions are of no avail. He contends that the attempted service of process on him was insufficient and that the service of process requirements contained in Ark. R. Prof. Cond. § 5B(1) in our procedures regulating the conduct of attorneys are constitutionally deficient in failing to afford him due process. We do not reach the merits of a majority of these arguments because Mr. McCullough simply did not exhaust his administrative remedies furnished by our rules.

Mr. McCullough’s claim of lack of jurisdiction over his person cannot be sustained under the circumstances. Amendment 28 to the Arkansas Constitution provides that the Supreme Court shall make rules regulating the practice of law of the professional conduct of its attorneys at law. It necessarily follows that this Court derives its power through Amendment 28 to establish and maintain, through its Committee on Professional Conduct, jurisdiction over a lawyer’s person by virtue of the issuance of his license to practice law.

Turning to our rules, the Rules of the Court Regulating Professional Conduct of Attorneys at Law stipulate the procedures which are to be followed when the Committee adjudicates complaints against an attorney-at-law. Once a client’s complaint is processed as a formal complaint by the Office of Professional Conduct, the rules mandate that the attorney be sent a copy of the complaint:

At the direction of the Committee or upon a determination by the Executive Director that a complaint should be processed as a formal complaint, the Executive Director shall: (1) Furnish to the attorney complained against a copy of the formal complaint and advise the attorney that he may file a written response in affidavit form with any supporting evidence desired. The attorney’s mailing address on record with the Clerk shall constitute the address for service. Certified mailing of the formal complaint to said address shall be deemed service on the attorney.

Ark. R. Prof. Cond. § 5B(1).

The attorney has twenty days in which to file a written response to the client’s complaint. At the end of that time, the seven-member Committee on Professional Conduct votes by ballot on the action to be taken against the attorney. When, as here, the Committee votes to suspend the attorney, “the attorney shall be notified of the findings and vote of the Committee, and be advised that he has a right, upon written request within twenty (20) days, to a hearing before the Committee. . . .” Ark. R. Prof. Cond. § 5E(3). When a hearing is requested, the written ballots are destroyed, and the Committee will hear the complaint de novo. Ark. R. Prof. Cond. § 5F(1).

These rules provide for an appeal to this court after the de novo hearing has occurred:

A respondent attorney aggrieved by an action of the Committee taken subsequent to a hearing, may appeal to the Arkansas Supreme Court by filing a Notice of Appeal with the Executive Director within thirty days (30) after the filing of the Committee action with the Clerk. In appeals directly from the Committee, the action shall proceed as an action between the Executive Director and the respondent.

Ark. R. Prof. Cond. § 5H(1) (emphasis added).

Although Mr. McCullough did not receive the first letter informing him of the complaint filed against him by Ms. Dedman, he, by his own admission, did receive a copy of the second letter informing him of the Committee’s decision to suspend him and advising him that he had a right to a hearing de novo before the Committee. He failed to request this hearing even though he had an absolute right to do so.

While Mr. McCullough’s lack of receipt of the first letter from the Committee may tend to render constitutionally suspect the question of notice, as a practical matter the issue became moot once he received the second letter. Mr. McCullough asserts that the unclaimed original notice effectively tainted the subsequent notice of the nature of the complaint against him, the actions of the Committee, and his right to a hearing. Yet McCullough’s contention ignores the basic fact that he received actual notice and was apprised of his right to a hearing, which he ignored completely.

In Sexton v. Arkansas Supreme Ct. Comm. on Prof. Conduct, 299 Ark. 439, 446, 774 S.W.2d 114, 118 (1989), cert. denied, 110 S.Ct. 1782 (1990), we stated that the Committee on Professional Conduct is “in the nature of an administrative agency, which is not bound by the rules of the courts.” And, as in administrative law, we hold that an attorney must exhaust his administrative remedies before instituting litigation to challenge the action of our Committee, except where it would be futile to pursue the remedy provided by our rules or where there was no genuine opportunity to do so. See Arkansas Motor Vehicle Comm’n v. Cantrell Marine, 305 Ark. 449, 808 S.W.2d 765 (1991); Consumers Co-op Ass’n v. Hill, 233 Ark. 59, 342 S.W.2d 657 (1961).

Here, upon actual receipt of a notice of suspension of his license, Mr. McCullough was afforded a remedy under our rules — an absolute right to a de novo hearing before the Committee. He merely failed to exhaust his remedies by neglecting to exercise his right. For this reason, he has waived his right to appeal to this court.

Ark. R. Prof. Cond. § 5H(1) has no application due to this waiver.

Appeal dismissed.


author: Robert H. Dudley, Justice.

text:
    Willie DIXON, Jr. v. STATE of Arkansas
    CR 93-493
    863 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Robert P. Remet, for appellant.

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

Appellant was arrested on September 6, 1988, and was thereafter charged with four felonies. He was not tried until October 6, 1992, over four years later. At that time he moved to dismiss the charges for lack of a speedy trial. The trial court denied the motion. Appellant appeals. We affirm the judgment of conviction for failure to comply with Rule 4-2 (a)(6) of the Rules of the Supreme Court and Court of Appeals.

The abstract reflects that shortly after his arrest, appellant requested time to obtain counsel, and then failed to appear for trial. A bench warrant was issued. About two years passed before he was re-arrested and again released. He again failed to appear, but was subsequently arrested on additional charges. He requested another continuance, and still later his case was continued because of docket congestion. He then filed a motion asking for a dismissal for lack of a speedy trial. The trial court heard arguments and apparently examined the docket sheet and various orders and denied the motion to dismiss.

Appellant’s abstract does not summarize the proof at that hearing, nor does it summarize the findings of fact by the trial court, nor does it summarize the written order, if any, by the trial court. We cannot know, without examining the transcript, the periods of time that the trial court found to be excluded. In sum, we have no way of knowing whether the trial court erred without examining the transcript. As we have often pointed out, there is only one transcript and there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). We are hesitant to affirm a criminal case for failure to comply with Rule 4-2, but we must do so in this case because the abstract wholly omits the hearing and ruling on the motion that is the basis of the appeal.

Affirmed.


author: David Newbern, Justice.

text:
    Willie Ray HARRIS v. STATE of Arkansas
    CR 93-565
    862 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

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

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Willie Ray Harris, the appellant, admitted stabbing and killing Annie Mae Marshall McDowell on November 15,1991. He was charged with first degree murder as an habitual offender, convicted by a jury, and sentenced to life imprisonment. He contends the Trial Court erred in failing to grant a directed verdict as there was no evidence that he acted with the purpose of causing Ms. McDowell’s death. He also argues enlargements of photographs showing the wounds he inflicted were unfairly prejudicial and should not have been admitted into evidence. We hold that the nature of the weapon used, and the manner of its use, were such that the evidence of Harris’s purpose was sufficient. We also hold that the Trial Court did not abuse its discretion in holding the photographs were not, in the words of Ark. R. Evid. 403, unfairly prejudicial. The conviction is affirmed.

The events leading up to the murder were detailed in Harris’s statement. Ms. McDowell arrived at Harris’s apartment about 4:.30 a.m. asking if she could stay for a time. Harris agreed, and she got into bed with him. Later that morning, at 7:00 or 8:00 a.m., Harris picked up his payroll check and purchased an alcoholic beverage which he and McDowell shared. Sometime around noon Harris gave McDowell $40, and she purchased three rocks of crack cocaine. They shared the drugs and had sexual intercourse.

McDowell asked Harris for more money. When he refused to provide more money she flew into a rage, grabbed a butcher knife which was lying near the bed and cut Harris’s hands. Harris took the knife from her, cut her hair, and stabbed her a couple of times. Harris said he was only trying to make McDowell get herself under control and that he later left the bed and laid the knife down. While he was attempting to get dressed McDowell retrieved the knife, and they resumed fighting on the bed. During the struggle Harris again regained control of the knife and proceeded to stab McDowell 17 times, causing her death.

In a telephone conversation with 911 officials Harris confessed to having killed the victim, and this statement was recorded and played for the jury. Harris also confessed to the police when they arrived and related the foregoing in a taped confession.

1. Sufficiency of the evidence

When the sufficiency of the evidence is challenged, we affirm if there is substantial evidence to support the verdict. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force to compel reasonable minds to reach a conclusion that is beyond suspicion and conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989).

The Trial Court found Harris guilty of first degree murder for having killed McDowell “with a purpose of causing death.” See Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991). He argues the prosecution failed to produce any evidence that he acted purposefully. The Trial Court found the extent of the victim’s wounds was sufficient to support the conclusion that he acted purposefully. As intent cannot be proven by direct evidence, it may be inferred from the type weapon used, the manner of its use, and the nature, extent, and location of the wounds. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993). There was no error in denying the motion for directed verdict.

2. Photographs

Harris next argues that the Court erred by allowing the use of enlarged photographs. Neither the original photographs nor the enlargements appear in Harris’s abstract. In its brief, filed August 4, 1993, the State argued we could not reach the issue due to the failure to abstract. On August 13, 1993, Harris moved to supplement the record with copies of the enlarged photographs or alternatively to be relieved of the abstracting requirement as impracticable or an undue economic burden on the public defender’s office representing Harris. Such a motion is permitted in Rule 4-2(a)(6). We granted the motion to supplement the record, and copies of the photographic enlargements were filed. In view of the obvious expense involved, we should have recognized the impracticability of requiring the large color photographs be reproduced in sufficient number to accompany each of the required copies of Harris’s brief. Under these circumstances we will consider the photographs we now find in the record as we did in Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990).

The Trial Court found the photographs were neither cumulative, duplicative, nor unnecessary. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). They were not autopsy photographs but crime scene photographs used to show the extent and location of the wounds. While the pictures are gory, and some are similar to each other, all of those to which Harris objected were offered with investigating officers’ testimony to depict the crime scene and to show the extent of the victim’s wounds. The extent of the wounds is particularly relevant, as we noted above, to Harris’s argument about lack of evidence that he killed purposefully.

In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988)(rev. on other grounds), we remarked that virtually all photographs are enlargements to some degree, and having examined the one enlargement complained of, we found it had not been demonstrated that it accentuated the injuries of the victim in any unfairly prejudicial way. The same is true in this case. There was no question that some photographs of the victim were properly admitted into evidence to show the crime scene, and while we agree that these are ugly photographs, that is the result of Harris’s actions, rather than manipulation on the part of the State. We find no abuse of discretion.

3. Review of other errors

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the State. We have found no other rulings adverse to Harris which constituted prejudicial error.

Affirmed.


text:
    Theodore JONES v. STATE of Arkansas
    CR 93-482
    862 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Pro Se.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Theodore Jones, the appellant, was convicted of carrying a weapon, driving without a driver’s license, operating a vehicle without a license plate, failure to obtain a vehicle inspection sticker, and failure to provide proof of insurance. Mr. Jones was tried, and found guilty of all charges, in a municipal court. He appealed and was again convicted in a de novo trial in Pulaski Circuit Court. He was fined and sentenced to six months in jail. Mr. Jones raises several points for appeal, none of which have merit, and we affirm the convictions.

1. Representation

Mr. Jones argues the Trial Court erred in failing to appoint counsel of his choice to represent him. At each of Mr. Jones’s trials, the judge persistently urged Mr. Jones to allow the court to appoint an attorney to represent him. Mr. Jones adamantly refused to be represented by a licensed attorney, insisting that the court appoint a “trusted person” of his choice. This request was repeatedly denied.

The Sixth Amendment of the United States Constitution, and Art. 2, § 10, of the Constitution of Arkansas, clearly state that a defendant is entitled to counsel. Equally clear is Art. 7, § 4, of the Constitution of Arkansas, which empowers this Court to regulate the practice of law in this State. Both this Court and the United States Supreme Court have held that it is not inconsistent with a defendant’s right to counsel to limit such appointments to licensed attorneys. See Wheat v. State, 486 U.S. 153 (1988); Nichols v. State, 273 Ark. 466, 620 S.W.2d 942 (1981).

2. Lack of proper charging instrument

Mr. Jones further argues the Trial Court failed to present the original citation issued to him. The Trial Court proceeded with a photocopy of the citation, which was identified by the issuing police officer.

Mr. Jones testified he was given a copy of the citation by the issuing police officer. Mr. Jones also introduced the copy he received from the officer into evidence. He has failed to show how he was prejudiced by the manner in which the Trial Court proceeded. We do not reverse on a point such as this one absent a showing of prejudicial error. Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992); Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).

3. Uniform Commercial Code

Mr. Jones also argues the Trial Court failed by not referring to the Uniform Commercial Code in resolving the charges. The laws governing the offenses of which he was charged are as follows: carrying a weapon, Ark. Code Ann. § 5-73-120 (Supp. 1991); driving without a driver’s license, Ark. Code Ann. § 27-16-602 (1987); operating a vehicle without a license plate, Ark. Code Ann. § 27-14-304 (1987); failure to obtain a vehicle inspection sticker, Ark. Code Ann. § 27-32-109 (1987); and failure to provide proof of insurance, Ark. Code Ann. § 27-22-104 (Supp. 1991). The Uniform Commercial Code does not apply to any of these offenses.

4.Jury Oath

Mr. Jones takes issue with the oath the jury was sworn to, but his abstract fails to demonstrate the oath that was administered. The administration of the oath is absent from the record as well. In his reply brief, Mr. Jones states that he did not abstract the oath because the court reporter failed to record it. We have clearly stated the rules for a proper abstract in Ark. Sup. Ct. R. 4-2(a)(6). That a pertinent point on appeal has been omitted from the record is an unacceptable excuse for a failure to properly abstract. It is an appellant’s responsibility to produce a sufficient record of all issues to be appealed. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).

5.Jury instructions

Mr. Jones also contends that the jury should have been instructed that it was the judge of both law and fact. In essence, he is arguing for jury nullification, i.e., the jury should have been allowed to disregard the law if it chose.

This contention has no merit. Arkansas Code Ann. § 16-89-107 (1987) states that during a trial all questions of law are decided by the court and the jury is bound by the court’s decision.

6.Carrying a weapon

Mr. Jones finally contends his conviction for carrying a weapon, in violation of § 5-73-120, violates his Second Amendment right to keep and bear arms. When he was stopped in his vehicle he was found to have a pistol in his pocket.

Section 5-73-120(a) regulates the possession of a handgun in a vehicle, providing in pertinent part:

A person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person.

The Statute provides several exceptions to the general rule stated, but Mr. Jones does not contend he comes within any of them. Rather, he rails against any restriction upon the bearing of arms.

Long ago we made it clear that the State may, as a matter of its police power, place appropriate restrictions on one’s right to bear arms. See Haile v. State, 38 Ark. 564 (1882); Wilson v. State, 33 Ark. 557 (1878); Fife v. State, 31 Ark. 455 (1876); Carroll v. State, 28 Ark. 99 (1872).

Affirmed.


author: Tom Glaze, Justice. Robert H. Dudley, Justice,

text:
    James W. BOLT v. STATE of Arkansas
    CR 93-281
    862 S.W.2d 841
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Karr, Hutchinson, & Stubblefield, by: W. Asa Hutchinson, for appellant.

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

On August 5,1992, James W. Bolt was charged with the crime of theft of property by deception. He was arraigned on August 31, 1992, and he pled not guilty. At the arraignment, the court informed him of his rights, including his right to a trial by jury. Both Bolt and his attorney signed a form which set out those rights. The form further reflects the attorney’s declaration that he believed Bolt was capable of understanding the rights given him and the substance of the proceeding.

Bolt and his attorney appeared for trial on December 9, 1992, and the trial court commenced the proceeding asking the state if it was ready. The state said that it was. The court then asked, “Is the defendant ready to proceed?” Bolt’s attorney said, “We’re ready, Your Honor, and at this time we would formally waive any requirement of a jury trial in this matter. We would proceed for the court to hear the case.” The judge responded, saying, “All right, the record will so reflect.” The trial court then had the witnesses sworn, it tried the case and found Bolt guilty of theft of property. The court sentenced Bolt to three years imprisonment.

Subsequent to trial, Bolt filed a motion for hew trial, and among other things, asserted that he had not entered a waiver of trial by jury. Upon conducting a hearing on Bolt’s motion and denying it, the trial court found Bolt was present when his attorney stood and waived his right to a jury trial. The judge noted that Bolt had assisted his attorney throughout the trial, and that he obviously was intelligent, educated and competent when his important right to a jury trial was waived. Bolt’s sole point on appeal is that the trial court erred in holding Bolt had properly waived his right to a jury trial.

Bolt’s argument is premised upon A.R.Cr.P. Rule 31.2 as it reads in conjunction with A.R.Cr.P. 31.3. Those rules respectively provide as follows:

Should a defendant desire to waive his right to a trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.
* * *
In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant’s attorney, except that a corporation charged with any crime may waive a jury trial through counsel or authorized corporate officer.

Bolt argues that, under Rule 31.2, the trial court cannot accept a waiver of jury trial from a defendant’s attorney because the defendant must “personally” waive it. Bolt suggests that only in misdemeanor cases involving fines, as described by Rule 31.3, may a defendant’s attorney waive a jury.

To further support his argument, Bolt cites this court’s recent decisions in Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), where the court held that an accused’s right of trial by jury shall not be violated unless that right is waived in the manner provided by law. See also Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991). In Winkle and Calnan, the court reversed the defendants’ convictions and held they were entitled to a jury even though they had not requested a jury, nor had objected before or at trial to having been tried without one. In Calnan, the court said that the law is clear that the only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court and that the open court proceedings where the defendant waives his or her right must be preserved. 310 Ark. at 747, 841 S.W.2d at 596.

The present case differs from Calnan and Winkle in that, in those cases, the record failed to show that either the defendants or their attorneys affirmatively waived the defendants’ rights to a jury. Here, Bolt’s counsel stated in open court, on the record, and in Bolt’s presence that Bolt waived a jury trial and specifically asked the trial court to hear the case. Bolt was well aware that he had a right to a jury, and the trial court determined that, while Bolt understood this right, he waived it in compliance with Rule 31.2 and Arkansas’s constitutional law providing for a jury trial and its waiver. See Ark. Const. art. 2, § 7. We agree.

Bolt’s argument is narrowly reduced to whether he personally, not his attorney, must waive his right to a jury. In addition to what we stated above, we reject Bolt’s contention based on the language of Rule 31.2 and our interpretation of similar wording found in our criminal procedure rules dealing with the receiving and acting upon guilty pleas. Rules 24.4 and 24.5 provide in relevant part that the trial court shall not accept a plea of guilty from a defendant without first addressing the defendant personally and in determining the voluntariness of a plea, the court shall also address the defendant personally to determine if any force, threats or promises were used to induce the plea. Under Rule 24.6, the court cannot enter a judgment upon a guilty plea without making inquiry if there is a factual basis for the plea, and in construing the foregoing rules, this court stated that a factual basis can be established only by addressing the accused personally. McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986).

In Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988), this court corrected its misinterpretation of its rules in McDaniel by stating the court had no rule providing that the factual basis for a defendant’s plea must be furnished only by the defendant. The court upheld Furr’s guilty pleas where the trial court, not Furr, recounted the charges and bases of the crimes in the presence of Furr, his counsel, the prosecutor and where the defendant acknowledged his guilt. Significantly, the Furr court added that Furr’s counsel also confirmed in open court and in the presence of the defendant, the truthfulness of the factual bases recited by the court.

In sum, we hold that, while a defendant who desires to waive his right to a jury trial under Rule 31.2 must do so either in writing or in open court, his or her attorney may also make such a waiver so long as the defendant has acknowledged he or she had been informed of the right and the attorney waives the right in open court, on the record and in the defendant’s presence. Here, Bolt indisputably had been informed of his right to a jury, acknowledged it and was present in court when his attorney waived the right in open court on the record. The court’s action was plainly proper, for in a matter of this kind, the defendant must be bound by his attorney’s action. Cf. Waller v. State, 262 Ark. 331, 556 S.W.2d 655 (1977). Accordingly, we affirm the trial court’s ruling and decision.

Dudley and Newbern, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. Appellant was charged with a felony. At trial, his attorney stated that appellant waived his right to a trial by jury. The judge heard the case without a jury, found appellant guilty, and sentenced him to three years imprisonment. Appellant, represented by different counsel, moved for a new trial, and contended that he had not personally entered a waiver of trial by jury. The trial court denied the motion. Appellant appeals and argues that, under the language of the Constitution of Arkansas and its implementing rules, he did not waive his right to a trial by jury. The majority opinion fails to follow the clear and definite language of the Constitution and its implementing rules, and holds that an attorney can waive the defendant’s right to a trial by jury. I dissent.

The right to a trial by jury in a criminal case has been a right of both the accused and the State since Arkansas was initially admitted into the Union. The statehood constitution, the 1836 constitution, provided “The right of trial by jury shall remain inviolate.” “Inviolate” means that it can not be violated. It cannot be waived; it must be had. Neither the State nor the defendant could waive a jury trial under this definitive provision. Wilson v. State, 16 Ark. 601 (1855); Bond v. State, 17 Ark. 290 (1856); Oliver v. State, 17 Ark. 510 (1856); Cooper v. State, 21 Ark. 228 (1860); Cason v. State, 22 Ark. 214 (1860); Bennett v. State, 22 Ark. 215 (1860). (In Bennett the court also reversed four other cases for the same reason.) The secession constitution, or the 1861 constitution, contained the identical provision, as did the military constitution of 1864, and the reconstruction constitution of 1868. Obviously, our forefathers wanted all criminal cases decided by juries, and not by judges. There were no exceptions. Trial by jury was inviolate.

We adopted our present Constitution in 1874 and, at that time, added the phrase “but a jury trial may be waived in the manner prescribed by law.” Thus, the present constitution provides: “The right of trial by jury shall remain inviolate,. . . but a jury trial may be waived in the manner prescribed by law. ” Ark. Const. art. 2, § 7 (emphasis supplied). Four years after adding the second phrase, we held the provision to mean that a defendant can waive a jury trial in the manner prescribed by the law at that time. Lester v. State, 32 Ark. 722 (1878). In Moore v. State, 241 Ark. 335, 407 S.W.2d 744 (1966), we said this provision means that a defendant must be afforded a jury trial unless he waives that right in the manner prescribed by statute.

Waiver “in the manner prescribed by law” is now governed by three of the Arkansas Rules of Criminal Procedure. The first of these rules, A.R.Cr.P. Rule 31.1, is a general rule which provides that “[n]o defendant in any criminal case may waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court.” The second of the rules, and the one that is directly in point in this case, has a title in bold print followed by the rule and is as follows:

RULE 31.2. Waiver of Trial by Jury: Personal Request
Should a defendant desire to waive his right to a trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved. [Emphasis supplied.]

Appellant did not personally waive his right to a jury trial either in writing or in open court as mandated by the clear language of the rule. He did not make a “Personal Request” as provided in the title to the rule. The rule plainly requires a personal declaration by the defendant before there is a waiver “in the manner prescribed by law.” Inaction on the part of the defendant does not constitute a waiver. In Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), we said “[t]he word ‘waiver’ means an intentional relinquishment of a known right. It is the doing of an intentional act.” Id. at 716, 841 S.W.2d at 590 (citation omitted). Appellant did not intentionally and personally make a relinquishment of a known right.

The foregoing reading of the clear and definite language of Rule 31.2 is made unassailable* by Rule 31.3, which expressly provides for waiver by counsel in misdemeanor cases. The title and rule are as follows:

Rule 31.3. Waiver of Trial by Jury: Waiver by Counsel or Agent.
In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant’s attorney, except that a corporation charged with any crime may waive a jury trial through counsel or authorized agent. [Emphasis supplied.]

In all of our prior cases we have read the language of Rule 31.2 just as it is. In Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), we wrote:

The law is clear that the only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court and that the open court proceedings where the defendant waives his or her right must be preserved. (Emphasis supplied.) That did not occur here. In Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), we wrote “Criminal cases which require trial by jury must be so tired unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two requirements are mandatory before the court has any discretion in the matter.”
Our clearest expression that a criminal defendant bears no burden of demanding a trial by jury under our constitution and law came in Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991). We stated, “There was no need for Elmore to demand or move for a trial by jury, much less obtain a ruling on the issue, thus the trial court erred in not honoring Elmore’s right to be tried by a jury.”

Id. at 747, 841 S.W.2d at 595.

The Arkansas Constitution and implementing rules are definite. Together they provide that in felony cases the defendant must personally waive the right to trial by jury. That was not done in this case. Yet, the majority opinion affirms the trial court’s ruling that appellant waived a jury trial in compliance with Rule 31.2. The rationale given in the majority opinion is that its construction of Rule 31.2 is comparable to that given Rules of Criminal Procedure 24.4 and 24.5, rules that deal with acceptance a guilty plea. That rationale contains the fallacious premise that Rule 31.2 needs a construing or interpreting in order to determine its meaning. It needs no construction. The rule is clear and unambiguous. This court has no authority to construe a statute that is plain and unambiguous. Cowger v. State, 307 Ark. 92, 817 S.W.2d 427 (1991).

However, even if construction or interpretation were permissible, we would construe or interpret the rule by giving the words their ordinary and usually accepted meaning, Garrett v. McDonagh, 303 Ark. 348, 796 S.W.2d 582 (1990), and the simple fact is that when the words of the rule are given their ordinary and usually accepted meaning, the rule itself is clear: “Should a defendant desire to waive his right to a trial by jury, he shall do so personally either in writing or in open court.” Nothing more need be said.

The words of the constitution and its implementing rules should be given their clear meaning. The majority opinion does not do so. Perhaps part of the reason is that some members of the majority find appellant’s actions reprehensible. We all share that feeling, but this case involves so much more. The state constitution and its implementing rules should never be thwarted by a specious construction or interpretation that is had in order to prevent an undesirable result. The end does not justify the means. If the majority believes the rules prescribing waiver of the right to trial by a jury should not be as they are today, proper procedure should be followed and the rules rewritten.

Newbern, J., joins in this dissent.

       We note that a defendant charged with a felony must be present during the trial, but in a misdemeanor case, the trial may be had in the defendant’s absence. Ark. Code Ann. § 16-89-103 (1987). In this respect, Rule 31.3’s language that allows the defendant’s attorney to waive a jury trial is consistent with the law that a defendant’s presence is not required in misdemeanor cases. His plea may likewise be accepted in his absence. See Prince v. State, 267 Ark. 304, 590 S.W.2d 25 (1979).

       Justices Dudley, Newbern and Purtle dissented, voicing their opinion that the bright line rule in McDaniel should be followed, and the defendant should establish the factual basis of the crime to which he or she pled guilty.


author: Tom Glaze, Justice.

text:
    Henry LOCKHART v. STATE of Arkansas
    CR 93-215
    862 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      McCullough Law Firm, by: R.S. McCullough and Rita F. Bailey, for appellant.

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

On January 21,1992, Henry Lockhart was eventually stopped and arrested following a pursuit through the City of Camden by police officers. During the pursuit, Lockhart ran his vehicle through a roadblock and was seen throwing a green, leafy substance out the car’s window. The car finally came to a halt in someone’s yard, and Lockhart took off on foot but was subsequently apprehended by the police. In inventorying the car, the police found a green, leafy substance in its floorboard and seat. An electronic weight scale was also located in the car’s back seat. On April 28, 1992, Lockhart was charged with possession of a controlled substance (marijuana) with intent to deliver. The state also sought extended imprisonment of Lockhart under Arkansas’s Habitual Offender Law.

On October 6, 1992, the state amended its information to add a second count charging Lockhart with possession of drug paraphernalia (items used in weighing, measuring, and testing controlled substances). Immediately before the trial started on October 8, 1992, Lockhart moved to dismiss the state’s second count because he only learned of that charge two days prior to trial, and he was not prepared to try both counts. The trial court denied Lockhart’s motion to dismiss, and instead severed the second count so it could be tried later, since Lockhart did not have sufficient notice. Lockhart stated he was not seeking severance because he might want to dispose of both counts at the same time. He then asked for a continuance, which was denied by the court.

The trial proceeded only on the state’s first count against Lockhart. When the state’s fifth witness, Officer Gary Vaughn, commenced testifying from a crime lab analysis report that reflected the green, leafy substance found in Lockhart’s possession was marijuana, Lockhart objected on the basis that the officer’s recitation would be inadmissible hearsay. Lockhart contended that the state furnished the crime lab report to him only six days prior to trial, and that the state’s delay effectively denied him the right to confront and cross-examine the analyst who prepared the report. The prosecutor responded that Ark. Code Ann. § 12-12-313 allowed such a report to be introduced “on its own” provided defense counsel failed to give ten days notice to the state to have the chemist who prepared the report present at trial. Lockhart countered saying he could not comply with the ten-day requirement in § 12-12-313 because the state informed him of the report only six days before trial.

After hearing Lockhart’s and the prosecutor’s arguments, the trial court ruled it would permit the report to be introduced because the court believed Lockhart’s counsel knew or should have known that he had the right to have the chemist present if he wanted him. The trial court stated that it believed Lockhart merely wished to delay the case, otherwise, it would grant a one-day continuance and send for the chemist to testify the next day. Finally the trial court faulted the state for failing to bring the report matter up earlier, but concluded it believed Lockhart’s objection was frivolous, and no real question existed as to whether the substance was marijuana, as was stated in the lab report. Lockhart’s counsel denied that his motion was for delay purposes, and he also denied that the substance in issue was marijuana.

The jury convicted Lockhart on the possession with intent charge and sentenced him to twenty years imprisonment. On appeal, he contends the trial court erred (1) in allowing the crime lab report into evidence and (2) in severing the drug paraphernaliá count instead of dismissing it or alternatively in failing to grant a continuance so he could prepare and defend himself against both counts in this case.

Lockhart’s first argument requires our construction of § 12-12-313 which permits a chemist’s crime lab report to be admitted into evidence for the truth of the findings and statements in it if the chemist attested to those findings. Nard v. State, 304 Ark. 159, 801 S.W.2d 159 (1990). If such a report fails to meet the prerequisites of the statute, it is considered inadmissible hearsay under Rule 803(8)(iii) of the Uniform Rules of Evidence. Id. However, even when the state’s report meets the statutory requirements and the state intends to introduce the report as an exception to the hearsay rule, a defendant may, under provision (d)(2) of the statute, still require the chemist’s presence for the purpose of cross-examination, if the defendant requests the chemist’s presence at least ten days prior to trial.

Our court has never been confronted with the situation where, under § 12-12-313, the state’s tardiness had caused a defendant’s inability to comply with the statute’s ten-day notice requirement. The court of appeals, however, had such a situation in Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992). There, the state never intended to introduce a crime lab report until the defendant, Hendrix, testified on the third day of trial. Because Hendrix denied having used or dealt in drugs, the state called Officer Martin to testify that he had found Hendrix in possession of cocaine, and obtained a crime lab report corroborating that the substance Hendrix possessed was cocaine. Hendrix objected to the introduction of the analyst’s report, but the state argued Hendrix had failed to make a pretrial demand for the analyst to be present at the proceeding; therefore, he waived his right to cross-examine the analyst. The state relied upon our case of Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990), wherein the court stated that a defendant, who fails to give the ten-day notice to the state under § 12-12-313, waives his or her right to confrontation. The court of appeals, however, correctly distinguished Hendrix’s situation from the one in Johnson. It stated that the rule in Johnson necessarily contemplated that the defendant knew or should have known prior to trial that the state intended to introduce the lab report, and in that event, the defendant must follow the procedure set out in the statute. The court stated Hendrix had no such prior knowledge, and in emphasizing this distinction, recounted as follows:

The statute [§ 12-12-313], however, contains no procedure for the assertion of these rights when the existence and intended use of such a report first becomes known to the accused after the trial has commenced. Here, the state admits that it had no intention of using evidence of the stop made by Officer Newton until after appellant had testified. Nor was it disputed that appellant did not know of that intent until the third day of trial. While the procedural rule requiring pretrial notice of demand for the right of cross-examination of a laboratory employee is generally a reasonable one, there can be no reasonable basis for enforcing such a rule where it is not possible for the accused to comply.
Nor do we find merit in the state’s argument that, because appellant could have asked for a continuance to enable him to obtain the presence of the witness, his failure to do so constituted a waiver of the right to demand that presence. Because the statute does not contain a reasonable procedure for asserting the right of confrontation when that right arises after the trial has begun, the assertion of that right when it does arise is all that is required of the accused and casts upon the state the burden of either producing the witness for cross-examination or requesting a continuance in order to produce him. In other words, in the absence of an applicable statute or rule, the burden of producing a prosecution witness for cross-examination does not rest upon the accused, but rather upon the state. (Emphasis added.)

We believe the court of appeals’s construction of § 12-12-313, and particularly of provision (d)(2), is sound. However, the factual situation here differs from the one in Hendrix and our application of the rationale in Hendrix leads us to a different result.

In the present case, unlike in Hendrix, Lockhart indisputably knew six days prior to trial that the state intended to use the crime lab report. But, as Lockhart’s counsel candidly admits, he merely intended to rely on the ten-day notice rule and, in doing so, consciously chose not to ask the state to have the analyst present at trial. Instead, defense counsel waited until the parties selected a jury and the state had nearly tried its entire case before he objected to the absence of the report’s author. We agree with the Hendrix court’s rationale that the state has the burden of producing the chemist or in obtaining a continuance when the state has caused the defendant to be unable to comply with the statute’s ten-day notice prerequisite. Nevertheless, Lockhart was, at the very least, required to inform the state that he desired to have the analyst present at trial so the state would know it had the burden to produce the analyst as a witness.

Here, if the state had been informed of Lockhart’s desire to cross-examine the chemist after Lockhart received the report, the state still had six days, clearly ample time, to subpoena the chemist for the October 8th trial or to request a continuance. Lockhart offers no other suggestion of prejudice in this case except the analyst’s absence at trial and Lockhart’s corresponding loss of his right to cross-examine — a right Lockhart may have been afforded if he had only informed the state of his request. Because he neither asked the state to have the analyst present at trial nor showed such a request would have availed him anything, we hold Lockhart waived his rights under § 12-12-313.

We next turn to Lockhart’s argument that the trial court erred by denying his motions to dismiss or alternatively for a continuance regarding the paraphernalia count the state brought against Lockhart only two days before trial. Lockhart first moved the second count should be dismissed which the trial court denied. However, the trial court ruled that it would sever count two because Lockhart was not given sufficient notice thereby acknowledging he was unprepared to try both charges. Lockhart responded stating he did not want a severance and reiterated he was entitled to dismissal, but if no dismissal, a continuance because “he might want to ‘disclose’ all of his cases at the same time.”

Under A.R.Cr.P. Rule 21.1, two or more offenses may be joined by the state in one information with each offense stated in a separate count, when the offenses (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the conduct or on a series of acts connected together or constituting parts of a single scheme or plan. However, it should be pointed out that joinder is not required of a prosecutor, nor is there any assurance that such joinder will always withstand a motion for severance. See Commentary to Article VI of the Rules of Criminal Procedure. Here, the record reflects the possession of marijuana with intent to deliver and the paraphernalia offenses are of similar character and they arose from a single scheme or plan. In fact, both the marijuana and the paraphernalia were found in the car Lockhart was driving when he was arrested.

Although the state wás permitted under Rule 21.1 to join the two' related counts against Lockhart, the trial court, under A.R.Cr.P. Rule 21.1, had the authority to sever those two offenses before trial if a severance could be obtained on motion of the defendant or the prosecution. Lockhart clearly rejected any idea that the offenses should be severed, although he also never requested they be joined. The prosecutor, however, never objected to the trial court’s ruling to sever the paraphernalia count, and undoubtedly if the prosecutor had moved to sever the counts, the court would have granted his motion for two reasons. First, under A.R.Cr.P. Rule 22.2(b)(i), a prosecuting attorney is entitled to a severance if, before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. Here, the trial court found Lockhart had not received sufficient notice that the state would file the paraphernalia charge, thereby acknowledging Lockhart’s lack of preparedness to defend against that charge. Second, Lockhart never asked the two offenses be joined for trial, and it was otherwise only permissive, not mandatory, for the prosecutor to join the offenses in the first place.

In sum, we hold that, based on the motions and arguments presented the trial court, the trial court was well within its discretion to sever the state’s paraphernalia count and to deny Lockhart’s motions to dismiss or to continue.

       Lockhart made several arguments below why the crime lab report should be excluded, but the one argued on appeal concerns Ark. Code Ann. § 12-12-303 (Supp. 1991), which under certain conditions permits reports by the State Crime Laboratory to be introduced without the presence of the chemists preparing the reports.

       We note that Lockhart did say “he might want to ‘disclose’ all of his cases at the same time,” but his requests to the trial court were that it grant dismissal or a continuance, not a joinder.


author: Robert L. Brown, Justice.

text:
    Michael HALL v. STATE of Arkansas
    CR 93-629
    862 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Tim A. Womack P.A., by: Tim A. Womack, for appellant.

      Winston Bryant, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal arises from a burglary committed in Camden for which the appellant, Michael D. Hall, was convicted and sentenced as a habitual offender to 37 years in prison and fined $10,000. The points raised by the appellant do not warrant reversal, and we affirm.

On July 11, 1992, between 7:00 a.m. and 8:00 a.m. Mrs. Ruby Bearden entered the living room of her home in Camden and found a man who was later identified as the appellant rifling her purse. After Mrs. Bearden threatened to call her husband, the appellant fled the residence with her wallet. Mrs. Bearden then called the Camden Police Department, and Officer Chris Wages was dispatched to her home.

Mrs. Bearden described the intruder as a male with a beard and long curly black hair. She stated that he wore a dark shirt and shorts. Other officers in the area were advised of this description, and Officer Larry McMahen of that department observed a man fitting it walking without a shirt. He called Officer Wages, who went to the area and saw the man just after 8:00 a.m. about to enter a truck. The man was wearing dark green shorts and no shirt. Officer Wages stopped him, asked his identity, and requested that he return to the Bearden residence. The man was the appellant. Officer Wages patted him down and confiscated approximately $62.00.

After Hall was returned to the Bearden residence, Mrs. Bearden identified him as the man that she saw going through her purse earlier. He was arrested for burglary and charged.

At trial, Officer Wages testified, in answer to the prosecutor’s questioning, that Officer McMahen informed him that a man fitting the description given by Mrs. Bearden was seen walking down Cash Road towards Fairview Road. Officer Wages then stated:

Officer McMahen is the one that said that. He said that the subject was near — on Cash Road near Chaffee Creek trails. It’s another street down there. At this time I left Mrs. Bearden’s residence and went down there and found the black male which was Mr. Hall here. We’ve had previous occasions and stuff — .

At this point, defense counsel objected, and the objection was sustained. He next moved for a mistrial but that was denied.

Officer Larry McMahen later testified, and during cross examination by defense counsel, this colloquy ensued:

DEFENSE COUNSEL: Would there be any particular reason for you to make note of what kind of shirt he was wearing at that particular time?
McMAHEN: Yes, sir. Good patrol tactics. We’ve had problems with him in the past, and just — note what he’s wearing.
DEFENSE COUNSEL: Okay. So you see him going in Chicken Country and make a mental note that he’s wearing a shirt similar to that?
McMAHEN: Similar to that.
DEFENSE COUNSEL: No reason to be suspicious of him at that time?
McMAHEN: Other than we’ve had problems in the past.
DEFENSE COUNSEL: I understand that. Now did you ever come back to the scene of the Chicken Country?

There was no objection to the officer’s statement about past problems.

During closing arguments, defense counsel made the following remarks to the jury:

I would hate to send an innocent man to the penitentiary because of a witness who had no opportunity to make an observation, and then the police bring him in here and you will recall the testimony was, “We have your suspect in the car.” There’s no lineup at that point.
“Here’s the man that did it. We’ve had trouble with this man before. Come out and make sure that’s the one.”

The jury found appellant guilty of burglary. After a subsequent hearing as a habitual offender, he was sentenced to 37 years imprisonment and fined $10,000.

The appellant raises two points of error, both of which he contends pertain to the two officer comments about prior bad acts of the appellant. First, he argues that the trial court erred by denying his motion for a mistrial based on the testimony of Officer Wages, “We’ve had previous occasions and stuff. . . .” Secondly, he refers to Officer McMahen’s comment, “We’ve had problems with him in the past. . . .” The two statements, according to Hall, violate the proscription against testimony of prior bad acts in Ark. R. Evid. 404(b).

This Court has observed that there is always some prejudice that results from the mention of a prior bad act in front of the jury. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). In instances where the infraction creates minimal prejudice the proper remedy is an objection to the evidence and an admonition or instruction to the jury to disregard the remark. Sullinger v. State, 310 Ark. 691, 840 S.W.2d 797 (1992). A motion for mistrial is only appropriate where the error is beyond repair and cannot be corrected by any curative relief. Id.; Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993). The trial court has wide discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for abuse of discretion or manifest prejudice to the complaining party. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

We first address the testimony of Officer Wages. We are not convinced that the jury interpreted his incomplete sentence about “previous occasions and stuff” as a reference to prior bad acts of the appellant. Furthermore, we have held that remarks, which amount to inadvertent references to previous illegal conduct, may be cured by an admonition from the trial court ordering the jury to disregard the statement. Mitchael v. State, 309 Ark. 151, 828 S.W.2d 351 (1992); Strawhacker v. State, supra. In the instant case, no admonition was requested by defense counsel. In sum, the statement was vague and any problem resulting from it could have been cured by an instruction to the jury. We cannot say that the court abused its discretion in denying appellant’s motion for a mistrial. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).

Turning to the testimony of Officer McMahen, defense counsel failed to object to the perceived prejudicial comment. Without a timely objection, the issue is not preserved for appeal. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). The reason, no doubt, for the failure to object is that defense counsel himself elicited the comment at issue on cross examination. That circumstance, however, does not relieve counsel from objecting or asking that the jury be instructed to disregard the statement. On this point, we have held that an appellant cannot claim reversible error on testimony that he or she chose to introduce. Kaestel v. State, 274 Ark. 555, 626 S.W.2d 940 (1983). In short, Hall should have taken some measures to preserve the issue for appeal, and he did not do so.

This brings us to Hall’s final point where he contends that the trial court should have admonished the jury to disregard the statements of Officers Wages and McMahen and erred in failing to do so. This point has no merit. It is the defendant’s duty to request a curative instruction. Sullinger v. State, supra; Woods v. State, 40 Ark. App. 204, 846 S.W.2d 186 (1993). We again recognize that no such relief was requested by the defense counsel. The appellant’s failure to ask for an admonition at trial cannot inure to his benefit on appeal. Sullinger v. State, supra; Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989).

Affirmed.


author: Per Curiam.

text:
    Michael Dewayne JACKSON v. STATE of Arkansas
    CR 93-476
    863 S.W.2d 283
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Appellant, pro se.
    No response.
   Per Curiam.

The petitioner Michael Dewayne Jackson was found guilty in 1992 of delivery of a controlled substance and sentenced as a habitual offender to twenty years imprisonment. No appeal was taken, and petitioner subsequently filed a timely motion for belated appeal in this court pursuant to Criminal Procedure Rule 36.9. He alleged that he had informed his retained attorney Gene Worsham of his desire to appeal but Worsham failed to perfect the appeal.

In an affidavit filed by Worsham in response to the motion Worsham averred that at no time during the thirty-day period for filing a notice of appeal set by Rule 4 (a) of the Rules of Appellate Procedure was he informed that petitioner desired an appeal. Because the contentions of petitioner and Mr. Worsham were in conflict, we remanded the matter to the trial court for an evidentiary hearing and Findings of Fact and Conclusions of Law on the question of whether petitioner informed Worsham of his desire to appeal within the time for filing a timely notice of appeal. The transcript of the evidentiary hearing and the court’s Findings of Fact and Conclusions of Law are now before us.

After the hearing at which petitioner, petitioner’s sister, and Worsham testified, the trial court found that petitioner had timely notified Worsham of his desire to appeal. This court recognizes that it is the trial court’s task to assess the credibility of witnesses and resolve conflicts of fact. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). The trial court’s finding that petitioner informed counsel of his desire to appeal in a timely manner is accepted, and the motion for belated appeal is granted. As Mr. Worsham has never been relieved as counsel, he remains responsible for proceeding with the appeal. He is directed to file within thirty days a petition for writ of certiorari in which he designates the entire record, or that portion of the record, necessary for the appeal. As petitioner contends that he is indigent and the state has not contested that claim, petitioner is granted permission to proceed in forma pauperis in the appeal. See Bealer v. State, 314 Ark. 352, 862 S.W.2d 259 (1993).

Motion granted.


text:
    Rickey NEAL v. STATE of Arkansas
    CR 93-424
    868 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Appellant, pro se.
    No response.
   Per Curiam.

In 1992 the petitioner Rickey Neal was found guilty by a jury of manslaughter and was sentenced to ten years imprisonment. He was represented at trial by Jerry Sailings, a deputy public defender. No appeal was taken, and petitioner sought a belated appeal pursuant to Criminal Procedure Rule 36.9. Mr. Sailings filed an affidavit in response to the motion. As the statements of petitioner and Sailings were in conflict as to whether petitioner informed Sailings of his desire to appeal within the time for filing a timely notice of appeal, the matter was remanded to the trial court for an evidentiary hearing. The transcript of that hearing and the trial court’s written Findings of Fact and Conclusions of Law are now before us.

Petitioner contended in the motion for belated appeal that he advised counsel of his desire to appeal immediately after the guilty verdict was entered and that he did not learn until six months after sentencing that an appeal had not been perfected. He stated that he did not sign a waiver of appeal, but that if he did sign such a waiver, it was not a “willful and intelligent” waiver.

Sailings averred in an affidavit filed in response to the motion for belated appeal that he thoroughly explained the right to appeal to petitioner after trial and that petitioner chose not to appeal. Sailings attached to his affidavit an undated statement signed by the petitioner without notarization stating that he was waiving his right to appeal.

The trial court heard testimony from petitioner, who was represented by counsel, and Sailings on the fact question to be resolved. The contentions of petitioner and Sailings were essentially those made to this court. The court concluded that Sailing’s testimony was the more credible. This court recognizes that it is the trial court’s task to hear witnesses and assess their credibility. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). We accept the trial court’s finding that petitioner voluntarily chose not to appeal. As a result, the motion for belated appeal is denied.

Motion denied.

       Petitioner testified at the evidentiary hearing concerning allegations of ineffective assistance of counsel which were apparently raised pursuant to Criminal Procedure Rule 37 in a separate petition filed in the trial court and which were not a part of the motion for belated appeal which was filed in this court pursuant to Criminal Procedure Rule 36.9. The trial court correctly noted at the hearing that this court remanded the matter for an evidentiary hearing limited to the allegation raised under Rule 36.9 and properly declined to enter findings concerning any other claim of ineffective assistance of counsel.


text:
    Susan STANLEY v. STATE of Arkansas
    CR 93-919
    861 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Michael D. Roy, for appellant.
    No response.
   Per Curiam.

Appellant, Susan Stanley by her attorney, Michael D. Ray, has filed a motion for rule on the clerk. Her attorney admits that the record was tendered late in an affidavit submitted in response to our per curiam order of September 20, 1993, and accepts responsibility.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Jimmy Dean WELCH v. STATE of Arkansas
    CR 93-1051
    868 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Phil Kinsey, for appellant.
    No response.
   Per Curiam.

The appellant, Jimmy Dean Welch, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Phil Kinsey, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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