text:
    Leon SIMMONS v. STATE of Arkansas
    CR 93-88
    862 S.W.2d 245
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993
    [Rehearing denied November 8, 1993.]

      William M. Howard, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Leon Simmons stands convicted of two counts of possession of cocaine with intent to deliver, and as a habitual offender, was sentenced to two life sentences. He raises five points for reversal.

In his first two points, Simmons argues that the trial judge abused his discretion in refusing to continue the scheduled August 13,1992 trial and to recuse from trying Simmons’s case. Simmons was charged on February 11,1992, and counsel, Tracy Bagwell, was appointed to represent him. Simmons’s present counsel, William Howard, Jr., apparently took over Simmons’s representation on June 29, 1992, although no notice of appearance was filed by Howard and no withdrawal motion was filed by Bagwell.

The record reflects Howard’s first appearance on Simmons’s behalf occurred when he filed motions for discovery and continuance on July 24, 1992. A hearing was held on Simmons’s continuance motion on July 27,1992. Howard told the trial judge that he was scheduled to retry a capital felony murder case on August 17th, and he said that there was no way he could be ready to try Simmons’s case on August 13th. The judge responded by denying the requested continuance and stating Simmons had been in jail for six or seven months, his drug case was simple and counsel, Howard, had had forty-five days to prepare for trial, which was long enough.

Ark. R. Civ. P. 27.3 provides the court shall grant a continuance only upon a showing of good cause and that a motion for continuance is addressed to the sound discretion of the trial judge and his or her judgment will not be reversed on appeal in the absence of clear abuse. Loggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Here, the trial judge gave sound reasons for denying a continuance, and Simmons offers no proof or argument that Mr. Howard was unprepared or otherwise hampered when representing Simmons at trial.

Related to his continuance argument, Simmons also contends the trial judge demonstrated prejudice towards him, and for that reason, the judge should have recused. Simmons’s counsel, Howard, asserts that, during the hearing on Simmons’s continuance motion, the trial judge became upset over Howard’s remarks when he mentioned the district’s Drug Task Force and what he characterized as the Task Force’s “recent published problems.” The trial judge stated Howard’s comments were not fair and were “condemning somebody without evidence.” Howard explained he was seeking reports relating to the disappearance or discrepancies of drugs the Task Force had had in its possession because Simmons’s defense was “he did not have drugs and if they found drugs, someone planted them on him.” The judge then responded, “I don’t know anything about that, and that’s fine, and in other words, if you’re entitled to it, you prepare the order and you’ve got it.”

Howard and the prosecutor then exchanged remarks concerning what evidence may or may not be discoverable involving the Drug Task Force, and the trial judge interjected “that you both know the laws of discovery well enough that you can comply with the rules of discovery without hassling about it.” Then, abruptly switching back to his earlier expressed need for a continuance, Howard told the court, “Well, like I said before, Your Honor, I have several cases that have been set on the docket prior to this trial, prior to this case.” The court again responded, “Either Mr. Bagwell is going to represent Mr. Simmons, or you are going to represent him on August the 13th. You are going to be here. If you’re not here, I’ll send after you, Mr. Howard.”

In sum, Simmons argues his attorney interpreted the trial judge’s actions and statements, including his threat to send the sheriff after counsel, as an objective 'demonstration of prejudice. We must disagree. As we have recently said, the decision to disqualify from a case is discretionary with a judge and a judge’s decision in this regard will not be reversed absent an abuse of that discretion. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

From our reading of the record, clearly the trial court’s objective was to try Simmons’s case on August 13, because Simmons had been incarcerated for about seven months. He viewed the case as uncomplicated and further expressed that the discovery differences defense counsel had with the state could be resolved, if necessary, by the court’s order. At the recusal hearing, the trial judge explained that he would expect any trial counsel to appear when his or her client’s case was called on the docket; if counsel failed to appear, the judge would determine why counsel did not show, and, if necessary, send the sheriff for a contempt hearing. The judge added that he had always treated Howard fairly, and Howard agreed, saying that was why he expected having no problem in obtaining a continuance in Simmons’s case. The record, we believe, reflects nothing that shows the trial judge .could not impartially try Simmons’s case, and absent some objective demonstration of prejudice, we will not reverse the judge’s ruling on disqualification. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).

Simmons’s third and fourth points we consider together. Both points involve hearsay objections to testimony given by state witnesses Lavonne Davis and Particia Matthews.

Lavonne Davis had been arrested on a separate drug offense on January 21,1992, and at that time, he spoke with Officer Ron Poole about Simmons. It was this information from Davis which in main part led to the arrest of Simmons and the search of his car and two residences. Simmons did not challenge Simmons’s arrest or search, and at trial, the crack cocaine rocks found in Simmons’s residences and car were admitted into evidence without objection. However, the state placed Davis on the stand to testify to what he had previously told Poole on January 21, and Simmons argues such elicited testimony was hearsay and inadmissible. The testimony follows:

State: What did you tell Mr. Poole?
Davis: It — he asked me did Leon [Simmons] have any dope in the car?
State: What did you tell him?
Davis: I told him there was some people come by looking for him and they said he had some, asked me did I have any.
Howard: Objection again to hearsay.
Court: The objection as to hearsay part of it is sustained.
State: Bunny, I don’t want to know what the girls told you.
Davis: Okay.
State: I want to know what you told Mr. Poole, going at it around about way.
Davis: That Leon had some dope in the car.
State: You told Mr. Poole what? Those words?
Davis: Yes, sir.
Howard: Your Honor, I’d like to object to that. Number one, he’s indicated he didn’t even talk to Leon Simmons that day. How does he have any personal knowledge what Mr. Simmons had in his car, unless someone else told him? It’s hearsay objection I’m making.
Court: Overruled. (Emphasis added.)

Simmons’s second hearsay objection goes to testimony elicited from Patricia Matthews, who was living with Simmons at the time of his arrest, and it was her apartment in which some of the cocaine was found. While she was on the stand, the following occurred during direct:

State: What was the nature of your conversation with Mr. Simmons? Why did you confront him?
Matthews: Because I heard that he was selling drugs and I asked him if he was selling drugs.
Howard: Your Honor, I’m going to object again. We’re going to some hearsay. She hadn’t testified yet to seeing him with any drugs. She heard something about some drugs.
Court: The objection to the last question is overruled. (Emphasis added.)

Simmons argues Davis’s and Matthews’s statements were hearsay because they were elicited to prove the matter asserted, namely, that Simmons was selling dope. The state contends that Davis’s testimony showed in part the probable cause basis for the officers having stopped and arrested Simmons and having searched his car and two residences. Concerning Ms. Matthews’s testimony, the state urges that information gained from others that Simmons was selling dope merely showed the reason or basis for confronting Simmons sometime prior to his arrest and the search, and telling him she did not want drugs in her apartment where Simmons resided.

As previously mentioned, Simmons never challenged the officers’ search of his car and apartment, so the evidence gained as a result of the searches was admitted without objection. Probable cause in this case had no relevance and the state’s use of Davis’s remarks to Poole could only be of value to reinforce in the jurors’ minds that Simmons was selling drugs. And while Matthews’s testimony, too, bears some indicia of hearsay problems, we should quickly add that, in view of the overwhelming nature of the evidence against him, Simmons has not demonstrated that, even given error in the admission of such testimony, prejudice resulted. Gage v. State, 295 Ark. 337, 748 S.W.2d 351 (1988).

As pointed out, the state introduced without objection the bags of cocaine found in Simmons’s residences and car. In addition, Lavonne Davis testified that he personally had obtained crack cocaine from Simmons, sold it and returned a portion of the proceeds to Simmons. Davis testified that, during the six-month period prior to his and Simmons’s arrest, he had gotten crack cocaine from Simmons on nine or ten occasions, he sold it and after the sales, he gave money to Simmons who would give Davis a new supply. Such testimony clearly portrayed to the jury Simmons’s intended use of the crack cocaine found in his possession when he was arrested. In view of this overwhelming evidence of guilt, Simmons simply fails to show that prejudice resulted from either Davis’s or Matthews’s testimony.

Simmons’s final point involves a hearsay argument as well. On cross-examination of Officer Poole, defense counsel asked whether the items seized from Simmons’s residences and car had been dusted for prints. Counsel further asked, “If you really wanted to know if this [stuff] was Leon Simmons’s and he had touched it... you’d ask the Crime Lab to dust for fingerprints... wouldn’t you? Poole said, “I’ve got . . . instructions from the Crime Lab on matters such as this, and I’ll be glad to explain it to you if you’d like.” Counsel told Poole no. On redirect, the prosecutor asked Poole to explain what the Crime Lab’s instructions were concerning fingerprint analysis of items such as the ones seized from Simmons. Over Simmons’s hearsay objection, Poole was allowed to say, “They told us that items like this are not likely to produce any fingerprints . . . and they asked us not to submit items like that.”

The simple answer to Simmons’s argument here is that he opened the door for Poole to explain why he had not sought fingerprint analysis from the Crime Lab when defense counsel, himself, asked Poole would he not have asked the Crime Lab to dust for fingerprints if Poole really wanted to show Simmons possessed or touched the contraband found in his car and residences. See Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976). The state only had Poole explain that the reason he did not seek fingerprint analysis in this case was because the Crime Lab had requested officers not to do so on certain items like those found in Simmons’s possession.

In conclusion, because Simmons has been sentenced to life imprisonment, the record has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) and other prejudicial errors have not been found. Therefore, we affirm.

       Simmons objected to this testimony below as being irrelevant, but the trial judge allowed the testimony under Ark. R. Evid. 404(b) to show Simmons’s intent when having the crack cocaine in his possession at the time of his arrest. Simmons does not challenge the trial judge’s ruling in this appeal.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Gilbert E. BURTON v. STATE of Arkansas
    CR 92-1472
    862 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Keil & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Gilbert E. Burton, appeals a judgment of the Miller Circuit Court convicting him of possession of a schedule II controlled substance (cocaine) with intent to deliver, sentencing him to forty years imprisonment, and fining him $20,000.00. Appellant asserts only one point of error in his jury trial. We find no merit and affirm.

For reversal of the judgment entered pursuant to a jury verdict, appellant contends the trial court erred by allowing the admission of undisclosed evidence. Appellant filed a motion for discovery on January 6,1992, requesting the disclosure of, among other things, “[a] 11 reports of scientific tests, experiments and comparisons” and “the names, addresses, telephone numbers of any witnesses the State intends to call to testify in the trial.” The state responded to the discovery request by asserting its “open file” policy. Appellant was allowed access to the prosecutor’s file and made photocopies of its contents. The file did not include the names of three of the witnesses the state called at trial — Sergeant Mark Lewis of the Texarkana Police Department, Lieutenant Gerry Brown of the Texarkana Police Department, and Norman Kemper, a chemist from the State Crime Laboratory. The index to the file did indicate a laboratory report was pending. Appellant argues that because the prosecutor did not disclose the names of those three witnesses and a chemical analysis performed by the State Crime Lab on the controlled substance, the evidence should not have been admitted.

When evidence is not disclosed pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). The prosecutor’s responsibility is to provide reports of scientific tests and any information or materials concerning witnesses he or she intends to call. A.R.Cr.P. Rule 17.1(a)(i), (iv). If the prosecutor fails to comply with discovery requirements, the trial court may order compliance, grant a continuance, exclude the evidence, or order other appropriate relief. A.R.Cr.P. Rule 19.7(a). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose; absent a showing of prejudice, we will not reverse. Scroggins, 312 Ark. 106, 848 S.W.2d 400.

As the laboratory report was never introduced into evidence, other than for the limited purpose of preserving appellate review, we find no prejudice in that respect.

Officers Lewis and Brown testified as to the chain of custody of the substance appellant was accused of possessing. Mr. Kemper testified the substance recovered from appellant was identified as 84% pure cocaine base. The trial court allowed Sergeant Lewis’ testimony after giving appellant’s counsel “whatever time you feel like you need right now to talk to Detective Lewis before examination goes forth.” The trial court allowed Lieutenant Brown’s and Mr. Kemper’s testimonies reasoning that the subpoenas issued in their names were sufficient notice to appellant that the state intended to call them as witnesses. Appellant’s defense to the charge was that he never possessed the cocaine, either actually or constructively. Consequently, the three witnesses’ testimonies as to the identification and chain of custody of the cocaine did not prejudice appellant.

We note that the exclusion of undisclosed evidence is not the only remedy available under A.R.Cr.P. Rule 19.7(a). The trial court may remedy the failure to disclose by granting appropriate relief, such as the opportunity for defense counsel to interview the undisclosed witness, Sergeant Lewis.

Although we express disapproval of the prosecutor’s failure to disclose, for the reasons stated we find no merit to appellant’s argument and affirm the judgment of conviction.

Affirmed.


author: Donald L. Corbin, Justice. Steele Hays, Justice,

text:
    Carroll GRAVETT, Pulaski County Sheriff, et al. v. F. G. “Buddy” VILLINES, Pulaski County Judge
    93-688
    862 S.W.2d 260
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Stanley, Harrington & Mars, by; Thomas A. Mars, for appellants.

      Larry D. Vaught, Pulaski County Attorney, for appellees.
   Donald L. Corbin, Justice.

The Pulaski County Quorum Court (Quorum Court) enacted two ordinances, Ordinance No. 93-OR-07 and Ordinance No. 93-OR-08. Ordinance No. 93-OR-07 transferred the responsibility for the operation and maintenance of the Pulaski County Jail from the sheriff, Carroll Gravett, to a civilian administrator who would operate the jail under the authority of the county judge. Ordinance No. 93-OR-08 transferred the budget for the detention department from the sheriff to the county judge. Sheriff Gravett and the Arkansas Sheriffs’ Association filed suit in Pulaski County Chancery Court alleging that, among other things, the enacted ordinances violated the Arkansas Constitution. The trial judge determined the enacted ordinances were constitutional. Appellants, Sheriff Gravett and the Arkansas Sheriffs’ Association, appeal the trial court’s determination.

Appellants contend both ordinances cause a “revision” and “separation” of the office of sheriff and were enacted without voter approval at a general election in violation of Ark. Const. amend. 55, § 2(b). Ark. Const. amend. 55, § 2(b) provides:

The Quorum Court may create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof; provided, however, that a majority of those voting on the question at a general election have approved said action.

Appellees contend they have authority to transfer the operation of the county jail from the sheriff to the county judge by ordinance and without a vote at a general election pursuant to Ark. Code Ann. § 14-14-701 (1987) and Ark. Code Ann. § 14-14-702 (1987). Sections 14-14-701 and 14-14-702 were enacted subsequent to the adoption of Amendment 55 in order to implement the powers granted to the counties by Amendment 55.

We first address Ordinance No. 93-OR-07 which provides:

BE IT ENACTED BY THE QUORUM COURT OF PULASKI COUNTY, STATE OF ARKANSAS; AN ORDINANCE TO BE ENTITLED:
AN ORDINANCE TO TRANSFER THE AUTHORITY OYER, AND OPERATION OF, THE PULASKI COUNTY DETENTION FACILITY FROM THE PULASKI COUNTY SHERIFF TO THE PULASKI COUNTY JUDGE, TO CREATE THE PULASKI COUNTY DETENTION DEPARTMENT, TO DECLARE AN EMERGENCY, AND FOR OTHER PURPOSES.
WHEREAS, Amendment 55 to the Arkansas Constitution, and Act 742 of 1977 (Ark. Code Ann. §§ 14-14-401, et seq.) authorize the Quorum Court to oversee the organization of County government and to provide necessary County services to the citizens of the County; and,
WHEREAS, Ark. Code Ann. § § 14-14-701 and 702 allow a Quorum Court, by ordinance, to transfer statutory duties from one County department to another so long as an elective office is not created, abolished or consolidated; and,
WHEREAS, the Sheriff of Pulaski County has authority over the Pulaski County Detention Facility pursuant to legislative authority found in Ark. Code Ann. § 12-41-502; and,
WHEREAS, the Quorum Court has determined that detention services on a regional basis can be more efficiently and economically delivered through a civilian Detention Department managed by a professional administrator under the authority of the County Judge.
NOW, THEREFORE, BE IT ORDAINED BY THE QUORUM COURT OF PULASKI COUNTY, ARKANSAS:
ARTICLE ONE. The authority over, and operation of, the Pulaski County Detention Facility is hereby transferred from the Pulaski County Sheriff to the Pulaski County Judge.
ARTICLE TWO. There is hereby created a civilian Department of Detention for Pulaski County under the authority of the Pulaski County Judge.
ARTICLE THREE. SEVERABILITY. The provisions of this Ordinance are severable. If any provision of this Ordinance shall be held to be invalid, such holding or invalidity shall not affect the validity of any other provision of this Ordinance.
ARTICLE FOUR. REPEALER. All laws and parts of laws in conflict with this Ordinance are hereby repealed.
ARTICLE FIVE. EMERGENCY. It is hereby found and determined that the Pulaski County Detention Facility should be transferred to the authority of the County Judge in order to facilitate the transition to an 800 bed regional direct supervision unit. In order to hire and train adequate personnel by the projected opening date, this process must begin immediately. Therefore, an emergency is declared and in order to insure the health, safety and welfare of the citizens of Pulaski County, this Ordinance shall be in full force and effect from and after the date of passage and approval by the County Judge.

Section 14-14-701 provides:

(a) It is determined by the General Assembly that:
(1) The present service organization of county government does not meet the needs of every county in this state; and
(2) County governments can be made more responsive to the service needs of the people through the reorganization of county government into departments, boards, and subordinate service districts which are consistent in their organization and assignment of duties, responsibilities, and authorities.
(b) It is therefore the purpose of this subchapter to:
(1) Establish the basic procedures for the establishment of service organizations in county government; and
(2) Establish the authorities and limitations of these service organizations.

Section 14-14-702 provides in pertinent part:

The county quorum court of each county may prescribe, by ordinance, the department, board structure, and organization of their respective county governments and may prescribe the functions of all offices, departments, and boards. However, no ordinance shall be enacted by a quorum court which:
(2) Alters the organization of elected county officials established by the Arkansas Constitution, except through the provisions of Arkansas Constitution, Amendment 55, § 2, Part (b). However, any function or duty assigned by statute may be reassigned by ordinance; or
(3) Limits any provision of state law directing or requiring a county government or any officer or employee of a county government to carry out any function or provide any service. However, nothing in this section shall be construed to prevent the reassignment of functions or services assigned by statute where Arkansas reassignment does not alter the obligation of the county to continue providing such function or service.

(emphasis added).

Notwithstanding the power of Quorum Courts under Ark. Const. amend. 55, § 2(b) and section 14-14-702(2), we have held that no county is authorized to pass an ordinance reorganizing its government in a manner contrary to the general law of the state. Clark County v. Miller, 291 Ark. 203, 723 S.W.2d 820 (1987) (decision relying on Ark. Code Ann. § 14-14-608(b)(10) (1987)); see also Cox v. Commissioners of Maynard Fire Improvement Dist. No. 1, 287 Ark. 173, 697 S.W.2d 104 (1985). The general law of the state provides “[t]he sheriff of each county in this state shall have the custody, rule, and charge of the jail within his county and all prisoners committed in his county, and he may appoint a jailer for whose conduct he shall be responsible.” Ark. Code Ann. § 12-41-502 (1987). Additionally, under Ark. Code Ann. § 14-14-703(2)(E) (1987) the office of sheriff is required to be maintained.

However, section 14-14-608 provides in pertinent part:

A county government serving as a political subdivision of the state for the more convenient administration of justice is compelled by law to provide certain services relating to judicial administration, law enforcement, and other matters. No county ordinance adopted by the electors for the establishment of alternative county organizations shall serve to repeal or diminish any general law of the state directing or requiring a county government or any officer or employee of a county government to carry out any function or provide any service. However, nothing in this section shall be construed to limit or prevent counties from adopting alternative county organizations nor the reassignment of statutorily delegatedfunctions or services where such alternative organization or reassignment shall not alter the obligation of the county to continue providing the services or functions which are or may be established by state law.

(emphasis added). Additionally, Ark. Code Ann. § 12-50-101 et. seq. (Supp. 1991) specifically provide that counties can establish private prison facilities.

Thus, while the general law of the state requires the office of sheriff to be maintained and includes as a duty of the office of sheriff the running of the county jail, section 14-14-608 allows a county to reassign statutorily imposed duties so long as the reassignment does not “alter the obligation of the county to continue providing the services.” The chancellor determined that the running of the county jail was a “function or duty” of the sheriff which could be reassigned by ordinance without approval by a majority of those voting on the question at a general election pursuant to Ark. Code Ann. § 14-14-702(2). While we agree that the running of the county jail is a function of the office of sheriff, we disagree that this function can be reassigned by ordinance without a vote by the electorate at a general election.

It is a well established legal principle that constitutional provisions, including amendments, take precedence over any law passed by the legislature. In this instance, Ark. Const. amend. 55, § 2(b) provides the Quorum Court can “create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof’ but it requires a “majority of those voting on the question at a general election” to approve the action. Ark. Const. amend. 55, § 2(b). The terms create, consolidate, separate, revise and abandon are not defined in the constitution. Where terms in the constitution are not specifically defined, we give them their commonly accepted meaning. Brown v. City of Stuttgart, 312 Ark. 97, 847 S.W.2d 710 (1993). The word revise generally means “[t]o look or read carefully over, with a view to improving or correcting.” Oxford English Dictionary 610(1971). Separate means “to put apart, set asunder (two or more persons or things, or on from another); to disunite, disconnect, make a division between.” (Emphasis in the original.) Oxford English Dictionary 474 (1971).

As the chancellor recognized, the function of running the county jail constitutes a substantial responsibility of the office of sheriff. Notwithstanding the provisions of sections 14-14-702 and 12-50-101 et. seq., which appear to give the Quorum Court authority to enact ordinances such as the one at issue, removal of this function constitutes a revision and separation of the office of sheriff under Ark. Const. amend. 55, § 2(b). As such, the removal of the running of the county jail from the office of sheriff can only be accomplished by a majority vote at a general election and then only at the conclusion of the term of office. Ark. Const. amend. 55, § 2(b). Therefore, Ordinance No. 93-OR-07 is declared unconstitutional because it was not passed in accordance with the requirements of Ark. Const. amend. 55, § 2(b).

We next address Ordinance No. 93-OR-08 which provides:

BE IT ENACTED BY THE QUORUM COURT OF PULASKI COUNTY, STATE OF ARKANSAS; AN ORDINANCE TO BE ENTITLED:
AN ORDINANCE AMENDING ORDINANCE NO. 92-OR-123, THE 1993 BUDGET OF PULASKI COUNTY, ARKANSAS, TO TRANSFER DEPARTMENTS 2400 AND 2410 TO THE COUNTY JUDGE.
ARTICLE ONE. Article 28 of Ordinance No. 93-OR-123, as amended, is hereby amended to provide:
DEPARTMENT 2400
DEPARTMENT: COUNTY JUDGE - DEPT. OF DETENTION
DEPARTMENT 2410
DEPARTMENT: COUNTY JUDGE - DETENTION TRANSITION
ARTICLE TWO. SEVERABILITY. The provisions of this Ordinance are severable. If any provision of this Ordinance shall be held to be invalid, such holding or invalidity shall not affect the validity of any other provision of this Ordinance.
ARTICLE THREE. REPEALER. All laws and parts of laws in conflict with this Ordinance are hereby repealed.

Ordinance No. 93-OR-08 was passed to fund Ordinance No. 93-OR-07. It transfers the funding for the running of the county jail from the sheriff to the county judge. Since a legislative body cannot do indirectly that which the constitution prohibits it from doing directly, Ordinance No. 93-OR-08 must fail. Cragar v. Thompson, 212 Ark. 178, 205 S.W.2d 180 (1947).

The case is reversed.

Hays, J., dissents.

Holt, C.J., not participating.

Steele Hays, Justice,

dissenting. I disagree with the majority that Ordinance No. 93-OR-07 is unconstitutional because it was not passed in accordance with the requirements of Amendment 55, § 2(b) of the Constitution of Arkansas.

While it is clear that constitutional amendments take precedence over laws enacted by the legislature, nevertheless, the strongest presumptions of constitutionality attach to an ordinance. City of Hot Springs v. Carter, 310 Ark. 405, 836 S.W.2d 863 (1992); Board of Adjustment of Fayetteville v. Osage Oil and Transportation, Inc., 258 Ark. 91, 522 S.W.2d 836 (1975). If at all possible we are obliged to construe the ordinance as constitutional.

The purpose of Amendment 55 is to render county government more efficient and responsive by granting broad legislative powers to quorum courts. Indeed, section 1 (a) of Amendment 55 provides that “[a] county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law.” Furthermore, the Arkansas General Assembly recognized the broad powers which Amendment 55 intended to extend to quorum courts when it enacted the County Government Code in 1977. [Codified as Ark. Code Ann. §§ 14-14-101 — 14-14-1313 (1987 and Supp. 1991)]. The County Government Code specifically addresses the procedures for implementing changes in county government.

Ark. Code Ann. § 14-14-702 and other sections of the County Government Code distinguish between an “elective county office” and the functions or duties assigned to the office. See generally Ark. Code Ann. § 14-14-601, et. seq. and § 14-14-701, et. seq. (1987). Specifically, Ark. Code Ann. § 14-14-702 grants the quorum court the authority to reassign any function or duty assigned by statute. We must presume the statute is constitutional; therefore, it is clear the legislature has also interpreted Amendment 55 to distinguish between a reassignment of duties and a revision of an elective county office. Although legislative interpretations of constitutional provisions are never binding on the courts, if there is any doubt or ambiguity, they are persuasive and worthy of consideration. Mears, Co. Judge v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978), rehearing denied, September 11, 1978.

Accordingly, I cannot agree that Ordinance No. 93-OR-07 clearly conflicts with § 2(b) of Amendment 55. The “function of running the county jail” may constitute a substantial responsibility of the office of sheriff, but it does not define that office. Therefore, removal of this single duty does not constitute a revision or separation of an elective county office as contemplated by Amendment 55, § 2(b).

For the foregoing reasons, I believe the chancellor was entirely correct in his holding and I would affirm the order appealed from.


author: Robert L. Brown, Justice.

text:
    Dectric FRANKLIN v. STATE of Arkansas
    CR 92-1190
    863 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993
    [Rehearing denied November 1, 1993.]

      McCullough Law Firm, by: R. S. McCullough, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is a case involving the shooting of two men who were self-appointed security guards at a North Little Rock apartment building. Both men were shot in the back, and one was killed. The appellant, who was age 16 at the time of this offense, was convicted of one count of capital murder and one count of attempted capital murder. He was sentenced to life in prison without the possibility of parole for capital murder and thirty years imprisonment plus a fine of $15,000.00 for attempted capital murder.

The appellant filed a notice of appeal before the judgment was entered and has not filed a motion to file a belated appeal. He raises seven issues on appeal: whether the trial court erred by (1) not promptly ruling on his Batson motion; (2) not sensitizing or allowing the jury to be sensitized to the racial issue present in this case; (3) not granting his for-cause challenges; (4) not granting him more peremptory challenges; (5) allowing the State to question him about his right to remain silent; (6) not instructing the jury on lesser included offenses; and (7) conducting a trial that effectively denied him his rights to due process and to a fair trial.

We hold that we do have jurisdiction to hear this appeal, and we affirm.

The victims of the shooting, Richard Campbell and Thomas Bryan, had apartments in a building located at 615 Maple Street in North Little Rock. After talking to the owner of the building about a neighborhood watch program, Campbell took it upon himself to become a security guard for the area. He bought a security guard uniform, a night stick, whistle, mace, and a flashlight.

On the evening of July 10,1991, Campbell asked Bryan if he also wanted to become involved as a guard. Bryan agreed and pinned a security guard patch on his shirt. Bryan took a baseball bat with him when he went out to join Campbell on patrol. It was after 11:00 p.m., and several youngsters, including Franklin, were standing on the corner of 620 Maple Street. They began taunting Campbell and Bryan, asking them if they thought they were police officers. Bryan approached the group and got into a verbal altercation with an individual later identified as the appellant. Campbell came over to Bryan and suggested that they go inside and put the baseball bat away. A witness later testified that he heard the appellant then state “he was going to shoot some white people.” The two men had just walked through the front door and were entering the hallway to their apartments when a youngster later identified as Franklin ran up behind them and fired at least four shots at them. Three shots hit Campbell in the back and one hit Bryan in the back. Campbell died shortly after arriving at the hospital. Bryan was treated at the hospital and released. Both victims were white. Franklin is black.

An information was filed charging the appellant with capital murder for the shooting death of Richard Campbell, and attempted capital murder for the shooting of Thomas Bryan. The trial began on April 20, 1992, and the death penalty was requested by the State. Franklin at this time was age 17. Before voir dire began, the appellant’s attorney asked the circuit court to sensitize the jury to the fact that Franklin was black and the victims were white. The court refused the request stating that it thought that the request was “racist.” The court went on to state that the appellant’s attorney could “sensitize” the jury but that the court was not going to do this.

Prospective juror Ms. Georgia Davis was asked on voir dire if she could consider imposing the death penalty to which she responded “I guess.” She was the fifth juror called and the first black juror. Subsequently, when asked if she could impose the death penalty on this defendant Ms. Davis responded, “I don’t know” and “It would be hard.” When asked if she could put her name on a verdict form that imposed the death sentence Ms. Davis stated, “I’d have to think about it.” Ms. Davis said she was able to sign the verdict form in a theft case but that it was “heavy on my heart.”

Following this voir dire, the State excused Ms. Davis by peremptory challenge. The defense made a Batson motion and argued that Ms. Davis had not expressed any more caution with regard to whether she could impose the death penalty than the other potential jurors who had been accepted by the State had. The circuit court took the motion under advisement. The defense did not object to the court’s action at this time. After noon on the first day of trial, the court still had not ruled on the Batson motion and instructed Ms. Davis to return to court the next day. Again, there was no objection by the defense.

Prospective juror Melva Hicks said on voir dire that she believed in an “eye for an eye” but that she could consider both life without parole and the death penalty. Ms. Hicks stated that she would tend to think a defendant was guilty if he chose not to testify. The defense made a motion for cause on the basis that Ms. Hicks was predisposed to the death penalty. The court denied the motion. The defense then made a motion for cause on the basis that Ms. Hicks would tend to think the defendant is guilty if he did not testify. The court granted this motion.

Prospective juror Paul Daniel, the pastor at the First Baptist Church in North Little Rock, stated on voir dire that it would be difficult but that he could consider the death penalty. Daniel indicated that he would have a problem imposing the law if it conflicted with his religious beliefs but that he would apply the law he was instructed. The defense moved the court to strike Daniel for cause, contending that he indicated that he would not abandon his religious beliefs if they conflicted with the law. The State argued that the pastor had expressed just the opposite. The court denied the motion. The defense used one of its peremptory strikes to remove Daniel.

The second day of trial, the defense asked the court if it would make a ruling on the Batson motion relating to Ms. Davis. The defense argued that the delay had forced the appellant to accept at least one juror he did not want and to use up one peremptory challenge. The court countered that the defense wanted Ms. Davis and therefore that it did not think the delay was a disadvantage. The court added that it had not reached a decision on the Batson motion.

The appellant asked the court if it would grant him two more peremptory strikes. The court responded that the request was premature. Later during voir dire, Franklin renewed his request for two additional peremptory strikes. The State objected stating that there was no authority for granting additional strikes. The circuit court denied the request.

Potential juror Nellie Hindman stated during voir dire that she could consider the death penalty or life without parole. Ms. Hindman was the junior high school teacher of one of the deputy prosecutors in the case. She stated that she had not seen him since junior high school, and that her prior contact with the deputy prosecutor would not affect her ability to be a disinterested juror in this case. Franklin, who had exhausted his peremptory strikes, moved to strike her for cause and stated that if he had had a peremptory challenge left, he would have used it. He asked again for additional peremptory challenges. The court denied the motion for cause and the motion for more challenges. At this time, Franklin inquired once more about the status of his Batson motion relating to Ms. Davis and was again told that it was under consideration.

Following voir dire of a potential juror, Wendell Brown, the appellant stated that he would have struck Brown if he had had a peremptory challenge left. The defense did not challenge Brown for cause. Franklin again requested two additional peremptory strikes, and the request was again denied.

The circuit court asked for arguments on the Batson motion involving Ms. Davis. The State argued that a prima facie case had not been established. Even assuming that it had, the State argued that the challenge was racially neutral in that it was based on the fact that Ms. Davis stated that she had real hesitation about the death penalty and that the State had struck white jurors for expressing less hesitation than Ms. Davis expressed. The circuit court ruled that the defense had not made a prima facie case and that, in any event, the challenge was not racially motivated.

The trial proceeded. According to Franklin, the jury was all white, and the State does not dispute this. During Franklin’s case, he testified on cross examination about his experience at the North Little Rock Police Station:

PROSECUTOR: They wouldn’t let you talk?
FRANKLIN: No.
PROSECUTOR: They didn’t want to talk to you?

Defense counsel objected and sought a mistrial, arguing that this line of questioning was a comment on the appellant’s decision not to give the police a statement. The court overruled the objection, stating that the comment was that the police did not want to talk to Franklin, not that Franklin had refused to give a statement.

The jury was instructed on capital murder and first degree murder. The defense sought instructions on the lesser offenses of second degree murder and manslaughter. The State objected on the basis that the appellant was claiming that he did not do it and the instructions were, therefore, not apposite. The court refused to give the instructions. Guilt was determined and after the penalty phase, Franklin was sentenced to life without parole plus thirty years in prison and a fine of $15,000.

I. GENERAL COMMENT

This is a capital murder case where the appellant received a sentence of life without parole. The record before us is over 1,700 pages. The appellant raises seven points for reversal, four of which concern voir dire. Yet, he abstracts only one page of voir dire colloquy. Indeed, his abstract of the trial totals only 17 pages.

The State has filed a 222 page supplemental abstract in an effort to salvage this appeal. We underscore the obvious which is that the State is the opposing party to the appellant. Had the State moved for compliance with Ark. Sup. Ct. R. 4-3(h), we would have granted the motion to direct compliance and sent the case back for abstracting. We have done so recently on two motions filed by the State. See State v. Wedger, CR 93-408 (granted September 13, 1993); State v. Early, CR 93-189 (granted September 13, 1993).

II. JURISDICTION

The State contests jurisdiction of this appeal in this court owing to a defective notice of appeal. The appellant filed his notice of appeal on April 24,1992. The judgment was not entered until April 27, 1992.

At the time of the filing of the notice and judgment in April 1992, the law on this point had been decided in State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991). There, we held that a notice of appeal filed prior to entry of judgment was to be treated as if filed when the judgment was entered. In Joshua, the notice and judgment were filed on the same date, but we adduced additional authority in that case that the same rule applies when the notice is filed some days earlier. Edmonds v. State, 282 Ark. 79, 665 S.W.2d 882 (1984); Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981). It was not until July 13,1992, that we overruled the Joshua decision, thereby requiring the notice to follow entry of judgment. See Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).

Accordingly, Franklin’s notice of appeal was timely under the pertinent caselaw at that time. No motion for belated appeal by the appellant was required by this court in State v. Joshua, supra; Edmonds v. State, supra; Caskey v. State, supra, in order to reach the jurisdictional question. In Joshua, for example, the appellee simply raised the issue in the brief. Nor is a belated appeal motion required under the facts of this case. Only after the repeal of State v. Joshua, supra, on this point did a motion for belated appeal become essential. Jurisdiction appropriately lies in this court.

III. BATSON MOTION

Franklin first argues that the circuit court erred in not ruling immediately on his motion pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and that the delay evidences the fact that the court did not meaningfully consider his motion. The appellant also claims that the delay in ruling was prejudicial to him because it prevented him from making informed choices during the remainder of voir dire, since he did not know whether Ms. Davis had been successfully challenged. Finally, he argues that he was forced to accept juror Nellie Flindman because he was out of peremptory strikes and suggests that the delay in ruling on the Batson motion caused him to exhaust his peremptory challenges prematurely.

We first consider the State’s argument that Franklin was late in objecting to the circuit court’s decision to take the Batson motion under advisement. This court has repeatedly held that a defendant in a criminal case must make an objection to the trial court at the first opportunity. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 111 S. Ct. 757 (1991); see also Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). The objection which the State contends was late was not to a Batson motion per se but to the delay in ruling on the motion until the following day. We cannot say that Franklin’s objection was untimely. Once he determined that the delay was impinging upon his voir dire strategy, the objection was lodged. This was appropriate, and we will address the merits of this issue.

There are two facets to Franklin’s Batson argument: the first is that no racially neutral reason existed for striking Ms. Davis and, secondly, the delay in ruling prejudiced him. The appellant’s argument fails on both counts.

This court has recently examined the law applicable to Batson, challenges and the appropriate procedure to be followed. First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry. Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Hollamon v. State, 312 Ark. 48, 846 S.W.2d 663 (1993); Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992); Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990).

We disagree with the circuit court which concluded that Franklin failed to make a prima facie case. The first black juror called was challenged by the State in a case fraught with racial overtones. Moreover, by the time that the court ruled on the motion the jury apparently was all white. Under the totality of relevant facts, we conclude that a racially neutral explanation from the State was required. Here, the State satisfied that obligation. The State argued that Ms. Davis was struck because she was not certain that she would be able to consider the full range of punishment. This challenge is plainly not grounded in racial discrimination. Further support for this conclusion is the fact that the State also peremptorily challenged juror Ms. Mary Schlatterer, a white female, and four other white jurors who were as uncertain or less uncertain than Ms. Davis about assessing the death penalty against Franklin. Reluctance to assess a statutory punishment, irrespective of race, is a reasonable basis for a challenge. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986). The State satisfied its burden in this respect.

On the issue of the court’s delay in ruling on the Batson motion, we do not concur with the appellant that prejudice under these circumstances is presumed or even that there was'a reasonable possibility of prejudice resulting in this case. See Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992); Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991). To be sure, Franklin did not know whether Ms. Davis would sit and had to employ a voir dire strategy premised on a denial of his motion. But this is precisely what the circuit court did — deny his motion. If the court had permitted Ms. Davis to sit and Franklin had exhausted his challenges unnecessarily on the theory that the court would not allow her to sit, we could see some merit in his contention. But this did not occur. While we agree that the circuit court should not have delayed its ruling, resulting prejudice was lacking. Any error was, therefore, harmless.

IV. RACIAL INQUIRY TO VENIRE

Franklin argues that this is a capital murder case with a black defendant and white victims. Because this was a racially sensitive case, the circuit court, according to the appellant, was required to inquire into racial bias on the part of the venire. He cites the Supreme Court case of Turner v. Murray, 476 U.S. 28 (1986) in support of this proposition.

In Turner, a black defendant received the death penalty in a Virginia state court for the murder of a jewelry store proprietor who was white. Defense counsel at trial submitted a list of proposed questions to the trial judge including a question about racial prejudice. The judge refused to ask the question relating to racial bias. The Virginia Supreme Court affirmed, and subsequently a Federal District Court in Virginia denied the defendant habeas corpus relief and the Fourth Circuit Court of Appeals affirmed. The United States Supreme Court reversed on the basis that a violent crime between the races was involved, and the defendant was charged with a capital crime. Because the jury was required to consider a capital sentence in a case involving race, questioning the venire on racial prejudice was constitutionally required upon request.

In a dissent in Turner, Justice Powell pointed out that Virginia law vested the trial judge with responsibility to conduct voir dire of prospective jurors. In this case, the trial judge permitted counsel to propose questions but denied an inquiry into racial prejudice. Those facts distinguish Turner from the case before us. In Arkansas, counsel are permitted to conduct voir dire examination of jurors and in this matter, though the circuit court refused to inquire into racial bias, it permitted counsel for Franklin to do so and he did. Franklin’s defense counsel posed questions to at least two prospective jurors about friendships with persons of another race, whether they believed that young blacks routinely engaged in criminal activity, whether young blacks intimidated members of the venire, whether race would be a factor in assessing punishment and so forth. In light of this, though the circuit court did not conduct the probe, we observe no violation of the constitutional protection afforded in Turner v. Murray, supra.

Franklin also contends on this point that his questioning was stifled by the circuit court. Though the court did urge defense counsel to move along with the questioning, the record does not bear out this assertion. In addition, Franklin lodged no objection to any perceived curtailment of his right to inquire, and the matter is not preserved for our review. Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988).

V. FOR CAUSE CHALLENGES

Franklin next contends that the circuit court erred in failing to strike Ms. Melva Hicks, Rev. Paul Daniel, and Ms. Nellie Hindman for cause. This argument* has no merit.

Initially, we have held that a claim of error relating to a challenge for cause is only preserved regarding jurors who actually sat on the jury after a challenge for cause was denied. See Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), cert. denied, 497 U.S. 1011 (1990), citing Ross v. Oklahoma, 487 U.S. 81 (1988). Only one potential juror — Ms. Hindman — was seated after Franklin’s peremptory strikes were fully utilized and a challenge for cause was unsuccessful. We agree with the circuit court that Ms. Hindman’s answers did not render her unfit to serve on the jury. It is true that she had taught one of the deputy prosecutors in junior high school, but she had not seen him since that time, and she advised the court that it would have no bearing on her decision in this case.

In Arkansas, we presume people comprising the venire are unbiased and qualified to serve. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The burden is on the contestant to prove otherwise, and we will not disturb a circuit court’s ruling absent an abuse of discretion. Id; Butler v. State, 303 Ark. 380, 797 S.W.2d 438 (1990). We cannot say, based on what has been presented to us, that that discretion was abused in this instance.

VI. OTHER ARGUMENTS

Franklin’s remaining points are equally meritless. He argues that he was entitled to two peremptory challenges in addition to the twelve allotted him under Ark. Code Ann. § 16-33-305 (1987). This court has refused to expand the number of peremptory strikes assigned to a criminal defendant beyond twelve. See, e.g., Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). Franklin cites no authority and presents no cogent reason why we should reverse our position on this issue. We will not reach the merits of an issue presented in such a deficient manner. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). We do note on this point that the circuit court did remove one juror, Homer Jordan, for cause toward the end of voir dire solely because Franklin had exhausted his peremptory challenges. The court stated:

And I don’t think he’s disqualified. But I think we’ve come down to the twelfth juror in this case and the Defense is out of strikes. And he has a predisposition and I think it would be a little bit unfair for the Defense to have to live with him. I’m not sure I would even make them use one of their challenges for him. I think he’s very honest with us. That’s what we’re back here for.
I’ll excuse him for cause, R.S.

Nor do we give credence to Franklin’s argument that police officers violated his right to remain silent by the prosecutor’s question: “They didn’t want to talk to you?” As the circuit court pointed out, the officers refused to talk to him, which had no bearing on whether Franklin would give a statement or not. There is no conceivable violation of constitutional protections such as those afforded by Doyle v. Ohio, 426 U.S. 610 (1976) under these circumstances.

The appellant also urges that lesser included instructions on second degree murder and manslaughter should have been given in addition to instructions on capital murder and first degree murder. His defense, however, is that he did not do it; not that he acted with less than purposeful intent. We agree that it makes no sense to instruct, at the defendant’s request, on knowing or reckless conduct when he contends that someone else committed the crime. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986). On this same point, Franklin argues for the first time on appeal that this rule favors a defendant who does not testify over one who does. This argument was not made to the circuit court. We will not address an argument which was not presented to the trial court for consideration. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).

For his final point, Franklin asserts cumulative error by the circuit court. He cites a biased attitude and demeanor of the circuit court against him from the outset which resulted in “a dark cloud” being placed on his trial. While this court has recognized cumulative error (Dillon v. State, 311 Ark. 529, 843 S.W.2d 316 (1993)), defense counsel presents us with no specific examples of bias in his brief. Rather, he directs us obliquely to pages in the record.

The record in this case has been examined in accordance with Ark. Sup. Ct. R. 4-3(h) for any error prejudicial to Franklin since this is a case of life imprisonment without parole. Sharp exchanges were found between the circuit court and defense counsel during voir dire, most of which occurred outside of the presence of the jury. We have found some examples of sarcasm, snide remarks, and discourtesy on the part of the trial judge, as well as defense counsel. No matter how fevered a jury trial becomes, we cannot condone such conduct and do not do so in this case. Franklin, however, failed to object to this conduct or make a record or ask the judge to recuse. Absent an objection below the issue of bias may not be raised on appeal. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Furthermore, we cannot say that the cumulative conduct by the circuit court denied the appellant a fair trial or rises to the level of reversible error. Nor do we find other error requiring reversal.

Affirmed.

       Franklin successfully challenged Ms. Hicks for cause.


text:
    Denver MITCHELL, Jr. v. STATE of Arkansas
    CR 93-173
    862 S.W.2d 254
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Jon A. Williams, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Denver Mitchell, Jr. appeals his conviction for first degree murder and his sentence of life imprisonment on grounds of insufficiency of the evidence and an improper instruction on capital felony murder. We hold that the evidence to convict was substantial and that the instruction given was appropriate. Accordingly, we affirm.

The facts in this case come mainly from Mitchell’s testimony at trial and a statement which he gave to the Illinois State Police. The victim, Willard Williamson, who was age 74, offered a ride to Mitchell, a hitchhiker, outside of Amarillo, Texas in August 1990. En route to Arkansas, they stopped in Russellville where Williamson cashed a traveler’s check at an Exxon Tiger Mart Station between 3:00 p.m. and 7:00 p.m. on August 18,1990. The two men then drove to Paragould where they stopped at Dan’s Duck Inn. The proprietors of that Inn, Danny and Phyllis Langston, testified that this occurred on Saturday night, August 18, 1990, prior to the closing time which was 11:00 p.m. They refused to serve the men beer and told them that the restaurant was about to close and recommended another establishment. Danny Langston also recalled telling Mitchell where he could catch a bus. A patron of Dan’s Duck Inn remembered Mitchell and Williamson being there on that Saturday night and also remembered the conversation between Langston and Mitchell about the bus. Mitchell does not dispute the fact that he and Williamson patronized Dan’s Duck Inn, but he testified that this occurred a day earlier — on Friday night, August 17, 1990.

Mitchell testified that he and Williamson went down to a deserted area near a railroad trestle outside of Paragould and drank more beer and whiskey. At some point, both men got into the bed of the truck and continued drinking. Williamson had a tire tool with him. Hearing a noise, Mitchell turned around and testified that he saw Williamson masturbating. Williamson reached for him and Mitchell pushed him away, whereupon Williamson, again according to the appellant, swung at him with the tire tool. Mitchell did admit that he struck Williamson, but the extent of the beating was in dispute. Mitchell did tell Illinois State Police Sergeant Kenneth Kaupas in January 1992 that he told his cousin that he beat a man in Arkansas “pretty bad.” In that statement he admitted to kicking Williamson in the face. The appellant added that if Williamson died as a result of this, he “didn’t mean to do it.” He said that it “just got out of control.” Mitchell, by his own admission, left Williamson on the ground, took his pickup truck, and fled to Illinois.

Earlier in the day on Saturday, August 18, 1990, two teenage boys ■— Lee Ward, age 13, and Ed Rogers, age 15, — reported to Paragould Police Officer Fred Poindexter that they had been down by the railroad trestle and had seen a “biker” carry a dead lady across the trestle. The report was made at about 5:00 p.m. Police officers investigated that night between 8:45 p.m. and 10:00 p.m., and nothing was discovered by the officers based on this information. Ward and Rogers later testified that their story was a prank.

On Sunday morning, August 19, 1990, Williamson was found at about 5:00 a.m. by police officers out by the railroad trestle on the northeast side of Paragould. His pants were down, and his penis was visible. Three beer cans and a tire tool were also found in the area. Williamson was still alive, though severely beaten. He was taken to a hospital where he later died from his injuries. Dr. Violette Hnilica, a forensic pathologist, who was formerly associate medical examiner in Arkansas, did the autopsy and later testified by deposition that Williamson died from blunt force injuries to the head that could have been caused by kicking or stomping or by a tire tool.

Lee Ward was interrogated by Paragould Police Officer Charlie Beall after Williamson died and confirmed to that police officer that Ed Rogers had beaten and choked Williamson, taken his wallet, left him with his pants down and penis exposed, and that this had made Ward physically ill. Ed Rogers also told Paragould police officers that he had hit a man once or twice with a rock down by the railroad trestle and that afterwards the man was not moving. Ed Rogers was charged with Williamson’s murder.

Mitchell was subsequently arrested in Illinois in January 1992 and gave a statement to Illinois State Police Sergeant Kenneth Kaupas that he beat Williamson after Williamson made sexual advances to him and then took his truck and left him in the field. He added that he did not intend to kill Williamson and that Williamson was alive when he left him. Mitchell was charged with capital felony murder in Arkansas and returned to the state for trial.

One week before trial, Lee Ward recanted his statement implicating Ed Rogers in the murder and said that his statement had been coerced by Officer Charlie Beall. He gave testimony to that effect at trial. Ed Rogers also testified and denied any involvement in the murder or that he saw an old man by the railroad trestle. Mitchell’s defense, on the other hand, in addition to urging that he was provoked by Williamson’s sexual advance was that Ed Rogers beat the victim after Mitchell fled the scene. Though the record is silent on this point, the murder charge against Ed Rogers apparently was dropped.

The jury was instructed on capital felony murder with robbery as the underlying felony and returned a verdict of first degree murder with life imprisonment.

Mitchell’s primary argument on appeal is that there was insufficient evidence presented to sustain the conviction. We note, initially, on this point that though Mitchell argues error in the trial judge’s denial of his motion for directed verdict following the State’s case, he waived that motion by presenting subsequent evidence as part of his defense. Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). Mitchell, however, did renew his motion after all evidence had been presented, and it is that motion we will consider in this appeal.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). In an appeal from a denial of a motion for directed verdict, we look to see whether there is substantial evidence to support the verdict. Friar v. State, supra; Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Substantial evidence is evidence of sufficient force to compel a conclusion one way or the other, forcing the mind to pass beyond suspicion or conjecture. Id. On appeal, this court reviews the evidence in the light most favorable to the appellee. Friar v. State, supra; Higgs v. State, 313 Ark. 272, 854 S.W.2d 328 (1993).

In the case at bar, the evidence when viewed in the light most favorable to the State is clearly substantial. Mitchell testified at trial that he was with Williamson in Paragould, albeit on Friday night, August 17, 1990, and that they were drinking beer and whiskey. He stated that he beat Williamson, left him on the ground, and absconded with his truck. In an earlier statement to Illinois State Police Sergeant Kenneth Kaupas he admitted that he had told a cousin that he beat the man “pretty bad” and further admitted to that officer that he had kicked Williamson in the head. The former associate medical examiner, Dr. Violette Hnilica, concluded that Williamson died from blows to the head. Three witnesses at trial placed Mitchell and Williamson in Paragould on Saturday night, August 18, 1990, and a third witness placed them in Russellville earlier that same day. The jury also had an opportunity to assess Mitchell’s credibility as he gave testimony in his defense and the credibility of Ed Rogers and Lee Ward. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993); McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979). This evidence, taken in toto, readily sustains a conviction for first degree murder.

The appellant next contends that the jury was improperly instructed on capital felony murder in that there was no proof to support the underlying felony of robbery. This argument has no merit.

The capital felony murder instruction given was as follows:

First, that Denver Mitchell, Junior committed the crime of robbery and, second, that in the course of and in furtherance of that crime or in immediate flight therefrom, Denver Mitchell, Junior caused the death of Willard Williamson under circumstances manifesting an extreme indifference to the value of human life.
As a part of the charge of capital murder, the State contends that the death of Willard Williamson occurred during the commission of the crime of robbery by Denver Mitchell, Junior or in immediate flight therefrom.

This instruction corresponds with the definition of capital felony murder contained in the statute. See Ark. Code Ann. § 5-10-101 (1987).

Mitchell’s contention is that there was no correlation between his beating Williamson and the taking of the truck and that the law requires that the murder be “in furtherance of the felony, or in immediate flight therefrom.” Stated simply, he advances the argument that there is nothing in this case suggesting that he beat Williamson for the purpose of taking his truck.

We give the appellant’s point little credence. If there is some evidentiary basis for a jury instruction, giving the same is appropriate. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991). We have further held that where a murder and robbery occur in close proximity to one another in time and place, the jury is justified in finding the murder and robbery to be one continuous transaction. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). Those, without question, are the circumstances in the case before us. Mitchell admitted hitting Williamson, taking his truck, and fleeing to Illinois. The jury reasonably could have concluded from this that Mitchell murdered Williamson in order to steal his truck. The predicate evidence for the capital felony murder instruction existed, and the jury was properly instructed.

The record in this case has been examined under Ark. Sup. Ct. R. 4-3 (h), since life imprisonment is the punishment imposed. We find no error warranting reversal.

Affirmed.


author: Per Curiam.

text:
    Charles K. BARNES v. STATE of Arkansas
    CR 93-1004
    861 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Phyllis B. Worley, Public Defender, for appellant.
    No response.
   Per Curiam.

Appellant, Charles K. Barnes, by his attorney, has filed for a rule on the clerk.

His attorney, Bob Keeter, 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. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Sheldon Paul MANGIAPANE v. STATE of Arkansas
    CA CR 92-1079
    862 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Terri L. Harris, for appellant.

      No response.
   Per Curiam.

Sheldon Paul Mangiapane, the appellant in this case, moves for permission to file a belated appeal pursuant to Ark. R. Crim. P. 36.9. In support of his motion he shows this court that he filed his notice of appeal at 8:37 a.m. on June 22,1992, and judgment was not entered until eight minutes later at 8:45 a.m. on that same date. The Court of Appeals dismissed the appeal on July 7, 1993, for the reason that the notice of appeal was prematurely filed, and, accordingly, the appeal was not properly lodged. Mangiapane v. State, 43 Ark. App. 19, 858 S.W.2d 128 (1993). The Court of Appeals then denied rehearing on August 25, 1993. This motion for belated appeal was filed on September 1, 1993.

We will treat this motion as a petition for review of the Court of Appeals decision pursuant to Ark. Sup. Ct. R. 2-4 as well as a motion for belated appeal. At the time the appellant filed his notice of appeal on June 22,1992, State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991) was still good law. Under Joshua, we accepted a notice of appeal that was filed minutes before entry of judgment as timely filed. It was only some weeks later on July 13, 1993, that we overruled Joshua and held that notices of appeal in criminal and civil cases, in order to be effective and timely, must be filed subsequent to entry of judgment. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). Because of the sweeping impact of the Kelly decision, we further decided to grant belated appeals in appropriate circumstances where the judgment involved was entered prior to July 1,1993. See Tucker v. State, 311 Ark. 446, 844 S.W.2d 335 (1993) (per curiam); In Re Belated Criminal Appeals, 313 Ark. 729, 856 S.W.2d 9 (1993) (per curiam).

As this filing of the notice of appeal and entry of judgment occurred before Kelly v. Kelly, supra and at a time when the Joshua decision had not been overruled, the Court of Appeals improvidently dismissed this appeal. We, therefore, reverse that decision.

The motion for belated appeal is granted. The Clerk of the Supreme Court is directed to reinstate the appeal for a determination on the merits.


text:
    J. W. “Dub” STIPES v. STATE of Arkansas
    CR 93-1008
    861 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Bob Keeter, for appellant.
    No response.
   Per Curiam.

J.W. “Dub” Stipes, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Phyllis B. Worley, admits by motion and brief that the record was tendered late due to a mistake on her 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 In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

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


text:
    Jeff BEALER v. STATE of Arkansas
    CR 93-365
    862 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Appellant, pro se.
    No response.
   Per Curiam.

On July 20, 1992, the petitioner Jeff Bealer was found guilty by a jury of delivery of a controlled substance and sentenced to thirty years imprisonment. A fine of $10,000 was also imposed. A notice of appeal was filed, but the record was not tendered to the appellate court. Petitioner subsequently sought to lodge the record belatedly. Petitioner was represented at trial by Mr. J. Skylar Tapp, who filed an affidavit in response to the motion. We remanded the matter to the trial court for an evidentiary hearing, and the trial court’s Findings of Fact and the record of the evidentiary hearing are now before us. The trial court found that petitioner waived his right to appeal by not directly informing Tapp within thirty days after petitioner’s trial ended on August 24, 1992, that he desired an appeal.

In those cases where a finding that a petitioner did not inform his attorney of his desire to appeal in a timely manner is based merely on weighing the credibility of the witnesses at the evidentiary hearing, this court will accept the finding of the trial court as it is the task of the trial court to assess the credibility of witnesses. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). Here, however, a timely pro se notice of appeal was filed by petitioner on September 21,1992. We said in Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986), that the filing of a timely notice of appeal pro se is proof of the convicted defendant’s desire to appeal. Tapp’s explanation that he was simply unaware of the timely notice of appeal is not sufficient cause in itself to find that he was justified in abandoning the appeal.

As there was a timely notice of appeal filed in the case and Tapp had not been relieved by the trial court of his obligations as counsel, he must be held responsible for being aware of filings in the case in which he remained attorney-of-record. Tapp is directed to proceed as counsel in the appeal and file a petition for writ of certiorari in this court within thirty days to bring up the entire record, or that part of the record, which is necessary to the appeal. Petitioner has filed an affidavit of indigency which the state has not contested. He is granted permission to proceed as an indigent in this appeal. See Strode v. State, 301 Ark. 351, 783 S.W.2d 859 (1990).

Motion granted.


author: Jack Holt, Jr., Chief Justice.

text:
    Andre Larnell HAYNES v. STATE of Arkansas
    CR 93-483
    862 S.W.2d 275
    Supreme Court of Arkansas
    Opinion delivered October 11, 1993

      Robert P. Remet, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Two points for reversal are raised in this appeal from Andre Haynes’s conviction on charges of burglary, aggravated robbery, theft of property, and attempted rape. Despite the appellant’s attorney’s inadequate abstracting of the record, the State’s supplement is sufficient for us to consider the merits of the case. Finding no error in the proceedings below, we affirm the trial court’s judgment.

In April 1992, the prosecuting attorney for the Tenth Judicial Circuit filed an information charging appellant Haynes with one count each of burglary, aggravated robbery, theft of property, and criminal attempt to commit rape. The State alleged that on March 23,1992, Haynes committed those felonies against the home, property, and person of Ms. Gladys Lawson of Monticello. In an amended information, filed in July 1992, the State asserted that the appellant was an habitual offender subject to sentence enhancement.

Haynes was represented by the public defender at trial and was found guilty on each count. He was sentenced to fifty years for the attempted rape, thirty years for the aggravated robbery, twenty years for the burglary, and ten years for the theft of property. The Drew County Circuit Court ordered the sentences to run consecutively, for a total of 110 years, assessed fines amounting to $40,000, and substituted appointed counsel for purposes of this appeal.

The attorney representing Haynes on appeal has failed to include in his abstract the affidavit for a search warrant and the search warrant despite his reliance on these documents in his first argument. Moreover, he has abstracted only the cross-examination of the victim and other witnesses for the State and only the direct examination of the appellant and other defense witnesses.

In short, the crucial documents necessary for an understanding of the appellant’s first argument were not abstracted, while the only testimony abstracted was that which could be construed as favorable to the appellant’s second argument, concerning Haynes’s identification. These egregious acts of omission and commission go far beyond mere oversight and constitute a gross violation of Rule 4-2(a)(6) of the Rules of the Supreme Court and Court of Appeals, which provides, in relevant part:

The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only [emphasis in original] such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision. . . .

(Emphasis added.)

Because the State has, pursuant to Rule 4-2(b)(l), supplemented the abstract with the essential items of evidence and passages of testimony, we are able to address the issues raised by the appellant on their merits.

At the outset of his first argument for reversal, the appellant’s attorney states that “There is, unfortunately, nothing in the record resembling an affidavit in support of a search warrant, or the warrant.” How he reached this conclusion is difficult to fathom, since the affidavit, signed by Captain Charles Cater of the Monticello Police Department on March 23, 1992, and the search warrant, signed by Circuit Judge Samuel Bird on March 23,1992, both appear as State’s Exhibit 1 at page 84 of the transcript. The return, executed by Captain Cater on March 24, 1992, also appears as part of State’s Exhibit 1. (The appellant’s attorney did manage to locate the circuit judge’s finding of probable cause in the record.) These documents were introduced at a suppression hearing conducted on September 8,1992. It is, of course, well established that we have the authority to go to the record to affirm a trial court’s decision. See Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989).

The appellant’s attorney also contends that “it does not appear of record” that the defense was furnished “a transcript of any relevant prior testimony in any other proceeding that may have been held in this case” as requested in a discovery motion. He asserted, further, that “Whether the testimony of officer Charles Cater, the affiant who testified before the magistrate in the probable cause proceedings[,] was recorded is not known.”

It seems, as the State suggests in its brief, that the appellant’s attorney failed to read the transcript of the suppression hearing, which occupies pages 68 through 83 of the transcript. A recording of the probable cause hearing was introduced, without objection, at the suppression hearing and was played for the court. During the direct examination of officer Charles Cater, a transcript of the tape was introduced, again without objection. Although that transcript does not appear in the record on appeal, we have stated on numerous occasions that it is the appellant’s burden to produce a record exhibiting prejudicial error. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).

As for the implication on the part of the appellant’s attorney concerning the alleged failure to provide defense counsel with a transcript of the probable cause hearing, the record reveals no objection on the appellant’s part to the asserted omission in discovery. The issue is not preserved for appeal. Towe v. State, 304 Ark. 239, 801 S.W.2d 42 (1991).

In any event, the probable cause transcript was introduced at the suppression hearing almost a month before the appellant’s trial. Because the appellant voiced no objection to the introduction of the transcript at that time, it is reasonable to assume that he was not only aware of its existence but had also had an opportunity to review it prior to its having been received in evidence. Therefore, no prejudice resulted. See Jones v. State, 308 Ark. 555, 826 S.W.2d 233 (1992). When a failure to comply with discovery procedure occurs, the trial court is not required to suppress evidence unless prejudice has resulted. Devasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

On the merits, it should be noted that the affidavit submitted by Captain Cater stated that the victim reported that at about 2:40 a.m. on March 23,1992, a man entered her home and robbed and raped her. Among other items, the affidavit refers to a set of fingerprints that were lifted from the door to the victim’s house and identified by the State Crime Laboratory as those of Andre Haynes.

When presented with an affidavit, the magistrate must make a practical, common sense determination whether there is probable (i.c., reasonable) cause for the issuance of a search warrant. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987). Such compelling evidence as identified fingerprints offers ample support for the finding of probable cause.

Haynes challenges the validity of the search warrant, as well, on the basis of hearsay, apparently in the belief that the victim’s account of the crime and description of her attacker, which was included in the affidavit, was lacking in reliability because it was hearsay. The appellant relies on Ark. R. Crim. P. 13.1, which provides, in relevant part:

If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.

Yet the victim was not an informant, and her statement was therefore exempt from the reliability requirement of the rule. See Jackson v. State, 306 Ark. 70, 811 S.W.2d 299 (1991); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). As this court noted in Brown v. State, 259 Ark. 449, 455, 534 S.W.2d 213, 216 (1976), quoting United States v. Bell, 457 F.2d 1231, 1239 (5th Cir. 1972): “Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it.”

Only one statement in the affidavit was actually based on hearsay — the assertion that the State Crime Laboratory had identified the fingerprints found at the victim’s house as the appellant’s. The Crime Lab is a state entity, and its personnel are public employees. It is not necessary for an affiant applying for a search warrant to state reasons why a public official is a credible or reliable informant. Brown v. State, supra; French v. State, 256 Ark. 298, 506 S.W.2d 820 (1974).

For his second point for reversal, Haynes contends that the victim misidentified him as the man who raped and robbed her. The testimony supplied by the State in its supplemental abstract is adequate to dispose of the issue. The following exchange occurred in direct examination of the victim:

Q. Do you recognize the person?
A. That’s him at the table over there.
Q. Any doubt in your mind?
A. No doubt in my mind whatsoever.
Q. You stated that you had turned the light on in the living room, is that correct?
A. And I saw him distinctly when I turned the light on. I have a little night light in the kitchen that comes on at dark and goes off in the morning and that’s how I see to get around in my house without falling. But when I go up in the living room, there isn’t any light, so I switched on the light so I could see how to get to the front door and look out.
Q. And you don’t have any doubt that it is the Defendant?
A. I have no doubt. It was him.

Unequivocal testimony identifying the accused as the culprit is sufficient to sustain a conviction. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). It is for the jury to decide the credibility of identification testimony. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).

The judgment below is affirmed.