holding that reversal is required when a significant step in a case is taken in an accused’s absence if it appears that he has lost an advantage or has been prejudiced
How later courts described this case
- holding that reversal is required when a significant step in a case is taken in an accused’s absence if it appears that he has lost an advantage or has been prejudiced
- record must be sufficient to permit meaningful appellate review
- reconstructed record must be “adequate to inform [court] of what transpired at . . . trial”
- affirmed because the defendant failed to preserve the argument for appeal
Written by the judges who cited it.
The opinion
Robert H. Dudley, Justice, dissenting. I dissent to that part of the majority opinion which affirms the conviction even though the appellant was absent when substantial steps were taken in his case.
The majority opinion fully recites the accused’s constitutionally guaranteed right to be present in person and by attorney whenever any substantial step is taken in his case. I wholeheartedly agree, and would reverse on this point because the appellant was not present when his motion for continuance and commitment was heard.
The majority opinion attempts to beg the issue by stating that the appellant waived a hearing since he did not request one. The facts simply do not sustain the majority position. The judge’s docket sheet entry for March 20, 1974, five days before trial, reflects:
3/20/74 Motion for continuance filed by defendant, J.C. Bell, presented and denied. (Emphasis supplied.)
3/20/74 Order for examination by SE Ark. Mental Health Clinic 19-605.
On the same day the trial court entered an order directing two medical doctors at a local health clinic to examine the appellant and determine if there were reasonable grounds to believe he was insane. As can be seen from the above evidence, the hearing was not waived, and, in fact, the motion was presented and denied.
It is undisputed that the appellant was not present when the motion was presented and denied. Therefore, the accused was not present in person when substantial steps were taken in his case. This has long been held to be reversible error. Bearden v. State, 44 Ark. 331 (1884); Bennett v. State, 62 Ark. 516 , 36 S.W. 947 (1896);Kinnemer v. State, 66 Ark. 206 , 49 S.W. 815 (1899); and Stroope v. State, 72 Ark. 379 , 80 S.W. 749 (1904).
Newbern, J., joins in this dissent.