# Oliver v. State

> Supreme Court of Arkansas · October 9, 1995 · 322 Ark. 8

URL: https://www.frixlaw.com/law-library/cases/9676166

## Case

- **Full name:** Timothy Allen OLIVER v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** October 9, 1995
- **Citations:** 322 Ark. 8; 907 S.W.2d 706; 1995 Ark. LEXIS 568
- **Precedential status:** Published
- **Opinion:** Concurring in part by Brown
- **Judges:** Jesson, Glaze, Brown, Dudley, Point, Corbin
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9676166

## How later opinions describe it (automated extraction)

- affirming the admission of a confession where the defendant was fifteen years old, had an I.Q. of seventy-four, and read on a second-grade level

## Opinion text

Robert L. Brown, Justice, concurring in part, dissenting in part.
I have two concerns about what transpired in the trial of this matter. First, as part of the contempt sanction against defense counsel for being 15 minutes late to court, the circuit judge refused to allow the defendant to present the last witness which would have completed the testimony for the Denno hearing. Contempt sanctions for attorney misconduct should be directed against the offending attorney, not the client. In this case, Oliver was punished by the exclusion of evidence, and that was error. The issue is whether the error was rendered harmless by the trial testimony of the previously excluded witness in light of the jury’s ability to determine the reliability of the confession at trial. See Jackson v. Denno, 378 U.S. 368 (1964). I believe that it was and for that reason, I concur with the majority on this point. See Crane v. Kentucky, 476 U.S. 683 (1986).
Secondly, an ex parte communication was alleged between the circuit judge and jurors at a local restaurant during the course of the trial. Affidavits substantiating the event were attached to a new trial motion. The motion itself asserted that defense counsel did not learn about the communication until after the trial. The motion for new trial was filed on July 23, 1993. The circuit judge set the matter for hearing to be held on September 13, 1993, and subpoenas were issued for witnesses. Nevertheless, under our rules the motion was deemed denied on August 23, 1993, and from the record it appears that no hearing was held.
The seriousness of the matter requires resolution. Otherwise, a cloud remains over these proceedings. The majority concludes that defense counsel should have obtained a ruling. What appears to have happened, however, is that the circuit judge set the hearing too late, and the motion was deemed denied after 30 days. There is nothing to suggest that this was done intentionally by the circuit judge; indeed, it appears that the judge was proceeding towards a hearing in good faith. But under these unique circumstances where an improper communication between judge and juror is the basis for the new trial motion and it is supported by affidavit, and where the judge must accept part of the responsibility for not deciding the motion within 30 days, I would remand the case for a hearing on the motion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9676166. Public record. Not legal advice.