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
How later courts described this case
- 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
Written by the judges who cited it.
The opinion
Donald L. Corbin, Justice, dissenting.
Reluctantly, I must dissent to that portion of the majority’s opinion disposing of appellant’s assigned error of improper conduct between trial judge and jurors.
Appellant appears to have timely filed his motion for new trial and a hearing on the matter was set by the trial judge. No record was made of this hearing that was set for September 13, 1993, nor was any explanation for the lack thereof advanced by the state or appellant, except appellant’s allegation without explanation that the hearing was never held.
The majority asks the question, “If the hearing did not take place, then why not?” The majority then goes on to assert: “These significant questions have no answers in the record. As the moving party, it was Oliver’s burden to obtain a ruling on his motion for new trial. . . . Under these circumstances, we cannot reach the merits of Oliver’s argument.” This ruling contravenes our Arkansas Rules of Appellate Procedure because Rule 4(c) provides that “if the trial court neither grants nor denies the motion” for new trial within thirty days of its filing, it is deemed denied. (Emphasis added.) Subsection (f) of ARCP Rule 59 provides that a motion for new trial is not necessary to preserve for appeal an error which could be the basis for granting a new trial. If there was no hearing then there was no means available for trial counsel to make his record. Appellant was faced with an impossibility of performance. Moreover, appellant was lulled into a false sense of security because, although the trial court “did not grant nor deny” the motion within thirty days, the trial court did act on the motion within the thirty days by setting it for a hearing.
I would remand this one issue to the trial court to conduct the hearing previously set for the 13th day of September 1993. At the very minimum, I would send it back to have a hearing so the parties may present evidence that may explain the failure to conduct the September 13, 1993 hearing.