Petition for Writ of Certiorari — Garrett v. Arkansas

Supreme Court brief1985

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IN THE

Supreme Court of the Ani t,t States

OCTOBER TERM, 1985

HOWARD DENNIS GARRETT,

Petitioner,

THE STATE OF ARKANSAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

ARKANSAS SUPREME COURT

BUFORD WILEY

2121 San Diego Avenue

San Diego, California 92110

(619) 574-1551

Attorney for Petitioner

INTERIM PRINTING & MAILING COMPANY

1105 WEST MORENA BOULEVARD. SAN DIEGO. CALIFORNIA 92110 — 275-3050 \

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QUESTION PRESENTED

Should the Arkansas Supreme Court have granted a review of

the conviction of Howard Dennis Garrett for battery in the first

degree?

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS, STATUTES

PEPUEP APR OCR ov lek ccccadeassicdva ni 2

PERO E MAE POEM occ ccarecsscencesunwesewe

REASONS FOR GRANTING THE WRIT ........... 4

I. EXTRINSIC EVIDENCE OF PRIOR

OFFENSES WAS IRRELEVANT AND

THEREFORE WAS ERRONEOUSLY

ADMITTED AT THE TRIAL IN VIOLATION

OF THE FIFTH AMENDMENT TO THE

UNITED STATES CONSTITUTION ........ 4

Il. THE DEFENDANT’S PROFFERED

EVIDENCE REGARDING THE ALLEGED

PRIOR KIDNAPPING AND RAPE WAS

OFFERED TO REBUT THE STATE’S

KIDNAPPING AND RAPE THEORY OF

DESIGN AND MOTIVE AND NOT AS

IMPEACHMENT BY ‘“‘OTHER”’ BAD ACTS

EVIDENCE AND THEREFORE WAS

ERRONEOUSLY DISALLOWED IN

VIOLATION OF THE FIFTH AMENDMENT

TO THE UNITED STATES

6b ker yore er 7

III.

IV.

- ili -

TABLE OF CONTENTS (Continued)

Page

THE FAILURE OF THE DEFENSE

COUNSEL TO FILE A TIMELY APPEAL

CONSTITUTED A VIOLATION OF

DEFENDANT’S RIGHT TO EFFECTIVE

COUNSEL UNDER ARTICLE 2, SECTION 10

OF THE ARKANSAS CONSTITUTION

WHICH RESULTED IN A VIOLATION

OF DEFENDANT’S DUE PROCESS RIGHTS

UNDER THE FOURTEENTH AMENDMENT

TO THE UNITED STATES

ee eas babi sa6 eee eea ens 9

THE FAILURE OF THE ARKANSAS

COURTS TO HEAR THE DEFENDANT’S

APPEAL IN DIRECT CONTRAVENTION

OF THE ARKANSAS SUPREME COURT

HOLDING IN RE BELATED APPEALS

VIOLATED DEFENDANT’S DUE PROCESS

RIGHTS UNDER THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

Ee ee 10

THE PROSECUTOR’S REPEATED

REFERENCE DURING VOIR DIRE TO THE

FIRST TRIAL WAS IMPROPER AND

CONSTITUTED PROSECUTORIAL

MISCONDUCT, WHICH RESULTED IN A

VIOLATION OF DEFENDANT’S RIGHTS

UNDER THE ARKANSAS CONSTITUTION

AND THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION TO A

FAIR AND IMPARTIAL JURY............. i]

\ -iv-

TABLE OF CONTENTS (Continued)

VI. THE DEFENDANT’S MOTION FOR

MISTRIAL SHOULD HAVE BEEN

GRANTED FOLLOWING THE TESTIMONY

OF ROBERT HARRISON WHO EXPRESSLY

REFERRED TO THE EARLIER TRIAL. THE

DENIAL OF SUCH MOTION FOR

MISTRIAL CONSTITUTED A VIOLATION

OF THE DEFENDANT’S SIXTH

AMENDMENT RIGHT TO A FAIR AND

oe a a} eee

VII. THE PROSECUTOR’S REFERENCE TO

PUNISHMENT ONLY AT THE TIME OF

THE CLOSING ARGUMENT DENIED THE

DEFENDANT THE RIGHT TO RESPOND

TO ALL CONTENTIONS AGAINST HIM

AND AS A RESULT VIOLATED THE

DEFENDANT’S RIGHT TO FAIR TRIAL

AS GUARANTEED BY THE LAWS OF

ARKANSAS AND THE SIXTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION AS WELL AS HIS DUE

PROCESS RIGHTS UNDER THE

FOURTEENTH AMENDMENT TO

UNITED STATES CONSTITUTION

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APPENDIX A

Opinion of the Supreme Court of Arkansas

THE

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Page

A-l

TABLE OF CONTENTS (Continued)

APPENDIX B

Motion for Writ of Certiorari to the

Supreme Court of Arkansas .................0000.

APPENDIX C

Appeal from Benton County Circuit Court .........

APPENDIX D

Judgment from the Circuit Court of

Es SUNRIOIE s oc nb a ccdavacndiveseuces

APPENDIX E

1. In Re Belated Appeals, 265 Ark. 964 (1979)

2. Hawksley v. State, 276 Ark. 504, 637 S.W.2d 573

NG is ds os Bx Cen dw oe 00nd dS ERE Reaee eee.

APPENDIX F

Constitutional Provisions, Statutes and Rules .......

Page

B-1

C-1

D-1

TABLE OF AUTHORITIES

CASES

Federal Cases:

Douglas v. State of California,

DIR Is SOD EIOOE) occ cc ve cccisveresccvevsssone

Homan v. United States,

279 F.2d 767 (C.A. Neb. 1960), cert. den.

SS ES ree eer ereT ee ee TT rT eee ree

Murphy v. Florida,

EE WEE PP CEDTED 5 boinc cece ccccessecsneceenens

United States v. Beechum,

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United States Ex Rel Collins v. Jozwiak,

(ay CP EMTED 04 c.ncvcnwedsccccnrssccece

United States v. Dothard,

OER Foe See CEG BGR) ow. eee e seco nees

United States v. Russell,

puke 1 le | rere rr ree

United States Ex Rel Siegal v. Follette,

290 F SUPP. G32 (IFES) 2. wc ccc cc scccswecsccess

Arkansas Cases:

Adams v. State,

176 Ark. 916, 5 S.W.2d 946 (1928). ...............

Page

10,11

- Vii -

TABLE OF AUTHORITIES (Continued)

CASES (Continued)

Arkansas Cases (Continued):

Alford v. State,

223 Ark. 330, 266 S.W.2d 804 (1954). ..............

In Re Belated Appeals in Criminai Cases,

tO eee eee eee

Bolden v. State,

267 Ark. 504, 593 S.W.2d 156 (1980)... ............

Burrow v. State,

oo me A fk) ee

Golden v. State,

10 Ark.App. 362, 664 S.W.2d 496 (1984) ...........

Hawksley v. State,

276 Ark. 504, 637 S.W.2d 573 (1982)...............

Henderson v. State,

278 Ark. 107, 643 S.W.2d 541 (1982). ..............

Howell v. State,

POE FRE, Bg BE ee OT CROs oh eb nwnin ts aes

Lair v. State,

simatiaia TUS Nese OTE GA ED shod vba en’

Lane v. State,

168 Ark. 528, 270 S.W. 974 (1925). ................

Page

4,6

9,10

11,13

- viii -

TABLE OF AUTHORITIES (Continued)

CASES (Continued)

Arkansas Cases (Continued):

Nolen v. State,

278 Ark. 17, 643 S.W.2d 257 (1982). ............. :

Simons v. State,

233 Ark. 616, 346 S.W.2d 197 (1961)... ............

Surridge v. State,

276 Ark. 596, 637 S.W.2d 507 (1982). ..............

Iowa Cases:

State v. Comes,

245 lowa 485, 62 N.W.2d 753 (1954) ......... 0.2...

Missouri Cases:

State v. Peterson,

~ & & , | MS hot Eee a enero

West Virginia Cases:

State v. Hamric,

EO Ms CPE WWE D acc c ci vene vast diesen

Page

9.i0

14,15

- ix -

TABLE OF AUTHORITIES (Continued)

STATUTES

Arkansas Constitution, Article 2, Section 10 ..........

Arkansas Criminal Code 41-1601,

Battery in the First Degree .............c cece ccees

Arkansas Criminal Procedure Statute,

a es ion sack

Arkansas Evidence Code, Section 41-203(1)...........

Federal Rules of Evidence 404(B)....................

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OTHER AUTHORITIES

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No.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

HOWARD DENNIS GARRETT,

Petitioner,

THE STATE OF ARKANSAS,

Resvondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

ARKANSAS SUPREME COURT

The petitioner, Howard Dennis Garrett, respectfully prays that

a writ of certiorari issue to review the judgment and opinion of the

Supreme Court of Arkansas entered in this proceeding on March

18, 1985.

OPINION BELOW

The denial of appeal, not reported, appears in the Appendix

hereto.

JURISDICTION

The judgment of the Arkansas Supreme Court was entered

March 18, 1985, and this petition for certiorari was filed within 60

days of that date. This Court’s jurisdiction is invoked under 28

U.S.C., Section 1257(3).

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

The constitutional provisions, statutes and rules involved are set

forth in Appendix ‘‘F.”’

STATEMENT OF FACTS

Defendant, Howard Dennis Garrett, was tried twice and con-

victed of battery in the first degree following an incident in which

Diane Burr, his former lover and business partner, was shot and

injured. Both juries returned a sentence of ten years with a maxi-

mum of twenty years.

Certain acts which occurred before the injury of May 22, 1981

were proposed as evidence. Diane Burr accused the defendant of

kidnap and rape which allegedly occurred March 11, 1981 through

March 13, 1981. These unfounded charges were dismissed before

trial. At the first trial, defense attempted to prove that Ms. Burr

manufactured those charges in an attempt to show bias of the

witness. The trial court ruled this to be impeachment on a col-

lateral matter and disallowed both the extrinsic testimony and a

cross exam of Ms. Burr as to this matter.

The Arkansas Appellate Court ruled that the testimony

amounted to impeachment on a collateral matter but reversed for

the trial court’s refusal to allow questions of Ms. Burr on cross

examination for impeachment purposes.

Conversely, at the second trial, the prosecution first introduced

the testimony of Ms. Burr accusing the defendant of the kidnap

and rape over defense objections to relevancy. The trial court

ruled the testimony of Ms. Burr was relevant to show defendant’s

intent, plan, motive, or design. Subsequently, defendant attempt-

ed to introduce testimony of Sancha Anderson, Patty White, and

Gary Amstutz to refute Ms. Burr’s analysis of the facts of her trip

with defendant to Tulsa which she had labeled a kidnap and rape.

During an in-camera consultation with counsel, the judge asked

if this wasn’t the reason for the reversal of the first trial not

recognizing the distinction in form and justification of the prof-

fered testimony. The trial judge, thus, was confused by the ruling

of the Appellate Court and erroneously concluded that the

evidence proferred by defendant was irrelevant as impeachment on

a collateral matter. Thus, the defendant was not allowed to rebut

a major contention of the prosecution’s case in chief.

In addition, Ms. Burr was permitted, over objection, to testify

to an incident of an exchange of angry words between she and

defendant which occurred outside an ice cream parlor owned and

operated by defendant and Ms. Burr. As a result of this alterca-

tion, the defendant was arrested for disturbing the peace and

assaulting a police officer.

Voir dire in the second trial is marked by repeated prosecution

reference to the length of time between arrest and trial. Defense

objections to such questions were sustained and repeatedly ignored

by the prosecutor in an apparent attempt to impress upon the jury,

through implication, that the defendant had been tried before on

the same question.

During the cross examination of Robert Harrison, the pro-

secutor asked when he last worked for the defendant. The witness

responded that it was in 1982, after the first tria/. Defendant’s mo-

tion for mistrial, following this express reference in open court to

the earlier trial, was denied.

~~ e

Additional facts will be incorporated into the argument.

REASONS FOR GRANTING THE WRIT

EXTRINSIC EVIDENCE OF PRIOR OFFENSES WAS

IRRELEVANT AND THEREFORE WAS ERRONEOUSLY

ADMITTED AT THE TRIAL IN VIOLATION OF THE

FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

The due process clause of the Fifth Amendment to the United

States Constitution guarantees a criminal defendant a full and fair

trial. The admission of irrelevant evidence in a criminal trial is a

violation of the defendant’s due process rights. Extrinsic evidence

that serves no other purpose than to depict the defendant as a per-

son of bad character addicted to crime, Alford v. State, 223 Ark.

330, 266 S.W.2d 804 (1954), charged, the admission of which

violates the defendant’s due process rights.

Admissibility of extrinsic act evidence must be determined

through a two-step approach as described in Golden v. State, 10

Ark.App. 362, 664 S.W.2d 496 (1984): (1) The act must bear some

independent relevance to the issues presented by the case and

(2) the evidence must pass a balancing test of probative value

versus unfair prejudice of the information.

In tle case at bar, the defendant was charged with first degree

battery. At the trial, over the defense objections, the prosecution

was allowed to introduce evidence of the circumstances surround-

ing a prior conviction for disturbing the peace and assaulting a

police officer and unfounded charges of kidnap and rape that were

later dismissed. The prosecution asserts that this extrinsic act

evidence was relevant to show a plan, motive, or design which

established the specific intent required for First Degree Battery.

oi.

First Degree Battery is defined as:

41-1601. Battery in the first degree.—(1) A per-

son commits battery in the first degree if:

(a) with the purpose of causing serious physical

injury to another person, he causes serious physical

injury to any person by means of a deadly weapon;

(b) with the purpose of seriously and permanent-

ly disfiguring another person, or of destroying,

amputating or permanently disabling a member or

organ of his body, he causes such an injury to any

person; or

person under circumstances manifesting extreme

indifference to the value of human life; or... .

One element of First Degree Battery is the intent to inflict serious

physical injury. Such intent is indicated when a defendant acts

purposely with a culpable state-of-mind, Bolden v. State, 267 Ark.

504, 593 S.W.2d 156 (1980). ‘‘A person acts purposely with

respect to his conduct or a result thereof when it is his conscious

object to engage in conduct of that nature or to cause such a

result.’”” Arkansas Evidence Code Section 41-203(1). However,

the culpable mental state required is more than recklessness. Nolen

v. State, 278 Ark. 17, 643 S.W.2d 257 (1982).

Federal Rules of Evidence 404(B) allows evidence of other

crimes, wrongs or acts to show motive, opportunity, intent, or

plan. However, where defendant’s intent to commit the charged

offense is in issue, extrinsic evidence is only relevant if the defen-

dant had the same state-of-mind in the perpetration of both the ex-

trinsic and the charged offense. U.S. v. Beechum, 582 F.2d 898

(Sth Cir. 1978). The evidence admitted here of a conviction for

disturbing the peace and assaulting a police officer showed only

that the defendant displayed a raucous and unbehaved demeanor.

His state-of-mind clearly did not approach the calculated and

itis

wanton mental state required to show a willingness that serious

bodily injury might result.

At best, the acts of the defendant show recklessness which does

not approach the same state-of-mind required for First Degree

Battery. Thus, the evidence of this prior conviction does not

reflect connection to the specific intent required for burglary and

can not be admitted for this purpose.

To establish relevancy of extrinsic offenses, the trial court must

first determine whether there is enough evidence to allow the jury

to find that defendant committed the extrinsic offense. U.S. v.

Dothard, 666 F.2d 498, 501-502 (11th Cir. 1982). The charges of

kidnap and rape were dismissed at the preliminary hearing, there

being no factual basis other than an unfounded accusation by

Diane Burr. Thus, there was insufficient evidence to show that the

defendant committed the extrinsic offenses and at trial evidence of

these extrinsic offenses was improperly admitted.

In addition, the evidence of these prior offenses was very pre-

judicia! in that it did, in fact, cast the defendant in the light of a

man of bad character and from that presumption, more likely to

have committed the crime with which he is presently charged.

Thus, the probative value of the extrinsic conviction was substan-

tially outweighed by the danger of unfair prejudice. Golden v.

State, 10 Ark.App. 362, 664 S.W.2d 496 (1984), U.S. v. Beechum,

582 F.2d 898, 911 (Sth Cir. 1978).

The only relevance of the evidence offered as probative of

motive or design was to show that defendant is a man of bad

character, addicted to crime and should, therefore, not have been

admitted. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954).

A more recent Arkansas case may appear to extend the situation

where such extrinsic evidence will be allowed. The court, in Lair v.

State, _._._._ Ark. ___, 675 S.W.2d 361 (1984), admitted

statements made by a defendant to a victim just before the rape

~ =

charged. The statements related previous rapes of other women.

The court held that the state was entitled to introduce evidence

showing all circumstances which explain the act, show a motive for

acting, or illustrate the accused’s state-of-mind even if other

criminal offenses are brought to light.

The extrinsic evidence in the case at bar differs markediy from

Lair, however, as it does not involve statements by the defendant,

but, instead contains allegations of rape and kidnap which were

summarily dismissed.

And, as such, Lair’s holding should not be followed because

evidence introduced regarding the conviction for disturbing the

peace and assaulting a police officer fails to show the accused’s

motive or state-of-mind. Finally, this Arkansas decision is in con-

flict with the United States Supreme Court decision in U.S. v.

Beechum, supra.

THE DEFENDANT’S PROFFERED EVIDENCE

REGARDING THE ALLEGED PRIOR KIDNAPPING

AND RAPE WAS OFFERED TO REBUT THE STATE’S

KIDNAPPING AND RAPE THEORY OF DESIGN AND

MOTIVE AND NOT AS IMPEACHMENT BY ‘“‘OTHER’”’

BAD ACTS EVIDENCE AND THEREFORE WAS

ERRONEOUSLY DISALLOWED IN VIOLATION OF

THE FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

If the court should determine that evidence of the alleged kidnap

and rape of Diane Burr was indeed relevant and indicative of

motive or design then it was error to disallow defendants proffered

evidence refuting Ms. Burr’s allegations. The in-camera testimony

of Soncha Anderson, Gary Amstutz, and Patty White was not

allowed by the Triai Court due to the Trial Court’s erroneous

ots

belief that the testimony was offered as impeachment of the

witness, Diane Burr, on a collateral matter. In point of fact, such

evidence was offered to contradict and disprove a material part of

the prosecution’s case in chief, the element of intent, motive or

design, and not collaterally to impeach her testimony asserting

‘‘other bad acts;’’ the element of intent, motive or design and

should have been allowed. Hawksley v. State, 276 Ark. 504, 637

S.W.2d 573 (1982).

‘‘The Federal Rules of Evidence discourage the admission of

extrinsic evidence to prove or disprove issues which are collateral

to the subject matter of the case (Federal Rules of Evidence 403)

.. . however, if the evidence contradicts material testimony, then it

is relevant evidence and is no longer considered collateral.’’ U.S.

v. Russell, 717 F.2d 518 (11th Cir. 1983). When a party in the ex-

amination in chief is allowed to inquire about collateral acts, such

testimony may be contradicted. Howell v. State, 141 Ark. 487,

489, 217 S.W. 457 (1920).

In Hawksley, supra, the defendant attempted to introduce

testimony concerning travel plans, including plane reservations, of

defendant and the victim which were made about two weeks prior

to the altercation and evidence as to payment of a commission he

gave to the victim about two months before the incidents of the

crime charged. The Hawksiey court held the evidence as to their

joint plans together and the said commission was relevant to rebut

the state’s theory that the defendant committed the crime because

the victim was trying to break up their relationship. The evidence

presented by the defendant tended to show a continuing relation-

ship and to dispute the prosecution’s theory of defendant’s intent,

plan, motive or design.

In the case at bar, the prosecution’s witness, Diane Burr,

testified as to the circumstances surrounding the unproved,

dismissed. charges of kidnap and rape. The defense witnesses’

testimony would have shown that, at the same point in time, the

.%.

defendant and Diane Burr enjoyed a relaxed, close and consensual

relationship and in fact were planning a honeymoon trip.

Thus, the defense’s proffered testimony as such, should have

been admitted for the purpose of rebutting the state’s theory of in-

tent, motive or design. The Arkansas courts failure to admit this

rebuttal evidence constituted a deniai of the defendant’s due pro-

cess rights in violation of the Fifth Amendment.

THE FAILURE OF THE DEFENSE COUNSEL TO FILE

A TIMELY APPEAL CONSTITUTED A VIOLATION

OF DEFENDANT’S RIGHT TO EFFECTIVE COUNSEL

UNDER ARTICLE 2, SECTION 10 OF THE ARKANSAS

CONSTITUTION WHICH RESULTED IN A VIOLATION

OF DEFENDANT’S DUE PROCESS RIGHTS UNDER

THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

Article 2, Sec. 10 of the Arkansas Constitution guarantees a

criminal defendant the right to counsel:

‘*In all criminal prosecutions the accused shall enjoy

the right to . . . be heard by himself and his

counsel.’’ ARK. CONST., Art. II, Sec. 10.

‘*A failure to perfect an appeal-in a criminal case where the

defendant desires an appeal amounts to a denial of the defendani’s

right to effective assistance of counsel. Surridge v. State, 276 Ark.

596, 637 S.W.2d 507 (1982). Henderson v. State, 278 Ark. 107,

643 S.W.2d 541 (1982).

In the case at bar, defendant requested that his attorney file an

appeal. However, his attorney belatedly filed the notice of appeal

and the Arkansas Court of Appeals denied a hearing based upon

the failure to file a timely appeal. The Arkansas Supreme Court

rece

affirmed the Appellate Court ruling. The defendant’s attorney

has admitted, in an affidavit to the Arkansas Supreme Court, that

the failure to timely file was due to his error in misinterpreting the

date on which the statutory time for appeal began to run.

The attorney’s failure to file an appeal in the case at bar denied

the defendant the right to effective counsel in violation of the

Arkansas Constitution. Surridge, supra; Henderson, supra.

Where, as here, defendant in a state court is denied a right

guaranteed by that state’s own constitution, the defendant’s due

process rights under the Fourteenth Amendment to the United

States Constitution are violated. Siegal, supra; Collins, supra.

THE FAILURE OF THE ARKANSAS COURTS TO HEAR

THE DEFENDANT’S APPEAL IN DIRECT

CONTRAVENTION OF THE ARKANSAS SUPREME

COURT HOLDING IN RE BELATED APPEALS

VIOLATED DEFENDANT’S DUE PROCESS RIGHTS

UNDER THE FOURTEEN AMENDMENT TO THE

UNITED STATES CONSTITUTION.

A belated appeal based upon attorney error will be heard by the

Arkansas Supreme Court in a per curiam opinion even where no

good cause in the error was shown. I/n Re Belated Appeais in

Criminal Cases, 265 Ark. 964, decided 5 February 1979, which

cited Arkansas Rule of Criminal Procedure 36.9 in support of the

decision. In fact, the Arkansas Supreme Court has routinely

granted belated appeals where the defendant did not waive his

right to an appeal and such request for appeal was communicated

to defendant’s attorney. Jn Re Belated Appeals in Criminal Cases,

supra.

In the present case, the defendant had requested, soon after the

trial ended, that his attorney perfect an appeal and he has

_ o

steadfastly continued to assert such request. Thus, he has, at no

time, waived his right to appeal. However, the Arkansas Supreme

Court refused to hear the defendant’s appeal.

The Arkansas courts’ failure to hear defendant’s appeal violated

both legislative mandate and the Arkansas Supreme Court’s own

opinion. A failure to follow legislative mandate and the court’s

own procedure constitutes a violation of the defendant’s due pro-

cess rights guaranteed by the Fourteenth Amendment to the

United States Constitution. United States Ex Rel Siegal v.

Follette, 290 F.Supp. 632, 635 (1968); United States Ex Rel Collins

v. Jozwiak, 315 F.Supp. 188, 190 (1970).

THE PROSECUTOR’S REPEATED REFERENCE DURING

VOIR DIRE TO THE FIRST TRIAL WAS IMPROPER AND

CONSTITUTED PROSECUTORIAL MISCONDUCT,

WHICH RESULTED IN A VIOLATION OF DEFENDANT'S

RIGHTS UNDER THE ARKANSAS CONSTITUTION AND

THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION TO A FAIR AND IMPARTIAL JURY.

Article 2, Section 10 of the Arkansas Constitution guarantees:

‘*In all criminal prosecutions the accused shall enjoy the right to a

speedy and public trial by an impartial jury.’’ A jury, to be impar-

tial, must decide the merits of the case ‘‘by hearing the testimony

adduced before them at the trial and after they enter the trial

panel--not before.’’ Lane v. State, 168 Ark. 528, 270 S.W. 974

(1925). The standard of fairness required by the United States

Constitution, similarly, includes a panel of impartial and indif-

ferent jurors. Murphy v. Florida, 421 U.S. 794 (1975). Once the

jury learned of an earlier conviction, it would no longer be impar-

tial and indifferent.

«ti.

The prosecutor is an officer of the court and should see that the

defendant has a fair and impartial trial, avoid convictions contrary

to law, not appeal to the prejudice of the jury, nor make

statements to the jury which are not proved. Adams v. State, 176

Ark. 916, 5 S.W.2d 946 (1928). As an officer of the court, the pro-

secutor should not bring to the jury matters not proper for their

consideration, State v. Comes, 245 Iowa 485, 62 N.W.2d 753

(1954), nor subject the defendant to an unfair trial. Homan v.

U.S., 279 F.2d 767 (C.A. Neb. 1960), cert. den. 364 U.S. 866.

In the case at bar, the prosecutor made repeated reference to the

length of time between the arrest and this trial in an apparent at-

tempt to impress upon the jury that the delay was caused by an in-

tervening trial. This would raise the curiosity of the _ rospective

jurors who might seek further information and discover the earlier

conviction. Indeed, a reading of the voir dire transcripts indicates

the answer to that question was known among their own ranks for

the prosecutor stopped one juror, Dorothy Rise, who was attemp-

ting to ask about the earlier trial.

The conduct of the prosecutor amounted to prosecutorial

misconduct and denied the defendant his rights under the

Arkansas Constitution (Art. 2, Section 10) and the Sixth Amend-

ment to the United States Constitution to a fair and impartial jury.

THE DEFENDANT’S MCTION FOR MISTRIAL SHOULD

HAVE BEEN GRANTED FOLLOWING THE TESTIMONY

OF ROBERT HARRISON WHO EXPRESSLY REFERRED

TO THE EARLIER TRIAL. THE DENIAL OF SUCH

MOTION FOR MISTRIAL CONSTITUTED A VIOLATION

OF THE DEFENDANT’S SIXTH AMENDMENT RIGHT

TO A FAIR AND IMPARTIAL JURY.

‘*A jury to be impartial must have the impressions of the merits

of the cause written or stamped on their minds by hearing the

testimony.’’ Lane v. State, 168 Ark. 528; 270 S.W. 974 (1925).

The testimony of Mr. Harrison informed the jury that the defend-

ant had once before been convicted of this crime and encouraged

them to disregard their own impressions and follow the earlier

ruling.

Vil

THE PROSECUTOR’S REFERENCE TO PUNISHMENT

ONLY AT THE TIME OF THE CLOSING ARGUMENT

DENIED THE DEFENDANT THE RIGHT TO RESPOND

TO ALL CONTENTIONS AGAINST HIM AND AS A

RESULT VIOLATED THE DEFENDANT'S RIGHT TO

FAIR TRIAL AS GUARANTEED BY THE LAWS OF

ARKANSAS AND THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AS WELL AS HIS

DUE PROCESS RIGHTS UNDER THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION.

Arkansas Criminal Procedure Statute Section 43-2132, states in

pertinent part: ‘‘. . . if upon the demand of the adverse party, the

attorney prosecuting for the State, or the attorney for the defense

shall refuse to open and fully state the grounds on which he claims

a verdict, the party so refusing shall be refused the conclusion of

fi.

the argument.’’ The statute confers upon the party having the

burden of proof the privilege of concluding the argument provided

he makes a full and fair opening of his case. Burrow v. State, 109

Ark. 365, 159 S.W. 1123 (1913).

Thus by implication, though not specifically stated by the

Arkansas Supreme Court, should the prosecution delete a per-

ticular element such as mention of punishment it should be

prevented from discussing punishment in its closing argument. To

allow defense a proper response to issues presented at trial, the

prosecution should not be allowed to introduce in its closing

arguments anything which has not properly been introduced at

trial. Simons v. State, 233 Ark. 616, 346 S.W.2d 197 (1961).

In the case of State v. Peterson, 423 S.W.2d 825 (1968), defen-

dant was convicted of burglary and sentenced to three years. The

crime carried a maximum penalty of ten years. The Prosecutor

failed to mention punishment in his opening argument as did

defense counsel. In the closing argument the prosecution asked

for the maximum penalty. The Missouri Supreme Court ruled it

was an abuse of discretion to overrule defense motion for a

mistrial. In so ruling the court noted, ‘‘it has been generally

recognized in civil cases it is error for counsel who has the burden

of the issues to omit all argument of injuries and damages in his

opening argument and to cover those matters in his concluding

argu nent, thus depriving the defendant of all opportunity to fairly

answer that argument’’ (State v. Peterson, 423 S.W.2d at ___).

In the case at bar the prosecution did not argue punishment in

its opening statement, nor make any mention of it in the initial

closing argument. Defense counsel requested an instruction that

the prosecution be prohibited from discussing punishment in its’

closing argument. The court refused any restriction and, despite

defense abstention from comment on punishment, the prosecution

asked the jury to impose the maximum penalty. Thus, defendant

was deprived of the right of confrontation on that issue and of the

ability to answer the prosecution’s argument. In violation of

defendant’s rights. State v. Peterson, 423 S.W.2d 825; State v.

Hamric, 151 S.E.2d 252, 151 W.Va. 1; Vol. 23A CJS Criminal

Law Section 1089.

Since the prosecutor in the case at bar failed to mention punish-

ment in his opening statement and that fact was called to the atten-

tion of the court by defense counsel, the prosecutor should not

have been allowed to discuss punishment in his closing argument,

which resulted in a violation of defendant’s due process rights

(Douglas v. State of California, 372 U.S. 353 (1963)). In addition,

to force defendant to introduce punishment for the first time may

create the impression thereby that he admitted guilt, at least by im-

plication. (State v. Peterson, 423 S.W.2d at 830.)

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue to

review the judgment of the Arkansas Supreme Court.

DATED: May 15, 1985

Respectfully submitted,

BUFORD WILEY

Attorney for Petitioner

« 8%

APPENDICES

A-1

LAW OR CHANCERY MANDATE

STATE OF ARKANSAS.

SCT.

In the Supreme Court

BE IT REMEMBERED, That at a term of the Supreme Court

of the State of Arkansas, begun and held at the Court Room in the

City of Little Rock, on the Ist day, being the first Monday of Oc-

tober, A. D. 1984, amongst others were the following proceedings,

to-wit:

On the 18th day of March, A.D. 1985, a day of said term

HOWARD DENNIS

GARRETT

Appeal from Benton

APPELLANT

Circuit Court

No. vs. District

STATE OF ARKANSAS

APPELLEE

Appellant’s motion to file a belated Petitiun for Review is

denied.

IN TESTIMONY, That the above is a true copy of the order

of said Supreme Court, rendered in the case herein stated,

I, Dona L. Williams, Clerk of said Supreme Court,

hereunto set my hand and affix the Seal of said Supreme

Court, at my office in the city of Little Rock, this 19th day

of March, A.D. 1985.

D.C.

Original to Clerk

ce:

Michael! R. Salamo

Lynn H. Ball

Theodore Holder

A-2

B-1

IN THE ARKANSAS SUPREME COURT

HOWARD DENNIS GARRETT APPELLANT

VS. NO. CA. CR. 84-43

STATE OF ARKANSAS APPELLEE

MOTION TO FILE LATE PETITION FOR CERTIORARI

Now comes appellant, Howard Dennis Garrett, by and through

his attorney of record, Michael R. Salamo, and for his Motion to

File Late Petition for Certiorari in the above styled cause states:

1. That on February 19th, 1985, Appellant’s attorney tendered

to the Court a Motion entitled PETITION FOR CERTIORARI.

That said Motion was refused due to the fact that it was untimely

filed.

2. That the attorney herein had misréad Rule 20 and Rule 29 (6),

Rules Of The Supreme Court, to mean that the Petition For Cer-

tiorari should be filed after the Petition for Rehearing.

3. That this is a criminal appeal and Appellant should not be re-

quired to pay the price of a refusal to file said petition because his

attorney misunderstood the procedure herein.

4. Where an attorney tenders a record, which on its face is un-

timely filed this Court has allowed said record to be filed if a

Motion For Rule On The Clerk is granted. Rule 5, Rules Of The

Supreme Court. Also, where the abstract and brief have been filed

untimely this Court has allowed said brief to be filed with the

Court. In either event this Attorney takes full blame for the Peti-

tion for Certiorari’s not being tendered timely.

Poe D

B-2

5. Appellant further gives as cause for late filing that appeliant’s

health at this time is in serious jeopardy and he needs expert

medical attention. He intends to appeal his case to the United

States Supreme Court and desires that this Court allow his late fil-

ing and order the Court of Appeals io recall its mandate so the ap-

pellant can remain free on bond to pursue his appeal and to get the

medical care he needs.

6. That a copy of said Petition is attached hereto and marked

Exhibit 1, and a declaration of co-counsel Lynn H. Ball is attached

hereto marked Exhibit 2 and incorporated herein.

WHEREFORE, Appellant respectfully prays that this Court

allow his Petition for Certiorari be filed with the Court.

Respectfully submitted,

Howard Dennis Garrett

» LE fll

Michael R. Salamo AVS BT

Attorney at Law

17 1/2 East Center

Fayetteville, AR 72701

Lats

Lynn H. Ball

530 "B" St, Suite 1810

San Diego, CA 92101

a7 F4 ao"

Of covnsel

B-3

IN THE ARKANSAS SUPREME COURT

HOWARD DENNIS GARRETT APPELLANT

VS. NO. CA CR 84-43

STATE OF ARKANSAS APPELLEE

PETITION FOR CERTIORARI

Comes now the Appellant, Howard Dennis Garrett, and for his

Petition for Certiorari in the above styled cause states:

1. That this petition requests review of the decision of the Court

Of Appeals in the above styled cause, and the Court Of Appeals

denial of Appellant’s Petition for re-hearing; and is brought pur-

suant to Rule 29 (6), Rules Of The Supreme Court.

2. That Appellant was convicted of Battery in the First Degree, a

Class B felony. This is the second appeal in this matter. In an un-

published opinion, Garrett v. State, CA CR 82-156 (March 30,

1983), the Court of Appeals reversed Appellant’s first conviction

on other grounds and in doing so held that Appellant could not in-

troduce evidence of an alleged kidnapping and rape some five or

six months before the battery occurring on May 22, 1981, because

the matter was collateral, although said evidence was rebuttal to

the States case.

3. The State introduced various alleged altercations between the

Appellant and the victim, including but not limited to some of

which occurred only days and/or weeks after the alleged kidnap-

ping and rape. ,

4. The Court of Appeals affirmed Appellants second conviction

and ruled the extrinsic act offenses admissible as probative of the

Appellant’s motive, intent, preparation, plan, and absence of

mistake or accident, in that, taken as a whole the evidence offered

B-4

proof that Appellant harbored strong feelings against the victim

for a considerable period of time before shooting her and that

through vindictiveness intended to cause her physical injury.

Garrett v. State, CA CR 84-43.

5. That the Court of Appeals decision in the two above cited

cases are inconsistent in that they draw a fine line of distinction

between what is collateral and what is relevant to intent, motive,

etc., and as such violates the due process and equal protection

clause of the United States, and Arkansas Constitution and Rules

403 and 404, Uniform Rules of Evidence.

6. That the States case in chief consisted of several alleged alter-

cations between the Appellant and the victim from January, 1981

through May 22, 1981, the date of the shooting. This evidence in-

cluded an alleged rap [sic] and kidnapping of the victim by the Ap-

pellant in Tulsa, Ok. The Appellant had witnesses prepared to

testify to facts which would have clearly have contradicted the vic-

tims testimony involving this incident, and would have also shown

a pattern on the victims part to falsely accuse the Appellant of

committing a crime.

7. That the Trial Court was confussed [sic] by the Court Of Ap-

peals ruling from the first conviction in this matter and that con-

fussion [sic] aided in the prejudice to the Appellant.

hat if the evidence, taken as a whole, demonstrates a pattern

of hostility ants part, then evidence of an alleged rape

and kidnapping should no teral and as such evidence

which contradicts the same would not be collateral.

WHEREFORE, Appellant respectfully prays that this Court

grant his petition for certiorari, as the issue involves constitutional

rights as well as a legal principle of major importance.

B-5

Respectfully submitted,

HOWARD DENNIS GARRETT,

APPELLANT

wee ee

Michael R. Salamo ~

Attorney at Law

17 1/2 East Center, Suite 216

Fayetteville, Arkansas 72701

CERTIFICATE OF COUNSEL

I, Michael R. Salamo, attorney for Appellant, certify that the

above Petition For Certiorari is filed in good faith with the belief

that Appellant’s claim has merit and is not filed for the purpose of

delay.

(pl: tolled Met

CERTIFICATE OF SERVICE

I, Michael R. Salamo, certify that I have caused to be deposited

in the U.S. Mails, postage prepaid, a true and correct copy of the

foregoing Petition For Certiorari to Attorney General, Justice

Building, State Capitol Grounds, Little Rock, Arkansas 72201,

this 17th day of February, 1985.

rte.

Michael R. Salamo

B-6

DECLARATION OF LYNN H. BALL

I, Lynn H. Ball, after first being duly sworn state:

1. That Howard Dennis Garrett retained me to review his convic-

tion and to assist with the preparation of the necessary documents

for an appeal to the United States Supreme Court.

2. When I agreed to represent Mr. Garrett he explained to me his

concern with being immediately incarcerated, as he was under-

goi.g treatment for a deteriorating optical nerve condition. He

was seeking treatment in Gainesville, Florida. He told me that he

was referred to a clinic in Gainesville, Florida, by an op-

thomologist in Fayetteville, Arkansas, named Dr. Jim Sharp. Mr.

Garrett saw a Dr. Hood and a Dr. Pollock at the clinic in

Gainesville. They told him that his condition is deteriorating and

that there is atrophy of his optic nerves which is progressing. They

sternly warned Mr. Garrett tht he must have a Cat Scan performed

by a neuro-opthomologist to determine what is causing the

deterioration. They believe that lack of blood supply to the optic

nerve is causing the difficulty and surmise that this is caused by

either a brain tumor causing pressure which causes pinching of

blood vessels, an aneurism which is causing the lack of circulation,

or a blockage which is causing the circulation problem. The Cat

Scan which must be performed will allow the neuro-opthomologist

to look behind the back of the eyeballs and perhaps detect. the pro-

blem. If the problem is detected, it may be correctable by surgery.

The opthologists state that the optic nerves are dying and that the

deterioration of sight cannot be restored, but only stopped if the

condition causing the deterioration is corrected.

3. The specialist in Florida is expected to perform the necessary

tests within the next week.

4. This declarant honestly believes that if Mr. Garrett is placed in

custody at this time, he may very well lose his sight, which would

certainly be cruel and unusual punishment. Although he is facing

B-7

ten years in the Arkansas State Penitentiary, he is a man only 32

years of age, and he still has a long life ahead of him. To in-

carcerate him and take a chance on him becoming totally blind

without affording him the opportunity to seek this medical care

while he can could very well violate his rights against cruel and

unusual punishment. This declarant is a former practitioner in

Florida and intends to travel to Florida and get a judge to appoint

a physician to confer with the specialist and render an opinion pur-

suant to Arkansas Statute § 43-733, which statute states that a

defendant may be excused from appearing if he is physically

unable to do so as certified by a court appointed physician.

5. This declarant believes that the ends of justice will be served if

Appellant is allowed to remain free on bail pending a determina-

tion of his physical condition, and that he be allowed to file his

petition for a Writ of Certiorari with the Arkansas Supreme Court

so that he can exhaust all of his legal remedies. This declarant

believes that the State of Arkansas will not be prejudiced if this is

allowed to occur; however, that the Appellant, Howard Dennis

Garrett, will be severely prejudiced if the Motion is not granted.

The foregoing statement is sworn to under penalty of perjury

under the laws of the State of Arkansas and was executed on this

20th day of February, 1985, in Fayetteville, Ark.

Apel!

Lynn A Ball

CERTIFICATE OF COUNSEL

I, Michael R. Salamo, attorney for appellant, certify that the

above Motion is filed in good faith with the belief that appellant’s

Motion has merit and as such is not filed for the purpose of delay.

Michael R. Salamo

B-8

CERTIFICATE OF SERVICE

I, Michael R. Salamo, certify that I have caused to be deposited

in the U.S. Mails, postage prepaid, a true and correct copy of the

foregoing Motion to File Late Petition for Certiorari to Attorney

General, Justice Building, State Capitol Grounds, Little Rock, Ar.

72201, this ___ day of February, 1985.

CERTIFICATE OF SERVICE

I, Lynn H. Baill, certify that I delivered a true and correct copy

of the foregoing Motion to File Late Petition for Certiorari to At-

torney General, Justice Building, State Capitol Grounds, Little

Rock, Arkansas on this 1 day of March, 1985.

C-1

NOT DESIGNATED FOR PUBLICATION.

SEE REVISED SUPREME COURT RULE 21.

ARKANSAS COURT OF APPEALS

No. CACR82-156

HOWARD DENNIS

GARRETT

Opinion Delivered

APPELLANT March 30, 1983

r; AN APPEAL FROM

BENTON COUNTY

STATE OF ARKANSAS CIRCUIT COURT

APPELLEE HON. W. H. ENFIELD,

JUDGE

REVERSED AND

REMANDED

JAMES R. COOPER, Judge

The appellant was charged with first degree battery which

resulted from a shooting incident between the appellant and his

girlfriend. After a jury trial, the appellant was convicted and

sentenced to ten years in the Arkansas Department of Corrections.

From that decision, comes this apveal.

On March 22, 1981, the appellant and Diane Burr, with whom

the appellant had previously lived, engaged in an altercation,

which resulted in Diane Burr being shot in the stomach. To detail

the background of the two parties would unnecessarily lengthen

this opinion, but it is necessary to go into some detail regarding

two prior incidents.

C-2

In January, 1981, Ms. Burr signed an affidavit which alleged

that the appellant was guilty of disorderly conduct. Charges were

subsequently brought against the appellant. In March, 1981, Ms.

Burr signed a second affidavit which indicated that her former af-

fidavit was false and that the police officer who arrested the ap-

pellant actually was the cause of the incident. On direct examina-

tion, Ms. Burr testified about the facts which led up to the

January, 1981 incident as well as the fact that she had falsely sign-

ed an affidavit absolving the appellant of any responsibility for

that incident. She was fully cross-examined concerning her false

statement, and the appellant was allowed to impeach her credibili-

ty. On appeal, the appellant argues that he was denied the oppor-

tunity to adequately cross-examine the appellee to show her pre-

judice or bias against him because the trial court refused to allow

him to introduce the second affidavit signed by Ms. Burr which

absolved the appellant of responsibility in the January, 1981 inci-

dent. We disagree.

The credibility of any witness may be challenged on cross-

examination. Arkansas Uniform Rules of Evidence, Rule 607.

However, that rule does not allow the introduction of extrinsic

evidence to test the credibility of the witness. We find no error in

the trial court’s refusal to allow the introduction of the second af-

fidavit for the purpose of challenging the prosecuting witness’

credibility.

Next, the appellant argues that the trial court refused to allow

the testimony of various individuals concerning events which oc-

curred in early March, 1981. Ms. Burr had filed a complaint in-

dicating that the appellant had kidnapped her and had taken her to

Fort Smith and then on to Tulsa where he raped her. Ms. Burr

testified that while on the way to Fort Smith and Tulsa, she went

into a store and purchased a note pad in order to write out an

agreement, to be signed by the appellant and his ex-wife, which

modified the child custody arrangement between them. The ap-

pellant sought to introduce a copy of that agreement, purportedly

to show Ms. Burr’s state of mind at the time she wrote the

C-3

statement. The appellant also sought to elicit testimony from

witnesses who observed the appellant and Ms. Burr at a travel

agency and at a restaurant and who would testify that Ms. Burr

was not being held against her will. The trial court refused to

allow the introduction of the statement, the testimony of the

witnesses, and the cross-examination of Ms. Burr about the inci-

dent.

On appeal, the appellant alleges that the evidence and testimony

were admissable [sic] to show bias and prejudice. While it is true

that extrinsic evidence may be admissible to show the bias of a

witness, Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978), it

does not appear to us that the proffered evidence was probative of

bias and/or prejudice. At best, it would go to the credibility of

Ms. Burr. After the trial court refused to allow the appellant to in-

troduce the statement or to put impeachment witnesses on the

stand, the appellant sought to attack the credibility of Ms. Burr on

cross-examination. Since the credibility of a witness is subject to

attack on cross-examination, we hold that the trial court erred in

refusing to allow the appellant to cross-examine Ms. Burr regard-

ing the allegedly false statements concerning the alleged kidnaping

[sic] and rape in March, 1981. We reverse and remand on this

point.

Last, the appellant argues that the phrase ‘‘circumstances

manifesting extreme indifference to the value of human life’’ is un-

constitutionally vague and that an additional instruction defining

the phrase should have been given to the jury. We disagree. This

argument has been raised before and was laid to rest in Martin v.

State, 261 Ark. 80, 547 S.W.2d 81 (1977).

Reversed and remanded.

Mayfield, J., concurs.

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D-1

IN THE CIRCUIT COURT OF

BENTON COUNTY, ARKANSAS

STATE OF ARKANSAS PLAINTIFF

VS NO. CR-81-303

HOWARD DENNIS GARRETT DEFENDANT

JUDGMENT

NOW on this 10th day of August, 1983, this cause coming on to

be heard, the State appearing by David Clinger, Prosecuting At-

torney, and the Defendant, Howard Dennis Garrett, appearing in

person and by his attorneys, Bobby Odom, Don R. Elliott, Jr.,

and Wm. R. Wilson, Jr., and the Defendant, having been

previously arraigned and entered his plea of NOT GUILTY to the

charge of Battery in the First Degree - Class B Fziony, all parties

announced ready for trial on the 10th day of August, 1983, and a

jury of twelve from the regular panel of petit jurors were impanel-

ed and sworn to try the cause, and, having heard the evidence, the

instructions of the Court, and the arguments of counsel, retired to

consider its verdict. The trial having lasted four days, the Jury, on

the 13th day of August, 1983, returned into court a verdict of guil-

ty.

Defendant, comes on now on this 13th day of August, 1983,

ready for sentencing.

IT IS, THEREFORE, CONSIDERED, ORDERED AND AD-

JUDGED BY THE COURT that the Defendant, Howard Dennis

Garrett, is guilty of Battery in the First Degree - Class B Felony,

and that he be and is hereby sentenced to a term of TEN YEARS

in the Department of Correction and a fine of TEN THOUSAND

DOLLARS, payable within sixty days after his release from the

Department of Correction.

D-2

Defendant is continued on his present bond pending appeal.

Notice of appeal must be filed within thirty days.

Py te dk

WW Fe. s- Bee pe &.

CIRCUIT JUDGE

ENTERED: 15 AUGUST 1983

F 1 L E D

E-1

In Re: Belated Appeals in

Criminal Cases

(Rule 36.9, Rules of Criminal Procedure)

PER CURIAM

February 5, 1979

PER CURIAM. In Re Belated Appeals in Criminal Cases. In

Harkness v. State, 264 Ark. 561 (1978), where counsel for the ap-

pellant in a criminal case had miscalculated the 90-day limit for fil-

ing the record in this court, we explained that we were permitting

the case to be docketed for the reason that otherwise the appellant

would be in a position to obtain a new trial or a belated appeal on

the basis of ineffective assistance of counsel. We have taken the

same action in a number of other cases, but applications for per-

mission to file such belate? appeals are becoming much too

numerous.

The controlling rule provides: ‘‘The Supreme Court may act

upon and decide a case in which the notice of appeal was not given

or the transcript of the trial record was not filed in the time

prescribed, when a good reason for the omission is shown by af-

fidavit.’’ (Italics supplied.) Rules of Criminal Procedure, Rule

36.9 (1976). The purpose of the exception, to take care of hardship

cases, is being disregarded, in that counsel tender out-of-time

transcripts without a good reason for the delay. In order to put the

responsibility where it belongs, on the shoulders of the lawyer who

is at fault, hereafter when no good cause for the error is shown,

the court will publish a per curiam order allowing the appeal, giv-

ing the name of the lawyer, and stating why no good reason has

been shown for the omission. A copy of the order will be sent to

the court’s Committee on Professional Conduct, to be kept in its

files for the Committee’s information if any complaint of any kind

should later be filed against that lawyer.

E-2

Donald Brian (Punk) HAWKSLEY,

Appellant,

STATE of Arkansas, Appellee.

No. CR 82-86.

Supreme Court of Arkansas.

July 12, 1982.

HOLT, Justice.

A jury found appellant guilty of burglary, aggravated assault,

criminal mischief, and two counts of battery and imposed

sentences totalling ten years. All charges stem from an incident

occurring around 7:30 a. m., February 27, 1980, when the ap-

pellant entered an apartment occupied by Cathy Chastain and

Robert Clayton. A fight erupted. Chastain and Clayton received

injuries requiring medical treatment.

We first consider appellant’s argument that the court erred in

admitting into evidence, over appellant’s objections, proof of

disorderly conduct, escape, and criminal mischief in the second

degree which involved other persons and occurred several years

prior to the incident here. During cross-examination of the ap-

pellant, the following exchange occurred:

Q. Do you remember an incident in July of ’77 in which you

were convicted of escape and disorderly conduct and criminal

mischief in the second degree?

(Defense Counsel):

Your honor, they have raised the issue of self defense... .

This goes specifically to acts of conduct or misconduct... .

This is for impeachment. They have raised the issue of self

defense and | think I can show what he’s been doing all his

life, whether it has to do with violence... .

eer —S>s eee

E-3

Following a colloquy between the state and the defense attorneys,

the court overruled the objection, stating ‘‘It’s an incident involv-

ing violence’’; neither a conviction nor arrest makes any dif-

ference, and therefore, appellant could be asked about whether he

was involved in violence in a particular incident.

The trial court erred in overruling appellant’s objection, which

we feel was sufficient. Rule 608(b) of the Uniform Rules of

Evidence provides that the trial court may, if it finds good faith

and the probative value of the testimony outweighs the prejudicial

effect, allow questions about certain offenses if the misconduct

relates to honesty and truthfulness. ‘‘Questions regarding ap-

pellant’s violent nature and destruction of property are wholly

unrelated to his propensity for honesty, and therefore, improper.’’

Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980). See

McCormick, Evidence, § 43 (2d Ed. 1972); 3 Weinstein’s Evidence

§ 608[05] (1981).

{1,2] Rule 609 deals with impeachment by evidence of convic-

tion of crime. Section (a) provides:

General Rule. For the purpose of attacking the credibility of a

witness, evidence that he has been convicted of a crime shall be

admitted but only if the crime (1) was punishable by death or

imprisonment in excess of one /1] year under the law under

which he was convicted, and the court determines that the pro-

bative value of admitting this evidence outweighs its prejudicial

effect to a party or a witness, or (2) involved dishonesty or false

statement, regardless of the punishment.

Thus, before the evidence of convictions of crimes was admissible

the court had to be satisfied they were crimes either (1) punishable

by imprisonment in excess of one year or (2) involved dishonesty

or false statement. Once counsel raises the issue of whether the

defendant’s prior convictions should be excluded from trial, the

trial judge has the duty to see that he is informed of the relevant

considerations before admitting the evidence. Clearly, the

disorderly conduct, § 41-2908, a class C misdemeanor, was not

E-4

admissible. Escape ranges from an admissible class C felony, first

degree escape, § 41-2810 to an inadmissible class A misdemeanor,

third degree escape, § 41-2812. Criminal mischief in the first

degrec, § 41-1906 can be admissible as a class C felony or inad-

missible as a class A misdemeanor, depending on the value of the

property destroyed. Criminal mischief in the second degree, §

41-1907, is an inadmissible misdemeanor. The state did not prove,

nor did the trial judge make sufficient inquiry in the conference at

the bench, to determine if the convictions were for crimes

punishable by imprisonment in excess of one year and thus ad-

missible into evidence.

The convictions were not admissible as convictions of crimes in-

volving dishonesty and false statement. Those convictions are

peculiarly probative of credibility and are always to be admitted

without regard to grade of offense or length of sentence. Ex-

amples are perjury, subornation of perjury, criminal fraud and

embezzlement. Thus, the prior convictions were not admissible

for attacking the credibility of appellant under Rule 609.

[3] Neither was the evidence admissible under Rule 404 to pro-

ve a trait of character. First, appellant on direct examination did

not testify to a character trait of non-violence and so no rebutting

evidence was admissible. Rule 404(a)(1). Second, it was not ad-

missible under 404(b) to prove motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or

accident.

Two of the charges in the present case were battery in the first

degree and aggravated assault. The testimony concerning prior

crimes was not relevant to prove intent to commit the crimes

charged. For a complete discussion of cases involving evidence ad-

missible to prove intent see Alford v. State, 223 Ark. 330, 266

S.W.2d 804 (1954); and Moore v. State, 227 Ark. 544, 299 S.W.2d

838 (1957). Here, the evidence of other crimes was not admissible

and was prejudicial to the appellant.

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E-5

We feel it necessary to discuss other contentions raised by ap-

pellant in view of a possible retrial. Appellant contends that the

verdicts of guilty as to the charge of burglary and criminal mischief

were not supported by the evidence, and the trial court erred in

overruling his motion for a directed verdict on those counts. We

cannot agree. In Harmon v. State, 260 Ark. 665, 543 S.W.2d 43

(1976), we said:

It is well established that a directed verdict is only proper where

there are no factual issue to be determined by the jury and on

appeal, the evidence will be reviewed in the light most favorable

to the appellee and the judgment will be affirmed if there is any

substantial evidence to support it. Munn v. State, 257 Ark.

1057, 521 S.W.2d 535 (1975).

Substantial evidence is evidence which is of sufficient force that it

will compel a conclusion one way or another beyond suspicion or

ccajecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

In order for the state to prove the charge of burglary, it must show

that the appellant entered or remained unlawfully in Chastain’s

apartment with the purpose of committing an offense punishable

by imprisonment. Ark. Stat.Ann. § 41-2002 (Repl.1977) and

Commentary. The appellant argues that admittedly he had a key

to Chastain’s apartment with the right to come and go as he pleas-

ed; that he kept some of his clothes there and spent several nights

there each week; that he had contributed substantially to her

financial support; that the fact they had previously lived together

at other locations indicated that he had consent to enter her apart-

ment; and also when he went in the apartment, it was ‘‘uncertain

as to what he had in mind.”’

The day before the incident appellant inquired at Chastain’s

place of employment as to her whereabouts and was informed she

had left with Clayton; that night Chastain received serveral

threatening phone calls from appellant and finally she unplugged

the phone; between the time Chastain and Clayton parked their

cars outside Chastain’s apartment and the fight the following

morning, Clayton’s car had been pushed sideways into Chastain’s

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vehicle, causing extensive damage to both cars; tire tracks near

Clayton’s car were made by tires similar to those on appellant’s

car; Clayton’s car sustained approximately $1,500 damages; at ap-

proximately 7:30 a. m. appellant forcibly entered Chastain’s apart-

ment, splintering the door jam and forcing a chain lock from the

wall; he observed Clayton in bed undressed; Chastain was in her

night gown; the appellant was asked to leave; a fight broke out

resulting in Chastain’s and Clayton’s injuries and medical treat-

ment.

[4] We feel the evidence was sufficient for the jury to infer the

appellant entered or remained unlawfully in Chastain’s apartment

with the intent to commit an offense punishable by imprisonment.

We also find the evidence sufficient to enable the jury to infer that

the appellant purposely destroyed or damaged the vehicles of

Chastain and Clayton in excess of $500. Ark.Stat.ann. § 41-1906

(Repl.1977).

[5, 6] The appellant next contends the trial court erred in

refusing to permit testimony concerning his and Chastain’s plans

and plane reservations to travel to Mexico which were made about

two weeks prior to the altercation and in failing to allow appellant

to introduce evidence as to a $1,100 commission he gave Chastain

about two months before the incident here. We agree that the

court should have permitted the evidence. The state attempted to

show Chastain had been trying to ‘‘break up’’ her relationship

with appellant. The evidence as to their plans to travel together

and the real estate commission were relevant to rebut the state’s

theory. Uniform Rules of Evidence, Rule 402. Also evidence that

a civi! suit had been filed by Clayton against appellant as a result

of the fracas had a bearing on the extent of the bias of the witness

and was admissible. See Goodwin v. State, 263 Ark. 856, 568

S.W.2d 3 (1978). In Wright v. State, 133 Ark. 16, 201 S.W. 1107

(1918), we said: ‘‘Pecuniary interest, personal affection or hostili-

ty, a quarrel or prejudice may always be shown to discredit a

witness.”’

_ 4

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[7] Appellant asserts the trial court erred in admitting state-

ments of Chastain, given to the investigating officers, to be in-

troduced as ‘‘binding’’ on the appellant as direct evidence of

wrongdoing on his part toward her and failing to limit the intro-

duction of statements to impeachment purposes only. We find no

merit in this argument. First, we observe that her transcribed

statements were neither read to the iury nor introduced in

evidence. Further, she and appellant have married since the inci-

dent involving the alleged offenses upon her and, understandably,

she appeared to be a reluctant witness. The state merely read por-

tions of her statements in questioning her on direct examination

about her past relationship with appellant and his conduct toward

her. She admitted that everything in her statements was true. We

do not perceive that this procedure was ‘‘binding’’ upon appellant,

and no error is demonstrated.

[8] We also find no merit in appellant’s contention that the

court erred in permitting Clayton to detail conversations concern-

ing the relationship between Chastain and appellant that he had

with Chastain out of the presence of the appellant. On cross-

examination of Clayton, appellant’s counsel asked Clayton

whether Chastain ‘‘let you know she had this relationship with’’

appellant. We feel this opened the door for the later questions on

redirect by the state concerning the status of their relations.

We deem it unnecessary to discuss any of the remaining ‘conten-

tions raised by appellant as they are not likely to reoccur in a new

trial.

Reversed and remanded.

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DECLARATION OF RIGHTS

§ 10. Rights of accused enumerated—Change of venue.—!n all

criminal prosecutions the accused shall enjoy the right to a speedy

and public trial by impartial jury of the county in which the crime

shall have been committed; provided that the venue may be chang-

ed to any other county of the judicial district in which the indict-

ment is found, upon the application of the accused, in such man-

ner as now is, or may be, prescribed by law; and to be informed of

the nature and cause of the accusation against him, and to have a

copy thereof; and to be confronted with the witnesses against him;

to have compulsory process for obtaining witness in his favor, and

to be heard by himself and his counsel.

ARKANSAS CRIMINAL CODE

41-1601. Battery in the first degree.—(1) A person commits bat-

tery in the first degree if:

(a) with the purpose of causing serious physical injury to

another person, he causes serious physical injury to any person by

means of a deadly weapon; or

(b) with the purpose of seriously and permanently disfiguring

another person, or of destroying, amputating or permanently

disabling a member or organ of his body, he causes such an injury

to any person; or

cumstances manifesting extreme indifference to the value of

human life; or

(d) acting alone or with one or more other persons, he commits

or attempts to commit a felony, and in the course of and in fur-

therance of the felony, or in immediate flight therefrom:

(i) he or an accomplice causes serious physical injury to any

person under circumstances manifesting extreme indifference to

the value of human life; or

(ii) another person who is resisting the offense or flight causes

serious physical injury to any person.

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(2) It is an affirmative defense in any prosecution under subsec-

tion 1(d) in which the defendant was not the only participant that

the defendant:

(a) did not commit the battery or in any way solicit, command,

induce, procure, counsel, or aid its commission; and

(b) was not armed with a deadly weapon; and

a deadly weapon; and

(d) reasonably believed that no other participant intended to

engage in conduct which could result in serious physical injury.

(3) Battery in the first degree is a class B felony. [Acts 1975, No.

280, § 1601, p. 500.]

CRIMINAL PROCEDURE

43-2132. Argument of counsel — Order of argument. — If the

case be not submitted without argument the party having the

burden of proof, shall have the opening and conclusion of the

argument, and if upon the demand of the adverse party, the at-

torney prosecuting for the State, or the attorney for the defense

shall refuse to open and fully state the grounds on which he claims

a verdict, the party so refusing shall be refused the conclusion of

the argument. (Crim. Code, § 226; Act Mar. 6, 1877, No. 35, § 1,

p. 30; C. & M. Dig., § 3185; Pope’s Dig., § 4021.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.