*1 car and with man seen having deceased’s black found the victim items as belonging and as to car and at the Sikeston residence .32 items taken from caliber revolver previously was sufficient evidence arrest. There time of as in Charles v. the test set out meet introduced supra. with contention can we appellant’s
Neither agree instruction erred in refusing requested the court ade- court as appears delicti inasmuch corpus instructed the this subject. quately record, accordance have examined Finally, (f) and Rule with Ark. Stat. Ann. 43-2725 the Rules of Court and Court Supreme Appeals reversible find no error.
Affirmed.
Elisha Thomas HARRIS STATE Arkаnsas CR 620 S.W. 2d Court of Arkansas
Supreme delivered Opinion July *2 E. Alvin State Schay, Defender, for Appellate appellant. Clark, Gen., Steve Atty. by: Arnold M. Jochums, Asst. Gen., Atty. for appellee. Elisha Thomas Harris Justice. Darrell Hickman,
found attempt to commit murder capital use of a firearm in the commission the offense. The convictions were for the of a state Bill wounding trooper, Breshears, Altus, Arkansas, At the January 1980. trial, conclusion of the found Harris habitual offender and sentenced him to life with a prison SI5,000.00. fine of issues, appeal raises only two both of which
are procedural. The first the trial court should have declared a mistrial after commented of a witness. The claim second the trial court erred in to allow Harris to refusing testify about his prior convictions.
Breshears had stopped for traffic violation hours New early Year’s day. up Breshears was locking Hаrris’s vehicle when Harris shot in the head. trooper had hit and began been from behind trooper thought Harris’s van with Harris lot where parking fighting Yother, motorist, over. A Wanda pulled passing at the to assist the and Harris was arrеsted stopped trooper scene afterwards. shortly officer, Breshears,
At the several trial the arresting members of the State and Mrs. Police investigative squad, Yother all testified. The Mrs. prosecution рresented also thirteen Susan year Yother’s old Susan Yother. daughter, testified, but was unsure of courtroom procedure had to calm her at the of the young girl’s beginning When testimony. Susan finished said: testifying, did a Susan. At the end of gоod “You You down.” job, step *3 the defense made a for a on the day motion mistrial based fact that “the court made a on the inadvertently comment evidence when he told Susan did Yother she a good jоb in her testimony.
The evidence of Harris’s was guilt overwhelming. Susan a was not material witness since her view of fight was from a parked car and she could not distinguish combatants. No were made at the time the objeсtions judge made the statement and there was no renewal of the motion for mistrial. We find that error was when any harmless viewed the context entire In Walker record. 408 F. 2d Bishop, Cir. (8th Court considered trial court’s remаrks and found in the remarks nothing indicated any opinion of or “that could guilt possibly influenced the jury an exercising impartial judg- ment.” The Walker Court then stated the test that we apply here: import or meaning the true to ascertain only way
[T]he of in the it light is to consider isolated remark any is plain uttered. This just in which context law. well as good sense as common mistrial and declare a trial refused to The In West v. he was wrong. cannot say has trial that the held this court for a motion or denying wide discretion granting mistrial, and that we will not reverse a unless there judgment is an abuse of discretion manifest to the prejudice complaining party.
Harris’s sеcond claim his five involves felony convictions, all of which were the result The guilty pleas. found him of four or more convictions. prosecution offered certified copies of convictions from the various counties where the Virginia crimes place. took During in-chambers Harris asked the hearing trial court to allow him to present his he contention that actually innocent of the three previous crimes had only pleaded advice of counsel. Harris stated his in the earlier attorney him that if did charges told not enter the he would more time on conviction get two crimes that addition, he had committed. аctually Harris claimed that he had been released from a Writ jail of Habeas on one Corpus crimes. the habeas did not innocence, togo guilt or but to the pertained amount of time served. refusеd to allow present these
arguments jury. appeal that Ark. argues Stat. Ann. him (Repl. 1977) gives controvert evidence of his That previous felony convictions. true, but the statute not does Harris the give argue innocence this late date when he has conceded that he *4 pleaded to each of the earlier felonies. North Under Carolina Alford, v. 400 25 (1970), U.S. these pleas would be valid even if Harris had made the claim of innocence at the time the were entered.
The Arkansas statute would Harris the allow to attack it convictions on other but does not allow prior grounds, him to offer try those cases For Harris could аgain. example, to that evidence offered prove felonies did not consist of certified of the convictions copies that he had not been at the represented by attorney earliеr trials. Harris could also offer evidence that he was not in the same as the Harris Elisha Thomas named 293, S.W. earlier convictions. Ark. Leggins 267 (1979). 2d he made none of these claims.
53 9 of five copies consisted to the jury evidence offered showed and each copy convictions plea time the guilty at the an attorney by represented innocent that a claim of held entered. was case. the present relevant was not the earlier charges v.State, McConahay the pre- determine the trial court it is for
noted evidence. admissibility of issue as to liminary we have reviewed a life sentence case involved Since this defendant, as rights all errors prejudicial find §Ann. Ark. Stat. required by reverse conviction. that will us to require none Affirmed.
Adkisson, C.J., part. concurs dissents part, J., dissents. Purtle, with the Justice, I I. dissenting. disagree Purtle, John I is that The first point on two opinion points.
majority and the the evidence think the trial commented on upon limitations imposed second is the court improperly evidence party presenting mitigation convicted sentence. in a very the state testified
After a witness on behalf of the court stated: manner the appellant, damaging against the record did a Susan.” It job, appears “You good who that she saw Susan was witness testified head or a club on officer’s appellant using flashlight have been may The statement the court by during fight. certainly made one sense but most inadvertently doubt No listening. made and was no consciously It the сourt. seems witness received such comment cause the was to to me that the effect of this comment likely this young think that the trial was persuaded Actually, truth while the stand. told the she was on lady *5 what she said witnesses contradicted of it, amounts to in measure stills many Any way you respects. by the evidence and is prohibited a comment 360 7, 23; §
Constitution of State of Art. Arkansas. Chicago, Adair, 412, & Pac. R.I. R.R. Co. v. Ark.
(1966).
The second I with the point disagree majority concerns of handling sentencing phase appellant’s of trial. The has compounded now error which majority they in State, committed the case of v. Hobbs (1981). Hobbs did not far so as the case go presеnt does. Had the appellant case present been allowed to take the to, stand as he wanted testify, would have to cross-examination and subject therefore would not have been the rule laid violating down Hobbs. Arkansas, 10, Constitution of the State § Art. states that an accused shall have the heard to be by himself words, and his counsel. In other he has constitu- tional to address the This jury. was not necessarily denied Hobbs supra, there the although majority did rewrite the enacted legislation Arkansas General to an extent. In the Assembly present case have not they only was left the statute. it, destroyed what they rewritten § Ark. Stat. Ann. statеs: (Repl. 41-1301 ... Evidence as to any circumstances mitigating may presented by either the state defendant regardless of its under the rules admissibility admis- governing sion of evidence in matters; trials of criminal ... For life of me I cаnnot see words or any inferences which foregoing language prohibit would a convicted from person that he entered the stating former guilty more harsh keep receiving punishment. The in effect con- аttempting deny victions. To disallow a convicted to show attempt that his intimidation, convictions were the result coercion, mistreatment, means, or other unlawful would result injustice. Ark. Stat. Ann. grave (2) 1977) states:
If the defendant is found the same guilty felony, *6 jury shall sit and agаin hear evidence of the defendant’s previous felony convictions previous the of findings defendant’s of guilt The felonies. defendant shall have the to hear and controvert such evidence and to offer evidence in his support. the right him denies simply opinion The majority testify wanted clearly He his support. evidence
offer of one that charges the of some was not he that court aside. set been probably had conviction the appellant unless rule a air from pulled he allegations prove him to with writing something possibly cannot This the jury. it to not present could this enacting when the legislature intention bеen rule. a strict such even bound not state legislation. It intended to allow a con- the legislature obvious matters victed felon a rather free hand presenting were This is true because such presentations mitigation. no the Rules of Evidence specific from exempted as to Ob- except relevancy. restrictions thereon placed retry not allowed to his prior should be viously, felonies; but, hand, that he it is оbvious equally other tell circumstances surrounding should able Otherwise, if he the consti- conviction so desired. both which evidence tution and the statutes authorize him to offer in his behalf are It is extremely effectivе. only partially would have satisfied the trier of appellant unlikely facts, doubt, that he was not beyond reasonable Nevertheless, he has try. felonies. had the Stat. Ann. this case (Repl. 1977). if he did not have four believed the stated appellant convictions, as ten years. his sentence could have as low hand, automatically fifty his sentence Therefore, I am in an years to life. unwilling participate this which denies court opinion by constitutional and statutory rights. C.J., me he joins has authorized to state Adkisson,
in that dissent to evidence part mitigation. relating