*1 on the undercover narcotics officer’s rela- objections, motions, examined for all Bennett, tionship with which is not requests made party either that were issue Johnson’s case. Johnson, adversely decided and no prej- udicial error has been found. Here, based on our standard review us, and the record before agree we Affirmed. the circuit court that post impacted have outcome his case.
Prior to Aldridge stated conversa-
tions with law enforcement and in a writ- enforcement,
ten statement to law that he
had witnessed shooting and had identi- Johnson as
fied
one
Fur-
shooters.
ther,
Aldridge consistently testi-
crowd there that Aldridge
and Mitchell were the only witnesses to Reading forward. the statement as
1^come whole, Aldridge’s comment was a reac-
tion specific facts of this case and Further,
not a recantation of testimony.
Aldridge was cross-examined about
post clearly stated he had wit- the shooting;
nessed he identified Johnson
and did not testimony. waver from his possibly could have
evidence been used which,
attempt to impeach Aldridge, as above,
discussed not satisfy does our stan- newly
dard for discovered evidence.
Accordingly, the record before
us, say we cannot that Johnson has met his
burden and demonstrated that Therefore,
court erred. based on dis- our review,
cussion above and our standard do find error and affirm the circuit
court.
In compliance with Arkansas 4—3(i),
Court Rule the record has been *2 Rock, Files, appel- for D. Little
Jason lant. Rock, Gen., Rutledge, Att’y Little
Leslie Gen., Green, by: Att’y Ass’t Kristen C. appellee. BAKER, Justice R. Associate
KAREN 7, 2013, appellant, Kenneth June []On Hinton, count charged one was degree in the first one count battery and degree. battery second charges from a stem disturbance Department Unit the Arkansas Varner “ADC”) (hereinafter Oc- of Correction 28, 2012, in Hinton and other tober which were was inmates involved. Hinton injuring in the disturbance Page correctional officer Joe Warden On December Stephen Simmons. in mistri- and resulted the case April proceeded the matter al. On time, for a a Lincoln to trial second Hinton of count County jury convicted one battery count first-degree and one battery him second-degree and sentenced fifteen thirty years’ imprisonment years’ imprisonment respectively. testimony At demonstrated ADC Page Joe that ADC Warden Simmons Stephen Correctional Officer injured. testified physically Simmons IgOctober 28, 2012, working that on a shift On Unit as lieutenant. Varner incident, began as day of the a riot the chow hall and inmates started leave fight each the inmates started other further tes- correctional officers. Simmons riot, struck tified back of the head. Kenneth him ADC, testified Ridgell, Field Rider incident, he day that on wit- hit Page and Hinton “blind side” nessed fist; Page fell forward Page a closed unconscious. proceeded to trial and first
The case December ended a mistrial periods June Yarbrough entered below. scheduling setting a new trial order date for October that same
date, scheduling Pursuant order en- Arkansas Rule of second 28.1(b) (2016), setting Criminal tered date No- Procedure new de *3 17-19, 9, 2015, vember 2015. On October an fendant offense and incar Hinton filed a motion the Octo- pursuant continue cerated in in this state 26, 2015 trial asserting date ber of conviction another offense must be of the trial had received notice (12) date brought to trial within twelve months for trial and was available and was 28.2, time provided from the Rule ex only aware November cluding only periods such of necessary de 19, 2015, On the date. November circuit lay as are authorized in Rule Ark. 28.3. R. scheduling order, court a entered revised 28.2(c) requires Crim. that if a P. defen granting Hinton’s motion continuance mistrial, after a the dant retried time for 25-27, resetting April the trial for trial shall to run commence from the date Next, calculating of mistrial. the speedy- period, necessary of periods delay are 20, 2016, April On Hinton filed a motion excluded as Ark. R. P. authorized Crim. dismiss alleging speedy-trial a violation. 28.3(c), 28.3. period Under Rule the of April circuit On the court denied resulting delay granted a from continuance 25, April 2016, the motion to On dismiss. request of or the defendant proceeded the matter to trial for a second All time, counsel is excluded. continuances and Hinton convicted and sen- of granted request or May 16, as On tenced described above. certain, 2016, day his counsel shall to a judgment the circuit court entered period delay of commitment be from the order. shall date granted the continuance is until such sub 26, 2016, Hinton May timely appeal- sequent date in the contained order or 8, to the court of appeals. February ed gentry granting the continuance. docket 2017, accepted of this certification case. Also, period of time when defen (1) presents on appeal: two issues motion for pending dant’s continuance is |scircuit in denying court erred Hin- period properly under Ark. excluded motion to on alleged ton’s dismiss R,Crim. 28.3(a). State, P. v. See Dodson (2) speedy-trial violation and 511, in denying court erred motion to Hinton’s (2004). it has Once determined that been clothing. in civilian place speedy-trial the trial took outside months, period the State bears twelve Appeal I. Points on delay proving burden Speedy A. Trial conduct or result the defendant’s legally justified. Ferguson first on Hin was otherwise For 159, ton asserts that 343 Ark. erred when denied his motion to dismiss based alleged speedy-trial
on an violation. Be turn to review excludable cause this court conducts a de novo review period in Hinton’s At issue is appeal time case. specific determine whether 21, April 2015 denial of periods time the circuit court’s are excludable under the rules, Hinton’s motion dismiss: speedy-trial we discuss relevant order, 19, 2015 first tried on November when the circuit The case was December 15, granted Also, for a court continuance. 2014.... defendant moved granted. period mistrial it was time to be tolled continued from the granting the continu- court’s order 19, until ance the trial November for jury reset trial on The case was 25, sum, 2016. In April date from the days The 315 October mistrial, date of December 15, 2014, until October December until the Hinton’s April date in the is included calculation However, days pur- had accrued. speedy trial. above,
suant our rules discussed period from October until the defendant On October April 2016 was tolled because of Hin- the October filed a motion continue *4 Accordingly, ton’s motion for continuance. re- scheduling trial.... The order days from are excluded the twelve- April setting the trial requirement month there and were 298 trial speedy time be- excluded the days from the date mistrial until Hin- tween trials. ton’s trial date. days more than 365 have Although 15, 2014, elapsed since ex- December Finally, must note that we not do periods the number of cluded decrease argument regarding find merit Hinton’s days to 315. scheduling the November order. The circuit rul- Hinton contends the court’s record demonstrates the State The crux of Hinton’s is erroneous. charged Hinton one criminal with informa- is speedy-trial argument that when the not charges tion and the severed. circuit court set the October and the No- scheduling The two orders have the same dates, 2015 trial Hinton was to be vember case number and language, with identical separately on the tried two different exception of the trial dates and Further, charges. argues, Hinton because | Further, periods. Hinton’s mo- ^excluded sepa- the circuit court did continue tion for continuance stated: rate trial November date or enter Dan 4, 2015, June entered a date, regarding order the November trial resetting this scheduling order case only but addressed October trial on 2015. November This notice bring the State failed trial Hinton, was counsel for received and required period within the 12-month time placed the trial on undersigned date was speedy his trial. violated counsel’s calendar. disagree Applying Hinton. We our spoke On October counsel above, period rules be- time discussed Juneau, Wayne attorney for the mistrial, gan to run from the date regarding setting. Mr. Juneau December until filed inquiring possibility about the motion for October continuance combining the November trial date period. peri- tolled This time trial set on October 2015. Next, days. od totals 299 November for Hinton was of the Counsel unaware the circuit court entered order October 26th trial date. setting granting the continuance Thus, A April for this date for the time review docket case scheduling period further from shows the October that two orders were tolled simultaneously motion continuance entered almost on June until scheduling 2015. Both orders refer- trial also concerned serious of- fenses, ence the same case There no number. that no would result that there wearing indication has been a from Hinton sever- his white uni- charges against ance of the Mr. Hinton. form. The circuit court denied Hinton’s
motion.
Trial
preparation
complete
...
In reviewing a motion to wear civil
has one federal criminal
[and] [counsel]
clothing,
ian
our
standard
review is
jury trial which conflicts with the Octo- whether the circuit court abused its discre
ber 26th
...
date.
Counsel does not
Box,
in denying
tion
the motion.
supra.
possible
believe it
to adequately
will be
Hinton contends that
this
prepare
for the trial before October
“Box is clear and un-
holding in
court’s
equivocal
waiver,
... The
rule
absent a
Here,
argument
Hinton’s
fails for three
a criminal
not be
First,
charges
reasons.
were never sev-
prison garb.” Hinton further
contends
Second, Hinton expressly
ered.
acknowl-
rights,
he did not waive his
edged
charges
were not severed
prejudiced by the circuit court’s denial of
and his counsel was unavailable for the
request.
disagree
Third,
not multiple trials.
discussion
follows.
granting
court’s order
Hinton’s motion for
*5
regard
wearing
to
prison garb
With
on
continuance was entered
November
State,
trial,
Miller v.
249 Ark.
457
the
after
November
2015 trial
(1970),
849
S.W.2d
is our seminal case
If
date.
the trial had been
conducted
holding
waiver,
that absent a
a defendant
date,
the November 16 trial
the circuit
may not be
prison garb.
forced wear
court would not have entered the Novem-
Miller,
trial,
pending
in
Miller was held
ber 19
Accordingly,
continuance order.
penitentiary, and,
trial,
day of
November 2015 trial date was encom-
Miller was transferred to the Pulaski
passed in the November 2015 continuance
County jail. Prior to the
commencement
resetting
order
the trial for April 2016.
trial,
requested
Miller
to wear civilian
Therefore,
on our
discussion above
clothing, and the circuit court denied his
review,
and our
standard
we do
find
appeal,
motion.
On
reversed the circuit
error and affirm the circuit court.
court because Miller had not waived [shis
|7B.
civilian clothing:
“That is
Prison Garb
rule, supported by strong
because of the
For his
second
majority,
that absent a waiver accused
Hinton asserts that the circuit court erred
should not be forced to
in prison
in denying
Hinton’s motion to
Id.,
garb.”
457
at 849.
S.W.2d
clothing.
trial,
civilian
morning
State,
on Box v.
relying
348 Ark.
71
Tucker
Almost three decades later in
State,
(2002)
State,
and Flores v.
552
S.W.3d
350
336 Ark.
983 S.W.2d
(2002),
(1999),
Ark.
896
S.W.3d
presented
we were
awith
clothes,
a motion to
Hinton’s,
filed
civilian
situation similar to
in-
where an
which was denied
the circuit
prisoner
court.
sepa-
carcerated
at trial for
During
pretrial hearing,
Hinton re
rate offenses than his incarceration and
newed his motion to
clothing.
wear civilian
requested
wear civilian
Tucker
clothes.
objected,
The
contending
State
that Hin
capital
murder
offenses,
ton was
for serious
incarcerated
death of a
fellow inmate
occurred
Miller,
appeal, Citing
that ADC.
we affirmed
while incarcerated
explained:
circuit court erred in court and
Tucker asserted
cloth-
denying
context,
motion wear civilian
is
In this
the accused
entitled
brought
affirmed the
at trial. We
to be
before the court with the
explained:
appearance, dignity,
self-respect
State,
man. Miller v.
a free and
innocent
recognized
...
that when
haveWe
(1970) (citing
249 Ark.
pris-
inmate
the state
defendant
239).
§
21 Am. Jur.
Law
Criminal
2d
trial,
these
on at
during
course
facts
be revealed
will
However, in this
com-
case Williams
any prejudice
have
of the
during
of an
mitted the acts
the course
having
from
the defendant
resulted
escape
custody
from the
of the Arkansas
restraints would
rendered harmless
in-
Department of Correction. The acts
nothing
the restraints add
because
murder, aggravat-
escape, capital
cluded
already
apparent
that was
robbery,
theft. The
ed
of the case. See
from the nature
Jeffer-
in Estelle noted that
Supreme Court
State,
son v.
328 Ark.
courts
refused to find
in re-
have
error
(1997);
[v.
Williams
quiring
to wear
(1990)].
Estelle U.S. (1976)(dis- 1691, 48 126 S.Ct. L.Ed.2d Supreme As the Court case, Stahl v. cussing Fifth Circuit a in this no regard, prejudice can noted Henderson, 1973), (5th Cir. 472 556 F.2d seeing already from result that which is in prison a defendant was tried where known. Estelle. As one who was prose- murdering for inmate clothes a fellow in cuted for crimes committed denied). and certiorari was flight of his and from escape course prison garb prison, Williams wore Tucker, years to later Subsequent three known, something by or that was was State, in Ark. Williams 347 67 during necessity would become known (2002), again affirmed S.W.3d we pose prejudice. and could no The trial a circuit court’s denial of defendant’s not commit error in re- court did clothing motion to wear civilian when his prison quiring Williams wear being offenses that Williams was for during proceed- the trial related during |3his escape from the occurred ings. charged capital with ADC. Williams Williams, at Ark. at S.W.3d felony property, theft of murder and which 558-59. during escape from the Cum- occurred Williams, we
mins Unit the ADC. Williams Two months after handed Box, Box in Box. In in our opinion court erred down contended that prison garb robbery liquor of a store. At requiring him wear trial. time of his Box was during incarcerated officers riot that occurred while Department in the Arkansas Correction incarcerated other offenses not on other convictions. Box was Although ADC. Box asserts |10that within offenses occurred point, and absent a waiver or ADC while he was incarcerated. The in prison garb, be tried he is mistaken. right issue was Box whether waived to Box rights addressed waiver of Box’s jury in before the dressed civilian appear in civilian clothing for a trial on clothing. specific held that under the charges of offenses that he did commit case, facts of his Box had not waived his while incarcerated. We find Tucker right, and we reversed the matter for a Williams are us and direct holding, trial. In so explained: new we affirm the circuit court. Tucker Like
There cannot be
that appel
doubt
Williams, Hinton committed acts while in
lant
had
civilian
Williams,
custody
of the ADC. In
cit-
Miller v.
clothing.
457 ing the
Supreme
States
United
Court’s
(1970). Miller,
we adopted
Estelle,
opinion in
we noted
majority
the rule
then held
InSupreme
recognized
that courts
States that “absent a waiver accused have
requiring
refused to find error in
in prison
should not
forced to trial
be
prison garb
such
Miller,
garb.”
249 Ark. at
Williams,
As in
situations.
obvious
848. This was and
consistent
remains
here that
course
with Article Section
of the Arkansas Hinton’s incarceration
be
would
revealed
later, the
years
Constitution. Six
United
jury.
equally
It is
obvious that dur-
Supreme
States
Court noted this court’s
ing trial
be told these
would
opinion
in Miller approval
crimes were
incar-
while he was
committed
rule in Es
adopted a
somewhat similar
underly-
cerated
the ADC because the
Williams,
telle v.
501 [96
U.S.
S.Ct.
ing
prison,
facts
from
stem
a riot
The
126]
L.Ed.2d
hold
victims
were ADC officers. In
ing of the
Supreme Court Estelle
U.S.
Williams,
any prejudice
held
was that
the Fourteenth
under
Amend
As the
rendered
Unit-
harmless.
ment,
rights
a defendant’s constitutional
Supreme
ed States
Court noted
this
compelled
when he was
violated
regard,
no
can
result
see-
prison clothing.
wear identifiable
Es-
known. See
already
that which is
Estelle
U.S.
Court’s
decision
telle. Because
prosecuted
*7
this court Hollo
by
in
first noted
incarceration,
crimes committed
way,
Campbell
&
v.
Welch
260
prison garb
that Hinton
wore
some-
250,
(1976),
Hinton was crimes that oc- Hart, J., in incarcerated—battery concurring part in while curred degree dissenting first degree part. ADC in second
128 fact-finding pro- of the Hart, Justice, mine the fairness Linker
Josephine of criminal In the administration cess. dissenting part. in concurring part in carefully guard must justice, courts majority’s speedy-trial I concur with principle against dilution ma- However, with the disagree I analysis. by probative is guilt to be established Kenneth concluding that analysis jority’s a reasonable doubt. beyond evidence It is not clear a fair trial. Hinton received holding majority whether restraints, permitted physical Unlike err, that the circuit did Allen, U.S. v.] [397 under [Illinois harmless, In or both. court’s error was (1970) ], 353 90 25 L.Ed.2d S.Ct. event, wrong. majority cloth jail compelling an accused wear |iaIn in Estelle v. focusing dicta policy. state ing furthers no essential 48 Williams, 96 425 U.S. S.Ct. jail for it more convenient may That be (1976),1 majority over 126 L.Ed.2d administrators, quite factor unlike the a The of the case. looked the essential re impose physical substantial need specifically Supreme Court defendants, contumacious upon straints cannot, con in that “the State held Estelle justification practice, no for the provides Amendment, Fourteenth sistently Estelle, 503, 505, 96 U.S. S.Ct. before a to stand trial compel an accused prison in identifiable jury while dressed Thus, there is no Estelle indicates Estelle, 425 U.S. S.Ct. clothes.” justify policy state that would essential in appear “[MJaking a defendant appear compelling a defendant a threat garb poses such prison Here, jury prison garb. trial before a it factfinding process’ that ‘fairness of availability of cloth- despite the civilian state by an ‘essential justified must request that Hinton be ing and counsel’s ” Missouri, 544 U.S. policy.’ Deck v. court clothing, in civilian (2005) 628, 125 161 L.Ed.2d S.Ct. requiring provided no reason Estelle, (citing 425 U.S. trial, stating, garb at appear stated, Estelle, 1691). the Court In S.Ct. just going go there and we are “So fundamen to a The fair fact, the circuit court get trying.” Fourteenth liberty secured tal “not been informed had stated Missouri, Drope Amendment. up Mr. Hinton to act any propensity for U.S. S.Ct. Thus, erred in court.” the circuit court presump L.Ed.2d by compelling Hinton innocence, although not articulat tion of in prison garb. Constitution, compo is basic ed Further, majority misses system nent of a fair trial under our that, Hin- in its because mark assertion justice. criminal time the ton was incarcerated occurred, prejudice. was no
crimes
there
requir-
courts
the inherent
implement
presumption,
To
Given
for trial before
Hinton to
under-
be alert to factors
must
*8
Estelle,
prison.
by
majority was
for a crime that occurred
language
relied
merely
discussed
an observation
prejudice. took As Hinton his trial years
place after incident Department
Arkansas His Correction. “It logical
conclusion is correct: equate his continued in- prior
carceration with a conviction
serious crime.” The process criminal as-
sumes the defendant innocent Id. at proved guilty. 125 S.Ct.
until presumption
2007. This that a defendant destroyed by
is clothed innocence was decision to this compel court’s sit at the table in defense garb. conclusion, reaching majori- its has
ty on cases from our own relied predate
court that Deck thus of and are precedential
doubtful But value. even Deck, compels
the absence Estelle
reversal of court’s decision.
Instead, majority affirms an error
federal constitutional dimension
holds to a burden he does
have meet.
I respectfully point. dissent this