*1 litigаnts, the attendant burden on courts and than one with system. dismissed.
Appeal
Don LEWIS v. STATE of Arkansas
CR 91-139
Supreme delivered November Opinion [Rehearing denied December 1991.] *2 Morehead, Morehead, F. Morehead & Robert by: appellant.
Winston Gen., Bryant, Att’y Templeton, Catherine Ass’t Gen., for Att’y appellee. Hays,
Steele Justice. Don Earl Lewis Appellant was charged with four counts of crack cocaine. The delivery counts were severed аnd was tried and convicted on one appellant count. That case is not us. tried before was then and Appellant convicted count, the second the one which we address. now Three points for reversal are argued: trial court should have granted a trial; motion to dismiss for lack the trial court should not have the introduction of over permitted objection evidence an chain of and the custody; evidence was insufficient to support find verdict. We no merit in these contentions.
Speedy Trial 12, 1989, Appellant charged on September with four counts of of cocaine delivery and arrested the following day. Under Ark. R. 28.1(c) Crim. P. the state 28.2(a) had twelve months 12,1989, from him to triаl. September bring Trial was 18, 1990, set for June on all four counts. week One before trial asked for appellant trials a motion to separate by filing sever the four counts. The motion was considered at granted a pre-trial conference following day, June June 18 appellant was tried on single count. On July entered an order stating, “On motion of the defendant this matter 15, 1990, continued from August through 1990.” trial, second Appellant’s of this subject appeal, held on November fifty-one days beyond time for trial. the burden is on the state to show Consequently, was justified. Novak delay 741 S.W.2d 243 (1987). in this Appellant’s primary argument is that appeal
the trial court should have dismissed the remaining three counts for lack of a triаl. filed a se motion on Since'appellant pro ground on October has been properly preserved for review. At a hearing on the motion the trial court and opposing counsel discussed the at the June 12 proceedings hearing on the motion to sever and counsel for appellant stated he had no recollection of independent asking for a continuance. The deputy prosecutor responded:
BY PROSECUTOR, THE DEPUTY MR. HALTOM: Honor,
Your it’s the State’s recollection in this matter particular that due to the basis that the Defendant asked for a severance of these matters is why continu- Now, ance was granted. I agree Mr. Folsom [defense *3 there continuance, wasn’t a direct for but request counsel] themselves, trial by speedy rules when the Defendant asked offenses, for a severance of that tolls the statute. At that the trial court denied the motion and appellant was tried and convicted on the second count. We now address the he points raises in this appeal. true, contends,
It is as aрpellant that insofar as the order of 12 July purports grant to a continuance two beginning earlier, months it April conflicts with the holding Hicks v. State, 393, 808 305 Ark. S.W.2d 348 But the order is not otherwise flawed and when the sixty-nine days from June 12 to excluded, August 20 is appellant’s trial was within the time allowed under the trial speedy rules. See Ark. R. Crim. 28.3(c). P.
Appellant argues because no cоntinuance was specifi cally there requested, is no excludable time. But that would require an express recitation in an order be overridden by indistinct matter, recollections of counsel. For that the literal wording of the order does not state a that motion for a continu made, ance was only that “On motion of the defendant this mattеr is 15, 1990, continued from through August 1990.” The motion referred to be the motion sever. may to Be that as it itmay, is obvious the counts remaining could not be tried on scheduled, June 18 as and a in delay the trial attributable to the defendant constitutes “good cause” as in Ark. R. Crim. provided P. 28.3(h). The state was to prepared try on June appellant well within the time for trial and it was the speedy appellant’s sever, trial, eve of that occasioned the delay. motion filed held a number of times that when the defendant is We have for trial and the scheduled for trial within the time trial speedy defendant, “good because that is cause” to postponed State, Williams to the In delay. exclude time attributable 4 (1982), 275 Ark. 627 S.W.2d the defendant was tried trial and we days beyond good found seventy-nine for cause where his trial had been set November counsel to withdraw on defense moved October 17 because of defendant’s lack of That motion was cooperation. granted was given December and the defendant January until counsel, then until 2 to obtain trial February rеsulting a 20. postponement May
In Foxworth v. 549, 566 S.W.2d 263 Ark. 151 (1978), we rejected argument in these words:
There was no denial of a trial. The case was set trial well within the by time allowed Rule 28 of the Rules Criminal A Procedure. few before days the scheduled trial counsel, Foxworth assaulted his which led them to ask for permission to withdraw. The court’s action in ordering continuance to allow Foxworth to obtain other counsel was certainly a delay good “for cause” 28.3(h). within Rule In Walker v. 52, 701 S.W.2d 372 (1986), defendant claimed ineffective assistance counsel for failure to *4 argue trial. The trial court denied the claim because defendant had moved for an omnibus waived it hearing then later, fifty-five days reasoning that a trial mоtion would have no had merit. While we reversed that we it ruling, made clear we would have agreed with the trial if the motion for an omnibus had hearing delayed trial.
In
Divanovich v.
117,
on the defendant’s cause.” “good was for postponement bar, it is clear thе motion to to the case at Returning trial on three of the required filed one week before sever took exception rescheduled. If the appellant counts be four motion, the time his or wording granting of the order either the terms, him to it was incumbent on its express excluded under a reasonable of the trial court within that to the attention bring time, four months had A elapsed. until waiting nearly rather than objection when a belatedly timely not litigant complain may Ark. 729 v. Mfg. Hughes, could avert error. Butler Co. Ark. S.W.2d 6 (1987); S.W.2d 142 Tosh Custody Chain of of the crack custody Lewis also contends that the chain was not delivering cocaine he was adequately We disagree. established at trial. Crowe, officer, tеstified that she
Barbara an undercover August seven rocks of crack cocaine from Lewis on bought in an she labeling drugs envelope 1989. After and packaging Nix with Sergeant turned them over about an hour later to Don Nix testified he Sergeant the Miller Sheriffs Office. County filled out a chain of from Crowe and accepted envelope Aftеr he placed form which he attached to the custody envelope. in an evidence locker Nix notified Lieutenant Bob envelope evidence to the State Crime Page charge submitting who is Lab. that after Nix notified him he Page Lieutenant stated he, the retrieved the evidence from a locked locker that only filled Pagе Sheriff and Nix had to. testified that he Sergeant keys form, out into envelope his of the chain of evidence part placed taking one and mailed it the crime lab for larger analysis, the State Crime to the officehimself. Keith Kerr of envelope post receiving Lab he received the from the testified that envelope statiоn of the lab. He stated that the substance he analyzed Kerr, analysis cocaine based. resealed the after envelope of the lab to be mailed back to receiving returned it to the section Page the Miller Sheriffs Office. Lieutenant Bob testified County *5 had been in receiving that since it from the crime lab the evidence his in loсker until the date of the trial. the locked possession
265 We said have that the of the chain purpose establishing is to of custody introduction evidence which is not prevent 496, 809 authentic. Gomez v. S.W.2d (1991). 809 To state must show reasonable prove authenticity that the evidence has not been altered in signifi probability any Id. is not cant It for the state tо call way. necessary every person evidence; who could have come into contact conceivably his judge the trial in or her discretion need be satisfied only and, genuine evidence in reasonable presented probability, has not been with. Phills v. Ark. tampered W.2d S. Our review of record shows that the chain at custody which was established trial was sufficient to satisfy that the he judge genuine evidence exercised properly admitting his discretion in it.
Sufficiency the Evidence his For final Lewis maintains appeal, that the evidence was. insufficient his conviction support due defective chain of custody of the As drugs. has been demon- strated, the trial did not his judge abuse discretion allowing evidence, drugs admitted into therefore we need not address appellant’s final point.
Affirmed.
Dudley, Newbern, JJ., Brown, dissent. Justice, Dudley,
Robert H. dissenting. This court should require the prompt trial criminal cases. The majority opinion so, therefore, refuses to do I dissent. 1960’s,
In the
crime,
when an
accused was
with a
he
bond,
was often
tried;
released
and remained free until he was
later,
mаny times that was
(2)
two
years
(3)
sometimes three
later,
years
occasions,
and on rare
even
longer.
accused
usually
However,
pleased with such a system.
sometimes an
accused did
awant prompt trial in order to assure attendance of
witnesses,
his
or to ensure the
of his records or other
preservation
evidence, or to avoid a longer conditional release. Clearly,
however, the public and the
did
victim never
of such a
approve
system. A reform movement began. Its
was to ensure
prompt
of criminal cases. In 1968 the American Bar
Association
a draft
approved
of the Standards
To
Relating
*6
Criminal
Arkansas
court created the
Trial. In
this
Spеedy
Commission,
of its task was to
a
and
part
Revision
Code
trial. In
the
to
relating
speedy
standards
implement
the now
handed down
of
States
Court
the United
Supreme
which
(1972)
In 1975 Rule of Crimi- as the Arkansas recommendations Commission’s rules is entitled “Speedy Article VIII of those nal Procedure. article part: to that commentary provides Trial.” The “[T]he and the public how the interest of defendants concern here is with (Emphasis be determined and protected.” trial should in prompt Bar Associa- the American The Commission studied added.) commentary A of that provides: tion’s standards. part n of the standards in The most underlying principles defendant, of the this deal report primarily protection to force a prompt would not be in a position who otherwise disposition The in the public prompt trial. interest of cases, however, be recognized. must also criminal of Speedy defendant, as he may be of concern to the may defense, his to avoid want to the means of preserve proving or conditional long of period pretrial imprisonment release, and avoid a of long period anxiety public to From the out of the accusation. arising suspicion to necessаry preserve view of the trial is speedy public, maximize the deterrent charge, the means of to proving avoid, conviction, and to in some effect of prosecution cases, freedom by an extended period pretrial other flee, which time he commit during may defendant crimes, or witnesses. intimidate LaFave, Commentary, Standards R. Standards with Wayne 1967) added). Trial 5-6 Relating (A.B.A. (emphasis to Speedy that one we have written Similarly, accused, it is also to protect trial rule is to but that protect and, all, to serve the interests victim of the crime above perhaps See, 560, 683 S.W.2d Chandler v. public. e.g., trial is based The of the prompt concept sound upon public poliсy. only meaningful
The way ensure that public policy to discharge effectuated is an accused who is not promptly tried. A or a judge many who allows accused to be prosecutor persons will discharged long not remain in office. In this way prompt are criminal trials assured. majority amounts erosion of the opinion an *7 rule, its will us to
trial and set bаck the of precedent practices suffer, suffer, will twenty years ago. The accused the victims will suffer, the witnesses will the will and suffer. public case, In this was appellant (4) the four felonies 12, 18, 1990, 1989. Trial was set for September June well 11,1990, within the (12) allowable twelve months. On June the moved to sever four appellant (4) charges the have separatе trials. On June granted the trial court motion the to sever the charges and set of one the felonies for trial on scheduled trial date, time, June 18. The trial did not enter findings at that but later concluded that remaining (3) three cases could be time, tried at a later in later possibly because years, the motion for a severance necessаrily a motion implies for a continuance. The majority such opinion adopts reasoning and provides that a (3) continuance three (4) four counts was clearly necessitated by motion sever appellant’s the offenses and anis excludable The period. majority cites no opinion for authority such a proposition because there is none. The majority opinion’s that, holding law, as a implies matter of an accused cannot be tried for two different crimes before same panel jurors. law, There is no such statute or case and the is majority opinion wrong in so holding.
Once a crime, defendant is tried for one a judge can recall the panеl and select fair a and impartial petit from those jury times, members of the who did not panel hear the first trial. At a third petit can be jury selected. Under the majority opinion, judge trial must now wait until the next term of court and provide the accused with new complete If the in which panel. county charges counties, arise like most there arе two terms of only (2) has, court each year. If the trials proceed as the one now before us the first count will be tried at or around year; the end the first later, the second term, will be six tried months the third the next or (6) months, six more (6) and the fourth even six months later. obviously rule is of the and
The intent 1960’s. thwarted, practices back to the we are Therefore, I dissent. Justice, prosecu- The Newbern, dissenting. deputy
David wasn’t a direct request “There this case stated tor who tried “the trial court’s us admits State’s brief before continuance.” sever on Lewis’ motion to was based a continuance granting order the Trial that suggest State does not even offenses.” The Lewis moved for a that stating of July Court order correct, 15,1990, that is and yet effective April continuance can stand. opinion on which the leg majority the only - of the 51 sought any part that Lewis argue The State cannot here, less a continuance from at issue much day delay hold, I find no Even if we were to 1990. August so, sever was that the motion to doing whatever for authority continue, argues the State a motion to “tantamount” to court,” there suggesting a “term of 20 date was based on August been assembled to Lewis try could not have jury proof *8 does wisely The Court’s began. opinion until a new term of rationale, showing jury there has been no that not as adopt serving from the venire Miller could not have been empaneled the months in County during question. was demon- cites cases in which it majority opinion moving trial without for a
strated that a defendant
delayed
If
were any
There is no such
in this case.
there
proof
continuance.
motion caused the fatal 51-
evidence whatever that the severance
There is none.
this would be a different matter.
day delay,
Court. We should
Arkansas R. Crim. P. 28 is a Rule of this
As
its
as has been done in this case.
not seek to evade
application
1,1987, we amended the Rule to shorten the
as October
recently
be tried.
time in which
but set at
must
liberty
a person
the benefit of the
One
of the Rule is to assure an accused
Const,
v.
Mackey
art.
10. See
Sixth Amendment and Ark.
§
There are other
(1983).
279 Ark.
Brown, J., joins in this dissent.
Albert N. WOMACK v. Judy R. WOMACK
91-167
Supreme delivered November Opinion *9 Hoover, Babin, Jacobs & Storey, by: Joyce Bradley for appellant. P.A.,
Rice & Ogles, Ogles, John by: appellee. Hays, Steele Justice. When Albert Womack Judy divorced in 1985 $425 Albert Womack was ordered to per pay month Womack as Judy “in lieu her permanent alimony right to receive said amount as a prop- distribution marital