*1 484 pain that she
infection, experienced to the extent or pleurisy, he was by saying her inquiry from answered breathing, and then administered a something pain, her going give a person, risks to such he knew involved medication that involved. her of the risk advising without of Arkansas al STATE Ronald MATTHEWS et Dean 2d 598 S.W. CR 79-162 of Arkansas Court Supreme 28, 1980 delivered Opinion April Rehearing denied June *2 Bristow, Robert Morehead and Bill for appellants. Anderson, Clark, Gen., Asst. Catherine Atty. by:
Steve Gen., for appellee. Atty. 27, 1977, Fogleman, On October Justice. A. Chief
John fil- District Eleventh Judicial Attorney for the Prosecuting in which the the actions which instituted ed the informations taken, were entered. which this from judgments, appeal Matthews, Johnnie Lewis Ronáld Dean All the appellants, Thomas, James Andrew Houston Pucilowski and Ronnie theft degree prop- with first charged escape, Wise were Matthews and offenders. being habitual erty, kidnapping The charges charged degree battery. Thomas were with first 19, 1977, occurred October arose from incidents which from Cummins escape when the attempted *3 were They of Correction. of the Arkansas Department Unit 26, All found guilty March 1979. trial on of being and theft of degree kidnapping first escape, property, reversal, viz: They points habitual offenders. list two I IN THE CONVICTION THESE CASES BE REVERSED AND DISMISSED SHOULD OF APPELLANTS’ BEING DENIED BECAUSE AND STATUTORY THEIR CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL.
II TRIAL IN NOT THE COURT ERRED TO TAKING SAFEGUARD MEASURES TO TRIALS APPELLANTS’ RIGHTS FAIR FROM BEING INFRINGED UPON BY PRE-TRIAL REGARDING PLEAS OF GUILTY PUBLICITY TWO FORMALLY ENTERED BY OF APPELLANTS.
I rights contend to a Appellants their of one violated reason of the lapse period year, one of the alleged five months and week between date trial, offenses date of and one and five months year between the filing charges the date of trial. The follow- ing additional of events chronology will con- helpful sideration of this case: 3,
October 1977. term October of Jefferson
Circuit Court commenced. 6, December 1977. Pamela Baxter of the firm of
Morehead Associates appointed represent all of the appellants. 30, December 1977. waived Appellants formal
arraignment and entered pleas of not guilty. March 1978. March term of Circuit
Court of Jefferson County commenced.
July 1978. All charges were set for
trial. July 1978. Pamela Baxter moved that *4 cases be continued
because she had a previous setting in the civil division the Circuit Court of Jefferson County, which March, had been made in 1978. 19,
July 1978. Continuance was granted
because conflict defense counsel’s schedule. 2, October 1978. October 1978 term of Jeffer-
son Circuit Court com- menced. 16,
January 1979. Cases were set for trial 8, 1979.
February Cases of Pucilowski 25, 1979. January 26, set for March Wise were 1979. of Matthews Cases 1979.
January set March Thomas were
26, 1979. term Jeffer- March
March 1979. com- Court
son Circuit menced. for dismissal Oral motion 1979. March made made. Matthews also motion for dis- a written Both were based missal. assertion upon denied had been were and both trial denied. the con- upon oral motion for dismissal was based The more was because prohibited tention that trial of appellants filing intervened between the than two terms of court had that, It because alleged and the date of trial. was charges was made without their approval the motion for continuance consulted, not being they and without their and, as a thereby occasioned chargeable with the delay two, three, result, but of court had passed not terms only for dis- ground to trial. No other before account of denial of a speedy missal or basis for bar trial on The basis for loss of or mentioned. invoked Matthews jurisdiction by alleged by the Circuit Court end of second him Court” “bring the failure *5 hav- allege He did having jurisdiction. term of the court for months him against detainer him caused ing lodged and and constituted cruel to remain under armed supervision rights in violation of constitutional punishment unusual of the United States. guaranteed him Constitution by 43-1708 Ark. Stat. Ann. Appellants rely upon (Repl. § outset, and that their 1977) point Rule 28.1. At the we out reliance Ann. It was upon misplaced. Ark. Stat. 43-1708 § Article VIII of the Arkansas Rules of Criminal superseded by 1977). Procedure. Ark. Ann. Vol. 4A Stat. These rules (Repl. this court Per Curiam Order entered adopted by 22, 1975, 1976, 1, December January to be effective on pur- 1971, suant to Act 470 of and with this court’s harmony constitutional control over all superintending trial courts. Act 470 specifically authorized this court to prescribe rules of or practice procedure with to all respect any proceed- ings 1979). criminal cases. Ark. Stat. Ann. 22-242 (Supp. § Section 4 of the act all provided that laws conflict with such rules shall be of no further effect rules after such have taken effect. must, we
Consequently, in order to determine whether rights appellants under Arkansas law violated, have been resort to the rules invoked by appellants. They Rule rely upon 28.1(a), which is a of Article VIII. part That rule provides charged that one for any offense and com- a jail mitted to or in this prison brought state shall be to trial before the end of the second term of the having court jurisdic- offense, tion of months, but not to exceed nine from the 28.2, time provided in Rule excluding such periods of necessary delay as are authorized in Rule 28.3.
Appellants were discharge not entitled to under Rule 28.1(a), as they might have been under Ark. Stat. Ann. 43- § State, as construed in Fulton v. 178 Ark. 12 S.W. 2d see, State, (But 777. Leggett 231 Ark. 250.) 328 S.W. 2d The consequences of a failure to trial brought within the time allowed under Rule 28.1 (a) are set out in Rule 30. An incarcerated defendant not to trial before the run- ning that time is not entitled to discharge, absolute as he might have been under Ark. Stat. Ann. 43-1708. He en- § titled to be recognized and released order appear, the time for his trial is then computed pursuant Rules 28.1 (b) 28.2. Obviously, could not have been released from custody under the commitments under which were held they at the Cummins Unit of the Department Thus, Correction. had right to be brought to trial *6 from the time of court the third full term end of before the 28.2, necessary such of excluding periods in Rule provided (b); Rule 28.1 Wade Rule 28.3. See in delay as are authorized State, 2d 231. 571 S.W. 264 Ark. v. does not charged were term in which
The State, Wade v. full terms is required. The expiration count. Therefore, the October 1978 March only the supra. trial to had when appellants full terms passed 29, 1979, 1979 term of the Cir- a of the March on March day was within the third which County, cuit Court Jefferson after were filed. charges full term not in when are they say are also error Appellants to the con- with attributable chargeable the excluded period that this motion They allege in this case. granted tinuance do or consulted. We being without their approval made their know- not the facts are with reference to know what in which their ledge predicament ap- of the motion or the days counsel found herself. She filed her motion three pointed been The of a case setting after the case had set. previous should, did, precedence. which she was trial take counsel a continuance on this judge grant It proper from resulting The a continuance ground. period delay is an at the of the or his counsel granted request defendant 28.3, excluded trial rules. Rule period applying speedy This rule a clear Arkansas Rules of Criminal Procedure. occasions, one, there will be such as this on which recognition that continuance, seek a defendant’s will be a attorney compelled made, not of his own If a a provision because situation. such honor defendant an who was represented attorney required or who was setting case) a of another criminal prior (perhaps ill, trial, would, order he be a be given temporarily counsel, adequately trial without or without put prepared convicted, defendant, a if substitute counsel. Even such though would be entitled to a new trial on account of ineffective probably counsel, be worse off than he assistance he would probably would have been in order that he be by suffering delay might counsel, who regular his represented by presumably prepared not for the trial. We have indicated that such should See, court, exclude full if can avoided. State term Lewis, also, 2d 697 See Rule (1980). 268 Ark. 596 S.W. 27.3, Arkansas Rules of Criminal Procedure and Commentary, *7 Article VIII.
Appellants also advance an unpersuasive argument
that
trial,
they were denied a speedy
or that a different construc-
rules,
tion should be
our
put upon
when the factors of Barker
Wingo,
U.S.
92 S. Ct.
The rules set out in Article VIII of the Rules of Criminal Procedure were an effort to more define precisely what con- stitutes a trial” in the “speedy interest of accused of persons crime and the and in public clear recognition of Barker v. Wingo, supra. We that there perceive may be a denial of one’s right constitutional to a speedy trial after period delay shorter than those under permitted Rules but a much stronger showing would be prejudice than necessary that made here to overcome the presumption that a time within the prescribed limits of these rules meets con- stitutional requirements.
The United States Court Supreme made it clear in quite Barker that unless there is a that is delay presumptively pre- judicial, there is no reason to inquire into the other important factors. The here was not presumptively prejudicial interests, and the showing of prejudice to the of appellants protected by provision the Sixth Amend- ment to the Constitution of the United States was not suf- ficient require to a dismissal of these charges.
II failed to protect trial court Appellants argue that two of relating to the fact publicity them from newspaper trial, them, Wise, prior just days three Pucilowski and prosecut- offered bargain attempted accept plea withdrawn. later ing This attorney. acceptance reveal is not adequate of the record abstract Appellants’ contention, has elected supply of this but the state the basis abstract supplemental some of the deficiencies. The state’s alleging pretrial made by appellants discloses the motion due to have process had made it for them impossible publicity the Fifth the law under equal protection *8 States Constitution. Fourteenth Amendments to the United given escape the publicity Reference was made therein to and to engaged were to have been alleged which appellants of them to agreement plead the the two given publicity taken from the Arkansas submitted articles guilty. Appellants Commercial, them Gazette Pine Bluff but neither of and the abstracted, so we assume that these articles were cannot were so and se that inflammatory prejudicial appellants per relief. entitled to
The dire of the objection prospec- was made before voir dire jurors, judge tive but was not heard the trial until by voir had been the the trial ruling objection, In completed. few of noted that the voir dire indicated that a the judge had not formed jurors had read the account but prospective or, least, an at had that those seated stated opinion, would arrive at a decision based the evidence entirely upon dire, submitted and law them. The voir the as unto given state, which the this fin- strongly supports was abstracted by per- The stated that he had read the articles ding. judge offers to amazed to see taining guilty to the plead that information disclosed them was ob- apparently through tained an with trial counsel. Be interview appellants’ quash that as it the trial denied the motion to may, court selected, holding informations and to that quash jury fair appellants being by pretrial not a trial deprived publicity. now that the court should have
Appellants quashed say selected, which, course, would have caused jury did not bringing Appellants further them to trial. venue, enough change think of their contention to request and the not record us would warrant supplied certainly change jurors Few of were even venue. ask- prospective ed about their with the so publicity, familiarity pretrial counsel must not have been with the appellants’ impressed idea that by jurors could not receive a fair drawn from the served. panel Only jurors two seated over of these appellants’ objection. recognized One case from pretrial but said that he would be able to publicity, his base verdict entirely what he heard the court- upon room, uninfluenced he by what had read about the case. The other was unsure about his recollection of facts in the alleged case from what he had read said that he could “divorce” information, himself from that listen to the evidence it, presented make a decision “it saying from wasn’t a trial in the paper.”
Appellants have to show simply failed merit in this any point reversal.
The judgment is affirmed. *9 J., concurs.
Stroud, Mays, JJ., Purtle dissent. Justice, Stroud, John F. disagree I with concurring. the court’s interpretation of Article VIII of the Arkansas of Rules Criminal Procedure as those rules to a pertain defendant awaiting while incarcerated in the Arkansas Department of Correction (more commonly called the state penitentiary) State, In Wade another offense. 264 Ark. 571 S.W. 2d (1978), 231 the rules interpreted to mean that a de- fendant incarcerated in the state would receive a penitentiary speedy trial if is tried he before the end of the third full term of court. To this reach result the court cited 30.1(b), Rule also cited in the and held that majority opinion, the of provisions Rule 28.1(a) to a defendant held in applied jail trial, pending but not to a defendant in the state penitentiary. The relevant of the portion latter rule provides: in circuit court an offense charged with
Any defendant be in this state shall or a jail prison and committed to of full term of the second the end to trial before . . . (9) nine months court, exceed but not to the added.) (Emphasis the is defined Rules by neither term
Although Procedure, in Third New Webster’s jail defined Criminal for the confine- building as a (1961) Dictionary International offenses, as for minor custody held in lawful ment of persons for the imprisonment defined as an institution prison when felonies. In 1875 crimes or persons major convicted — Ann. 46-701 46-706 Ark. Stat. legislature adopted §§ the construction detention 1977) authorizing (Repl. council, to as a were referred such facilities by city facilities as facility refers to the attendant The statute also city prison. have fallen houses,” archaic and but both terms are “watch is contained language disuse. More contemporary into — 1977) adopted 46-1209 (Repl. Ark. Stat. Ann. 46-1201 §§ detention facilities standards for criminal setting jails, Penitentiary, county refers to “the State which I think clear- holding units.” jails, and municipal temporary municipal jail or ly “jail” county “prison” means the state penitentiary. means case, case, con- by reaffirmed this has
The Wade now 28.1(a) Rule to mean “jail strued or as used in prison” so the month limitation county municipal jail, or the state already peniten- does not defendant apply the de- This trial rules causes of the tiary. application by the rule governed fendant in state penitentiary on bail before the end of (trial free applicable persons rule court), applicable third full term of rather than jail (trial or persons county municipal incarcerated in a court, but not to ex- the end of the full before second term *10 This unfair for the months). blatantly ceed 9 construction in his Byrd out dissent pointed Conley reason Justice A in the penitentiary deprived the Wade case. state prisoner due to a good of earn time” for behavior right “good he trial for another hold order him while awaits placed offense.
I concur in the rather than majority opinion result it, be arbitrary dissent from because believe this rule should I by formal to the Arkansas Rules amendment changed date, rather Criminal Procedure with a effective subsequent Wade by overruling than case decision applying retroactively. Purtle, Justice.,
John I. dissenting. Appellants arrested on October while already con- Procedure, fined Arkansas Rules of prison. Criminal Rule (a) (b) 28.1 provide:
(a) defendant Any charged with an offense in circuit court and committed to a or jail this state shall prison to trial before the end of the second full term court, months, of the but not to (9) exceed nine from the 28.2, time provided Rule excluding only periods such as necessary delay are authorized in Rule 28.3. (b) Any defendant charged with an offense in circuit bail, court and held or otherwise set at liber- lawfully ty, shall be brought to trial before end of the third 28.2, full term of court from the time in Rule provided excluding such periods as necessary delay are authorized in Rule 28.3.
It is (a) obvious the clear language Rule 28.1 required the appellants to be long released before the trial date unless there was some to the exception rule which prevented such release. They were brought to trial on March 1979. This is almost a year (17 a half months) after their arrest. Both two full terms of court and nine months had expired long before they were tried.
Periods excluded from the above-stated rule are set out in Rule 28.3. great There are a number of holding reasons for a prisoner beyond the period set out in 28.1 above. In addi- tion listed, number of reasons the final reason is “other periods of delay good cause.” It does not appear any of the reasons enumerated caused great in this case shown, nor is a good cause in my opinion. *11 has been nine months provision
It to me that the appears overlooked, factor in this case. The controlling it is the and If, 10, as 1978. the July would have expired nine months was entitled prisoner merely the majority argues, given was an additional as and the court treated released them, would have also After expired. that try period term 2, 10, on October 1978, October term commenced the July 30 and the Oc- September The 1978 term ended 1978. March 2, March 1979 on October 1978. The tober 1978 term started Therefore, one full term on March 1979. term commenced expired. months had period of court after nine expired excluded, what to be baffl- The terms of court continues 17, 1977, were arrested October ing is the fact that appellants 14, 1978, which was and trial not even set until ten July was months the date of arrest. Even a continuance though after October, was not reset until granted January was the trial 1978, six for the and 15 months from months continuance setting date of No reason is for the given arrest. a surely trial date con- granted after continuance resetting tinuance not extend rein to avoid the does free trial date time the foreseeable future. during at any
It is
unfair about a
something manifestly
obvious
half,
which
held a
rule
will allow one man to be
year
not be
trial when we have
prison,
speedy
denied a
held
months in
held that another man
for seven
previously
State,
See Alexander v.
denied
trial.
prison
Lewis,
and State Ark.
I am me in authorized to this Mays, joins state dissent.