*1 282 of Arkansas v. STATE
Robert SMITH 671 S.W. 2d 595 79-200 CR Court Arkansas Supreme March 1980 delivered Opinion Achor, H. Defender, Phillips, John W. James by: Public Defender, Public Deputy appellant. Clark, Anderson, Gen.,
Steve Catherine Asst. by: Atty. Gen., for Atty. appellee. Fogleman,
John A. Chief Justice. was found Appellant 1977) of Ark. Stat. Ann. 41-2102 violation against force threatening by immediately employ store an of the Seven-Eleven at Betty English, employee Rock, Main, North Little with the Eighteenth purpose & theft, at the time. having gun committing possession years’ imprisonment. He was sentenced to term us to reverse two judgment upon asks grounds. that the court says denying erred considera- *2 tion a by of verdict of not a jury by excluding of an instruction him. find portion requested by We no prej- udicial error and affirm.
There only was not substantial evidence that appellant crime, committed the but took the witness stand and testified that he had committed and that he time, was armed at the but said that he was under in- drugs fluence of and had been beer. He said drinking that he force, never used it at pulled weapon pointed the “girl,” or even to her represented that he had the weapon or that he would kill her if she give didn’t him the He money. said that when she began “hassling” him about the money, leave, he was about but looked out over the fog the win- dow and saw the of a top car. He said that he police did not see a police officer approaching gun him with a riot until that officer had jumped out the car and had opened the door. store, said that he retreated into the took out of his weapon britches and a it on stack of put cans because he it, did not want be found with knowing exactly what the officer would do if he had been seen with it in his hand. He said he had gone into the store to rob it but that he was caught before he could out and get he never took the money outside the front door.
He also testified on direct examination that he had been convicted of prior grand felonies—burglary and larceny, assault with intent to rob and armed robbery. He said he that, knew because stand, he had taken the witness the jury was going to find out about these prior convictions and that he could have avoided the them, jury’s knowing about if he had not taken the witness stand. He that some explained prior convictions were “just neighborhood type situations” in which the alleged victims also went to the penitentiary.
Appellant stated he knew the jury going to find him but that he couldn’t plead guilty because he wanted jury that, decide his sentence. He told the jury because offender, he was an habitual he would not be eligible for were, to serve “whatever would have others but parole the time of at employed that he had been get.” explained got drinking “goofed again but up” the “incident” day on the taking drinking Valium and and had been it is arguments, evaluate appellant’s In order to properly did he Not we his trial strategy. that consider necessary sentence, he fix his jury decided to let the testify that he had deciding of 12 comfortable with said that felt more out leniency pointing also made a plea “on me.” He drug drinking had but had problem, conquered that he he had been treated He told the problem. *3 this information Virtually for abuse. all state alcohol hospital direct examination. given during was his is attorney (who trial closing argument, appellant’s with a statement that attorney opened not his on appeal) the jurors is reminded the that at policy*” the best “honesty only the he had told them that there were beginning of case decided, i.e., Smith was of guilty two issues to be whether robbery or of criminal to commit aggravated attempt the extent of the to be punishment imposed. pointed and one, find- the but that the fifth jury options out that had five not was an He said that ing actually of not guilty, option. to make the fit asking punishment Smith was the only jury not him loose.” He said that Smith was the crime but “to let guilty. retired, presence,
After the
in Smith’s
attorney,
jury
him to
to
argue
advised the court that Smith had instructed
the
on the fact that Smith was in
jury and base
defense
offense,
store,
but not
fact
and was
of some
guilty
attorney’s
state-
Smith confirmed
that
attorney
argue
ment and
he had advised the
said that
not
but that
was in
guilty
aggravated robbery,
he was
“going
robbing
fact
guilty
place.”
form of
submitted to the
provided
verdict
aggravated robbery,
or not
findings
guilty
guilty
aggravated robbery,
criminal
commit
robbery,
attempt
“criminal
The trial
told the
attempt
robbery.”
judge
guilty
the form for not
disregard
that it could
he was
because Smith had admitted
he was
then stated that
not
something.
attorney
Appellant’s
jurors
sure
he understood the
comment about “the
judge’s
that
that
judge
what.” The
there
disregarding
responded
was
and that a not
guilt
criminality
an admission
objection
verdict should not be considered
No
jury.
by
judge.
was made to either statement
now
argues that the
commented
judge
evidence,
effect,
and in
directed a verdict of
The at-
guilty.
be
an
torney’s inquiry
objection
cannot
transformed into
appellant would have us do. He would
ignore
also have us
fact that he made no objection, on the ground
plain
that
error
committed,
was
relying on Ark. Stat. Ann.
43-2725.2
§
Arkansas,
1977)
307,
Camp
U.S.
92 S. Ct.
We have no
error”
Camp certainly
“plain
rule and
does
one. We
require
do not take
43-2725.2 to mandate such
a rule. Just
fewa
months ago—long after the
adoption
that section of the statute—we held
an
barred
arguing
from
a point not
an
in
objection
supported by
the trial court. We overlook a failure
object
the trial
court
when the
error is so
great
trial
judge
*4
under a duty to correct his own action
and when
immediately
objection
no
or admonition could have
damage
undone the
erased the effect of his error from the minds of the jurors.
State,
Wilson 261 Ark.
Appellant correctly contends that the statements of the judge were a comment on the evidence and his action tanta- mount to a directing verdict of aggravated robbery or a lesser included offense. The error was beyond harmless a reasonable doubt. A declaration of error is not certainly to necessary avoid a clear Nor it miscarriage justice. would mandate a reversal. The trial judge’s statement no conveyed thought to jury the that was not to communicated it with greater potential impact by both and his attorney. objection an inconsistent with strategy trial
Appellant’s the verdict forms submitted to judge’s to the statements. did but guilty, of not finding still jury permitted was make strategy His deliberate not seek such a verdict. sentencing by in order avoid confession to judicial complain appeal. in no position He is judge. was not that the evidence has never contended Appellant that he was finding sufficient to support following refused the judge offered and the Appellant jury: instruction to the in which the
You not consider trouble any prior must for any purpose been involved Defendant have is as a witness. It credibility assessing other than give will to the weight what you you for as jurors say each witness. testimony is admis- convictions argues prior here evidence of the attacking credibility sible for the purpose the state. when evidence offered witness. That is true convictions, to his testified as voluntarily prior credible, that he was not showing for purpose with his honesty for the jury but the purposes impressing his eligibility the fact that emphasizing and sincerity on account of these convic- would be parole postponed entitled to the he was not tions. Under these circumstances instruction, use is correct. The even if it requested about its cor- casts considerable doubt “prior words trouble” rectness. error, is af- judgment
Since we find no reversible firmed. JJ., dissent. Purtle,
Hickman *5 Justice, was on Purtle, dissenting. Appellant John I. not guilty entered a plea trial for aggravated charge and was tried before jury. criminal robbery, the offenses of includes robbery necessarily aggravated to commit and criminal attempt robbery attempt Therefore, to commit there were four possible guilty verdicts which should have been by jury. considered
Ark. Stat. Ann. 1977) states: (Repl. §§ 41-2102/2103 A
41-2102:(1) commits if he person robbery commits as defined in section 2103 robbery (§ 41-2103) and he:
(a) armed with a weapon, represents or word deadly armed; or conduct that he is so or inflicts (b) or inflict death or serious attempts physical another injury upon person.
(2) Aggravated robbery is a class A felony. A 41-2103:(1) if person commits with the pur- theft pose committing a or im- resisting apprehension thereafter, mediately he or threatens to im- employs mediately employ physical force another. upon (2) is a B Robbery felony. class
Therefore, before a person may be convicted of must or threaten im- employ mediately employ physical force another AND upon person be armed with a deadly weapon armed; or he is represent so or, or inflict to inflict attempt death or serious inquiry upon another person. Physical is defined in force Ark. Stat. Ann. 41-2101 1977) as:
“Physical restraint, force” means any bodily or impact, confinement, or the threat thereof.
Did appellant admit or did the evidence show that he employed threatened to immediately employ physical force another upon person? do think so. The appellant stated:
“At no time when I was inside the store did I use any *6 force to use ... any physical force or threaten
physical that’s what got drinking; exactly and goofed up again trouble, I’m in but I didn’t take I know happened. store, I wouldn’t to hurt try out of the anything . . I was Valium. That was the taking . that nobody day beer. . . .” drinking I was but I was also drug taking, fact The above makes it a testimony certainly question or threatened to use force. If whether the appellant employed he neither used force nor threatened to immediately physical not guilty use force another was upon person, fact, he would not be guilty robbery his testimony absent such force or threat of force. Certainly, be uncontradicted. though is not even it undisputed There is no contradicting independent testimony in statements contained the record before us. jury may not have believed word of single testimony, but appellant’s right give it was their as little or as duty testimony much as choose. The court took the weight they completely and, effect, facts from the in a verdict of away jury; directed when guilty aggravated robbery the verdict forms were be- ing read This event occurred after the verdict on jury. robbery given, and the court stated: “All right, ladies and gentlemen, it’s time you retire to the room and consider verdict. . . The your first one says:
We, defendant, Smith, find the Robert Jury, guilty charged the in- formation. verdict,
If that is your then foreman will your sign here for the foreman. The place rest these are lesser included offenses ... If find you
We, the find Jury, aggra- Robert Smith vated
You can disregard that. Mr. Lee has admitted that he So, of something. disregard guil- can that not you verdict.” ty
The court then the proceeded finding to instruct on guilty or not as to criminal for attempt robbery, for criminal attempt my opinion, argument enough is broad to include appellant’s argument of insufficiency finding evidence to support
At the conclusion of the court’s verdict instruction appel- lant’s attorney stated: Honor, Court,
“Your if it I’m not sure I please comment, understand the I don’t know about the jurors what.” disregarding
These words not be in the best form for an objection, but they do at least question correctness of the court’s instruc- tions and comments. This have meant the inquiry may attorney could not least, believe what he had heard. At the very the court should have considered the just remarks he had made. later, For reasons stated I not do believe an objection I feel this error was necessary. of such magnitude that no objection was necessary. I feel the trial court was under a duty correct his mistake immediately, and the error was so prejudicial that justice could not be served a continuation of the trial after such a mistake. This amounts to what I call error.” “plain
Ark. Stat. Ann. 43-2725.2 (Rep. 1977) states: §
A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is Constitution, contrary the laws of Arkansas any reason determines that the did not have a fair trial. Where appropriate, Court Supreme shall reverse the conviction and order the appellant discharg- ed. cases, In all other affirmed, the conviction must be but the sentence of the be appellant may reduced if it is deemed excessive. a conviction
Thus, 43-2725.2 that stated clearly it is § the Supreme ordered when and a new trial be reversed shall the Constitu- contrary the conviction Court finds that Arkansas, or for other reason tion, any State the laws of the trial. We do did not have a fair the determines that statute because above have to base decision not Arkansas, Art. The Constitution authority. is higher there states: to matters regard not with charge juries shall Judges fact. . . . provision
I do feel that the above constitutional paper. are merely pieces laws the State Arkansas *8 that the agree how can trial majority cannot understand evidence, the con- which violates commented judge stitution, to directed a verdict still precedent, uphold which is to all contrary the conviction. am, time, in the unwilling myself
I least at this to seat at box, done, has and pass upon I believe the majority doubt There is no in guilt my or innocence an accused. case, have voted juror mind that I been a in this I would had of the to convict the of one offenses. Perhaps, but, it would would be have voted robbery; have for me to heard some evidence use necessary force or force. in the record or Nothing the threat missing ingredient. this majority opinion supplies
There part is at least a on another jury question is whether or aggravated robbery charge. jury question That not the had the to commit the necessary purpose 41-203(1) offense. Stat. Ann. defines Ark. 1977} as: “purposely”
A his conduct or a person respect acts with purposely in when is his conscious object engage result thereof it a result. conduct of that or to cause such nature I think there is at a fact whether the least question
291 mind; all, after requisite appellant possessed purpose he testified he was on Valium and beer.
We have
held a
court
trial
direct a
previously
verdict of
for the offense is
possible
when
penalty
State,
425,
imprisonment. Collins v.
183 Ark.
Failure to an instruction has been improper before this Court several times. Such failure to spontaneously object an erroneous instruction was discussed State, Court Wilson 261 Ark. Dancy] 552 S.W. [& (1977) 2d 223 wherein we stated:
We will take this action the error when is so only great that the trial court was under correct it im- duty and no or mediately objection admonition could have undone the damage erased the effect the error from minds the jurors. Not did the court fail to take action to any undo the error, but he also sent this error with the into the jury room. This instruction error was before the constantly jurors *9 until they had with the complied court’s indirect instructions to convict the appellant of aggravated robbery. We have held toit be plain error for the court to comment during Smith, their deliberations. Bell 304, v. 223 Ark. 265 S.W.2d 709 In comment (1954). Bell the of the court concerned the a eligibility of obtaining convict a parole. my opinion, such comment did for a However, call properly reversal the case. that comment was small compared the one in the present case. I can think of no instance where greater harm could be done than the combination of the remark of the court and a withdrawal of the not guilty verdict form. If no objection were Bell, required certainly none is required in the present case.
It is fundamental our system government that an accused is presumed be innocent until he is found guilty.
292 guilty, is that the accused instructs the
When court violated. been has principle this record to no evidence in is earlier that there stated alone let conviction
support making the majority I fear directed verdict. warrant a will later us mistake, which all of a mistake grievous a new trial. remand for Therefore, I would reverse and regret. DICKERSON, NATIONAL Jr. UNION H. Cecil LITTLE ROCK
BANK OF 2d S.W. 677 80-32 Arkansas Court of Supreme March delivered Opinion