*1 and, has to make substan- failed accordingly, appellant corpus denied. showing of merit. Motion tial Baker Ray Earl Tonda Rodney TOWNSEND STATE of Arkansas CR 91-275 Court of Arkansas
Supreme delivered Opinion February *2 Jr., R. J. Defender, Simpson, by: Llewellyn William Public Marczuk, for appellants. White,
Winston Teena Gen., Bryant, L. Asst. by: Att’y Att’y Gen., for appellee. Holt, Jr., Earl
Jack The appellants, Rodney Chief Justice. Bаker, or breaking Townsend and Tonda were convicted of Ray entering, for which were sentenced to six they years imprison- ment, and theft of for which sentenced were property, they fifteen sentences to run consecu- years imprisonment. The are court of The case certified to this court from the tively. it involves breaking оf our statute on appeals, interpretation entering. 1)
Townsend and on appeal: Baker raise four of error points evidence was for either insufficient to support conviction wear 2) the trial in Townsend to court erred appellant; requiring 3) erred leg irons in the of the the trial court presence jury; AMCI definition of denying appellants’ proffered structure;” 4) court erred denying appellants’ trial
motion for a mistrial. We find merit second appellants’ argument and reverse and remand for new trial.
We must argu first determine the appellants’ sufficiency ment, though grounds. even we reverse on other See Harris v. We will also consider contentions their appellants’ concerning proffered jury instruction, as the issue arise on retrial. OF THE
SUFFICIENCY EVIDENCE Townsend and Baker made motions for directed timely verdict, both at the close of the State’s case and at the end of their own case-in-chief. argue the evidence was insufficient to They *3 the convictions and support breaking entering that our or statute fence, does not cover the or of a as specifically breaking entering word, defined under that statute’s use of the “structure.” We disagree with both contentions.
Ark. 5-39-202(a) Code Ann. (1987) states: §
A person commits the offense of or if for breaking entering the of purpose committing a theft or he enters or felony structure, vehicle, vault, safe, breaks into any building, register, machine, cash vending money product dispenser, money box, depository, coin coin safety deposit telephone, box, container, or other similar or apparatus, equipment. added.) (Emphasis Our criminal code not define the does term “structure,” it only provides the of the term specifics n structure,” whiсh is included in the offense of greater burglary. See Ark. Code Ann. 5-39-201 Law Dictionary Black’s § (5th construction, Ed. 1979) defines “structure” any or “any production or of work piece built or of artificially up composed parts joined together some definite manner.” That same structure, defines authority “fence” as “a or hedge, partition, ereсted for the of a of land. . . .” purpose inclosing piece (Emphasis added.) In of light statutory these definitions and our definition of breaking entering, which includes broadly any- thing boxes, from buildings to coin hesitancy we have no holding that a fence comes within the of the word meaning “structure”, as that term is used in the statute. evidence, itself,
As to the we find in the record support ample both convictions. to uphold the evidence sufficiency determining the
The test for the verdict. to support evidence whether there is substantial is a to enough compel be must forceful evidence Substantial conjecture. and beyond suspicion one or another way conclusion is which reviеw, that evidence to ascertain necessary it is only On and, evidence is substantial if there appellee favorable the most verdict, affirmed. Gillie must be finding the to support 296, Dale Mr. Howard August Around on midnight, went Shepherds by barking awakened his German white Chevrolet pickup front where he observed a to his porch Mr. Dale his house on Glenn Road. truck front of Colonel stop truck; one of tall and black from the them emerge saw two males short, shirt, wearing green a brown or wearing a red and the other The truck left. The two men crossed the street shirt. then Aimco Wholesale. Mr. surrounding walked south a fence along minutes, and, shaking in a few saw Dale observed the fence then onto Aimco He go property. men enter fence and with all-terrain observed men trailer loaded two pulling in the the trailer through they pulled vehicles a hole fence. After fence, men walked the outside of the fence through along time, crossed the Mr. Dale his at this backyard street. was in Mr. Dale observing parties through bushes. testified *4 thеre, standing by while the were a car came parties deputy’s men ditch until A minute or crept passed. into the the deputy later, the came Mr. two white truck back and them picked up. first Dale dialed 911 and a break-in when the men reported entered the fence.
Pulaski he Sheriff Mike Kesterson testified County Deputy Aimco 12:40 He saw a by aрproximately drove Wholesale at a.m. standing male side of wearing black a red shirt and shorts on the man, road, He three dusting his hands. came within feet of on, a white by. Continuing as Kesterson saw passed Deputy (which lot is in the area parked supply truck a farmer’s store truck, a Aimco) driver of the engine running. near with the The car, on, male, fell in headlights saw black turned his police The turned west sign. behind Kesterson at officer Deputy stop was and the truck turned and Kesterson Deputy continued east. to convey the police department low on fuel so he radioed running unit was “headed that his but was told that another “suspicions,” way.” car, Aimco his Kesterson returned to refueling
After Deputy Wholesale, men in holding officers were three whereupon police Kesterson identified Baker as the man their cars. squad Deputy man, Raglin, he saw the ditch and another Michael standing by the driver of the truck.
Officer Robert Lusk testified that he to a call responded a.m., a at Aimco regarding burglary progress about 12:55 recеived, on the information he Officer Lusk Wholesale. Based truck east on Colonel Glenn travelling followed a white pickup and, later, got Road few blocks the truck over. The driver pulled Raglin. out of the truck and identified himself as Michael The two identified themselves as Townsend and passengers appellants, a red shirt and shorts and Townsеnd wearing Baker. Baker was wearing a brown t-shirt. Wholesale, Mr. Don Thompson, The owner of Aimco testified the is enclosed a fence and that property completely by when he left were closed evening August gates on and locked. trial,
At
Raglin
charges
Baker and Michael
denied the
testified
and Townsend were
Baker to some
Raglin
driving
area,
when
were
over
apartments
they
pulled
by
police.
of witnesses lies within the
credibility
province
180,
S.W.2d here, circumstantial,
We though find the evidence largely was sufficient to sustain the convictions.
RESTRAINTS *5 The in argue requiring next the trial court erred appellants Townsend We leg jury. to wear restraints in the of the presence agree, and on this reverse basis. heard, he had court sated trial, of the to the bailiff
Prior stated Tоwnsend secondhand, that deputies, of the from one to place bailiff wished given opportunity. flee if would stating objected, attorney Townsend’s leg in irons. Townsend violation on a parole in the penitentiary was currently Townsend offense, conviction, a non-violent burglary a stemming from prior Ear- dangerous propensities. shown nо Townsend had and that hallway, down the lier, allowed to walk had been Townsend unrestrained, incident. without not it was stating objection,
The trial court overruled the in some risk, danger live always take the and that “we willing to be because hostage. just stymied a We’d getting inmate female stated option do The trial court another we couldn’t anything.” the court- or seven officers around police would be to six place room, court which be even more obtrusive. The trial would courtroom denied Townsend’s attorney’s request further was restraints brought wearing be cleared before Townsend or, alternative, not be restrained until in the that Townsend break, following left on voir dire. The triаl court conceded jury do made refused to past, that it had such an allowance but disregard so here. The trial court did offer to instruct to for determining guilt the restraints or innocence. purposes courtroom, through Townsend escorted into irons, the front door and after the was seated. wearing A second that Townsend allowed to walk back into request, be courtroom, unrestrained, closing instructions and prior was also denied. arguments, se,
It is not is prejudicial, brought when the defendant per case, v. (or, legcuffed), into a courtroom handcuffed in this Hill State, 77, 685 (1985), S.W.2d 495 and trial court take such reasonable as are to maintain order. See steps necessary Hоwever, P. Ark. R. Crim. 33.1. without our exception, almost decisions, restraints, prior in which we have the use of upheld have involved or who charged defendants with violent offenses behavior, engaged have See disruptive attempted escape. State, Hill v. e.g. supra (rape, aggravated robbery, kidnap v. Ark. ping); (1991) Gillie murder); Terry (capital fеlony State, 261 (1990)
S.W.2d 332 Johnson v. (aggravated robbery); *6 Furthermore, in a 183, (1977) (escape). 546 S.W.2d no evidence of cases, there was we noted that of these number the some of brief, by only sighting inadvertent but a anything State, 304 Ark. State, v. Williams v. supra; See Gillie jurors. State, v. Barksdale v. 218, (1990); supra; Hill 800 S.W.2d Here, we can 272, 499 safely S.W.2d 851 irons, through in goings leg comings Townsend’s and assume that did of the jury, in full presence courtrоom and the front door of the unnoticed. go not evidence to con- circumstantial there is sufficient
Although effect, if Baker, any, view the we should Townsend and vict both restraints, him parading of Townsend in that the placing of assessment jury’s have had might upon in front of the jury, for the two parties. punishment we call justice upon our criminal system, Under thе same in of and to assess findings guilt punishment make unless there is an (1987), 5-4-103 Ark. Code Ann. proceeding, § Ark. Code Ann. for bifurcation. See e.g. which is cause exception instance, received the each appellant 5-4-602 In this § breaking entering, for maximum sentence of six years theft of for range twenty years, out of a of five to years, fifteen conviсtion, burglary Townsend had a Although prior property. were not disclosed and both appellants this information was offenders. Obviously, placing as first regarded by restraints, trial and for no throughout compel- in Townsend reason, effect on the telling within full view of the had ling jury, assessing punishment. follows that in Moore reasoning
Our who testified (1989), where policemen railing normally were within the against the defendant seated We held that arguments. reserved for parties closing the maximum resulting jury gave clear prejudice Similarly, first offender. sentences for and theft to a kidnapping here, new trial for both warrants a resulting prejudice, appellants.
JURY INSTRUCTION retrial, we address appellants’ since it аrise on Lastly, their denying proffered that the trial court erred in argument The assertion is structure.” AMCI definition of meritless. received, giving trial, requested,
At the appellants criminal offense of the lesser included which defines AMCI *7 Ark. Code instruction, language which tracks the The trespass. find must the jury that the 5-39-203(a) (1987), states Ann. § the unlawfully upon entered or remained dеfendants “purposely instruction defines “premises” of another The person.” premises court The trial structures and real any property.” as “occupiable instruction, the definitions of including “prem- the entire gave and “enter or remain unlawfully.” ises” however, have
The that the should object, appellants on the definition of structure.” been instructed “occupiable read, vehicle, building “a or definition proffered pertinent part: other structure where lives or carries on a business or any person other where . . .” calling assemble. people court,
The trial the the defense all attorney and prosecutor, case; however, agreеd that the definition was not in this applicable that, definition, theorized if appellants provided fence, would recognize entering its to the of a and inapplication conclude that the other definition was “real only applicable the offense within property,” thereby placing criminal trespass. (The appеllants would also apparently hoped apply term, definition of structure” to the undefined “occupiable “structure” in breaking entering.)
The cases cited by the are irrelevant since appellants they involve instances which the trial court refused give Here, lesser offense instruction. the trial court instructed the jury on the lessеr included offense of criminal but refused to trespass, give clearly inapplicable definition of structure.” There is no error in an refusing instruction which have State, 67, misled or confused the Mosier v. jury. sum, S.W.2d In the trial court was correct in rejecting the proffered definition. II,
For the reasons enunciated in the case is reversed point and rеmanded for a new trial. JJ., Brown,
Corbin dissent. Justice, dissenting. I would affirm the Brown, Robert L. convictions. a trial ground second-guess
We tread on
when we
shaky
have,
recently
matters. We
said as
judge’s
security
decision on
on a defendant was appropriate
1990 that the use of restraints
See
v.
dangerous
when
conditions existed.
Clemmons
(1990); Terry
In Terry, ignored the defendant was disruptive judge’s warning that he return to his seat. There was a scuffle in front of the and the defendant was removed from the jury, courtroom in handcuffs. He for trial and returned subsequently was Again, convicted. we the use of the handcuffs under upheld these circumstances.
The United States recognized using Court has Supreme restraints for defendants where it is essential to maintain unruly order, and decorum in the dignity, courtroom. See Illinois Allen, 397 337 U.S. Our court has further held that it is not se for prejudicial per brought a defendant to be intо the courtroom in handcuffs. See Hill v.
S.W.2d (1985); Johnson v. 546 S.W.2d Johnson, In for the handcuffs were used example, because the charged defendant was with from the escape peniten and we affirmed tiary, their use. That is the issue in the precisely case before us. Allen, to
Subsequent Illinois v. this court supra, adopted Rule 33.1 of the Arkansas Rules of Criminal Proсedure:
Defendants and subjected witnesses shall not be to physical restraint while in the trial has judge court unless found such restraint to maintain reasonably necessary restraint, shall enter such orders judge If the trial order. Whenever therefor. reasons the case the record of into the in the witness occurs of a defendant restraint physical case, shall upon the judge jurors trying of presence instruct attorney or his the defendant of request assessing be considered is not to such restraint that determining guilt. proof of the discretion of restraints to leaves the issue The rule clearly reasonably restrain as is to who is authorized judge the trial order in the courtroom. to maintаin necessary case, in the state peniten- was an inmate In this Townsend conviction. for a burglary to a violation owing parole tiary bailiff that the defendant to the court’s Information passed have, as it should judge, This concerned the trial would escape. Townsend, in civilian who was dressed and he to opted place сlothes, to instruct the irons. He further offered leg or its have no on its assessment bearing proof this should counsel the rule Defense guilt, provides. determination of this. rejected one, have might
The case is a close and as trial I well judge the table and Townsend in irons after he was seated at placed regarding security view. casеs with the out of But close courtroom, better judge matters in the the trial is in a position evaluate the for than this court on danger disruption potential Here, danger a man incarcerated appeal. escape by already risk of in the state existed with the collateral penitentiary Plus, was informed that he hostage-taking. judge the trial intended to had no other choice than to take escape. judge *9 some I do his bounds. overstepped not believe that precautions. J., joins.
Corbin,