Arkansas Criminal Appeals

There was not much law made good or bad this week at the Court of Appeals.  All of the issues were pretty straightforward and easy decisions for the Court.  Unfortunately, all of them were easy decisions in favor of the State.  The State won all 10 criminal decisions.

Not surprisingly, the lone exception I take with the opinions comes from Pamplin v. State.   Pamplin was written by Judge Abramson.  The appellant argued at trial that the prosecuting attorney should not be permitted to inform the jury about parole eligibility because it was not relevant and the prosecuting attorney did not know what he was talking about.  On appeal, the appellant argued the information was improper and misleading.  Judge Abramson found the argument to fall within the rule against changing argument on appeal.  I do not agree.  I think this is an extension of the same argument.  It might be said with more legalese but it is the same argument.  Granted, I think the same result would be reached regardless.  However, I cannot support a judge going out of his or her way to avoid having to address the merits of a case.

The Arkansas Court of Appeals affirmed two cases, dismissed one, and ordered rebriefing in two.  The failure in the two that were affirmed were that there were no contemporaneous objections. 

In Chestang v. State, the Court of Appeals simply restated the longstanding principle that directed verdict motions must be made to elements of the lesser included charges to preserve a challenge to the sufficiency of the evidence.  This is the most commonly made error by trial counsel.  In addition, the appellant argued that allowing an officer to testify why the appellant was a  maximum security inmate was reversible error.  The only objection made at trial was that the answer was not within the personal knowledge of the officer.  It was in fact within the personal knowledge of the officer and the trial court correctly permitted the testimony.  On appeal, the appellant argued the answer was hearsay.  The Court of Appeals refused to address this argument because it was not presented to the trial court.

The Court of Appeals had affirmed 36 appeals this year and only reversed one going into today.  The Court of Appeals made a significant jump in ruling for the defense with two cases resulting in charges dismissed.

In Eagle v. State, the Court of Appeals reversed and dismissed Eagle’s conviction based on a violation of speedy trial.  Eagle was arrested February 7, 2008, and tried on February 24, 2011.  Clearly more than 365 passed from arrest to trial, but the State argued that after the excludable time was accounted for it did not amount to a speedy trial violation.  It came down to an event where the trial court was setting trial and announced a January date.  Defense counsel responded that he had a conflict with that date and the Court then set it for February.  The State argued this was excludable because it was defense counsel that caused it to be moved to February.  The Court held that the trial court could have set for earlier in January, December, or even November and the time was properly charged to the State.  Consequently, Eagle was tried 11 days over the 365 day limit.

In Dorsey v. State, the Court of Appeals addressed another extremely rare scenario.  Dorsey’s 10 year imposition of sentence was revoked based on a sale of drugs.  At the time Dorsey received the 10 year suspended imposition of sentence he also plead guilty to 3 class C felonies for which he received concurrent 6 year suspended imposition of sentences.  Dorsey claimed that he plead to the 3 class C felonies to have the State nolle pros the Y and that he was never given 10 years suspended imposition of sentence on that charge.  The plea statement and documents by the trial court were unable to prove that Dorsey voluntarily plead guilty and received a 10 year suspended imposition of sentence; therefore, he could not be revoked because there was nothing to revoke.  The Court of Appeals dimissed the revocation.

I’ll start with the good news today from the Court of Appeals.  They made an obvious reversal in James v. State, which was the first reversal by the Court of Appeals this year.  The police, based on a tip by a confidential informant, pull up to Appellant’s vehicle and block her in to investigate the vehicle for drugs.  The police immediately informed Appellant of why they were there and asked if there were any drugs.  Appellant indicated there were drugs.   It was undisputed that the officers had not given her Miranda warnings; therefore, the only question is whether she was “free to leave.”  Obviously not.  It is unbelievable that the trial court found the statements admissible in this situation.  Hopefully, this win for the defense will start the ball rolling in their favor.  But I won’t hold my breath.

The other good news is that in Mitchell v. State the Court of Appeals held that the turn signal statute only required using the signal if other traffic may be affected.  The bad news for the day is that based on this case other traffic always might be affected.  Here, there was no traffic behind Appellant and the only traffic in front of Appellant was the officer.  The officer, in his rearview mirror, saw Appellant turn without using his signal and pulled him over.   The Court of Appeals noted that the officer and the trial judge misinterpreted the law when they determined that the law always required the use of a turn signal; however, the Court of Appeals ultimately determined that the officer might have been affected by Appellant’s failure to use the signal.  HOW???  How can you affect someone in front of you when you turn off the street?  Especially in light of the fact that the officer did not testify that the turn affected him.  Another ridiculous decision by the Court of Appeals that will hopefully get corrected by the Arkansas Supreme Court, but again I won’t hold my breath.

Normally, I would say the Court of Appeals won’t rule for defendants but today I say can’t.  None of the cases presented any issues with merit.  So again, the State wins another six cases and the defense has yet to get on the board in 2012.  That would mean that in the month of January there were no defense wins. 

There were additionally two cases ordered for rebriefing.  It is almost becoming an epidemic with attorneys appointed on appeals to have their briefs rejected for addendum or abstract failures.  Arkansas should move to a system of merit to be on the appointment list to prevent having attorneys slowly learn how to handle appeals from their one appointment a year.  For the person with his life on the line it probably does not feel too reassuring.

All of the decisions from the Arkansas Court of Appeals this week went for the State.  It improves the State’s record for the year to 8-0. 

Benton v. State had the only dissent of the week.  Benton was convicted of second degree forgery and theft by receiving.  He recieved an astonishing 60 years in ADC.  The issues on appeal were simply sufficiency of the evidence on each of the two charges.  On the thefty by receiving it was a unanimous court affirming the verdict.  However, the Court was divided 4-2 on whether the accomplice had sufficient corroboration on the forgery charge. 

Cooper v. State, Duncan v. State, and Walker v. State all involved arguments that were not preserved for appeal. 

Plessy v. State involved several issues on appeal.  Several of the arguments on appeal were not properly preserved below.  The final arguments involved a dying declaration, a mistrial, and prejudicial photographs.  The Court correctly found that none of these arguments had any merit.

The first decisions of the new year were uneventful.  There were truly only two opinions that required much of an opinion from the Court.  Also, today marks the beginning of the Arkansas Criminal Appeals blog page “Statistics” that will keep track of the number of reversals and affirmations from the Arkansas appellate courts.

Wofford v. State – affirmed because sufficiency of the evidence challenge was not properly preserved by his trial attorney.

Daniels v. State – easy affirmation of the sufficiency of the evidence.  Appellant contested his 50 year conviction and sentence for possession of methamphetamine with intent to deliver.  Appellant claims that even though he fled from the police, threw the methamphetamine from the car, previously sold methamphetamine, and his wife testified that he was the one selling the methamphetamine that was in the car, the evidence was insufficient.  Clearly there was plenty of evidence to support the conviction.  Appellant also complained that he was not given a continuance to hire a private attorney.  Appellant failed to even name a private attorney he desired to retain.

It certainly is not an exciting week of decisions from the Court of Appeals.  There was an Anders brief, 3 rebriefings ordered, and 3 wins for the State.

Dotson v. State is a entertaining read but has a bad ending.  Dotson was given 2 yrs in ADC and 8 yrs SIS for possession of marijuana with intent, which seems extremely harsh.  During his period of SIS he was charged and pled guilty to 3rd degree domestic battery without counsel.  A petition to revoke his SIS was filed.  At the hearing the parties announced that they were ready and the State attempted to introduce a copy of Dotson’s conviction on the domestic battery 3rd charge.  Dotson’s counsel properly objected and the State moved for a continuance to get the victim to court to testify.  The judge granted the continuance saying that the State was only kidding that they were ready.  Dotson was revoked at the hearing with the testimony of the victim.  Dotson claimed the continuance was an abuse of discretion and violated his right against double jeopardy. 

The Court of Appeals held that it was not an abuse of discretion to grant the continuance because Dotson cannot show prejudice.  The Court also found it not violative of double jeopardy rights because double jeopardy protections do not apply to revocation proceedings.

On a positive final note, the Court did not issue an opinion on Villagran v. State, despite the fact it was submitted 3 weeks prior.  This gives me some hope for a dissent or reversal.