Arkansas Criminal Appeals

The recent run of weeks with a few reversals is over now.  However, the past two weeks have included a couple of decisions to affirm that have some controversial holdings by the Court.

Whisenant v. State involved an issue regarding attorney-client privilege.  Appellant was convicted of three counts of forgery.  One of the counts was first charged to another woman named Jane.  Appellant called Jane’s attorney and said that she was the one that forged the check and then proceeded to ask what her liability for the crime could be.  Jane’s attorney promptly provided this information to the prosecuting attorney’s office, which then dropped the charges against Jane.  The issue on appeal arose when Jane’s attorney testified at trial that Appellant called him and confessed to the forgery.  Appellant objected on the basis of attorney-client privilege and the trial court overruled because Appellant never hired Jane’s attorney.  Although it is debatable whether there was a true intention to seek legal advice, the Court’s language in the decision was so broad to prevent standing to someone to assert attorney-client privilege if they do not hire the attorney.  This decision has enormous ramifications.  It is daily in the criminal defense world that persons charged with crimes consult with attorneys and admit their guilt prior to retaining the attorney for representation.  It would be difficult for an attorney to advise the client of how they would handle the case or possible liability before being hired if the statements the client makes would be admissible in court.  This decision is one in which the Court spent too little time refining the rationale for the decision, which could lead to catastrophic results for us in the real world. 

BTW how many attorneys would be willing to testify about a confession on a phone consultation?  I sure wouldn’t and I can’t imagine that attorney gets much business after this gets out.

Also, in Jones v. State, the Court found that the Confrontation Clause was not violated by the admission of a lab report without the presence of the analyst because the analyst was not demanded in accordance with A.C.A. 12-12-313.  Appellant argued that because the State had the analyst on their witness list that there was no need to demand her presence.  The Court ruled that Appellant failed to demand the analyst’s appearance and waived any confrontation issues.  I have to wonder if this was a ploy by the State to prevent Appellant from demanding the analysts presence or if they canceled her presence after no demand was made.  Ultimately, would the analysts presence have made a difference? No.  But it’s a lesson to all to make sure and always file a formal demand to cross-examine the analyst.

The Court of Appeals issued one criminal reversal in Jacobs v. State.  In September 2010, the trial court gave Appellant a sentence of five years probation for simultaneous possession of drugs and a firearm.  At a revocation hearing on November 2010, Appellant was given a total of 35 years in ADC.  Appellant challenged the sentence on the grounds that the sentence being revoked (the probationary sentence) was illegal because probation is not allowed for simultaneous possession.  The Court of Appeals then vacated the revocation and reversed and remanded the underlying sentence for a new sentence. 

One can only imagine that the trial judge will find a way to simply give him the 35 years on the underlying charge at re-sentencing.  Not to mention any resentment from the judge in getting reversed for trying to be too lenient to Appellant.  As the saying goes, “No good deed goes unpunished.”

For the first time during the new sitting of the Arkansas Court of Appeals a decision came down for the defense.  In fact, three wins were had by the defense.

In Everetts v. State, the supervisor of children services had reported that there were no findings that the child was abused.  The judge ruled that the finding was not allowed in the criminal case because it essentially usurped the jury’s function.  The supervisor disregarded the judge and stated that there was no finding of abuse.  The State moved for a mistrial and the judge granted it over defense counsel’s objection.  After the trial, defense counsel moved to prevent a retry on the grounds of double jeopardy.  The circuit court denied defense counsel’s motion.  On appeal, the standard is whether the mistrial was of overruling necessity.  Finding that an admonishment would have sufficed, the Court of Appeals reversed and dismissed the case.

Stribling v. State did not result in a complete reversal; however, it does teach one thing – courts cannot order conditions while in prison.  The judge ordered a mandatory drug program during incarceration, which is an illegal sentence.  Although a judge may order conditions post-release, he may not order conditions while in prison.

In an extremely divided court (5-4), the majority found insufficient evidence to support the conviction of Robert Thomas for theft by receiving.  The only evidence introduced at trial to support that the conviction was possession of the stolen firearm and previous felony convictions.  The decision rested on whether a presumption of knowledge that the item was stolen applied.  There is a presumption of knowledge that the item was stolen if the item was recently stolen.  The question became whether 8 months was recent.  The majority declared that it was not and Thomas’ conviction was reversed and dismissed.

Well another week at the Court of Appeals means another set of victories for the State.  This week there were only three criminal cases decided and I have to admit there is no room to disagree on these decisions.

In Conley v. State there were some decent sufficiency arguments advanced concerning an alleged delivery of controlled substance.  The argument could have had some teeth based on the failure of the officers to really identify Conley or his vehicle because of the rain.  Additionally, the audio recording did not have any incriminating statements.  Unfortunately, counsel failed to make specific enough motions for directed verdict and consequently the Court of Appeals can’t address the argument.  As a side note, the best case for insufficient evidence in a delivery case is Donnie Ray Slater v. State.

Fischer v. State was an Anders brief.

Johnson v. State involved a probation revocation.  The arguments on appeal were the failure to hold the hearing within 60 days and the failure to notify the defendant of the violations.  The Court of Appeals held that these arguments were waived because they were not argued before the lower court.

The Court of Appeals has another week consisting of zero criminal reversals.  There were 8 criminal cases with 1 being rejected for failure to include the jury verdict form or order for extension of time to file the record (Goldsberry), 3 based on revocation appeals (Grissom, Jones, Miller), 1 for failing to properly appeal within the time limitations from District to Circuit Court (Risner), 1 involving an unpreserved ineffectiveness claim (Stevenson), and 2 others with some merit.

In Halliday, the Court of Appeals dealt with 2 sufficiency challenges and a Wicks challenge for an incorrect jury instruction on a lesser included offense.  The appellant was convicted of Sexual Assault in the First Degree.  The State used the theory that the appellant was in a position of trust or authority over the victim.  In affirming, the Court noted that the victim stated that she trusted the appellant and her father also said he trusted the appellant.  The problem with the opinion is that the Court has once again punted at defining “position of trust and authority.”  The statute does not say that someone trusted the appellant, but rather, that he must be in a position of trust or authority.  I think this is a very important difference the Court fails to account for; nevertheless, the evidence may be sufficient regardless of the interpretation used.  Additionally, the appellant was convicted of sexual indecency with a minor based upon a different timeframe of alleged sexual assault.  There were two problems with this conviction.  First, sexual indecency requires solicitation.  The victim and appellant testified that except for their first sexual encounter (well prior to the timeframe alleged), the victim had initiated each sexual encounter afterwards.  Therefore, there was no evidence the appellant solicited any sexual encounter during the timeframe alleged.  Second, the next challenge was under a Wicks exception based on instructing the jury of sexual indecency of a minor when it is not a lesser-included offense to sexual assault in the first degree.  Obviously, this was not worthy of a Wicks exception but it makes for good grounds for a Rule 37 Petition.  Although, the Court of Appeals would not even admit that sexual indecency isn’t a lesser-included even though it requires multiple elements that sexual assault in the first degree does not.

The next case of some import was Porter.  Appellant was convicted of delivery of constrolled substances on two separate occasions.  Testimony for the State included the CI and officers involved in the buys.  Appellant took the stand in his own defense and stated that he only sold drugs once.  The State impeached him with his prior convictions for delivery of a controlled substanced.  Appellant objected when the State asked if the two prior offenses and current offenses were “for the same thing.”  The Court of Appeals declined to say whether this was improper questioning (although it is) and instead rested its decision on the failure to show prejudice, overwhelming evidence, and curative instruction given.

Today at the Court of Appeals the State won all 10 criminal appeals.  The issues were 6 sufficiency challenges, 1 Anders brief, and 3 other challenges.  The only decisions that really merit any discussion at all were McElroy and Armstrong. 

In McElroy, the appellant challenged the latitude given to the Prosecutor in voir dire to essentially fact qualify the jury.  While the Court of Appeals would have affirmed regardless, the appellant failed to preserve the argument when he both failed to ask for any admonitions or relief on objection and stated that the jury was acceptable for the defense.  The appellant cannot challenge the voir dire if he then accepts the jury as satisfactory.  See Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006).

In Armstrong, the appellant challenged the sufficiency of the evidence in that the accomplice’s testimony was not sufficiently corroborated.  However, the argument was not preserved because the directed verdict motion below was not on this basis.  The lesson is to make sure the directed verdict motions are specific to each and every lesser-included, each element, and each basis that will be challenged on appeal.

Another set of Wednesday decisions and the Court of Appeals issued 4 criminal decisions and all four were affirmations of the trial court.  In all fairness the decisions were all extremely easy sufficiency challenges.  Hopefully next week they will end the streak and rule one for the defense.

Changing gears, this blog will start issuing a tip of the week and a past decision of the week.  The decision might be one that was extremely well written, very important, worthy of some rethinking, or just easy to criticize.

It was the theme of the day over at the Court of Appeals today:  Affirmed.  The Court did not reverse any cases this week.  This is their first week of decisions after the summer hiatus.  The Court probably decided to get the easiest decisions out-of-the-way this week as they get back into the swing of things.  They handled a few easy sufficiency arguments today in Cash and Evans. 

The only substantive decision today was in Kellar.  In Kellar the appellant argued that a misdemeanor conviction was erroneously allowed into evidence during his sentencing hearing.  Appellant argued that he was not represented by counsel in the misdemeanor case; therefore, it could not be allowed into evidence.  The Court of Appeals ruled that it was not being admitted to prove an habitual allegation; therefore, whether the appellant was represented by counsel was irrelevant.