Rule 37 Hearings Almost Mandatory

11 05 2016

In two recent cases the Arkansas Supreme Court has reversed the trial court for not conducting hearings on Rule 37 petitions alleging ineffective assistance of counsel.

In Robert Lee Sandrelli v. State, 2016 Ark. 103, the appellant raised three arguments for ineffective assistance of counsel. First, the attorney had resigned as managing public defender and was under emotional and professional stress.  Second, the attorney failed to call any witnesses on Sandrelli’s behalf.  Third, the attorney unilaterally decided that Sandrelli should not testify.

On the first issue, the Court affirmed the trial court because Sandrelli did not argue how the attorney’s stress caused him to under perform at trial.  However, the Court agreed that a hearing was necessary on the last two issues.  The Court noted that calling witnesses is generally a matter of trial strategy; however, even trial strategy must be reasonable.  Here, there was no testimony to support the notion that the failure to call witnesses was reasonable trial strategy.  On point three, the Court failed to address why it was granting a hearing, but presumably did so for the same reasons as point two.

In Trozzie Lavelle Turner v. State, 2016 Ark 96, the appellate argued that trial counsel failed to argue that a speedy-trial violation should have resulted in a bar to prosecution.  The trial court failed to hold a hearing; instead, simply stating that the time to try the case was chargeable to the defense, not the State.  The Arkansas Supreme Court held that the record was insufficient to demonstrate that the argument had no merit and remanded for a hearing on the matter.



Sexual Indecency of a Child Clarified

11 05 2016

The Arkansas Supreme Court recently issued an opinion affirming the dismissal of a case alleging sexual indecency with a child in violation of A.C.A. 5-14-110(a)(4)(C).  The question of law revolved around the meaning of the phrase “another person.”  The statute provides that “a person commits sexual indecency with a child if . . . with the purpose to arouse or gratify his or her sexual desire or a sexual desire of another person, a person who is eighteen (18) years of age or older causes or coerces a minor to expose his or her sex organs to another person, and the actor is . . . the minor’s guardian.”

The question presented to the court was whether “another person” meant someone other than the guardian.  Essentially, to violate the statute, does the guardian have to cause the minor to expose his/her sex organs to someone else or can the exposure be to the guardian?  The Court answered that the statute required the exposure be to someone other than the guardian.

In State v. Billy Coble, 2016 Ark. 114, this had enormous consequences.  The charges were dismissed against Coble because he was the minor’s guardian and was the individual that allegedly caused the minor to expose her sex organs.  If Coble had caused his daughter to expose her sex organs to another person, then he would have been guilty; however, because the exposure was to himself, he was not.

Justice Danielson wrote a dissent and called the majority opinion “strained” and “nonsensical.”  Regardless, Coble would not have been able to be retried because of double jeopardy protections.

Recent lessons from the Arkansas Court of Appeals

20 02 2014

There are two lessons from recent decisions regarding the practice of criminal law in Arkansas.

First, in Keisha Gregory v. State of Arkansas, the circuit court dismissed the defendant’s appeal to circuit court from district court because she failed to appear at a pre-trial hearing.  The Arkansas Court of Appeals noted that A.C.A. 16-96-508 does not permit the dismissal of an appeal to circuit court for not attending a pre-trial hearing.  The law only permits the dismissal of an appeal to circuit court for not attending trial.  Circuit courts in this state frequently dismiss appeals when defendants fail to attend the first setting in circuit court whether it was because they did not receive notice or simply chose not to attend.  This case again reiterates that there is no basis in the law for doing so.

Second, in Joe King v. State of Arkansas, the Court made it clear that merely requesting a mental evaluation will not preserve the issue for appeal in any real sense if the trial court denies an evaluation.  The Court made it clear that it would expect the defendant to file a notice of intent to rely on mental disease or defect.  In addition, the Court of Appeals seems to desire some explanation of the reason counsel desires a mental evaluation in the event the request is denied.

Lesser Included Instructions Not Given – Reversal

20 02 2014

In Shaun Washington v. State, the Arkansas Court of Appeals reversed and remanded for a new trial because the trial court did not give an applicable lesser included instruction.  Washington was accused of battery in the first degree for causing injury to his infant’s head.  The doctors for the State testified that the injuries were caused by abusive head trauma.  The doctors for the defense, along with the defendant, testified that the injuries were from the defendant accidentally dropping the infant.  The jury convicted the defendant of battery in the first degree for purposefully causing serious physical injury.  The trial court refused to offer the jury the possibility of choosing battery in the third degree, which requires proof of recklessly causing injury.  The Court of Appeals found that a reasonable juror could have believed the defendant acted recklessly in dropping the infant; thus, the Court of Appeals found error in not instructing the jury on battery in the third degree.

Forfeiture presumption does not apply to dog sniffs

20 02 2014

In $70,000 v. State, the Arkansas Court of Appeals reversed the trial court for applying a presumption in a forfeiture hearing.  Under A.C.A. 5-64-505(a), State has the ability to claim any money that is used or intended to be used in a transaction involving illegal controlled substances (subject to a few exceptions).  In deciding whether the money should be forfeited, the legislature has created a rebuttable presumption in favor of forfeiture that applies if the money is in close proximity to the illegal substances.  The trial court applied the presumption in this case; however, no illegal substances were ever found.  The trial court relied on a drug dog alert on the money to invoke the presumption.  The Arkansas Court of Appeals relied on the plain language to insist that there had to be actual drugs in close proximity to the money to invoke the presumption.  Thus, the case was reversed and remanded for a new determination.

State of Arkansas v. Marcus Rackley – Conflict of Interest

4 02 2014

The Arkansas Supreme Court reversed and remanded for a new trial the case of Marcus Rackley.  Rackley was convicted of rape, incest, and a variety of other sexual offenses.  He and his wife retained an attorney to represent them both.  This common scenario became a problem at trial when the trial court permitted witnesses to testify about what Rackley’s wife told them.  Rackley’s wife had explanations that she could have provided the jury about those statements; however, the attorney advised her to invoke her 5th Amendment rights to protect herself.  In doing so, she prevented the jury from hearing any explanations for those statements.  Thus, the incriminating statements were used to convict Rackley.  The Arkansas Supreme Court ruled that the attorney protected Rackley’s wife instead of Rackley, which created a conflict of interest.  


Justice Corbin’s dissent in State v. Lard

4 02 2014

Jerry Lard was sentenced to death after killing a police officer that begged for his life.  The State introduced everything bad imaginable about Lard during the trial.  The trial court admitted the evidence to rebut the mental disease or defect defense and show Lard actually had antisocial personality disorder.  The State claims that antisocial personality disorder is a medical way of describing someone who is mean.

While the majority affirmed the conviction and sentence, Justice Corbin wrote a stirring dissent.  Justice Corbin called for the trial courts to start actually looking at the probative value versus risk of unfair prejudice.  Justice Corbin noted that in this case there was an avalanche of prior bad acts elicited concerning Lard.  The State introduced evidence of statements evidencing a lack of remorse and tattoos of graveyards and “hell bound.”   Justice Corbin, while not disputing the possible relevance, noted that such evidence cannot possibly be nearly as probative as it is unfairly prejudicial.

Three questions loom large from this case.  First, is the State now always going to be able to use all prior bad acts in cases where antisocial personality disorder has been diagnosed?  Such an implication would be devastating to mental disease or defect cases.  Second, it is unclear why Justice Corbin chose to reverse the sentencing phase only.  If the prior bad acts were improper at any point it would seem to have been the guilt phase.  Nevertheless, I would prefer him to take a stand at sentencing phase than none at all.  Third, it appears that Justice Corbin and Justice Hannah have been seeing cases similarly early in 2014.  They have now dissented together in two cases this year.  They have both been highly critical of trial courts for not properly evaluating 404(b) and 403.  Hopefully they can pull a couple other justices their way and put some substance back in those two rules.