Barnum v. State, CR
| Decision Date | 03 March 1980 |
| Docket Number | No. CR,CR |
| Citation | 268 Ark. 141,594 S.W.2d 229 |
| Parties | Glenn BARNUM, Appellant, v. STATE of Arkansas, Appellee. 79-190. |
| Court | Arkansas Supreme Court |
John W. Walker, P. A. by James P. Massie, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.
Appellant Barnum was sentenced to a term of 20 years for aggravated robbery and a term of 24 years for attempt to commit capital murder after trial to a jury, which found him guilty of those offenses. He seeks reversal on the ground that the trial court erred in denying his motion for a mistrial. The motion was based upon the return of a verdict by the jury which appeared to be a finding of not guilty but which provided for a sentence to a term of years. After the motion of appellant's attorney for a mistrial was denied, the trial judge directed the jury to return to the jury room and continue its deliberations and decide what it wanted to do or what it had done. Since we find no abuse of discretion in the denial of the motion, we affirm the judgment.
When the jury first returned to the courtroom, after more than an hour of deliberations, the trial judge asked the foreman if the jury had reached a verdict. When the judge received an affirmative answer and was told that this verdict was unanimous, the foreman, at the judge's request, handed the written verdict to the clerk, who immediately handed it to the judge. The judge promptly stated that the verdict seemed ambiguous and unclear. Then, as he was directing the jury to return and reconsider, appellant's attorney asked to see the verdict. It was after the attorneys were permitted to examine the written verdict that the judge directed the jury to take the verdict back, read it, give it to the foreman and make a decision as to what it wanted to do and what it had done. When he asked if there was any objection, appellant's attorney moved for a mistrial. The judge denied the motion and directed the jury to return to the jury room and continue its deliberations. Three minutes later the jury returned to the courtroom with the verdict upon which the appellant was sentenced. Before the verdict was handed to the clerk, the judge asked the foreman if the jury had reached a verdict and received an affirmative answer. The judge then asked whether the verdict spoke what the jury originally had in mind and the foreman responded affirmatively. The verdict was then handed to the clerk and read by the clerk at the judge's direction. It was in proper form but the judge, on his own motion, directed that the jury be polled. Each juror then stated his name and the words, "This is my verdict." The judge then asked, "Anyone to the contrary?" When appellant's attorney wanted the jury interrogated further, the judge asked the jury whether it was the intention of any member of the jury, when it first returned from the jury room, to return a verdict of not guilty as to either count. Each member of the jury then responded, "No," or moved his head. The judge then asked if it was correct that the verdict returned reflected the jury's verdict, and each juror moved his head or answered, "Yes."
Of course, we do not have a reproduction of the verdict as it was first brought to the courtroom. It is obvious from the colloquy among the judge and the attorneys that the jury had been provided with a form of verdict with a statement that it found appellant guilty of one charge and fixed his punishment at a term to be determined by the jury and then a statement that the jury found the appellant not guilty of that charge followed by the same statements as to the other charge. It is also obvious that the jurors, or their foreman, had filled in the blanks following the statements that appellant was guilty of each offense with a term of years to be served but that the foreman had signed his name under the lines stating that appellant was not guilty. Although the state contends that the foreman signed both the form showing a finding of guilty and that indicating a finding of not guilty, we cannot be sure of that from the discussion. The judge properly found the verdict ambiguous.
A mistrial is a drastic remedy and resort is to be made to it only in cases where prejudice cannot otherwise be removed. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612; Limber v. State, 264 Ark. 479, 572 S.W.2d...
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