Bell v. State, CR

CourtSupreme Court of Arkansas
Citation757 S.W.2d 937,296 Ark. 458
Docket NumberNo. CR,CR
PartiesJ.C. BELL, Appellant, v. STATE of Arkansas, Appellee. 86-180.
Decision Date10 October 1988

Sandra Tucker Partridge, Benton, for appellant.

David B. Eberhard, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

The appellant was sentenced to life without parole after being convicted of capital felony murder. He makes nine arguments for reversal. Finding no prejudicial error, we affirm the conviction.

This case is quite unusual in that we are considering the direct appeal some fourteen years after the conviction. Meantime, the appellant filed a petition for relief pursuant to A.R.Cr.P. Rule 37, which was denied by the trial court after a hearing. The denial of the petition was subsequently affirmed by this court. See J.C. Bell v. State, 269 Ark. 85, 598 S.W.2d 738 (1980). The appellant then took action in the federal courts which resulted in the present direct appeal in this court. See Bell v. Lockhart, 795 F.2d 655 (8th Cir.1986).

The parties to this appeal have been presented with many obstacles in obtaining a complete record. Some of the proceedings were never recorded. To add to the problem in this case, the Jefferson County Courthouse burned on April 28, 1976, and the court reporter died on April 21, 1986. Pursuant to Ark.R.App.P. Rule 6(d), the trial court held a hearing in August, 1987, to settle the record on appeal.

The appellant was charged with first degree murder in an information filed on February 11, 1974. An amended information was filed on March 20, 1974, five days before trial, charging the appellant and two others with capital felony murder.

The first argument presented for reversal is that the appellant cannot obtain an adequate record to properly pursue this appeal, and is therefore entitled to a new trial. The exhibits which were introduced at the trial were burned in the courthouse fire, and there are no transcriptions of hearings held on several pretrial motions. (The entries on the docket sheet clearly establish that hearings were held on some of these motions and the record does contain a transcription of the hearing on the motion to suppress the appellant's confession.) Additionally, the opening statements and closing arguments were not recorded.

We do not consider the absence of these materials to be prejudicial to the appellant. The exhibits are adequately described in the transcript which has been lodged in this court; moreover, with the exception of the hearing on the motion to suppress, no one recalls anything about the hearings held on the other motions. At the time of appellant's trial, Ark.Stat.Ann. § 22-352 (Repl.1962), required that if either of the parties or the court wanted these proceedings recorded, a request must be made at the time of the proceedings. Neither the court nor the parties requested that these hearings and arguments be recorded. (This statute was omitted from the present code.) Meantime, we have held that the responsibility of keeping a complete record is that of the trial court. See Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982). Even so, the attorneys for the parties cannot abandon their responsibility as officers of the court to assist in preserving the record of the proceedings for review.

The record in this case is adequate to inform us of what transpired at the hearings and the trial. It was not the fault of either the state or appellant that the exhibits burned in the courthouse fire. The case is most unusual in regards to the record, but we hold that the appellant has not demonstrated prejudice resulting from the state of the record. See Johnson v. State, 289 Ark. 589, 715 S.W.2d 441 (1986); and Williams v. State, 275 Ark. 356, 629 S.W.2d 302 (1982).

Bell's second argument is that there was insufficient evidence to convict him of capital murder. On appellate review we view the evidence in the light most favorable to the appellee. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984).

The appellant's confession was introduced at the trial. An accomplice, Timothy Armstrong, testified that he drove the appellant and a third party to the crime scene and then drove them away after the robbery. A witness testified that he saw two men enter the store where Mr. Allen was killed about the time of the murder, that one of the men was wearing a big black hat, and that the two men exited the store by a side door. The witness' wife called the police, who came to the scene and found Mr. Allen's body. Another witness testified he heard strange noises coming from the victim's shoe shop and noticed two men leaving the store at that time. A third witness testified that he observed a vehicle fitting the description of Armstrong's vehicle parked near the scene. Three men were in the car when he first observed it, and two of them subsequently got out and went into Mr. Allen's store and returned about fifteen minutes later. This witness also said one of the men was wearing a big black hat. A fourth witness testified that he saw a vehicle fitting the same description parked on a street near the store with a man sitting in it.

When the appellant was picked up shortly after the crime was committed, he was wearing a large black hat and had a .38 caliber pistol in a shoulder holster. Two empty shells and four live rounds of ammunition were in the pistol at that time.

The pathologist testified that the victim was killed with two gunshot wounds to the head and that the injuries were consistent with .38 caliber pistol bullets. The state's ballistic expert testified that a bullet removed from the victim's head was from a .38 caliber pistol. The test on the bullets fired from the appellant's gun were inconclusive due to the mutilated condition of the bullet taken from the victim's body.

Aside from the appellant's confession and the accomplice's testimony, there is substantial evidence to support the verdict of the jury.

For his third argument, the appellant contends that the trial court erred in denying his pretrial motion for a continuance and for his commitment to the Arkansas State Hospital for a mental examination. The motion stated "[t]hat the defendant intends to raise the defense of insanity both at the time of the commission of the alleged felony and at the time of trial, and that he hereby requests this court to order an examination by the Arkansas State Hospital for nervous diseases ...." The trial court refused to grant a continuance. The request for commitment was effectively denied because instead of committing the appellant to the Arkansas State Hospital, a fully staffed hospital in Little Rock, the trial court ordered either of two medical doctors at a local mental health clinic to examine the appellant to determine if there were reasonable grounds to believe the appellant was insane. See Ark.Stat.Ann. § 43-1301 (Ark.Code Ann. §§ 16-86-102 through 105 (1987)). It is undisputed that the appellant was not present for the hearing on this motion, if such a hearing was in fact held. The appellant contends that holding a hearing on the motion in his absence was prejudicial.

We have long held that an accused has the privilege of being present in person and by counsel whenever any substantial step is taken in his case. Brown v. State, 24 Ark. 620 (1867); Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927). There are two very basic reasons for our holdings: (1) the right of an accused to be heard; and (2) the right of an accused to confront his accusors. The right to be heard and the right to confront are guaranteed by the Sixth Amendment to the Constitution of the United States. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Ark. Const. art. 2, § 10; Bearden v. State, 44 Ark. 331 (1884). In addition, the Due Process Clause of the Fourteenth Amendment gives an accused the right "to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). The United States Supreme Court recently stated: "Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 479 U.S. 1303, 107 S.Ct. 7, 93 L.Ed.2d 235 (1986).

In Faretta v. California, supra 422 U.S. at 819, 95 S.Ct. at 2533, in discussing the Sixth Amendment, the court stated:

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who must be "confronted with the witnesses against him," and who must be accorded "compulsory process for obtaining witnesses in his favor." Although not stated in the Amendment in so many words, the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the Amendment.

Of less importance, but still significant, Ark.Code Ann. § 16-89-103(a)(1) (1987) provides: "If the indictment is for a felony, the defendant must be present during the trial."

We have held that a substantial step in the case was taken in the absence of the accused, and reversal was required, when the names of jurors were placed in a box and witnesses were sworn and put under the rule, Bearden v. State, 44 Ark. 331 (1884); testimony is taken, Bennett v. State, 62 Ark. 516, 36 S.W. 947 (1896); instructions were reread, Kinnemer v. State, 66 Ark. 206, 49 S.W. 815 (1899); and the judge went into the jury room, Stroope v. State, 72 Ark. 379, 80 S.W. 749 (1904). A hearing on a motion for a continuance and for commitment to the state hospital in preparation for a possible insanity defense is a substantial step...

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