Berry v. State, CR

• Decision Date: 14 March 1983
• Docket Number: No. CR,CR
• Citation: 647 S.W.2d 453,278 Ark. 578
• Parties: Gregg BERRY, Appellant, v. STATE of Arkansas, Appellee. 82-114.
• Court: Arkansas Supreme Court

Page 453

647 S.W.2d 453

278 Ark. 578

Gregg BERRY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 82-114.

Supreme Court of Arkansas.

March 14, 1983.

James E. Davis, Texarkana, for appellant.

Steve Clark, Atty. Gen. by Michael E. Wheeler, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Appellant was charged with the crimes of kidnapping and attempted rape. The trial court appointed two attorneys to represent him. One had very little experience in the practice of criminal law while the other was described by the trial judge as "one of the most capable criminal lawyers in the whole area, both Arkansas and Texas." The attorney with limited criminal law experience visited appellant in jail once and then the experienced criminal law practitioner solely assumed appellant's defense. In chambers on the morning of trial, while the panel was in the courtroom, appellant filed a handwritten motion requesting that the lawyers appointed be dismissed alleging that: (1) the attorney handling his defense was related to a deputy sheriff; (2) he and the appointed attorney had a personality conflict; and (3) the attorney had visited him in jail only three or four times with the longest visit being 20 to 25 minutes. At the hearing conducted on appellant's motion he additionally argued that material witnesses had not been subpoenaed, that he wanted a different attorney appointed for him, and that he wanted a continuance. The proof showed that the attorney was not related to the deputy sheriff; there were no material witnesses who should be subpoenaed; and the appellant, who has a long criminal record, was the principal cause of the personality conflict. The attorney stated that appellant had advised him that he wanted to represent himself. The appellant's testimony regarding the length of time of the visits by the attorney was substantially different from that alleged in his handwritten petition as he testified that the total time was only 25 minutes. He admitted, however, that he had also talked to the attorney prior to trial by telephone. The attorney, whom the judge termed "most capable" stated that he was as prepared as possible because he had contacted all of the witnesses suggested by appellant but none of them would be beneficial to the defense. He stated that he had spent hours going over the prosecutor's file and did not know of any additional preparation to be conducted.

The trial judge repeatedly advised appellant that he could either be represented by his court appointed attorney or represent himself. The appellant refused to make that choice, demanding that the court appoint him a new attorney and grant him a continuance. At one point appellant stated that upon being granted a continuance, he would retain another attorney. However, after being reminded of his sworn affidavit of indigency he stated he wanted a continuance and the appointment of another attorney. The trial judge then ordered the trial to proceed with appellant representing himself and the appointed attorney sitting at the counsel table to advise him. The jury found appellant guilty on both charges and fixed his sentences at forty years for attempted rape and fifty years for kidnapping. The trial judge assessed the sentences consecutively. Jurisdiction is in this Court because of the length of the sentences. Rule 29(1)(b). We affirm.

Appellant contends that the trial court erred in forcing him to represent himself and denying a continuance. We find no merit in the argument.

The trial judge did not abuse his discretion in refusing to appoint another attorney. Competent counsel had been appointed, the trial had been scheduled and the jury had been empaneled. Once these factors have occurred, the trial judge, in deciding whether to appoint a new attorney, must also consider the need for orderly court administration and the public's interest in a suitably prompt trial. Appellant was thoroughly acquainted with the court system, the nature of the charges against him and his rights. There is no indication he was incompetent. There was no valid reason given for dismissing appointed counsel. Very few, if any, defendants could be brought to trial against their will if a "personality conflict" with an appointed attorney was a valid cause for dismissal of an attorney. The trial court's requirement that appellant either allow the appointed attorney to represent him or represent himself was proper under the circumstances. See Burton v. State, 260 Ark. 688, 543 S.W.2d 760 (1976).

Similarly, the question of whether a continuance should be granted is a matter of the trial judge's discretion. Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). The burden is on the appellant to show there has been an abuse of that discretion. Cotton v. State, 265 Ark. 375, 578 S.W.2d 235 (1979). Certainly, every denial of a request for more time does not violate due process or constitutional mandates. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). There are no simple mechanical tests for testing the trial judge's exercise of discretion. An examination must be made of the facts of each case. Here, an attorney was supplied for appellant because of his indigency. He then asked for a continuance to retain an unnamed attorney. Upon being reminded of his sworn affidavit of indigency he asked for appointment of a different, but still unnamed, attorney. Yet, there was no reason to appoint a new attorney. The alleged relationship of his appointed attorney and a deputy sheriff proved to be false. Appellant could remember the name of only one of the alleged material witnesses who had not been subpoenaed, and a so-called alibi witness was contacted by telephone but was unable to testify to appellant's location on the date of the crime. The court had appointed a competent attorney, skilled in the practice of criminal law, to defend. The request for new counsel may have been made solely for the purpose of obtaining a continuance. It was not made until the panel of petit jurors was waiting in the courtroom. Against this factual background we cannot say the trial court abused its discretion in denying the motion for a continuance.

Appellant contends that the trial court erred in instructing the jury to fix punishment under the habitual offender statute in effect on the date of the commission of the crime rather than the one in effect on the date of the trial. The trial court was correct. Punishment is prescribed by substantive rather than procedural law. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). The substantive law to be applied is the law in effect on the date of the commission of the crime. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982).

Appellant's next argument is that the trial court committed error in refusing to grant a mistrial when a witness stated that the appellant had previously been in prison. During appellant's cross-examination of a State's witness the following took place:

A. You came--some guy brought you and you called from a apartments, the Robindale...