Burris v. State

• Decision Date: 02 February 1987
• Docket Number: No. CR,CR
• Citation: Burris v. State, 722 S.W.2d 858, 291 Ark. 157 (Ark. 1987)
• Parties: Perry Leon BURRIS, Appellant, v. STATE of Arkansas, Appellee. 86-196.
• Court: Arkansas Supreme Court

Page 858

722 S.W.2d 858

291 Ark. 157

Perry Leon BURRIS, Appellant, v.STATE of Arkansas, Appellee.

No. CR 86-196.

Supreme Court of Arkansas.

Feb. 2, 1987.

Edward T. Barry, Jonesboro, for appellant.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, Perry Leon Burris, was convicted of theft of property and sentenced to thirty years imprisonment as an habitual criminal.He was charged with both robbery and theft of property valued in excess of $2,500, but a mistrial was granted with respect to the robbery charge because the jury deadlocked.The appellant seeks reversal of the theft conviction on the basis of five alleged errors.He contends the victim of the crime, who was the first witness to testify, should not have been allowed to remain in the courtroom after her testimony, and that her identification of the appellant in the courtroom was unfair because the appellant was the only non-lawyer black person seated at the table with defense counsel.She had previously identified her assailant as a black person.We reject these points because of lack of objection or insufficient objection at the trial.

The appellant contends the jury should not have been instructed in accordance with A.M.C.I. 6002 that they were to consider guilt or innocence only and that the issue of punishment would be considered by them separately in the event of a verdict of guilty.We find no evidence that the appellant was prejudiced by the instruction.We also find no prejudice in the composition of photographs, to which the appellant objected, which showed rings, allegedly stolen by him, on the hands of the alleged victim of the crime.In his final arguments, the appellant contends the theft verdict was inconsistent with the jury's inability to reach a verdict on the robbery charge and that the evidence was insufficient to convict him of theft.We cannot find the asserted inconsistency, and we consider the evidence to have been sufficient to sustain the jury's verdict convicting the appellant of theft.

We affirm the conviction, as we find no prejudicial error.

Mrs. Pauline Sowards testified that on September 21, 1985, she was knocked down in her yard by a black man who then ran off with her purse which contained a number of rings and a pair of earrings.She identified the appellant as the person who did it.She further testified that she had had no opportunity previous to the trial to identify the person who committed the crime.Her testimony was contradicted by a police officer who testified that Mrs. Sowards had been shown a series of seven photographs, one of which was of the appellant, but she was unable to identify him as her assailant.The same officer testified there had been no attempt to have Mrs. Sowards view a line-up.

Upon being recalled as a witness at the end of the trial, Mrs. Sowards said she remembered viewing the photographs.She said she picked the appellant's photograph out and identified him in a line-up too.Then she said maybe she had not done so.She concluded her testimony by conceding she could not remember.

It is not disputed that Mrs. Sowards gave the police drawings she made of her jewelry.The drawings were distributed to pawn shops and jewelry stores.One of her rings turned up in a pawn shop, the proprietor of which had purchased it from Ronald Mothershed.Mothershed told the police he had won the ring in a dice game from the appellant who told him he had gotten it from "some lady."Mothershed agreed to help recover the remainder of the jewelry.He and an undercover police officer, Ivan Whitfield, sought out the appellant, and on the pretense that Whitfield wanted to buy some rings, the appellant took them to various places and persons from whom more of Mrs. Sowards' jewelry was obtained.Whitfield testified that the appellant offered to sell him one of the rings for $70 or two for $100.

1.Exclusion of the victim-witness

The rule of A.R.E. 615 was invoked by the appellant.With exceptions not applicable here that rule provides that at the request of either party, or on the motion of the court, witnesses will be excluded so that they cannot hear each other's testimony.When Mrs. Sowards finished her testimony the first time she was on the stand, the deputy prosecutor suggested she be allowed to remain in the courtroom.The appellant's attorney objected on the basis that the rule of A.R.E. 615 had been ordered.The court noted a new act of the general assembly had changed the law so that victims of alleged crimes could remain despite the provisions of A.R.E. 615.The appellant's attorney said he wanted to look up the new act.A recess was taken for that purpose and the matter was not mentioned again in the record before us.

The argument the appellant now makes is that A.R.E. 616, which does permit the victim to be present in any hearing in any criminal prosecution, is unconstitutional.That argument, which we recently discussed in Stephens v. State, 290 Ark. 440, 720 S.W.2d 301(1986), was not presented to the trial court, and for that reason we will not consider it.Pruett v. State, 287 Ark. 124, 697 S.W.2d 872(1985);Cecil v. State, 283 Ark. 348, 676 S.W.2d 730(1984).

2.The bifurcated trial instruction

The appellant contends that by instructing the jury that it was not to consider sentencing at first but that that question would be submitted to it later in the event of a verdict of guilty, the jurors were informed that the appellant was an habitual offender.

The appellant's contention is nothing more than a surmise on his part.He presented no evidence that any juror was thus prejudiced or that jurors generally take the view that the reason for a bifurcated consideration is to keep from them evidence of an accused's prior convictions during the guilt or innocence phase of their deliberation.

3.The photographs

The appellant's argument is that because the recovered jewelry was photographed on the hands of Mrs. Sowards, the photographs were highly prejudicial to him.The essence of the argument is that the photographs were thus deliberately staged "to force the jury to take the victim along with them into the jury deliberation room."

The appellant cites Harris v. Dameron, 267 Ark. 1141, 594 S.W.2d 256(Ark.App.1980), which held the trial court was correct in excluding gruesome photographs which had no probative value.He also cites Bliss v. State, 282 Ark. 315, 668 S.W.2d 936(1984), in which we held that the trial court improperly admitted...