Butler v. State
| Decision Date | 22 October 1990 |
| Docket Number | No. CR,CR |
| Citation | 797 S.W.2d 435,303 Ark. 380 |
| Parties | Thomas BUTLER and Stacy Romand Butler, Appellants, v. STATE of Arkansas, Appellee. 90-86. |
| Court | Arkansas Supreme Court |
Willard Proctor, Jr., Little Rock, for appellant Thomas butler.
Robert Scull, Little Rock, for appellant Stacy Butler.
Lynley Arnett, Asst. Atty. Gen., Little Rock, for appellee.
Appellants, Thomas Butler and his son Stacy Butler, were jointly tried and found guilty of delivery of fourteen ounces of cocaine. The father, Thomas Butler, was sentenced to forty years in prison, and the son, Stacy, was sentenced to twenty years. Each has filed a separate appeal. We affirm both judgments of conviction in this one opinion.
Both appellants argue that the trial court erred in refusing to sever their cases. The factual background for the argument may be summarized as follows. An undercover agent called Stacy and asked to purchase $15,000 worth of cocaine. Stacy responded that he could handle the sale. The agent drove to Stacy's house, picked Stacy up, and they went to a restaurant to discuss the sale. Stacy said he would need to talk to his "source." At Stacy's request the agent took Stacy to the University Tower Building. Stacy's father, Thomas, a bond salesman, had an office in the University Tower Building. The agent went back to his motel room. Stacy later came to the motel room and reported that fourteen (14) ounces of cocaine would be there shortly. Almost three hours later Thomas drove Stacy's car onto the motel parking lot. Stacy waved to Thomas and invited the agent to go to the car and examine the quality of the cocaine. The agent went to the car and asked Thomas if he had the cocaine. He responded that he did. Thomas then handed the agent fourteen (14) ounces of pure (89.2% base) cocaine. Thomas admitted at trial that he told the agent he had sold approximately 120 kilos of cocaine the year before and was attempting to turn the business over to Stacy who was preparing to go to Kansas City to negotiate a sale of two kilos of cocaine.
Thomas and Stacy were jointly charged with delivery of a controlled substance. Both employed Robert L. Scull as their attorney. A week before trial, Scull discovered that a conflict might exist between his clients and immediately suggested that Thomas get another attorney. Thomas employed Willard Proctor. Both then filed motions asking that the joint charge be severed because (a) their defenses were antagonistic and (b) Thomas's statements were not admissible against Stacy. The trial court denied the motion.
At trial, Thomas testified that Stacy had the cocaine hidden in their apartment but he did not know it. According to Thomas, Stacy had asked him to bring a box of tapes to the motel. When Thomas opened the box he realized it contained cocaine. Thomas stated that he realized Stacy was trying to make some money by selling cocaine and that Stacy's life might be in danger if he did not deliver the cocaine. "I did know it was enough quantity to where somebody could get hurt over it." He further stated that he saw how rough the purchaser looked and he thought Stacy did not testify.
Both appellants contend their defenses were antagonistic, and that the trial court erred in refusing to grant a severance. The appellants filed their motions prior to trial, see A.R.Cr.P. Rule 22.1(a), but neither presented any evidence at that time. Accordingly, we will not review the trial court's decision refusing a severance prior to trial. We consider only the denial of the motion which was renewed at the conclusion of the testimony. See A.R.Cr.P. Rule 22.1(b). That evidence does not show antagonistic defenses.
Antagonistic defenses arise when each defendant asserts his own innocence and accuses the other of committing the crime. McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). One definition of antagonistic defenses is "when to believe one defendant, it is necessary to disbelieve the other." McDaniel, 278 Ark. at 637, 648 S.W.2d 57. Here, neither defendant asserted his own innocence and accused the other of committing the crime. Stacy offered no defense whatsoever. His stand was not antagonistic to anyone. Likewise, Thomas offered no defense. His testimony was only an explanation of the reason he committed the crime. Thus, the defenses were not antagonistic. See Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984).
Both parties also contend the trial court erred in refusing to grant a severance because Thomas's statements about other dealings in drugs were not admissible against Stacy. See A.R.Cr.P. Rule 22.3. The short answer to the argument is that the statements were made by a coconspirator during the course and in furtherance of a conspiracy. A.R.E. Rule 801(d)(2)(v); Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). There need not be a conspiracy count in the indictment to make the statement admissible. Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980). There was sufficient evidence to show there was a conspiracy. See Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978); AMI Criminal, 707. Appellant Stacy Butler also makes the same argument as a separate evidentiary argument. For the same reason, it has no merit.
Appellant Thomas Butler separately contends that the trial court erred in refusing to grant him a continuance. A motion for a continuance is addressed to the sound discretion of the trial judge, and his decision will not be reversed absent a clear abuse of discretion amounting to a denial of justice. Walls v. State, 8 Ark.App. 315, 652 S.W.2d 37 (1983), affirmed 280 Ark. 291, 658 S.W.2d 362 (1983). The burden is on the appellant to establish prejudice and an abuse of discretion in denying the continuance. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied, 469 U.S. 847, 105 S.Ct. 162, 83 L.Ed.2d 98. In exercising its discretion concerning a request for a continuance to obtain the presence of a witness, the following factors should be considered by the trial court: (1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Ark.Code Ann. § 16-63-402 (1987); Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). The denial of a motion which is not in substantial compliance with the statute is not an abuse of discretion. Kelley, supra; Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976).
Thomas contends that the trial court should have given him more time to get two witnesses, a Mac Walker and an unnamed waitress at a cocktail lounge. However, he showed no diligence whatsoever in trying to get them. Thomas had counsel for a considerable period before trial, first, Scull, then Proctor. There is no showing that he told either attorney of these supposed witnesses anytime before the motion for the continuance was requested. Additionally, they were never subpoenaed, the likelihood of procuring their attendance was not made known, and neither an affidavit nor a proffer of their testimony was given. No prejudice in refusing to grant the continuance is shown. Under the circumstances the trial court did not err in refusing to grant appellant's request. See Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983).
Both appellants next argue that the trial court erred in refusing to grant a mistrial because a juror talked to Stacy's mother. The conversation occurred after the State had rested its case. The incident was reported to the trial judge, and both the juror and Stacy's mother were questioned to see...
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