Cobb v. State

Decision Date23 April 1979
Docket NumberNo. CR78-207,No. 2,CR78-207,2
Citation579 S.W.2d 612,265 Ark. 527
PartiesCharles COBB, Appellant, v. STATE of Arkansas, Appellee
CourtArkansas Supreme Court

William B. Howard, Jonesboro, for appellant.

Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant Charles Cobb was sentenced to two years in prison and fined $2,000 upon a jury verdict that he was guilty of selling a controlled substance to Jerry Leon Way, an "undercover" officer employed by the Lake City Police Department. Appellant raises six points for reversal. We find no reversible error and affirm.

Appellant first contends that the court erred in overruling his motion for new trial. It was based upon the allegation that Patricia Adams, the foreman of the jury, had concealed the fact that she had previously served on a jury that found another person guilty of a like charge in a case in which Way had testified, and thus prevented appellant from challenging her peremptorily. In his motion, appellant conceded that this juror had not told an untruth, but charged that she had deliberately concealed this fact.

Appellant raised this question after trial in May, 1978, but before he was sentenced. The juror was then questioned by the trial judge. She admitted that she had served as a juror in a case in which Way was a witness during the January, 1978, term of court in the Eastern District of Craighead County, the same district in which Cobb was tried.

During the voir dire examination of this juror by the trial judge, she had been asked if she was acquainted with, or related to, Way. She answered in the negative and added, "I know of him. I wouldn't know him even to speak to him." The matter was pursued by appellant's attorney on voir dire. The questions and answers so far as material, were:

Q. Mrs. Adams, I believe you indicated that you know Jerry Way Sr. casually, is that correct?

A. I don't know him to speak to him. I know who he is.

Q. You recognize him when you see him?

A. Yes.

Q. I take it there is nothing in that that would cause you to give his testimony

A. No, sir.

Q. any unusual weight? Now, of course, my client has been charged with having sold marijuana. I know there is a lot of feeling among most people with reference to the use of marijuana and the sale of marijuana. I don't have any criticism of that. I fall in the same category. I don't approve of either. In this particular case my client is charged with selling marijuana. Do you feel that you would have any difficulty in approaching this from an objective standpoint in being completely unbiased where the charge is selling marijuana as contrasted to say a situation of where the charge was burglary or larceny, something of that nature?

A. No, sir. It wouldn't be any different.

Q. Now, you have been interrogated by the Prosecuting Attorney about this matter of determining the credibility of the witnesses. Now, in this connection, a lot of people have this feeling. I don't have any criticism of it, but I need to know it. A lot of people feel that if an individual is an official, connected with the law, a law enforcement officer, that is more likely that that person will tell the truth in a criminal trial than, that is for example, for the Defendant to tell the truth. Do you have any such feelings?

A. No, sir.

Q. You don't believe then given this star and this gun makes everything an officer says the gospel truth?

A. Right. I can believe anybody else as much as I can an officer.

Q. In other words, do you think the Defendant ought to have to offer any evidence in order to prove his innocence?

A. No, he's innocent until proven guilty.

Q. And he doesn't have to do anything to prove that. Is that the way you feel?

A. Well, I mean, he can get up there and testify and I'll take what he says as the truth like I would everyone else, but I will weigh the scales.

Q. What I am getting at I guess it's my own fault, but we really got away from what I originally asked you. Assume for a moment that the State says, all right, we're through. We've offered all the proof we have. At that time, you sit there and say, well, I've got a reasonable doubt as to this man's guilt. Now, if you were in that state of mind, would you feel like the Defendant ought to come forward and offer anything else about it to prove anything else about it?

A. Well, if I believe that he was innocent

Q. When the State got through with it's evidence?

A. when the State got through I believe in listening to both sides. I don't know if I can answer your question.

Q. Well, let me say this to you ma'am. I imagine it's the first you've ever served on a Jury, is it not?

A. No, it's not.

Q. It's not?

A. No.

Q. Would you give any more weight to the testimony of witnesses called by the State of Arkansas as contrasted to witnesses called by the Defendant?

A. No, sir.

We do not agree that this record discloses a deliberate concealment of the juror's previous service in a case in which Way testified. We do not consider that her statement that there was nothing that would cause her to give Way's testimony any unusual weight was contradicted by the fact that she had joined in returning a guilty verdict in another case in which Way had testified for the state. At any rate, the granting or denial of a motion for a new trial lies within the sound judicial discretion of the trial judge, whose action will be reversed only upon a clear showing of an abuse of that discretion or manifest prejudice to the defendant. We are certainly unable to say that there was any abuse of discretion in this case, and prejudice is not manifest. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864; Hewell v. State, 261 Ark. 762, 552 S.W.2d 213; Wright v. State, 35 Ark. 639.

Appellant next argues that the trial court erred in refusing his motion for mistrial or a stronger admonition than that given "after the court had erroneously admitted a collateral attack on the testimony of defendant's witness, Joe Pardi."

Pardi had testified that Cobb had not attempted to sell marijuana to Way, but that Way had actually attempted to sell it to Cobb, and that Way had the marijuana in question in his own possession at all times. On cross- examination, Pardi had denied that marijuana had been smoked in a house in which he had lived with Cobb, or in any house in which he had lived. He also denied that Officer Bill Hook had come to Cobb's house while a marijuana party was in progress. Cobb's attorney, on redirect examination of Cobb, asked him about the implication that Hook had come to Cobb's house while a marijuana party was in progress. Cobb denied that Hook had ever come to his house and denied that marijuana had ever, to his knowledge, been in his house. On recross-examination by the prosecuting attorney, Cobb denied knowledge of any such party and denied that Hook had ever had any occasion to remove a juvenile runaway from Cobb's residence. Cobb also stated that he had never been present at a party anywhere at which such an activity had occurred.

Hook was then called as a witness by appellant, whose attorney asked whether Hook had ever gone to the home of Charles Cobb when a party was in progress. Hook gave a negative answer. On cross-examination, the prosecuting attorney asked whether Hook had made some statement to him during the preceding day regarding a party at which this officer had occasion to remove a juvenile from the appellant's presence. Appellant's attorney objected that the question related to a hearsay statement and that it did not tend to impeach the witness. There was no abuse of the trial court's discretion in the overruling of appellant's objection to this question, which was directed toward explaining the basis for the prosecuting attorney's cross-examination of Cobb, invited by questions asked on direct examination of Hook on a collateral matter after Cobb had denied that any such incident had taken place. Hook then answered that he had stated to the prosecuting attorney that he had gone to Joe Pardi's house prior to the time that Pardi and Cobb had lived together. A motion to strike this testimony and for an admonition to the jury to disregard it as an improper collateral matter was denied. When the prosecuting attorney asked Hook to relate the circumstances relative to the incident at Pardi's house, appellant's objection was at first sustained. When the...

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  • Hill v. State
    • United States
    • Arkansas Supreme Court
    • 8. Februar 1982
    ...is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision o......
  • Beavers v. Lockhart
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 25. Februar 1985
    ...prejudice to the defendant is so great that it cannot be removed by a proper cautionary instruction to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612, 616 (1979); Limber v. State, 264 Ark. 479, 572 S.W.2d 402, 406 ...
  • Williams v. State, CA
    • United States
    • Arkansas Court of Appeals
    • 1. Dezember 1982
    ...and should be resorted to only when the prejudice is so great that it cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). The declaring of a mistrial lies within the discretion of the trial court. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1......
  • Harrison v. State, CR
    • United States
    • Arkansas Supreme Court
    • 6. Juli 1982
    ...of this case, we totally fail to see any prejudice so great as to require the drastic remedy of a mistrial. See Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). ...
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