Fields v. State, CR

• Decision Date: 26 November 1973
• Docket Number: No. CR,CR
• Parties: William Earl FIELDS, Appellant, v. STATE of Arkansas, Appellee. 73--89.
• Court: Arkansas Supreme Court

Page 480

502 S.W.2d 480

255 Ark. 540

William Earl FIELDS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 73--89.

Supreme Court of Arkansas.

Nov. 26, 1973.

Rehearing Denied Jan. 14, 1974.

Oscar Fendler, Blytheville, for appellant.

Jim Guy Tucker, Atty. Gen. by Phillip M. Wilson, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

William Earl Fields, appellant herein, age 25, stationed at the Air Base in Blytheville, was charged on three separate instances of knowingly and intentionally exposing his private parts to several minor children under the age of 16 years, and on trial was found guilty by a jury on all three charges, receiving a sentence of six months on one, one year on another, and one and one-half years on the third. The trial court directed that these sentences run consecutively and judgment was so entered. From that judgment, appellant brings this appeal. For reversal, eleven points are asserted, which we proceed to discuss in the order listed.

I.

The trial court erred so many times that it was impossible for defendant-appellant Fields to obtain a fair and impartial trial.

II.

The trial court erred when it ruled that the case be tried in Division 2 of the Second Judicial District when it should have been tried in Division 1.

III.

The trial court erred when it limited defendant-appellant Fields and his counsel in the time in which he could file additional pleadings.

IV.

The trial court erred when it denied defendant-appellant Fields' Motion to Quash Venire or Jury Panel.

V.

The trial court erred when it failed to disqualify itself after testimony of defendant-appellant Fields and of his father.

VI.

The trial court erred when it failed to prohibit the testimony of a minor who had no understanding of the obligation of an oath.

VII.

The trial court erred when it failed to prohibit the testimony relating to prior alleged similar acts of defendant Fields in March 1972.

VIII.

The trial court erred when it allowed to remain in evidence State's Exhibit 1, the football jersey, because it was obtained under a faulty search warrant.

IX.

The trial court erred when it denied defendant's offered Instruction No. 3.

X.

The trial court erred when it denied the defendant's offers of evidence because this proffered evidence did relate to degree of punishment the jury might assess against Fields if it found him guilty.

XI.

The trial court erred when it allowed the State to discuss in the presence of the jury the refusal of defendant to sign printed form concerning his constitutional rights.

I.

This point is what is known as a 'scatter-load', based on the other alleged errors, and need not be discussed separately.

II.

Appellant asserts that error was committed because his case was tried in Division 2 of the Second Judicial District when it should have been tried in Division 1. In support of this allegation, appellant relies upon Ark.Stat.Ann. § 22--322.12 (Supp.1971). ¹ This contention was first made before the court on the day before trial when a motion was filed to release appellant on bond, the objection to the trial during the civil term was made, and a continuance was requested until April 2, 1973, when the First Division Court would be trying criminal cases. It is argued that the record does not reflect that Judge Harrison, in Division 2, entered an order assigning these cases on the criminal docket of Division 1 to his division for trial. This contention refers to Ark.Stat.Ann. § 22--322.3 (Repl.1962) which requires a written order by the court before the clerk could assign cases. That provision, however, was superseded ² by § 22--322.12 which requires as 'appropriate' order for the reassignment of a case from one docket to another. The standard for the assignment is that the arrangement is found to be best for the dispatch of business. When the pretrial hearing was held on January 2, no complaint was raised about the dates set for trial, nor was there any complaint about the court that would try the case. Therefore, it would not appear that there was any prejudice because of the clerical methods employed by the court in making the transfer; nor does there appear to be any abuse of discretion on the part of the court, for the record discloses that Division 1 conducted the preliminary handling of the case at a time when Judge Harrison was the presiding judge of the Criminal Division, and was thus actually in a better position to continue with the disposition of the case. ³ We pointed out in Gardner v. State, 252 Ark. 828, 481 S.W.2d 342, that one of the main purposes of Act 505 of 1965 (creating the several divisions, designating one as 'Criminal' and the other two as 'Civil') was to permit the transfer of civil or criminal cases in order that litigation would be disposed of more expeditiously. ⁴ We fail to see how appellant suffered prejudice because of the transfer, and it might also be mentioned that Ark.Stat.Ann. § 22--322.7 (Repl.1962) provides that it 'shall not be reversible error that any case is tried in the division to which it has not been especially assigned * * *.' Also, see Blackstead Mercantile Co. v. Bond, 104 Ark. 45, 148 S.W. 262. ⁵

III.

Two of these charges were filed in the month of July, 1972, and the third was filed in September of that year. A pretrial conference was set for, and held, on January 2, 1973, at which time the case was set for trial for January 16, 1973. Although the length of time mentioned was more than adequate for the filing of motions, and although a pretrial conference was held on January 2, it was not until January 15, one day before the time set for trial, that counsel for appellant announced that he had other pleadings to file. The court told counsel that he would not entertain any pleadings the next morning, ⁶ and gave counsel until 11:00 A.M. to file whatever he desired to file, the time period amounting to about an hour. It is vigorously argued that this limitation was unreasonable, and requires a reversal.

Of course, under some circumstances, the period of time allotted would quickly be considered unreasonable, but as previously pointed out, adequate time had already been afforded for the filing of any pleadings. Within the hour, counsel returned and filed a Motion to Quash the Jury Panel. In oral argument, counsel candidly admitted that at the time he said that he would file more pleadings, he had no particular pleading in mind, but simply intended to study the matter further and determine what pleadings he did care to file. He seemed rather surprised that he was not permitted to file additional pleadings up until the time the trial started; however, we can take judicial notice that many trial courts, as a matter of precluding continuances after witnesses have been notified to appear, and as a matter of preventing disruption of the orderly process, have rules limiting the time that additional motions may be filed before the date of trial. This is not a matter relating to a sudden occurrence of some unexpected event that made necessary the filing of an additional motion. We find no merit in this contention.

IV.

This was the motion that was filed the day before the trial and it asserts that the 'Jury Panel or Venire does not have any colored persons on it. ⁷ It is a well-known fact that between 25% to 30% of the registered voters of the Chickasawba District of Mississippi County, Arkansas, are colored. This failure to have colored persons on the venire is in violation of the constitutional rights of this defendant.'

In the first place, let it be pointed out that the United States Supreme Court has never said that the failure to have members of the black race on a particular panel, is discriminatory; rather their holdings have been based on systematic exclusion of members of that race from the jury panel.

In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184, the court rejected an argument that every distinct voice in the community has a right to be represented on every jury, stating:

'All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. (Citing cases).'

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the court said:

'Although a Negro defendant is not entitled to a jury containing members of his race, a State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.'

In the case now before us, there is no evidence of systematic discrimination and remarks of counsel clearly indicate that his contention is that there were no black persons on the panel at the time of this trial. Counsel offered the testimony of the Deputy Circuit Court Clerk to the effect that there was only one Negro on the panel for the term of court beginning the first of January, 1973, and that person had been excused for the term. However, the deputy clerk testified that members of the Negro race had served as jurors in 1972 and, to her knowledge, for at least six to eight prior years. In Peters v. Kiff, supra, the Supreme Court held that since discrimination in jury selection will not be presumed, a defendant carries the burden of proving such discrimination, but once a prima facie case, or strong inference of race discrimination in jury selection has been presented, the burden shifts to the state to overcome the presumption. Appellant offered only the evidence mentioned; he was not refused the right to offer additional testimony, and the evidence offered certainly was not sufficient to establish a prima facie case, or raise a presumption of discrimination.

V.

Appellant and his father testified in chambers that...