Ford v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT; PURTLE; PURTLE
• Citation: Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (Ark. 1988)
• Decision Date: 13 June 1988
• Docket Number: No. CR,CR
• Parties: Adam Troy FORD and King David McNichols, Appellants, v. STATE of Arkansas, Appellee. 87-206.

Page 258

753 S.W.2d 258

296 Ark. 8

Adam Troy FORD and King David McNichols, Appellants, v. STATE of Arkansas, Appellee.

No. CR 87-206.

Supreme Court of Arkansas.

June 13, 1988.

Charles E. Ellis, Blytheville, for appellants.

David B. Eberhard Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

Appellants Adam Troy Ford and King David McNichols were each charged with burglary and theft. They were represented by the same appointed counsel and tried jointly. Each was convicted of the offenses charged. McNichols was sentenced as an habitual offender to fifty years imprisonment while Ford was sentenced to thirty years.

Appellants argue that the court erred in: (1) refusing to grant a severance and appoint separate attorneys; (2) failing to grant a mistrial when, on cross-examination by the State, Ford alluded to McNichols' prior imprisonment; (3) excluding extrinsic evidence of a prior inconsistent statement by a State's witness; (4) allowing the testimony of a surprise "rebuttal" witness; (5) allowing the State's improper exercise of peremptory challenges striking several potential jurors of appellants' race; (6) allowing certain hearsay testimony; (7) refusing to instruct on the accomplice status of several of the State's witnesses; and (8) failing to grant a directed verdict as there was insufficient evidence corroborating the accomplice testimony. We find no error and affirm.

At trial, McNichols' sixteen-year-old nephew testified that on March 27, 1987, he, his uncle, and Ford broke into the Cross Town Liquor Store in Blytheville, Arkansas. The nephew testified that the group took beer, cartons of cigarettes, and several boxes containing liquor. Other testimony indicated that a gun was also taken. Appellant McNichols had been staying at the residence of Jo Ann and Johnny Wyllis. Jo Ann testified on behalf of the State that on the morning following the burglary she awoke to find McNichols, appellant Ford and McNichols' nephew, together with liquor and cigarettes, in her house. She stated that she did not know where the liquor came from, that she thought it may have been stolen, but she did not know. In any event, she asked the three parties to help her put it in the car so that she could take it away from the house. Jo Ann drove the appellants McNichols and Ford, McNichols' nephew, Johnny Wyllis, and another party to a tavern, Fat Daddy's, where McNichols sold portions of the stolen liquor to the tavern owner, William Harvey. Jo Ann's testimony was corroborated to some extent by Johnny Wyllis.

On the morning following the burglary, officers were observing the activities surrounding the Wyllis vehicle and Fat Daddy's tavern. They later stopped the Wyllis vehicle after it left the tavern with its six occupants. The officers were given consent to search the vehicle and recovered a gun, cartons of cigarettes, and bottles of liquor. Other bottles of liquor, empty beer bottles, and empty beer cartons were found at the Wyllis home.

At trial, the owner of the Cross Town Liquor Store identified several boxes of liquor seized from Fat Daddy's tavern as those stolen from his store. He also identified other items of evidence that had been seized--including his gun. The owner of Fat Daddy's testified that the boxes of liquor identified earlier were those purchased from McNichols.

Appellant Ford testified that he was at Fat Daddy's when the others arrived and that he merely obtained a ride from them when they left. Ford claimed he had no knowledge of the burglary and had been with a friend, Betty Lark, at the time the burglary was to have taken place. Betty Lark agreed. Her testimony was corroborated by another witness. At some point in the trial, Sharon McNichols informed the prosecutor that she had listened to the testimony of Betty Lark and that it was a fabrication as she had been with Betty Lark at the time Lark claimed to have been with Ford. Sharon McNichols was allowed to testify to that effect as a rebuttal witness for the State over objection by appellants. Appellant McNichols did not testify.

I. SEVERANCE AND SEPARATE ATTORNEYS

Before trial, appellants' court-appointed counsel filed a motion for severance based upon the possibility of a conflict of interest due to his inability to engage in meaningful communication with McNichols and because McNichols had a more extensive felony record than Ford. Appellants' counsel also asked that separate attorneys be appointed because he felt that in his representation of one appellant he would be required to "point a finger at the other." Additionally, appellant McNichols informed the court that he did not want counsel of record to represent him. On the other hand, both appellants informed the court that they did not want a separate trial. The court denied the motions to sever and for separate attorneys.

At trial, appellants' counsel repeated his motion for a severance when, on cross-examination of Ford by the State, it was revealed that Ford and McNichols met while in the "joint." Appellants argue this supported the motion to sever in that counsel was hampered in his protection of McNichols for fear of lessening Ford's credibility as a witness. At the close of trial, Ford indicated that he wanted to call McNichols as a witness to testify that Ford had nothing to do with the burglary. Despite assurances from the court that the State would not be permitted to cross-examine as to prior convictions, McNichols would not testify. Appellants' counsel indicated that this situation could have been avoided had separate attorneys been appointed, and he now had conflicting obligations in his advice to each appellant.

The trial court's decision denying a motion to sever will not be disturbed unless this court finds that there has been an abuse of discretion. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Wilkins v. State, 292 Ark. 596, 731 S.W.2d 775 (1987); Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). In determining whether or not a severance should be granted, the factors to be considered include: (1) whether the defenses are antagonistic; (2) whether it is difficult to segregate the evidence; (3) whether there is a lack of substantial evidence implicating one defendant except for the accusation of the other; (4) whether one defendant deprived the other of peremptory challenges; (5) whether one defendant felt compelled to testify because the other chose to do so; (6) whether one defendant had a criminal record while the other did not; and (7) whether the evidence against one defendant was stronger than the evidence against the other. Wilkins, supra; Burnett, supra; McDaniel & Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983).

In the case at bar, only the sixth and seventh factors are implicated. Both Ford and McNichols had prior convictions. While McNichols' record may have been more extensive, that fact does not by itself warrant our finding an abuse of discretion. In light of the testimony of Jo Ann Wyllis and McNichols' nephew, the evidence against McNichols by no means so outweighed that against Ford as to warrant a severance; nor does the record reflect that either defendant ended up accusing the other. As to the statement on cross by Ford that he met McNichols in the "joint," Ford had already testified to that effect on direct in response to defense counsel's inquiry as to whether Ford knew McNichols. Neither appellant wanted to be tried separately, and McNichols' failure to testify in Ford's behalf would not necessarily have been remedied by a severance. Taken as a whole, we simply cannot conclude that the trial court erred in denying the motion to sever.

On the related point of separate attorneys, it is settled that requiring or permitting a single attorney to represent co-defendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Ingle v. State, 294 Ark. 353, 742 S.W.2d 939 (1988). Rather, appointing or permitting a single attorney to represent co-defendants creates only a "possible" conflict of interest that could prejudice either or both clients. Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Ingle, supra. That possibility does not justify an inflexible rule that would presume prejudice in all cases. Id. Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that the conflict adversely affected defense counsel's performance. Ingle, supra; Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

A good example of active representation of conflicting interests which adversely affected counsel's performance may be found in this court's decision in Ingle. Here, however, appellants have failed to demonstrate evidence of record which rises to that level. Any disparity in the evidence of guilt as between appellants was minimal, and neither accused the other of committing the crime. Ford's desire that McNichols testify coupled with McNichols' refusal to do so, while perhaps indicative of a conflict between counsel's obligation to protect McNichols' right not to testify and Ford's desire to present exculpatory evidence, did not have the adverse effect counsel would ascribe to it. For example, assurances were obtained from the court that cross-examination of McNichols would be limited should he decide to testify, while at the same time Ford was able to present evidence through other witnesses that he had nothing to do with the burglary (McNichols' proffered testimony). Although it would have been more appropriate under the circumstances for the trial court to have provided separate counsel for the appellants, our review of the record does not convince us that defense counsel actively represented conflicting interests to the extent that his performance was adversely...