Freeman v. State

• Decision Date: 15 September 1975
• Docket Number: No. C,C
• Parties: Frank James FREEMAN et al., Appellants, v. STATE of Arkansas, Appellee. r 75--67. Supreme Court of Arkansas
• Court: Arkansas Supreme Court

Page 623

527 S.W.2d 623

258 Ark. 496

Frank James FREEMAN et al., Appellants, v. STATE of Arkansas, Appellee.

No. Cr 75--67.

Supreme Court of Arkansas.

Sept. 15, 1975.

Rehearing Denied Oct. 20, 1975.

Jeff Duty, Rogers, W. Harold Flowers, Pine Bluff, for appellants.

Jim Guy Tucker, Atty. Gen. by Jack Lassiter, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Frank James Freeman, Clarence J. Roland, Jr., and Herod Louis Boyd, appellants herein, were charged and convicted of possessing, with intent to deliver a controlled substance, namely heroin, the jury fixing the punishment of each at 30 years imprisonment in the Arkansas Department of Correction. From the judgment so entered, appellants bring this appeal. ¹ For reversal, three points are argued, which we proceed to discuss.

'I.

THE COURT ERRED IN OVERRULING THE MOTION FOR CONTINUANCE.'

The record reflects that appellants Freeman and Roland were arrested on July 10, 1974, and thereafter had contact with an attorney who apparently arranged to represent them. On September 26, 1974, one day before trial, Roland and Freeman filed a motion for continuance, ² stating that they had learned they were required to pay a fee of $5,000 each to the attorney, and that it was impossible for them to pay such a fee; that they had been assured that they would be defended by the attorney up until September 18, at which time they were informed that he would not defend them; that they then contacted present counsel and made arrangements to employ him; that they had been offered the services of the public defender's office of Washington County, but preferred to retain their own counsel. It was asserted that it was impossible for present counsel to prepare fully and completely to defend them in the time allowed, and a continuance of not less than two weeks was sought. This motion was evidently presented to the court on the day of trial, and denied. Of course, a ruling upon a motion for continuance is within the sound discretion of the trial court, and the action of that tribunal will not be reversed absent a clear abuse of discretion. Nowlin v. State, 252 Ark. 870, 481 S.W.2d 320 and Perez v. State, 236 Ark. 921, 370 S.W.2d 613. In Perez, it was pointed out that the burden rests on an appellant to demonstrate an abuse of discretion by the trial court in denying a continuance. Actually, we have a number of cases where no abuse of discretion was found which involved lesser periods of time for preparation than in the instant case. In Brown v. State, 252 Ark. 846, 481 S.W.2d 366, we upheld the denial of a motion for continuance where a defendant changed counsel five days prior to trial; in Gathright v. State, 245 Ark. 840, 435 S.W.2d 433, a like ruling was upheld where new counsel was employed seven days prior to trial, and in Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548, we likewise found no abuse of discretion where counsel was retained three days prior to trial after previous counsel had withdrawn due to the appellant's failure to pay him. In the case before us, counsel was retained nine days in advance of the trial.

It might be pointed out that appellants have not shown in their motion, nor their brief, how, or why, they were incapable of preparing an adequate defense, i.e., there are no facts alleged or shown, only a bare allegation that there was not enough time.

The motion also includes an allegation that counsel had 'been informed on September 25, 1974 of articles in the newspaper concerning said case that tend to prejudice the citizens of Washington County against these defendants and that an application for change of venue may be necessary to protect the rights of these defendants.' This phase of the motion that a continuance should be granted is not mentioned in the argument, but, of course, we could hardly find an abuse of discretion where an attorney merely alleges that he might find it necessary to subsequently file an application for change of venue. We hold that the court did not err in failing to grant the motion.

'II.

THE COURT ERRED IN OVERRULING THE MOTION FOR A MISTRIAL ON ACCOUNT OF NEWSPAPER AND RADIO PUBLICITY.'

After 12 jurors and an alternate had been seated, a motion for mistrial was made which was heard by the court in chambers. This motion was based on the fact that a Fayetteville newspaper had, on either the same day the trial commenced (Friday, September 27, 1974) or Thursday, September 26, published an article to the effect that a fourth defendant had pleaded guilty to the charge, and a smaller article appearing in a Springdale newspaper was to the same effect. Both mentioned that the trial of the three appellants was commencing 'today,' ³ and mentioned appellants by name, and the Fayetteville newspaper article set out some of the details relative to the arrests. It appears that there had also been radio 'spots.'

It is argued that publication of these articles was prejudicial to the rights of appellants, but under the circumstances as shown by the record, we cannot agree. ⁴ The court very carefully questioned the jurors as to whether they had read the news articles, and all answered in the negative. The court then further addressed the jury as follows:

'THE COURT: Mr. Carlson, Mrs. Stubblefield, Mrs. Karp, Mrs. Caudle, Mrs. Miller, Mrs. Lewis, Mr. Cheatham, Mrs. Canup, Mrs. Bradshaw, Mr. Barnes, Mrs. Pruitt, Mr. Carter, Mrs. Burgess, I will ask all thirteen (13) of you individually. You have not heard anything today or heard anything yesterday about it by word of mouth or any news media whatsoever?

(All answer, 'No' and shake their heads negatively.)'

Of course, a mere reading of a newspaper account of an incident does not, in itself, disqualify a juror since the juror might be able to put aside any opinion formed. Davis v. State, 251 Ark. 771, 475 S.W.2d 155, and Glover v. State, 248 Ark. 1260, 455 S.W.2d 670. But were it otherwise, there still would be no merit in appellants' contention, for here we have every member of the jury stating that they had not read the articles nor heard news comment. Certainly, it cannot be assumed that these jury members prevaricated in answering the court's questions.

'III.

THE COURT ERRED IN ADMITTING IN EVIDENCE THE PISTOLS ALLEGEDLY FOUND IN THE AUTOMOBILE OCCUPIED BY THE DEFENDANTS, ROLAND AND FREEMAN.'

The officers, who apparently had information of the purported drug activities of appellants, had arranged a stakeout at a motel where a plainclothes officer was no make a purchase. Police personnel observed a Maverick automobile, in which appellants came to the motel, park at a service station near the motel. After the sale was made, appellants were arrested as they set in this car. Near one of the appellants, on the backseat, was a nickelplated revolver, ⁵ and on the right floorboard was a brown paper sack which contained a fully loaded pistol. These weapons were offered into evidence at the trial by the state and appellants contend that this constituted error, stating, 'These pistols had absolutely nothing to do with the crime charged.' As authority for the position taken, appellants cite the case of Cabbiness v. State, 241 Ark. 898, 410 S.W.2d 867. We do not consider Cabbiness as authority to sustain appellants' argument. There, Cabbiness, a resident of Little Rock, was charged with a burglary occurring in Berryville, Arkansas. After his arrest, police illegally searched his apartment in Little Rock and found a revolver. This revolver was described to the jury before the trial court upheld an objection to the evidence. The prosecuting attorney made another reference to the revolver and Cabbiness moved for a mistrial. This motion was denied, but the trial court...