Furlough v. State, CR92-1442

• Decision Date: 13 September 1993
• Docket Number: No. CR92-1442,CR92-1442
• Citation: Furlough v. State, 861 S.W.2d 297, 314 Ark. 146 (Ark. 1993)
• Parties: Michael Ray FURLOUGH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 297

861 S.W.2d 297

314 Ark. 146

Michael Ray FURLOUGH, Appellant, v. STATE of Arkansas, Appellee.

No. CR92-1442.

Supreme Court of Arkansas.

Sept. 13, 1993.

Jay E. Hoggard, El Dorado, for appellant.

Winston Bryant, Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Michael Furlough appeals his conviction of aggravated robbery. Because he had four felonies, he was tried and convicted as a habitual offender and received a sentence of forty years imprisonment. He raises two points for reversal.

First, Furlough argues the trial court erred in allowing into evidence two officers' reports containing Furlough's confessions to robbing the Hurry Back store in El Dorado and an attempted robbery at Calion, Arkansas. Furlough was charged with the robbery on December 17, 1991, and afterwards he moved for discovery under Ark.R.Crim.P. Rule 17. On March 12, 1992, four days prior to trial, defense counsel first learned from Lt. Carolyn Dykes that she and Sergeant Byron Sarter had read Furlough his rights after his arrest, and each officer had obtained separate oral confessions from Furlough concerning the Hurry Back store robbery and the attempted robbery at Calion. The officers included these confessions in their respective reports and filed them with the El Dorado Police Department where they remained until Furlough's counsel located them on March 12. Furlough subsequently moved to suppress the confessions, and the trial court ordered a continuance until a hearing could be conducted on Furlough's motion. A hearing was held on April 23, 1992, when the trial court denied Furlough's motion and set a new trial for May 14, 1992.

Furlough contends that he never confessed to any robbery and that the trial court should have disallowed introduction of the officers' reports containing his purported confessions because the state failed to disclose this material pursuant to Discovery Rule 17.

Rule 19.7(a) contains the following list of remedies that the court may employ when a party has failed to comply with the rules of discovery: (1) order such party to permit the discovery or inspection of materials not previously disclosed, (2) grant a continuance, (3) prohibit the party from introducing in evidence the material not disclosed, or (4) enter such order as it deems proper under the circumstances. It is within the trial court's discretion which sanction to employ, and here the trial court offered Furlough a continuance to deal with the surprise caused by the state's failure to reveal the officers' reports containing the confessions. See Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993). We have held a continuance may be sufficient to cure the state's failure to comply with the discovery rule. Id. Here, Furlough fails to show how he was prejudiced. The trial court's continuance gave Furlough two months to prepare his case after having become aware of the officers' reports. Accordingly, we find no merit to Furlough's first argument.

Next, Furlough contends that the trial court erred in failing to grant his motion for mistrial when Lt. Dykes, on direct examination by the state, referred to "other robberies" with which Furlough was not charged. That colloquy follows:

State: All right. What did Mr. Furlough tell you about his involvement in this armed robbery?

Dykes: He told me very little. He denied having committed any robberies. In fact Mr. Furlough became hostile and belligerent as I attempted to interview him concerning the robberies ...

State: Can you be a little more specific about how he demonstrated this hostility or what kinds of things he was saying to you that demonstrated hostility?

Dykes: I went into detail to explain to Mr. Furlough why he was a suspect in the other robberies that he was not charged with.

Defense Counsel: May we approach the bench?

Court: Yes.

PROCEEDINGS OF SIDE BAR:

Defense Counsel: You're talking about a bunch of stuff here that he's not even been charged with. She's mentioned other robberies three times.

Court: Is that your objection?

Defense Counsel: Yes, I'm objecting to it, and moving for a mistrial.

Court: Well, I think there is a problem with eliciting testimony about other events with which the defendant has not been charged.

State: The only basis at this point is the fact that the confession includes a confession to one of the other robberies. I'll limit the questions and I'll be very specific.

Defense Counsel: I would move for a mistrial, Your Honor.

Court: Well, it's going to be denied.

State: I will limit the testimony just to this particular incident. But in the confession there will be testimony that he has confessed to that robbery at the Hurry Back and also to the store in Calion.

Court: Mr. Hoggard [defense counsel], do you wish me to instruct the jury that they're not to consider other events with which this defendant [is] charged?

Defense Counsel: I would respectfully request that, Your Honor. But I want it noted that I make my exception to the ruling of the Court...