Goodwin v. State, CR-77-85

• Decision Date: 03 July 1978
• Docket Number: No. 2,No. CR-77-85,CR-77-85,2
• Parties: Sammy GOODWIN, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 3

568 S.W.2d 3

263 Ark. 856

Sammy GOODWIN, Appellant, v. STATE of Arkansas, Appellee.

No. CR-77-85.

Supreme Court of Arkansas, Division No. 2.

July 3, 1978.

Guy H. Jones, Jr., Conway, for appellant.

Bill Clinton, Atty. Gen. by Robert J. Govar, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Sammy Goodwin was charged with possession of approximately one pound of marijuana with intent to deliver on May 5, 1975, with delivering a controlled substance (approximately one pound of marijuana) and with aiding and abetting Johnny Martin Williams in the delivery of amphetamines, also a controlled substance. He was found guilty of delivery of a controlled substance and aiding and abetting the delivery of a controlled substance in a consolidated trial, apparently on these three charges and another of a similar nature. Five points for reversal are urged and we find it necessary to reverse the judgment and remand the cases for a new trial.

The verdicts of the jury in the two cases in which appellant was found guilty were on forms supplied by the trial judge. The forms were prepared while trial counsel were engaged in arguments to the jury. The verdicts, with the portions filled in by the jury italicized, were as follows:

We, the jury, find the defendant guilty in Case No. CR75-86, the sale of one pound of marijuana on April 2, 1975, and fix his punishment at 5 years in the Arkansas Penitentiary and/or a fine of $5,000 (3 to 10 years in the penitentiary and/or a fine from zero to $15,000.)

We, the jury, find the defendant guilty in Case No. CR75-87, aiding and abetting the sale of amphetamine tablets on May 1, 1975, and fix his punishment at 3 years in the Arkansas Penitentiary and/or a fine of $3,000 (3 to 10 years in the penitentiary and/or a fine of zero to $15,000.)

Appellant asserts that the jury was not instructed as to the possible penalty in either case, except by the forms submitted. The state concedes that point, arguing that the form adequately informed the jury as to the punishment possibilities in each case. The circuit judge's pronouncement of the sentence was as follows:

CR75-86

5 years in the Arkansas State Penitentiary and a fine of $5,000.00. All other sentences are to run consecutively to this sentence.

CR75-87

3 years in the Arkansas State Penitentiary and a fine of $3,000.00.

The only alternative form of verdict in both cases was a form for a finding of not guilty.

There is no indication in the record that appellant's attorneys ever had an opportunity to see the verdict forms before they were submitted or to register any objection to them. Since the judge had advised the attorneys that the forms would be prepared during oral argument, appellant had no occasion to specifically request jury instructions on the punishment. The state does not complain about appellant's failure to object to the forms submitted, apparently because the absence of an objection does not prejudice a party who has not had an opportunity to object to a ruling or order of a trial court under Rule 36.21, Rules of Criminal Procedure. See also, Wells v. State, 193 Ark. 1092, 104 S.W.2d 451. Both parties to this appeal seem to have construed this rule to be applicable in these circumstances. Because of this, we will pass upon the question in this case, but we call attention to the fact that a defendant may raise such an objection at the time the verdict is returned, at the time of sentencing or by motion for new trial. See Taylor v. State, 187 Ark. 1164, 62 S.W.2d 15; Cargill v. State, 76 Ark. 550, 90 S.W. 618; State v. Knight, 259 Ark. 107, 533 S.W.2d 488; Rule 36.22, Rules of Criminal Procedure; Ark.Stat.Ann. §§ 43-2303, -2304 (Repl.1977). See also, Coleman v. State, 257 Ark. 538, 518 S.W.2d 487. In cases tried after this date, we will not consider an assertion of error in the verdict form, when the issue has not been raised in the trial court in any manner or some adequate reason for not doing so is disclosed by the record.

Forms of verdict in cases in which fines may be imposed as either an alternative or a supplement to a prison sentence have in recent years caused an ever recurring problem. See Byars v. State, 259 Ark. 158, 533 S.W.2d 175; Brown v. State, 261 Ark. 683, 550 S.W.2d 776; Shelton v. State, 261 Ark. 816, 552 S.W.2d 216. See also, Rowland v. State, 263 Ark. 77, 562 S.W.2d 590. The use of the form submitted here might not have resulted in reversible error if the jury had been clearly instructed as to the punishment for the offenses, or if the jury had been asked to explain its intention after the verdict was returned. See Brown v. State, supra; Byars v. State, supra. But we cannot accept the state's suggestion that indication by the prosecuting attorney of possible punishment sanctions under applicable laws in voir dire of prospective jurors was an acceptable substitute for instruction by the trial judge. It is the function of the trial court, not trial counsel, to inform the jury as to the applicable law.

The state attempts to distinguish Brown & Shelton. It relies on the fact that here there was no instruction to the jury that was in apparent conflict with the verdict form, as there was in Shelton. The state points out that, since the range of possible fine on each form began with "zero," it was clear to the jury that no fine was required. For this reason, argues the state, Brown does not govern. Even so, we are unable to see how the trial judge could ascertain that the jury intended that both forms of punishment be imposed rather than one or the other. The jury did not indicate that it intended to leave sentencing to the trial judge, as it might have done. For this reason, and because we cannot correct the error by eliminating either form of punishment, the judgments must be reversed.

Another point raised by appellant requires a reversal. It has to do with exclusion of evidence. The principal evidence supporting the jury verdicts finding appellant guilty was the testimony of Jerry Roberts. Roberts was an Arkansas State policeman assigned to the Drug Abuse Investigation Section and had been investigating narcotics traffic and obtaining evidence as a basis for prosecutions in Faulkner County, among others. He was operating "undercover" and wore poorly pressed pants or "faded-out" jeans, and a "hippy" shirt. When he was trying to buy drugs, he messed up his hair and rubbed dirt on his face and hands. During the course of his investigation in Faulkner County over a period of approximately three months, he met and came in contact with appellant.

We are unable to pass on the propriety of some of the items of evidence that were excluded over appellant's objection. One of these was some statement of Roberts, allegedly made in appellant's presence, to another officer at the time of appellant's arrest. Goodwin was prevented from completing his response to his attorney's inquiry about that statement by the prosecuting attorney's objection. The statement was never proffered in spite of the fact that appellant was given the opportunity to make proffer in camera on several items. Another item seems to relate to a charge on which appellant was acquitted.

Appellant also sought to contradict the testimony of Roberts on collateral matters pertaining to conduct of Roberts on wholly unrelated occasions, such as an alleged criminal act of Roberts in 1969, his alleged smoking of marijuana in the past, his alleged removal from a college for possession of alcohol and alleged threats by him to other persons. This testimony was not admissible, although cross-examination on those subjects was proper.

There is one item of testimony that was erroneously excluded. Appellant attempted to show by his own testimony that Roberts had sought to recruit him as an informer, offering to get all charges dismissed, but to make absolutely certain that appellant went to Cummins Prison Farm if he did not accept this proposal. This testimony had a bearing on possible bias of the witness and was admissible. Its exclusion was reversible error. Frazier v. State, 42 Ark. 70. In Wright v. State, 133 Ark. 16, 201 S.W. 1107, this subject was treated extensively and the matter settled. There we said:

* * * The bias of a witness is not a collateral matter; but it was most important to the defendant to show that on numerous occasions the witness had expressed himself as having ill feelings towards the defendant, and that the ill feeling had been brought about because Wright as mayor had attempted to prohibit the witness and others from selling cigarettes and conducting gaming devices contrary to law. Pecuniary interest, personal affection or hostility, sympathy or animosity, a quarrel or prejudice, may always be shown to discredit a witness. Cornelius v. State, 12 Ark. 782; Crumpton v. State, 52 Ark. 273, 12 S.W. 563; Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41; McCain v. State, (129 Ark. 75), 195 S.W. 363, and cases cited. In Hollingsworth v. State, supra, the court said:

"The appellant should have been permitted to prove that the witness had an interest and bias in the cause, by his statement disclosing it. Whether he could make such proof by those who heard the statement, without first interrogating the witness concerning it, we need not decide. Such would have been the better practice, and should be observed where it is practicable. That it must be followed we do not hold, for highest authorities upon the subject differ."

It seems that under these circumstances it was necessary that Roberts first deny the statements which would indicate bias. Wright v. State, supra; Ark.Stat.Ann. § 28-1001, Rules 613(b), 801(d)(1). See also, Dixon v. State, 189 Ark. 812, 75 S.W.2d 242; Peters v. State, 103 Ark. 119, 146 S.W. 491; U. S. v. Brown, 547 F.2d 438 (8 Cir., 1977), cert. den. sub nom. Hendrix v. U. S., 430 U.S. 937, 97 S.Ct. 1566, 51 L.Ed.2d 784. A sufficient foundation for extrinsic evidence on the matter was laid in ...