Harris v. State, CA

Citation672 S.W.2d 905,12 Ark.App. 181
Decision Date09 May 1984
Docket NumberNo. CA,CA
PartiesCullen Reed HARRIS and Sandra Kay Harris, Appellants, v. STATE of Arkansas, Appellee. CR 83-134.
CourtCourt of Appeals of Arkansas

James E. Davis, Texarkana, for appellants.

Steve Clark, Atty. Gen. by Leslie M. Powell, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Judge.

Appellants, Cullen Reed Harris and Sandra Kay Harris, were tried and convicted by a Sevier County jury of the offense of manufacturing a controlled substance. The trial court sentenced each appellant to fifteen years in the Arkansas Department of Correction and fined each the sum of $12,000.00. We reverse and remand for a new trial.

I.

THE TRIAL COURT ERRED IN OVERRULING APPELLANTS' MOTION FOR A DIRECTED VERDICT BECAUSE THE EVIDENCE WAS INSUFFICIENT.

We need not address this point for reversal challenging the sufficiency of the evidence inasmuch as we reverse and remand for procedural errors committed by the trial court.

II.

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF FINGERPRINT COMPARISONS BECAUSE APPELLANTS' FINGERPRINTS WERE OBTAINED AFTER AN UNLAWFUL ARREST.

The only witness to testify at the suppression hearing on the arrest was Bill Jones, the Chief of Police of DeQueen, Arkansas. He stated that Lt. Duval of the Arkansas State Police had contacted him stating that the state police would like to question appellants. Several days later, Jones observed appellants' car and followed it until he could confirm that the state police still wanted to question appellants. Jones then stopped appellants and when appellant Cullen Harris started to get out of the car, Jones observed a pistol. Appellant Cullen Harris was subsequently charged with illegal possession of a prohibited weapon. Appellants' fingerprints were taken and matched for comparison with prints taken from items in the van. Appellants were successful in municipal court in having the illegal possession of a handgun charge dismissed on the basis of the extended trip exception. We see no error here. It is clear from Chief Jones' testimony that the officer in this case made a proper determination of probable cause to arrest appellants without a warrant on the handgun charge following a proper stop of their vehicle in order to question them about another offense. See Ark.Stat.Ann. § 43-429 (Repl. 1977), and A.R.Cr.P. Rule 2.2.

III.

THE TRIAL COURT ERRED IN DENYING APPELLANTS' MOTION FOR EITHER A MISTRIAL, A CONTINUANCE OR SUPPRESSION OF THE EVIDENCE BECAUSE IT BECAME APPARENT DURING THE TRIAL THAT THE STATE HAD EITHER REFUSED TO OBEY THE COURT'S ORDER REGARDING DISCOVERY OR HAD KNOWINGLY OFFERED UNTRUE TESTIMONY.

The record reflects that defense counsel, prior to trial, filed two separate motions for discovery. Because the State failed to respond to the first motion, the case was continued. Once the discovery requests were complied with, it became apparent to defense counsel that persons other than appellants had made suspicious purchases of chemicals from several companies located in Little Rock and Conway. In an effort to find out who had been making these purchases, defense counsel filed a subsequent motion for discovery requesting the notes from interviews with the employees of these chemical companies and copies of any photographs shown to them. Information furnished by the State indicated that no witness had identified either appellant. The State further claimed that photographs of appellants were shown to the witnesses between April 11, and April 13, 1982. The photographs of appellants furnished by the State were photographs taken after their arrest on April 27, 1982, and could not possibly have been the photographs exhibited to the witnesses.

During trial, witness Betty Martin testified that she recognized appellant Sandra Harris as having been a passenger in a van driven by a person known to her as Jim Roberts when he purchased chemicals from Ms. Martin's employer, SIS, Incorporated, on three occasions in the spring of 1981. She also claimed that an Officer Berry or some other officer had shown her four individual photographs of four different women, from which she selected a photograph of appellant Sandra Harris. This occurred on cross-examination by defense counsel. She did admit, however, that she could have selected a photograph of someone else, but insisted that police had shown her photographs on several occasions and that she had selected a photograph of the woman riding in a van with Jim Roberts. Officer Berry testified both before the jury and in an in-camera hearing that he had shown photographs to Ms. Martin on one occasion, that she had identified two photographs of Jim Roberts and that Ms. Martin had stated that a photograph of a woman looked like the person she saw as a passenger in the van. It was stipulated by the parties that this photograph of a woman was not in fact a photograph of appellant Sandra Harris.

The record reflects that the State was apparently as surprised as defense counsel in regard to the alleged out-of-court identification based upon photographs shown to Ms. Martin by a second officer, an Officer Stepp. No record of this identification was in Officer Berry's records or in any of the prosecution's files.

We do not agree with the State's contention that Officer Berry's testimony could be used as impeachment of Ms. Martin's testimony and that no error occurred. The argument of appellee is without merit as the harm was already done at this point and the prejudice to appellants obvious. Furthermore, it is of no avail to the State that defense counsel had equal access to witness Martin. The record reflects that defense counsel did have contact with Ms. Martin on several occasions, but in view of the State's responses to appellants' discovery motions, there was nothing provided to alert them to a possible out-of-court identification. We believe appellants' had a right to rely on their earlier discovery motions. We do not believe this to be a case of a defendant in a criminal case relying on discovery as a total substitute for his own investigation, which is impermissible. Henry v. State, 278 Ark. 478, 647 S.W.2d 419, cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983).

At this state of the proceedings, the following alternatives were available within the discretion of the court: (1) grant appellants' motion for a continuance so they could obtain and inspect the evidence; (2) suppress the identification testimony or, (3) grant a mistrial. The fact that the trial court did suppress any further reference to the alleged out-of-court identification did not cure the problem. Witness Martin had already testified under oath to the out-of-court identification. Thus, only two of the three alternatives were available to the trial court. We do not believe the court abused its discretion in not granting a mistrial as a mistrial is an extreme remedy which should only be granted as a last resort when the error is so prejudicial that justice could not have been served by continuing the trial. Pruitt v. State, 8 Ark.App. 350, 652 S.W.2d 51 (1983). We believe the first alternative, granting a continuance, would have been the more prudent choice as the trial could possibly have resumed after a short delay. A continuance need only be granted upon a showing of good cause. A.R.Cr.P. Rule 27.3. The burden is discretion in denying a continuance. Walls v. State, 8 Ark.App. 315, 652 S.W.2d 37 (1983). Our review of the proceedings in the instant case leads us to the conclusion that appellants have met their burden and the trial court abused its discretion. We reverse and remand for a new trial on this point.

IV.

THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL WHEN THE PROSECUTOR DELIBERATELY ARGUED OUTSIDE THE RECORD ON THREE OCCASIONS.

Appellants allege reversible error in the trial court's rulings on three objections made by them during the prosecuting attorney's closing argument. It has been uniformly held that in cases of denial of a motion for mistrial based upon prosecutorial improprieties, we will not reverse the judgment of the trial court in the absence of an abuse of the wide latitude of discretion vested in the trial judge. Brown & Bettis v. State, 259 Ark. 464, 534 S.W.2d 207 (1976). We have always recognized and given due regard to the trial judge's considerable degree of discretion in controlling and supervising arguments of attorneys at jury trials. McGill v. State, 253 Ark. 1045, 490 S.W.2d 449 (1973).

The first objection in the case at bar was in reference to comment by the prosecutor on the testimony of the president of Capital Chemical and Supply Company that appellant Sandra Harris ordered the platinum oxide through his company. The trial court agreed with appellants that this argument was outside the record and in fact opposite to the witness's testimony, but refused to grant a mistrial. Next, appellants objected to the prosecutor's comment on testimony by the chemist. The prosecutor started to show the jury State's Exhibit No. Seven, which was a box top with a chemical formula written on it, when appellants objected and correctly pointed out that the exhibit had never been introduced into evidence. Again, the court denied appellants' motion for mistrial. In each of these two instances, the trial court promptly admonished the jury to the effect that any statement not borne out by the evidence, made by the attorneys, was to be disregarded and that the jury was to disregard any testimony in regard to State's Exhibit No. 7. In addition, the jury had been instructed with the standard instruction AMCI 101(e) that "closing arguments of the attorneys are not evidence but are made only to help in understanding the evidence and applicable law." Instructions and admonitions to the jury generally suffice except where the comments of counsel are patently inflammatory and prejudicial or where improper tactics are so repetitious that fairness is...

To continue reading

Request your trial
4 cases
  • People v. Taylor, Docket No. 79360
    • United States
    • Court of Appeal of Michigan — District of US
    • July 21, 1987
    ...United States v. Friedman, 107 F.R.D. 736 (N.D.Ohio, 1985); O'Neill v. State, 675 P.2d 1288 (Alaska App., 1984); Harris v. State, 12 Ark.App. 181, 672 S.W.2d 905 (1984); In re Jesse L, 131 Cal.App.3d 202, 182 Cal.Rptr. 396 (1982); Mendibles v. Superior Court, 162 Cal.App.3d 1191, 208 Cal.Rp......
  • Microsize, Inc. v. Arkansas Microfilm, Inc.
    • United States
    • Arkansas Court of Appeals
    • September 27, 1989
    ... ... of acceptance under the Uniform Commercial Code. Although this section does not specifically state that the revoked goods are returned to the seller, the comments to this section (see Ark.Stat.Ann. Section 85-2-608 (Add.1961)) assume the goods will ... ...
  • Maples v. State, CA
    • United States
    • Arkansas Court of Appeals
    • November 13, 1985
    ...that Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), does not require us to do so. See Harris v. State, 12 Ark.App. 181, 672 S.W.2d 905 (1984) (Supplemental Opinion on Denial of I concur. MAYFIELD, Judge, dissenting. The majority opinion cites Collins v. State, 11 Ar......
  • Harris v. State
    • United States
    • Arkansas Supreme Court
    • December 17, 1984
    ...We granted the petition of Cullen and Sandra Harris to review the decision of the Court of Appeals [See Harris and Harris v. State, 12 Ark.App. 181, 672 S.W.2d 905 (1984) ], to decide whether an appellant who has challenged the sufficiency of the evidence, along with other assignments of er......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT