Harris v. State, CR
| Decision Date | 13 July 1981 |
| Docket Number | No. CR,CR |
| Citation | 273 Ark. 355,620 S.W.2d 289 |
| Parties | Elisha Thomas HARRIS, Appellant, v. STATE of Arkansas, Appellee. 81-15. |
| Court | Arkansas Supreme Court |
E. Alvin Schay, State Appellate Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Arnold M. Jochums, Asst. Atty. Gen., Little Rock, for appellee.
Elisha Thomas Harris was found guilty of attempt to commit capital murder and the use of a firearm in the commission of the offense. The convictions were for the wounding of a state trooper, Bill Breshears, at Altus, Arkansas, on January 1, 1980. At the conclusion of the trial, the jury found Harris to be an habitual offender and sentenced him to life in prison with a fine of $15,000.00.
On appeal Harris raises only two issues, both of which are procedural. The first is that the trial court should have declared a mistrial after the judge commented on the testimony of a witness. The second claim is that the trial court erred in refusing to allow Harris to testify about his prior convictions.
Breshears had stopped Harris for a traffic violation in the early hours of New Year's day. Breshears was locking up Harris's vehicle when Harris shot the trooper in the head. The trooper thought he had been hit from behind and began fighting with Harris in the parking lot where Harris's van had been pulled over. A passing motorist, Wanda Yother, stopped to assist the trooper and Harris was arrested at the scene shortly afterwards.
At the trial Breshears, the arresting officer, several members of the State Police investigative squad, and Mrs. Yother all testified. The prosecution also presented Mrs. Yother's thirteen year old daughter, Susan Yother. Susan testified, but was unsure of courtroom procedure and the judge had to calm her at the beginning of the young girl's testimony. When Susan finished testifying, the judge said: At the end of the day the defense made a motion for a mistrial based on the fact that "the court inadvertently made a comment on the evidence when he told Susan Yother that she did a good job in her testimony."
The evidence of Harris's guilt was overwhelming. Susan was not a material witness since her view of the fight was from a parked car and she could not distinguish the combatants. No objections were made at the time the judge made the statement and there was no renewal of the motion for mistrial. We find that any error was harmless when viewed in the context of the entire record. In Walker v. Bishop, 408 F.2d 1378 (8th Cir. 1969) the Court considered a trial court's remarks and found nothing in the remarks that indicated any opinion of guilt or "that could possibly have influenced the jury from exercising an impartial judgment." The Walker Court then stated the test that we apply here:
(T)he only way to ascertain the true meaning or import of any isolated remark is to consider it in the light and context in which it is uttered. This is just plain common sense as well as good law.
The trial judge refused to declare a mistrial and we cannot say he was wrong. In West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973) this court held that the trial judge has wide discretion in granting or denying a motion for a mistrial, and that we will not reverse a judgment unless there is an abuse of discretion or manifest prejudice to the complaining party.
Harris's second claim involves his five prior felony convictions, all of which were the result of guilty pleas. The jury found him guilty of four or more prior convictions. The prosecution offered certified copies of the convictions from the various Virginia counties where the crimes took place. During an in-chambers hearing Harris asked the trial court to allow him to present to the jury his contention that he was actually innocent of the three previous crimes and had only pleaded guilty on advice of counsel. Harris stated that his attorney in the earlier charges had told him that if he did not enter the pleas he would get more time on conviction of the two crimes that he actually had committed. In addition, Harris claimed that he had been released from jail on a Writ of Habeas Corpus on one of the crimes. However, the habeas did not go to his guilt or innocence, but pertained only to the amount of time served.
The trial judge refused to allow Harris to present these arguments to the jury. On appeal Harris argues that Ark.Stat.Ann. § 41-1005 (Repl.1977) gives him the right to controvert evidence of his previous felony convictions. That is true, but the statute does not give Harris the right to argue his innocence at this late date when he has conceded that he pleaded guilty to each of the earlier felonies. Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) these guilty pleas would be valid even if Harris had made the claim of innocence at the time the pleas were entered.
The Arkansas statute would allow Harris to attack the prior convictions on other grounds, but it does not allow him to try those cases again. For example, Harris could offer testimony that the evidence offered to prove the prior felonies did not consist of certified copies of the convictions or that he had not been represented by an attorney at the earlier trials. Harris could also offer evidence that he was not the same person as the Elisha Thomas Harris named in the earlier convictions. Leggins v. State, 267 Ark. 293, 590 S.W.2d 22 (1979). However, he made none of these claims. The evidence offered to the Harris jury consisted of copies of five prior convictions and each copy showed that Harris had been represented by an attorney at the time the guilty plea was entered. The trial judge held that a claim of innocent to the earlier charges was not relevant to the present case. In McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974) we noted that it is for the trial court to determine the preliminary issue as to admissibility of evidence.
Since this case involved a life sentence we have reviewed all errors prejudicial to the rights of the defendant, as required by Ark.Stat.Ann. § 43-2725 (Repl.1977) and find none that will require us to reverse the conviction.
Affirmed.
I disagree with the majority opinion on two points. The first point is that I think the trial judge commented on the evidence and the second is the court improperly imposed limitations upon a convicted party in presenting evidence in mitigation of his sentence.
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