Haynie v. State, CR

• Citation: 518 S.W.2d 492,257 Ark. 542
• Decision Date: 27 January 1975
• Docket Number: No. CR,CR
• Parties: Curtis HAYNIE, Appellant, v. STATE of Arkansas, Appellee. 74--130.
• Court: Arkansas Supreme Court

Page 492

518 S.W.2d 492

257 Ark. 542

Curtis HAYNIE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 74--130.

Supreme Court of Arkansas.

Jan. 27, 1975.

Robert A. Newcomb, Pine Bluff, for appellant.

Jim Guy Tucker, Atty. Gen., by Michael S. Gorman, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

A jury found appellant guilty of robbery and also that the robbery was committed with the use of a firearm. On appeal, appellant only challenges the validity of the 15 year sentence which was imposed by the court for the use of a firearm in the commission of the robbery. Appellant first asserts, through present court appointed counsel, there is no substantial evidence to support the jury's finding that a firearm was used in the commission of the felony.

On appellate review, in determining the sufficiency of the evidence, it is well established that we ascertain that evidence which is most favorable to the appellee and affirm if any substantial evidence exists. Williams v. State, 257 Ark. ---, 513 S.W.2d 793 (1974). In the case at bar, the 90 year old robbery victim testified that appellant and one of his two companions forcibly took his billfold and a small gun from his back pocket. He identified appellant, the only one of the trio on trial, as holding the pistol on him. The victim further testified that he was hit in the head with the pistol or something that was 'iron.' Certainly, this evidence along amply supports the jury's finding that appellant employed a firearm as a means of committing the robbery.

Appellant next contends that the trial court erred in imposing a sentence for the use of a firearm during the commission of a felony instead of allowing the jury to set the sentence. The jury returned a verdict of guilty of robbery and fixed appellant's punishment at 21 years imprisonment. At the same time, in response to an interrogatory, the jury affirmatively found that the robbery was committed with the use of a firearm. Thereupon, the court assessed an additional 15 year sentence which is authorized by Ark.Stat.Ann. § 43--2336 (Supp.1973). The sentence was made consecutive which is required by § 43--2337. Appellant correctly argues that any punishment for violation of this statute should be set by the jury and not by the court and is contrary to our decisions. Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973); and Cotton v. State,256 Ark. ---, 508 S.W.2d 738 (1974). However, we find no merit in this contention since no objection was made to the court's action. Consequently, the issue cannot now be raised for the first time on appeal. Ark.Stat.Ann. § 43--2725.1 (Supp.1973); Ford v. State, 253 Ark. 5, 484 S.W.2d 90 (1972); Robinson v. State, 256 Ark. ---, 509 S.W.2d 808 (1974); and Williams v. State, supra.

Appellant next contends that the information did not property charge him with the use of a firearm in the commission of a felony in violation of § 43--2336, supra. Therefore, the court erred in submitting that issue to the jury. The robbery information, in pertinent part, reads:

The said defendant on the 12th day of January, 1974, in Jefferson County, Arkansas, did then and there wilfully, unlawfully, feloniously, violently and by force and intimidation, armed with a pistol, take approximately $125.00 in money, the property of David Montague. . . . (Emphasis ours.)

In Johnson v. State, supra, we found two procedural defects, one of these being that 'the use of a firearm was not alleged in the information.' In Redding v. State, supra, the opinion recites that the defendant was charged with the 'crime of robbery with the use of a firearm.' There we said that the procedural defect of not alleging in that information the use of a firearm did not exist. In the case at bar, even though the use of a firearm was not alleged as a separate count or paragraph, a casual reading of the information reflects that it unambiguously asserts and gives notice to appellant that the robbery was committed by the use of a firearm. By Initiated Act #3 of 1936, Ark.Stat.Ann. § 43--1006, § 43--1008 (Repl.1964), which relaxed the common law technical pleading requirements, it is only necessary to name the offense and the defendant in charging an offense and it is unnecessary to state the acts constituting the offense 'unless the offense cannot be charged without doing so.' Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974); and Estes v. State, 246 Ark. 1145, 442 S.W.2d 221 (1969). See also Thompson v. State, 205 Ark. 1040, 172 S.W.2d 234 (1943). Here the information was certain as to the name of the court, the county in which the alleged offense was committed, the defendant's name and the name of the offense: i.e., robbery. It was unnecessary to allege the acts constituting the offense of robbery. However, the information stated with certainty that the robbery was committed with the use of a firearm. We hold the information sufficient. Furthermore, the record here reveals no objection to the information or the manner of the submission of the issue, the use of a firearm, to the jury. As indicated previously, the issue cannot be raised for the first time on appeal.

Moreover, if appellant's counsel construed the words 'armed with a pistol' in the information as being descriptive rather than constituting a possible enhancement of sentence, he certainly was apprised sufficiently when the court submitted the interrogatory to the jury as to whether the alleged offense was committed by the use of a firearm. Although we hold the information sufficient, the better practice would be that the allegation of the use of a firearm be worded with greater specificity to obviate the argument in a case such as the one at bar.

Appellant finally asserts for reversal he was denied effective assistance of counsel because appointed counsel failed to object to the procedure used in charging (the information) and imposing the sentence for the use of a firearm in the commission of a felony. As previously discussed, we are of the view the information sufficiently informed the appellant of the charge of using a firearm, which by statute results in an enhancement of a sentence upon a robbery conviction. § 43--2336, supra. As to the court's imposition of the additional sentence following the jury's finding, in answer to an interrogatory, that a firearm was used by the appellant, he correctly asserts, as previously discussed, that this did not comport with the procedure prescribed in Redding v. State, supra, and Cotton v. State, supra. However, as appellant acknowledges, it is necessary to object to the court's action and when no objection is made, as here, the issue cannot be raised for the first time on appeal. We recognize that our federal constitution mandates that the defendant have the benefit of effective assistance of counsel. Franklin and Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971). However, we have held that the defendant shoulders the burden of demonstrating that his counsel's alleged incompetence constituted prejudicial error and, further, the mere showing of 'errors, omission or mistakes, improvident strategy, or bad tactics' is not alone sufficient. Counsel is accorded a broad latitude in exercising his judgment for a client's defense. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973); Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973).

In Leasure v. State, supra, we said:

(W)e will presume, in the absence of a contrary showing, that: a duly licensed, appointed attorney is competent; a charge of inadequate representation can prevail only if the acts or omissions of an accused's attorney result in making the proceedings a farce and a mockery of justice, shocking the...