Holloway v. State, CR

Citation539 S.W.2d 435,260 Ark. 250
Decision Date19 July 1976
Docket NumberNo. CR,CR
PartiesWinston M. HOLLOWAY et al., Appellants, v. STATE of Arkansas, Appellee. 76--25.
CourtSupreme Court of Arkansas

Harold L. Hall, Public Defender, Little Rock, for appellants.

Jim Guy Tucker, Atty. Gen., by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Appellants, Winston Holloway, Ray Lee Welch and Gary Don Campbell, were charged by information with robbery of the Leather Bottle Restaurant in Little Rock on June 1, 1975, and with the use of a firearm in committing the offense. The three men were further charged with the rape of two female employees of the restaurant. Following a jury trial, all three men were convicted, with punishment for each set at 21 years imprisonment for the robbery, and life imprisonment for rape. From the judgment so entered, Holloway, Welch, and Campbell appeal, arguing several points for reversal.

For convenience, we first discuss the last point which is simply that the court erred in not giving instructions for directed verdicts of acquittal. While appellants concede that any possible error was cured by the giving of the state's instruction defining an accessory, we proceed to a discussion of the contention as a matter of providing background for other points asserted.

Other than the identity of the perpetrators, the facts about the robbery-rapes are not disputed. After the closing of the Leather Bottle oin June 1, around 1:30--1:45 A.M., five employees had remained in the restaurant, and were preparing to leave. The employees were Donald Henry, Michael Garrett, David Carroll, and two women. All five were in the restaurant office in the lower part of the building.

As one of the women (hereafter called 'first woman') began to leave, she heard someone running down the stairs toward the office. When she looked, she saw a man--whom she subsequently identified as appellant Holloway--coming down the stairs, brandishing a .45 caliber automatic pistol. She also saw two other men at the top of the stairs. Holloway forced her back into the office at gunpoint, where he herded her and the four other employees against the wall, threatening to kill them if they moved or opened their eyes. At this point one of the employees, Donald Henry, saw appellant Welch, also in the office, rifling the other woman's (hereafter called 'second woman') purse.

While one of the other men remained in the office with the employees, Holloway grabbed by second woman by the arm and took her outside, to the stairs, where he forced her to disrobe, and then raped her. She was thereafter raped a second time by another man, but was unable to identify the assailant. Holloway subsequently returned to the office and asked which employee could open the safe. David Carroll, manager of the restaurant, said that he could, and Holloway directed him to do so. While this was occurring, another of the three men came into the office and forced the first woman out to the stairs, where he took all the money from her purse, and then raped her at gunpoint.

Subsequently, after getting all the available cash from the safe, the three man again made all the employees face the office wall, eyes closed, while they 'shot out' the telephones with gunshots. The employees were then grouped into the restaurant's walk-in freezer, which was then locked. After about an hour--around 3:30 A.M.--one of the employees, Michael Garrett, escaped from the freezer by a small service opening, and released the others. The police were called, and the women taken to a doctor.

Because the robbers kept them facing the wall, and instructed them to keep their eyes closed, none of the employees were able to identify all three men. The first woman and Donald Henry identified Holloway and Welch. Michael Garrett could identify only Holloway. The second woman and David Carroll identified Holloway and Campbell.

In addition to the testimony of the five employees, the state also presented evidence of a statement given by appellant Campbell to two police officers, Paul Plummer and Jerry Best. The officers testified that on July 4, 1975, they received information that appellant Campbell was being held in the city detention center, under the alias Robert Hill. They removed Campbell from detention, showed him a warrant charging him with robbery, and began taking him to an interrogation room. At this point both officers testified Campbell spontaneously said, 'I haven't raped anyone. I will tell you about the robbery.' The officers said that they cautioned Campbell to stay silent, because he had not been warned of his rights, but that he immediately volunteered the same statement again.

Thereafter Campbell was warned of his constitutional rights, and both officers stated that he signed a 'rights waiver,' which was admitted into evidence. Plummer and Best testified that Campbell then told them that he, Welch and Holloway had robbed the establishment. The officers said that Campbell admitted complicity in the robbery, but denied raping anyone, stating that he had held a rifle and had stood at the top of the stairs. In the oral statement Campbell said that the men had stolen about $2,000.00, and that his share of the money was approximately $700.00. It is apparent that, aside from the concession, the court did not err in refusing to instruct directed verdicts of acquittal.

Appellants contend that the trial court 'erred in refusing to grant a mistrial when the defendants were brought in court before the jury in their jail uniforms in violation of their rights under the Sixth and Fourteenth Amendments to the Constitution.' Before the trial began, counsel for appellants moved for a mistrial, alleging that appellants were 'paraded through the courtroom in their jail uniforms where all of the prospective jurors were seated.' The record does not reflect whether any of the prospective jurors ever saw appellants prior to the trial. Nor does the record reflect the exact attire of the men except that they were dressed in matching blue trousers and blue shirts.

Appellants' argument has no merit, for several reasons. First, appellants rejected, twice, the trial court's offer to allow them to change clothes. The trial court gave appellants this opportunity before the trial began and before the actual selection of the jury. Therefore, appellants may be deemed to have waived the point. Finally, in the recent case of Estelle v. Williams, --- U.S. ---, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the U.S. Supreme Court held that a defendant's constitutional rights were violated only when he was compelled to wear identifiable prison clothing at his trial. The court stressed that such attire must be 'distinctive' and 'identifiable.'

It is asserted that the court erred in refusing to grant appellants' motion for a severance, and in not appointing separate counsel. Prior to the trial, all three appellants moved for severance, and for appointment of separate counsel. As grounds for severance, each asserted that witnesses might be called by one of the defendants to testify against the other defendants, that a joint trial would deprive each appellant of his right to call the co-defendants as witnesses, and that a joint trial would prevent counsel from commenting on the failure of any co-defendant to testify, if such occurred. The motion for separate counsel alleged only that the appellants had stated to counsel that 'there is a possibility of conflict of interest in each of their cases.' The motions were denied.

Appellants' counsel renewed the motion for separate counsel at the trial, stating that 'one or two of the defendants may testify and, if they do, then I will not be able to cross-examine them because I have received confidential information from them.' The trial court denied the motion.

First, let us review the contention that a severance should have been granted. Let it be pointed out that appellants demonstrate no prejudice from the joint trial. As previously noted, three grounds were alleged in the motion for severance. None of these grounds materialized during the trial. Moreover, the trial court properly limited the use of Campbell's statement against the co-defendants by deleting all references by name to the other two defendants, and substituting the words, 'two other people' and 'two other fellows.' This procedure fully complied with this court's requirements. Gammel and Spann v. State, 259 Ark. ---, 531 S.W.2d 474 (1976); Stewart and McGhee v. State, 257 Ark. 753, 519 S.W.2d 733, cert. denied, 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86. In fact, it was counsel for appellants who stated before the jury that the confession implicated the two co-defendants.

As this court has held numerous times, '(t)he granting of a severance is within the sound discretion of the trial court.' Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W.2d 542; Vault v. Adkisson, 254 Ark. 75, 491 S.W.2d 609. We find no abuse of discretion in the instant case.

Next, let us review the point that separate counsel should have been appointed. The applicable law was discussed in Trotter and Harris v. State, 237 Ark. 820, 377 S.W.2d 14, cert. denied, 379 U.S. 890, 85 S.Ct. 163, 13 L.Ed.2d 94. In a lengthy discussion the court reviewed the relevant precedents, and held that no conflict of interest had arisen because counsel represented the two co-defendants. The court stated:

'Both men were charged with the same offense, which grew out of the same occurrence. The only evidence, which in any manner could be said to indicate a conflict of interest, was the statement of Harris made to the sheriff that, though he drove the car, he did not actually rape the prosecuting witness. This might indicate that he was only an accessory, but the distinction between principals and accessories was abolished in this state in 1936. See Ark.Stat.Ann. § 41--118 (1947). Accordingly, even...

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14 cases
  • Holloway v. Arkansas
    • United States
    • United States Supreme Court
    • 3 d1 Abril d1 1978
    ...him in some specific fashion would not be susceptible of intelligent, evenhanded application. Pp. 490-491. 260 Ark. 250, 539 S.W.2d 435 [Fastcase Editorial Note: The Court's reference to 260 Ark. 250, 539 S.W. 435 is short for Holloway v. Arkansas, 260 Ark. 250, 539 S.W.2d 435] reversed and......
  • Box v. State
    • United States
    • Supreme Court of Arkansas
    • 4 d4 Abril d4 2002
    ...identifiable prison clothing. The U.S. Supreme Court's decision in Estelle was first noted by this court in Holloway, Welch & Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), rev'd on other grounds, Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). We have nev......
  • People v. Ballard, 76-565
    • United States
    • United States Appellate Court of Illinois
    • 20 d5 Outubro d5 1978
    ...examination of the defendants; each defendant proceeded to give unguided alibi testimony. On appeal to the Arkansas supreme court ((Ark.1976), 539 S.W.2d 435) the court observed that Hall had failed to outline to the trial court both the nature of the confidential information received from ......
  • Cannon v. State
    • United States
    • Court of Appeals of Arkansas
    • 2 d3 Julho d3 1997
    ...23, 637 S.W.2d 614 (1982) (citing Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)). See also Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), rev'd on other grounds, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). In the present case, there is no descripti......
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