Jones v. State

• Decision Date: 11 March 1996
• Docket Number: No. CR,CR
• Citation: 916 S.W.2d 736,323 Ark. 655
• Parties: Robert Lee JONES, Appellant, v. STATE of Arkansas, Appellee. 95-33.
• Court: Arkansas Supreme Court

Page 736

916 S.W.2d 736

323 Ark. 655

Robert Lee JONES, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-33.

Supreme Court of Arkansas.

March 11, 1996.

Henry J. Swift, Osceola, for appellant.

Brad Newman, Asst. Attorney General, Little Rock, for appellee.

CORBIN, Justice.

Appellant, Robert Lee Jones, appeals the judgment of the Mississippi County Circuit Court, filed on October 3, 1994, finding him guilty of one count of capital murder for the felony murder of Estella Black committed in April of 1993. Appellant was tried by a jury and sentenced to life imprisonment without parole. Jurisdiction is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(2). Appellant raises four arguments for reversal. We find no error and affirm the trial court's judgment.

1. Sufficiency of evidence

Appellant argues that there was insufficient evidence to support his conviction for capital murder. We consider this argument first because the double-jeopardy clause, as interpreted in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), precludes a second trial when a judgment of conviction is reversed for insufficient evidence. Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Appellant has failed to preserve this issue for our review due to a lack of specificity in his motions for directed verdict below.

Appellant moved for a directed verdict at the close of the state's case, as follows:

THE COURT: Let the record reflect that the State having rested, we're in chambers at the request of the defense for the purpose of making a motion for a directed verdict challenging the sufficiency of the evidence.

MR. SWIFT [COUNSEL FOR DEFENDANT]: That's correct.

THE COURT: And the motion will be denied.

(End of hearing.)

Proceedings then resumed in the courtroom at which time the defense immediately rested. The record states that "defense renewed the motion for a directed verdict which was heard and denied."

It is well-established that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the directed-verdict motion is made. E.g., Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264, (1996); Haltiwanger v. State, 322 Ark. 764, 912 S.W.2d 418 (1995). Neither appellant's original directed-verdict motion nor his renewal motion indicates that any specific deficiency in the evidence was called to the trial court's attention. Because there was a failure to raise the specific basis for a directed verdict at trial, appellant cannot now challenge the sufficiency of the evidence on appeal. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).

2. Speedy trial

Appellant argues the trial court erred in denying his motion to dismiss on the ground that the state failed to timely bring him to trial. Ark.R.Crim.P. 28.1. Appellant's trial began on September 14, 1994, a date more than twelve months after the speedy-trial period began on April 9, 1993, when appellant was taken into custody and incarcerated from that point forward. Thus, appellant established a prima facie case that a speedy-trial violation occurred, and the burden shifted to the state to show the trial court that the delay was the result of the appellant's conduct or otherwise legally justified. Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993). We find that the state met this burden.

On February 18, 1994, appellant filed a motion for continuance to obtain a psychological examination, to obtain discovery materials purportedly withheld by the state, and because:

4. As further grounds for this matter to be continued, the attorney for the Defendant has developed physical problems which will make it difficult for him to adequately represent the Defendant at trial. It is possible that the attorney for the Defendant may be hospitalized as a result of these physical problems in the next few days.

On February 18, 1994, appellant filed a separate motion for psychiatric examination. By order filed on February 22, 1994, the case was continued on appellant's motion to the first day of the next term of court on May 31, 1994. Appellant does not dispute, on appeal, the period of delay excluded under this order.

The gravamen of appellant's argument is that it was error to exclude the period of delay from May 31, 1994, until September 6, 1994, on the basis of the following order that was filed on September 13, 1994:

Now, on this 12th day of September, 1994, upon Motion of the Defendant, Robert L. Jones, by and through his attorney, Henry Swift, IT IS HEREBY CONSIDERED, ORDERED AND ADJUDGED that the above-captioned case is continued from May 10, 1994 until September 6, 1994 due to the illness of Henry Swift.

IT IS FURTHER ORDERED that the time between the dates be an excluded period of time within the meaning of the Speedy Trial Rules.

The September 13 order was signed by Circuit Judge Samuel Turner, Jr. The hearing on appellant's motion to dismiss was conducted by Circuit Judge Gerald Pearson.

Appellant argues that the September 13 order was obtained by the state, without action on the part of him or his trial attorney, Henry Swift, and was not reflected by any docket entry, as required by Ark.R.Crim.P. 28.3(i), and, therefore, the period of delay from May 31, 1994, until September 6, 1994, cannot be charged against him.

At the hearing on the motion to dismiss, the trial court requested evidence regarding the September 13 order. Deputy Prosecuting Attorney Richard Rhodes testified that, on or about May 9, 1994, he received a telephone call from Dr. Reggie Cullom, Mr. Swift's physician, who advised him that Mr. Swift was hospitalized, that Mr. Swift had informed him that he had a number of cases ready for trial in the upcoming term of court at the end of May, that Mr. Swift would be in no condition to try any cases in June, and asked that Mr. Swift's cases be continued due to his poor physical condition.

The trial court stated that pretrial criminal proceedings were held on May 10, 1994, for the term of criminal court that commenced on May 31, 1994. Mr. Rhodes testified that he went to the pretrial proceeding on May 10, 1994, and talked to Judge Turner, who indicated that he had also received a communication from Dr. Cullom.

Mr. Rhodes testified that, at the May 10, 1994 pretrial proceeding, Judge Turner announced that Mr. Swift was hospitalized and unable to try his cases in the upcoming term of court, and that all of Mr. Swift's cases were continued.

At the hearing on the motion to dismiss, Mr. Rhodes provided the trial court with a copy of a letter dated May 12, 1994, from Deputy Prosecutor Charles R. Easterling to Mr. Swift. Although the letter concerned another criminal case, it contained the following language that is pertinent to this appeal:

At the Osceola pre-trial on May 10, Judge Turner advised that he had been advised that you were having significant health problems which have resulted in your hospitalization and also your unavailability to try cases during the upcoming criminal term commencing May 31. It was Judge Turner's understanding that you wished to have all of your cases continued on defense motion until the next term which is September 6.

The record shows that a copy of the May 12 letter was filed in this case on May 23, 1994. Mr. Rhodes testified that, when appellant filed the motion to dismiss in August 1994, he examined the court docket, found no entry for May 10th, and, thereupon, prepared a written order memorializing the continuance from May 10, 1994, until September 6, 1994, that was granted at the May 10, 1994 pretrial proceeding.

At the hearing on the motion to dismiss, Deputy Prosecuting Attorney Shannon Langston testified that, on September 13, 1994, she filed the order continuing the case from May 10, 1994, until September 6, 1994, after she talked with Judge Turner and showed him Mr. Easterling's letter. Ms. Langston testified that Judge Turner glanced at the letter, had no qualms about signing the continuance order, and said that he did not believe he had not made docket entries that day, was very sorry that he had not made docket entries, and did remember making an announcement before court. Ms. Langston also testified that Mr. Guy Long, who had been described by Mr. Swift as someone "I could have and did have so he could sit with me at trial," was present in court on May 10, 1994, and "was in agreement."

At the hearing on the motion to dismiss, Mr. Swift testified that he was hospitalized in Memphis, Tennessee, from May 3, 1994, until his discharge on May 31, 1994. Mr. Swift did not controvert the fact that Judge Turner orally continued all of Mr. Swift's cases on May 10, 1994. Mr. Swift testified, however, that he did not request a continuance from May 31, 1994, and that neither Dr. Cullom nor Mr. Long was authorized to act for him or appellant.

The trial court determined that the delay from May 10, 1994, to September 6, 1994, was excludable by order of Judge Turner, and denied the motion to dismiss, stating:

Now, perhaps it's unfortunate--well, it's certainly true that Mr. Swift did not file a motion for continuance for the May term of court. No docket entry was made by the Court at that time. However, it is abundantly clear to the Court in reconstructing the record as to what actually transpired that the case was set for the May '94 session of court, that Mr. Swift was ill, hospitalized for a period of 27 days, three weeks or so, having been discharged on May 31st, the date set for trial.

It's clear abundantly to the Court that the State would not have been able to proceed to trial on May the 31st and subpoenaed witnesses and have them here for trial on that date under the circumstances. It's grossly unfair that the State would be penalized for not having tried the case at the May 31st session of court under the circumstances.

Communication was had with the judge and...