Parker v. State

• Decision Date: 19 March 1979
• Docket Number: No. CR78-158,No. 2,CR78-158,2
• Citation: 578 S.W.2d 206,265 Ark. 315
• Parties: Sidney PARKER, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 206

578 S.W.2d 206

265 Ark. 315

Sidney PARKER, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-158.

Supreme Court of Arkansas, Division No. 2.

March 19, 1979.

Thomas G. Montgomery, Public Defender, West Memphis, for appellant.

Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant argues seven points for reversal of his conviction of selling or delivering a controlled substance on April 14, 1977. They are:

I

THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S OBJECTION TO THE FORM OF THE PROSECUTOR'S VOIR DIRE REGARDING UNDERCOVER AGENTS.

II

THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO PROCEED ON THE THEORY OF AN ACCOMPLICE, WHILE THE INFORMATION CHARGED THE APPELLANT AS PRINCIPAL.

III

THE TRIAL COURT ERRED IN PERMITTING THE POLICE OFFICER TO TESTIFY ABOUT HIS EFFORTS TO SET UP A "BIG BUY" UNRELATED TO THE CHARGE AGAINST THE DEFENDANT.

IV

AT THE CLOSING OF THE STATE'S CASE IN CHIEF, THE TRIAL COURT ERRED IN REFUSING THE DEFENDANT'S REQUEST FOR AN INSTRUCTION OF THE UNEXPLAINED FAILURE OF A PARTY TO PRODUCE A WITNESS, WHEN THE STATE HAD REFUSED TO CALL ITS UNDERCOVER AGENT TO TESTIFY.

V

THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO LEAD THE DEFENDANT'S WITNESS IN MATTERS BEYOND DIRECT EXAMINATION.

VI

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DIRECTED VERDICT AFTER FOIL PACKAGE WAS FOUND TO CONTAIN NO EVIDENCE OF HEROIN.

VII

THE DEFENDANT WAS PREJUDICED BY THE PROSECUTOR'S CLOSING ARGUMENT.

I

Appellant objected to the prosecuting attorney's statement during voir dire with reference to the state's use of undercover agents in controlled substance cases and his definition of an undercover agent on the ground that this was not a voir dire question but was testimony as to what an undercover agent does. The prosecuting attorney explained that he was laying a predicate and the objection was overruled. The inquiry then propounded to the prospective jurors pertained to the possibility of bias or prejudice against officers in that role, who might become witnesses in the case.

The extent and scope of voir dire examination of prospective jurors are matters lying within the sound judicial discretion of the trial court, the latitude of which is rather wide. Rule 32.2, Arkansas Rules of Criminal Procedure. Finch v. State, 262 Ark. 313, 556 S.W.2d 434. Lauderdale v. State, 233 Ark. 96, 343 S.W.2d 422. We will not reverse a ruling of the trial judge in permitting inquiries intended to elicit any possible bias or prejudice that might influence a venireman's verdict in the absence of a manifest abuse of that discretion. Cooper v. Kelley, 131 Ark. 6, 198 S.W. 94.

Appellant contends that the statement was "testimony" by the prosecuting attorney as to the character and credibility of the state's witnesses before they testified. The trial judge, who saw and heard the voir dire examination, was in the best possible position to judge whether it was conducted in good faith or was designed to create a bias or prejudice favorable to the state. Lauderdale v. State, supra. In passing on the good faith of the interrogator, the trial court necessarily must exercise a large amount of discretion. Bethel v. State, 162 Ark. 76, 257 S.W. 740. We cannot say that there was a manifest abuse of discretion in this instance.

II

The position of appellant on this point is somewhat confusing. He was charged as a principal. At some point during the examination of Robert York, a state policeman who worked primarily in an undercover capacity, as he was testifying about an alleged transaction with appellant, appellant's attorney (who is not representing him on this appeal) interposed an objection to allowing the state to amend its information or to try appellant as an accomplice. The attorney said that he had relied upon the language of the information and the opening statement of the deputy prosecuting attorney to the effect that appellant had delivered heroin.

York had testified that, when he expressed an interest in purchasing some heroin, Parker had said that he could get it for York if York would take him to the Ramada Inn, and that, after he had taken Parker there, Parker got out of the vehicle in which they had been travelling, went between some hallways and into the interior area of the motel and then returned and delivered to York a substance (later analyzed as heroin) and accepted $15 from York. The objection was based upon the fact that appellant was not charged with having stood by, aided, abetted or assisted another in the delivery of heroin and, there had been nothing to indicate that Parker was to be tried as an accessory. The attorney also pleaded surprise and moved for a continuance if the state was to be allowed to amend its information to charge that his client was an accomplice or accessory. The prosecuting attorney insisted that he was not asking that the information be amended, but he noted that, in a telephone conversation prior to the trial, Parker's attorney had said that, in a technical sense, his client had not made a delivery, in that value was not received and his client was simply an errand boy between the police officers and the real heroin dealer. The prosecuting attorney simply took the position that the jury should be instructed as to accomplice or accessory liability and asserted that, when Parker's attorney pursued the accomplice theory in voir dire examination, he had informed the trial judge that the state would request a charge to the jury on accomplice liability.

At the conclusion of all the evidence, the trial judge gave a correct instruction stating that a person is criminally liable for the conduct of another, when he is an accomplice to the other in the commission of a crime and defining an accomplice in the language of Ark.Stat.Ann. § 41-303 (Repl.1977). This definition includes one who solicits another to commit an offense, or who aids or attempts to aid another in planning or committing it. This instruction was given over the objection of appellant on the grounds heretofore stated and on the ground that the instruction did not require that it be shown that the defendant must have received something of value before he could be found guilty as an accomplice.

Appellant argues here that he first became aware that a conviction was sought on the basis that he was an accomplice, rather than a principal, during York's testimony, and that the offense charged was not stated with that degree of certainty required for pronouncement of a judgement of conviction or to enable him to plead the judgment in bar of further prosecution for the same crime.

In the first place, appellant relies upon such cases as Slay v. State, 161 Ark. 90, 255 S.W. 292 and State v. Masner, 150 Ark. 469, 234 S.W. 474, which were decided before the adoption of Initiated Act No. 3 of 1936, which materially changed the requirements as to allegations which must be included in an indictment or information. It is not necessary that the indictment state the act or acts constituting the offense, unless the offense cannot be charged without doing so. It is only necessary that the state file a bill of particulars setting out the act or acts on which it relies, when requested to do so by the defendant. Ark.Stat.Ann. § 43-1006 (Repl.1977). See Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311; Bryant v. State, 208 Ark. 192, 185 S.W.2d 280. If the allegations of the information were not sufficient to enable appellant to properly prepare his defense, he should have requested a bill of particulars. Craig v. State, 195 Ark. 925, 114 S.W.2d 1073. There is nothing in the abstract of the record to indicate that such a request was made and appellant is in no position to object here to the state's failure to file one. Smith v. State, 231 Ark. 235, 330 S.W.2d 58; Budd v. State, 198 Ark. 869, 131 S.W.2d 933. Even if there had been such a request, it was only necessary that the bill of particulars state the act relied upon with sufficient certainty to apprise the defendant of the specific crime with which he is charged. The information charged Parker with the crime of violation of the Arkansas Controlled Substances Act and stated that it was committed as follows:

The said defendant on the 14th day of April, 1977, in Crittenden County, Arkansas, did unlawfully and feloniously sell or deliver a controlled substance, to-wit: heroin, in violation of the Arkansas Controlled Substances Act, against the peace and dignity of the State of Arkansas.

If the information contained all that was required by statute prior to the adoption of Act 3, appellant would not have been entitled to a bill of particulars, because the information itself was a bill of particulars. Bryant v. State, supra. The information here was sufficient even under the cases relied upon by appellant. The acts constituting the offense are stated as fully as were those in Masner. And in Slay, an essential element of the offense of perjury was omitted. Here the information was sufficient because all the essential elements of the crime were covered in the statement of the acts constituting the offense. Ragsdale v. State, 222 Ark. 499, 262 S.W.2d 91; Silas v. State, 232 Ark. 248, 337 S.W.2d 644, cert. den. 365 U.S. 821, 81 S.Ct. 705, 5 L.Ed.2d 698.

Even under the statutes governing prior to Initiated Act No. 3, the rigidity of the requirements of particularity in detailing the acts constituting the offense charged were relaxed, so that the particular circumstances of the offense were not required to be charged unless they were necessary to constitute a complete offense, and where the offense was charged with sufficient certainty to enable the court to pronounce a judgment of conviction, the indictment was sufficient. Bramlett v. State, 184 Ark. 808, 43 S.W.2d 364. Since the abolition of the distinction between principals and accessories before the fact, an allegation in the information that an...