Parker v. State, CR
| Decision Date | 10 November 1980 |
| Docket Number | No. CR,CR |
| Citation | 271 Ark. 84,607 S.W.2d 378 |
| Parties | Cleveland PARKER, Appellant, v. STATE of Arkansas, Appellee. 80-169. |
| Court | Arkansas Supreme Court |
Paul Johnson, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Arnold M. Jochums, Asst. Atty. Gen., Little Rock, for appellee.
Cleveland Parker's conviction for aggravated robbery must be reversed because the trial court failed to grant a continuance.
Parker's case was set to be tried before a jury November 5, 1979. His attorney also represented William Compton whose criminal case was later set for the same day. Parker's attorney was certain that at the time the Compton case was set the court told him that the Parker case would be rescheduled.
Shortly before trial date, the Compton case was passed. On the Friday afternoon before Monday, November 5th, Parker's attorney was called and told the Parker case would be tried as originally scheduled.
Parker's lawyer filed a motion for continuance the first thing Monday morning. He said that (1) he had been informed that the Parker case would not be tried that day; (2) he was unable to prepare for the case over the weekend because he had not been able to locate any of the witnesses; and, (3) he had not even located the accused until Sunday afternoon.
The court called as a witness the She testified that the docket reflected that the Parker case was set for November 5th and that she had not changed it or notified Parker's lawyer that the case would be reset. On cross-examination she admitted that the handwriting on the docket regarding both cases was not hers but apparently that of another court employee.
Parker's attorney took the witness stand and said that he did not object when the Compton case was set for trial the same day as the Parker case but that he had pointed out to the court that the Compton case would take about a week to try and the Parker case should be reset. He said the court informed him that the Parker case would be rescheduled. Consequently, Parker's lawyer testified that he did not prepare for the case and did not know it would go to trial on November 5th until he was notified on the previous Friday afternoon.
The court never commented one way or the other but asked Parker's lawyer if he could get ready in thirty minutes since a jury was waiting. Parker's lawyer said he would do the best he could.
There is no doubt that Parker's lawyer acted in good faith. In addition to granting a thirty minute delay, the trial court remarked:
I think what we'll do is go ahead and try the case and see how it goes and I will keep in mind that I might, depending on the circumstances, grant a new trial. If the verdict should go against the defendant....
At the conclusion of the trial, Parker's attorney renewed the motion for a continuance and the judge denied it without comment.
The law in regard to a continuance was stated in Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977), where the court stated:
The matter of continuances is addressed to the sound judicial discretion of the trial court, and its action will not be reversed on appeal in the absence of such a clear abuse of that discretion as to amount to a denial of justice. (Emphasis added.)
We believe in this case that the defendant did not obtain a fair trial. He was denied an opportunity to present his case and this denial resulted neither from actions of his own nor through the negligence or intentional misconduct of his attorney which might be attributable to him. Two key witnesses were unable to be located in time and their testimony was critical to his defense.
There is no doubt that there was a mix-up which could not be solely attributed to Parker's counsel. In fact, the counsel's testimony was not denied. The court was in a perfect position to comment that the facts were not as Parker's attorney represented them. It failed to do so. In any event, a criminal trial is not such a casual thing that when such a mix-up occurs, a trial can proceed without regard to whether one can be given a fair opportunity to present his case.
Parker's counsel also argues that the evidence was insufficient to warrant a finding of guilt for aggravated robbery. The victim said that Parker put his hand in his pocket and asked for money; she thought he had a gun and she was scared. That was sufficient evidence to support a finding of aggravated robbery. The situation is unlike the case where the defendant had his hand in his shirt, the victim did not think he had a gun and was not scared. See Fairchild v. State, 269 Ark. ---, 600 S.W.2d 16 (1980).
Reversed and remanded.
MAYS, J., not participating.
At the arraignment of appellant on July 16, 1979, both he and his counsel were informed by the court that the case was set for a jury trial on November 5, 1979. Thereafter, another criminal case, State v. Compton, in which appellant's counsel also represented the defendant, was transferred to the same division of the Pulaski County Circuit Court in which this case was pending and it was also set for a jury trial on November 5, 1979. Appellant's counsel testified, at the pretrial hearing on his motion for continuance, as to the discussion that occurred at the arraignment of Compton We were looking for a week in which to try Compton. The week of November the 5th was free except for one case that was involving Cleveland Parker, Jr. which was set for jury trial, Monday. At that time, I was informed and as I recall by the Court that we could reset Parker and try Compton that week. With that in mind I never thought or bothered to do any more on the Parker case until I received notice of when it would be reset. The State subsequently requested that Compton be continued. This was about two weeks ago. And this Court-I believe entered its order without objection transferring it to December the 17th. ...
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