Patterson v. State, CR

• Decision Date: 24 October 1994
• Docket Number: No. CR,CR
• Citation: 318 Ark. 358,885 S.W.2d 667
• Parties: Charles L. PATTERSON, Appellant, v. STATE of Arkansas, Appellee. 94-412.
• Court: Arkansas Supreme Court

Page 667

885 S.W.2d 667

318 Ark. 358

Charles L. PATTERSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-412.

Supreme Court of Arkansas.

Oct. 24, 1994.

G. Keith Watkins, Cave City, for appellant.

Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Charles L. Patterson was charged in a four-count information with aggravated robbery, burglary, and two counts of theft of property. The crimes were committed in Independence County and the information was filed there, but the trial judge granted a change of venue to Fulton County. This change was granted in part because the four crimes were allegedly committed by appellant while he was on furlough from a forty-year sentence in the Arkansas Department of Corrections and because appellant allegedly committed other crimes in Independence County. Appellant was convicted on all four counts and was sentenced to life imprisonment for the aggravated robbery, twenty years for the burglary, fifteen years for one of the thefts, and ten years on the other theft. A total of $40,000.00 in fines was assessed. The two sentences for the thefts were ordered to be run concurrently, while all others were ordered to run consecutively. The result is that appellant received sentences of life plus thirty-five years and was fined. He appeals from all four convictions. There was no reversible error, and we affirm.

Appellant's first assignment is that the trial judge erred in refusing to dismiss all charges because of violation of the speedy trial rules. The trial judge ruled correctly. The four-count information was filed, and arrest warrants were issued, on June 19, 1992. That same day, appellant was arrested by federal officials in Odessa, Texas on separate federal charges. The federal authorities held appellant to answer charges in United States district courts in Colorado and Eastern Arkansas. On October 20, 1992, appellant was convicted in the United States District Court, Colorado District, of aircraft piracy, interference with a flight crew member, interstate transportation of a stolen aircraft, possession of a firearm by a convicted felon, and use of a firearm in relation to a crime of violence. He was sentenced to two hundred forty months in the United States Penitentiary at Leavenworth, Kansas. The next day, October 21, the prosecuting attorney wrote the circuit judge that appellant was being held by federal authorities for an additional federal trial in the Eastern District of Arkansas. The prosecuting attorney subsequently filed a detainer against appellant with the Federal Bureau of Prisons. On June 24, 1993, the Leavenworth Inmate Systems Manager notified the prosecuting attorney that appellant was currently out on a federal writ and would be notified of the detainer when he was returned to Leavenworth. Evidently the federal writ was issued to transport appellant to Arkansas because, on July 6, 1993, the United States District Court for the Eastern District of Arkansas found appellant guilty of air piracy and sentenced him to an additional three hundred thirty months at the federal penitentiary in Leavenworth.

The detainer warrant was served on appellant. On August 30, 1993, appellant was transported to Independence County for trial on the state charges. The warrants of arrest were served that day, and the next day, August 31, 1993, an arraignment was held and counsel was appointed. The trial court asked appellant's appointed counsel if the next session of court in Fulton County, which would begin on October 25, was an agreeable trial date and counsel responded affirmatively. The trial court then set October 25, 1993, as the trial date. On October 20, 1993, appellant filed a motion to dismiss alleging that his right to a speedy trial had been violated. The motion was denied, and appellant's trial commenced on October 25, 1993.

The general rule is that an accused's trial must be held within twelve months of the date the charges are filed. A.R.Cr.P. Rule 28.2(a). It is undisputed that appellant's trial began sixteen months and six days after the charges were filed, or four months and six days beyond the twelve-month period. Once it is shown that the accused's trial took place outside the twelve-month period, the State must show that the delay was justified under the rules of criminal procedure. Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). However, Rule 28.2 is interrelated with Rule 28.3, which sets out the periods of delay that "shall" be excluded in computing time for a speedy trial. Subsection (a) excludes a "period of delay resulting from other proceedings concerning the defendant, including but not limited to ... trials of other charges against the defendant." A.R.Cr.P. Rule 28.3(a).

A period of delay resulting from "trial of other charges against the defendant" in a foreign jurisdiction commences when the accused is taken to the foreign jurisdiction and ends when the trial in that jurisdiction is completed and the accused becomes available for extradition. Allen v. State, 294 Ark. 209 742 S.W.2d 886 (1988). In this case appellant was arrested by the federal authorities on June 19, 1992, and held for the first of his two federal trials, the one in the federal district court of Colorado. That trial ended on October 20, 1992. We do not know when appellant was transferred to the Leavenworth penitentiary and became available for extradition. However, if we use the date the trial ended as the date he became available, we find an excludable period resulting from "trials of other charges" that began June 19, 1992 and ended October 20, 1992; a total of four months and one day. Since the trial in the case at bar was only four months and six days outside the speedy trial period, the State only had to show another five days of excludable time. The additional excludable time was attributable to the other federal trial. On June 24, 1993, the Inmate Systems Manager of the federal penitentiary in Leavenworth advised the prosecuting attorney that appellant was "currently out on a federal writ" and probably would not be available on July 30, 1993. Appellant was then convicted of air piracy in the United States District Court for the Eastern District of Arkansas on July 6, 1993. This period, from June 24 to July 6, constituted an additional excludable period in excess of five days. In addition, appellant's attorney agreed to the October 25, 1993 trial date. Thus, the trial court did not err in denying the motion to dismiss for lack of a speedy trial.

In a related argument appellant contends that he was not tried within the time required by the Interstate Agreement on Detainers. See Ark.Code Ann. §§ 16-95-101 to-107 (1987). This Act provides that, after a prisoner in another jurisdiction is notified that a detainer has been filed against him, he may send the prosecuting attorney notification of his place of imprisonment and request that a final disposition be made of the charges filed against him in this State. See Ark.Code Ann. § 16-95-101, Article III(a) (1987). At that point, this State has one hundred eighty days to bring him to trial or the charges must be dismissed. Id.; see also Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993). Since appellant made no demand for trial in compliance with Article III(a), there was no violation of the Interstate Agreement on Detainers. Walker v. State, 263 Ark. 485, 565 S.W.2d 605 (1978).

Appellant is procedurally barred from his next point of appeal. In it he argues that the trial court erred in denying his motion to strike a juror for cause. However, at the time the court denied his motion he had five peremptory strikes and did not use one of those strikes on the juror. In order to preserve for appeal an objection to an empaneled juror, a party is required to have exhausted his peremptory challenges and must show that he was forced to accept a juror who should have been excused for cause. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994).

Appellant's final argument involves an evidentiary ruling. Appellant called Ralph Garcia to the stand and asked him if one of the victims had made any statements to him about this incident. The trial court sustained the State's objection based on hearsay. Appellant contends the answer should have been admitted as an inconsistent statement under Rule 613 of the Arkansas Rules of Evidence.

In order for this court to hold that evidence was improperly excluded, appellant must have made a proffer of the evidence under Rule 103. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). There was no proffer and the substance of the answer is not apparent. Therefore, we have no way of knowing whether the answer would have revealed an inconsistent statement. See A.R.E. Rule 103(a)(2). In addition, while extrinsic evidence of prior inconsistent statements is admissible for impeachment purposes under Rule 613(b), such evidence may not be admitted until the witness to be impeached has first been given an opportunity to explain or deny the statement. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). There is no showing that the victim was ever asked about a possible inconsistent statement.

Appellant received a life sentence. As a result, the record has been examined for any other rulings adverse to appellant that might constitute reversible error. See Ark.Sup.Ct.R 4-3(h). No other adverse rulings constitute reversible error.

Affirmed.

HOLT, C.J., dissents.

HOLT, Chief Justice, dissenting.

I must register my dissent in this matter because I believe that the State showed a lack of due diligence in securing Patterson's return to Arkansas from incarceration in federal prison in Kansas and that a prejudicial speedy-trial violation thus occurred. The conviction should be reversed and dismissed. As the majority opinion devotes little attention to the underlying facts, it is necessary to set them forth in some detail.

Facts

On April 10, 1992, Ed and Alma Ward...