Rowland v. State, s. CR77-208 and CR77-209

• Decision Date: 13 March 1978
• Docket Number: Nos. CR77-208 and CR77-209,No. 2,s. CR77-208 and CR77-209,2
• Citation: 263 Ark. 77,562 S.W.2d 590
• Parties: Roger ROWLAND, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 590

562 S.W.2d 590

263 Ark. 77

Roger ROWLAND, Appellant, v. STATE of Arkansas, Appellee.

Nos. CR77-208 and CR77-209.

Supreme Court of Arkansas, Division No. 2.

March 13, 1978.

Murphy & Carlisle, Fayetteville, for appellant.

Bill Clinton, Atty. Gen. by Joyce Williams Warren, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

These two cases were consolidated for briefing and submission on appeal. In CR-77-208, appellant Rowland was charged by information filed in the Circuit Court of Madison County on February 14, 1977, with sale of a controlled substance on or about September 28, 1976. In CR-77-209, by information also filed on February 14, 1977, but in the Circuit Court of Carroll County, he was charged with sale of a controlled substance on or about September 10, 1976. He was found guilty of both charges in separate trials. On appeal, he relies on a single point for reversal in CR-77-209. In that case he contends that the circuit judge erred in denying a pretrial motion by his attorney, John William Murphy, under Rule 19.7, Arkansas Rules of Criminal Procedure, that defendant be granted a continuance or that the state be prohibited from introducing into evidence any material which had not been disclosed to his attorney, John William Murphy, pursuant to Rule 17.1, Arkansas Rules of Criminal Procedure. He urges the same ground, along with two others, for reversal of the judgment in CR-77-208. We find no reversible error on this point.

On March 15, 1977, an omnibus hearing was held in both cases. At this time, appellant was represented by Douglas L. Wilson. The record of that hearing shows that the prosecution stated that it had disclosed all evidence in its possession favorable to the defendant on the issue of guilt. It also shows that the state had furnished all information requested by the defendant for discovery purposes except that books, papers, documents, photographs or tangible objects to be used at the hearing had not been made available to the defendant for inspection and copying, but the order stated that they would be. Prior convictions of defendant upon which the state intended to rely for impeachment had been furnished to defense counsel by the state. The record of the hearing was approved by Wilson as appellant's attorney.

On July 8, 1977, Wilson filed a motion asking that he be permitted to withdraw as appellant's attorney, because his fee had not been paid as agreed. Appellant retained his present counsel. On July 18, 1977, the circuit judge advised Murphy that trial in one of the cases would be held on July 25 and the other on July 26. Prior to trial, Murphy filed the motion under Rule In overruling appellant's motion, the trial judge stated:

19.7. Attached to the motion as exhibits were the letters written by Wilson and Murphy. The motion and exhibits disclosed that Wilson had advised Rowland of his intention to withdraw by letter dated July 6, enclosing copies of his motions; that Murphy was employed by Rowland; that on July 8 Murphy wrote the prosecuting attorney, informing him of the change in attorneys and requesting copies of the informations and "any other documents which you may have pertaining to the omnibus hearing;" that on July 14, Murphy wrote the circuit judge, asking for a continuance for a reasonable period in order to prepare a defense; that the circuit judge responded by letter dated July 18, 1977, in which he declined to continue the cases, which had already been set for July 25 and 26; and that the prosecuting attorney had not responded to Murphy's request for discovery. The court's order permitting Wilson to withdraw was not actually entered until July 22.

* * * Well, your motion will be overruled because there was an omnibus hearing in this case and the State provided the information at that time that was required under the rules and the statutes. There were no requests for additional discovery and no request for a Suppression Hearing in this particular case so the rule which you cite is not applicable in this particular case under those circumstances.

When appellant's new counsel objected and asked that the record show that the information had been furnished to the attorney who had asked leave to withdraw, the circuit judge responded:

Well, there was no order made until I was assured that you had been employed by your letter and after that time then I did permit him to withdraw but from July the 8th to July the 25th is plenty of time to obtain whatever information was in his possession.

Appellant does not contend that the prosecuting attorney failed to comply with Rule 17.1 as to disclosure or any condition set out in the record of the omnibus hearing. He only contends that the prosecuting attorney did not repeat these disclosures for the benefit of substituted counsel. Appellant relies upon the provision of Rule 19.7(a) that, if it has been brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.

We need not determine the latitude of the trial court's discretion under Rule 19.7(a), except to say that the court does have some discretion in the matter and that it was not abused here. The right of discovery is not personal to the attorney representing a defendant. It is the right of the defendant. There is nothing in the rules requiring that there should be repeated disclosures of the same information. There is no doubt that, upon a proper showing, the trial court could have required a second disclosure of the same information. It must be remembered that requiring repeated disclosures of the same information could impose an undue burden on a prosecuting attorney. In this case appellant did not show circumstances that required a repetition of disclosures already made. The letter from the substituted counsel to the prosecuting attorney clearly showed that, more than two weeks before trial and within two days after appellant's original counsel wrote his letter of withdrawal, substituted counsel knew of the omnibus hearing. One of the purposes of that hearing is to resolve any questions about discovery procedures. Rule 20.3(a)(ii), Rules of Criminal Procedure. There is nothing whatever to indicate that substituted counsel ever communicated with appellant's original attorney or that the information he sought would not have been readily available from this attorney.

We do not attach any significance whatever to the fact that the trial judge did not formally grant Wilson's motion to withdraw until July 22. There is no contention that appellant, his substituted counsel and the judge were not all fully aware of the situation one to two weeks prior to this date.

In CR-77-208, appellant lists two additional points for reversal. The first is that the trial court erred in not admonishing the prosecuting attorney about remarks made in his opening statement and closing argument. We find no abuse of the trial court's discretion in this regard. The prosecuting attorney, in outlining the evidence the state expected to present stated that Gaylen Hutchinson, a state trooper, who was working undercover to purchase drugs from dealers, had arranged a meeting with appellant to discuss a large transaction in drugs and that they met at Marble. He then stated that there were four young people with Rowland, that these young men were there for the same purpose, and that Rowland finished his transaction with these boys, got back with Hutchinson, and Hutchinson got in a vehicle with Rowland. According to the record, the following statements were made:

MR. KEENAN: * * * The defendant was mad or upset. I shouldn't say really mad but he was upset because these boys had ordered some dope and had ordered to .

MR. MURPHY: Object, Your Honor, unless this can be shown.

THE COURT: What?

MR. MURPHY: We object unless this can be shown.

THE COURT: Well, the jury is told that the statements of both attorneys are not evidence, that you will try the case on the evidence only. Now, let's proceed.

No further action was requested by appellant. During the trial Hutchinson testified that when he met Rowland, four white males drove up in a Toyota or Datsun, one of whom he knew. He said that they appeared to be around 17 or 18 years of age. He said that two of them got in a car with Rowland and that, at Rowland's direction, he followed them to a small store, where some discussion took place between Rowland and the four young men, after which Rowland instructed Hutchinson to follow them back to Marble that he had a business transaction taking place. After these young men left, Rowland complained that one of them had ordered two or three "lids" but only took one, according to Hutchinson, who said that he then offered to buy one of those and that Rowland pulled two "lids" from under the seat of his car and sold one of them to Hutchinson. Hutchinson described a "lid" as a plastic sandwich bag partly filled with marijuana. No objection was made to any of this evidence.

In closing argument the prosecuting attorney made these statements:

* * * Now, he'd like you to forget those four young men, those four 17 and 18 year old boys....