Satterfield v. State, 5481

• Decision Date: 30 March 1970
• Docket Number: No. 5481,5481
• Parties: Leon SATTERFIELD, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 730

451 S.W.2d 730

248 Ark. 395

Leon SATTERFIELD, Appellant, v. STATE of Arkansas, Appellee.

No. 5481.

Supreme Court of Arkansas.

March 30, 1970.

Troy L. Henry, Jonesboro, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

This case was before our court in Satterfield v. State, 245 Ark. 337, 432 S.W.2d 472 (1968), wherein we reversed a conviction on a charge of arson. On retrial Satterfield received the same punishment as on the first trial. The action of the trial court in instructing the jury on the statutory minimum and maximum punishment; in permitting the introduction of a transcript of testimony of two witnesses taken at the first trial and who were not present for the second trial; and in allowing the case to be submitted to the jury--those are the points upon which appellant seeks reversal.

Appellant was convicted on the testimony of three young companions who testified as to remarks made by appellant which could be interpreted to mean that he intended to burn the barn; they further testified that they were in the car with him when he drove to the farm and they saw the blaze originate after appellant made a trip to the barn; and that appellant returned later and watched the barn and its contents of dry hay burn. The owner testified that the barn was not wired for electricity and that the materials of which it was constructed were not combustible; and also that the portion in which the hay was stored was not boxed in. We will not further detail the testimony, referring interested parties to the facts set forth in the first opinion. Such other facts as are necessary to explicate this case will be detailed as we presently set out and discuss the three points for reversal.

Point I. Appellant having received a one-year sentence at the first trial, it was error to submit to the jury a possible sentence exceeding one year. The trial court instructed the jury that it could fix punishment at between one and ten years as provided by Ark.Stat.Ann. § 41--501 (Repl.1964). Appellant objected and urged, on constitutional grounds, that when an accused obtains a reversal and new trial he cannot, on the second trial, receive a sentence greater than that fixed at the first trial. That same issue was raised in the recent case of Fuller and Walton v. State, (Ark., April 21, 1969), 439 S.W.2d 801 (certiorari denied November 17, 1969, 396 U.S. 930, 90 S.Ct. 260, 24 L.Ed.2d 228). There we said:

We hold that under the law of Arkansas a new trial granted in a criminal case for error committed in the first trial constitutes a new trial as to penalty imposed by the verdict, as well as to guilt or innocence where the verdict in the second trial is for the same degree of crime as the first verdict, and the penalty assessed by the second verdict is of the same nature and within the statutory limitations for the degree of the crime involved.

Appellant argues that Fuller has been overruled by the later case of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Simpson v. Rice, consolidated with Pearce. Pearce and Rice were sentenced after retrial in the States of North Carolina and Alabama, respectively. In those States the court sets the punishment after a verdict of guilty is returned by the jury. In the cited cases the court held, among other things, that the equal protection clause of the Fourteenth Amendment does not impose an absolute bar to a more severe sentence upon reconviction, nor does the double jeopardy clause of the Fifth Amendment impose such a bar. It was held that the due process clause requires that 'vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.' To insure against that motive a sentencing judge imposing a more severe sentence after the second trial must point up the factual data upon which the increased sentence is based.

For yet another reason appellant's Point I is without merit. That is because he received identical sentences in both trials, being the minimum punishment, hence there was no prejudice. Shaddox v. State, 244 Ark. 747, 427 S.W.2d 198 (1968).

Point II. A good faith effort was not made to obtain the presence of two witnesses who testified at the first trial; it was therefore error to permit the reading of their prior testimony to the jury in the second trial.

Two State's witnesses, Jerry Turner and Larry Dunn, were reportedly out of the State on the date of the second trial. Over appellant's objection the court permitted the introduction of their testimony given at the first trial.

It has long been the rule in our State, as well as in many other jurisdictions, that the right of confrontation by a witness may be dispensed with when that witness is unavailable and has given testimony in a previous proceeding against the same defendant, provided the witness was subject to cross-examination in the first proceeding by that defendant. The most common excuse for the exception heretofore recognized has been the absence of the witness from the trial court's...