Smith v. State

Citation307 Ark. 542,821 S.W.2d 774
Decision Date13 January 1992
Docket NumberNo. CR,CR
PartiesJesse Wayne SMITH, Appellant, v. STATE of Arkansas, Appellee. 91-179.
CourtSupreme Court of Arkansas

Q. Byrum Hurst, Jr., Hot Springs, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Jesse Wayne Smith, appeals a decision of the Pike County Circuit Court denying his motions to dismiss the charge of manufacturing a controlled substance with intent to deliver. We find no error and affirm.

Appellant's motions to dismiss were based on former jeopardy grounds. He argues he has once been placed in jeopardy of loss of liberty because a jury was sworn to hear his case. The facts giving rise to this appeal follow.

Appellant's case was set for trial September 21, 1990. He was to be tried along with his co-defendant, George West, Jr. Jury selection for the consolidated trial began September 17, 1990. On the morning of September 17, 1990, ten jurors were approved by both defendants and the state when the jury panel was exhausted. The trial court recessed until a new jury panel could be assembled at approximately 3:00 p.m. that afternoon.

At some point during this process, appellant and his counsel engaged in plea negotiations with the state. Thus, when the second jury panel was formed, the new veniremen were notified they would be hearing only one case, that of appellant's co-defendant West. In the afternoon hours of September 17, 1990, two more jurors and an alternate juror were selected. Appellant's counsel, who also represented West at this point, continued the selection process and exercised his last strike on one of the original ten jurors; the alternate juror replaced the stricken juror and another alternate was chosen. All thirteen jurors were then sworn to hear the case against West and instructed to return for trial on September 21, 1990.

Appellant's counsel then notified the trial court that appellant's plea negotiations had been withdrawn due to appellant's misunderstanding of the conditions of the suspended sentence. The trial court accepted the withdrawal and stated that the jurors should be instructed to return the next morning to be qualified for appellant's case.

All but one of the jurors returned on September 18, 1990. With the exception of the one nonreturning juror, the first ten jurors, who were originally qualified for both defendants' cases, were seated in the jury box. The additional jurors, who were chosen from the second panel and only qualified to hear West's case, were also present in the courtroom. The selection and qualification proceedings for appellant's case were thus set to begin.

Consistent with the selection procedure used on the previous day, the eleventh and twelfth jurors were selected as well as an alternate; the alternate then replaced the stricken juror and another alternate was chosen. The additional four jurors were qualified by both appellant and the state to hear appellant's case. The four newly-qualified jurors were then sworn to hear appellant's case. The other nine jurors had been qualified to hear appellant's case, but because of the plea negotiations, had only been sworn for West's case. Thus, the original nine jurors had not been sworn to hear appellant's case. Because one of the nine jurors was not present for the proceedings held on September 18, 1990, the trial court decided to wait until the morning of the trial to swear all of the jurors together. Thus, at the close of the proceedings on September 18, 1990, a full jury had not been sworn to hear appellant's case.

Trial was still set for September 21, 1990, but was continued on motion of appellant's counsel due to a conflict of interest in representing the two defendants in a consolidated trial. The two cases were later severed and appellant's trial was rescheduled for February 15, 1991. On October 4, 1990, and again on January 31, 1991, appellant filed written motions to dismiss the charge based on double jeopardy grounds. Appellant argued that a jury had been sworn to hear his case but that he had never been brought to trial. Appellant claimed that because the jury had been sworn but had never heard his case, jeopardy attached. On June 4, 1991, the trial court entered an order denying, without explanation, appellant's motion to dismiss. It is from this order that appellant appeals.

We have previously held...

To continue reading

Request your trial
12 cases
  • Blueford v. State, CR 10–554.
    • United States
    • Supreme Court of Arkansas
    • February 24, 2011
    ...the court can grant a mistrial without barring subsequent prosecution only if there is an “overruling necessity.” See Smith v. State, 307 Ark. 542, 545, 821 S.W.2d 774, 776 (1992) (quoting Wilson v. State, 289 Ark. 141, 145, 712 S.W.2d 654, 656 (1986)). Under Arkansas law it is well settled......
  • Hale v. State
    • United States
    • Supreme Court of Arkansas
    • February 11, 1999
    ...the court can grant a mistrial without barring subsequent prosecution only if there is an "overruling necessity." See Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992); Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). Specifically, Ark Code Ann. § 5-1-112(3) (Repl.1997) provides A fo......
  • Blueford v. State Of Ark.
    • United States
    • Supreme Court of Arkansas
    • January 20, 2011
    ...the court can grant a mistrial without barring subsequent prosecution only if there is an "overruling necessity." See Smith v. State, 307 Ark. 542, 545, 821 S.W.2d 774, 776 (1992) (quoting Wilson v. State, 289 Ark. 141, 145, 712 S.W.2d 654, 656 (1986)). Under Arkansas law it is well settled......
  • Sherman v. State, CR
    • United States
    • Supreme Court of Arkansas
    • September 30, 1996
    ...considerations is an appealable decision. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992) (citing Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990) and Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959)). App......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT