Spears v. State

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN
• Citation: Spears v. State, 568 S.W.2d 492, 264 Ark. 83 (Ark. 1978)
• Decision Date: 17 July 1978
• Docket Number: No. CR77-84,No. 2,CR77-84,2
• Parties: Quinton SPEARS, Jr., Appellant, v. STATE of Arkansas, Appellee

Page 492

568 S.W.2d 492

264 Ark. 83

Quinton SPEARS, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR77-84.

Supreme Court of Arkansas, Division No. 2.

July 17, 1978.

Guy Jones, Jr., Guy H. Jones, Phil Stratton, Casey R. R. Jones, Conway, for appellant.

Bill Clinton, Atty. Gen. by Joseph H. Purvis, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Quinton Spears, Jr. was charged with delivery of one pound of marijuana on June 19, 1975, and sale or delivery of phencyclidine, sometimes called PCP or T to Don Sanders of the Arkansas State Police on three separate occasions, i. e., on June 5, June 6 and June 15, 1975. His defense was entrapment by an informant variously known as Junior Caldwell, Izzy Caldwell, Izzie Lee Caldwell, Jr., Isaac Dominic, Isaac Dominy, Izzie Dominy and Izzie Lee Dominy (or Dominic). Spears was found guilty on all four counts and was given a sentence of eight years and a fine of $8,000 for sale or delivery of marijuana and three years for delivery of PCP in each case and fined $2,000 on one charge and $1,000 each on the other two. He asserts six points for reversal. We find reversible error as hereinafter indicated.

I

The first point has to do with the form of the jury verdicts. In each case, the verdict provided for a prison sentence and a fine. The statute under which the charges were laid (Ark.Stat.Ann. § 82-2617 (Repl.1976)) provides in every instance for a prison sentence or a fine or both. The forms submitted to the jury did not indicate that the jury had the right to impose either a prison sentence or a fine or both. The form indicated that both imprisonment and fine were mandated. No instruction as to punishment was given by the trial court. The only reference to the permissible punishment on the charges presented to the jury was in the forms of verdict submitted. A form typical of them follows:

"We, the jury, find the defendant, Quinton Spears, Jr., guilty in Case $ CR-75-187 in that he did deliver a controlled substance, phencyclidine, to Don Sanders for the sum of $10.00 on June 15, 1975, and fix his punishment at years in the Arkansas State Penitentiary and dollars. (3 to 10 years and up to $15,000.00)." (Emphasis ours.)

Although the verdict form submitted in Harris v. State, 262 Ark. 680, 561 S.W.2d 69, used the conjunction "and/or" rather than "and" to join the phrases on potential imprisonment and on potential fine, we reversed a verdict in which the jury had inserted a term of years in the blank for imprisonment and an amount in dollars in the blank for fine, because the verdict form did not sufficiently explain the options available to the jury in fixing punishment. Even though the use of "and/or" in civil or criminal proceedings has been condemned and described as "slovenly" pleading, and as having brought more confusion than clarity to the task of construction of statutes, contracts and pleadings, it does not render a sentence in which it is used meaningless if the intention of the user can be ascertained so this "hybrid" conjunction can be taken to mean either "and" or "or." See Gurein v. State, 209 Ark. 1082, 193 S.W.2d 997; Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953. In Harris, we could not determine the intention of the jury, even though an instruction as to the options had been given. The lack of any advice to the jury, other than the verdict forms, is certainly more prejudicial to the accused than was the case in Harris.

We must reverse the judgment on the basis of the verdict forms submitted, unless the failure of appellant to object constituted a waiver. In Rowland v. State, 263 Ark. 77, 562 S.W.2d 590 (1978), where the form of verdict did not mention punishment alternatives and the trial judge had fully instructed the jury on that subject, we held that there was no reversible error in the jury verdict imposing both forms of punishment, even though appellant had objected to the failure of the form of verdict to state the options. We pointed out that, if a defendant desires a particular form of verdict, or any instruction to the jury as to the form submitted, it is his duty to prepare and submit a correct form or instruction and request the trial court to submit or give it. This was not done in this case, probably because the trial court informed the jury just prior to commencement of arguments by the attorneys that verdict forms would be prepared for each case and stapled together and that the attorneys would explain them, and the punishment on a finding of guilty, to the jury.

Appellant says that his attorney never had an opportunity to see the forms or to either explain or object to them, because the trial judge, instead of furnishing the forms to trial counsel, handed them directly to the jury. He relies upon the holding in Alford v. State, 223 Ark. 330, 266 S.W.2d 804. In Alford, the death penalty had been imposed and we held that it is the affirmative duty of the trial court to bring to the attention of the jury, the option it then had between the death penalty and life imprisonment, and that the failure to do so was reversible error, in spite of the fact that the accused had not asked the court to do so. The rule of Alford once was reserved for capital cases. See Webb v. State, 154 Ark. 67, 242 S.W. 380, 383 (opinion on rehearing). We did not apply it in Brown v. State, 261 Ark. 683, 550 S.W.2d 776, as appellant contends, where the appellant submitted proper forms of verdict. We will not apply it in cases arising after the decision in Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978), because of the many opportunities to raise the question in the trial court pointed out in Goodwin and Rowland v. State, supra. In other words, a question of this sort must first be raised in the trial court, before we will consider it on appeal.

The state does not concede that appellant was deprived of an opportunity to raise the question here. It asserts that there were three opportunities afforded appellant. It first points out that appellant requested no instruction as to the possible punishments. But appellant may not have felt it necessary when verdict forms might have been submitted which themselves furnished adequate explanation. See Shelton v. State, 261 Ark. 816, 552 S.W.2d 216, decided after this case was tried. The state also contends that appellant could have presented his own suggested form of verdict. But Rowland v. State, supra, was not decided until after this case was submitted. Appellee also contends that, since the trial judge stated that the attorneys would explain the verdict form, it is obvious that appellant's attorney saw the forms at some time prior to their delivery to the jury. In view of a silent record, we cannot assume that this is so, and must give appellant the benefit of any doubt about the matter. We are compelled to reverse the judgment on this ground.

II

Appellant argues that the trial court erred in excluding testimony relative to Junior Caldwell, an admitted state informant, whom appellant describes as an informant, perpetrator and agent provocateur for one Don Sanders, an undercover agent with the narcotics section of the Arkansas State Police. Appellant caused a subpoena to be issued for Caldwell. Although it was served, Caldwell failed to appear and the court ordered a warrant of arrest to be issued for him. The warrant was placed in the hands of the sheriff of Faulkner County. It was never served and Caldwell did not appear. Apparently, the failure to execute the warrant was attributable to the fact that Caldwell was then in the naval service of the United States. Appellant's defense was that he was entrapped by Caldwell and that Caldwell was not only the source for the marijuana he procured, but that he enticed appellant to enter into the transactions which resulted in the charges against appellant.

The first witness who was not permitted to testify was Lynn Bell. At a pretrial hearing at which the trial court ruled her testimony inadmissible, she testified that her relationship with Caldwell was very close, and that she was a confidant of his. She said that Caldwell had sold drugs in Faulkner County and had gotten into trouble in Stone County, after which his financial condition was such that he lived off her. She said she accompanied him to Mountain View when he was arraigned on the Stone County charges. Appellant's efforts to proffer the testimony of this witness were abruptly halted by the trial judge, who held that her testimony was not competent in any way. Appellant's attorney then stated that if permitted to testify, this witness would say that:

Caldwell had dealt in controlled substances for a number of years; she had worked with him and tried to get him out of the drug traffic; after telling her that, in order to get out of trouble himself, he would have to set other people up, he had a conference with Jerry Roberts, an undercover state police officer, and thereafter his car, which was "shot" had been repaired and four new tires placed on it; Caldwell told her that he was going to "set up" people by causing them to purchase or secure controlled substances and that Quinton Spears, Jr. was one of the individuals that he was to induce or entice or otherwise cause to procure marijuana and other drugs; Caldwell was following the advice of Roberts and Sanders and told her that he was to be paid by state or federal authorities; just before Caldwell went into the navy, he had called her by telephone and told her that he had "set up" many of his close friends in transactions at the request of Arkansas State Police and federal officers.

Appellant did not contend that this witness was present during any transaction in which he was involved. The trial judge held that this testimony would be inadmissible, since Caldwell would not testify. Of course, the trial court's ruling was correct insofar as the testimony related to any bias of Caldwell in the matter.

It...