Sullivan v. State
| Decision Date | 23 February 2012 |
| Docket Number | No. CR 11–1026.,CR 11–1026. |
| Citation | 386 S.W.3d 507,2012 Ark. 74 |
| Parties | Cameka SULLIVAN, Appellant v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
J. Brent Standridge, Little Rock, for appellant.
Dustin McDaniel, Atty. Gen., by: Rachel Hurst Kemp, Little Rock, for appellee.
Appellant, Cameka Sullivan, appeals the judgment of the Saline County Circuit Court sentencing her to a cumulative sentence of 216 months' imprisonment and convicting her of permitting the abuse of her minor child and hindering the apprehension or prosecution of her child's abuser. She asserts six points of error in her trial, including that her trial was not speedy, that the evidence was insufficient to support her convictions, that the circuit court committed trial errors in admitting hearsay, irrelevant, and speculative testimony and in allowing the State to improperly bolster the credibility of a witness, and that she was erroneously required to register as a sex offender. The Arkansas Court of Appeals affirmed her convictions. Sullivan v. State, 2011 Ark. App. 576, 378 S.W.3d 921. Appellant petitioned this court for review, asserting among other grounds, that the decision of the court of appeals is in conflict with this court's decision in Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994). Because we granted Appellant's petition for review, our jurisdiction of it is pursuant to Arkansas Supreme Court Rule 1–2(e) (2011). When we grant review following a decision by the court of appeals, we consider the appeal as though it had been originally filed in this court. Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203. Upon such review, we find no error in the circuit court's judgment and affirm; the opinion of the court of appeals is vacated.
Because a finding that a defendant's right to a speedy trial has been violated operates as a dismissal of charges with an absolute bar to prosecution, we first consider Appellant's argument that she was not timely brought to trial. Appellant filed two pro se motions to dismiss her case on speedy-trial grounds, and her counsel filed a motion that supplemented the pro se motions. The State filed a written response, and the circuit court held a hearing on December 7, 2009. The circuit court ruled from the bench at the conclusion of the hearing that the State had met its burden of proof and still had approximately sixty days in which to try Appellant. On June 15, 2010, the circuit court entered a written order denying Appellant's motion to dismiss “[f]or the reasons stated at the conclusion of the hearing.” Appellant then filed a petition for writ of certiorari with this court, which we denied without prejudice by letter order dated June 21, 2010. Sullivan v. Phillips, CR 10–616. On appeal, Appellant argues that the circuit court erred in denying her motions to dismiss, and she specifically challenges two time periods the circuit court excluded from its speedy-trial calculation.
Pursuant to Rule 28.1 of the Arkansas Rules of Criminal Procedure (2011), the State is required to try a criminal defendant within twelve months, unless there are periods of delay that are excluded pursuant to Rule 28.3 of the Arkansas Rules of Criminal Procedure (2011). Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). If a defendant is not brought to trial within the requisite time, Rule 30.1 of the Arkansas Rules of Criminal Procedure (2011) provides that the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Id. Once the defendant establishes that the trial is or will be held outside the applicable speedy-trial period, she has presented a prima facie case of a speedy-trial violation, and the State then has the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. Id. On appeal, we conduct a de novo review to determine whether specific periods of time are excludable under our speedy-trial rules. Id.
Appellant was arrested on July 10, 2005, and charged the next day with first-degree battery and hindering apprehension. The State later amended the battery charge to permitting abuse of a minor. Appellant was tried and convicted of those two charges on June 22, 2010. Therefore, she has demonstrated that her trial occurred more than twelve months from her arrest, and the burden is on the State to show that the delay was the result of Appellant's conduct or otherwise justified. For the reasons expressed in our following analysis, we conclude that the State has satisfied its burden of demonstrating that the delay was due to Appellant's conduct.
Appellant's case was first set for trial on April 6, 2006. The circuit court correctly ruled that this period of just less than nine months was charged against the State in calculating the speedy-trial period. The State therefore had approximately three months, or ninety days, in which to try Appellant.
Appellant concedes that the record reflects that her case was continued from the first trial date of April 6, 2006, until the subsequent trial date of November 22, 2006, and that this time period is properly excluded from the speedy-trial calculation. Appellant also concedes that her case was continued by agreement from the November 22, 2006 trial date until a new trial date of May 15, 2007. Appellant thus agrees that this time was properly excluded from her speedy-trial calculation.
Appellant also concedes that the circuit court's docket reflects that her case was called for trial on December 11, 2007, but argues that there is nothing in the record to reflect that the period from May 15, 2007, to December 11, 2007, should be excluded from her speedy-trial calculation. Appellant's argument with respect to this time period is without merit. At the hearing on her motion to dismiss, Paul K. “Pete” Lancaster, the attorney who represented Appellant during the contested time period, testified that both she and her child's abuser, Victor Lyons, were to be tried as codefendants on May 15, 2007, but that he requested a continuance of Appellant's trial because she was involved in an automobile accident on the way to the courthouse.1 This time period was thus properly excluded pursuant to Rule 28.3(c) as a continuance granted at the request of Appellant's counsel. Lancaster's request for a continuance was made in chambers during Lyons's trial and was recorded by the court reporter. The transcript of that in camera request was admitted into evidence during the hearing on Appellant's motion to dismiss, and it clearly reflects that Lancaster requested the continuance and the tolling of the speedy-trial time due to Appellant's accident and injury on the way to court.
On appeal, Appellant takes issue with the fact that the new trial date was not set contemporaneously with the request for the continuance. After initially expressing concern about this time period, the circuit court observed that the trial date was reset for December 11, 2007, by letter from the court's case coordinator dated June 27, 2007. Thus, the circuit court ruled that the record of the discussion in chambers combined with the court's June 27, 2007 letter comprised a sufficient record to support the tolling of the speedy-trial time for the period from May 15, 2007, to December 11, 2007.
We affirm this ruling as correct, as there is no requirement in Rule 28.3(c) that the new trial date be set contemporaneously with the granting of the continuance,and as the failure to do so here was likely because Appellant's trial counsel requested and was granted the continuance in the midst of the ongoing trial of Appellant's codefendant. Appellant's current counsel conceded at the speedy-trial hearing that December 11, 2007, was the next available trial date. Rule 28.3(c) requires only that the continuance be granted to a date certain, and that was accomplished with the June 27, 2007 letter. Excluded periods without a written order or docket entry will be upheld when the record clearly demonstrates that the delays were attributable to the accused or legally justified and where the reasons were memorialized in the proceedings at the time of the occurrence. See Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002).
Appellant next challenges the period of time from December 11, 2007, to April 8, 2008, and then to May 20, 2008, and argues that this is the most compelling reason her trial was not timely. Her challenge to this time period is wholly without merit, however, as the following facts demonstrate that this period of delay resulted either from Appellant's conduct in resisting appearance at her trial or from other criminal proceedings concerning Appellant, both of which are excludable periods under Rule 28.3.
Appellant concedes that the docket reflects that she failed to appear for her trial on December 11, 2007, and that a bench warrant for her failure to appear was authorized and issued on December 13, 2007. She also concedes that in April 2008 she was stopped in North Little Rock, Arkansas, on a traffic violation, and then arrested on an outstanding warrant in Texas and extradited there. She further concedes that she was in the custody of the State of Texas from April 2008 to January 2009. Records introduced during the testimony of Larry McCallister, a deputy with the warrants division of the Saline County Sheriff's Department, indicate that Appellant had been arrested on April 8, 2008, and extradited to Texas on April 10, 2008. Those records also showed that Saline County was notified on April 21, 2008, that Appellant was in fact incarcerated in Texas. On May 21, 2008, Deputy McCallister then notified the Texas authorities of Appellant's failure-to-appear warrant and placed a “hold” on Appellant. On May 29, 2008, the Texas authorities acknowledged receipt of the request to hold Appellant and gave an estimated release date for Appellant as January 2009. Appellant signed a waiver of extradition to Arkansas...
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