Wilson v. State, CR77-37

• Decision Date: 20 June 1977
• Docket Number: No. CR77-37,No. 2,CR77-37,2
• Parties: Roosevelt WILSON and Johnny Dancy, Appellants, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 223

552 S.W.2d 223

261 Ark. 820

Roosevelt WILSON and Johnny Dancy, Appellants, v. STATE of Arkansas, Appellee.

No. CR77-37.

Supreme Court of Arkansas, Division No. 2.

June 20, 1977.

Harold L. Hall, Public Defender by Robert J. Govar, Deputy Public Defender, Little Rock, for appellants.

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

FOGLEMAN, Justice.

Appellants Roosevelt Wilson and Johnny Dancy were found guilty, in a joint trial, of burglary and theft of property, committed on February 25, 1976. They were charged with having broken into the Victory Liquor Store in North Little Rock and having taken a quantity of bottled liquor therefrom. They were charged with being habitual offenders, and each admitted two prior felony convictions. The charges were laid under Ark.Stat.Ann. §§ 41-2202-2203 (Crim.Code, 1976). We find no reversible error and affirm.

Appellants rely upon three points for reversal, which we will treat in the order argued.

I

The circuit judge gave the state's requested instruction No. 6 defining the crimes of burglary and theft of property. Appellants contend that we should reverse the judgments in this case for plain error in the giving of the last sentence of that instruction, which was designed to inform the jury when theft of property constitutes a felony. It reads thus:

Theft of property is a felony if the value of the property is less than $100.00 but more than $10,000.00.

Appellant Wilson was represented by an attorney from the public defender's staff. Dancy was represented by retained counsel. Wilson's attorney made no objection to this instruction. Dancy's attorney made only a general objection, which is insufficient basis for appellate review. Rule 13, Uniform Rules for Circuit and Chancery Courts. Appellants contend that the instruction was incorrect, ambiguous and misleading and so prejudicial to their substantial rights that this court should notice the error and reverse the judgment in spite of the fact that proper objection was not made in the trial court.

Of course, the error is obvious. Ark.Stat.Ann. § 41-2203(2)(b) states:

Theft of property is a Class C felony if: (i) the value of the property is less than $10,000 but more than $100.

Appellants say that prejudice is clear in this case, in which they were given maximum sentences of ten years for habitual offenders. Ark.Stat.Ann. § 41-1001(1)(c) (Crim. Code, 1976). If the value of the property stolen is $100 or less, the offense is a Class A misdemeanor, punishable by imprisonment for not exceeding one year and/or a fine not exceeding $1,000. Ark.Stat.Ann. §§ 41-901(2)(a), 41-1101(2)(a). A quantity of liquor having a value of $250 to $300 was recovered from the person to whom the evidence showed appellants had sold it. The owner of the store burglarized was able to positively identify only five bottles of this liquor, which were valued at less than $100. Appellants say that the instruction as given assured the imposition of felony liability if the state convinced the jury beyond a reasonable doubt that anything was taken.

We do not agree that the error was prejudicial. It is quite clear that the error was an inadvertent clerical misprision in the transposition of the figures $100 and $10,000 in the preparation of the instruction. This error was so obvious and misinterpretation was so highly unlikely that we cannot overlook the failure of appellants to make proper objections. See 75 Am.Jur.2d 595, § 627. We will take this action only when the error is so great that the trial court was under a duty to correct it immediately and no objection or admonition could have undone the damage or erased the effect of the error from the minds of the jurors. See, e. g., Bell v. State, 223 Ark. 304, 265 S.W.2d 709; Wilson v. State, 126 Ark. 354, 190 S.W. 441. Even that is a practice which should be indulged in with great caution and invoked only to avoid a clear miscarriage of justice. See Minor v. United States, 375 F.2d 170 (8 Cir., 1967), cert. den., 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d 177. Craig v. United States, 337 F.2d 28 (8 Cir., 1964), cert. den., 380 U.S. 909, 85 S.Ct. 891, 13 L.Ed.2d 796. The unlikelihood that the instruction could be misinterpreted actually finds support in the failure of appellants' attorneys to make a specific objection, which would have, beyond doubt, resulted in a prompt correction of the ambiguous language. See Rhodes v. State, 208 Ark. 1043, 189 S.W.2d 379. Appellants were called upon to call the court's attention to the erroneous language. Lindsey v. State, 151 Ark. 227, 235 S.W. 782; Lockett v. State, 136 Ark. 473, 207 S.W. 55. It is also significant that neither of appellants requested a misdemeanor instruction on theft. Furthermore, the evidence that the theft was felonious is quite substantial, if the jury found, as it must have, that the principal witnesses were not accomplices of appellants.

II

Appellants contend that the trial court erred in denying their motions for mistrial after certain remarks were made by the prosecuting attorney during his opening statement to the jury. He said that the owner of the liquor store, Mrs. Leo Mabry, would say that she had been shot in a robbery and required to go to the hospital. When the motion for mistrial was made and denied, the prosecuting attorney advised the jury that the witness would say that neither of the appellants had anything to do with that robbery, but that the liquor store was boarded up at the time of the burglary because she was in the hospital.

When Mrs. Mabry testified, she remarked that she "had a couple of holdups." When the attorney for one of the appellants moved for a mistrial, the witness spontaneously stated, "They had nothing to do with it, these on trial." In denying this motion for mistrial, the trial judge directed the prosecuting attorney to get to the issue involved in the case, stating in effect that what had happened the preceding year might be a matter of concern at some other time or place, but not with the present facts. No admonition to the jury was requested by appellants in either instance.

We find no such prejudice to appellants as to call for the extreme and drastic step requested. A mistrial should not be declared unless the error is so prejudicial that justice cannot be served by a continuation of the trial. Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474; Hill v. State, 255 Ark. 720, 502 S.W.2d 649. Any prejudice arising from whatever error there was in these statements was minimized, if not completely neutralized, by the prompt disavowal by the prosecuting attorney and by Mrs. Mabry of any intent to imply that either of appellants had anything to do with the robbery or her injury. There is no indication that the state prompted the apparently spontaneous remark by Mrs. Mabry. The court's statement to the jury when it was made was, in effect, a sufficient admonition to the jury. See Ragsdale v. State, 132 Ark. 210, 200 S.W. 802.

III

Appellants contend that the evidence was insufficient to support their conviction, because there was no evidence tending to connect them with the burglary and theft, other than that given by two persons who were accomplices. One of these was Patricia Manning, a 17-year-old girl, who testified: she was "going with" Dancy at the time of the burglary; she was picked up by Dancy at her school on the evening of the burglary; Wilson and one Brooks were in the automobile driven by Dancy; they rode around until about 12, when Dancy took Wilson to some place on Broadway and parked the vehicle; Wilson and Brooks left the car, taking a bag with them; Wilson pulled some tin loose from the building and Brooks entered it; Brooks handed the sack out of the building to Wilson, who took bottles from it and put them in the trunk of Dancy's car; Wilson took the empty sack back to the building and returned it to Brooks, who partially filled it and returned it to Wilson who took it to the trunk of the automobile after which Brooks came out of the building and both Brooks and Wilson got back in the car; Wilson asked Dancy to take him to a Seven-Eleven store somewhere near Burns Park, where Wilson used a telephone; that a...