Wright v. State, No. CR

• Court: Supreme Court of Arkansas
• Writing for the Court: HOLT; HARRIS
• Citation: 267 Ark. 264,590 S.W.2d 15
• Parties: James C. WRIGHT, Appellant, v. STATE of Arkansas, Appellee. 79-157.
• Docket Number: No. CR
• Decision Date: 03 December 1979

Page 15

590 S.W.2d 15 267 Ark. 264 James C. WRIGHT, Appellant,
v.
STATE of Arkansas, Appellee. No. CR 79-157. Supreme Court of Arkansas. Dec. 3, 1979.

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[267 Ark. 266] Donald E. Bishop, Harrison, for appellant.

Steve Clark, Atty. Gen. by Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

A jury found appellant guilty of aggravated robbery (Ark.Stat.Ann. § 41-2103 (Repl. 1977)) as a habitual offender with more than four prior convictions and assessed his punishment at 55 years' imprisonment (Ark.Stat.Ann. § 41-1001(2) (a) (Repl. 1977)). Appellant, through the public defender, first contends that the court erred in denying his petition for a certificate of summons to several nonresident witnesses, or in the alternative, in denying his motion to depose these witnesses.

[267 Ark. 267] The issuance of a petition for certification of a material nonresident witness, which compels attendance at government expense, is not an absolute right and lies within the discretion of the trial court. Ark.Stat.Ann. § 43-2006 (Repl. 1977). See also Reistroffer v. United States, 258 F.2d 379 (8th Cir. 1958). It is well settled that the court's ruling on matters pertaining to the trial will not be set aside absent a "manifest abuse of discretion." Roberts & Charles v. State, 254 Ark. 39, 491 S.W.2d 390 (1973); and Petty v. State, 245 Ark. 808, 434 S.W.2d 602 (1968). Here the appellant entered a plea of not guilty by reason of insanity. At a pretrial hearing, appellant sought the attendance of several nonresident witnesses (three psychiatrists, a pediatrician, an osteopath, and the program director at a California State Hospital). The trial court denied the petition and the motion to depose. Appellant argues that this was reversible error because the witnesses' testimony was material and relevant to his insanity defense; i. e., he was suffering from schizophrenia and that a schizophrenic may not be able to control his behavior.

The proffered testimony concerning appellant's mental condition was conflicting. None of the physician witnesses had examined or treated the appellant within the past two years, and some had not seen him in more than four years. The appellant admitted that the 1966 diagnosis of schizophrenia by one of the psychiatrists was contrary to the final report of eight doctors who had declared him sane and returned him to a Texas court to stand trial. He also admitted that although one of the psychiatrists had committed him to a California State Hospital in 1977, the final hospital report had declared him sane, and he was returned to the California court system. The court allowed appellant's request that reports of the various hospitals and treating physicians be admitted into evidence. It appears the Arkansas State Hospital, which found appellant without psychosis, had the benefit of appellant's previous treatments at these hospitals and by these physicians. In the circumstances, we certainly cannot say that the trial court abused its discretion.

Neither can we agree with appellant's second contention that the court erred in denying his motion for a change of [267 Ark. 268] venue due to prejudicial pretrial publicity in the community. Appellant adduced testimony from two local news media representatives that numerous news items were published about this and other pending charges against appellant during the seven months' interim between his arrest and trial. Appellant did not support his petition by any affidavits as required by Ark.Stat.Ann. § 43-1502 (Repl. 1977). There was no evidence that "the minds of the inhabitants of

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the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein." Ark.Stat.Ann. § 43-1501 (Repl. 1977). Since the appellant has not met his burden of proof by demonstrating that "a fair trial was not likely to be had in the county", we cannot say that the trial court abused its discretion in denying the motion. Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979).

Appellant's third contention is also without merit. He avers that the court, after refusing to sequester the jury, erred in not granting a mistrial after five of the jurors had read an allegedly prejudicial newspaper article on the morning of the second day of trial. Although the major portion of the article summarized the testimony and proceedings of the first day, the closing sentences stated that "Wright also faces additional charges of a second count of aggravated robbery, arson and escape in Boone County. No trial date has been set in those cases." When the judge examined the jurors in chambers concerning possible prejudices, each stated in effect that what they had read in the article was covered the previous day in court and nothing they had read would bias or prejudice their opinion as jurors. None indicated they had read the concluding part of the news article. We cannot say that the trial court abused its discretion in refusing to grant a mistrial. See Moseley v. State, 258 Ark. 485, 527 S.W.2d 616 (1975); and Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979).

Neither can we agree with appellant's contention that the trial court erred in admitting his tape recorded confession into evidence. When the question of the voluntariness of a confession is raised on appeal, we review all of the evidence and make an independent determination based on the totality [267 Ark. 269] of the circumstances. The burden is on the state to prove the voluntariness of an in-custody confession. Clark v. State, 264 Ark. 630, 573 S.W.2d 622 (1978). The finding of the trial judge will not be set aside unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). Here one of...