Yarbrough v. State

• Decision Date: 10 May 2007
• Docket Number: No. CR 07-07.,CR 07-07.
• Citation: 370 Ark. 31,257 S.W.3d 50
• Parties: Christopher Charles YARBROUGH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

257 S.W.3d 50

370 Ark. 31

Christopher Charles YARBROUGH, Appellant, v. STATE of Arkansas, Appellee.

No. CR 07-07.

Supreme Court of Arkansas.

May 10, 2007.

Self Law Firm, by: Joseph C. Self, Fort Smith, for appellant.

Dustin McDaniel, Att'y Gen., for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Christopher Charles Yarbrough was convicted by a jury of possession of marijuana with intent to deliver and possession of drug paraphernalia, for which he received consecutive sentences of sixty months and thirty-six months, respectively, in the Arkansas Department of Correction. On appeal, he argues that his right to speedy trial was violated and that the circuit court erred in denying his motion to suppress physical evidence seized during a traffic stop. In an unpublished opinion, the Arkansas Court of Appeals reversed and dismissed Yarbrough's convictions on the ground that his right to speedy trial was violated; the motion to suppress was not addressed. Yarbrough v. State, CACR05-1296, slip op. at 1, 2006 WL 3616935 (Ark.App. December 13, 2006). The State petitioned this court for review, contending that the decision of the Court of Appeals is in conflict with prior case law, and is therefore in error. We granted the State's petition for review pursuant to Ark. Sup.Ct. R. 1-2(e) (2006). When we grant review following a decision by the Court of Appeals, we review the case as though the appeal was originally filed with this court. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). Upon such review, we find no error and affirm.

On November 1, 2004, pursuant to Rule 28.1(c) of the Arkansas Rules of Criminal Procedure, Yarbrough filed a motion to dismiss, asserting that his right to speedy trial had been violated due to the State's failure to bring him to trial within twelve months of the date of his arrest. Following a hearing on the motion to dismiss, the circuit court denied the motion, finding that two excluded periods of time existed, totaling sixty days. Yarbrough promptly filed a petition for writ of prohibition, which this court denied without prejudice.

Prior to trial, Yarbrough filed a motion to suppress physical evidence. At a hearing on the motion, he asserted that the marijuana seized during the traffic stop should be suppressed because the purpose for the traffic stop had ended before the police officer sought permission to search the automobile. Based upon the testimony and evidence elicited at the hearing and arguments of counsel, the circuit court denied Yarbrough's motion to suppress, finding that there was a lawful stop; that there was no unreasonable detention; and that the detention was based on reasonable suspicion, as well as probable cause established through a consensual search and a drug-dog alert to the presence of drugs.

For his first point on appeal, Yarbrough argues that the circuit court erred in denying his motion to dismiss the case against him due to a violation of the speedy-trial rules. Specifically, he challenges two time periods that the circuit court excluded from its speedy-trial calculations. On appeal, we conduct a de novo review to determine whether specific periods of time are excludable under our speedy-trial rules. Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002).

Under Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant must be brought to trial within twelve months unless there are periods of delay that are excluded under Rule 28.3. Ark. R.Crim. P. 28.1(c) (2006); Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002); Doby v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002). If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R.Crim. P. 30.1 (2006); Gamble v. State, supra; Doby v. Jefferson County Circuit Court, supra. Once a defendant establishes a prima facie case of a speedy-trial violation, i.e., that his or her trial took place outside of the speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. Gamble v. State, supra; Doby v. Jefferson County Circuit Court, supra.

In the case before us, Yarbrough was arrested on October 30, 2003. On November 1, 2004, he filed a motion to dismiss for violation of his speedy-trial rights based on a scheduled trial date of November 8, 2004. We have held that the filing of a speedy-trial motion tolls the running of the time for a speedy trial under our rules. Doby v. Jefferson County Circuit Court, supra. Here, the State concedes that Yarbrough made a prima facie showing of a speedy-trial violation, and that the burden shifted to the State to show that the delay was the result of the defendant's conduct or was otherwise justified. Thus, we must determine whether the circuit court correctly excluded the challenged time periods from its speedy-trial calculations.

As to the first time period, Yarbrough argues that the circuit court erred in finding that his case was continued because he was late for the court's scheduled arraignment hearing on December 17, 2003. The circuit court's order stated in pertinent part:

1. 12 days from December 17, 2003 to December 29, 2003. The case was continued because the defendant was late to court for his arraignment. A Failure to Appear warrant was issued when he failed to appear at the time required. That warrant was recalled upon his appearance later in the day of December 17. When the warrant was recalled and the defendant was found in contempt of court and fined $200.00 and ordered to appear on December 29, 2003 for arraignment.

Under Rule 28.3 of the Arkansas Rules of Criminal Procedure, a time period excluded in computing the time for trial shall be set forth by the court in a written order or docket entry, but it shall not be necessary for the court to make the determination until the defendant has moved to enforce his right to a speedy trial pursuant to Rule 28 unless it is specifically provided to the contrary. Ark. R.Crim. P. 28.3 (2006).

In the instant case, it is undisputed that Yarbrough arrived late for the arraignment hearing on December 17, 2003. As a result, the circuit court continued his case until December 29, 2003, and issued a failure-to-appear warrant, which was recalled when Yarbrough finally appeared in court on December 17, albeit after the scheduled hearing time. At the hearing on the motion to dismiss, the circuit court explained that, due to Yarbrough's tardiness, it was impossible to proceed with his arraignment in the proper manner. Indeed, as the circuit court explained, when a defendant does not arrive at the proper time, circumstances are such that the prosecutor and defense counsel will most likely no longer be present.

Here, Yarbrough's failure to appear at the scheduled time on December 17, 2003, delayed the appointment of defense counsel until December 29, 2003. The record reflects a docket entry on December 17, 2003, stating that Yarbrough failed to appear, a bench warrant was issued, and bond was set at $10,000. According to the next docket entry, the defendant appeared late, the bench warrant was set aside, the court continued the case until December 29, 2003, and Yarbrough was held in contempt and ordered to pay a fine of $200. Thus, the record includes docket entries made at the time of the occurrence that memorialized the reason for the delay in the proceedings. We will uphold excluded periods without a written order or docket entry where the record clearly demonstrates that the delays were attributable to the defendant or legally justified and where the reasons for the delays were memorialized in the proceedings at the time of the occurrence. Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004).

Arkansas Rule of Criminal Procedure 28.3(h) provides that "other periods of delay for good cause" shall be excluded in computing the time for trial. Ark. R.Crim. P. 28.3(h) (2006). This court has explained that when a trial is postponed because of the defendant, that is "good cause" to exclude the time attributable to the delay. Gamble v. State, supra. Here, the arraignment had to be rescheduled due to Yarbrough's failure to appear and subsequent late arrival. It is clear that the delay was his fault. Thus, there was "good cause" to exclude the time attributable to the delay (December 17 to December 29). We therefore conclude that the State met its burden of showing that the delay was the result of Yarbrough's conduct or was otherwise justified and that the circuit court was correct in excluding this twelve-day period from its speedy-trial calculations. After excluding the twelve-day period, the scheduled trial date, which was November 8, 2004, is within 365 days of the date of arrest, which was October 30, 2003. Therefore, we need not address Yarbrough's challenge to the second period of time excluded by the circuit court.

For his second point on appeal, Yarbrough argues that the circuit court erred in denying his motion to suppress physical evidence seized during the traffic stop. Specifically, Yarbrough asserts that his detention was improper, both under Arkansas case law and the plain language of Rule 3.1 of the Arkansas Rules of Criminal Procedure. In reviewing a circuit court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court's findings. Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004). We reverse only if the circuit court's ruling is clearly against the preponderance of the evidence. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).

Based upon our review of the testimony and evidence...