McNeese v. State

Charles McNEESE v. STATE of Arkansas

CR 96-924                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 9, 1996


1.   Discovery -- prosecutorial discovery violation -- when
     reversible error occurs. -- Even if a discovery violation
     occurred, a defendant would not necessarily be entitled to a
     new trial; a prosecutorial discovery violation does not
     automatically result in reversal; reversible error occurs only
     when a prosecutor's failure to comply with a timely request
     for discovery results in prejudice to the appellant. 

2.   Discovery -- alleged discovery violation did not result in
     unfair prejudice to appellant -- testimony was cumulative. --
     Although the point of appeal had to do with failure to grant
     a continuance, the heart of the argument was an alleged
     discovery violation with respect to one witness's statement;
     no unfair prejudice resulted from failure to grant a
     continuance thus allowing time for appellant's counsel to
     attempt to find a way to combat the witness's testimony where
     that testimony was at most cumulative and pallid in comparison
     with the testimony of the other witnesses.  


          Appeal from Johnson Circuit Court; John S. Patterson,
Judge; affirmed.
     Young & Finley, by:  Dale W. Finley, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.
     David Newbern, Justice.
     Charles McNeese appeals from his conviction of two counts of 
arson.  Ark. Code Ann.  5-38-301 (Repl. 1993).  He was sentenced
to imprisonment for sixty years and forty years, to be served
consecutively, and fined $17,000.  The sole point of appeal is Mr.
McNeese's allegation that the Trial Court erred in overruling his
motion for a continuance.  The continuance was sought on the ground
that defense counsel was not informed by the prosecution of certain
inculpatory evidence until shortly before the scheduled
commencement of the trial.  There is an issue about whether the
prosecution was required to inform Mr. McNeese of the evidence
despite his counsel's failure to request it.  We affirm the
conviction because the Trial Court's action, whether or not such a
request was required in the circumstances presented, resulted in no
unfair prejudice to Mr. McNeese.
     On the night of October 14, 1994, Troy Terry's barn burned to
the ground.  Later that same night, or in the early morning hours
of October 15, 1994, the Strawberry First Assembly of God Church
was destroyed by fire.  As the result of a police investigation,
Mr. McNeese was charged with the offenses. 
     The State filed a bill of particulars stating the names of ten
witnesses and listing three inculpatory statements allegedly made
by Mr. McNeese.  Despite the fact that no request for information
pursuant to Ark. R. Crim. P. 17.1 had been made by the defense, the
State's bill of particulars referred to the rule and stated that
the information would be updated as required.  Rule 17.1 requires
the State to furnish certain information to an accused "upon timely
request."  
     On October 25, 1995, the State added two names to its list of
potential witnesses, Teresa Case, who is Mr. McNeese's ex-wife, and
Mike Rains.  The State also revealed the substance of five
statements Mr. McNeese allegedly made to three of the State's
witnesses.  
     According to the updated document, Mr. McNeese told J.D. Case,
"If Troy Terry don't apologize to my daughter for them things he
said I'll burn his barn or his chicken houses down."  He told
Teresa Case (Teresa McNeese at that time) the same thing and added,
"I'll burn that church down if they don't quit gossiping about me
and Maureen Dower."  Finally, he allegedly told Johnny Blackwood,
"I'm gonna use a book of matches and a filter cigarette.  Light the
cigarette and put the book of matches in there and just let it go,"
and "I've got a grudge against that pastor.  I don't like him.  It
ain't none of his business what me and Maureen do."
     The original information, filed on September 21, 1995, was
amended on February 21, 1996, to upgrade the charges from class B
felonies to class A felonies.  The amended information also charged
Mr. McNeese as an habitual offender having been convicted of four
prior felonies.  
     On February 22, 1996, the prosecuting attorney informed Mr.
McNeese's counsel by letter that Teresa Case would also testify
that Mr. McNeese, in the presence of another, spoke of burning the
hay barn, and that he said the church people would have to find
somewhere else to gossip.  Counsel was also informed of a statement
by Ricky Young about inculpatory remarks made by Mr. McNeese in Mr.
Young's presence.
     On that same day, Mr. McNeese moved to continue the trial, set
for February 23, 1996, on the grounds that the State amended the
information to allege a class A felony, that the State had not
previously informed him of Mr. Young's statement despite the fact
that it had been available since January 1995, and that Teresa Case
would testify that the statements to her were made in the presence
of "at least one other person," thus revealing that her testimony
might not be subject to the marital privilege.  
     No argument is made on appeal about the upgrading of the
charges from class B to class A arson.  Presumably that was no more
than a function of ascertaining the amount of damage done.  See 
5-38-301(b).
     A hearing on the motion was held on the morning of the trial. 
Counsel for Mr. McNeese conceded he had not made a request for
discovery but contended it was his understanding that the
prosecutor was following an open-file policy.  His argument to the
Trial Court and in this appeal includes his contention that he was
lulled into thinking he need not make a request for information as
he had already been promised it in the bill of particulars and by
the prosecutor personally.
     The record of the discussion among counsel and the Trial Court
at the hearing reveals that Mr. McNeese's counsel was not at all
concerned about Johnny Blackwood's statement, as he knew what his
testimony would be.  His concern about the prospect of Teresa Case
as a witness was that he had previously represented her in divorce
litigation and would have investigated whether he would have a
conflict of interest in the event she became a witness against her
former husband.  If Rule 17.1 were clearly applicable, there is no
contention that any of its provisions would have required the State
to furnish Mr. McNeese with information that statements allegedly
made by Mr. McNeese to his then wife were or were not made in the
presence of another person.
     The main point was and is the contention that the prosecutor
was charged with knowledge of Mr. Young's statement, which had been
taken by the State Police in January 1995, though it did not come
to the prosecutor's attention until just before the trial.  See
Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981).
     Ricky Young testified that Mr. McNeese was mad at Mr. Terry
and that Mr. McNeese said he was "gonna mess with his [Terry's]
tractors."  Further, after the barn burned, Mr. McNeese approached
Mr. Young and stated, "The barn burnt, didn't it."  
     Johnny Blackwood testified he went to Mr. Terry's barn with
Mr. McNeese and Mr. McNeese burned it down.  He also told the jury
he went with McNeese to the church, and that Mr. McNeese burned it
down.
     J.D. Case testified that he heard Mr. McNeese threaten to burn
Mr. Terry's barn.
     Teresa Case testified that she heard Mr. McNeese tell Johnny
Blackwood, on the evening the barn and church burned, to put on a
darker shirt because "they were going trick or treating early." 
She told the jury that Mr. McNeese said he was going to burn down
Mr. Terry's barn, that he admitted to burning the barn, and that he
said he burned the church because "they were gossiping and they
would have to find some place else to gossip this weekend."  The
alleged statements were made while she and Mr. McNeese were husband
and wife.
     As noted at the outset, the point of appeal here has to do
with failure to grant a continuance.  At the heart of the argument,
however, is the alleged discovery violation with respect to Mr.
Young's statement.  Even if a discovery violation occurred, Mr.
McNeese would not necessarily be entitled to a new trial.  A
prosecutorial discovery violation does not automatically result in
reversal.  Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990); 
Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990).  Reversible
error occurs only when a prosecutor's failure to comply with a
timely request for discovery results in prejudice to the appellant. 
Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994);  See Hall v.
State, 306 Ark. 329, 812 S.W.2d 688 (1991).  No unfair prejudice
resulted from failure to grant a continuance thus allowing time for
Mr. McNeese's counsel to attempt to find a way to combat Ricky
Young's testimony.  That testimony was at most cumulative and
pallid in comparison with the testimony of Johnny Blackwood and the
other witnesses.  
     Affirmed.