Rowbottom v. State

Bruce Lee ROWBOTTOM v. STATE of Arkansas

CR 96-956                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 21, 1997


1.   Constitutional law -- inmate's constitutional right to access
     to court -- adequate law libraries -- adequate assistance from
     persons trained in law. -- In Bounds v. Smith, 430 U.S. 817
     (1977), the United States Supreme Court established that an
     inmate has a constitutional right to access to the court which
     can be protected by either providing prisoners with adequate
     law libraries or adequate assistance from persons trained in
     the law; while either alternative is acceptable, the standby-
     counsel option is often preferable because it will not only
     result in more efficient and skillful handling of prisoner
     cases but will also avoid the disciplinary problems associated
     with writ writers; thus, the court is free to appoint standby
     counsel instead of granting an inmate access to a law library. 
     

2.   Constitutional law -- effective method of access to courts
     must be provided -- physical access to courts not required. --
     In Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996), the Supreme
     Court held that Bounds did not require courts to grant an
     inmate physical access to a law library so long as some other
     acceptable and effective method of access to the courts is
     provided; an inmate must demonstrate how a state's chosen
     method failed to provide him or her with access to the courts;
     the tools required to be provided are those that the inmates
     need to attack their sentences, directly or collaterally, and
     in order to challenge the conditions of their confinement;
     impairment of any other litigating capacity is simply one of
     the incidental, and perfectly constitutional, consequences of
     conviction and incarceration.

3.   Constitutional law -- appellant failed to show that
     appointment of standby counsel deprived him of access to
     courts -- trial court free to appoint standby counsel rather
     than granting appellant access to law library. -- Where any
     alleged shortcomings in the appointment of standby counsel
     were due to appellant's own failure to use or properly use the
     assistance provided to him, appellant failed to demonstrate
     how the appointment of standby counsel deprived him of his
     right to access to the courts as required by Lewis;
     appellant's assertion that access to a law library must be
     granted when feasible was without merit; the trial court was
     free to appoint standby counsel instead of granting access to
     a law library. 

4.    Appeal & error -- constitutional issues must be raised at
     trial in order to be preserved on appeal. -- Even
     constitutional arguments must be raised before the trial court
     in order to properly preserve the issue; appellant's failure
     to do so precluded him from raising the issue for the first
     time on appeal.

5.   Witnesses -- right to certification process of material
     witness not absolute -- certification discretionary. -- 
     Arkansas Code Annotated  16-43-403 (Repl. 1994), allows a 
     trial judge to certify to another state court the facts which
     cause the witness to be material and the number of days the
     witness will be required to testify; however, there is no
     absolute right to this certification process, but rather the
     matter is within the discretion of the trial judge.  

6.   Witnesses -- appellant's claim that witness was material not
     properly supported -- no abuse of discretion found. -- Where
     appellant initially refused to explain why the man was a
     material witness and in fact told the court on the first day
     of trial that he was a character witness instead of a fact
     witness, appellant failed to support his claim that the man
     was a material witness, and thus the judge did not abuse his
     discretion when he refused to compel his attendance.


7.   Witnesses -- request to compel witness three days prior to
     trial untimely -- appellant's explanation came too late. --
     Where appellant failed to explain to the judge that the man
     was a material witness until three days before the trial, the
     request to compel the witness was untimely; the trial judge
     did not abuse his discretion when he denied appellant's
     request to compel the witness's attendance at trial.


     Appeal from Benton Circuit Court; David Clinger, Judge;
affirmed.
     David B. Fuller, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Annabelle Clinton Imber, Justice.
     A jury found the appellant, Bruce Lee Rowbottom, guilty of
several crimes relating to possession of drugs and firearms.  As a
habitual offender, Rowbottom was sentenced to a concurrent term of
forty-five years' imprisonment.  Rowbottom represented himself at
trial with the assistance of a standby attorney appointed by the
court.  On appeal, Rowbottom claims that he was unconstitutionally
deprived access to a law library, and that the court failed to
subpoena a material witness in his favor.  We affirm for the
reasons stated below.
     On July 23, 1995, a police officer in Gravette, Arkansas,
spotted Rowbottom driving a white Dodge van without a license
plate.  Catherine Gregory, Rowbottom's girlfriend, and the couple's
three-month-old child were riding inside the van.  As the officer
approached the vehicle, Rowbottom sped away, and the officer gave
chase.  During a high-speed pursuit, Rowbottom threw out of the
passenger window a box containing marijuana, methamphetamine, and
drug paraphernalia.  In addition, the officer observed Rowbottom
repeatedly striking Catherine Gregory as the van sped down Highway
59.  The officer eventually lost sight of the vehicle.
     Soon thereafter, Rowbottom crashed the van into a wooded area
and escaped on foot.  Gregory fled to a nearby residence and
notified the police that Rowbottom had drugs and guns inside the
van.  The police apprehended Rowbottom and found two hand guns
inside the van as reported by Gregory.  
     Rowbottom was charged with possession of marijuana and
methamphetamine with the intent to deliver, simultaneous possession
of drugs and firearms, possession of drug paraphernalia, and being
a felon in possession of a firearm.  Gregory was not charged with
any crimes in exchange for her testimony against Rowbottom.  
     Rowbottom chose to represent himself at his trial which took
place in the Benton County Circuit Court.  The jury found Rowbottom
guilty of all charges and sentenced him as a habitual offender to
a concurrent term of forty-five years' imprisonment.
                  1. Access to a law library. 
     During his first appearance before the trial court on August
28, 1995, Rowbottom stated that he wished to represent himself at
trial.  After warning Rowbottom about the shortcomings of pro se
representation, the trial court granted Rowbottom's request and
appointed standby counsel.  
     On numerous occasions, Rowbottom asked the court to grant him
physical access to a law library.  First, Rowbottom claimed that he
was not getting necessary legal materials such as envelopes and a
notary seal. The Benton County Sheriff's Department verified that
it gave Rowbottom one envelope a week, and that it provided notary
service as soon as possible.  The standby attorney added that
Rowbottom had not requested these materials from him.  Accordingly,
the trial court denied the motion.
     During a suppression hearing, Rowbottom argued that he could
not explain why he felt that a witness was hostile because the
court's failure to grant him access to a law library prevented him
from researching the issue.  Nevertheless, Rowbottom cited one
legal authority in support of his proposition. The record is
unclear as to whether Rowbottom asked his standby counsel to assist
him in the matter.  
     Later in the suppression hearing, Rowbottom renewed his
request for access to a law library on the basis of his
constitutional right to access to the courts.  Standby counsel
explained that he had not yet researched the constitutional issue
because he had been assisting Rowbottom with the specific
suppression issues which were the subject of that day's hearing. 
In addition, Rowbottom conceded that he needed library access to
prepare for a paternity suit and a federal habeas petition, neither
of which were related to his criminal case before the Benton County
Circuit Court.  The trial court delayed ruling on the issue until
Rowbottom and standby counsel had a chance to research the matter.
     Finally, during a pretrial conference, Rowbottom renewed his
motion for access to a library and declared:
     I believe that I am being denied timely legal assistance
     due to the fact that it's almost impossible for a person
     to have an associate counsel, you run their legs off, and
     in a case like this or any case for that matter and also
     I have got several other cases that are pending in
     several other courts which Mr. Fuller, it would be
     ludicrous for me to ask him to provide me with that
     amount of material....
     The trial court found that standby counsel was adequately
assisting Rowbottom and advised him to concentrate his efforts on
this criminal case which was coming to trial shortly.   Rowbottom
now appeals the trial court's pretrial order denying him physical
access to a law library.  
     On appeal, Rowbottom asserts that he has an absolute,
constitutional right to access to a law library under Bounds v.
Smith, 430 U.S. 817 (1977).  We disagree.  In Bounds, the United
States Supreme Court established that an inmate has a
constitutional right to access to the court which can be protected
by either:

     [P]roviding prisoners with adequate law libraries or
     adequate assistance from persons trained in the law.
Id. (emphasis added).  Justice Thurgood Marshall further emphasized
in Bounds that while either alternative is acceptable, the standby
counsel option was often preferable because it would:
     [N]ot only result in more efficient and skillful handling
     of prisoner cases, but also [would] avoid the
     disciplinary problems associated with writ writers.
Id. Thus, according to Bounds, the court is free to appoint standby
counsel instead of granting an inmate access to a law library.  
     The Arkansas Supreme Court addressed the Bounds decision in
Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991), cert. denied,
114 S. Ct. 1857.  Although this court found that the issue was
procedurally barred, it stated in dicta that under Bounds an
inmate's constitutional right to access to the courts could be
satisfied by providing standby counsel or access to a law library. 
Id.
     The United States Supreme Court recently held in Lewis v.
Casey, 116 S. Ct. 2174, 2180 (1996), that Bounds does not require
courts to grant an inmate physical access to a law library so long
as some other acceptable and effective method of access to the
courts is provided.  According to Lewis, an inmate must demonstrate
how a state's chosen method failed to provide him or her with
access to the courts. Id.  Moreover, the Supreme Court explained in
Lewis that:
     Bounds does not guarantee inmates the wherewithal to
     transform themselves into litigating engines capable of
     filing everything from shareholder derivative actions to
     slip-and-fall claims.  The tools it requires to be
     provided are those that the inmates need in order to
     attack their sentences, directly or collaterally, and in
     order to challenge the conditions of their confinement. 
     Impairment of any other litigating capacity is simply one
     of the incidental (and perfectly constitutional)
     consequences of conviction and incarceration.
Id., at 2182 (emphasis in the original). 
      Rowbottom has failed to demonstrate how the appointment of
standby counsel deprived him of his right to access to the courts
as required by Lewis.  First, the sheriff's department verified
that it provided Rowbottom with envelopes and a notary seal. 
Second, standby counsel explained that he was assisting Rowbottom
with legal research on the few occasions when Rowbottom asked for
assistance.  Finally, and most importantly, Rowbottom admitted he
was utilizing standby counsel to research issues in other cases. 
Therefore, any alleged shortcomings in the  appointment of standby
counsel were due to Rowbottom's own failure to use or properly use
the assistance provided to him.  
     Finally, Rowbottom attempts to distinguish his case from
United States v. West, 557 F.2d 151 (8th Cir. 1977), in which the
Eighth Circuit Court of Appeals found that appointment of standby
counsel adequately assured a pro se criminal defendant his right to
access to the courts. Specifically, Rowbottom argues that unlike
West he was not a suicide or flight risk, and therefore should have
been granted access to a law library.  This argument presupposes
that the court must choose access to a law library over appointment
of standby counsel when the former is feasible.  Clearly, neither
Bounds nor Lewis supports such a proposition.  Rather, both cases
establish that the court can choose either method, or some other
method, so long as it adequately protects the inmate's right to
access to the courts.   Rowbottom's assertion that access to a law
library must be granted when feasible is simply without merit. 
     We therefore conclude that the trial court was free to appoint
standby counsel instead of granting access to a law library. We
further find that Rowbottom has failed to demonstrate how the
appointment of standby counsel in this case deprived him of his
right to access to the courts.  
             2. Attendance of material witness under
             Ark. Code Ann.  16-43-403 (Repl. 1994).
 
     According to Rowbottom, Catherine Gregory's testimony was the
most damaging evidence against him.  Rowbottom tried to prevent
Catherine from testifying by asserting that she was his common law
wife under Oklahoma law where the couple resided.  However,
Catherine explained to the trial court that she was separated from,
but still legally married to, Dan Gregory, who lived in Missouri. 
The trial court concluded that under these facts no common law
marriage could exist between Catherine and Rowbottom, and thus
allowed Catherine to testify despite Rowbottom's claim of
privileged communications.
     Prior to trial, Rowbottom asked the State to subpoena
Catherine's husband, Dan Gregory.  Rowbottom did not tell either
the State or his standby counsel why Dan Gregory's testimony was
material.  Because the subpoena did not assert facts demonstrating
the materiality of Dan Gregory's testimony, the Missouri court
denied the subpoena.  
     At the beginning of the trial, Rowbottom again requested Dan
Gregory's attendance claiming that he would testify as to
Catherine's character and habits.  The trial court found that the
State had done all it could to obtain the witness, and thus he
refused to delay the trial.  
     On the third day of trial, Catherine Gregory took the stand
and again Rowbottom demanded the presence of Dan Gregory.  For the
first time, Rowbottom explained to the trial judge that Dan Gregory
was a material fact witness because he could establish that he and
Catherine had been separated for nine months.   The trial court
explained to Rowbottom that he might have obtained the subpoena if
he had given this information to standby counsel or the State at an
earlier date.  Because Rowbottom failed to do so, the trial court
held that it was too late to subpoena the witness three days into
the trial.
     On appeal, Rowbottom first contends that the trial court's
failure to compel Dan Gregory's attendance at trial resulted in an
unconstitutional deprivation of his right to a fair trial.  This
court has repeatedly held that even constitutional arguments must
be raised before the trial court in order to properly preserve the
issue. Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996). 
Rowbottom failed to do so, and thus he is precluded from raising
the issue for the first time on appeal.
     Rowbottom also claims that the court should have compelled Dan
Gregory's attendance pursuant to Ark. Code Ann.  16-43-403 (Repl.
1994), which allows a trial judge to certify to another state court
the facts which cause the witness to be material and the number of
days the witness will be required to testify.  There is no absolute
right to the certification process created by Ark. Code Ann.  16-
43-403, but rather the matter is within the discretion of the trial
judge.  Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Wright
v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). 
     Rowbottom initially refused to explain why Dan Gregory was a
material witness. In fact, Rowbottom told the court on the first
day of trial that Gregory was a character witness instead of a fact
witness.  Rowbottom simply failed to support his claim that Gregory
was a material witness, and thus the judge did not abuse his
discretion when he refused to compel his attendance.  See, Henry v.
State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, 464 U.S. 835.
     On the third day of trial, Rowbottom finally explained to the
judge that Dan Gregory was a material witness because he could
supply facts to support his common law marriage argument.  In
Logan, supra, this court affirmed a trial judge's decision that a
request to compel a witness made two days prior to trial was
untimely.  If two days prior to trial is untimely, then three days
into trial is certainly untimely.  In any event, Dan Gregory would
not have been a material witness because Dan and Catherine Gregory,
although separated, were legally married and Catherine would not
have the capacity to enter into a common law marriage.
     We therefore conclude that the trial judge did not abuse his
discretion when he denied Rowbottom's request to compel Dan
Gregory's attendance at trial.
     Affirmed.
     Corbin, J., not participating.