Eugene William Beck v. State of Arkansas

ar01-181

DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

CACR 01-181

November 13, 2002

EUGENE WILLIAM BECK APPEAL FROM CRAWFORD COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE FLOYD G. ROGERS,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Eugene Beck was found guilty by a Crawford County jury of the rape of his twelve-year-old niece. He was sentenced by the circuit court to thirty-five years in prison. On appeal, Beck raises five points, with several sub-points, for reversal. We find no error and affirm.

Because the sufficiency of the evidence to support the conviction is not an issue here, we need not detail the facts giving rise to the charge.

Mr. Beck raises three issues in connection with the voir dire of the jury. First, he challenged Mr. Johnnie Gregory for cause,and the trial court refused to grant the request. Because appellant subsequently used a peremptory challenge to remove Mr. Gregory from the jury panel, we need not address the point further. See Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996).

During questioning by defense counsel of juror Melba Hurd, the following exchange occurred:

DEFENSE COUNSEL: And so you are -- you're convinced at this time that if something happened and the person didn't come forward, they're perfectly -- it's perfectly legitimate it wouldn't mean anything?

JUROR HURD: It would have to depend on what they said, but yes in mind I could under stand why somebody wouldn't come forward immediately.

DEFENSE COUNSEL: And it would be up to the defendant then to show some reason why they should have come forward, I take it?

JUROR HURD: Yes it would.

The trial court then examined the juror:

TRIAL COURT: I think -- ma'am, the defen dant is presumed to be innocent. The defen dant does not have to prove his innocence, it's up to the State to prove his guilt beyond reasonable doubt, and he must be acquitted unless the State establishes beyond a reason able doubt his guilt, do you understand that?

JUROR HURD: Yes.

TRIAL COURT: The defendant does not have to prove he's innocent, and he is complaining because you in effect said he'd have to come forward, do you understand what you've said?

JUROR HURD: Yes.

TRIAL COURT: Would you require him to come forward and prove anything?

JUROR HURD: No.

TRIAL COURT: All right. Mr. Batchelor, I think she's good, she simply misunderstood I believe.

The court did not err in declining to grant the challenge for cause. See Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998).

Appellant also challenges the trial court's refusal to excuse for cause a third juror. This juror told the court that she had been a victim of rape in 1990. The fact that a prospective juror has been the victim of a similar crime does not mean that the trial court must grant a challenge for cause. See Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). In Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002), the court said:

[T]he decision to excuse a juror for cause rests within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Persons comprising the venire are presumed to be unbiased and qualified to serve, and the burden is on the party challenging a juror to prove actual bias. When a juror states that he or she can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, a trial court may find the juror acceptable. (Citations omitted.)

Here the juror assured the court that she could decide the case fairly. We find no abuse of discretion.

On cross-examination at trial of one of appellant's character witnesses, the State asked the witness, "Would it surprise you that he had some problem in Ohio?" Counsel objected and, at a sidebar conference, the prosecutor told the court he had documentation that the appellant was "on hold out of Ohio for robbery." Counsel then moved for a mistrial, which the court denied. Defense counsel then obtained and introduced the Ohio document, recalled the appellant, and demonstrated to the court and jury, primarily through the absence of certain tattoos, that the "hold" was not for this appellant. The court eventually stated to the jury:

THE COURT: The Court is of the opinion this does not relate to this defendant, on William Eugene Beck, and is well aware of why the State asked about it, because it has the name. This is the wrong man so you will give no consideration to this part of it.

Both the court and defense counsel handled the matter quite properly. The court did not abuse its discretion in refusing to grant a mistrial. The case at bar is unlike Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984), where the trial court told the jury that the evidence may have been true but belatedly deemed it irrelevant.

Mr. Beck also contends that the court erred in refusing to grant a mistrial because the State asked questions of one of appellant's character witnesses concerning the witness's knowledge of prior bad acts allegedly committed by the appellant. Noobjection was made when the question was asked; only when the witness had left the stand was a mistrial sought. Because no objection was timely raised, the matter was waived. See Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999).

As part of its case-in-chief, the State called appellant's brother, David Beck, to testify. He testified that he, too, had sexually abused the victim, his daughter, but had done so only because the appellant had assured him it was all right to do so. At the conclusion of his testimony, the following colloquy occurred:

MR. BATCHELOR: ...if Mr. Beck has made a written statement before, I would like to examine it before I cross examine him.

THE COURT: Do you have a statement?

MR. McCUNE: I don't think he can write, do you?

WITNESS: No I don't. I ain't good at writ'n.

MR. BATCHELOR: But if he gave one -- gave any type of statement to them, I would like to see a transcription of it or read to the Court.

THE COURT: Do you know of anything?

MR. McCUNE: I know of somebody else writing one, but not this defendant.

(SIDEBAR)

THE COURT: ...have you got something that's supposed to be a statement?

MR. McCUNE: Another cellmate was taking notes, writing things that he claims defendant said. However, this defendant didn't write anything and I think it's kind of untimely to ask for it at this point.

MR. BATCHELOR: He has only listed him as a witness recently, and if he has given a formal statement, I think we're entitled to it before oral or written. . .

THE COURT: ...they're saying they don't have a formal statement. It's my understand ing that someone--who is this?

MR. McCUNE: Stillman Connacher.

THE COURT: Is he a jail inmate?

MR. McCUNE: He's a cellmate. He wrote out a long twenty-two page letter and sent it to us and saying that this was what this guy was saying.

THE COURT: Well, the Court doesn't think that's reliable enough... I'm just simply saying they don't have a formal statement and I'm not going to have them furnish that.

MR. BATCHELOR: We feel that we're enti tled to know what he was saying before he was convicted.

THE COURT: I would agree with you, but I don't know that that would be accurate to know that that's what he said based on what some jail mate had put down.

Appellant relies on Blakemore v. State, 268 Ark. 145, 594 S.W.2d 231 (1980), for the contention that the trial court erred in not directing the State to deliver the letter prior to cross-examination.

Blakemore was based on a statute now codified at Ark. Code Ann. § 26-89-115. "Statement" is expressly defined as "a written statement made by the witness and signed or otherwise adopted or approved by him." Ark. Code Ann. § 16-89-115 (e)(1) (1987) (emphasis added). With the information that we have before us, it seems unlikely that the letter from David Beck's cellmate could have qualified as a "statement" of David Beck, within the meaning of the statute. Appellant could have asked that the letter be proffered for the record or could have attempted on cross-examina tion to establish that David Beck had somehow "adopted" the letter from his cellmate. Under the circumstances presented, we cannot find that the trial court failed to follow the statute.

After trial, appellant filed a Rule 37 petition, pro se. The only complaints about his appointed counsel's performance were (1) that he could prove that he was impotent, but his lawyer wouldn't have him examined by a doctor and (2) that he asked that "some evidence" be subpoenaed on his behalf, but his lawyer refused to do so. The trial court summarily denied the petition, without conducting a hearing. In the brief filed in this court, counsel bravely contends that the petition should have been granted.

Under certain circumstances, we may consider allegations raised in a Rule 37 petition on direct appeal. See, e.g., Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Butwhere, as here, the issues are not fully developed, we should decline to do so. Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). We do not reach the allegations contained in appellant's pro se Rule 37 petition.

Finally, appellant urges reversal for "cumulative error." Because we have found no error based on appellant's earlier arguments, we must reject this one also. See Nooner v. State, 322 Ark. 87, 907 S.W.2d 67 (1995).

Affirmed.

Vaught and Crabtree, JJ., agree.