Jones v. State

Robert Lee JONES v. STATE of Arkansas

CR 95-33                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 11, 1996


1.   Appeal & error -- sufficiency of evidence considered first. --
     The supreme court considers a challenge to the sufficiency of
     the evidence first because the double-jeopardy clause
     precludes a second trial when a judgment of conviction is
     reversed for insufficient evidence.

2.   Criminal procedure -- directed-verdict motion must apprise
     trial court of specific basis for motion. -- A challenge to
     the sufficiency of the evidence requires the moving party to
     apprise the trial court of the specific basis on which the
     directed-verdict motion is made; neither appellant's original
     directed-verdict motion nor his renewal motion indicated that
     any specific deficiency in the evidence was called to the
     trial court's attention; because there was a failure to raise
     the specific basis for a directed verdict at trial, appellant
     could not challenge the sufficiency of the evidence on appeal.

3.   Criminal procedure -- speedy trial -- shifting burden. --
     Where appellant's trial began on September 14, 1994, a date
     more than twelve months after the speedy-trial period began on
     April 9, 1993, when appellant was taken into custody and
     incarcerated from that point forward, appellant established a
     prima facie case that a speedy-trial violation occurred, and
     the burden shifted to the State to show the trial court that
     the delay was the result of the appellant's conduct or
     otherwise legally justified; the supreme court determined that
     the State met this burden.

4.   Criminal procedure -- speedy trial -- period of delay
     attributable to defendant excludable for good cause. -- The
     supreme court held that a period of delay from May 31, 1994,
     to September 6, 1994, was excludable, pursuant to Ark. R.
     Crim. P. 28.3(h), for good cause; where appellant contended
     that he did not request the continuance ordered at a May 10,
     1994 pretrial proceeding, the appellate court noted that, even
     absent a defendant's specific request for a continuance, a
     trial delay that is attributable to the defendant may
     constitute "good cause" for exclusion of the delay, pursuant
     to Rule 28.3(h); in the present case, the supreme court
     attributed the continuance to appellant because it was a
     necessary and reasonable accommodation to him occasioned by
     the undisputed illness and hospitalization of his trial
     counsel until May 31, 1994, the first day of the criminal
     court term.

5.   Criminal procedure -- speedy trial -- trial court's failure to
     set forth excluded period in order or docket -- no automatic
     reversal if contemporaneous record made. -- Where the circuit
     judge did not set forth the excluded period in a written order
     or docket entry on May 10, 1994, as required by A.R.Cr.P. Rule
     28.3(i), the appellate court noted that a trial court's
     failure to comply with Rule 28.3(i) does not result in
     automatic reversal of the conviction if a contemporaneous
     record is made that reveals the delaying act was attributable
     to the accused. 

6.   Criminal procedure -- speedy trial -- no contemporaneous
     record made by circuit judge -- oversight remedied by
     subsequent order. -- Where the circuit judge made no
     contemporaneous record attributing the trial delay to
     appellant when he orally continued the case on May 10, 1994,
     he remedied that oversight by the order filed on September 13,
     1994; further, the record contained a letter from the deputy
     prosecutor dated May 12, 1994, which set forth the dates and
     basis for the continuance as memorialized in the subsequent
     order; the supreme court held that the State had clearly
     demonstrated that the disputed delay was the result of
     appellant's conduct and that the record was sufficient to
     satisfy Rule 28.3(i). 

7.   Criminal law -- voluntariness of confession -- standard of
     review. -- On appeal, the supreme court makes an independent
     determination of the voluntariness of a confession but, in
     doing so, reviews the totality of the circumstances and
     reverses only when the trial judge's finding of voluntariness
     is clearly against the preponderance of the evidence; the
     appellate court does not reverse unless the trial court's
     finding is clearly erroneous; conflicts in the testimony are
     for the trial court to resolve.

8.   Criminal law -- voluntariness of confession -- finding that
     both of appellant's recorded statements were voluntary was not
     clearly erroneous. -- On the basis of the record, which
     contained, among other evidence, testimony from police
     officers that waiver forms were read, acknowledged, and
     signed, appellant did not demonstrate that the trial court's
     finding that both of his recorded statements were voluntarily
     given prior to appointment of defense counsel was clearly
     erroneous; therefore, the supreme court held that the trial
     court did not err in denying the motion to suppress.

9.   Evidence -- tape recordings and transcriptions -- trial court
     did not err in denying motion to strike recording. -- Where
     the original tape recording of appellant's April 10, 1993
     statement was introduced into evidence without objection and
     was played for the jury, and where a transcription of the
     recording, bearing the typed date April 12, which had been
     changed in ink to read April 10, was never admitted into
     evidence, the supreme court determined that appellant did not
     demonstrate as clearly erroneous the trial court's finding
     that the April 12 date in the transcription was a simple
     clerical error; therefore, the supreme court held that the
     trial court did not err in denying the motion to strike the
     recording of the April 10 statement.

10.  Evidence -- tape recordings and transcriptions -- argument
     that recording and transcription prepared by different
     secretary should have been dismissed was without merit. -- The
     supreme court held that appellant's argument that the April 11
     tape recording and its transcription, which was prepared by a
     different secretary, should have been dismissed due to the
     possibility of taint was based upon a false premise and was
     clearly without merit.


     Appeal from Mississippi Circuit Court, Osceola District;
Gerald Pearson, Judge; affirmed.
     Henry J. Swift, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 3-11-96   *ADVREP6*






ROBERT LEE JONES,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



CR 95-33



APPEAL FROM THE MISSISSIPPI
COUNTY CIRCUIT COURT, OSCEOLA
DISTRICT,
NO. CR 93-148,
HON. GERALD PEARSON, JUDGE,




AFFIRMED.




     Appellant, Robert Lee Jones, appeals the judgment of the
Mississippi County Circuit Court, filed on October 3, 1994, finding
him guilty of one count of capital murder for the felony murder of
Estella Black committed in April of 1993.  Appellant was tried by
a jury and sentenced to life imprisonment without parole. 
Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R.
1-2(a)(2).  Appellant raises four arguments for reversal.  We find
no error and affirm the trial court's judgment. 
                   1.  Sufficiency of evidence
     Appellant argues that there was insufficient evidence to
support his conviction for capital murder.  We consider this
argument first because the double-jeopardy clause, as interpreted
in Burks v. United States, 437 U.S. 1 (1978), precludes a second
trial when a judgment of conviction is reversed for insufficient
evidence.  Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993);
Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).  Appellant
has failed to preserve this issue for our review due to a lack of
specificity in his motions for directed verdict below. 
     Appellant moved for a directed verdict at the close of the
state's case, as follows:
          THE COURT:  Let the record reflect that the State
     having rested, we're in chambers at the request of the
     defense for the purpose of making a motion for a directed
     verdict challenging the sufficiency of the evidence.
     
          MR. SWIFT [COUNSEL FOR DEFENDANT]:  That's correct.

          THE COURT:  And the motion will be denied.

          (End of hearing.)

Proceedings then resumed in the courtroom at which time the defense
immediately rested.  The record states that "defense renewed the
motion for a directed verdict which was heard and denied."
     It is well-established that a challenge to the sufficiency of
the evidence requires the moving party to apprise the trial court
of the specific basis on which the directed-verdict motion is made. 
E.g., Mitchell v. State, 323 Ark. 116, ___ S.W.2d ___ (1996);
Haltiwanger v. State, 322 Ark. 764, 912 S.W.2d 418 (1995).  Neither
appellant's original directed-verdict motion nor his renewal motion
indicates that any specific deficiency in the evidence was called
to the trial court's attention.  Because there was a failure to
raise the specific basis for a directed verdict at trial, appellant
cannot now challenge the sufficiency of the evidence on appeal. 
Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).
                        2.  Speedy trial
     Appellant argues the trial court erred in denying his motion
to dismiss on the ground that the state failed to timely bring him
to trial.  Ark. R. Crim. P. 28.1.  Appellant's trial began on
September 14, 1994, a date more than twelve months after the
speedy-trial period began on April 9, 1993, when appellant was
taken into custody and incarcerated from that point forward.  Thus,
appellant established a prima facie case that a speedy-trial
violation occurred, and the burden shifted to the state to show the
trial court that the delay was the result of the appellant's
conduct or otherwise legally justified.  Clements v. State, 312
Ark. 528, 851 S.W.2d 422 (1993).  We find that the state met this
burden.
     On February 18, 1994, appellant filed a motion for continuance
to obtain a psychological examination, to obtain discovery
materials purportedly withheld by the state, and because:
          4.  As further grounds for this matter to be
     continued, the attorney for the Defendant has developed
     physical problems which will make it difficult for him to
     adequately represent the Defendant at trial.  It is
     possible that the attorney for the Defendant may be
     hospitalized as a result of these physical problems in
     the next few days.

On February 18, 1994, appellant filed a separate motion for
psychiatric examination.  By order filed on February 22, 1994, the
case was continued on appellant's motion to the first day of the
next term of court on May 31, 1994.  Appellant does not dispute, on
appeal, the period of delay excluded under this order.
     The gravamen of appellant's argument is that it was error to 
exclude the period of delay from May 31, 1994, until September 6,
1994, on the basis of the following order that was filed on
September 13, 1994:
          Now, on this 12th day of September, 1994, upon
     Motion of the Defendant, Robert L. Jones, by and through
     his attorney, Henry Swift, IT IS HEREBY CONSIDERED,
     ORDERED AND ADJUDGED that the above-captioned case is
     continued from May 10, 1994 until September 6, 1994 due
     to the illness of Henry Swift.

          IT IS FURTHER ORDERED that the time between the
     dates be an excluded period of time within the meaning of
     the Speedy Trial Rules.

     The September 13 order was signed by Circuit Judge Samuel
Turner, Jr.  The hearing on appellant's motion to dismiss was
conducted by Circuit Judge Gerald Pearson.
     Appellant argues that the September 13 order was obtained by
the state, without action on the part of him or his trial attorney,
Henry Swift, and was not reflected by any docket entry, as required
by Ark. R. Crim. P. 28.3(i), and, therefore, the period of delay
from May 31, 1994, until September 6, 1994, cannot be charged
against him.  
     At the hearing on the motion to dismiss, the trial court
requested evidence regarding the September 13 order.  Deputy
Prosecuting Attorney Richard Rhodes, testified that, on or about
May 9, 1994, he received a telephone call from Dr. Reggie Cullom,
Mr. Swift's physician, who advised him that Mr. Swift was
hospitalized, that Mr. Swift had informed him that he had a number
of cases ready for trial in the upcoming term of court at the end
of May, that Mr. Swift would be in no condition to try any cases in
June, and asked that Mr. Swift's cases be continued due to his poor
physical condition.  
     The trial court stated that pretrial criminal proceedings were
held on May 10, 1994, for the term of criminal court that commenced
on May 31, 1994.  Mr. Rhodes testified that he went to the pretrial
proceeding on May 10, 1994, and talked to Judge Turner, who
indicated that he had also received a communication from
Dr. Cullom.    
     Mr. Rhodes testified that, at the May 10, 1994 pretrial
proceeding, Judge Turner announced that Mr. Swift was hospitalized
and unable to try his cases in the upcoming term of court, and that
all of Mr. Swift's cases were continued.  
     At the hearing on the motion to suppress, Mr. Rhodes provided
the trial court with a copy of a letter dated May 12, 1994, from
Deputy Prosecutor Charles R. Easterling to Mr. Swift.  Although the
letter concerned another criminal case, it contained the following
language that is pertinent to this appeal:
          At the Osceola pre-trial on May 10, Judge Turner
     advised that he had been advised that you were having
     significant health problems which have resulted in your
     hospitalization and also your unavailability to try cases
     during the upcoming criminal term commencing May 31.  It
     was Judge Turner's understanding that you wished to have
     all of your cases continued on defense motion until the
     next term which is September 6.

The record shows that a copy of the May 12 letter was filed in this
case on May 23, 1994.  Mr. Rhodes testified that, when appellant
filed the motion to dismiss in August 1994, he examined the court
docket, found no entry for May 10th, and, thereupon, prepared a
written order memorializing the continuance from May 10, 1994,
until September 6, 1994, that was granted at the May 10, 1994
pretrial proceeding.  
     At the hearing on the motion to dismiss, Deputy Prosecuting
Attorney Shannon Langston testified that, on September 13, 1994,
she filed the order continuing the case from May 10, 1994, until
September 6, 1994, after she talked with Judge Turner and showed
him Mr. Easterling's letter.  Ms. Langston testified that Judge
Turner glanced at the letter, had no qualms about signing the
continuance order, and said that he did not believe he had not made
docket entries that day, was very sorry that he had not made docket
entries, and did remember making an announcement before court. 
Ms. Langston also testified that Mr. Guy Long, who had been
described by Mr. Swift as someone "I could have and did have so he
could sit with me at trial," was present in court on May 10, 1994,
and "was in agreement."       
     At the hearing on the motion to dismiss, Mr. Swift testified
that he was hospitalized in Memphis, Tennessee, from May 3, 1994,
until his discharge on May 31, 1994.  Mr. Swift did not controvert
the fact that Judge Turner orally continued all of Mr. Swift's
cases on May 10, 1994.  Mr. Swift testified, however, that he did
not request a continuance from May 31, 1994, and that neither
Dr. Cullom nor Mr. Long was authorized to act for him or appellant. 
     The trial court determined that the delay from May 10, 1994,
to September 6, 1994, was excludable by order of Judge Turner, and
denied the motion to dismiss, stating:
          Now, perhaps it's unfortunate -- well, it's
     certainly true that Mr. Swift did not file a motion for
     continuance for the May term of court.  No docket entry
     was made by the Court at that time.  However, it is
     abundantly clear to the Court in reconstructing the
     record as to what actually transpired that the case was
     set for the May '94 session of court, that Mr. Swift was
     ill, hospitalized for a period of 27 days, three weeks or
     so, having been discharged on May 31st, the date set for
     trial.

          It's clear abundantly to the Court that the State
     would not have been able to proceed to trial on May the
     31st and subpoenaed witnesses and have them here for
     trial on that date under the circumstances.  It's grossly
     unfair that the State would be penalized for not having
     tried the case at the May 31st session of court under the
     circumstances.

          Communication was had with the judge and prosecuting
     authorities that Mr. Swift was not physically able to try
     the case during that period of time.

     We find no error in the trial court's ruling.  First, the
period of delay from May 31, 1994, to September 6, 1994, is
excludable, pursuant to Ark. R. Crim. P. 28.3(h), for good cause. 
Appellant does not contest the fact of the continuance that was
ordered at the May 10, 1994 pretrial proceeding, only that he did
not request the continuance.  However, we have held that, even
absent a defendant's specific request for a continuance, a trial
delay that is attributable to the defendant may constitute "good
cause" for exclusion of the delay, pursuant to Rule 28.3(h).  E.g.,
Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993) (delay
occasioned by defendant's motion to remove his court-appointed
counsel); Clements, 312 Ark. 528, 851 S.W.2d 422 (delay occasioned
by the trial court's removal of defense counsel who were found
negligent and held in contempt of court); Lewis v. State, 307 Ark.
260, 819 S.W.2d 689 (1991) (delay occasioned by the defendant's
motion to sever filed on the eve of trial).  In this case, we do
not hesitate to attribute the continuance that was ordered at the
May 10, 1994 pretrial proceeding to appellant, inasmuch as it was
a necessary and reasonable accommodation to him occasioned by the
undisputed illness and hospitalization of his trial counsel until
the first day of the criminal court term, May 31, 1994.
     Second, although Judge Turner did not set forth the excluded
period in a written order or docket entry on May 10, 1994, as
required by Rule 28.3(i), we have held that a trial court's failure
to comply with Rule 28.3(i) does not result in automatic reversal
of the conviction if a contemporaneous record is made that reveals
the delaying act is attributable to the accused.  Wallace v. State,
314 Ark. 247, 862 S.W.2d 235 (1993).  In Clements, 312 Ark. 528,
851 S.W.2d 422, we held that a nunc pro tunc order prepared and
filed by the prosecution to memorialize a continuance that was
attributable to the accused was sufficient where the record also
reflected that the continuance was memorialized in the proceedings
at the time.  Accord Lewis, 307 Ark. 260, 819 S.W.2d 689.  In this
case, although no contemporaneous record was made by Judge Turner
when he orally continued the case on May 10, 1994, by reason of
Mr. Swift's health problems, Judge Turner remedied that oversight
by the order that was filed on September 13, 1994.  Further, the
record contains the May 12, 1994 letter of Mr. Easterling, which
also sets forth the dates and basis for the May 10 continuance, as
memorialized in the September 13 order.  This case is
distinguishable from other decisions in which we have found that,
in addition to the trial court's noncompliance with Rule 28.3(i),
the state failed to prove that the disputed delay was legally
justified.  E.g., Hicks v. State, 305 Ark. 393, 808 S.W.2d 348
(1991) (finding the trial court's order excluding period of delay
violated Rules 28.3(b) and 28.3(i)); Turbyfill v. State, 312 Ark.
1, 846 S.W.2d 646 (1993) (finding no proper continuance indicating
the reasons for delay was granted by the trial court when
continuance was ordered).  In the present case, in contrast, the
state has clearly demonstrated that the disputed delay was the
result of appellant's conduct.  This record is sufficient to
satisfy Rule 28.3(i). 
      Finally, the record reveals a docket entry dated September 6,
1994, that provides:  "Cont. to 9/14/94 for mo. Speedy Trial."  We
understand this entry to memorialize a trial delay from
September 6, 1994, until September 14, 1994, as a result of
appellant's motion to dismiss.  Appellant does not dispute, on
appeal, this excluded period of delay.  On September 14, 1994, the
trial commenced.  
     On this record, the state has met its burden of showing that
the delay was legally justified.  Therefore, the trial court did
not err in denying the motion to dismiss.
                     3.  Motion to suppress
     Appellant makes the following statement in his brief to this
court:
     [A]ppellant feels he should call attention to the fact that he
     was questioned for 4 days, without benefit of the presence of
     Counsel or family, before giving the so called confessions;
     and that he never signed the statements.
          Appellant feels the Lower Court was in error in not
     requiring greater proof the voluntariness of the
     confession. 
 
By this statement, we understand appellant argues that the trial
court erred in denying his motion to suppress two separate oral
statements that he gave while in custody at the police department. 
In each statement, appellant declared that he believed he killed
the victim.  The first statement was given on Saturday, April 10,
1993, 4:11 p.m.; the second statement was given on Sunday,
April 11, 1993, 3:30 p.m.  Both statements were tape recorded and
subsequently transcribed.  At trial, the recordings of both
statements were admitted into evidence and played.  
     At the evidentiary hearing on the suppression motion,
testimony was given by Osceola Police Department Officers J.C.
Brewer and A.C. Simmons, appellant, and Osceola District Municipal
Court Judge William Lee Fergus.  At the conclusion of the hearing,
the trial court ruled both statements were voluntarily given prior
to appointment of defense counsel for appellant, and denied the
suppression motion.
     We have stated that, on appeal, we make an independent
determination of the voluntariness of a confession, but, in doing
so, "`we review the totality of the circumstances and will reverse
only when the trial judge's finding of voluntariness is clearly
against the preponderance of the evidence.'"  Trull v. State, 322
Ark. 157, 160, 908 S.W.2d 83, 84 (1995) (quoting Weaver v. State,
305 Ark. 180, 806 S.W.2d 615 (1991)).  We do not reverse unless the
trial court's finding is clearly erroneous, recognizing that
conflicts in the testimony are for the trial court to resolve.  Id. 
     Appellant testified at the suppression hearing that he was
released after he was questioned the first time, but was detained
at the jail after he was picked up the second time.  Appellant
testified that Officer Simmons "kept asking me . . . and I kept
telling him I didn't know."  Other evidence introduced at the
suppression hearing reveals that appellant was questioned and
released on April 7, 1993, arrested on April 9, 1993, and detained
by the police thereafter.  Officers Brewer and Simmons identified
five copies of a form document that informed appellant of his legal
rights and waived those rights.  Those documents were respectively
dated April 7, 1993, 2:00 p.m.; April 9, 1993, 8:50 a.m.; April 10,
1993, 9:00 a.m.; April 10, 1993, 4:11 p.m.; and April 11, 1993,
3:30 p.m.  The record of the suppression hearing does not reveal
any other interviews during the period from April 7 to April 11,
1993. 
     At the suppression hearing, appellant testified that Officer
Simmons read something to him at the jail, which he did not really
understand because he (appellant) was under the influence of
alcohol.  When asked again at the suppression hearing whether he
understood what Officers Simmons and Brewer had read to him,
appellant testified that he could not remember.  Officer Simmons
recalled that he detected no alcohol from appellant's person or in
his manner or speech when he drove appellant to the jail.   
     The waiver form for the April 10 recorded statement was
introduced into evidence at the suppression hearing and is dated
April 10, 1993, 4:11 p.m.  Officer Brewer testified that, prior to
the April 10 recorded statement, he read the waiver form to
appellant and appellant verbally responded in the affirmative to
each question listed thereon.  Officer Brewer stated that Officer
Simmons was present during the reading of the waiver form, that
appellant was asked to sign the waiver form if he understood his
rights, and that appellant signed the waiver form in his presence. 
Officer Simmons corroborated Officer Brewer's testimony.  Both
officers signed the waiver form and were present at the ensuing
interview.  
     The waiver form for the April 11 recorded statement was not
introduced into evidence at the suppression hearing or at trial,
but the testimony from the suppression hearing reveals that it is
dated April 11, 1993, 3:30 p.m.  Both officers testified that the
waiver form for the April 11 interview was read, acknowledged, and
signed by appellant and by both of them in the same manner as
described for the April 10 recorded statement.  Both officers
testified that Officer Brewer left after the April 11 waiver form
was read and signed, and was not present at the interview that day. 
Officer Simmons testified that he was off-duty on Sunday, April 11,
and that the interview that day was initiated by appellant when the
station contacted him at home and informed him that appellant
wanted to talk to him.
     Appellant testified that Officer Simmons told him that he
would help him and get him some help.   Both officers testified
that no force or coercion was used on appellant or any promises
made to him to obtain either of the recorded statements.
     It is undisputed that appellant was not accompanied by an
attorney when the two recorded statements at issue were given. 
Appellant testified that Officer Simmons did not ask him if he
wanted a lawyer.  Officer Simmons testified that he specifically
recalled informing appellant that he had a right to an attorney,
and that appellant never asked for one.  Appellant testified that
"they" told him he had a lawyer.  When asked at the suppression
hearing who he was told was his lawyer, appellant testified that he
had not known at the time.  
     Judge Fergus testified that he conducted the probable-cause
proceeding at Officer Brewer's office on Sunday, April 11. 
Judge Fergus recollected that the probable-cause proceeding
occurred in the afternoon, possibly late afternoon, and that, just
before he went to the police station, a statement had been taken
from appellant that afternoon.  Judge Fergus testified that,
although the probable-cause affidavit indicated that bond was set
and a public defender appointed, those matters would not have been
done until the next day in court.  Officer Simmons testified that
the April 11 statement was given before appellant was bound over. 
     On this record, appellant has not demonstrated that the trial
court's finding that both of the recorded statements were
voluntarily given prior to appointment of defense counsel is
clearly erroneous.  The conflicts in the testimonies were for the
trial court to resolve.  Trull, 322 Ark. 157, 908 S.W.2d 83. 
Therefore, the trial court did not err in denying the motion to
suppress.
             4.  Tape recordings and transcriptions
     Appellant argues that the trial court erred in refusing "to
dismiss" the two tape recordings that were the subject of the
aforementioned suppression hearing and the transcripts of those
statements when they were offered at trial.  
     At trial, Officer Brewer identified the original tape
recording of the April 10 statement, which was introduced into
evidence, without objection, and played for the jury.  Over
appellant's objection, the trial court instructed the jury that
they would be permitted to have a transcription of the recording to
aid in understanding the recording and that, if any discrepancies
were noted, they must consider only the tape recording as it was
the evidence and the transcription was just an aid.  The
transcription was not admitted into evidence.  After the tape
recording was played, the secretary who prepared the transcription
testified that, at the beginning of the transcript, she had typed
April 12 as the date of the interview.  The secretary testified
that that date had been changed in ink by someone else to read
April 10.  The secretary testified that, without listening to the
tape, she did not know if the date she had typed was a
typographical error or not.  
     Appellant moved to strike the April 10 statement on the ground
that it was taken with the knowledge that counsel had been
appointed to represent him and had not been informed of the
interview.  The trial court denied the motion to strike, stating
that the discrepancy in the date had previously been addressed at
the suppression hearing and that Officer Brewer had there testified
that, when he noticed the clerical error on the transcription, he
had manually corrected it so that it stated the correct date of the
recorded statement, which was April 10.  The trial court stated
that if the recording itself stated that the interview occurred on
April 12, then appellant would be heard further.  
     The state then conceded that the disputed date was not a part
of the recording.  On cross-examination, Officer Brewer testified
that the statement of the date was not on the tape, that whoever
typed the transcript put it there, that he had manually changed the
date from April 12 to April 10, and that the interview recorded was
that conducted on April 10, 4:15 p.m.  Appellant did not renew his
motion to strike.
     We observe that, at the hearing on the motion to suppress the
April 10 and April 11 recorded statements, Officer Simmons stated
that he never interviewed appellant after the April 11 probable-
cause proceeding.
     The transcription of the challenged recording, as noted, was
never admitted into evidence.  On this record, we do not find that
appellant has demonstrated as clearly erroneous the trial court's
finding that the April 12 date in the transcription was a simple
clerical error.  Therefore, the trial court did not err in denying
the motion to strike the recording of the April 10 statement.    
     Appellant argues that the April 11 tape recording and its 
transcription, which was prepared by a different secretary, should
have been dismissed due to the possibility of taint.  This
argument, which is based upon a false premise, is clearly without
merit.
                           Conclusion
     In accordance with Ark. Sup. Ct. R. 4-3(h), the record has
been reviewed for prejudicial errors objected to by appellant but
not argued on appeal, and no such errors were found in this case. 
     Affirmed.
     DUDLEY and NEWBERN, JJ., dissent.March 11, 1996   *ADVREP6A*


                                   CR95-33
ROBERT LEE JONES                   

          Appellant                                               
           
     v.
               
STATE OF ARKANSAS                  

          Appellee                 Dissenting Opinion





                     David Newbern, Justice.


     It was the State's burden to show that the delay of Robert Lee
Jones's trial from May 31, 1994, until September 10, 1994, was
attributable to Mr. Jones.  To bear that burden the State was
required to show a written order or docket entry.  Ark. R. Crim. P.
28.3(i).  The majority opinion concludes the continuance from May
10, 1994, to September 10, 1994, was attributable to Mr. Jones.  To
exclude the time from the speedy trial period, the docket entry
must be made at the time the continuance is granted to the
defendant.  Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993);
Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991).  No such
docket entry was made, and that should be the end of this case.   
     The majority opinion cites no evidence whatever that Mr. Jones
either made a continuance motion for the period in question or was
aware of one having been made on his behalf.  In the belated nunc
pro tunc continuance order, signed and entered the day before the
trial began on September 14, 1994, it is stated that Mr. Jones
sought a continuance through his counsel.  Judge Pearson
specifically found that Mr. Swift did not make such a motion on Mr.
Jones's behalf.  In considering the matter he said:

          It's certainly true that Mr. Swift did not file a motion
     for continuance for the May term of court. No docket entry was
     made by the court at that time.  However, it is abundantly
     clear to the court in reconstructing the record as to what
     actually transpired that the case was set for the May 1994
     session of court, that Mr. Swift was ill, hospitalized for a
     period of 27 days, three weeks or so, having been discharged
     on May 31st, the date set for trial.

      What we have in the way of reconstruction of the record is a
letter from a special prosecutor, Mr. Easterling, saying that Judge
Turner continued Mr. Swift's cases, and the testimony of two other
prosecutors about a continuance granted on the basis of phone calls
by a doctor.  We do not even have in the record any testimony by
the doctor that he was requested by anyone to inform the Court of
Mr. Swift's illness, much less evidence that he was authorized to
request a continuance on Mr. Jones's behalf.
     Even if we could say that Mr. Swift's hospitalization until
May 31, 1994, might have been good cause to continue Mr. Jones's
trial until some later date, the State made no showing why the case
was not tried in June, July, or August of 1994.  In his remarks,
Judge Pearson noted that the case was once set for August 10, 1994,
but was inexplicably not tried on that date.  Although there are
references to various "terms of court," according to Ark. Code Ann.
 16-13-1002(a)(1)(ii) (Repl. 1994), the term of court of the
Circuit Court in the Osceola District of Mississippi County begins
on the fourth Monday in February and runs for one year.  Subsection
(b) of that statute provides that the courts of the Second Judicial
District shall always be open for the transaction of business on
all matters over which they have jurisdiction except on days
excluded by law.  Again, we are left with no docket entry or other
contemporaneous record of any further continuance or reason why the
case was not tried after the recorded continuance ended May 31,
1994.
     In a puzzling way, the majority opinion cites and seems to
rely on Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993), and
Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993), which
emphasized the need for a contemporaneous record of any
continuance.  In the Clements case we honored a nunc pro tunc order
only because the continuance was otherwise memorialized on the
record at the time it was granted.  The majority opinion in the
case now before us says "Judge Turner remedied that oversight by
the order filed on September 13, 1994."  No explanation is given as
to how his nunc pro tunc order complied with the requirement of a
contemporaneous docket entry or other record of the granting of the
continuance.    
     To affirm on the basis of "other good cause" or Judge Turner's
belated order is directly contrary to our decision in the Hicks
case.  There we reversed and dismissed a conviction because of
violation of the speedy trial rule and the lack of any writing or
record of a continuance.  We said:

          Although it is not expressly stated in the rule, we have
     said that a trial court should enter written orders or make
     docket notations at the time continuances are granted to
     detail the reasons for the continuances and to specify to a
     day certain, the time covered by such excluded periods
     (emphasis added).  McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Cox v. State, 299 Ark. 312, 772 S.W.2d 336
     (1989).  In order to provide any impetus behind Rule 28.3, we
     must adhere to this language; otherwise, there is no need for
     the rule.
  
     We noted that the only docket entry made in an attempt to
comply with the rule in the Hicks case was made nine days after the
speedy trial period had run.  In this case, the State originally
had until April 9, 1994, to bring Mr. Jones to trial.  The time was
properly extended until May 31, 1994.  The only written record of
any further continuance appeared 105 days thereafter.  If the right
of the accused and the public to have trials conducted in
accordance with our rules designed to bring accused persons to
trial promptly are to have any meaning, this case should be
dismissed.
     I respectfully dissent.
     Dudley, J., joins.