Reece v. State

Reginald REECE v. STATE of Arkansas

CR 96-81                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 16, 1996


1.   Appeal & error -- sentencing argument raised for first time on
     appeal -- argument not considered. -- Appellant's argument
     that his sentence of forty years' imprisonment constituted
     cruel and unusual punishment under the Eighth Amendment to the
     United States Constitution was not reached by the court
     because appellant made no objection at the time his sentence
     was imposed; where the record reflects a total absence of any
     objections after the jury's findings and sentencing are read
     by the court, issues of such nature will not be considered
     when raised for the first time on appeal; even constitutional
     arguments not raised before the trial court will not be
     considered on appeal.  

2.   Criminal procedure -- criminal defendant has right to be
     present whenever substantial step is taken in his case -- when
     his presence is considered waived. -- A criminal defendant
     possesses the privilege of being present in person and by
     counsel whenever any substantial step is taken in his case,
     and if the indictment is for a felony, the defendant must be
     present during the trial; however, where the defendant is on
     bail and absents himself, the trial may proceed; this rule
     applies once trial has commenced, and does not apply to flight
     before trial; commencement of trial marks the point at which
     the costs of delaying the proceedings are likely to increase
     and helps to assure that any waiver of presence after that is
     knowing and voluntary. 

3.   Criminal procedure -- appellant's trial had commenced before
     he became voluntarily absent -- no error in trial court
     allowing appellant's trial to proceed. -- Where appellant's
     trial had commenced when he became voluntarily absent, a jury
     had been selected and sworn, and both sides had announced that
     they were ready for trial, the trial court did not err in
     allowing appellant's trial to proceed.


          Appeal from Miller Circuit Court; Jim Gunter, Judge;
affirmed.
     Keil & Goodson, by:  John C. Goodson, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Bradley D. Jesson, Chief Justice.
     The appellant, Reginald Reece, was convicted of robbery and
sentenced as an habitual offender to forty years' imprisonment.  He
raises two points on appeal, neither of which has merit.  We affirm
the trial court.
     The State adduced the following proof at trial.  Ramona
Johnson, a security guard at the Wal-Mart store on State Line Road
in Texarkana, followed the appellant into the store when it opened
on December 10, 1994.  She recognized the appellant because she had
caught him shoplifting cigarettes earlier in July and had banned
him from the premises.  
     Once inside, Johnson followed appellant and observed him stuff
two cartons of Marlboro cigarettes down his pants.  When appellant
passed the checkout counter and attempted to walk out the door,
Johnson stopped and confronted him.  Initially, appellant denied
having any cigarettes on his person, but later admitted to having
them, explaining that he had brought the cartons from home. 
Johnson then took appellant's arm and escorted him to the service
desk.  After appellant pushed Johnson in the chest, other Wal-Mart
employees gathered and ushered him to a back room pursuant to the
store's customary practice.  Appellant cursed and fought with them
along the way, grabbing one employee's necktie.  Once in the back
room, the appellant challenged one to a fight.  The employees held
appellant until officers arrived.  In his statement to police,
appellant admitted that he went into the store with the intention
of stealing the cigarettes, but denied using any force during the
incident.    
     Appellant first argues that his sentence of forty years'
imprisonment under the facts in his case constitutes cruel and
unusual punishment under the Eighth Amendment to the United States
Constitution.  We cannot reach this issue because appellant made no
objection at the time his sentence was imposed. See Fellows v.
State, 309 Ark. 545, 832 S.W.2d 847 (1992).  We have repeatedly
held that, where the record reflects a total absence of any
objections after the jury's findings and sentencing are read by the
court, we will not consider issues of such nature raised for the
first time on appeal. Id.; Williams v. State, 303 Ark. 193, 794 S.W.2d 618 (1990); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900
(1989); Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989); Withers
v. State, 308 Ark. 507, 825 S.W.2d 819 (1992).  While appellant did
file a motion for new trial, he did not raise this constitutional
argument in his motion.  Even constitutional arguments not raised
before the trial court will not be considered by this court on
appeal.  Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996).     
     Appellant's second allegation of error is that the trial court
erred in proceeding with his trial when he was absent from the
courtroom.  On the first day of appellant's jury trial, both sides
announced they were ready to proceed, and a jury was selected and
impaneled.  On the second day of trial, appellant, who was on bail,
did not appear.  His attorney stated for the record that appellant
was aware that he was to reappear at 9:00 a.m.  When the attorney
requested a continuance, the trial judge inquired whether he could
demonstrate that appellant would likely appear within some
reasonable time.  After appellant's attorney stated that he could
not give this reassurance, the trial court refused to grant a
continuance.  Appellant appeared at the trial some two hours late
and after several of the State's witnesses had testified.  He
apologized and stated that he had overslept.  Appellant
acknowledged that he understood that it was his responsibility to
timely attend his trial.   
     It is true that a criminal defendant possesses the privilege
of being present in person and by counsel whenever any substantial
step is taken in his case.  Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988); Whittaker v. State, 173 Ark. 1172, 293 S.W. 397 (1927). 
Arkansas Code Annotated  16-89-103 (a)(1) (1987) further provides
that, "If the indictment is for a felony, the defendant must be
present during the trial."  However, section 16-89-103(a)(2)
provides:
          If [the defendant] escapes from custody after the
     trial has commenced or, if on bail, shall absent himself
     during the trial, the trial may either be stopped or
     progress to a verdict, at the discretion of the
     prosecuting attorney. However, judgment shall not be
     rendered until the presence of the defendant is obtained.
     
(Emphasis added.)  Pursuant to this provision, we have held that
where the defendant is on bail and absents himself, the trial may
proceed.  Lee v. State, 56 Ark. 4, 19 S.W. 16 (1892); Cox v. City
of Jonesboro, 112 Ark. 96, 164 S.W. 767 (1914).  This rule applies
once trial has commenced, and does not apply to flight before
trial.  This distinction between flight before and after trial is
indeed a rational one.  Commencement of trial marks the point at
which the costs of delaying the proceedings are likely to increase
and helps to assure that any waiver of presence after that is
knowing and voluntary.  See Crosby v. United States, 506 U.S. 255
(1993) (discussing Fed. R. Crim. P. 43).  This provision also
deprives a defendant of the option of terminating his trial if it
appears that he will receive a guilty verdict.  Id.
     In Johnson v. State, 270 Ark. 247, 604 S.W.2d 927 (1980),
cert. denied 450 U.S. 981 (1981), on the day of trial, the trial
court held a suppression hearing in Johnson's case.  Johnson was
present for the hearing.  After the hearing, the trial court
announced a ten-minute recess.  When court reconvened, Johnson was
absent.  Following a one-hour recess, the court reconvened again,
and Johnson was still absent.  Efforts to contact him at his
residence were unsuccessful.  The trial court ruled that Johnson's
trial had commenced and that the trial could proceed in his
absence.  We affirmed the trial court on the basis that Johnson had
voluntarily absented himself from trial and had waived his right to
be present.    
     As in Johnson, the appellant's trial had indeed commenced when
he became voluntarily absent.  A jury had been selected and sworn,
and both sides had announced that they were ready for trial.  Under
these circumstances, we cannot say that the trial court erred in
allowing appellant's trial to proceed.
     Affirmed.