Jefferson v. State

T. C. JEFFERSON v. STATE of Arkansas

CR 96-655                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 7, 1997


1.   Appeal & error -- error not necessarily prejudicial --
     harmless error rule requires exercise of judgment. -- Some
     prejudice must be shown in order to find grounds to reverse a
     conviction; no longer is it presumed that simply because an
     error is committed it is prejudicial error; the harmless-error
     rules embody the principle that courts should exercise
     judgment in preference to the automatic reversal for "error"
     and ignore errors that do not affect the essential fairness of
     the trial.  

2.   Trial -- trial court's error did not effect essential fairness
     of appellant's trial -- appellant's argument rejected. -- 
     Even though the trial court did not fully comply with Ark.
     Code Ann.  16-89-118 (Repl. 1987) by administering an oath to
     the officer conducting a jury view, the trial court's error
     did not affect the essential fairness of appellant's trial;
     appellant was required to object to the officer's taking
     charge of the jury without receiving the special statutory
     oath and to show that some misconduct by a juror or officer
     resulted; here, although the trial court did not administer
     the oath to its bailiff, nothing in the record remotely
     suggested that any officer or juror misconduct occurred or
     that prejudice resulted during the jury's trip to the
     correctional facility; appellant's argument that, in these
     circumstances, the trial court's failure to comply with  16-
     89-118 required reversal, was rejected.

3.   Evidence -- admission of videotapes -- factors considered. --
     A videotape is admissible if it is relevant, helpful to the
     jury, and not prejudicial; generally, the same considerations
     and requirements for admissibility that apply to photographs
     also apply to videotapes; the admissibility of such evidence
     is in the sound discretion of the trial judge, whose
     discretion will not be set aside absent an abuse of that
     discretion; a trial court cannot admit photographs carte
     blanche, however; only photographs whose prejudicial effect
     substantially outweighs any probative value are prohibited
     from admission.

4.   Evidence -- admission of photographs -- when admissible. --
     The mere fact that a photograph is inflammatory or is
     cumulative is not, standing alone, sufficient reason to
     exclude it; even the most gruesome photographs may be
     admissible if they assist the trier of fact in any of the
     following ways: by shedding light on some issue, by proving a
     necessary element of the case, by enabling a witness to
     testify more effectively, by corroborating testimony, or by
     enabling jurors to better understand the testimony; if a
     photograph serves no valid purpose and could be used only to
     inflame the juror's passion, it should be excluded.

5.   Evidence -- trial court carefully considered admission of
     videotape before allowing it into evidence -- no abuse of
     discretion found. -- The trial court carefully considered the
     admissibility of the videotape and allowed it into evidence,
     determining that it gave an overall perspective of the scene
     of the crime at the time the crimes were committed and was
     helpful to the jury's understanding of the nature and extent
     of the injuries as well; further, the capital murder charges
     were based on the allegation that appellant caused the deaths
     after premeditation and deliberation, and the videotape showed
     where the victims were when they were assaulted and the
     distance appellant covered when stabbing his victims; the
     trial court did not abuse its discretion in weighing the
     probative value against prejudice before allowing the
     videotape to be admitted into evidence.

6.   Trial -- defendant brought into courtroom in handcuffs -- not
     prejudicial per se. -- It is not prejudicial per se when the
     defendant is brought into the courtroom handcuffed; where it
     is essential to maintain dignity, order, and decorum in the
     courtroom, restraints may be used; moreover, the use of
     restraints is allowed where the defendant has been charged
     with violent offenses, engaged in disruptive behavior, or
     attempted escape.  

7.   Trial -- use of shackles appropriate -- any general prejudice
     caused by presence of shackles could have been cured by
     admonishment to jury. -- Where appellant had previously been
     convicted of rape, was presently charged with two counts of
     capital murder and one count of attempted capital murder, and
     had caused disruption during his trial, the shackles added
     nothing to the trial that was not already apparent from the
     nature of the case; any general prejudice caused by the
     presence of the shackles could have been cured by the trial
     court's admonishment to the jury to disregard the shackles in
     its consideration of appellant's case, but appellant failed to
     request such an admonition.


     Appeal from Chicot Circuit Court; Don Glover, Judge; affirmed.
     Thomas D. Deen, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
     Appellant T. C. Jefferson was serving time at the Arkansas
Department of Correction's Delta Regional Unit for having committed
rape when, on September 20, 1994, he stabbed three fellow inmates -
- James Jerry, Anthony Monts, and Rusty Cook.  Jerry and Monts
died.  Jefferson confessed to the stabbings, and was charged with
two counts of capital murder and one count of attempted capital
murder.
     At trial, Jefferson's defense was that he acted in
"preemptive" self-defense, stating the three men would have killed
him if he had not killed them first.  The jury found him guilty of
the capital murder of Jerry, of the first-degree murder of Monts,
and of the attempted capital murder of Cook.  He received
respective sentences of life imprisonment without parole, life, and
sixty years.  Jefferson appeals, raising three points for reversal.
     Jefferson's first argument arises from the jury's visit to
view the crime scene.  At trial, both the State and the defense
urged the judge to allow the jurors to visit the prison, so they
could view the kitchen and dining rooms where the stabbings
occurred.  Although he initially was against the idea, the judge
relented.  Defense counsel and the State persuaded the judge that
the jury could get the smell, feel, and sounds of the penitentiary
that it could not get from pictures, video, and testimony. 
Arrangements were made to transport the jury members to the
correction facility, and the trip, plus the viewing, took one and
one-half hours.  Immediately prior to recessing court for the trip,
the judge instructed the jurors as follows:
          Ladies and gentlemen, vans are -- a van is available
     for your transport to the correctional facility and what
     we are going to do is recess.  As I understand the
     procedure, you will just be shown the area of the inmate
     dining room and the kitchen area.  You will not be able
     to ask any questions or you will not be able to elicit
     any testimony from anybody.  Therefore, based upon what
     you have heard, the testimony you've already heard and
     other evidence introduced, this will just be additional
     opportunity for you to determine what the facts are.  We
     anticipate it will take approximately thirty minutes to
     get there, thirty minutes to come back, and probably
     thirty minutes there, including going through security. 
     So, we will take a recess and the bailiff will escort
     everybody downstairs.  I understand a van is available. 
     A bailiff will drive the van along with the twelve
     members of the jury.
     After the judge gave the foregoing instructions, neither the
defense counsel nor the prosecutor objected that the judge's
instructions were deficient or that the procedures utilized for the
viewing were improper.  Neither did the defense ever complain at
trial that any improper communication or contact occurred involving
any member of the jury.  Nevertheless, Jefferson submits that the
trial court's instructions did not conform with Ark. Code Ann. 
16-89-118 (Repl. 1987), which mandates the procedure to be employed
in a jury view.  In particular, he argues the trial court erred in
failing to instruct, under oath, the officer (bailiff), taking the
jury for viewing, to keep the jurors from communicating with others
about the case.  See  16-89-118(b)(2).  Jefferson further submits
that, based upon this court's interpretation of this same statute
in Baxter v. State, 225 Ark. 239, 281 S.W.2d 931 (1955), we should
reverse and remand his case for a new trial, even though Jefferson
never objected to the trial judge's noncompliance with the statute
or showed he suffered any prejudice as a result of such
noncompliance.
     In Baxter, the defendant, like Jefferson in the present case,
requested that the jury inspect the crime scene, and the trial
court granted the request.  Although  16-89-118(b)(2) [then Ark.
Stat. Ann.  43-2120 (1947)] required the court officers, escorting
the jury, to be "sworn to suffer no person to speak or communicate
with the jury on any subject connected with the trial, nor to do so
themselves," the record does not reveal that the trial court
administered the officer the oath.  Nor does the record reflect
Jefferson requested the oath be given.  
     In a split decision, the Baxter court reversed and remanded
the case, holding that  16-89-118(b)(2) made it mandatory that
officers conducting a jury to a crime scene be required to take the
statutory oath, and stating further that it was not for the court
to say no harm was done.  In a dissenting opinion, Justice George
Rose Smith pointed out that the majority opinion conflicted with
the court's prior holding in Atterberry v. State, 56 Ark. 515, 20 S.W. 411 (1892), but, the majority court never overruled
Atterberry.  Atterberry, too, involved the matter of administering
a special oath to an officer in charge of a jury, and the trial
court's failure to administer the oath before the jury went into
deliberation.  However, the Atterberry court affirmed the
defendant's conviction, holding the defendant had waived the
mandatory giving of the oath because he never objected or asked the
trial court to administer the oath, and no prejudice was shown
resulting from the trial court's failure to swear the officer.
     Any confusion over whether Atterberry or Baxter controls jury-
view situations such as the one before us now was laid to rest when
this court decided Berna v. State, 282 Ark. 563, 670 S.W.2d 434
(1984).  Berna, itself, did not involve  16-89-118, but it did
concern a trial court's failure to comply with the mandatory
statutory provisions [Ark. Stat. Ann.  39-210 (Supp. 1983)]
establishing the manner by which jurors shall be summoned.  While
the Berna court stated that it did not approve the procedure used
by the trial court and circuit clerk in selecting the defendant's
jury panel, it held that some prejudice must be shown in order to
find grounds to reverse a conviction.  The court further announced
the rule that no longer is it presumed that simply because an error
is committed it is prejudicial error.  Quoting from McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), the Berna court
said the following:
          This Court has long held that "[a litigant] is
     entitled to a fair trial but not a perfect one," for
     there are no perfect trials.  Brown v. United States, 411 U.S. 223, 231-232 (1973), quoting Bruton v. United
     States, 391 U.S. 123, 135 (1968), and Lutwak v. United
     States, 344 U.S. 604, 619 (1953).  Trials are costly, not
     only for the parties, but also for the jurors performing
     their civic duty and for society which pays the judges
     and support personnel who manage the trials.  It seems
     doubtful that our judicial system would have the
     resources to provide litigants with perfect trials, were
     they possible, and still keep abreast of its constantly
     increasing case load . . . .
          We have also come a long way from the time when all
     trial error was presumed prejudicial and reviewing courts
     were considered "citadels of technicality."  Kotteakos v.
     United States, 328 U.S. 750, 759 (1946), quoting
     Kavanaugh, Improvement of Administration of Criminal
     Justice by Exercise of Judicial Power, 11 A.B.A.J. 217,
     222 (1925).  The harmless error rules adopted by this
     Court and Congress embody the principle that courts
     should exercise judgment in preference to the automatic
     reversal for "error" and ignore errors that do not affect
     the essential fairness of the trial.  See Kotteakos, 328
     U.S., 759-760.
     This court's decision in Berna gives added strength and
support to its earlier holding in Atterberry.  Accordingly, we
conclude that, even though the trial court here did not fully
comply with  16-89-118 by administering an oath to the officer
conducting a jury view, the trial court's error did not affect the
essential fairness of Jefferson's trial.  Jefferson was required to
object to the officer's taking charge of the jury without receiving
the special statutory oath and to show that some misconduct by a
juror or officer resulted.  Here, the trial court admonished the
jurors that they would not be able to ask questions of anybody,
they were to determine the facts, and they would be escorted by the
court's bailiff.  Although the trial court did not administer the
statutory, special oath to its bailiff, nothing in the record
remotely suggests that any officer or juror misconduct occurred or
that prejudice resulted during the jury's trip to the correctional
facility.  Therefore, we reject Jefferson's argument that, in these
circumstances, the trial court's failure to comply with  16-89-118
requires reversal.
     Before leaving Jefferson's first argument, we address his
reference to Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995), wherein this court, citing earlier cases,
reiterated the proposition that the right to a jury trial is not
subject to the contemporaneous-objection rule, and such a right may
be raised for the first time on appeal.  Specifically, the Grinning
court, citing Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992),
stated that the denial of the right to trial by jury in a criminal
case, without the requisite waiver in accordance with the law, is
a serious error for which the trial court should intervene, and is
therefore an exception to the contemporaneous-objection rule.  See
Wick v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
     Jefferson suggests a trial court's error in failing to comply
with  16-89-118 is comparable to the type of serious error in
Grinning and Winkle, where the defendant was deprived of his or her
right to a jury trial.  That being true, Jefferson argues he was
not subject to the contemporaneous-objection rule, and it was
unnecessary for him to raise the  16-89-118 issue below as a
prerequisite to arguing it on appeal.  We disagree.  
     As this court explained in Winkle, the right to a trial by
jury in a criminal case is a fundamental right of our jurisprudence
and is recognized by the Magna Charta, the Declaration of
Independence, the federal constitution, and our state constitution. 
The Winkle court further explained the right to jury trial is part
of the basic structure of our courts, and every judge, on his or
her own motion, should accord such a basic right.  
     Obviously, while a trial court's failure to give an officer
the special oath required under  16-89-118 might result in some
misconduct or prejudicial error, such error does not encompass the
type of fundamental or structural right this court sought to
protect and ensure in Grinning and Winkle.  Because Jefferson
failed to object to the lower court's failure to comply with  16-
89-118, that failure alone is sufficient to affirm on his first
point.
     For his second point of error, Jefferson contends that the
trial court erred by admitting into evidence a videotape showing
the crime scene and victims' bodies was cumulative, inflammatory,
and gruesome, thus prejudicing him.  Jefferson argues that he
freely admitted to the stabbings, thus, the videotape's probative
value was minuscule compared to its prejudicial effect, and the
trial court erred by denying his motion for a mistrial based on the
prejudicial nature of the videotape.
     Jefferson relies on Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), where this court held that the admission of photographs
was a matter subject to the trial court's discretion but explained
that, "[T]he analysis should firmly emphasize the need for the
trial court to carefully weigh the probative value of the
photographs against their prejudicial nature, rather than promoting
a general rule of admissibility which essentially allows automatic
acceptance of all the photographs of the victim and crime scene the
prosecution can offer."  In Berry, this court reversed the
accused's murder conviction on the basis of unduly prejudicial
photographs.  Id. at 223.  Jefferson claims that the videotape,
like the photographs in Berry, added absolutely nothing of
probative value to the numerous still photographs the State had
previously introduced without objection.  Jefferson's argument is
without merit. 
     A videotape is admissible if it is relevant, helpful to the
jury, and not prejudicial.  Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).  Generally, the same considerations and
requirements for admissibility that apply to photographs also apply
to videotapes.  Williams v. State, 316 Ark. 694, 874 S.W.2d 369
(1994).  The admissibility of such evidence is in the sound
discretion of the trial judge, whose discretion will not be set
aside absent an abuse of that discretion.  Bradford v. State, 306
Ark. 590, 815 S.W.2d 947 (1991).  And while this court's decision
in Berry holds that a trial court cannot admit photographs carte
blanche, it only prohibits the admission of photographs whose
prejudicial effect substantially outweighs any probative value.
     In Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994), this
court held that no error occurred when the jury was shown both a
videotape of the homicide scene and photographs of the victim's
wounds.  This court stated the well-settled law as follows:
          The mere fact that a photograph is inflammatory or
     is cumulative is not, standing alone, sufficient reason
     to exclude it.  (Citation omitted.)  Even the most
     gruesome photographs may be admissible if they assist the
     trier of fact in any of the following ways:  by shedding
     light on some issue, by proving a necessary element of
     the case, by enabling a witness to testify more
     effectively, by corroborating testimony, or by enabling
     jurors to better understand the testimony.  (Citation
     omitted.)  Of course, if a photograph serves no valid
     purpose and could be used only to inflame the juror's
     passion, it should be excluded.
     Here, the record reflects that the trial court carefully
considered the admissibility of the videotape and allowed it into
evidence, determining that it gave an overall perspective of the
scene of the crime at the time the crimes were committed, and was
helpful to the jury's understanding of the nature and extent of the
injuries as well.  Further, the capital murder charges were based
on the allegation that Jefferson caused the deaths after
premeditation and deliberation, and the videotape showed where the
victims were when they were assaulted and the distance Jefferson
covered when stabbing his victims.  While Jefferson agreed to a
jury view and never objected to the introduction of photographs, he
cannot by such admissions prevent the State from putting on its
proof.  See Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991).  In
sum, we cannot say that the trial court abused its considerable
discretion in weighing the probative value against prejudice before
allowing the videotape to be admitted into evidence.
     Jefferson's final point challenges the trial court's denial of
his request to appear before the jury without shackles.  During
closing arguments in the guilt phase, Jefferson wept loudly and,
while attempts were made by security officers and counsel to subdue
him, the jury was escorted out of the courtroom.  Subsequently,
closing arguments resumed, and the jury returned its guilty
verdicts.  No further disruptions occurred.
     On the next day, Jefferson's sentencing phase commenced and
his counsel stated he did not want the jury to see Jefferson walk
into the courtroom wearing shackles and handcuffs.  He asked the
trial judge to remove the jury from the courtroom until Jefferson
was seated, but the judge denied his request.  Jefferson claims the
trial judge's denial was prejudicial error.
     Recently this court stated the settled rule that it is not
prejudicial, per se, when the defendant is brought into the
courtroom handcuffed.  Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996).  In Stanley this court recognized the holding in
Illinois v. Allen, 397 U.S. 337 (1970), where the Court said that,
where it is essential to maintain dignity, order, and decorum in
the courtroom, restraints may be used.  Moreover, this court in
Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985), upheld the use
of restraints where the defendant has been charged with violent
offenses, engaged in disruptive behavior, or attempted escape. 
     Here, Jefferson certainly falls within two of the categories
mentioned in Hill -- Jefferson had previously been convicted of
rape, was presently charged with two counts of capital murder and
one count of attempted capital murder, plus he had caused
disruption during his trial.  The shackles added nothing to the
trial that was not already apparent from the nature of the case. 
See Holloway v. Alexander, 957 F.2d 529 (8th Cir. 1992).  In these
circumstances, we conclude that any general prejudice caused by the
presence of the shackles could have been cured by the trial court's
admonishment to the jury to disregard the shackles in its
consideration of Jefferson's case, but Jefferson failed to request
such an admonition.
     In accordance with Ark. Sup. Ct. R. 4-3(h), the record has
been reviewed for trial errors prejudicial to Mr. Jefferson, and
none has been found.
     Because we find no merit in Jefferson's three points for
reversal, we affirm.