Lovett v. State

Sophocles LOVETT v. STATE of Arkansas

CR 97-436                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 2, 1997



1.   Criminal procedure -- amendment of information -- when
     allowed. -- An amendment of an information will be allowed by
     a court during trial so long as the nature and degree of the
     crime is not changed and the defendant is not prejudiced
     through surprise.

2.   Motions -- motion to strike properly denied by trial court --
     appellant not surprised by change -- nature and degree of
     crime not changed. -- Where the witnesses who had been
     involved or had seen the incident were known to appellant,
     appellant had sixteen months to talk to the witnesses to learn
     what their stories would be at trial, and appellant never
     suggested other witnesses or evidence that might be warranted
     as a result of the State's amendment, appellant could express
     little surprise in the State amending the information to
     correctly name the victim who was battered, since he was well
     aware that his girlfriend was the one he had physically
     injured, not her cousin, who was originally named in the
     information; appellant's argument fell short of showing he has
     sustained any surprise or prejudice by the amendment to the
     information.

3.   Motions -- grant or denial of motion for continuance within
     discretion of trial court -- decision not reversed absent
     abuse of discretion. -- The decision to grant or deny a motion
     to continue is within the sound discretion of the trial court,
     and such a decision will not be reversed absent an abuse of
     discretion amounting to a denial of justice.

4.   Motions -- trial court well within discretion to deny
     continuance -- no abuse of discretion found. -- Where
     appellant, through his own actions, was unavailable for four
     months prior to trial, making it impossible for his counsel to
     prepare his defense, he had had a number of continuances, and
     the trial court had every right to believe appellant was
     trying to stall, the trial court was well within its
     discretion to deny appellant's continuance request. 


     Appeal from Jefferson Circuit Court; Berlin C. Jones, Judge;
affirmed.
     Bramblett & Pratt, by: James M. Pratt, Jr., for appellant. 
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
     Appellant Sophocles Lovett by information was charged with the
crimes of aggravated assault, second-degree battery, and with being
a felon in possession of a firearm.  He was convicted of all
charges, and received respective sentences of fifteen years,
fifteen years, and forty years to run concurrently.  Sophocles
testified in his own defense at trial, but on appeal, he does not
challenge the sufficiency of the evidence.  Instead, he argues only
that the trial court erred by (1) allowing the State to amend its
information the day before trial, and (2) denying him a continuance
to permit his defense counsel more time to prepare for trial.  We
affirm.
     Before addressing Sophocles's first point, a brief summary of
the facts leading to his charges is necessary.  The State's case
showed that, on May 8, 1995, Deborah Williams had a medical
appointment for her son in Pine Bluff, and asked her cousin,
Patrece Gregory, to go with her.  Patrece had been staying at
Deborah's house in Fordyce to get away from Sophocles, who was
Patrece's boyfriend.  Sophocles saw Deborah and Patrece in a car
driving to Pine Bluff, and he followed them to the parking lot at
Deborah's doctor's office.  After Deborah went into the office,
Patrece remained outside and talked with Sophocles.  Sophocles
accused Patrece and her family members of having taken $10,000.00
of his money.  An altercation ensued, and Sophocles struck Patrece
in the head with a handgun, causing her serious injury.  Patrece,
bleeding from the head, ran into the doctor's office with Sophocles
in pursuit.  She ran to Deborah, screaming, "He is trying to kill
me," and Sophocles, among other things, was heard saying, "I'm not
going to put up with this anymore."  Sophocles pulled his gun, told
Deborah "this" was her fault, and he was going to kill Deborah.  He
pointed the gun at Deborah's head and pulled its trigger four
times.  Although loaded, the gun misfired.  Several witnesses who
were present in the doctor's office testified they had seen
Sophocles beat Patrece with a gun, and had observed blood flowing
from her head.
     As a result of the foregoing events, the State filed its
information three days afterwards, on May 11, 1995, and charged
Sophocles with the following three crimes:  
          Count 1:  Aggravated Assault -- under circumstances
     manifesting extreme indifference to the value of human
     life, purposely engaged in conduct that created a
     substantial danger of death or serious physical injury to
     Debra (sic) Williams.
          Count 2:  Battery in Second Degree -- with the
     purpose of causing physical injury to another person,
     cause physical injury to Debra (sic) Williams by means of
     a deadly weapon.
          Count 3:  Felon in Possession of a Firearm -- having
     been previously convicted of a felony, possess a firearm,
     to-wit:  .38 caliber revolver.
     Apparently, on the day before trial, September 4, 1996, the
State learned it had mistakenly named Deborah Williams instead of
Patrece Gregory as the victim in count 2, and it requested the
trial court to allow the State to correct its mistake by amending
the information.  The trial court granted the State's request.  The
next day, before trial, Sophocles moved to strike the State's
amended information; alternatively, he asked for a continuance.
     In support of his motion to strike the State's amended
information, Sophocles argued the amended charge would require "an
entire change in [his] defense, and that change would cause great
prejudice to the defense."  The State rejoined that the requested
amendment was consistent with the investigative material and was
not a surprise to the defense.  It added that both Patrece and
Deborah had been called as witnesses to testify concerning what had
transpired on May 8, 1995, the day of the alleged crimes.
     In denying Sophocles's motions, the trial judge made a point
of Sophocles's having failed to help his counsel in preparing for
trial, even though the trial court had previously warned Sophocles
that his case was about "to get stale," since he had received
earlier continuances.  The judge also emphasized that Sophocles had
made no efforts to contact his counsel to discuss his case or to
prepare for trial.  In fact, even though counsel tried to reach
Sophocles at his last known residence and by contacting family
members, the trial judge observed that Sophocles never made any
attempt to contact or see his attorney until the morning of trial. 
     We hold the trial court correctly denied Sophocles's motions. 
While defense counsel on appeal claims the State's amended
information changed the nature of the crime and prejudiced him, he
fails to show how.  First, we would note that Sophocles failed to
specify at trial that the nature of the second-degree battery crime
had been changed by the State's motion; but even if he had, he
still never indicated how the change prejudiced his defense.  
     The court has held that an amendment of an information will be
allowed by a court during trial so long as the nature and degree of
the crime is not changed and the defendant is not prejudiced
through surprise.  McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89
(1997).  Here, the defense counsel's statements made in support of
his motion to strike were conclusory, stating that he had not
talked to Patrece concerning the amended information, that his
entire defense had been changed by the amendment, and that he had
been caused great prejudice by the change.  As pointed out by the
State, Sophocles's remarks ignored the fact that Patrece, Deborah,
and other witnesses who had been involved or had seen the events of
May 8, 1995, were known to Sophocles.  They had been called and
were present to testify on the date of trial.  He had sixteen
months to talk to Patrece and the other witnesses to learn what
their stories would be at trial.  In fact, Sophocles was living
with Patrece at the time of trial.  Moreover, Sophocles never
suggested other witnesses or evidence that might be warranted as a
result of the State's amendment.  Undoubtedly, Sophocles could
express little surprise in the State naming Patrece as the victim
who was battered since he was well aware that Patrece was the one
he had physically injured, not Deborah.  In sum, Sophocles's
argument falls short of showing he has sustained any surprise or
prejudice.
     In conclusion, we believe if Sophocles suffered any prejudice
in presenting a defense, it was of his own doing.  Again, Sophocles
through his own actions was unavailable for four months prior to
trial, making it impossible for his counsel to prepare his defense. 
He had had a number of continuances, and the trial court had every
right to believe Sophocles was trying to stall.  The decision to
grant or deny a motion to continue is within the sound discretion
of the trial court, and such a decision will not be reversed absent
an abuse of discretion amounting to a denial of justice.  Travis v.
State, 328 Ark. 442, 944 S.W.2d 96 (1997).  The trial court was
well within its discretion to deny Sophocles's continuance request
in the circumstances found here.