Turner v. State
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Cite as 2011 Ark. 111
SUPREME COURT OF ARKANSAS
No.
CR10-420
Opinion Delivered March
WALTER GABRIEL TURNER
APPELLANT
VS.
17, 2011
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT,
NO. CR09-68,
HON. LARRY CHANDLER, JUDGE,
STATE OF ARKANSAS
APPELLEE
REVERSED AND REMANDED.
JIM HANNAH, Chief Justice
Walter Gabriel Turner appeals his convictions for possession of cocaine with intent to
deliver, possession of marijuana with intent to deliver, possession of a schedule one stimulant
with intent to deliver, simultaneous possession of drugs and firearms, and three counts of
delivery of cocaine. He was charged as a habitual offender and sentenced to five life terms plus
terms of sixty and twenty years’ imprisonment. The sentences were ordered to run
consecutively.
On appeal, Turner asserts that the circuit court erred in denying his motions to sever
the cocaine delivery charges. Citing Graham v. Florida, 130 S. Ct. 2011 (2010), he also asserts
on appeal that imposition of five life terms plus eighty years, all to be served consecutively,
“for nonhomocide offense, does not comport with the evolving standards of decency that
mark the progress of a maturing society.” Because this is a criminal appeal in which a sentence
Cite as 2011 Ark. 111
of life imprisonment has been imposed, this court has jurisdiction pursuant to Arkansas
Supreme Court Rule 1-2(a)(2) (2010). We reverse and remand.
Turner first asserts that the circuit court erred in denying his motion to sever the
cocaine delivery charges. Turner moved to sever the charges before trial, on the day of trial
before the jury was selected and sworn, at the close of the State’s case, and again at the close
of his case. The circuit court denied the motion each time it was made.
Turner was accused of three counts of delivery of cocaine that occurred on September
19, 2007, September 26, 2007, and October 9, 2007. All of the other offenses Turner was
accused of committing resulted from a search carried out on April 19, 2009, as part of the
completion of a major FBI undercover operation in the area that had taken place over “many,
many months.”
At a pretrial hearing on August 6, 2009, the circuit court ordered that all pretrial
motions be filed by September 30, 2009.1 Subsequently, at a November 5, 2009 pretrial
hearing, defense counsel apologized to the circuit court for filing the motion to sever after the
1
We note that the motion cutoff date set by the circuit court conflicted with Arkansas
Rule of Criminal Procedure 22.2 with respect to the motion to sever. While circuit courts
hold the inherent power to invoke orders necessary to the orderly handling of matters before
them (Weaver v. State, 296 Ark. 152, 154, 752 S.W.2d 750, 752 (1988) (noting abolition of
Arkansas Rule of Civil procedure that permitted local rules)), they may not impose local
orders that conflict with this court’s rules. See In re Changes to the Arkansas Rules of Civil
Procedure, 294 Ark. 664, 742 S.W.2d 551 (1987). We are also troubled that under the
motion cutoff date set by the circuit court, it appears the State was permitted to amend the
criminal information but Turner was precluded from filing any motion in response to the
amended information.
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pretrial motion cutoff date, but argued that it did not matter because under Arkansas Rule of
Criminal Procedure 22.2, a motion to sever is timely if brought prior to trial. He further
argued that a severance motion was timely, “all the way up to the close of the State’s
evidence.” Finally, defense counsel argued that if there were consequences for failing to meet
the motion cutoff date, they were limited to sanctions against the attorney, and he suggested
that he be held in contempt. The circuit court declined and denied the motion to sever based
on the failure to comply with the motion cutoff date and because all the offenses were
committed as part of a single scheme or plan. Thus, at the November 5, 2009 pretrial hearing,
the circuit court denied the motion to sever based on timeliness and on the merits.
However, the circuit court heard the motion to sever anew on the first day of trial.
At that time, the State argued solely that the facts would prove a single scheme or plan.
Timeliness was not mentioned or argued and was thus abandoned by the State. The circuit
court denied the motion, “given the statement of what the State intends to prove,” but stated
it would wait to see whether “the State’s made the connection that it claims it will make.”
It was only at the close of the State’s case that the circuit court made its decision on the
motion to sever. Again, the only issue argued was single scheme or plan, and the motion was
denied on that basis. Timeliness was not a basis for the decision on the motion to sever and
is not an issue on appeal.
The decision of whether to grant a defendant’s motion for severance of two or more
offenses lies within the circuit court’s discretion, and this court will not reverse that decision
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absent an abuse of discretion. Dillard v. State, 333 Ark. 418, 423, 971 S.W.2d 764, 766 (1998)
(citing Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996)).
We now consider Turner’s argument that the circuit court erred in finding that the
charges filed against him constituted a single scheme or plan. The charges alleged against
Turner occurred in two separate time periods. One set of charges stemmed from events that
allegedly occurred in 2007, while the other set of charges was based on events that allegedly
occurred in 2009.
In discussing joinder of offenses and severance of offenses in Clay v. State, 318 Ark.
550, 886 S.W.2d 608 (1994), this court stated as follows:
Rule 21 of the Arkansas Rules of Criminal Procedure provides for joinder of offenses,
and Rule 22 provides for severance of offenses. Both rules closely track the American
Bar Association Standards relating to joinder and severance and must be construed
together. The Commentary to Article VI of the Arkansas Rules of Criminal Procedure
explains:
In concept and practice, joinder has traditionally enjoyed popularity among
prosecutors, courts, and scholars in as much as it produces savings of time,
money and effort.
As pointed out by Standards, Joinder and Severance, “[s]everance, on the other hand, is
typically sought on the ground that a unified disposition of several charges or several
defendants would put those proceeded against at an unfair disadvantage, due to
confusion of law and evidence by the trier of fact and the ‘smear’ effect such confusion
can produce.” Id. at 1.
Rule 21.1, which provides the prosecutor with broad latitude to effect joinder of
offenses, provides for joinder when the offenses “(a) are of the same or similar
character, even if not part of a single scheme or plan; or (b) are based on the same
conduct or on a series of acts connected together or constituting parts of a single
scheme or plan.” This joinder rule is much broader than the prior statutes, Ark. Stat.
Ann. §§ 43-1009 & 43-1020 (Repl.1964), and is designed to establish the outer
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boundaries of joinder of offenses. However, the liberal joinder rule is accompanied by
a limiting severance rule that recognizes the grave risk of prejudice from joint
disposition of unrelated charges and, accordingly, provides a defendant with an
absolute right to a severance of offenses joined solely on the ground that they are of
same or similar character. See Commentary to Article VI. The severance rule, Rule 22.2,
provides in pertinent part:
(a) Whenever two (2) or more offenses have been joined for trial solely on the
ground that they are of the same or similar character and they are not part of
a single scheme or plan, the defendant shall have a right to a severance of the
offenses.
(b) The court, on application of the . . . defendant other than under subsection
(a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the
defendant's guilt or innocence of each offense.
A.R.Cr.P. Rule 22.2(a)-(b)(i).
Clay, 318 Ark. at 552–53, 886 S.W.2d at 610.
Under Rule 22.1, offenses may be joined, but under Rule 22.2 a defendant has an
absolute right “to severance of offenses joined solely on the ground that they are of the same
or similar character.” Campbell v. State, 2009 Ark. 540, at 9, ___ S.W.3d ___, ___. Turner
argues that all of the charged offenses did not arise from a single scheme or plan. The State
argues to the contrary—that all the charges did arise from a single scheme or plan. At trial, the
State argued that the case against Turner arose from a scheme of drug possession and sales that
began in 2007. However, the facts arise from two distinct time periods—2007 and 2009.
With respect to 2007, the State told the jury that they would be presented with
evidence that undercover informant Rachel Cole made three controlled buys from Turner,
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first at a house on Magnolia Street, and then at a house on Green Street. With respect to
2009, the jury was told that Turner was arrested as part of a large undercover operation. The
State referred to the 2009 events as the “the main case we’re trying today,” which was a
reference to the charges arising from conduct alleged to have occurred in 2009. It is readily
apparent that the State itself distinguished the events occurring in 2007 and those occurring
in 2009. Although the offenses alleged were similar in character, they were alleged to have
occurred many months apart and to have involved different buyers.
In determining whether there was a single scheme or plan, several factors must be
considered in the present case. First, the “same body of evidence would be offered to prove
each offense” that is alleged to make up the single scheme or plan. White v. State, 370 Ark.
284, 291, 259 S.W.3d 410, 415 (2007). Second, to be a single scheme or plan, the offenses
must arise from the same conduct or be a “series of acts connected together.” Holsombach v.
State, 368 Ark. 415, 426, 246 S.W.3d 871, 879 (2007). Third, closeness in proximity and time
are considered. See Garner v. State, 355 Ark. 82, 94, 131 S.W.3d 734, 742 (2003). In the case
before us, separate evidence was offered to prove the charges in 2007 than was offered to
prove the charges in 2009. No evidence was offered to show that the offenses alleged to have
occurred in 2009 arose from the same conduct as the charges in 2007, or that they were a
series of acts connected together. Further, the charges were not a series of acts connected to
a single scheme or plan, as evidenced by the State’s decision to charge Turner separately for
each act. Finally, there is no closeness in time. The two separate sets of alleged offenses
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occurred almost one and one-half years apart.
Thus, it is clear that no single scheme or plan was shown. Therefore, potential
prejudice to Turner must be considered as we discussed in Clay:
Criminal Procedure Rule 22.2 gives the defendant an absolute right to a severance
when two or more offenses have been joined for trial solely on the ground that they
are of similar character, but they are not part of a single scheme. Here the two offenses,
sales of drugs, are unquestionably similar; so the controlling question is whether they
were committed as part of a “single scheme or plan.”
I think it plain that they were not so committed. The purpose of Rule 22.2 is to give
effect to the principle that the State cannot bolster its case against the accused by
proving that he has committed other similar offenses in the past. Alford v. State, 223
Ark. 330, 266 S.W.2d 804 (1954). There are exceptions to that principle, however,
as when two or more crimes are part of the same transaction, Harris v. State, 239 Ark.
771, 394 S.W.2d 135 (1965), cert. denied, 386 U.S. 964, 87 S.Ct. 1043, 18 L.Ed.2d 114
(1967), or when two or more offenses have been planned in advance, as part of a single
scheme. Ford v. State, 34 Ark. 649 (1879). The intent of Rule 22.2 must have been to
carry into effect the spirit of those exceptions, by permitting the charges to be tried
together when they are parts of a single scheme.
In drug cases the State cannot ordinarily prove that the accused sold drugs on one
occasion by proving that he sold them on other occasions. Rios v. State, 262 Ark. 407,
557 S.W.2d 198 (1977); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). Such
proof of other sales, as we pointed out in Sweatt, would merely show that the accused
had dealt in drugs before and hence was likely to do so again.
Clay, 318 Ark. at 554–55, 886 S.W.2d at 611 (quoting Teas v. State, 266 Ark. 572, 575, 587
S.W.2d 28, 30 (1979) (Smith J., concurring)). Joinder was not proper in this case because the
offenses were committed at different times, were not part of the same transactions or plans,
involved different witnesses, and because the primary effect of joinder was to bolster the
State’s case by proving that he committed other similar offenses in the past. The record is
devoid of any evidence that the 2009 offenses were planned in 2007 or were a part of the
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2007 offenses. Therefore, the circuit court abused its discretion when it denied the motion
to sever the delivery charges. See, e.g., Bunn v. State, 320 Ark. 516, 524, 898 S.W.2d 450,
454–55 (1995). This case is reversed and remanded for consideration consistent with this
opinion. Because this case is reversed and remanded, Turner’s remaining issues regarding the
constitutionality of the punishment imposed are moot. We do not address moot issues.
Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007).
Because the circuit court erred in denying the motion to sever, we reverse and remand.
Pursuant to Arkansas Supreme Court Rule 4-3(i), the record in this case has been reviewed
for all other objections, motions, and requests by either party, which were decided adversely
to Appellant, and no further prejudicial error was found.
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