Malcum v. State , 2013 Ark. App. LEXIS 695 ( 2013 )

Cite as 2013 Ark. App. 681
ARKANSAS COURT OF APPEALS
DIVISIONS III & IV
No. CR-12-564
Opinion Delivered November 13, 2013
CHAD EDWARD MALCUM
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, FIFTH
V. DIVISION
[NO. 60CR-11-2260]
STATE OF ARKANSAS
APPELLEE HONORABLE WENDELL GRIFFEN,
JUDGE
PETITION FOR REHEARING
DENIED; SUBSTITUTED OPINION
ISSUED
BRANDON J. HARRISON, Judge
In Malcum v. State, 2013 Ark. App. 499, we affirmed the Pulaski County Circuit
Court’s sentencing order entered against Malcum following a jury trial. Malcum
challenged our decision through a petition for rehearing. We deny Malcum’s petition for
rehearing but issue this substituted opinion.
A jury found that Chad Edward Malcum had committed an aggravated robbery
against Eugene Cherry, in April 2011, while Cherry was at his own home. Malcum
attacked Cherry after he refused to give Malcum a ride to Conway; Malcum then stole
Cherry’s car. An unidentified person called 911. A neighbor, Donnell Jackson,
reportedly saw Cherry’s car speed away from his home and became suspicious that the
elderly man would drive in such haste. So Jackson, according to a police report, went to
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Cherry’s house, found him in distress, and carried him outside so he could receive
emergency treatment.
The circuit court sentenced Malcum to serve 300 months’ imprisonment as a
habitual offender. Malcum appeals his conviction, arguing that the circuit court erred by
making him go to trial before Donnell Jackson could be located and compelled to testify
about the robbery. Malcum also argues that a second reversible error occurred when the
court strayed from the model jury instructions.
We hold that Malcum was not denied justice when he was denied a continuance.
And though we agree with Malcum that the court technically erred when instructing the
jury at the trial’s beginning, the error was a harmless one because the jury was properly
instructed before it deliberated the case and returned its guilty verdict.
I. The Continuance Issue
One day before the March 2012 jury trial started, the circuit court held a hearing
on Malcum’s motion to continue the trial given Jackson’s unavailability as a witness. The
record indicates that no party had successfully contacted Jackson since the robbery. The
court ruled that it was not for a lack of trying that neither the State nor Malcum could
find Jackson; it then ordered the sheriff’s office to find Jackson and jail him overnight.
Before adjourning for the day, the court then told defense counsel:
But I should tell you, sir, that if he is found after tomorrow, it is my
present intention to keep him confined in the county jail until such time as
we get this case tried. I intend to reschedule this case tomorrow for another
trial date or date certain and I want everybody to know that we will proceed
to trial on that date with him or without him. So everybody needs to have
a contingency, trial with Donnell Jackson, trial without Donnell Jackson.
Put that in your war plan.
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The sheriff’s office never found Jackson. So Malcum renewed his continuance
request the following morning, which was the first day of trial, before jury selection
started. Malcum’s attorney also filed an affidavit on 15 March 2012, pursuant to Ark.
Code Ann. § 16-63-402 (Supp. 2011), which stated, among other things, that a woman
claiming to be Jackson’s wife had told him that Jackson would be out of town for at least
thirty days. In addition to the affidavit, three witnesses told the court that Jackson had a
surrender date to authorities on the following Monday.
During the day-of-trial continuance hearing, Malcum argued that Jackson was the
unidentified 911 caller and that his testimony was needed to impeach Cherry’s anticipated
trial testimony. Without Jackson’s presence at trial, Malcum argued, the jury would not
get a “great deal” of information. For its part, the State said that it would not call Jackson
as a witness—and it stipulated that Jackson did not see Malcum hit Cherry and that “there
are a lot of if’s involved” on whether Jackson would actually appear.
The court denied Malcum’s second motion to continue the case. In doing so, it
ruled that the defense had made a good-faith, diligent effort to locate Jackson and that his
absence was not Malcum’s fault. The court also noted that the State did not oppose the
continuance, and it credited the affidavit that Thomas Kendrick (one of Malcum’s
lawyers) had filed. A key point to the court’s denial was that no one disputed that Jackson
never saw who beat and robbed Cherry. The court reasoned that Jackson’s absence would
not prevent Malcum from fully defending the aggravated robbery charge because the
probable effect of Jackson’s testimony at trial, even if he did testify, was that he did not
personally see Malcum beat and rob Cherry. Finally, though the court recognized the
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possibility that the sheriff or federal authorities might find and detain Jackson before or
during the trial, it was “not at all certain whether or not [Jackson] will show up or if he
does show up, whether he will testify.”
A circuit court’s decision to deny a continuance due to a witness’s absence is a
discretionary one. A number of considerations, however, guide and constrain its
discretion on this issue. Ark. Code Ann. § 16-63-402 (Supp. 2011); Ark. R. Crim. P.
27.3 (2012); Brown v. State, 374 Ark. 341, 347, 288 S.W.3d 226, 232 (2008) (citing
caselaw factors for circuit courts to consider). Our statutes, rules, and caselaw work
together to protect an accused’s state and federal constitutional rights “to have compulsory
process for obtaining witnesses in his favor” and to give him due process of law. U.S.
Const. amends. VI, XIV; Ark. Const. art. 2 § 10 (1873). Our supreme court has held that
denying an accused’s motion for a continuance—when an unavailable witness is also a
fugitive from justice—is not an abuse of discretion and does not necessarily violate an
accused’s rights. Parker v. State, 179 Ark. 1064, 20 S.W.2d 113 (1929) (denying a
continuance was not reversible error when the attendance of a witness, who had an
outstanding warrant, could not be secured); Harris v. State, 169 Ark. 627, 629, 276 S.W.
361, 363 (1925) (denying a continuance was not reversible error when the desired witness
had left town because of another charge against him and was therefore not likely to
return). The bottom line is we will not reverse a court’s denial of a continuance request
unless it equates to a denial of justice. Brown, 374 Ark. at 347, 288 S.W.3d at 231.
Here, Malcum argues again that the court’s decision to deny him a continuance
was an abuse of discretion because he had the right to compel Jackson’s attendance, that
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Jackson was a material defense witness, and the court told him the day before trial that it
intended to reschedule the case. The State responds that Jackson’s testimony was
immaterial and that, in any event, there was no good reason to believe that postponing the
trial would have resulted in Jackson’s presence at trial.
We hold that the circuit court sufficiently protected Malcum’s legal interests under
the law and that denying a continuance in this case was not an abuse of discretion
tantamount to a denial of justice. The court held two hearings on the continuance issue,
received much evidence on point, and engaged the parties by asking questions. The court
also forthrightly told the parties to be prepared for trial “with or without Donnell
Jackson.” That the court changed its mind about its intent to reschedule the case on the
day of trial does not necessarily mean that Malcum was denied justice. The circuit court is
not required to absolutely ensure Jackson’s presence at trial, just that “compulsory process”
be available to Malcum, and it was. Specifically, the court had sent the sheriff to find
Jackson and otherwise used its power to compel Jackson’s appearance at Malcum’s trial.
Malcum did not have an absolute right to delay the trial until Jackson could be rounded
up, which might well have been an unreasonably long amount of time.
II. The Harmless Jury-Instruction Error
Malcum also argues on appeal that the circuit court erroneously instructed the
jury—after the jury was selected but before the jurors were excused at the end of the first
day of trial. Here is the instruction Malcum challenges:
As jurors, you’re the sole and exclusive deciders on who—on
credibility of the witnesses who testify in the case, which means simply that
it’s you who decide whether to believe or disbelieve a particular witness.
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In making this determination, you will apply the test of truthfulness
that you apply in your daily lives. You’re not required to believe the
testimony of any witness simply because it’s given under oath. You may
believe or disbelieve all or any part of the testimony of any witness.
You should not decide any issue of fact merely on the basis of the
number of witness who testify on each side of that issue. The testimony of
one witness believed by you is sufficient to prove any fact.
Before giving that contested instruction, the court read other instructions to the
jury, including ones on reporting for duty the next morning, leaving their minds open
until they heard all the evidence, not talking with anyone about the case, considering
information from any source outside the courtroom, observing courtroom procedure, and
taking notes during the trial. Malcum promptly objected to the instruction. As a
substantive matter, he argued that the instruction had no legal basis. As a timing matter,
he said that the jury instructions should be given after the jury has heard the parties’ cases,
not before they were presented.
At a bench conference the next morning, before opening statements, Malcum
renewed his objection to the instruction we have reproduced above; he argued that the
instruction would allow the jury to find him guilty by applying a standard of proof less
than beyond a reasonable doubt. He then asked the court to admonish the jury to
disregard any instructions from the day before that were “not contained in the other
Arkansas statutory law or in the jury instructions AMCI second 100A and 100B.”
Malcum also moved for a mistrial based on the court’s alleged error. The court denied
that motion and overruled other objections.
We review all of Malcum’s jury-instruction issues under an abuse-of-discretion
standard. See Clark v. State, 374 Ark. 292, 305, 287 S.W.3d 567, 576 (2008). Malcum is
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not required to show that prejudice arose from the court’s mistaken jury instruction. Hall
v. State, 326 Ark. 319, 322, 933 S.W.2d 363, 366 (1996). In this type of case, the State
must show that the erroneous instruction was, on the whole, a harmless error. Id. An
erroneous instruction can be harmless if it was obviously cured by other instructions. Id.
Our supreme court has recently reiterated that a circuit court should not use a non-
model instruction unless the applicable model instruction inaccurately states the law.
Fincham v. State, 2013 Ark. 204. Here, the court did not use the model instruction on
credibility. It told counsel that “[n]othing I told this jury yesterday varies from any
statement of Arkansas law. I have not heard [Defense Counsel] [cite] a single Arkansas
court authority.” The court’s memory of the event was mistaken. Its rendition added a
flourish here and there and clearly deviated from the model criminal jury instructions.
The important legal question, however, is whether the court’s indisputable
deviation from the model instruction on credibility was so grave that a mistrial should
have been ordered. Phavixay v. State, 2009 Ark. 452, at 10, 352 S.W.3d 311, 318 (2009).
Malcum thinks so, mainly because he believes the court’s deviation from the model
instructions diluted the potent burden of proof the State had in this criminal case. We
disagree. The stray remarks related to the credibility of the witnesses or the jurors’
personal observations about them, not the State’s burden of proof. Contextually, the
court had just finished talking about juror notetaking and then moved to telling the jury
about their role in the criminal-trial process. More specifically, the court’s stray remarks
came when it provided its own rendition of AMI Crim. 2d 103 and 104—two
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instructions that tell jurors that they may use their personal observations and experiences as
they assess witnesses’ credibility.
We hold that the State has shown that the circuit court’s recitation of non-model
instructions on credibility and on personal observations and experiences was harmless error
in this case. Hall, supra. Right before the case was submitted to the jury for decision, the
circuit court instructed the jury using the model instructions on the credibility of the
witnesses, the weight of the evidence, and the burden of proof, which purged any
arguable prejudice stemming from the trial’s false start. These model instructions were the
same ones that Malcum had requested when he first disputed the court’s free-form version
at the trial’s start. In Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994), our supreme
court acknowledged that while the circuit court may have erred in instructing the jury
prematurely, the error under the facts presented was harmless. We likewise acknowledge
that a concerning glitch was injected into this case’s beginning, but it neither involved the
State’s burden of proof nor the elements of the crime that Malcum was charged with
committing. And most importantly, the error was corrected before the jury began
deliberating Malcum’s legal fate, making the giving of the earlier non-AMI instruction
harmless error given the facts in this case Id.
III. Conclusion
We affirm Malcum’s conviction. In doing so, we take this opportunity to remind
the circuit courts to heed our supreme court’s admonition: use the applicable model
instructions as a matter of course unless they misstate the law on the issues under
instruction.
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Petition for rehearing denied; substituted opinion issued.
GLADWIN, C.J., and WALMSLEY, WHITEAKER, VAUGHT, and HIXSON, JJ., agree.
Don Thompson, Deputy Public Defender, by: Thomas Kendrick, for appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for
appellee.
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