Hughes v. State , 264 Ark. 723 ( 1978 )

Conley Byrd, Justice.

On April 18, 1977, appellant Harvey Hughes pled guilty to the third offense of sale of intoxicating beverages in a prohibited area and was sentenced to the Department of Corrections for 5 years. The entire sentence was suspended on three conditions: (1) Future good behavior; (2) Compliance with the liquor laws; and (3) Payment of costs. On September 9, 1977, the prosecuting attorney filed a Petition to Revoke Suspended Sentence alleging that appellant had violated the terms of the suspended sentence by possession for sale and selling alcoholic beverages in a dry county on September 7, 1977. This matter was not heard within the 60 days required by statutes and upon a timely motion filed by appellant was dismissed. On February 22, 1978, the prosecuting attorney filed a second Petition to Revoke the Suspended Sentence alleging that appellant had on February 21, violated the conditions of the suspended sentence by possession for sale and selling alcoholic beverages in Sevier County, a dry county. Following a hearing of that charge the trial court revoked 2 years of the 5 year suspended sentence because of the sale of one fifth of “Evan Williams straight Bourbon whiskey to Marion Bell on February 21, 1978 for $10.00.” For reversal of the revocation of the suspended sentence appellant raises the following points:

I. Appellant was denied due process of law by the Court’s off-the-record and out-of-the-appellant’s-presence interview of the appellant’s doctor leading to his being removed from the hospital to attend and participate in the revocation hearing.

II. Appellant was denied due process of law by the trial court’s refusal to require the state to comply with Rule 17.1 of the Arkansas Rules of Criminal Procedure.

III. Appellant was denied due process of law by the State’s use of an agent to conduct an unreasonable search of his premises, the same being without probable cause and warrantless.

IV. Appellant was denied the equal protection of the law by the use of evidence of conduct, the sale of a small quantity of intoxicating beverages, to revoke a suspended sentence, thereby denying him the right to trial by a jury, the presumption of innocence, and a right to require the State to prove its case beyond a reasonable doubt.

V. Appellant was denied due process of law in that the order which originally suspended his sentence on the basic charge, the order being entered April 12, 1977, was not reduced to writing nor were the restrictions and terms of his suspended sentence clearly enumerated to him. The oral version of the Court’s conditions for the suspended sentence are nebulous and therefore void for vagueness and not binding upon the defendant.

VI. The revocation of the suspended sentence, in light of appellant’s undenied physical condition, and the placing of him into the State Penitentiary for a period of two years amounts to a cruel and unusual punishment.”

POINT I. The record shows that prior to trial appellant filed a motion for continuance on the basis that he was incapacitated and unable to appear in court on Friday April 14, 1978, because of medical reasons due to his hospitalization. A medical statement by his local physician Dr. O. D. Brown was attached. The record also shows that when court commenced appellant was present in court and the trial judge explained to appellant that he had talked to the doctor that morning and the doctor had indicated it would be all right for appellant to come into the courthouse for a short hearing concerning the revocation of the suspended sentence. In doing so the trial court pointed out that the reason was because the prior petition for revocation had been dismissed for not being brought within 60 days and that the purpose of this hearing was to grant appellant a speedy hearing. Following those statements of the trial judge the appellant entered no objections nor made any request for the appearance of the doctor. Consequently, we do not reach this contention for we will not examine the matter raised for the first time on appeal. Furthermore, since the doctor wrote the letter at the request of appellant, appellant could not claim the benefit of any privileged communication even if the statements to the doctor involved were privileged, which is doubtful.

POINT II. Within the appropriate time appellant filed a motion pursuant to Rule 17.1 of the Rules of Criminal Procedure requesting that the prosecution furnish the names and addresses of all witnesses who would testify and support the charge and that appellant be advised of the particular acts and statements relied upon with such certainty as to apprise him fully of the specific charges against him in order to enable him to prepare for trial. The State did not formally respond to appellant’s written motion, however, the record does show that there were some informal communications between counsel for the defense and the prosecuting attorney. Without ruling on the sufficiency of the State’s performance of its obligations under Rule 17.2, the trial court directed the prosecuting attorney to give counsel for the defense the names of the witnesses to be called, that is the sheriff and one Marion Bell. Counsel for defense was already aware of the testimony of the sheriff and the trial court gave him a continuance during which time he could interview Marion Bell. Following the recess, during which time appellant interviewed the witness Marion Bell, the appellant made no contention before the trial court that he was entitled to an additional continuance for purposes of preparing for trial. Even if it could be said that the prosecuting attorney failed to supply the information in accordance with Rule 17.2, we would still have to hold that on the record before us any failure on the part of the prosecuting attorney was cured by the recess during which time the appellant was permitted to interview the witness. Consequently, any failure on the part of the prosecuting attorney would amount to harmless error.

Under this point appellant also questions the action of the trial court in taking judicial notice that the filth of Evan Williams Straight Bourbon Whiskey was intoxicating liquor. The record shows that appellant sold the fifth to Marion Bell as whiskey and that the fifth contained a properly affixed and unbroken federal excise tax seal. Rule 201 (b) of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Supp. 1977) provides:

“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

Under the circumstances it would appear that the fifth of Evan Williams Straight Bourbon Whiskey containing the unbroken federally affixed federal tax seal would fall within subsection 2 of Rule 201 (b), supra, and since appellant did not request an opportunity to test the contents, we cannot say that the trial court committed error in taking judicial notice that the fifth contained intoxicating liquor.

POINT III. Appellant here contends that surreptitious use of private citizen Marion Bell to purchase a fifth of whiskey from appellant amounted to an unlawful search and seizure on the part of the sheriff. We find no merit to this contention. See Lewis v. United States, 385 US. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966).

POINT IV. We find no merit to appellant’s contention that he was denied a right of a jury trial. Arkansas has not adopted the American Bar Association’s “Standards Relating to Probation” § 5.3. See Ellerson v. State, 261 Ark. 525, 549 S.W. 2d 495 (1977).

POINT V. For the first time appellant contends that the order which originally suspended his sentence on the basic charge was not reduced to writing nor were the restrictions and terms of this suspended sentence clearly enumerated to him. We do not reach this issue simply because it was raised for the first time on appeal.

POINT VI. We find no merit to appellant’s contention that the revocation of the suspended sentence in light of appellant’s undenied physical condition amounts to a cruel and unusual punishment. The punishment here provided is not so disproportionate to the offense committed as to shock the moral sense and to violate the judgment of reasonable men concerning what is right and proper under the circumstances. See Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1976). Appellant’s contention that because of his leukemia and arteriosclerotic heart condition he was in effect sentenced to die in the penitentiary is an argument that should be addressed to those having to do with matters of clemency.

Affirmed.

Fogleman, J., concurs. Hickman and Howard, JJ., dissent.