Summary
holding that failure to object to circuit court's omission under § 5-4-310(b) precluded our consideration
Summary of this case from Seamster v. StateOpinion
No. CR 89-130
Opinion delivered September 25, 1989
1. CRIMINAL PROCEDURE — REVOCATION OF SUSPENSION — PRELIMINARY HEARING. — Ark. Code Ann. 5-4-310(a)(1) (1987) provides for a preliminary hearing to determine if there is reasonable cause to believe the defendant has violated a condition of suspension, but a preliminary hearing is not required if the defendant is arrested for committing another criminal offense. 2. APPEAL ERROR — FAILURE TO OBJECT BELOW. — Failure to object below precludes the appellate court's consideration of the issue on appeal. 3. WITNESSES — VICTIM OF CRIME HAS A RIGHT TO BE IN COURTROOM NOTWITHSTANDING A.R.E. RULE 615. — The victim of a crime has a right to be in the courtroom notwithstanding A.R.E. Rule 615. 4. TRIAL — COURT CORRECT TO DENY REQUEST TO TAKE POLYGRAPH EXAM. — Since a prerequisite for using the results of a polygraph exam as evidence is that the state stipulate that the results may be admitted, and where the state did not do so, the judge correctly denied appellant's request for a chance to take a polygraph exam. 5. CRIMINAL LAW — REVOCATION OF SUSPENSION — STATE'S BURDEN OF PROOF. — The state must prove by a preponderance of the evidence that the defendant inexcusably failed to comply with a condition of suspension. 6. APPEAL ERROR — REVIEW OF REVOCATION OF SUSPENSION. — Unless the trial judge's decision to revoke suspension is clearly against the preponderance of the evidence, the appellate court will not set it aside. 7. CRIMINAL LAW — REVOCATION OF SUSPENSION — SUFFICIENT EVIDENCE. — Where the victim reported an intruder at 4:30 a.m., the police saw appellant walking 100 yards from the victim's house, appellant tried to throw away two wallets when he saw the police approach, the wallets contained the amount of money that was reported missing, the wallets were identified as belonging to the victim, and officers found a prescription bottle with the victim's name on it in appellant's pocket, there was sufficient evidence to support revocation of appellant's suspended sentence.
Appeal from Phillips Circuit Court; Harvey L. Yates, Judge; affirmed.
Schieffler Law Firm, for appellant.
Steve Clark, Att'y Gen., by: Ann Purvis, Asst. Att'y Gen., for appellee.
Brandon was free on a suspended imposition of a sentence for burglary when he was charged with burglary and theft involving the home and property of Mr. and Mrs. A. B. Heard of West Helena. The state not only filed charges on those offenses, but petitioned the court to revoke the suspended sentence. After a hearing, the judge found Brandon had violated a condition of his suspension and sentenced him to twenty years imprisonment. We affirm.
Five arguments are made for reversal, and all are meritless. First, Brandon asks for reversal because the court failed to conduct a preliminary revocation hearing (a final hearing was held within sixty days after the petition to revoke was filed). Ark. Code Ann. 5-4-310(a)(1) (1987) provides for a preliminary hearing to determine if there is reasonable cause to believe the defendant has violated a condition of suspension. But a preliminary hearing is not required if the defendant is arrested for committing another criminal offense. Here, Brandon was not arrested for violating a condition of his suspension but for burglarizing the Heards' home. The federal courts have made this distinction, which we consider a sensible one. See United States v. Saykally, 777 F.2d 1286 (7th Cir. 1985); United States v. Diaz-Burgos, 601 F.2d 983 (9th Cir. 1979); Thomas v. United States, 391 F. Supp. 202 (W.D. Pa. 1975).
Brandon's second argument is that the trial court failed to furnish a written statement of the evidence relied on and the reasons for the revocation. See Ark. Code Ann. 5-4-310(b)(5) (1987). He made no objection to the court's omission which precludes our consideration of the issue. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981).
Error is also claimed because Mr. Heard remained in the courtroom during his wife's testimony even though the appellant had requested the witness sequestration rule. See A.R.E. Rule 615. Mr. Heard was a victim of the crime and had the right to be present notwithstanding Rule 615. See Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986); A.R.E. Rule 616.
[4-6] Just before the hearing, Brandon asked for a chance to take a polygraph exam. The judge was correct in denying the request. The state did not stipulate that the results could be admitted, a prerequisite for using the results as evidence. Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989); see also Jordan v. State, 159 Ga. App. 716, 285 S.E.2d 71 (1981). Finally, the sufficiency of the evidence is questioned. The state must prove by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of suspension. Ark. Code Ann. 5-4-309(d) (1987). Unless the trial judge's decision is clearly against the preponderance of the evidence, we will not set it aside. Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981).
The evidence is sufficient to support the revocation. Mrs. Heard called the police at 4:30 a.m. to report an intruder. She heard him but did not see him. An officer saw Brandon walking 100 yards from the Heard house. When approached, Brandon turned away, then took two billfolds from his pocket and threw them to the ground. The billfolds contained over $700, the amount reported missing by Mrs. Heard. She identified the wallets as hers. In addition, officers found a prescription bottle with Mrs. Heard's name on it in Brandon's pocket.
Brandon was taken to the police station and questioned. He told officers he "did it", but they would "have to prove it." There is no doubt they did prove it.
Affirmed.