Summary
affirming the removal of a juror who made an improper comment to two other jurors during trial about whether Shamlin was guilty, replacing that juror with the only alternate, and allowing the two other jurors to remain
Summary of this case from Gould v. StateOpinion
John Wesley Hall, Jr., Little Rock, for appellant.
Steve Clark, Atty. Gen., Little Rock, for appellee.
[23 Ark.App. 57-A] PER CURIAM.
This petition for rehearing is denied because it is merely repetitious of those arguments presented to and decided by the court in its original opinion. 23 Ark.App. 39, 743 S.W.2d 1. Petitions for rehearing are not intended to present arguments which are merely repetitious of those already considered by the court, and such petitions that do so are ordinarily denied without written comment. Ark.R.Sup.Ct. 20(g).
However, we feel compelled to comment on one argument in appellant's petition for an entirely different consideration, i.e., because it is based on matters which we have previously expressly ruled were not, and could not be made, a part of the record in this case. We are troubled by the persistence of counsel in failing to honor our ruling, in pursuing the matter despite that ruling, and particularly in his stated justification for doing so.
Appellant was charged, with Linda Nooner and John I. Purtle, with conspiring to commit theft by deception. They were granted separate trials. The appellant was tried first and convicted, Purtle was then tried and acquitted, and Nooner was subsequently tried and convicted. After Purtle's acquittal, the appellant filed a petition in this court seeking a writ of error coram nobis, basing his petition in part on Purtle's acquittal. Attached to that petition was a certified copy of the verdict and [23 Ark.App. 57-B] docket sheet in that case. In Shamlin v. State, 19 Ark.App. 165, 718 S.W.2d 462 (1986), we denied the petition and rejected the argument that Purtle's acquittal mandated reversal. We correctly held that under Ark.Stat.Ann. § 41-713(2)(c) (Repl.1977) it is not a defense to a prosecution for conspiracy to commit an offense that the person with whom the defendant is alleged to have conspired has not been charged, prosecuted, or convicted, or has been acquitted of an offense based upon the conduct alleged. The supreme court subsequently cited with approval that statute, the rationale for it, and our application of it to the facts in Shamlin, holding that the statute applies except in those cases where all alleged coconspirators are tried jointly and all but one are acquitted. Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987).
At about the same time the appellant filed the petition for a writ of error coram nobis, he filed a motion to supplement the record in this appeal by attaching a certified copy of the docket sheet and verdict of acquittal in the Purtle case. We correctly denied that motion because, having not been presented to the trial court, it could not be part of this record and was immaterial to the issues presented here in any event.
Notwithstanding our ruling, counsel argued from that verdict in his brief and reply brief. In a parenthetical attempt to justify his position, he argues that, as a copy of the verdict was attached to both the petition for writ of error coram nobis and his motion to make that document a part of the record, the attachment was part of the record despite our ruling that it was not and could not be. This persistence was discussed in our decision conference, along with the possibility of admonishing counsel that this action was looked on with disfavor. However, as the argument was wholly without merit, the court determined to address the issue without admonition.
As this is the fourth time that this court has been called on to address this single issue, we are constrained to now express our displeasure.