Stover v. State

2014 Ark. App. 393, 437 S.W.3d 695, 2014 Ark. App. LEXIS 530
CourtCourt of Appeals of Arkansas
DecidedJune 18, 2014
DocketNo. CR-13-682
StatusPublished
Cited by6 cases

This text of 2014 Ark. App. 393 (Stover v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stover v. State, 2014 Ark. App. 393, 437 S.W.3d 695, 2014 Ark. App. LEXIS 530 (Ark. Ct. App. 2014).

Opinion

RITA W. GRUBER, Judge.

|! Calvin Jerome Stover was convicted by a jury of possession of the controlled substance methamphetamine, felon in possession of a firearm, and simultaneous possession of drugs and firearms — for which he was sentenced to prison terms totaling forty years. He raises three points on appeal. First, he contends that the circuit court abused its discretion by failing to grant his motion for mistrial. Second, he challenges the sufficiency of the evidence to support the drug convictions. Third, he contends that the circuit court improperly allowed the introduction of certain evidence during the sentencing phase of trial. We affirm.

Sufficiency of the Evidence

The prohibition against double jeopardy requires that we review the sufficiency of evidence before we examine trial error. Powell v. State, 2013 Ark. App. 322, 427 S.W.3d 782. Stover argues on appeal that the evidence was insufficient to show that he possessed a usable quantity of methamphetamine, but he argued in his motions for directed verdict only [ ¡>that there was insufficient proof of his intent to possess methamphetamine. Arguments not raised at trial will not be addressed for the first time on appeal; parties are bound on appeal by the scope and nature of the arguments presented to the trial court. Abshure v. State, 79 Ark.App. 317, 87 S.W.3d 822 (2002). We will not address Stover’s challenge to the sufficiency of the evidence because he has changed his argument from the one he made at trial.

Motion for Mistrial

Stover was brought into the courtroom in street clothes and appeared before potential jurors; shortly afterward, the prosecutor observed that there was a jail ID bracelet on Stover’s left wrist. The prosecutor stated in a bench conference, “[W]e may want to get that off.... I mean it kind of defeats the purpose.... ” Stover immediately moved for a mistrial “based on the fact that some potential jurors have already seen him in the company of a deputy, clearly in custody, and additionally, the fact that he is still wearing his jail ID bracelet.” The judge stated, “I think that historically — the defendants wear long-sleeve shirts.... For the record, it’s a clear bracelet, but part of it is not clear. Half of it is clear and the other half indicates his identification.” The court excused the two potential jurors who indicated that they had seen Stover with the deputy sheriff before court, and it called a five-minute recess so that the bracelet could be taken off. Court reconvened for voir dire after the bracelet was removed.

Stover argues on appeal that his right to a fair trial was prejudiced because he was wearing a distinct and identifiable prison bracelet when he was brought before the entire- jury panel. He draws an analogy to Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002), which held |sthat a defendant’s right to a fair trial is placed in serious jeopardy if the defendant is tried in prison garb. He distinguishes his case from Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993), which lacked sufficient evidence' that jurors serving at trial had actually seen appellant wearing his bright orange jail uniform, handcuffs, and security belt at a pretrial hearing.

In Box, supra, appellant had arranged for his parents to bring his civilian clothing to the courthouse but they were not there when he arrived. The circuit court denied his motion to delay trial until he could be dressed in civilian clothes and found that his failure to make successful arrangements was a waiver of his right to be tried in civilian clothing. He was brought into the courtroom and appeared in front of the venire panel still wearing the white uniform of an Arkansas Department of Correction inmate. His parents arrived with civilian clothing shortly afterward, and he was allowed to change before his trial ended. The jury found him guilty of aggravated robbery and first-degree battery.

Box argued on appeal that the trial court erred in forcing him to appear before the jury while dressed in prison garb. Our supreme court reversed and remanded for a new trial, finding error in the circuit court’s ruling that Box waived his right to appear in civilian clothing. It explained:

In Miller [v. State, 249 Ark. 3, 457 S.W.2d 848 (1970) ], we adopted the rule then held by the majority of States that “absent a waiver accused should not be forced to trial in prison garb.” Miller, 249 Ark. at 5, 457 S.W.2d 848.... Six years later, the United States Supreme Court noted this court’s opinion in Miller with approval and adopted a somewhat similar rule in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The holding of the U.S. Supreme Court in Estelle was that under the Fourteenth Amendment, a defendant’s constitutional rights were violated when he was compelled to wear identifiable prison clothing.... The rule in Arkansas remains that the accused may not be forced to trial in prison garb absent a waiver.

┴4Box, 348 Ark. at 123-24, 71 S.W.3d at 556-57 (emphasis added).

The Box court rejected the State’s argument that appellant failed to preserve his issue on appeal because he did not make a motion for a mistrial:

[N]o jury had been chosen or charged. There was no reason to bring a motion for mistrial because there was nothing as yet that could be mistried. The relief sought is obvious. Box moved for a continuance to allow time to obtain civilian clothing. Without question the issue is preserved for review. ■
We also note that the trial court overruled Box’s objection to being tried in prison garb in denying the motion for a continuance.... - Even if the jury had been sworn and a motion for mistrial could have been brought, to require Box to move for a mistrial after the trial court had ruled on his objection and motion for a continuance would be to require a vain and useless act. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989). The law does not require vain and useless acts....
It is clear the prejudice at issue here attaches from the potential jurors seeing Box.... The jurors saw Box when he was brought up before the pretrial proceedings began. The proper method to raise the issue was to bring the matter to the court’s attention, as was done, and to seek a continuance. The trial had not commenced. The jury had not been sworn.... The solution was simply to bring in a fresh jury panel once Box was in civilian clothing.

Id. at 125-26, 71 S.W.3d at 558 (emphasis added) (some internal citations omitted).

Stover argues that the appropriate remedy to avoid prejudice to him was to dismiss the jury pool and bring in a fresh one — as in Box — and that the circuit erred by denying his motion for mistrial.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 Ark. App. 393, 437 S.W.3d 695, 2014 Ark. App. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stover-v-state-arkctapp-2014.