Brown v. State

Chrisshannon BROWN v. STATE of Arkansas

CR 97-376                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 16, 1997


1.   Prohibition, writ of -- properly raised where trial court
     proposes to act in excess of jurisdiction -- when writ
     granted. -- Prohibition is an extraordinary writ and is never
     raised to prohibit a trial court from erroneously exercising
     its jurisdiction, but only where it is proposing to act in
     excess of its jurisdiction; Ark. R. Crim. P. 28 is
     jurisdictional because it requires a defendant to be brought
     to trial within twelve months or be absolutely discharged; the
     supreme court will not grant a writ of prohibition unless it
     is clearly warranted, and will only issue such a writ in a
     case where there are no disputed facts.

2.   Prohibition, writ of -- disputed facts remained in issue --
     supreme court declined to issue writ. -- Where fact questions
     remained as to whether petitioner was available for trial and
     whether the State exercised due diligence in this speedy-trial
     matter, which questions had to be decided by the trial court,
     the supreme court dismissed the petition with prejudice;
     because disputed facts were integral to deciding the case, the
     supreme court declined to issue any writ of prohibition.


     Petition for Writ of Prohibition; dismissed.
     William R. Simpson, Jr., Public Defender, by:  Kent C. Krause,
Deputy Public Defender, for petitioner.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for respondent.

     Tom Glaze, Justice.
     Chrisshannon Brown petitions this court for a writ of
prohibition against the Pulaski County Circuit Court, First
Division, asserting that the court mistakenly denied her motion to
dismiss for speedy-trial reasons.  The circuit court denied Brown's
motion, finding the trial delay was attributable to Brown's
unavailability, which is excludable under Rule 28.3(e) of the
Arkansas Rules of Criminal Procedure.
     The facts relevant to Brown's argument begin with her arrest
on November 30, 1995, at a home located at 2606 South Arch Street,
Little Rock.  Brown's arrest resulted in her being charged with
several drug crimes.  When taken to the police department, Officer
Subhash Wagh asked Brown where she lived, and Brown gave the South
Arch Street address.  In confirmation, Wagh read aloud the same
address when he mirandized her.  However, when signing the Miranda
form, she listed a different address -- 3006 Bermuda, Little Rock. 
Later, on November 30, Brown was released on $5,000.00 bond, and
the bond papers reflected her address to be 2606 South Arch Street.
     On May 29, 1996, the State filed its felony information
against Brown, and set out Brown's address as 2606 South Arch
Street.  On June 29, 1996, the court mailed a notice to Brown at
the South Arch Street address, directing her to appear for plea and
arraignment in circuit court on July 17, 1996.  The letter was not
returned to the court.  When Brown failed to appear, as notified,
on July 17, the court issued a warrant for her arrest.  However,
sometime after July 17, someone contacted the court's case
coordinator, and as a result, the case coordinator placed Brown's
plea and arraignment hearing back on the docket for July 31, 1996. 
No other notice was given to Brown, nevertheless she appeared on
July 31.  At that hearing, the court scheduled a jury trial for
September 19, 1996.
     When the September 19 trial date arrived, Brown's counsel
informed the court that a conflict of interest had arisen between
Brown and her co-defendant.  Upon agreeing to sever Brown's and her
co-defendant's cases, the court set separate dates for each.  At
that time, the court noted without objection that, for speedy-trial
purposes, Brown's actions had tolled the thirteen-day period from
July 17 to July 30.  The court then set a new trial date for
December 5, 1996.   
     Prior to the December 5 trial, Brown moved for dismissal on
speedy-trial grounds, stating that the speedy-trial rule, Ark. R.
Crim. P. 28, required that she be brought to trial within twelve
months from the time of her arrest or be absolutely discharged. 
Because her December 5 trial date was six days past the twelve-
month speedy-trial period, she asked that her case be dismissed. 
The court, however, excluded the thirteen-day period in July as it
had previously ruled, and it denied Brown's motion.  Brown then
filed her petition for writ of prohibition in this court, and makes
the same argument she made in circuit court, claiming the thirteen-
day period should not have been excluded.
     Prohibition is an extraordinary writ and is never raised to
prohibit a trial court from erroneously exercising its
jurisdiction, only where it is proposing to act in excess of its
jurisdiction.  Rhodes v. Capehart, 313 Ark. 16, 852 S.W.2d 118
(1993).  The court has held Rule 28 is jurisdictional inasmuch as
it requires a defendant to be brought to trial within twelve months
or be absolutely discharged.  Id.  Even so, the court will not
grant a writ of prohibition unless it is clearly warranted, and
will only issue such a writ in a case where there are no disputed
facts.  Ellison v. Langston, 290 Ark. 238, 718 S.W.2d 446 (1986). 
Here, whether a writ should issue in this case rests upon a fact
determination.  Consequently, we dismiss Brown's petition with
prejudice.  We explain our decision more fully below.
     Because Brown showed that her trial was scheduled to begin six
days after the speedy-trial period had expired, the State conceded
that it had the burden of showing any delay must have been the
result of Brown's conduct.  See State v. McCann, 313 Ark. 286, 853 S.W.2d 886 (1993).  In addition, the State had the duty to show it
had made a diligent, good-faith effort to bring the accused, Brown,
to trial.  Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985). 
     Undertaking its legal burdens, the State showed at the hearing
on Brown's motion before the circuit court that, on June 29, 1996,
the trial court's case coordinator had sent its notice addressed to
Brown at 2606 South Arch Street, notifying her to appear at a plea
and arraignment hearing on July 17, 1996.  As the testimony
developed at the hearing on Brown's dismissal motion, the circuit
judge became quickly convinced that the State had exercised due
diligence in its effort to bring Brown to trial.  In this respect,
the judge concluded that the State and the court's case coordinator
had reasonably used the South Arch Street address to notify Brown
of her July 17 hearing, since that address had been submitted by
Brown, as it appeared on the felony information, her bond papers,
and in the circuit clerk's office.  
     While Brown claims she had never received a notice of the
initial July 17 hearing, the trial court, after considering her
testimony and counsel's argument, simply did not believe her.  For
example, the trial court expressed its doubts concerning Brown's
story when the trial judge expounded that he thought it strange
that, after the court had issued a bench warrant for Brown's arrest
for missing the July 17 hearing, someone later called on her behalf
seeking another hearing.  The trial court obviously concluded that
Brown was not being completely forthright in contending she was
unaware of the scheduled hearing.  See Allen v. State, 327 Ark.
350, 939 S.W.2d 270 (1997) (holding that the appellate court does
not attempt to weigh the evidence or pass on the credibility of
witnesses; that duty is left to the trier of fact).  
     Also, bearing on the issue of Brown's unavailability, she
conceded to the trial court that she had moved on numerous
occasions, and the proof showed that besides the Arch Street
address, she had acquired others -- 3006 Bermuda, 1005 Adams, 1020
Adams, and 804 Conner Avenue.  The trial judge disagreed with
Brown's suggestion that the State or the court must take the
initiative to keep up with every move Brown made.  And while Brown
argues her addresses were known by and available from her probation
officer, Sharon Beverly, Beverly's testimony was less than clear. 
In fact, nothing to which Beverly testified indicated where Brown
lived when the court's July 17 hearing notice was mailed to her.
     In conclusion, whether Brown was available and whether the
State exercised due diligence in this speedy-trial matter concerned
fact questions to be decided by the trial court.  Because disputed
facts are integral to deciding this case, we decline to issue any
writ of prohibition.