{ "id": 6136846, "name": "William M. CASWELL v. STATE of Arkansas", "name_abbreviation": "Caswell v. State", "decision_date": "1998-09-09", "docket_number": "CA CR 97-1574", "first_page": "59", "last_page": "66", "citations": [ { "type": "official", "cite": "63 Ark. App. 59" }, { "type": "parallel", "cite": "973 S.W.2d 832" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "271 Ark. 616", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756098 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "618-19" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ark/271/0616-01" ] }, { "cite": "269 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712497 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "560", "parenthetical": "citations omitted" }, { "page": "889", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/269/0556-01" ] }, { "cite": "475 U.S. 673", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207521 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/475/0673-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-310", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(c)(l)" } ], "opinion_index": 0 }, { "cite": "27 Ark. App. 150", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139230 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "152", "parenthetical": "emphasis added" }, { "page": "538", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark-app/27/0150-01" ] }, { "cite": "31 Ark. App. 23", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136195 ], "weight": 7, "year": 1990, "pin_cites": [ { "page": "26" }, { "page": "853", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark-app/31/0023-01" ] } ], "analysis": { "cardinality": 607, "char_count": 11186, "ocr_confidence": 0.736, "pagerank": { "raw": 2.0626363340028614e-07, "percentile": 0.7567470149804101 }, "sha256": "d2f31e4e95740e955575efa26a29f0506aa1dff3d58b68720ebaa5aa0a44bccc", "simhash": "1:1f2e8fbf4eca3dea", "word_count": 1855 }, "last_updated": "2023-07-14T22:09:43.559988+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Roaf, J., agree." ], "parties": [ "William M. CASWELL v. STATE of Arkansas" ], "opinions": [ { "text": "John F. Stroud, Jr., Judge.\nThis is a revocation case. In March 1990, appellant, William M. Caswell, was sentenced to ten years in the Arkansas Department of Correction with an additional five years\u2019 suspended imposition of sentence. In 1996 the State filed a petition to revoke the suspended imposition of sentence, alleging that appellant had violated the terms of the suspension by leaving the scene of an accident involving injuries and property damage. Following a hearing on the petition the court revoked appellant\u2019s suspended imposition of sentence. On appeal, appellant argues that the trial court erred 1) in permitting hearsay evidence that violated the confrontation and due process clauses of the United States Constitution, and 2) in denying him the right to dismiss his attorney. We find no prejudicial error and affirm the trial court\u2019s revocation of appellant\u2019s suspended imposition of sentence.\nFor his first point of appeal, appellant contends that the trial court erred in permitting the investigating officer to testify about what John and Danna Ward told him, thereby violating the confrontation and due process clauses of the United States Constitution. The Wards were passengers in appellant\u2019s car and were injured in the accident. We agree that the trial court erred in allowing the testimony but find that the error was harmless.\nFirst, the State argues that this point was not properly preserved for appeal. We disagree and find that appellant\u2019s objection was sufficient to preserve the constitutional issue. In Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990), the appellant objected to a police officer\u2019s testifying about his discussions with another person because the other person was not present and could not be cross-examined. We concluded that the objection was adequate to raise the issue of the confrontation clause. We observed that although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront witnesses is applicable. Id.\nHere, Kelly Stewart, the officer investigating the accident, was the only person to testify at appellant\u2019s revocation hearing. The following colloquy occurred when the State asked Stewart what John and Danna Ward told him at the accident scene:\n[Appellant\u2019s Counsel]: Your Honor, I would object to that being hearsay, although I do recognize that the rules of evidence do not apply on revocation hearings if he testifies as to what a victim in this case stated without the ability of the defense to cross examine that particular victim then that would deprive the defendant of a fair hearing.\n[Prosecutor]: Your Honor, the rules of evidence do not apply. We would ask the Court to make a ruling.\nThe Court: The rules of evidence do not apply and also I believe the officer may state to the Court what his investigation revealed at the scene so it is overruled.\n[ Officer Kelly Don Stewart]: I talked to a Mr. Ward, who was bleeding from the head. I asked him what had happened and he said they were riding with Mr. Caswell, Mr. Mike Caswell, and he lost control of the vehicle. I asked him where he was, I thought maybe he had gone to the phone or something, they said he had \u2014 last time they saw him he was going down below the bridge and was in the woods. I called for additional officers and we searched the area for approximately two hours and were unable to locate Mr. Caswell.\nThe other passenger in the vehicle that I talked to besides Mr. Ward was his wife, Danna Ward. I talked to her.\nQ. And what did she relate to you had happened?\n[Defense Counsel]: Your Honor, I object again for the reasons previously stated, that this is hearsay.\nThe Court: The objection is so noted and overruled.\n[ Officer Stewart]: She basically said the same thing that her husband John did, that they were east bound on 82 and Mr. Cas-well lost control of the vehicle for some reason and that he had left the scene.\n(Emphasis added.) Defense counsel\u2019s objection was sufficient to preserve this constitutional issue for appeal.\nSecond, in Goforth v. State, 27 Ark. App. 150, 152, 767 S.W.2d 537, 538 (1989) (emphasis added) (citations omitted), we explained:\nAlthough in a revocation hearing a defendant is not entitled to the full panoply of rights that attend a criminal prosecution, he is entitled to due process. Because due process is a flexible concept, each particular situation must be examined in order to determine what procedures are constitutionally required.\nIn Gagnon v. Scarpelli, the United States Supreme Court held that in a revocation proceeding the accused is entitled to \u201cthe right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).\u201d This holding has been codified at Ark. Code Ann. \u00a7 5-4-310(c)(l) (1987) which states:\nThe defendant shall have the right to confront and cross examine adverse witnesses unless the court specifically finds good cause for not allowing confrontation.\nIn a probation revocation proceeding the trial court must balance the probationer\u2019s right to confront witnesses against grounds asserted by the State for not requiring confrontation. First, the court should assess the explanation the State offers of why confrontation is undesirable or impractical. A second factor that must be considered, and one that has been focused on by a number of courts, is the reliability of the evidence which the government offers in place of live testimony.\nHere, the State offered no explanation for why confrontation was undesirable or impractical, and the trial court did not engage in the balancing exercise set forth in Goforth. Moreover, the trial judge noted that he did not understand why at least one of the Wards was not present. In allowing the officer to testify about what the Wards had said, the trial court violated appellant\u2019s constitutional right to confront the witnesses against him.\nHowever, the denial of the right to confront witnesses may be harmless error. Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990). In Jones, we quoted from Delaware v. Van Arsdall, 475 U.S. 673 (1986):\nWhether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness\u2019 testimony in the prosecution\u2019s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution\u2019s case.\nJones, 31 Ark. App. at 26, 786 S.W.2d at 853 (emphasis added).\nHere, under the circumstances of this case, the error was harmless. Appellant turned himself in the day after the accident and talked with Officer Stewart. At the revocation hearing, Officer Stewart testified, \u201cI asked him why he left, he said he just \u2014 he was afraid, you know, I guess for fear he would be locked up. I am not sure, he just said he was afraid, got scared and ran.\u201d There was no objection raised with respect to this testimony, and although it does not have appellant actually stating that he was the driver, that fact can certainly be conclusively inferred. Moreover, Officer Stewart testified that the vehicle was titled in appellant\u2019s name.\nConsequently, even though the trial court erred in admitting the officer\u2019s testimony concerning what the Wards had told him, the error was harmless because it was, in effect, cumulative to the evidence presented by Officer Stewart concerning what appellant had told him. That is, there was sufficient evidence presented at the hearing to establish that appellant was the driver, even disregarding the hearsay testimony about the Wards.\nFor his second point of appeal, appellant contends that the trial court erred in denying his request for a new attorney, which was made at the revocation hearing. We find no error.\nIn Thorne v. State, 269 Ark. 556, 560, 601 S.W.2d 886, 889 (1980) (citations omitted), the supreme court explained:\nIt is clear that the question of a continuance is within the discretion of the trial judge and not every denial of a request for more time violates due process or Constitutional mandates. The burden is on the appellant to show that there has been an abuse of discretion. The right to choose counsel may not be manipulated or subverted to obstruct the orderly procedures of the Court or to interfere with the fair, efficient and effective administration of justice. In each such situation the Court must look at the particular circumstances of the case at bar and the issue must be decided on a case by case basis.\nThe factors to be considered by the trial court were briefly outlined in Leggins v. State, 271 Ark. 616, 618-19, 609 S.W.2d 76, 78 (1980):\nAlthough a defendant must be offered a reasonable opportunity to obtain competent counsel, once competent counsel is obtained, any request for a change must be considered in the context of the public\u2019s interest in a reasonably prompt and competent dispensation of justice. If such a change would require the postponement of trial because of inadequate time for a new attorney to properly prepare a defendant\u2019s case, in denying or granting the change, the court may consider such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant has acted diligently in seeking the change, and whether the denial is likely to result in any prejudice to defendant.\n(Emphasis added.)\nHere, appellant sought a continuance so that he might seek other counsel because he was not pleased with the services of his attorney. No other reason was given beyond a vague assertion of displeasure that \u201cI haven\u2019t seen anything that he\u2019s done except bring me up here and set me over there on that stool over there and not tell me nothin\u2019.\u201d Moreover, no other counsel was identified, and the request was made on the day of the revocation hearing for the asserted reason that appellant had been in jail and could do nothing while there. Although appellant\u2019s father was present at the hearing and said that he had the ability to borrow money to retain private counsel for his son, he had not done so. Finally, the only prejudice asserted by appellant was that there was a \u201ctremendous breakdown\u201d in the relationship between appellant and his attorney, appellant was not presented the opportunity to represent himself or seek another attorney, and appellant was in jail and did not have access to witnesses or law books. In short, appellant has not demonstrated that the trial court abused its discretion in denying his request.\nAffirmed.\nRobbins, C.J., and Roaf, J., agree.", "type": "majority", "author": "John F. Stroud, Jr., Judge." } ], "attorneys": [ "Ben Seay, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Kelly Terry, Ass\u2019t Att\u2019y Gen., and Pamela Epperson, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar under the supervision of Kelly K. Hill, Deputy Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "William M. CASWELL v. STATE of Arkansas\nCA CR 97-1574\n973 S.W.2d 832\nCourt of Appeals of Arkansas Division III\nOpinion delivered September 9, 1998\nBen Seay, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kelly Terry, Ass\u2019t Att\u2019y Gen., and Pamela Epperson, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar under the supervision of Kelly K. Hill, Deputy Att\u2019y Gen., for appellee." }, "file_name": "0059-01", "first_page_order": 85, "last_page_order": 92 }