{ "id": 6141074, "name": "David Lee SCOTT v. STATE of Arkansas", "name_abbreviation": "Scott v. State", "decision_date": "2006-02-22", "docket_number": "CA CR 04-922", "first_page": "297", "last_page": "304", "citations": [ { "type": "official", "cite": "94 Ark. App. 297" }, { "type": "parallel", "cite": "229 S.W.3d 578" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "498 P.2d 437", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1972, "opinion_index": 0 }, { "cite": "102 Cal. Rptr. 597", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1972, "opinion_index": 0 }, { "cite": "7 Cal. 3d 422", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2277317 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/cal-3d/7/0422-01" ] }, { "cite": "263 Ark. 595", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672694 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/263/0595-01" ] }, { "cite": "188 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "27 Ill.2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360555 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/27/0085-01" ] }, { "cite": "304 Ark. 348", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880948 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "145" }, { "page": "350-51" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/ark/304/0348-01" ] }, { "cite": "303 Ark. 331", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882779 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0331-01" ] }, { "cite": "26 Ark. App. 107", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138000 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "109" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ark-app/26/0107-01" ] } ], "analysis": { "cardinality": 767, "char_count": 15187, "ocr_confidence": 0.735, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1749372260699369 }, "sha256": "11a67b3b7336f080c95853bbafc13bc2f8b6aae0de3d404fe05e85b879c11ae2", "simhash": "1:97f66e75355acdae", "word_count": 2698 }, "last_updated": "2023-07-14T18:52:04.997483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart and Neal, JJ., agree." ], "parties": [ "David Lee SCOTT v. STATE of Arkansas" ], "opinions": [ { "text": "Sam Bird, Judge.\nOn April 29, 2004, David Lee Scott was tried for aggravated robbery before the bench in the Faulkner County Circuit Court. He was convicted and sentenced to twenty years\u2019 imprisonment in the Arkansas Department of Correction. He now appeals, contending that the trial court erred in finding that he was not indigent and \u201cin failing to provide counsel\u201d to represent him. We hold that the trial court abused its discretion by determining non-indigency and granting the public defender\u2019s motion to be relieved as counsel on the basis of Scott\u2019s posting bond. Therefore, we reverse and remand for a new trial.\nThe crime precipitating Scott\u2019s arrest was the March 20, 2003, nighttime robbery of a pizza deliveryman at an apartment complex in Conway, Arkansas. Scott was implicated that night after the arrests of four other suspects. He was arrested in the early morning of March 21 and, like the others, was charged with aggravated robbery. In the first appearance before the trial court, \u00f3n the day of Scott\u2019s arrest, he and the others charged were informed of their rights as defendants in a criminal case. The court stated:\nWe\u2019ll talk about what you\u2019re charged with, the issue of bond, whether or not you\u2019re entitled to the services of the public defender, and give you a court date. . . .\nYou have the right to an attorney. If you cannot afford an attorney, one will be appointed for you by the Court at no cost. Does everybody understand that?\nThe court set Scott\u2019s bond at $50,000, and Scott inquired about the possibility of getting a sheriffs bond. The court replied, \u201cI\u2019ll leave that up to the sheriff. I\u2019ve approved you for the public defender.\u201d\nScott did not make his bond initially and was jailed. Public defender Karen Walker Knight represented him at the arraignment hearing on April 7, 2003, and the court accepted Scott\u2019s plea of not guilty. September 16 and 29, 2003, were set as dates for a pretrial hearing and trial. Knight requested that bond be reduced to $20,000, informing the court of her understanding that it had been set at $40,000. The trial court, agreeing with the State that bond should not be reduced, left it at $40,000. On April 15, 2003, Knight filed a motion for discovery and a demand for speedy trial. On July 2, 2003, the public defender\u2019s office filed a motion to be relieved as counsel, setting forth the following:\n1. Public Defender . . . was appointed to represent the Defendant, David L. Scott, in the above matter on April 7, 2003.\n2. The Defendant\u2019s bond was set at $40,000.00.\n3. The Defendant posted said bond on June 5, 2003.\n4. Due to the lack of indigency, the Public Defender Office respectfully requests to be relieved as counsel for the defendant.\nAt the pretrial hearing on September 16, 2003, the following exchange transpired between the trial court and Robert L. Thacker of the public defender\u2019s office:\nMr. Thacker: Your Honor, this case is another one where the public defender has filed a motion to be relieved on the basis of the information we\u2019ve received. Mr. Scott has apparently posted a bond in the amount of forty thousand dollars. So, we are moving to be relieved, on that basis. He showed me a copy of the bond, your Honor. I\u2019ll let you review, also. Apparently, he only paid part of the premium and was paying out the balance on it.\nThe Court: At this point in time, I am going to find that you\u2019re not indigent. When you make a forty thousand dollar bond, I think you have the ability to hire an attorney. So, therefore, I\u2019m going to leave you on for September 29th. You need to be back here with your attorney on that date, telling me who that attorney is.\nOn September 29, 2003, Scott appeared for trial and the court asked him to name his attorney. Scott replied, \u201cI don\u2019t have one, sir. I haven\u2019t tried to hire one. I ain\u2019t had the money.\u201d The court instructed Scott that he needed to hire \u201csomebody.\u201d The court stated that it would allow Scott some time, and a pretrial hearing was set for February 10, 2004.\nAt the pretrial hearing in February, Scott told the court that he had not tried to hire an attorney \u201cbesides the past.\u201d He said that he had talked to George Stephens and John Purtle but had not hired them. Responding to questions by the court, Scott answered that he was not employed and was living with his sister. The court stated:\nYou need to hire an attorney. You bonded out; your bond was forty thousand dollars. That\u2019s not a small bond to make. You need to hire somebody. You\u2019re telling me, today, you\u2019ve not even really attempted to hire anybody, you really haven\u2019t talked to anybody, kind of talked to George Stephens and John Purtle, but you really haven\u2019t, so be back here March 1, and we\u2019re going to set your trial sometime in March.\nIn the March 1 hearing Scott told the court that he had no attorney; he said that he had tried to hire George Stephens about three weeks earlier but was not able to afford him. The following dialogue occurred:\nThe Court: Where are you working ...?\nMr. Scott: Nowhere. I stay at home with my sister. She is feeding me. She is taking care of all the bills and everything. I walk to get around. I am looking for a job, but I mean, I\u2019m out on a $50,000 bond. I have to pay that, too. I mean, it\u2019s hard to try to pay that and try to pay for a lawyer at the same time.\nThe Court: Why is that a problem if you can afford a $50,000 bond? There\u2019s a strong presumption that you\u2019re not indigent.\nMr.. Scott: I\u2019m still paying on it.\nThe Court: I understand that. I guess, Ms. Knight, what I would ask for you is to consult with Mr. Scott and see if he wants a jury trial. Review the file and see if everything\u2019s ready to go.\nThe Court: If you\u2019ll have a seat, Mr. Scott, I\u2019ll have Ms. Knight visit with you about a jury trial/bench trial. What I\u2019m gonna do though \u2014 you have the ability to represent yourself, and I\u2019m gonna let you represent yourself. If we end up going to trial, I probably will appoint Ms. Knight to sit second chair and assist you, so you need to visit with her and talk about what\u2019s getting ready to happen.\nKnight informed the court that she had explained to Scott the difference between jury and bench trials, and that he waived a jury trial. The prosecution informed the court that it had made an offer to reduce the charge to robbery with a twenty-year sentence, which would avoid the \u201cseventy percent rule\u201d associated with aggravated robbery. Scott told the court that he understood the offer, and the court noted that the offer was waived. The court ascertained Scott\u2019s ability to represent himself, asked whether he understood that he had been found not to be indigent, and further instructed him:\nI guess the easiest way I can put this is you\u2019re going to a gun fight without a gun. He\u2019s [the prosecutor] got one. You don\u2019t. There\u2019ll be certain mies and regulations you\u2019ll have to follow. I am gonna appoint Ms. Knight as second chair. She will assist you, but she will by no means be your attorney. She won\u2019t be the lead attorney. Give you some advice if you ask for it, but she is not in charge of your case. You are in charge of your case. Do you understand that?\nThe court set March 31 as the date for trial.\nOn March 31, 2004, Scott told the trial court that he still had no attorney and had talked to no one except John Purtle. The court asked if Scott was ready for trial; he responded that he was \u201cready to get it over with\u201d despite not really looking over his discovery motion as well as he should have, and he told the court that he had no witnesses.\nKnight addressed the court:\nYour Honor, for the record, I have been appointed to assist Mr. Scott as stand-by counsel. . . . He also informed me that his sister had helped him do this bond, and when I asked why his sister\u2019s not helped him get an attorney, he explained to me that they are still trying.\nKnight informed the court that, when the public defender was relieved as counsel, its office handed Scott the discovery materials that it had received, but her only contact with him since that date had been in open court. She stated that she had presented the prosecutor\u2019s offer to him and that he had refused it.\nKnight stated that Scott told her that his sister had helped him make his bond, that $1500 was paid \u201cup front,\u201d and that the rest was paid off. Knight reminded the court that Scott had been out ofjail since June, had no job, and had made no attempts to hire Mr. Purtle. She said that Scott had advised her that his sisters were attempting to help him hire an attorney. Knight concluded, \u201cIn my opinion, as the Court has ruled, he\u2019s not indigent. He has the means. He has the ability to work.\u201d\nThe court inquired whether the State was ready for trial, and the prosecutor responded:\nJudge, I have witnesses here. Your Honor, I by no means wish to dispute [the] Court\u2019s prior ruling. The Court has relieved the public defender, because he\u2019s made a bond. Judge, I don\u2019t know what\u2019s ultimately gonna become of that. I have serious reservations with the Court relieving him of public defender because he made a $40,000 bond. And that was the testimony. He made a $40,000 bond, and he was relieved. I think, Judge, when the Court has heard that he has not posted that bond, it\u2019s been made by his sister, I think that raises some concerns and alarms in my mind about any conviction standing any constitutional challenges.\nThe court observed that the State was ready for trial, but, noting Scott\u2019s concern that he had not reviewed discovery matters fully, granted a continuance until April 29 on \u201cthe defense motion.\u201d\nAt trial on April 29, 2004, Scott defended himself pro se and Knight sat beside him as \u201csecond-chair.\u201d Scott asked the court if he had the right to a jury trial but was informed that he had previously waived that right. At the conclusion of the bench trial, he was found guilty and was sentenced to the twenty-year term of imprisonment.\nOn appeal, we do not reverse the trial court\u2019s ruling as to indigency vel non, absent an abuse of discretion. Hancock v. State, 26 Ark. App. 107, 760 S.W.2d 391 (1988). A defendant\u2019s ability to post bond, although a factor that can be considered in a determination of indigency, is not conclusive evidence of non-indigency. Id. at 109, 760 S.W.2d at 392. No showing of prejudice is necessary when a trial court erroneously denies appointment of counsel altogether because prejudice to the defendant is presumed. Kincade v. State, 303 Ark. 331, 796 S.W.2d 580 (1990).\nIn Hill v. State, 304 Ark. 348, 802 S.W.2d 144 (1991), the trial court declared that the defendant, formerly represented by retained counsel at trial and for filing his notice of appeal, was not indigent for purposes of appeal because he had social-security income and an interest in real property, he had made bond, and he had made no effort to raise money for the appeal. Remanding the matter to the trial court for a second evidentiary hearing and findings of fact, the supreme court wrote:\nSome weight may be given to whether appellant himself paid the cost of an appeal bond, but the state cannot force an appellant to choose between posting bond and being able to obtain counsel and pay the cost of an appeal. See People v. Eggers, 27 Ill.2d 85, 188 N.E.2d 30 (1963). The ability of bystanders such as friends and family members to post bond or assist with expenses is not a factor in determining the appellant\u2019s indigency since indigency of the appellant does not depend on the financial position of his family and friends. Bystanders have no obligation to the state.\nId. at 351, 802 S.W.2d at 145.\nHere, the public defender moved to be relieved as counsel due to Scott\u2019s lack of indigency solely on the basis of his posting bond. In granting the motion, the trial court ruled that \u201c[w]hen you make a forty thousand dollar bond, I think you have the ability to hire an attorney.\u201d The court repeated this viewpoint at later hearings, observing that Scott should hire an attorney because he had made bond of $40,000. At the final pre-trial hearing, the court observed that payment of a $50,000 bond created a strong presumption of non-indigency. And on the day of trial, the trial court rejected the prosecutor\u2019s concerns that the court relieved Scott of his public defender because he had made bond that had been paid by his sister.\nUnder Hill v. State, supra, an appellant cannot be forced to choose between posting bond and being able to obtain counsel, and the ability of family members to post bond or assist with expenses is not a factor in a determination of the appellant\u2019s indigency. We hold that the trial court abused its discretion in determining that Scott was not indigent merely because he or his sisters were able to make bond and obtain his release from jail before trial.\nReversed and remanded for re-trial.\nHart and Neal, JJ., agree.\nThe affidavit of indigency filed with the court on March 21,2003, is a printed form divided into two parts: one for the defendant\u2019s financial information and the other for a spouse. Handwritten answers assert that Scott had no employer, that his sole expense was \u201cAuto Insurance $140$\u201d [sic], and that his only personal property was an \u201986 Cadillac valued at $300. Nothing is written in the blanks for his take-home pay, income from other sources, SSI, AFDC, social security disability, or \u201cother.\u201d Despite a declaration that there was no spouse, $690 is shown as the spouse\u2019s monthly SSI.\nThe record confirms that bond was set at $50,000 in Scott\u2019s initial appearance of March 2003 and that the trial court again referred to bond in this amount at a pretrial hearing in March 2004. Interim proceedings such as the arraignment hearing refer to a bond of $40,000. The parties on appeal do not address this discrepancy, and its resolution is immaterial to the issue before us.\nThe Hill court listed other factors to be considered in determinations of indigency:\nWhile there is no brightline test for indigency, which is a mixed question of fact and law, some of the factors to be considered are: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for the appeal. See W. LaFave andj. Israel, 2 Criminal Procedure \u00a7\u00a7 11.2(e) (1984). This court has also considered whether the able-bodied appellant who is educated and capable of working has made any attempt to find employment while free on bond. Toomer [v. State], 263 Ark. 595, 566 S.W.2d 393 [1978]. Ablebodiness and the level of education, however, must not be given undue weight since the ability to obtain employment after conviction may be limited. See March v. Municipal Court, 7 Cal. 3d 422, 102 Cal. Rptr. 597, 498 P.2d 437 (1972).\n304 Ark. at 350-51, 802 S.W.2d at 145.", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "DeeNita D. Moak, for appellant.", "Mike Beebe, Ark. Att\u2019y Gen., by: David J. Davies, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "David Lee SCOTT v. STATE of Arkansas\nCA CR 04-922\n229 S.W.3d 578\nCourt of Appeals of Arkansas\nOpinion delivered February 22, 2006\nDeeNita D. Moak, for appellant.\nMike Beebe, Ark. Att\u2019y Gen., by: David J. Davies, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0297-01", "first_page_order": 323, "last_page_order": 330 }