{ "id": 1668743, "name": "Patricia KOZAL, a/k/a Patricia PARKER v. STATE of Arkansas", "name_abbreviation": "Kozal v. State", "decision_date": "1978-11-13", "docket_number": "CR 78-32", "first_page": "587", "last_page": "596", "citations": [ { "type": "official", "cite": "264 Ark. 587" }, { "type": "parallel", "cite": "573 S.W.2d 323" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "540 F. 2d 938", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 315370 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/540/0938-01" ] }, { "cite": "251 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633391 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/251/0223-01" ] }, { "cite": "257 Ark. 542", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721526 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/257/0542-01" ] }, { "cite": "262 Ark. 334", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675869 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/262/0334-01" ] } ], "analysis": { "cardinality": 653, "char_count": 13927, "ocr_confidence": 0.875, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4113759141942252 }, "sha256": "1aad30f3646f2653774b409ea64af1c5608ef498c2a5724c311c822ea3d3c0ea", "simhash": "1:c24ba03e74ce5cb6", "word_count": 2426 }, "last_updated": "2023-07-14T18:22:41.361067+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C.J., and George Rose Smith and Holt, JJ." ], "parties": [ "Patricia KOZAL, a/k/a Patricia PARKER v. STATE of Arkansas" ], "opinions": [ { "text": "George Howard, Jr., Justice.\nThis is an appeal from an order of the Washington County Circuit Court denying appellant\u2019s motion for a new trial based on an allegation of the insanity of appellant.\nThe essential facts for determination of the central issue, namely, whether, under the circumstances in this case, appellant should have been afforded a hearing with an opportunity to offer evidence in support of her motion for a new trial, are as follows:\nAppellant was convicted on June 24, 1977, of theft of property, in violation of Ark. Stat. Ann. \u00a7 41-2203 (Repl. 1964) and her punishment was fixed at eight years in the State Department of Correction.\nA motion for a new trial was filed on August 3, 1977, based on an allegation of incompetency of counsel; and on September 2, 1977, after a hearing conducted by the trial court, appellant\u2019s motion was denied. Appellant\u2019s notice of appeal was filed on September 13, 1977.\nDuring the month of May, 1978, while appellant\u2019s appeal was pending before this Court, appellant\u2019s present counsel discovered that appellant had been undergoing psychological evaluation and psychotherapy, and, as a consequence, on May 9, 1978, appellant petitioned this Court to remand the case to the Circuit Court of Washington County to the end that a motion for a new trial, based on the insanity of the appellant, could be submitted to the trial court. On May 15, 1978, this Court issued its mandate granting appellant\u2019s motion to remand.\nOn May 25, 1978, appellant filed her motion for a new trial based on newly discovered evidence with the trial court. On June 19, 1978, the State filed its response, with a letter attached from the Mental Health Services Division of the Department of Social and Rehabilitation Services dated December 6, 1977, addressed to Judge William Kirby relative to case number 77-1890, pending in the Pulaski County Circuit Court, finding defendant without psychosis.\nOn June 29, 1978, a hearing was conducted on appellant\u2019s motion for a new trial. During the hearing, the following pertinent exchange took place between the trial judge and counsel for appellant:\n\u201cTHE COURT: \u2018Patricia Parker\u2019. In the first place, I think that is where the sanity ought to be determined, in Little Rock. I think, as far as this Motion for New Trial, you have got to show due diligence and Mr. Baker is not a witness here. There is no mention made to the Court anywhere in the transcript of insanity or wanting to have her checked at the Ozark Guidance Center, and she knew about this other experience, and why she didn\u2019t tell Mr. Baker, her attorney here, I don\u2019t know. She didn\u2019t tell you about it. Didn\u2019t you file something here?\n\u201cMR. ROBINSON: Your Honor, after \u2014.\n\u201cTHE COURT: But at that time she didn\u2019t raise this, but she has been aware of this since 19 \u2014 whatever the time. I think it\u2019s not due diligence at this time to offer it at this late hour. She had a good lawyer.\n\u201cMR. ROBINSON: Your Honor, there is no evidence in the record with respect to what the Court has just said. I mean, I would at least like to make a record with respect to due diligence.\n\u201cTHE COURT: All right. What is it? Are you going to put her on the stand?\n\u201cMR. ROBINSON: Your Honor, may I discuss this?\n\u201cTHE COURT: Well, of course. You can put on any testimony you want. I am just taking your own affidavit of your own doctor here in which he says she had been treated back then and no mention was made to her attorney nor anybody else.\n\u201cTHE COURT: You\u2019ve got to show due diligence, why that wasn\u2019t brought out. That\u2019s my point.\n\u201cMR. ROBINSON: Your Honor, of course as the Court is aware, one of our points with respect to asking for new trial before was incompetency, you know, counsel had not properly defended \u2014.\n\u201cTHE COURT: But there was nothing said about her incompetency. She was there. She talked to you about it. Did she tell you that she was incompetent, trouble before?\n\u201cMR. ROBINSON: No, sir, she did not.\n\u201cTHE COURT: Did you have any reason to think she was from her actions?\n\u201cMR. ROBINSON: She didn\u2019t act in the least bit bizarre.\n\u201cMR. ROBINSON: We have now discovered that she probably is. We have a report\u2014\n\u201cTHE COURT: I\u2019m going to overrule it, and let you fight this out in Little Rock. The Supreme Court may hold this in abeyance, but that is the place where you can \u2014 it\u2019s already pending there. So let the Court there decide whether she\u2019s competent.\n\u201cMR. ROBINSON: Your Honor, I\u2019d still like to make a record.\n\u201cTHE COURT: Well, what else do you want to make? Do you want to put her on the stand?\n\u201cTHE COURT: Talk with her and let\u2019s get going.\n\u201cTHE COURT: Let me say this, in fairness to you, what my policy is. If it\u2019s your desire to enter a plea of Not Guilty by Reason of Insanity at this time, my policy is that it is not bailable. In other words, if she thinks she\u2019s insane, I don\u2019t want her running around the streets. She would have to go to the State Hospital. I just want you to know my policy. Anybody, in a criminal case, pleading insantiy \u2014 automatically there is no bail. Now, I don\u2019t know what the policy in Little Rock is. I just want you to understand before you go farther.\n\u201cTHE COURT: \u2014 Unless you want to put some testimony on, I\u2019m going to overrule it. I have told you that. Go ahead with your testimony. On the fact (sic) of this there hasn\u2019t been shown to be due diligence. Right on the fact (sic) of it, the affidavit from your doctor. I\u2019m just telling you that. I don\u2019t want you to be misled.\n\u201cTHE COURT: \u2014 She can put anything she wants in the record.\n\u201cMR. ROBINSON: Excuse me, Your Honor, if she were incompetent \u2014.\n\u201cTHE COURT: Now, don\u2019t argue about it. If you want to put her on the stand, do it. I have told you.\n\u201cMR. ROBINSON: All right. Please take the stand, please, Mrs. Parker.\n\u201cTHE COURT: If she pleads insanity here, Not Guilty by Reason of Insanity, I\u2019m going to put her in jail and send her to the State Hospital, and you can go to the Supreme Court if you want to, because that is my policy all through the years. If a person thinks she\u2019s crazy, I don\u2019t think she ought to be at liberty to prey on the public, and it\u2019s proper to protect the public. So it\u2019s your business; go ahead. I don\u2019t know what Little Rock\u2019s policy is on it, their approach or how they feel about it.\n\u201cMR. ROBINSON: Your Honor, under that pronouncement of the Court, I don\u2019t dare put her on the stand. Mrs. Parker, step down.\u201d\nThe trial court entered an order overruling appellant\u2019s motion for a new trial. On July 6, 1978, appellant gave notice of appeal from the trial court\u2019s order.\nFor reversal, appellant contends that the trial court abused its discretion in overruling appellant\u2019s motion for a new trial.\nArk. Stat. Ann. \u00a7 43-2704 (Repl. 1977) provides in relevant part:\n\u201cPrior to the time fixed to file a notice of appeal, a person convicted of either a felony or misdemeanor may file a motion for a new trial, ... If requested or found to be necessary, the trial court shall promptly designate a date certain to take evidence, hear and dispose of all matters that are presented. ...\u201d (Emphasis added)\nArk. Stat. Ann. \u00a7 43-2203, in material part, provides:\n\u201cThe court in which a trial is had upon an issue of fact, may grant a new trial, when a verdict is rendered against the defendant, by which his substantial rights have been prejudiced, upon his motion, in the following cases:\n\u201cSixth. Where the defendant has discovered important evidence in his favor since the verdict. ...\u201d\nIt is plain from the above statutory provisions that unless a party requests an evidentiary hearing in connection with his motion for a new trial, it is discretionary with the trial court as to whether a hearing should be afforded in order to receive evidence in support of the motion; and, of course, this Court will not reverse the action of the trial court unless the trial court has abused its discretion. Newberry v. State, 262 Ark. 334, 557 S.W. 2d 864.\nIn the instant case, the record reflects that on the date scheduled by the trial court for a hearing on plaintiff\u2019s motion for a new trial based upon newly discovered evidence, counsel for the appellant sought and received leave from the trial court, during the hearing, to offer oral evidence from the appellant in order to enable the trial court to determine if the purported newly discovered evidence of insanity of appellant was sufficient to justify a new trial, and whether appellant\u2019s prior and present counsel could have determined the existence of the alleged newly discovered evidence by the exercise of due diligence. However, as a consequence of an exchange between the trial judge and appellant\u2019s counsel resulting in the following admonition by 'the trial court, appellant declined to take the witness stand:\n\u201cTHE COURT: If she pleads insanity here, Not Guilty by Reason of Insanity, I\u2019m going to put her in jail and send her to the State Hospital, and you can go to the Supreme Court if you want to, because that is my policy all through the years. If a person thinks she\u2019s crazy, I don\u2019t think she ought to be at liberty to prey on the public, and it\u2019s proper to protect the public. So it\u2019s your business; go ahead. I don\u2019t know what Little Rock\u2019s policy is on it, their approach or how they feel about it.\u201d (Emphasis added)\nWhile we recognize that under Ark. Stat. Ann. \u00a7 43-1301 (Repl. 1977), when a trial judge has reason to believe that the defense of insanity will be raised on behalf of the defendant and will become an issue in the case, or shall be of the opinion that there are reasonable grounds to believe that the defendant was insane at the time of the alleged commission of the offense, the trial judge must postpone all the proceedings and shall \u201c. . . either enter an order directing that the defendant undergo examination and observation by one or more qualified psychiatrists at a local regional mental health clinic or center, or shall commit the defendant to the Arkansas State Hospital for examination and observation,\u201d we are persuaded that any effort on the part of the trial court to exercise its authority under the provision of Ark. Stat. Ann. \u00a7 43-1301 (Repl. 1977) may have been premature inasmuch as it seems plain that appellant would not be required to change her plea until such time as the motion for a new trial had been granted. Appellant stood convicted before the trial court of the criminal charge of theft of property and had been sentenced to a term of eight years in the Arkansas Department of Correction and was endeavoring to secure a new trial. Moreover, it does not appear from the record before us that appellant, either during or prior to the hearing held by the trial court, was a menace to the public or to anyone as a consequence of being at liberty on bail.\nFurthermore, it must be remembered that under Article 2, Section 8 of the Arkansas Constitution there are certain fundamental and basic rights guaranteed to each citizen of this state which have been more appropriately characterized as \u201cDeclaration of Rights\u201d and the pertinent provision of this declaration provides:\n\u201c. . . All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.\u201d\nIt is clear that the trial court\u2019s admonition frustrated appellant\u2019s desire to offer evidence in support of her motion. Accordingly, we are persuaded that appellant should be afforded an evidentiary hearing in connection with her motion for a new trial based upon newly discovered evidence.\nFinally, appellant argues rather strenuously that the trial court committed reversible error in denying her motion for a new trial predicated on the contention of incompetency of counsel at the trial level. After carefully reviewing the record before us, we are persuaded that there is substantial evidence to support the action of the trial court. The evidence falls short in warranting a holding that appellant\u2019s initial counsel\u2019s services reduced the proceeding to a farce, a mockery of justice and shocking to the Court. It must be remembered that effective assistance of counsel does not equate with success. The mere showing of improvident strategy, or bad tactics is not sufficient to establish that defendant was denied effective assistance of counsel since counsel is accorded broad latitude in exercising his discretion and judgment. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492; Franklin and Reid v. State, 251 Ark. 223, 471 S.W. 2d 760. See also: Pinnell v. Cauthron, 540 F. 2d 938 (8th Cir. 1976).\nThis case is reversed and remanded to the trial court for proceedings not inconsistent with this opinion.\nWe agree.\nHarris, C.J., and George Rose Smith and Holt, JJ.\nThe record before us reflects that on June 28, 1978, present counsel for appellant received a telephone call from the office of the trial judge advising counsel that the trial court would take up appellant\u2019s motion for a new trial at 1:00 p.m. o\u2019clock on the following day, June 29, 1978.\nDuring an exchange between the trial judge and counsel during the hearing, regarding the short notice received by counsel, counsel stated that he had planned to call witnesses, a psychiatrist and a psychologist who resided at Fort Smith to testify in the proceedings. However, the trial judge stated that he had not been advised that counsel wanted to offer testimony until the morning of the scheduled hearing. However, the trial court did recall receiving a telephone call approximately two weeks prior to the scheduled hearing from one Greg Smith, an associate of counsel of record for appellant, stating \u201cthat he would like to be present when I acted on the motion.\u201d", "type": "majority", "author": "George Howard, Jr., Justice." } ], "attorneys": [ "Pearce & Robinson, for appellant.", "Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Patricia KOZAL, a/k/a Patricia PARKER v. STATE of Arkansas\nCR 78-32\n573 S.W. 2d 323\nOpinion delivered November 13, 1978\n(Division I)\n[Rehearing denied December 11, 1978.]\nPearce & Robinson, for appellant.\nBill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee." }, "file_name": "0587-01", "first_page_order": 615, "last_page_order": 624 }