{ "id": 1719948, "name": "Willie ROSS v. STATE of Arkansas", "name_abbreviation": "Ross v. State", "decision_date": "1980-01-16", "docket_number": "CA CR 79-70", "first_page": "1027", "last_page": "1034", "citations": [ { "type": "official", "cite": "267 Ark. 1027" }, { "type": "parallel", "cite": "593 S.W.2d 475" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "240 Ark. 926", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727705 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/240/0926-01" ] }, { "cite": "257 Ark. 686", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722990 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/257/0686-01" ] }, { "cite": "260 Ark. 712", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616733 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0712-01" ] } ], "analysis": { "cardinality": 655, "char_count": 11641, "ocr_confidence": 0.893, "pagerank": { "raw": 9.93263432406344e-08, "percentile": 0.5364133198499218 }, "sha256": "fda5143f60124cb308b17acd54d0789d05be260f36f27cd3bfdd289b0148d955", "simhash": "1:0345c2a6570b4e87", "word_count": 2067 }, "last_updated": "2023-07-14T22:44:49.696704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Willie ROSS v. STATE of Arkansas" ], "opinions": [ { "text": "M. Steele Hays, Judge.\nThis is an appeal.from an order revoking a suspended sentence. On December 3, 1976, appellant was convicted of burglary- and sentenced to five years, the sentence to be suspended during good behavior, upon payment of a fine of $500 and costs within 120 days and upon non-use. of alcohol..\nOn April 20, 1979, the.State of Arkansas filed a petition to revoke the suspended sentence upon the grounds that appellant had been found guilty of third degree battery, had not reported to his probation officers, had not notified them of his present employment, had not reported a change of address and had not paid the fine and costs.\nOn May 11 a hearing was begun on the petition to revoke. Counsel for appellant moved for a continuance, referring to the appellant\u2019s limited education and to the fact that the allegation that appellant was convicted of third degree battery was found to be in error. The motion for continuance was denied by the court at the outset, but during the hearing was later continued to May 15. On May 11, after the continuance, an amended petition to revoke appellant\u2019s suspended sentence was filed alleging that appellant was convicted of gambling on May 2, 1978, public intoxication on August 8, 1978, third degree battery on September 8, 1978; public intoxication on September 8, \u00cd978, and drunk in public on April 13, 1978, in addition to the previous grounds. During the proceedings on May 11, counsel for appellant asked the court to recuse itself, which motion was overruled. The hearing was reconvened on May 15 at the completion of which appellants suspended sentence was set aside and a sentence of five years was imposed.\nThe appellant brings this appeal, alleging as a single point for reversal, that appellant was denied due process under the Fourteenth Amendment by the trial judge\u2019s refusal to recuse himself for consideration of the petition to revoke.\nIn view of the type of error asserted, i.e., a refusal to recuse, we deem it necessary to set forth pertinent portions of the proceedings in some detail:\nBY THE COURT: Arid didn\u2019t you tell him that every time you had gotten, into trouble it was because of iiquor, that you had been drinking?\nBY THE DEFENDANT: Yes, sir.\nBY THE COURT: And do you remember what that judge told you about liquor?\nBY THE DEFENDANT: He told me to leave it alone.\nBY THE COURT: That\u2019s exactly right. Now, do you know who that judge was?\nBY THE DEFENDANT: No, sir, but I think it was you,though.\nBY THE COURT: I know it was me, and there is my writing and that\u2019s right there on the book, (showing)\nBY THE DEFENDANT: Yes, sir.\nBY THE COURT: Where I told you to leave alcohol alone.\nBY THE DEFENDANT: Yes, sir.\nBY THE COURT: Just pure and simple. Leave it alone.\nBY THE DEFENDANT: Yes, sir.\nBY THE COURT: Mr. Davis, you can call what witnesses you want, but I cannot sanction this type of conduct and try to maintain a probation department and provisions with the hope of rehabilitation when one of the things that has come up is public drunkenness. If this gentleman has a problem with liquor \u2014 I don\u2019t remember all these cases until I come back with this one.\nDuring cross-examination of appellant\u2019s mother by the \u00a1prosecutor, Mr. Johnson, the following occurred:\nQ: Have you seen Willie drinking at your house, Mrs. Ross?\nA: It\u2019s quite natural if his momma drink a little beer, he might drink a little, too.\nTHE COURT: Ma\u2019am, he didn\u2019t ask you what he might do. Now, you answer his question, whether he has come in there drunk.\nTHE WITNESS: No, sir, he don\u2019t come in there drunk.\nTHE COURT: Have you seen him drinking?\nTHE WITNESS: I\u2019ve seen him drink one can of beer.\nTHE COURT: Now \u2014\nTHE WITNESS: One can of beer at the time. And that\u2019s all I can remember, and can tell you the truth on that. He drank one can of beer.\nTHE COURT: We are fixing to have a witness that\u2019s fixing to go upstairs.\nTHE WITNESS: No, sir, don\u2019t put me up, please.\nMR. DAVIS: Now, your Honor \u2014\nTHE COURT: Now, she\u2019s trying to play games with this court.\nTHE WITNESS: No, sir, I\u2019m not \u2014\nTHE COURT: Now, and this court\u2019s not going to \u2014 just a minute, and you can instruct her if you want to, but I\u2019m not \u2014 just a minute. But I\u2019m not fixing to put up with this for one minute.\nMR. DAVIS: Your Honor, I would like for the record to reflect that I object to the court. \u2022\nTHE COURT: You make the record; you put in there whatever you want to, but when a witness gets on the stand, \u201cI ain\u2019t saying whether I\u2019ve been seeing drinking or not,\u201d and works around to one beer, this court is not putting up with that. Put in there anything you want to Mr. . Davis.\nTHE WITNESS: I want to \u2014\nTHE COURT: You just be quiet and sit down.\nTHE WITNESS: Okay.\nTHE COURT: Go ahead and make your record.\nTHE WITNESS: Please don\u2019t \u2014\nMR. DAVIS: Your Honor, my objection is that I feel that the court is trying to intimidate the witness and to take over cross examining her concerning her testimony, and in doing so is becoming more of an advocate rather than a judicial officer in the proceedings.\nI feel that it is improper for the court to take this attitude towards the witness and threatening her with going to jail concerning some remarks she made in her testimony.\nTHE WITNESS: I\u2019m sorry.\nMR. DAVIS: I would ask the court if perhaps I might suggest, obviously the witness has caused the court to become angry; maybe that anger is justifiable. I\u2019m not saying that it\u2019s not. I simply suggest that the court perhaps it recuse itself from further consideration of this case.\nTHE COURT: That motion will be overruled right now.\nTHE WITNESS: Please don\u2019t lock me up. I didn\u2019t mean no harm.\nTHE COURT: Go ahead. Finish.\nMR. DAVIS: That\u2019s all I believe I care to say at this time.\nTHE COURT: Mr. Davis, let me make a statement, and I want the record to reflect on this. This is not my first day in court. This is not the first day I know anything about the facts of law. This is not the first day T ve had any experience in trial work. The court feels a strong obligation to maintain order, decorum, and to require a witness when testifying not to be evasive, and not to commit, in a sense, perjury.\nNow, the questions which the deputy prosecuting attorney asked this witness, and the witness\u2019 s manner and demeanor on the stand, \u201cI ain\u2019t said how many times he\u2019s been drunk. I ain\u2019t said how many times he\u2019s been drinking. He drinks beer with me when I want to,\u201d and then come back and tell me she has seen him drink one beer, is in the opinion of this court an affront to this court. And if I\u2019m to sit here and hold any type of dignity of this court, then I will not permit a witness to try to Aim flam an attorney who is asking questions, nor the record in this court.\nI am not angry, but I am firm in my beliefs in this regard.\nWe conclude that appellant is correct in urging that the trial court took an overly active part in these proceedings from the side of the prosecution and when that occurs the trial judge loses at least the appearance of impartiality which is essential under our system. Clearly, the trial judge became impatient and irritated with the somewhat equivocal answers of appellant\u2019s mother, but to suggest on such, slender grounds that she was just about to be put in jail resulted in an intimidation of the witness to no discernible purpose. We think she could have been admonished to answer truthfully and responsively without the unveiled threat of being taken \u201cupstairs.\u201d Still, this interchange in the record might not be enough on its own to lead us to the result reached, but when the other segment is examined, there is enough to sway the balance. That portion of the quoted section reflects that even though the State\u2019s petition for revocation (prior to the amendments) said nothing about use of alcohol, the court on its own interrogation went into the matter in depth. But the telling point is the comment by the court:\nBY THE COURT: Mr. Davis, you can call all the witnesses you want, but I cannot sanction this type of conduct and try to maintain a probation department and provisions with the hope of rehabilitation when one of the things that has come up is public drunkenness. (T. p. 8)\nIt seems clear that when a trial judge, at the outset of a hearing for any purpose, states to either side words to the effect \u2014 \u201cyou may call all the witnesses you want, but\u2014 \u201d, that a set of mind is present which cannot be reconciled with the proposition that the trial court is committed to hear all relevant, credible evidence weighing it and arriving at a judicious result.\nWe find this observation to be very closely related to the comment in Burrows v. Forrest City, 260 Ark. 712, 543 S.W. 2d 488 (1976) cited by the appellant. In Burrows, the appellant filed a motion for the trial judge to recuse himself from hearing on the motion for revocation on the ground that the judge had told an attorney that appellant should \u201cbring his toothbrush with him,\u201d implying that he would go to jail if found guilty. The trial court denied the motion. In reversing the denial of the motion, the Arkansas Supreme Court quoted language from an earlier case, Farley v. Jester, 257 Ark. 686, 520 S.W. 2d 200 (1975):\nHowever, court proceedings must not only be fair and impartial \u2014 they must also appear to be fair and impartial.\nWe think this language is clearly applicable to the case at bar. Although we do not make any retrospective judgments on the impartiality of the trial court itself and keeping in mind the rule of law that suspended sentences and also their revocation are within the sound judicial discretion of the trial court [Ark. Stat. Ann. \u00a7\u00a7 43-2314 and 43-2326 (Repl. 1977); Gross v. State, 240 Ark. 926, 403 S.W. 2d 75 (1966)], we think that the trial court\u2019s own cross-examination of the witness and its demonstrated impatience and irritation in response to the witness\u2019 statements gave the \u201cappearance\u201d ofbias. Thus, where the trial judge sits as a finder of fact, the appearance of fairness in trial proceedings becomes even more important. Burrows, supra.\nWe are troubled too, with the matter of fact way that the appellant\u2019s drinking problem was treated as if it were easily controllable. Certainly, the trial judge was striving to relieve the community as well as the appellant of the problems resulting from the appellant\u2019s use of alcohol, a commendable objective, but he seems to have ignored the fact that chronic alcoholism is compulsive or even disease-based, according to respectable authority, and thus to simply say to an individual under a suspended sentence, if alcoholism is the problem, \u2018 \u2018if you drink you may be sent to the penitentiary\u2019 \u2019 is an over simplification of cause and effect; a better method, we believe, where facilities are available, is to direct the defendant to attend an alcohol abuse program with reasonable consequences if he disobeys the conditions.\nWe have reached the conclusion that the trial judge should have recused himself, in part in the belief that the reinstatement of the entire five year original sentence under the totality of the facts and circumstances of this case was severe. Understandably, the trial court may have felt personally affronted by the appellant\u2019s failure to comply with the conditions of his suspension, but the end result is that the record suggests that the appearance of fairness is lacking.\nReversed and remanded with instructions to recuse.", "type": "majority", "author": "M. Steele Hays, Judge." } ], "attorneys": [ "James E. Davis, for appellant.", "Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Willie ROSS v. STATE of Arkansas\nCA CR 79-70\n593 S.W. 2d 475\nOpinion delivered January 16, 1980\nReleased for publication February 6, 1980\nJames E. Davis, for appellant.\nSteve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee." }, "file_name": "1027-01", "first_page_order": 1087, "last_page_order": 1094 }