{ "id": 8719348, "name": "Noah Wayne RUSSELL v. STATE of Arkansas", "name_abbreviation": "Russell v. State", "decision_date": "1986-02-24", "docket_number": "CR 86-13", "first_page": "255", "last_page": "257", "citations": [ { "type": "official", "cite": "288 Ark. 255" }, { "type": "parallel", "cite": "704 S.W.2d 161" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "380 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] } ], "analysis": { "cardinality": 310, "char_count": 4146, "ocr_confidence": 0.946, "pagerank": { "raw": 1.0052889892850951e-07, "percentile": 0.540232075306321 }, "sha256": "8b66139db42093bcdb207d229111fb0ec50ffba207677cdafdfc18c0fd1bbc40", "simhash": "1:16bef0aa4b2c16b6", "word_count": 717 }, "last_updated": "2023-07-14T22:45:27.788923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle, J., not participating." ], "parties": [ "Noah Wayne RUSSELL v. STATE of Arkansas" ], "opinions": [ { "text": "George Rose Smith, Justice.\nThe appellant was charged with theft by receiving, was found guilty, by Special Judge Laster sitting without a jury, and was sentenced to three years\u2019 imprisonment. The one argument for reversal is that the trial judge was in error in taking into account Russell\u2019s failure to testify in reaching the conclusion that Russell was guilty. The Court of Appeals transferred the case to us.\nThe State key witness was Mark Goodrum, but Judge Laster said when both sides had rested that he was highly suspicious of Goodrum\u2019s testimony. He went on to say: \u201cThere is a great deal here that is unexplained to me. In fact, the case should have been more thoroughly developed. . . . My opinion of Mr. Goodrum\u2019s testimony does not negate culpability of Mr. Russell absent an explanation. We used to call it possession of stolen property. And if you are in possession of stolen property without a reasonable explanation, which I have heard none, this does not give the Court but one alternative, and that is to find him guilty. Now, I am going to order a pre-sentence report.\u201d The judge then announced his finding of guilt and concluded by saying to Russell: \u201cAnd you will report to the probation officer to complete a pre-sentence report. One thing that troubles me about you is that you didn\u2019t take the witness stand. Now, that is great tactics before a jury, but it is almost useless before a trial lawyer. And this is the reason I am not going to sentence you today. Be back on May 20th at 8:30 in the morning.\u201d\nWe are unable to say that the judge\u2019s comments about the accused\u2019s failure to testify were directed only to the need for a pre-sentence report. The remarks also indicated that the judge felt that the accused\u2019s silence left the court with no alternative to a finding of guilt. In Griffin v. California, 380 U.S. 609 (1965), the trial judge had instructed the jury that if there was evidence of facts against the defendant which he could reasonably be expected to deny or explain because of facts within his knowledge, the jury might take his failure to testify into consideration as tending to indicate the truthfulness of such evidence. In reversing the conviction the Supreme Court said:\nFor comment on the refusal to testify is a remnant of the \u201cinquisitorial system of criminal justice,\u201d . . . which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. . . . What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.\nAlthough the Griffin case was an appeal from a jury trial, what the court condemned was a penalty \u201cimposed by courts\u201d; so the Court\u2019s reasoning applies to the present situation. When we view together the trial judge\u2019s references to there being a great deal that was unexplained, to the need for a more thorough development of the proof, to the court\u2019s having only the alternative of a finding of guilt, and to a failure to take the witness stand as being great tactics before a jury but not before a trial lawyer, we cannot fairly say that Russell\u2019s election not to testify was not a factor in the judge\u2019s determination of guilt. We realize, of course, that jurors and trial judges and appellate judges do consider the silence of an accused \u2014 that is something no one could expel from his mind \u2014 but when that consideration is made a matter of record, it cannot be disregarded.\nThe State argues that no objection was made to the court\u2019s remarks, but obviously an objection would have been futile. A bell cannot be unrung, nor ink erased from the snow. For that reason it goes almost without saying that a retrial must be before a different judge.\nReversed and remanded.\nPurtle, J., not participating.", "type": "majority", "author": "George Rose Smith, Justice." } ], "attorneys": [ "Grant & Berry, by: Sandra T. Berry, for appellant.", "Steve Clark, Att\u2019y Gen., by: Joel O. Huggins, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Noah Wayne RUSSELL v. STATE of Arkansas\nCR 86-13\n704 S.W.2d 161\nSupreme Court of Arkansas\nOpinion delivered February 24, 1986\nGrant & Berry, by: Sandra T. Berry, for appellant.\nSteve Clark, Att\u2019y Gen., by: Joel O. Huggins, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0255-01", "first_page_order": 283, "last_page_order": 285 }