{ "id": 1882757, "name": "Graves HARRISON, Jr. v. STATE of Arkansas", "name_abbreviation": "Harrison v. State", "decision_date": "1990-09-24", "docket_number": "CR 90-98", "first_page": "247", "last_page": "253", "citations": [ { "type": "official", "cite": "303 Ark. 247" }, { "type": "parallel", "cite": "796 S.W.2d 329" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-90-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "299 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888403 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0144-01" ] }, { "cite": "297 Ark. 324", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891403 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/297/0324-01" ] }, { "cite": "702 S.W.2d 411", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1876566 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/287/0468-01" ] }, { "cite": "287 Ark. 473", "category": "reporters:state", "reporter": "Ark.", "year": 1986, "opinion_index": 0 }, { "cite": "295 Ark. 456", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893716 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0456-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-1-110", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "271 Ark. 616", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756098 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0616-01" ] }, { "cite": "290 Ark. 54", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873680 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0054-01" ] }, { "cite": "299 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888323 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0123-01" ] }, { "cite": "299 Ark. 55", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888371 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0055-01" ] }, { "cite": "273 Ark. 185", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718140 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/273/0185-01" ] }, { "cite": "278 Ark. 542", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748207 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0542-01" ] }, { "cite": "612 S.W.2d 98", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1174846 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0005-01" ] }, { "cite": "212 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "year": 1981, "opinion_index": 0 }, { "cite": "299 Ark. 356", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888386 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0356-01" ] } ], "analysis": { "cardinality": 558, "char_count": 9214, "ocr_confidence": 0.892, "pagerank": { "raw": 2.3767147806288044e-07, "percentile": 0.7964049255381298 }, "sha256": "4c0a5cdce2c70ae562573279af2bc120c263f021fef14aa2038e70a869566e0c", "simhash": "1:5bfcada47786d7b8", "word_count": 1559 }, "last_updated": "2023-07-14T18:41:20.399175+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Graves HARRISON, Jr. v. STATE of Arkansas" ], "opinions": [ { "text": "David Newbern, Justice.\nGraves Harrison, Jr., the appellant, was convicted of eight counts of theft. Harrison was the manager of the Hope Grain Drying Cooperative. Testimony presented to the jury showed that Harrison engaged with others in a scheme whereby he made out eight checks on the cooperative supported by false rice and soybean receipt entries. The checks were cashed by persons who received a percentage of the money, and Harrison received the remainder. The jury found him guilty on each count and recommended a sentence, which the court imposed, of ten years imprisonment and a fine of $ 15,000 on each count. The decision is affirmed. Additional facts will be discussed as we consider each of Harrison\u2019s nine points of appeal.\n1. Discovery failure; ineffective assistance\nHarrison\u2019s trial counsel filed a discovery motion, and the prosecution responded by stating an open file policy. The lawyer viewed the file and announced to the court that he was satisfied with the prosecution\u2019s response to his request. There was thus no objection at the trial to the prosecution\u2019s response to the discovery request. We do not consider on appeal an issue not presented to the trial court. Willis v. State, 299 Ark. 356, 772 S.W.2d 584 (1989).\nHarrison\u2019s appellate counsel argues, without citation of authority, that Harrison is not bound by his trial counsel\u2019s statement because trial counsel had sought to be relieved of the case. Earl v. State, 212 Ark. 5, 612 S.W.2d 98 (1981), is cited for the proposition that the open file policy is not a satisfactory discovery response. There we pointed out that such a policy may save time for the prosecution and defense but it may hinder a reviewing court\u2019s effort to know precisely what was furnished to the defense and thus whether Ark. R. Crim. P. 17.1 was followed.\nThe argument here boils down to a contention that the conviction should be reversed because trial counsel was ineffective, a contention which cannot be raised for the first time on direct appeal of the judgment. Allegations of ineffective assistance of counsel may not be raised for the first time on appeal. Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). In those cases we pointed out that the proper method of raising the issue of ineffective assistance of counsel was spelled out in Ark. R. Crim. P. 37. It is now found in Rule 36.4. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989).\n2. Denial of continuance\nHarrison was represented by appointed counsel at the trial. On the day the trial was to begin, appointed counsel moved for a continuance on the ground that Harrison had arranged a loan from a friend and wished to hire other counsel. The court inquired whether the appointed counsel was ready to try the case. He said he was, and the motion was denied as untimely.\nOn appeal Harrison argues he was denied his right to counsel guaranteed by the Sixth Amendment to the United States Constitution. That argument was not made to the trial court, and thus we will not consider it. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989).\nDenial of continuance is not error unless it amounts to an abuse of discretion. Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). Once competent counsel has been obtained, the delay involved in changing counsel must be balanced against the public\u2019s interest in the prompt dispensation of justice. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). We find no abuse of discretion.\n3. The number of offenses\nA motion was made on behalf of Harrison to dismiss all but one of the counts of the information. The stated ground was that the obtaining of money through the unauthorized checks was a \u201ccontinuing course of conduct\u201d and amounted to only one offense, citing Ark. Code Ann. \u00a7 5-1-110 (1987). The statute prohibits conviction of more than one offense if, \u201c[t]he conduct constitutes an offense defined as a continuing course of conduct and the defendant\u2019s course of conduct was uninterrupted. . . .\u201d In response the prosecution argued that each check represented a separate event and that, but for two of them, each was written on a different date. The court inquired whether the two checks written on the same date were cashed at different times, and the response of Harrison\u2019s counsel was that they were \u201cseparate events.\u201d\nOn appeal, Harrison\u2019s argument differs materially from that accompanying his motion. He now contends that because the checks were cashed on three separate dates, there should have been three charges rather than eight. The material shift is from emphasis on a continuing course in misusing the checks to the cashing of them on only three dates. A party may not change the ground of objection from the one made at trial to a different one on appeal. Taylor v. State, supra; Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988); Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (Supp. opinion on denial of rehearing, 1986).\n4. Appointment of experts\nHarrison asked the court to appoint a certified public accountant and a person familiar with managing a grain drying business to assist him in investigating his case. The motion was denied, but not until the court had ascertained that there would be no testimony about complicated grain drying operations or financial transactions. Harrison acknowledges that the decision whether to grant the request was within the discretion of the trial court, but he argues the denial of the motion was prejudicial because the request was a reasonable one.\nWe can find nothing about this case requiring the testimony of such experts, and thus we find no abuse of discretion.\n5. Biasing the jury\nThe judge asked prospective jurors if they would be embarrassed if the decision turned out to be contrary to the testimony of a witness or witnesses they might meet on the street the day after the trial. He asked, \u201cIs there any one of you who are acquainted with one of these witnesses who feels like that knowledge is likely to cause you to be prejudiced for or against the state because of that knowledge?\u201d\nHarrison contends the question reflected a bias of the court toward the prosecution case. Even if this argument could be perceived as having some merit, we would ignore it, as no objection to the court\u2019s inquiry was made at the trial. Smart v. State, 297 Ark. 324, 761 S.W.2d 915 (1989).\n6. Verdict form\nThe argument on this point is that, instead of stating the allowable sentence for each offense in the statutory language of \u201cnot less than five (5) years nor more than twenty (20) years,\u201d the form contained a blank line with \u201c(5-20 years)\u201d beneath it. Instead of providing for a fine \u201cnot exceeding fifteen thousand dollars ($15,000)\u201d the form contained a blank line and \u201c(up to $15,000)\u201d beneath it.\nHere again, even if there were some merit to this point, no such objection was made at the trial, and we will not consider the argument.\n7. Denial of new trial motion\nAfter the jury returned its verdict, Harrison\u2019s counsel sought to inquire about an alleged friendship between the jury foreman and the chairman of the board of the cooperative. The court refused to permit further voir dire of the juror.\nIn making the objection, Harrison\u2019s counsel stated that information had come to him \u201cduring the trial\u201d that the juror might be biased. The objection was thus clearly untimely and thus cannot be the basis for reversal. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).\n8. Refusal to require pre-sentencing report\nThe court denied Harrison\u2019s request to have a presentencing report prepared so that the court could learn of Harrison\u2019s clean record. We need only point out here that there is nothing in the statute on pre-sentencing reports, Ark. Code Ann. \u00a7 16-90-105(b) (1987), which could be considered as making them mandatory. Subsection (a) of the statute provides that after a finding or verdict of guilty has been returned, sentencing may occur. Subsection (b) provides that the court may receive a presentencing report or evidence in mitigation. Clearly the decision whether to permit such evidence is within the discretion of the judge, and we find no abuse in these circumstances.\n9. Error in the commitment order\nSome confusion occurred when the judge pronounced the sentence. However, it was satisfactorily resolved when the judge clearly stated that he meant Harrison to have consecutive ten-year sentences on the first four convictions and consecutive sentences on the other four as well, but that the two effective 40-year terms were to run concurrently to each other. The sentence was thus to total 40 years.\nThe original commitment order provided for an 80-year sentence. Both the state and Harrison recognized that the order was in error. On September 10, 1990, we granted the state\u2019s motion to supplement the record with a corrected commitment order stating that the sentence to imprisonment is for 40 years.\nAffirmed.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Honey & Honey, P.A., for appellant.", "Steve Clark, Att\u2019y Gen., by: Ann Purvis, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Graves HARRISON, Jr. v. STATE of Arkansas\nCR 90-98\n796 S.W.2d 329\nSupreme Court of Arkansas\nOpinion delivered September 24, 1990\n[Rehearing denied October 29, 1990.]\nHoney & Honey, P.A., for appellant.\nSteve Clark, Att\u2019y Gen., by: Ann Purvis, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0247-01", "first_page_order": 285, "last_page_order": 291 }