{ "id": 862748, "name": "Nathan ELLIOTT v. STATE of Arkansas", "name_abbreviation": "Elliott v. State", "decision_date": "1998-12-17", "docket_number": "CR 98-373", "first_page": "387", "last_page": "394", "citations": [ { "type": "official", "cite": "335 Ark. 387" }, { "type": "parallel", "cite": "984 S.W.2d 362" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "283 Ark. 317", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879995 ], "weight": 5, "year": 1984, "pin_cites": [ { "parenthetical": "court reversed and remanded for new trial where trial court's clerk at commencement of proceeding improperly read original indictment that contained two theft counts and trial court denied defendant's mistrial motion" }, { "parenthetical": "court reversed and remanded for new trial where trial court's clerk at commencement of proceeding improperly read original indictment that contained two theft counts and trial court denied defendant's mistrial motion" }, { "page": "318" }, { "page": "830", "parenthetical": "where, at beginning of trial, the court clerk read to the jury the aggravated-robbery indictment, which included two additional charges of theft by receiving pending against Allard in a separate case" } ], "opinion_index": 0, "case_paths": [ "/ark/283/0317-01" ] }, { "cite": "316 Ark. 373", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907765 ], "weight": 3, "year": 1994, "pin_cites": [ { "parenthetical": "such an amendment authorizes a more severe punishment, not by creating an additional offense or an independent crime, but by affording evidence to increase the final punishment in the event the defendant is convicted" }, { "parenthetical": "such an amendment authorizes a more severe punishment, not by creating an additional offense or an independent crime, but by affording evidence to increase the final punishment in the event the defendant is convicted" }, { "page": "379-380" } ], "opinion_index": 0, "case_paths": [ "/ark/316/0373-01" ] }, { "cite": "313 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914686 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0198-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-501", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1995, "pin_cites": [ { "page": "(c)(l) and (2)" }, { "page": "(c)(l) and (2)" }, { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "324 Ark. 310", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159948 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0310-01" ] }, { "cite": "612 S.W.2d 118", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1174843 ], "year": 1981, "pin_cites": [ { "parenthetical": "violation of the Doyle post-arrest-silence doctrine was so egregious that it could not be harmless" } ], "opinion_index": 0, "case_paths": [ "/ark/272/0099-01" ] }, { "cite": "212 Ark. 99", "category": "reporters:state", "reporter": "Ark.", "year": 1981, "pin_cites": [ { "parenthetical": "violation of the Doyle post-arrest-silence doctrine was so egregious that it could not be harmless" } ], "opinion_index": 0 }, { "cite": "284 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878675 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "violation of Doyle post-arrest-silence doctrine was so flagrant that it could not be considered harmless error" }, { "parenthetical": "violation of Doyle post-arrest-silence doctrine was so flagrant that it could not be considered harmless error" } ], "opinion_index": 0, "case_paths": [ "/ark/284/0403-01" ] }, { "cite": "331 Ark. 12", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604780 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0012-01" ] }, { "cite": "334 Ark. 596", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655536 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0596-01" ] }, { "cite": "375 U.S. 585", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "291 Ark. 22", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872666 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "28" }, { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ark/291/0022-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "239 Ark. 836", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730849 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/239/0836-01" ] }, { "cite": "240 Ark. 779", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727490 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/240/0779-01" ] }, { "cite": "18 U.S.C. \u00a7 2511", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1982, "pin_cites": [ { "page": "(2)(c)" } ], "opinion_index": 0 }, { "cite": "771 S.W.2d 16", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1889841, 1888346, 1888363 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0605-01", "/ark/299/0001-01", "/ark/299/0007-01" ] }, { "cite": "299 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888363 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0007-01" ] }, { "cite": "867 S.W.2d 442", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1910560 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0303-01" ] }, { "cite": "315 Ark. 297", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910523 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0297-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-60-120", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 0 }, { "cite": "20 Ark. App. 72", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6646038 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/20/0072-01" ] } ], "analysis": { "cardinality": 735, "char_count": 12634, "ocr_confidence": 0.755, "pagerank": { "raw": 7.679035615260092e-08, "percentile": 0.45255958938146584 }, "sha256": "0efee60f90ea5bf9b265201753339a9ca73a159f9460a1480a12e3b7d67407d0", "simhash": "1:5248890d72ebd690", "word_count": 2079 }, "last_updated": "2023-07-14T15:28:04.221219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Nathan ELLIOTT v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant Nathan Elliott appeals his convictions on two counts of rape of his stepdaughter, C.Q., who was twelve and thirteen years old at the time of the crimes. Elliott was sentenced to two life terms to be served consecutively. He raises three points for reversal.\nElliott first contends that the trial court erred when it denied his motion to suppress a taped recording of Elliott\u2019s long-distance telephone conversations with C.Q. His wife, Alma, had become suspicious of his relationship with C.Q., and she decided to monitor and tape telephone calls he made to the couple\u2019s home when he was working in Texas. The tape revealed Elliott had had sex with C.Q., and upon learning of this fact, Alma reported the matter to the police.\nIn arguing Alma\u2019s tape should have been excluded at trial, Elliott relies on the case of Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987). He also asserts that Ark. Code Ann. \u00a7 5-60-120 (Repl. 1993) precluded the tape\u2019s introduction. Section 5-60-120 makes it unlawful for a person to intercept and record a telephone conversation between two parties unless that person is a party to the communication, or one of the parties has given prior consent to such interception and recording. Elliott claims that because neither he nor C.Q. authorized Alma to record their telephone conversation, Alma\u2019s tape was inadmissible. The statute, however, does not proscribe the admissibility of an unlawful recording, and Elliott offers no authority providing that an unlawful taping by a private citizen of parties\u2019 electronic communication is inadmissible. In fact, we have stated the general rule is that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals; the corollary to this proposition is that the exclusionary rule is not intended as a restraint upon the acts of private individuals. Hill v. State, 315 Ark. 297, 867 S.W.2d 442 (1993); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989).\nThe Mock decision that Elliott cites is an unavailing defense as well. In that case, the court of appeals considered a federal statute, 18 U.S.C. \u00a7 2511(2)(c) (1982), when deciding whether police officers\u2019 recording of an informant\u2019s conversation with Mock was unlawful and therefore inadmissible. Once again, that federal law concerns the placement of restraints upon government or state actors, not private individuals. Specifically, \u00a7 2511 (2) (c) in relevant part provides that it is not unlawful for a person acting under color of law to intercept an electronic communication where such person is either a party to the communication or one of the parties gave the person prior consent to intercept the communication. As previously stated, Alma was in no way a state actor, and her independent unlawful decision to intercept and record Elliott\u2019s phone call to C.Q. was not excludable under federal or state law.\nElliott next argues the trial court erred in denying a mistrial after the state mentioned Elliott\u2019s prior felony conviction in its opening statement. The prosecutor\u2019s remarks were as follows:\nOne of the factors that you\u2019re going to hear testimony about is that Nathan Elliott has been before the law before. He was convicted in Texas of assault and bank robbery. We have a certified copy of his conviction.\nElliott\u2019s counsel promptly objected, and the trial court sustained the objection. Elliott then moved for a mistrial which the trial court denied. The prosecutor explained that, because Elliott was charged with being a habitual offender, the State could reference the Texas conviction, and the conviction was also proper to show Alma\u2019s and C.Q.\u2019s state of mind and why they feared Elliott. The trial court correctly rejected the prosecutor\u2019s explanations, but immediately admonished the jury not to consider Elliott\u2019s prior trouble with the law. At trial, and in this appeal, Elliott argues the admonishment was insufficient to remove the prejudice the remark had on the jury. In support of his argument, Elliott directs the court to Francis v. City of Benton, 240 Ark. 779, 402 S.W.2d 110 (1966), and Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965), where prosecuting attorneys mentioned the defendants\u2019 prior convictions in their opening remarks at trial, and this court reversed, holding the remarks amounted to prejudicial error and a denial of due process. See also Allard v. State, 283 Ark. 317, 675 S.W.2d 829 (1984) (court reversed and remanded for new trial where trial court\u2019s clerk at commencement of proceeding improperly read original indictment that contained two theft counts and trial court denied defendant\u2019s mistrial motion).\nHere, the State appears to concede that the prosecutor\u2019s remarks constituted error, but argues that the error was harmless because of the overwhelming evidence of Elliott\u2019s guilt. As previously discussed, the jury heard Elliott\u2019s own voice via Alma\u2019s tape recording wherein Elliott admitted having had sex with C.Q. C.Q. corroborated Elliott\u2019s admissions by testifying to the details of when, how, and where Elliott and C.Q. had sexual intercourse. C.Q.\u2019s sister, K.Q., also testified that Elliott had sexual conduct with her beginning when K.Q. was eight years old. In addition, Nurse Pamela Speed had performed a gynecological exam of C.Q. and confirmed C.Q. had been penetrated numerous times. Elliott offered no evidence to rebut the State\u2019s evidence. The pertinent issue is whether the State\u2019s evidence rendered the State\u2019s remarks harmless.\nThe foundation for the harmless-error rule in cases involving federal constitutional rights is Chapman v. California, 386 U.S. 18 (1967), which this court discussed in Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987). The Numan court quoted the following relevant passage from the Chapman decision:\nIn fashioning a harmless constitutional error, we must recognize that harmless error can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one.\nWe prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 585. There we said, \u201cthe question is whether there is a reasonable possibility that the audience complained of might have contributed to the conviction.\u201d\nWe, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.\nOur court has considered the application of the Chapman harmless-constitutional-error rule in numerous cases and, in doing so, has held that we can declare that the error is harmless beyond a reasonable doubt. Numan, 291 Ark. 22, 28, 722 S.W.2d 276, 279; Efurd v. State, 334 Ark. 596, 976 S.W.2d 928 (1998); Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). But see Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985) (violation of Doyle post-arrest-silence doctrine was so flagrant that it could not be considered harmless error); Ward v. State, 212 Ark. 99, 612 S.W.2d 118 (1981) (violation of the Doyle post-arrest-silence doctrine was so egregious that it could not be harmless).\nIn the instant case, even assuming the best intentions on the prosecutor\u2019s part, he deliberately told the jury before presenting any evidence during the guilt phase of the trial that Elliott had been convicted of assault and bank robbery. Thus, from the commencement of the State\u2019s case, the State labeled Elliott a habitual criminal, thereby removing one of the constitutional benefits afforded all defendants in a criminal case \u2014 a right to a fair and impartial jury. See Allard, 283 Ark. at 318, 675 S.W.2d at 830 (where, at beginning of trial, the court clerk read to the jury the aggravated-robbery indictment, which included two additional charges of theft by receiving pending against Allard in a separate case). Although the trial judge here tried to admonish the jury in an attempt to cure the error, this is not the sort of error that can be so cured. See id. We are mindful of this court\u2019s decision in Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996), where the State\u2019s opening statement included a reference to \u201cother offenses in another county,\u201d and this court held prejudicial error did not occur because overwhelming evidence existed as to Stanley\u2019s guilt. There, however, the State never specified Stanley\u2019s other charges or offenses, so we held that an admonition could have ameliorated the prosecutor\u2019s reference. Here, like the situation in Allard, the jury was told of Elliott\u2019s specific felony convictions and the jury was left with no doubt from the time the trial commenced that defendant Elliott was a habitual felon. Because the State\u2019s error was egregious at the outset of the trial, we cannot conclude beyond a reasonable doubt that the prosecutor\u2019s remark did not contribute to Elliott\u2019s conviction. Thus, we reverse and remand on this point.\nIn his third point, Elliott urges that the trial court erred in allowing the State to amend its information at trial during the sentencing phase and before the punishment issue was submitted to the jury. On June 19, 1996, the State charged Elliott as a habitual offender with more than one, but less than five felony convictions. Later, on February 18, 1997, the prosecutor wrote Elliott\u2019s first attorney, notifying him that the State would seek an enhanced sentence based upon Elliott\u2019s conviction for assault and bank robbery because that conviction, which is analogous to Arkansas\u2019s aggravated robbery crime, constitutes a prior violent crime as defined in Ark. Code Ann. \u00a7 5-4-501(c)(l) and (2) (Supp. 1995). The State did not actually move to amend its information to incorporate this change until the sentencing phase of the trial on August 4, 1997.\nIn Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993), we reiterated the well-setded law that an information may be amended after a jury has been sworn but before the case has been submitted to it, as long as the amendment does not change the nature or degree of the crime charged, if the accused is not surprised. The fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense. Id. See also Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994) (such an amendment authorizes a more severe punishment, not by creating an additional offense or an independent crime, but by affording evidence to increase the final punishment in the event the defendant is convicted).\nHere, both Elliott and his counsel knew of the Texas felony conviction and, while Elliott\u2019s second counsel asserts that he was never apprised of the prosecutor\u2019s February 18, 1997 letter informing the defense that the State intended to amend the habitual aspect of its information, it was not the fault of the State. Nonetheless, Elliott and his second counsel were prepared to defend the original habitual-offender charge, and his arguments ring hollow in suggesting he was surprised by the substance of the State\u2019s amendment. In addition, Elliott\u2019s second counsel was notified of the planned amendment at a June 9, 1997 pretrial hearing. As was the case in Baumgarner, Elliott simply failed to show any unfair surprise in the State\u2019s rewording and amending of its information. See 316 Ark. at 379-380.\nFor the reasons set forth above, we reverse and remand.\nThe record on this point is confusing, as the record reflects the prosecutor stated Elliott was convicted of assault and bank robbery, but the Judgment and Commitment Order shows a conviction for assault in bank robbery. In addition, the State amended the information to charge Elliott as a habitual offender with at least one serious felony under Ark. Code Ann. \u00a7 5-4-501(c)(l) and (2), rather than as a habitual offender with at least one but less than four felonies under Ark. Code Ann. \u00a7 5-4-501 (a).", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Bruce J. Bennett, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Nathan ELLIOTT v. STATE of Arkansas\nCR 98-373\n984 S.W.2d 362\nSupreme Court of Arkansas\nOpinion delivered December 17, 1998\n[Petitions for rehearing denied January 28, 1999.]\nBruce J. Bennett, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0387-01", "first_page_order": 409, "last_page_order": 416 }