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KELLENSWORTH v. STATE

May 17, 1982

JOHN H. KELLENSWORTH, JR.
V.
STATE OF ARKANSAS



Appeal from Pulaski Circuit Court, Fourth Division; Lowber Hendricks, Judge; affirmed.

SYLLABUS BY THE COURT

1. TRIAL - DENIAL OF MOTION TO DISMISS - FILING OF NOTICE OF APPEAL - JURISDICTION OF LOWER COURT TO CONTINUE TRIAL. - Where there has been, not a final judgment, but only the denial of a motion to dismiss, followed by the filing of a notice of appeal, the case is still pending in the court below and may proceed to trial unless the appellate court issues a temporary writ of prohibition or takes some similar action.

2. JURORS - JURORS NEED NOT BE TOTALLY IGNORANT OF FACTS - ABILITY TO RENDER VERDICT BASED ON EVIDENCE SUFFICIENT. - There is no requirement that jurors be totally ignorant of the facts involved; it is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented at court.

3. EVIDENCE - POLICE OFFICERS' DESCRIPTION OF RAPE PROSECUTRIX'S IDENTIFICATION AT LINE-UP OF HER ATTACKER - ADMISSIBILITY. - It is permissible under the Uniform Rules of Evidence to allow police officers to describe a rape prosecutrix's identification at a line-up of her alleged attacker under certain circumstances.

4. EVIDENCE - ATTEMPT TO FABRICATE EVIDENCE - ADMISSIBILITY - EVIDENCE OF GUILT. - A party's attempt to fabricate evidence is admissible, not merely as an admission under Uniform Evidence Rule 801(d)(2), but as proof relevant to show the party's own belief that his case is weak; furthermore, fabrication of evidence of innocence is cogent evidence of guilt.

The opinion of the court was delivered by: George Rose Smith, Justice.

The appellant Kellensworth [276 Ark Page 128]

was found guilty of three felonies committed during a single criminal episode on June 16, 1979. The jury fixed the punishment at a 50-year term and a $10,000 fine for rape, a 5-year term for aggravated robbery, and a 5-year term for burglary. Four points for reversal are presented.

It is first argued that the court below had no jurisdiction to try the case, because a notice of appeal to this court had been filed after the trial judge denied a defense motion to dismiss on the ground of double jeopardy. The motion to dismiss was wholly without merit, as we indicated with respect to a similar motion filed by this same appellant in a different case. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). In the case at bar the motion to dismiss was filed less than two weeks before the scheduled date of trial. When the motion was denied, counsel filed a notice of appeal, lodged a partial transcript in this court, and insisted in the trial court, without success, that the court no longer had jurisdiction to try the case as scheduled.

The trial judge correctly denied the motion to postpone the trial for want of jurisdiction. It is true that after a trial court enters a final judgment disposing of a case on its merits, the docketing of an appeal in this court terminates the trial court's jurisdiction to reconsider the case. See Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968); Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958). But where, as here, there has been not a final judgment but only the denial of a motion to dismiss, the case is still pending in the court below and may proceed to trial unless this court issues a temporary writ of prohibition or takes some similar action. No such stay was issued in the present case.

Second, it is argued that the trial judge should have sustained the defendant's challenges for cause with respect to eight prospective jurors. It appears that during some period of time preceding Kellensworth's arrest about ten separate rapes had been committed in the southwest section of Little Rock. Before anyone had been identified as the perpetrator of any of the crimes, the police and the news media referred to the offender as the "southwest rapist." The succession of crimes received wide publicity. Apparently [276 Ark Page 129]

when Kellensworth was taken into custody the police concluded he was the southwest rapist. Perhaps their conclusion was reported in the press. The record is not entirely clear about these matters.

During the individual voir dire of the veniremen it was brought out that eight of them had heard or read enough about the multiple rapes to suppose that Kellensworth was or might be the southwest rapist. None of those challenged for cause, however, were shown to have formed an opinion about Kellensworth's possible guilt or to possess anything except more or less vague information about the series of crimes and about accusations that may have been made. All of the eight veniremen stated in substance that they could lay aside what they had heard and try the case upon the evidence heard in the courtroom. The defense used seven of its twelve peremptory challenges to excuse the first seven of the challenged veniremen, but the eighth one became a member of the jury after the defense had exhausted its challenges.

The trial judge was right in refusing to excuse the jurors for cause. The Supreme Court has recognized the difficulty encountered in the selection of a jury to try a case that has been the subject of much discussion in the press. The Court holds that there is no requirement that jurors be totally ignorant of the facts involved: "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented at court." Irvin v. Dowd, 366 U.S. 717 (1961), which we followed in Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied 449 U.S. 1057 (1980). Here we find no violation of the principles announced in those cases. The appellant relies primarily on Glover v. State, 248 Ark. 1260, 455 ...


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