ELLIOTT HAROLD FINCH, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-13-3206]
HONORABLE JAMES LEON JOHNSON, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
F. WYNNE, Associate Justice
Harold Finch, Jr., was found guilty by a Pulaski County jury
of aggravated residential burglary, aggravated assault on a
family or household member, and first-degree terroristic
threatening. An enhancement for use of a firearm was applied
pursuant to Arkansas Code Annotated section 16-90-120 (Repl.
2016), and appellant was sentenced as a habitual offender
under Arkansas Code Annotated section 5-4-501 (Repl.
2013).Appellant received a sentence of life
imprisonment plus fifteen years in the Arkansas Department of
Correction, plus a $10, 000 fine. On appeal, he argues that
the circuit court erred by denying his requests to represent
himself at trial and abused its discretion by denying his
motion for mistrial based on a juror, during guilt-innocence
phase deliberations, looking up something with his cell phone
and sharing that information with other jurors. We affirm.
was charged with kidnapping, aggravated residential burglary,
possession of firearms by certain persons,  aggravated
assault on a family or household member, and first-degree
terroristic threatening for events that took place at his
former girlfriend's residence in Jacksonville on August
22 and 23, 2013. At trial in November 2016, Roshandra Nwozuzu
(formerly Wesley) testified that appellant is her former
boyfriend and had lived with her and her two children. On
August 4, 2013, after an incident in which he held a
boxcutter to her neck, appellant was given a trespass warning
by the Jacksonville Police Department, advising him to stay
off Ms. Nwozuzu's property. On the night of August 22,
Ms. Nwozuzu returned home with her children and went to her
master bathroom to shower. When she exited the shower,
appellant was pointing a gun at her. Ms. Nwozuzu testified
that appellant threatened to kill her, her children, and
himself if she screamed, and she spent the next several hours
trying to calm him. Early the next morning, she was able to
convince him to let her leave for work. She took her
nine-year-old daughter with her but was unable to wake up her
teenage son, who was taking medication that made him sleep
deeply. After leaving the house, Ms. Nwozuzu immediately
called the police and met officers at a nearby park. The
special-response team was able to use Ms. Nwozuzu's key
to get into her residence and get her son out before alerting
appellant to their presence. Appellant came out of the master
bedroom and was placed under arrest. The State presented the
testimony of officers who found a gun and a magazine under
the bed in the master bedroom and a broken window. Ms.
Nwozuzu's son, Rashaad Nelson, also testified at trial.
jury was unable to reach a verdict on kidnapping, and the
court declared a mistrial on that charge. The jury found
appellant guilty of aggravated residential burglary,
aggravated assault on a family or household member, and
first-degree terroristic threatening. They further found that
he had employed a firearm to commit each of these three
felony offenses. As noted above, appellant received an
aggregate sentence of life plus fifteen years'
imprisonment, as well as a fine. This appeal followed.
first point on appeal, appellant argues that the circuit
court erred in denying his requests to represent himself at
trial. The right of a criminal defendant, pursuant to the
Sixth Amendment to the United States Constitution, to
represent himself at trial was recognized by the Supreme
Court of the United States in Faretta v. California,
422 U.S. 806 (1975). Article 2, section 10 of the Arkansas
Constitution provides that an accused in a criminal
prosecution has the right "to be heard by himself and
his counsel." This court has recognized that the
constitutional right to counsel is a personal right and may
be waived at the pretrial stage or at trial. Pierce v.
State, 362 Ark. 491, 497, 209 S.W.3d 364, 368 (2005). A
defendant may waive the right to counsel and invoke his right
to defend himself pro se provided that (1) the request to
waive the right to counsel is unequivocal and timely
asserted, (2) there has been a knowing and intelligent waiver
of the right to counsel, and (3) the defendant has not
engaged in conduct that would prevent the fair and orderly
exposition of the issues. Id. (citing Mayo v.
State, 336 Ark. 275, 280, 984 S.W.2d 801, 804 (1999)).
Determining whether an intelligent waiver of the right to
counsel has been made depends in each case on the particular
facts and circumstances, including the background, the
experience, and the conduct of the accused. Collins v.
State, 338 Ark. 1, 6, 991 S.W.2d 541, 544 (1999). Every
reasonable presumption must be indulged against the waiver of
fundamental constitutional rights. Id.
appellant asserts that he made two timely and unequivocal
requests to represent himself at trial. Reviewing the record
as a whole, it is clear that appellant was dissatisfied with
his appointed counsel. What is less clear is whether he made
an unequivocal waiver of his right to counsel or whether he
had engaged in tactics that would prevent the fair and
orderly exposition of the issues. Appellant began asking for
the appointment of new counsel as far back as September 22,
2015. Appellant first made a request to represent himself at
trial at a hearing on October 19, 2015. In this hearing,
appellant repeatedly stated that he did not want his current
attorney to represent him. While he interspersed his
complaints about his attorney with the statement that he
wanted to represent himself, he also showed himself to be
unwilling or unable to stop talking over other people,
including the judge. And perhaps most importantly, the court
ordered a mental evaluation at the state hospital at this
hearing to determine appellant's fitness to proceed. This
court has held that a trial court cannot determine whether a
waiver of counsel is knowingly and intelligently made when an
examination of a defendant's competency to stand trial
had not yet been made. Mayo v. State, 336 Ark. 275,
283, 984 S.W.2d 801, 806 (1999).
alleges that at a pretrial hearing on March 10, 2016, he
again unequivocally asked to represent himself. This hearing
followed a second mental evaluation at which appellant again
refused to cooperate on the portion of the examination
regarding his mental state at the time of the alleged
offenses, despite this evaluation being done at
appellant's request and under the circuit court's
admonition to cooperate. During this same time, appellant
continued to file various pro se motions in which he
attempted to get the charges against him dismissed for
violation of speedy trial. At the March hearing, appellant
again showed himself to be disruptive.
recognize that the circuit court's inquiry included
irrelevant concerns, such as appellant's level of
education and technical legal knowledge, and the court's
stated basis for denying the request-"the seriousness of
the offenses and the likelihood of [appellant] getting some
serious time"-was invalid. However, on this record we
must conclude that appellant's request was not
unequivocal and that the trial court could have concluded
that appellant had "engaged in conduct that would
prevent the fair and orderly exposition of the issues."
Based on the above, we affirm on this point.
Motion for Mistrial Based on Juror Misconduct
second point on appeal, appellant argues that the circuit
court abused its discretion by denying his motion for
mistrial made after it was discovered, during the
guilt-innocence-phase deliberations, that a juror had used
his cell phone to look up something, and had shared that
information with the other jurors. He argues on appeal that
it was an abuse of discretion for the circuit court to deny
his motion for mistrial without giving him the opportunity to
question the jurors under oath about the extraneous
information. In response, the State argues that the circuit
court did not abuse its discretion in denying the motion for
mistrial because appellant sought to question the jurors
about what was discussed during deliberations, which would
have violated Ark. R. Evid. 606, and "juror misconduct
is appropriately investigated by the court on a motion for
new trial." The State further contends that appellant
failed to meet his burden of proof to show a reasonable
probability of prejudice because he did not call any
witnesses or present further evidence and that a juror
looking up the definition of "hung jury" does not
demonstrate a reasonable possibility of prejudice.
begin by recognizing that a defendant's Sixth Amendment
right to a fair trial before an impartial jury is a
fundamental element of due process. Elmore v. State,
355 Ark. 620, 623, 144 S.W.3d 278, 280 (2004) (citations
omitted). Implicit in the right to an impartial jury trial is
the right to have the jury's verdict be "based
solely on the evidence presented in the case."
Johnson v. State, 31 A.3d 239, 246 (Md. 2011)
(citing Couser v. State, 383 A.2d 389, 397 (Md.
1978); accord Turner v. Louisiana, 379 U.S. 466,
472-73 (1965) ("[T]he 'evidence developed'
against a defendant shall come from the witness stand in a
public courtroom where there is full judicial protection of
the defendant's right of confrontation, of
cross-examination, and of counsel."); Patterson v.
Colorado, 205 U.S. 454, 462 (1907) ("The theory of
our system is that the conclusions to be reached in a case
will be induced only by evidence and argument in open court,
and not by any outside influence, whether of private talk or
made it clear that a mistrial is a drastic remedy and should
be declared when there has been an error so prejudicial that
justice cannot be served by continuing the trial, or when it
cannot be cured by an instruction. Holsombach v.
State, 368 Ark. 415, 246 S.W.3d 871 (2007). The trial
court has wide discretion in granting or denying a motion for
mistrial, and absent an abuse of that discretion, the trial
court's decision will not be disturbed on appeal.
Id. Following an allegation of juror misconduct, the
moving party bears the burden of proving both the misconduct
and that a reasonable possibility of prejudice resulted from
it. Id. We defer to the superior position of the
trial court to evaluate the credibility of the witnesses and
the prejudicial effect of the misconduct, if any.
around the time the court received a note from the jury
asking, "If we do not all agree on guilty or not guilty
on the first page, how do we handle this?" the court was
alerted to the possibility that Juror 4 had looked something
up on his cell phone. The court informed counsel, called that
juror into the courtroom, swore him in, and asked whether he
had used his cell phone to look up something that he did not
understand. The juror testified that he had, in fact, looked
something up, that he had done so "before [he] had even
thought about it" in spite of the court's
instructions,  and that he had shared that information
with the other jurors. Defense counsel moved for a mistrial
and also asked to voir dire the jury to find out what Juror 4
had told them. After hearing lengthy arguments regarding how
to proceed, the trial court ultimately removed Juror 4,
replaced him with an alternate juror, and allowed
deliberations to continue. The court appeared to believe that
it was constrained by Arkansas Rule of Evidence 606(b) from
asking any questions other than what it had asked Juror 4. No
curative instruction was requested or given.
trial, appellant filed a motion for new trial in which he
argued that the jury committed misconduct by considering
outside information, regardless of what information Juror 4
looked up; that the split verdict (hung on kidnapping and
guilty on the other charges) showed a reasonable probability
that the outside information influenced a juror's vote;
and that the court violated his right to substantive due
process by denying his motion for mistrial without allowing
him an opportunity to show prejudice by asking the jurors
what extraneous information they learned. The State responded
that the motion should be denied because it failed to provide
any new information for the court to consider and because
there was no evidence that the extraneous information created
a reasonable probability-not a mere possibility-of prejudice.
The court held a hearing, and after considering the arguments
of counsel, denied the motion for new trial. Appellant later
filed an amended motion for new trial, this time attaching an
affidavit of defense attorney Andrew Thornton stating that he
had contacted Juror 4 and discovered that he had looked up
the definition of "hung jury" during deliberations
at appellant's trial. He told Thornton that he was
"pretty sure" the definition was "[i]f the
jury is not unanimous or is a majority, the judge sends them
back for more deliberations, and if no consensus is made,
there's a mistrial." The juror did not wish to talk
further about the case or sign an affidavit. The trial court
entered an order treating the amended motion for new trial as
one for reconsideration and denying it.
Rule of Evidence 606, Competency of Juror as Witness,
provides in pertinent part as follows:
(b) Inquiry into Validity of Verdict or Indictment. Upon an
inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the
effect of anything upon his or any other juror's mind or
emotions as influencing him to assent to or dissent from the
verdict or indictment or concerning his mental processes in
connection therewith, nor may his affidavit or evidence of
any statement by him concerning a matter about which he would
be precluded from testifying be received, but a juror may
testify on the questions whether extraneous prejudicial
information was improperly brought to the jury's
attention or whether any outside influence was improperly
brought to bear upon any juror.
purpose of this rule is to balance the freedom of secret jury
deliberations with the ability to correct an irregularity in
those deliberations. Davis v. State, 330 Ark. 501,
511, 956 S.W.2d 163, 168 (1997). We do not read the language
of Rule 606(b) to preclude the questioning of Juror 4 as to
what he had researched on his cell phone and shared
with the other jurors. Rather, "a juror may testify on
the question whether extraneous prejudicial information was
improperly brought to the jury's attention, " and
what that information consisted of is an integral part of the
testimony and is necessary for deciding whether a reasonable
possibility of prejudice exists. In short, there is nothing
in either Rule 606(b) or any precedent of which we are aware
that would have prevented the circuit court from undertaking
a reasonable inquiry into the nature of the extraneous
information when it was brought to the court's attention
troubled by the trial court's denial of the motion for
mistrial without a proper inquiry into the extrinsic
information presented to the jury by Juror 4, but we conclude
that there was no reasonable probability of prejudice to
appellant in this particular case. A definition of the term
"hung jury" is unlikely to result in prejudice to
appellant, particularly in this case where the jury was, in
fact, hung on the first count, kidnapping, and appellant
received a mistrial on that charge. The definition of
"hung jury" did not concern appellant's claim
of innocence or the degree of his guilt. Researching the
factual history of the case or even the definition of a term
included in the elements of an offense would be much more
likely to be prejudicial. In Franks v. State, 306
Ark. 75, 811 S.W.2d 301 (1991), the jurors used a dictionary
to look up the definition of "premeditation." This
court affirmed the denial of Franks's motion for new
trial, writing: "While we agree that, generally, it is
misconduct for a jury to seek out reading material without
the knowledge of the court and the parties, prejudice does
not occur in every case." Furthermore, this court has
observed that a defendant is entitled to a fair trial, not a
perfect trial. State v. Cherry, 341 Ark. 924, 931,
20 S.W.3d 354, 358 (2000). We hold that appellant could not
show a reasonable possibility of prejudice in this case, and
we therefore affirm on this point.
compliance with Arkansas Supreme Court Rule 4-3(i), the
record has been examined for all objections, motions, and
requests made by either party that were decided adversely to
appellant, and no prejudicial error has been found.
Josephine Linker Hart, Justice, dissenting.
majority is correct when it states that the circuit court
erred in its handling of Mr. Finch's assertion of his
right to represent himself and in its handling of the juror
misconduct situation. However, the majority errs when it
fails to order a new trial. Mr. Finch was denied the trial
that he was guaranteed under the Sixth Amendment to the
United States Constitution and article 2, section 10 of the
Arkansas Constitution. In affirming this case, the majority
makes errors of fact and law with regard to Mr. Finch's
right to represent himself. Likewise, the majority completely
ignores our jurisprudence with regard to juror misconduct
that consists of accessing the internet with a mobile phone
during deliberations. Mr. Finch deserves a new trial.
to the majority's assurances, its rationale for affirming
the circuit court's denial of Mr. Finch's right to
discharge his appointed counsel and represent himself is not
supported by the record. The majority's assertion that
Mr. Finch's request "was not unequivocal" is
belied by the fact that Mr. Finch's request to represent
himself was made both orally and in writing.
troubled by the majority's confession that it is unable
to "conclude" that Mr. Finch's request to
represent himself was "unequivocal." The record
reflects that Mr. Finch voiced the simple declaratory
sentence, "I want to represent myself, " no fewer
than three times in the October 19, 2015 hearing. Further, on
February 25, 2016, Mr. Finch filed a written motion styled
"Motion to Waive Counsel and Proceed Pro Se." That
motion was heard and ruled on at a March 10, 2016 hearing.
The circuit court obviously found Mr. Finch's
"request" unequivocal enough to rule on it on
October 19, 2015 and on March 10, 2016. Moreover, contrary to
what the State now argues on appeal, Mr. Finch's attempt
to exercise his right to waive counsel and represent himself
was sufficiently unequivocal to induce the deputy prosecuting
attorney to attempt, however incompetently, to lead the
circuit judge through an inquiry that would comport with
Faretta v. California, 422 U.S. 806 (1975).
with the State's "help, " the circuit judge
failed to honor the Faretta mandate, or the
requirements that this court has imposed on circuit judges to
ensure that a criminal defendant's waiver of counsel is
voluntary and knowing. Faretta requires of a court
in which a criminal defendant who wishes to waive assistance
of counsel that the court ensure a defendant is
"literate, competent, and understanding, " that the
defendant's waiver of counsel be voluntarily exercised as
a product of "informed free will, " and that the
defendant be informed of the pitfalls of self-representation,
specifically that the defendant "would be required to
follow all the 'ground rules' of trial
procedure." 422 U.S. at 836. On the pivotal issue of
whether a waiver of counsel is knowing and voluntary, the
Arkansas Supreme Court requires a circuit judge to provide a
criminal defendant who wishes to represent himself with four
bits of information: (1) that the defendant is entitled to an
attorney; (2) that the defendant have an attorney represent
him at trial even if he cannot afford one; (3) the advantages
of being represented at trial by an attorney; and (4) the
drawbacks of not being represented by an attorney.
Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510
more than telling that the majority concedes that the circuit
judge's questioning of Mr. Finch included
"irrelevant" questions and focused on
"invalid" considerations. Logically, the
majority's analysis should have led to the
conclusion that the circuit judge committed reversible error.
Instead, the majority reinvented the facts in this case. The
transcript speaks for itself, and it is reproduced here so
that it may do so.
omnibus hearing on October 19, 2015, Finch told the circuit
Finch: Your Honor, I don't want him as my attorney.
It's been a conflict. Me and him had no communication at
all. He ain't done nothing for me at all.
Judge: Mr. Finch -
Finch: He lie-lie-been lying to me.
Judge: Mr. Finch to you have attorney - any witnesses that
you need to call for this trial?
Finch: I don't want him as my attorney.
Judge: That's not my question.
Finch: That's all I'm going to say.
Judge: So you have no witnesses. The trial is set. You
Finch: I want to represent myself, then.
Judge: Mr. Finch you-
Finch: I don't want him-I don't want him as counsel.
Defense Counsel: I-
Finch: I don't want him as counsel.
Judge: Okay, one person can talk at a time. Mr. Finch?
Finch: Well I --
Judge: And at this time -
Finch: Can I speak then?
Judge: No [defense counsel] was speaking. You'll have to
wait until he's through.
Defense Counsel: Yeah, he's --
Judge: [defense counsel]
Defense Counsel: He's indicated to me before that he does
not have any witnesses. And I wanted to make that clear.
Finch: I didn't tell him that. That's a lie.
Judge: Okay Mr. Finch, do you have witnesses in this case?
Finch: Yeah, I told him back there.
Judge: Okay, who are the wit-
Finch: I talked to him.
Judge: Who are- who are the witness ...