LITTLE ROCK — The state Court of Appeals on Wednesday, in a 5-4 decision, reversed the conviction of a man found guilty of sexual assault in Pulaski County Circuit Court, ruling that the judge erred when he denied the defendant a continuance because of a witness's unavailability.
Alfred Lavorice Brown was charged with two counts of rape and one count of second-degree sexual assault in incidents alleged to have involved a 10-yearold girl.
Brown's attorney asked Pulaski County Circuit Judge Marion Humphrey for a continuance in March 2006 because a doctor was unavailable and a trial date was set back a week.
Then, four days later, Brown's attorney requested another continuance because a state police investigator could not appear at the newly scheduled trial. Humphrey denied the second continuance.
Court of Appeals Judge Wendell Griffen wrote in the majority opinion that Humphrey "abused the court's discretion" and should have granted the second continuance.
"This is a rare case in which each of the factors a trial court is to consider when granting a continuance weighs in the defendant's favor, and, further, the denial of appellant's request for a continuance denied him the opportunity to present relevant, exculpatory, noncumulative evidence that the state failed to make available to him," Griffen wrote.
"If reversal is not warranted here, then we cannot discern when reversal would ever be appropriate pursuant to the abuse-of-discretion standard," Griffen wrote.
Judges Jo Hart, D.P. Marshall, Sarah Heffley and Brian S. Miller concurred.
Judge Larry D. Vaught wrote the dissenting opinion and was joined by Chief Judge John Pittman and Judges Robert Gladwin and Sam Bird.
"I cannot agree that the trial court acted both arbitrarily and capriciously by refusing to grant Brown's continuance," Vaught wrote. "The trial court's ability to control its own calendar is insulated from appellate review - as prescribed in our review standard - except in the most extreme cases of abuse."
"This is not such a case," Vaught wrote.
In the Court of Appeals, the case is CA 2006-1374, Alfred Lavorice Brown v. State of Arkansas.
Arkansas, Pages 15 on 10/26/2007