                                Cite as 2013 Ark. App. 681

                 ARKANSAS COURT OF APPEALS
                                   DIVISIONS III & IV
                                     No. CR-12-564



                              Opinion Delivered November 13, 2013
 CHAD EDWARD MALCUM
                   APPELLANT APPEAL FROM THE PULASKI
                              COUNTY CIRCUIT COURT, FIFTH
 V.                           DIVISION
                              [NO. 60CR-11-2260]
 STATE OF ARKANSAS
                     APPELLEE HONORABLE WENDELL GRIFFEN,
                              JUDGE

                                                    PETITION FOR REHEARING
                                                    DENIED; SUBSTITUTED OPINION
                                                    ISSUED


                           BRANDON J. HARRISON, Judge

       In Malcum v. State, 2013 Ark. App. 499, we affirmed the Pulaski County Circuit

Court’s sentencing order entered against Malcum following a jury trial.        Malcum

challenged our decision through a petition for rehearing. We deny Malcum’s petition for

rehearing but issue this substituted opinion.

       A jury found that Chad Edward Malcum had committed an aggravated robbery

against Eugene Cherry, in April 2011, while Cherry was at his own home. Malcum

attacked Cherry after he refused to give Malcum a ride to Conway; Malcum then stole

Cherry’s car.    An unidentified person called 911.        A neighbor, Donnell Jackson,

reportedly saw Cherry’s car speed away from his home and became suspicious that the

elderly man would drive in such haste. So Jackson, according to a police report, went to


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Cherry’s house, found him in distress, and carried him outside so he could receive

emergency treatment.

       The circuit court sentenced Malcum to serve 300 months’ imprisonment as a

habitual offender. Malcum appeals his conviction, arguing that the circuit court erred by

making him go to trial before Donnell Jackson could be located and compelled to testify

about the robbery. Malcum also argues that a second reversible error occurred when the

court strayed from the model jury instructions.

       We hold that Malcum was not denied justice when he was denied a continuance.

And though we agree with Malcum that the court technically erred when instructing the

jury at the trial’s beginning, the error was a harmless one because the jury was properly

instructed before it deliberated the case and returned its guilty verdict.

                                   I. The Continuance Issue

       One day before the March 2012 jury trial started, the circuit court held a hearing

on Malcum’s motion to continue the trial given Jackson’s unavailability as a witness. The

record indicates that no party had successfully contacted Jackson since the robbery. The

court ruled that it was not for a lack of trying that neither the State nor Malcum could

find Jackson; it then ordered the sheriff’s office to find Jackson and jail him overnight.

Before adjourning for the day, the court then told defense counsel:

               But I should tell you, sir, that if he is found after tomorrow, it is my
       present intention to keep him confined in the county jail until such time as
       we get this case tried. I intend to reschedule this case tomorrow for another
       trial date or date certain and I want everybody to know that we will proceed
       to trial on that date with him or without him. So everybody needs to have
       a contingency, trial with Donnell Jackson, trial without Donnell Jackson.
       Put that in your war plan.


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       The sheriff’s office never found Jackson. So Malcum renewed his continuance

request the following morning, which was the first day of trial, before jury selection

started. Malcum’s attorney also filed an affidavit on 15 March 2012, pursuant to Ark.

Code Ann. § 16-63-402 (Supp. 2011), which stated, among other things, that a woman

claiming to be Jackson’s wife had told him that Jackson would be out of town for at least

thirty days. In addition to the affidavit, three witnesses told the court that Jackson had a

surrender date to authorities on the following Monday.

       During the day-of-trial continuance hearing, Malcum argued that Jackson was the

unidentified 911 caller and that his testimony was needed to impeach Cherry’s anticipated

trial testimony. Without Jackson’s presence at trial, Malcum argued, the jury would not

get a “great deal” of information. For its part, the State said that it would not call Jackson

as a witness—and it stipulated that Jackson did not see Malcum hit Cherry and that “there

are a lot of if’s involved” on whether Jackson would actually appear.

       The court denied Malcum’s second motion to continue the case. In doing so, it

ruled that the defense had made a good-faith, diligent effort to locate Jackson and that his

absence was not Malcum’s fault. The court also noted that the State did not oppose the

continuance, and it credited the affidavit that Thomas Kendrick (one of Malcum’s

lawyers) had filed. A key point to the court’s denial was that no one disputed that Jackson

never saw who beat and robbed Cherry. The court reasoned that Jackson’s absence would

not prevent Malcum from fully defending the aggravated robbery charge because the

probable effect of Jackson’s testimony at trial, even if he did testify, was that he did not

personally see Malcum beat and rob Cherry. Finally, though the court recognized the


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possibility that the sheriff or federal authorities might find and detain Jackson before or

during the trial, it was “not at all certain whether or not [Jackson] will show up or if he

does show up, whether he will testify.”

       A circuit court’s decision to deny a continuance due to a witness’s absence is a

discretionary one.     A number of considerations, however, guide and constrain its

discretion on this issue. Ark. Code Ann. § 16-63-402 (Supp. 2011); Ark. R. Crim. P.

27.3 (2012); Brown v. State, 374 Ark. 341, 347, 288 S.W.3d 226, 232 (2008) (citing

caselaw factors for circuit courts to consider). Our statutes, rules, and caselaw work

together to protect an accused’s state and federal constitutional rights “to have compulsory

process for obtaining witnesses in his favor” and to give him due process of law. U.S.

Const. amends. VI, XIV; Ark. Const. art. 2 § 10 (1873). Our supreme court has held that

denying an accused’s motion for a continuance—when an unavailable witness is also a

fugitive from justice—is not an abuse of discretion and does not necessarily violate an

accused’s rights.    Parker v. State, 179 Ark. 1064, 20 S.W.2d 113 (1929) (denying a

continuance was not reversible error when the attendance of a witness, who had an

outstanding warrant, could not be secured); Harris v. State, 169 Ark. 627, 629, 276 SW

361, 363 (1925) (denying a continuance was not reversible error when the desired witness

had left town because of another charge against him and was therefore not likely to

return). The bottom line is we will not reverse a court’s denial of a continuance request

unless it equates to a denial of justice. Brown, 374 Ark. at 347, 288 S.W.3d at 231.

       Here, Malcum argues again that the court’s decision to deny him a continuance

was an abuse of discretion because he had the right to compel Jackson’s attendance, that


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Jackson was a material defense witness, and the court told him the day before trial that it

intended to reschedule the case.        The State responds that Jackson’s testimony was

immaterial and that, in any event, there was no good reason to believe that postponing the

trial would have resulted in Jackson’s presence at trial.

       We hold that the circuit court sufficiently protected Malcum’s legal interests under

the law and that denying a continuance in this case was not an abuse of discretion

tantamount to a denial of justice. The court held two hearings on the continuance issue,

received much evidence on point, and engaged the parties by asking questions. The court

also forthrightly told the parties to be prepared for trial “with or without Donnell

Jackson.” That the court changed its mind about its intent to reschedule the case on the

day of trial does not necessarily mean that Malcum was denied justice. The circuit court is

not required to absolutely ensure Jackson’s presence at trial, just that “compulsory process”

be available to Malcum, and it was. Specifically, the court had sent the sheriff to find

Jackson and otherwise used its power to compel Jackson’s appearance at Malcum’s trial.

Malcum did not have an absolute right to delay the trial until Jackson could be rounded

up, which might well have been an unreasonably long amount of time.

                                II. The Harmless Jury-Instruction Error

       Malcum also argues on appeal that the circuit court erroneously instructed the

jury—after the jury was selected but before the jurors were excused at the end of the first

day of trial. Here is the instruction Malcum challenges:

               As jurors, you’re the sole and exclusive deciders on who—on
       credibility of the witnesses who testify in the case, which means simply that
       it’s you who decide whether to believe or disbelieve a particular witness.


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              In making this determination, you will apply the test of truthfulness
       that you apply in your daily lives. You’re not required to believe the
       testimony of any witness simply because it’s given under oath. You may
       believe or disbelieve all or any part of the testimony of any witness.

             You should not decide any issue of fact merely on the basis of the
       number of witness who testify on each side of that issue. The testimony of
       one witness believed by you is sufficient to prove any fact.

        Before giving that contested instruction, the court read other instructions to the

jury, including ones on reporting for duty the next morning, leaving their minds open

until they heard all the evidence, not talking with anyone about the case, considering

information from any source outside the courtroom, observing courtroom procedure, and

taking notes during the trial.     Malcum promptly objected to the instruction.          As a

substantive matter, he argued that the instruction had no legal basis. As a timing matter,

he said that the jury instructions should be given after the jury has heard the parties’ cases,

not before they were presented.

       At a bench conference the next morning, before opening statements, Malcum

renewed his objection to the instruction we have reproduced above; he argued that the

instruction would allow the jury to find him guilty by applying a standard of proof less

than beyond a reasonable doubt. He then asked the court to admonish the jury to

disregard any instructions from the day before that were “not contained in the other

Arkansas statutory law or in the jury instructions AMCI second 100A and 100B.”

Malcum also moved for a mistrial based on the court’s alleged error. The court denied

that motion and overruled other objections.

       We review all of Malcum’s jury-instruction issues under an abuse-of-discretion

standard. See Clark v. State, 374 Ark. 292, 305, 287 S.W.3d 567, 576 (2008). Malcum is

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not required to show that prejudice arose from the court’s mistaken jury instruction. Hall

v. State, 326 Ark. 319, 322, 933 S.W.2d 363, 366 (1996). In this type of case, the State

must show that the erroneous instruction was, on the whole, a harmless error. Id. An

erroneous instruction can be harmless if it was obviously cured by other instructions. Id.

       Our supreme court has recently reiterated that a circuit court should not use a non-

model instruction unless the applicable model instruction inaccurately states the law.

Fincham v. State, 2013 Ark. 204. Here, the court did not use the model instruction on

credibility. It told counsel that “[n]othing I told this jury yesterday varies from any

statement of Arkansas law. I have not heard [Defense Counsel] [cite] a single Arkansas

court authority.” The court’s memory of the event was mistaken. Its rendition added a

flourish here and there and clearly deviated from the model criminal jury instructions.

       The important legal question, however, is whether the court’s indisputable

deviation from the model instruction on credibility was so grave that a mistrial should

have been ordered. Phavixay v. State, 2009 Ark. 452, at 10, 352 S.W.3d 311, 318 (2009).

Malcum thinks so, mainly because he believes the court’s deviation from the model

instructions diluted the potent burden of proof the State had in this criminal case. We

disagree.   The stray remarks related to the credibility of the witnesses or the jurors’

personal observations about them, not the State’s burden of proof. Contextually, the

court had just finished talking about juror notetaking and then moved to telling the jury

about their role in the criminal-trial process. More specifically, the court’s stray remarks

came when it provided its own rendition of AMI Crim. 2d 103 and 104—two




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instructions that tell jurors that they may use their personal observations and experiences as

they assess witnesses’ credibility.

       We hold that the State has shown that the circuit court’s recitation of non-model

instructions on credibility and on personal observations and experiences was harmless error

in this case. Hall, supra. Right before the case was submitted to the jury for decision, the

circuit court instructed the jury using the model instructions on the credibility of the

witnesses, the weight of the evidence, and the burden of proof, which purged any

arguable prejudice stemming from the trial’s false start. These model instructions were the

same ones that Malcum had requested when he first disputed the court’s free-form version

at the trial’s start. In Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994), our supreme

court acknowledged that while the circuit court may have erred in instructing the jury

prematurely, the error under the facts presented was harmless. We likewise acknowledge

that a concerning glitch was injected into this case’s beginning, but it neither involved the

State’s burden of proof nor the elements of the crime that Malcum was charged with

committing.     And most importantly, the error was corrected before the jury began

deliberating Malcum’s legal fate, making the giving of the earlier non-AMI instruction

harmless error given the facts in this case Id.

                                           III. Conclusion

       We affirm Malcum’s conviction. In doing so, we take this opportunity to remind

the circuit courts to heed our supreme court’s admonition: use the applicable model

instructions as a matter of course unless they misstate the law on the issues under

instruction.


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       Petition for rehearing denied; substituted opinion issued.

       GLADWIN, C.J., and WALMSLEY, WHITEAKER, VAUGHT, and HIXSON, JJ., agree.

       Don Thompson, Deputy Public Defender, by: Thomas Kendrick, for appellant.

       Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for

appellee.




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