concurring in part; dissenting in part. I agree with the majority on every aspect of its opinion save one. The defendant was charged on the day of the trial with aggravated robbery which occurred the same night but at a different location from that of the capital felony murder. He was convicted of aggravated robbery and sentenced to a consecutive term of fifty years in addition to life without parole on the murder charge.
When the defense counsel discovered that the aggravated robbery charge had been filed, the jury had already been sworn. This colloquy then took place before the trial court:
Defense Counsel: Your Honor, I am not going to say that I was unaware of the allegations of aggravated robbery. In fact, I have been aware from the outset that this capital felony involved some actual basis entwined with this aggravated robbery. I think Mr. Fogleman will also agree that I have always contended that they were separate offenses and were not entitled to be tried together.
Prosecutor: I agree with that.
Defense Counsel: I am just saying, your Honor, that it is one thing to talk about trying somebody on something. It is another to file it against him and proceed. I think the law holds us more accountable to what we file than what we say we are going to file. The fact is, the armed robbery information was not filed until today, the day of trial.
The Court: Let me ask you this: You were aware that the aggravated robbery charge was there, is that correct?
Defense Counsel: I was not aware. I obviously wasn’t aware it had been filed because it hadn’t been filed, but I was aware they intended to [at] some point to proceed on an aggravated robbery, either included with this — To be quite honest with you, your Honor, I really wasn’t aware until this morning that they intended to — Well, Mr. Fogleman and I discussed it on Friday, that he wanted to proceed on both offenses simultaneously, and I, you know, told him I didn’t agree. And I was not aware of any filing.
The Court: The thing that concerns me is, I feel that all the proof involved in the alleged aggravated robbery is going to be introduced in the murder case, and is relevant, so it just seems to me it would be better for the defendant to get the whole ball of wax over with, but, if the defendant doesn’t want to stand trial on the aggravated robbery, I am going to — It was filed this morning, and I think, technically, ...
Defense Counsel: (Interposing) Has the jury been sworn?
The Court: Yeah, the jury has been sworn.
Prosecutor: Your Honor, I would point out that before the jury was sworn, the objection that it was just filed today was not made.
Defense Counsel: Was not known.
Prosecutor: And, your Honor, the reason that it wasn’t know[n] is because everybody, and I am sure including Mr. Montgomery, assumed that it had already been filed because the warrants that were obtained — There was a capital murder warrant and an aggravated robbery warrant obtained, and that’s what he was extradited on.
The Court: Of course, I recall last week Mr. Montgomery at some point in the discussions whether or not the death penalty was going to be asked for by the State, that he was attempting to get the State to try just the aggravated robbery. I recall that.
I tell you what I am going to do, maybe it is grounds to give you something to go off on, I am not going to change my ruling. I am going to let it be tried on both things.
What is evident from this discussion, first, is the trial court was ambivalent about its ruling. Secondly, the defense counsel argued a pivotal point: “[T]he law holds us more accountable to what we file than what we say we are going to file.” I agree. Moreover, the defense counsel was arguing up to the end that the robbery charge, if and when it was filed, should not be tried with the murder charge. He could easily have believed, since the robbery charge had not been filed before the trial date, that the prosecutor was either 1) not going to file it or 2) going to file it at a later time and try the charge separately.
Essential due process requires sufficient notice of the precise criminal charges brought and an adequate opportunity to prepare. That is one reason the state constitution requires that a formal indictment or information be filed. Ark. Const. art. 2 § 8; Ark. Const. amend. 21, § 1.
By statute a prosecuting attorney cannot amend an indictment so as to change the nature of the crime charged. See Ark. Code Ann. § 16-85-407 (1987). We have held on this point that a change in the nature of a charge in the absence of notice to the defendant is impermissible. Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982). In Harmon the defendant was accused of capital felony murder with kidnapping as the underlying felony. On the day of the trial, the prosecutor amended the information to add robbery as an alternate felony. The defendant was found guilty and sentenced to death. After discussing the amended charge, the court held that the nature of the charge was undoubtedly changed by the addition of robbery and that the change was not permissible absent notice to the defendant. This court then concluded: “It is hardly even arguable that a person can fairly be sentenced to death upon a charge that was not made until the morning of trial, leaving no possibility for thorough preparation of a defense upon both the facts and the law.” 277 Ark. at 270, 641 S.W.2d at 24.
We have emphasized in a subsequent case that the amendment of a capital murder charge to include first degree murder was improper because the two crimes were of a different nature, requiring proof of different elements. Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988) (affirmed because the defendant failed to preserve the argument for appeal). We have further said that we will allow amendments to an information only where the nature of the crime alleged has not changed and the accused is unable to show prejudice. Allen v. State, 296 Ark. 33, 751 S.W.2d 347 (1988). And we have underscored the fact that when amendments to a charge are made, the defendant must be given notice and adequate time for preparation. See Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983).
In the case before us the appellant’s information was not amended, but he was charged with an entirely new felony — aggravated robbery — on the day of the trial. Filing a new charge at such a late date is even more serious in my judgment than amending an existing charge. The second robbery charge was separate and apart from the underlying robbery which accompanied the murder and which occurred at a different location. The prejudice to the appellant was, therefore, real and palpable for two primary reasons: 1) aggravated robbery has different elements of proof than capital felony murder; and 2) a new robbery charge was cumulative to the murder charge and doubtless implanted in the jury’s mind that the appellant was on a criminal spree on the night in question.
Not knowing with certainty whether the client will be charged with a second felony until the date of the trial places the defense counsel under a horrendous burden. The majority wears blinders when it says no prejudice resulted. A fifty year sentence, standing alone, evidences prejudice enough.
The defense counsel announced he was ready for trial and then immediately moved for. a continuance. This was following objections made on the new aggravated robbery charge, the absence of sufficient black males on the jury panel, and the appearance of the appellant in front of the jury panel in shackles. The record reflects that the defense counsel did not know the new charge had been filed until after the jury had been sworn. He objected to the trial of the second charge and asked that his objection be considered a continuing one. Within minutes he asked for a two week continuance. The context of his motion supports the conclusion that the motion was tied to the new charge as well as to the composition of the jury panel and the shackles.
Under these circumstances the defense counsel stated valid grounds for a severance, and he preserved his record for appeal. The new aggravated robbery charge should not have been submitted to the jury. I would reverse that conviction.
Newbern, J., joins