(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH OUT OF THE HEARING OF THE JURY)
MR. PRICE: At this time my client wishes to exercise the right of allocution pursuant to Arkansas Code Annotated sixteen ninety one-o-six B and personally address the jury without being subject to cross examination.
THE COURT: The right of allocution is given after the conviction and after sentencing, and the Court inquires of the defendant whether he has anything he would care to say.
MR. PRICE: We are requesting that he be allowed to address the jury.
THE COURT: I think he has the right to take the (3512) stand and to make a statement if he cares to do so, but he will be subject to cross examination.
MR. PRICE: It is our position that the right of allocution would allow him --
THE COURT: -- I think he has the right of allocution but that's after sentencing.
MR. PRICE: It's our position that since the jury is the body that will be imposing the verdict --
THE COURT: -- Well, it's just like I said. It's where you ask if there's any legal cause to show why judgment should not be pronounced. That's what allocution is usually -- in fact if you will look at my notes, "Steps to do: Announce sentence, inquire of the defendant as to allocution."
And I am perfectly willing to do that, to give him his right to allocution, to make any statement that he cares to before sentence is imposed.
If you're asking me can he take the stand and offer mitigation or make a statement, yes.
MR. PRICE: My request is that he be allowed the right of allocution in front of the jury and not be subject to cross examination.
MR. DAVIDSON: Your Honor, they are the imposing body, and we would ask that they be allowed to hear this prior to them deliberating. (3513)
MR. FOGLEMAN: If he takes the stand and makes a statement, we want to cross examine him.
THE COURT: I will allow him to take the stand and make a statement. If you want to call it allocution, fine. It is not technically allocution. It's a statement in his own defense as to sentencing.
After sentencing I'm going to go down my checklist and give him the right of allocution by pronouncing the exact sentence stated here: "Is there any legal cause to show why judgment should not be pronounced and do you have anything you'd like to say in your behalf."
MR. PRICE: So for the record, as far as our request that he be allowed to do this before the jury --
THE COURT: -- As far as your request to put him on the stand, I'm going to say yes, you may do so. I'm also going to say if they choose tocross examine they will be permitted to do so.
MR. PRICE: So our request that he be allowed to do that and not subject to cross examination is denied.
MR. DAVIS: Do you have any basis for that?
MR. PRICE: I looked up the statute, and you can't tell from the statute either way. (3514)
THE COURT: I always do it. I always grant allocution. And it is error not to. But allocution is after judgment and after pronouncement and after sentence, but I will permit you to allow him to take the stand, but he will be subject to cross examination.
MR. PRICE: That's fine.
MR. DAVIDSON: By saying, "that's fine," we're saying we understand your ruling, but we're not agreeing with it.
