author: ROBERT L. BROWN, Justice.

text:
    2009 Ark. 256
    Doris NELSON, Appellant, v. William Scott STUBBLEFIELD, M.D., St. Bernards Medical Center, and Medical Assurance Company, Inc., Appellees.
    No. 08-649.
    Supreme Court of Arkansas.
    May 7, 2009.
    Rehearing Denied June 25, 2009.

      Fogleman & Rogers, by: Joe M. Rogers, West Memphis, for appellant.
    Barrett & Deacon, P.A., by: Paul D. Waddell and Brandon J. Harrison, Jones-boro, for appellees St. Bernards Medical Center and Medical Assurance Company, Inc.
    Womack, Landis, Phelps & McNeill, P.A., by: Paul McNeill and Dustin H. Jones, Jonesboro, for appellee William Scott Stubblefield, M.D.
   ROBERT L. BROWN, Justice.

| Appellant Doris Nelson appeals from a judgment in favor of appellees, William Scott Stubblefield M.D., and St. Bernards Regional Medical Center (“St. Bernards”), following a jury trial and a December 4, 2007 order denying her motion for a new trial. She asserts four points on appeal for reversal. We affirm the judgment.

On January 9, 2006, Nelson filed a complaint against Dr. Stubblefield and St. Ber-nards, alleging that Dr. Stubblefield and the St. Bernards nursing staff were medically negligent in connection with a fall she sustained while a patient at St. Bernards on May 21, 2004. St. Bernards answered and pled that it was a nonprofit entity insured by the Medical Assurance Company, Inc. (“Medical Assurance”). Following this, Nelson filed an amended Rcomplaint and named Medical Assurance as an additional party defendant under the direct-action statute, Arkansas Code Annotated § 2S-79-210.

After a four-day trial, a jury found, in separate verdicts, that a preponderance of the evidence had not shown that there was medical negligence on the part of Dr. Stubblefield or the St. Bernards nursing staff that had been a proximate cause of any of Nelson’s damages. As a result, the circuit judge entered judgment in favor of the appellees on October 2, 2007. Nelson moved for a new trial, which the circuit judge denied on December 4, 2007.

I. Proffered Jury Instruction

For her first point on appeal, Nelson asserts that the circuit judge erred by denying her proffered jury instruction that would have allowed the jury to consider the testimony of her physician expert, Dr. Floyd Schrader, and evidence of professional protocols and procedures in determining the standard of care for the St. Bernards nursing staff.

The facts leading up to the proffered instruction are these. At trial, Nelson introduced testimony from two expert witnesses, Dr. Schrader, a family medical specialist, and Thurstle Mullen, a registered nurse. Nelson also introduced various nursing protocols and procedures from St. Bernards concerning proper nursing standards. Dr. Schrader testified that he was familiar with the degree of skill and learning possessed by registered [ ¡¡nurses and that, “based on his experience as a physician practicing family medicine,” St. Ber-nards’s nurses had failed to follow proper procedures and practices, which resulted, in his opinion, in Nelson’s injuries. Nurse Mullen also testified that St. Bernards’s nurses had failed to follow the hospital’s policies and procedures and that, in his opinion, this caused Nelson’s injuries.

During the later instruction conference, Nelson objected to the circuit judge instructing the jury with an Arkansas Model Jury Instruction, AMI Civ. 1501-A, which mirrors Arkansas Code Annotated § 16-114-206(a), and instructs the jury that it may consider only the expert testimony of those witnesses engaged in the same specialty as the defendant in determining the defendant’s standard of care and whether the defendant failed |4to act in accordance with that standard. Nelson proffered, in addition, a modified version of AMI Civ. 1501-A that read as follows:

In treating a patient, a nurse must possess and apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of her profession in good standing, engaged in the same specialty in the locality in which he or she practices, or in a similar locality. A failure to meet this standard is negligence.
In determining the degree of skill and learning the law required and in deciding whether the St. Bernards’ nurses applied the degree of skill and learning the law required, you may consider only the evidence presented by the physicians and nurses called as expert witnesses and evidence of professional standards presented in the trial.
In deciding whether any negligence of the St. Bernards’ nurses was a proximate cause of any injury to Doris Nelson, you may consider only the expert testimony provided by the qualified doctors and nurses called as expert witnesses.
|fiIn considering the evidence of any other issue in this case, you are not required to set aside your common knowledge, but you have a right to consider all the evidence in light of your own observations and experiences in the affairs of life.

At the instruction conference, Nelson argued that her proffered instruction was appropriate because the jury should be allowed to consider Dr. Schrader’s testimony concerning the nurses’ standard of care. The circuit judge, however, denied Nelson’s instruction and found that it was inconsistent with his previous ruling that Dr. Schrader could not give a standard-of-care opinion regarding the nurses and because Dr. Schrader had not been qualified as an expert on nursing.

Nelson then asserted that AMI Civ. 1501-A was an incorrect statement of the law because the statutory basis for the instruction, § 16-114-206(a), was unconstitutional in that it conflicted with Rule 702 of the Arkansas Rules of Evidence. The circuit judge, however, instructed the jury with the unmodified version of AMI Civ. 1501-A, which informed the jury that it could only consider the testimony provided by nurses in determining whether St. Ber-nards’s nursing staff breached its standard of care.

It is well settled that a party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). When instructions are requested that do not conform to the Arkansas Model Jury Instructions (AMI), they should be given only when the circuit judge finds that the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Id. This court |fiwill not reverse a circuit judge’s refusal to give a proffered instruction unless there was an abuse of discretion. Id.

We conclude that Nelson was not entitled to her modified version of AMI Civ. 1501-A because there was no basis in the evidence to support giving the instruction. Specifically, Dr. Schrader was never qualified as an expert on nursing and the circuit judge did not allow him to testify directly to the standard of care for nurses.

Nelson urges on appeal that the circuit judge ruled that Dr. Schrader could testify as to the standard of care for nurses at the May 7, 2007 pretrial hearing on the appel-lees’ motion in limine to prevent, among other things, Dr. Schrader from testifying to the standard of care for nurses. At that hearing, the circuit judge ruled from the bench:

If he’s specific about, this standard of nursing care that was violated, a doctor, a physician, should be able to testify to that. It may not be the same specialty, but certainly the physician would have the expertise. I’m going to allow him to do it.

Nevertheless, in the circuit judge’s written order filed on May 18, 2007, he amended his oral ruling and ruled that “criticisms expressed by [Dr. Schrader] with respect to ... the nurses employed by [St. Ber-nards] ... and issues of speculation as to standard of care, proximate cause, or damages expressed by [Dr. Schrader] ... shall be reviewed at trial.”

Quite simply, the written order controls over the judge’s oral ruling. Nat’l Home Ctrs., Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007). In addition, counsel for St. Bernards objected to Nelson’s counsel’s asking Dr. Schrader about his familiarity with the |7standard of care for registered nurses during his direct examination, after which the following colloquy occurred between counsel and the judge:

Counsel for St. Bernards: Judge, counsel has asked a question at this point about nursing standard of care. We object that there’s been any foundation laid with this witness that he has any expertise at all in the area of nursing standard of care.
The Court: Didn’t I run into this before? Seems to me that a doctor would have the—
Counsel for Nelson: Judge you addressed this in the first pretrial and said that the doctor could testify but from what his observation about the nursing, what nursing should and should not do from his experience in observing nursing. You’ve already ruled on that.
Counsel for St. Bernards: Judge, you actually didn’t rule. You said you’d see how things played out at trial. There’s been no foundation laid. If the court is inclined to let him testify as to observations of what he as a physician would expect, that’s one thing but still doesn’t go to standard of care.
The Court: I’ll let him testify as to what he as a physician would expect and believe a nurse would do; however, as far as the direct standard of care, let’s let the nurses testify to that.
Counsel for Nelson: Your Honor, let me state this for the record. Under the rule, I think it’s 702, the qualifications of an expert witness are within the purview of the court. That’s the rule. You determine based upon what the witness may testify as to what—
The Court: Like I say, I’m going to let him testify because I think a doctor would normally be expected to know what was expected of a qualified nurse, but|sas far as somebody saying this is outside the standard of care of a duly trained and licensed nurse, let’s let the nurses testify to that. But he can testify as to what his general expectations are as to the services they provide, what a normal nursing situation would entail. But you need to lay a foundation how he knows. Of course, 30 years of being a doctor, he pretty well knows what nurses do.
Counsel for Nelson.- I’m about to do that, your Honor.
The Court: I still want the actual standard to be testified to by the doctor or by the nurses rather.

This ruling by the circuit judge is clear. As noted above, during the instruction conference at trial, the circuit judge denied Nelson’s proffered instruction that sought to inform the jury that it could consider the testimony of Dr. Schrader as to the standard of care for St. Bernards’s nurses. In doing so, the circuit judge found that the proffered instruction was inconsistent with his previous ruling that Dr. Schrader could not testify directly as to the standard of care for nurses and that Dr. Schrader had not been qualified as an expert on nursing. Hence, because Dr. Schrader was never qualified as an expert on nursing care and was not allowed to testify directly as to the nursing standard of care, there |flwas no basis in the evidence to support the judge’s giving Nelson’s proffered instruction. In light of this, the circuit judge did not abuse his discretion in refusing Nelson’s proffered instruction.

There is one additional point to be made here. Nelson never proffered to the circuit judge or this court what testimony Dr. Schrader would have given on the nurses’ standard of care, had he been allowed to testify on that standard. The failure to proffer left this court and the circuit judge in the dark as to Dr. Schrader’s precise testimony on the nurses’ standard of care. Only with that proffered testimony can this court assess on appeal whether the circuit judge erred in refusing the proffered instruction. See Ark. R. Evid. 103(a)(2)(2008); Duque v. Oshman’s Sporting Goods Servs., Inc., 327 Ark. 224, 226, 937 S.W.2d 179, 180 (1997) (“To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so as to permit review of a trial court’s decision, unless the substance of the evidence is apparent.”).

Nelson also contends that the circuit judge’s instruction on AMI Civ. 1501-A was erroneous because it prevented the jury from considering evidence of St. Ber-nards’s policies and procedures. We disagree with that interpretation of the model instruction. Plus, this argument is flawed because Nelson’s nursing expert, Nurse Mullen, did testify concerning St. Ber-nards’s policies and procedures as part of Nelson’s case-in-chief.

Because there was no evidence to support giving Nelson’s proffered instruction, this court need not consider her remaining arguments that AMI Civ. 1501-A is an incorrect | ^statement of the law because § 16-114-206(a) violates the separation-of-powers doctrine or because § 16-114-207(1) and Arkansas Rule of Evidence 702 qualify § 16-114-206(a) in such a way as to allow the jury to consider expert testimony in addition to the required expert testimony from a witness of the same medical speciality as the defendant.

II. Nurse Sexton’s Video Deposition

For her second point, Nelson claims that the circuit judge erred by allowing the appellees to present to the jury the video-deposition testimony of Nurse Elizabeth Sexton without first meeting the requirements of Arkansas Rule of Civil Procedure 32(a)(3). Rule 32(a)(3) provides that the deposition of a witness, whether or not a party to the action, may be used by any party for any purpose if the circuit judge finds that one of the following five conditions is met:

(A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

Ark. R. Civ. P. 32(a)(3) (2008).

The record substantiates that Nurse Sexton’s video deposition was taken in anticipation of her being out of state at the time of an earlier trial date. When the trial was |n then continued to a future date, Nelson argues that it was no longer appropriate for the appellees to play Sexton’s video deposition in lieu of her testifying in person. Our standard of review on this point is clear. This court will not reverse a circuit judge’s decision on the admission or rejection of evidence absent an abuse of discretion. See, e.g., Hively v. Edwards, 278 Ark. 435, 646 S.W.2d 688 (1983).

At trial, the circuit judge ruled that Nelson’s objection to Sexton’s video-deposition testimony was untimely and allowed the defendants to present Sexton’s deposition testimony to the jury. We conclude that the circuit judge’s decision, finding Nelson had waived her Rule 32(a)(3) argument for failing to make a timely objection, was not an abuse of discretion.

The first mention of Sexton’s video deposition was made by Nelson’s counsel in his opening statement on the first day of the trial: “Now the nurse that’s on duty at that time, [Sexton], her deposition has been taken. We know a lot of things because the lawyers take depositions and know what the witnesses are going to say. Her testimony will be by video, as I recall.” After this statement, Nelson’s counsel proceeded to describe the anticipated testimony of Sexton in detail, again saying at one point: “Now, you’ll hear in the nurse’s deposition that will be played for you.... ” Dr. Stubblefield’s counsel also mentioned Sexton’s video deposition in her opening statement, saying: “you’ll be able to listen to her video deposition and she’ll explain completely what she found.” St. Bernards’s counsel’s opening argument, in addition, referenced Sexton’s testimony.

112Along this same line, at the close of Dr. Stubblefield’s case-in-chief, the following colloquy occurred:

Counsel for St. Bernards: Your Honor, my nurse expert will come in, in the morning and then we have the nurse video deposition.
The Court: Mr. Rodgers [Nelson’s counsel] might want to play the entire deposition tomorrow morning, too.
Counsel for St. Bernards: That’s fine.
The Court: You can do it if you want.
Counsel for Nelson: Okay.

The court then recessed for the day. The next morning, counsel for St. Bernards presented the testimony of its nurse expert, Connie Ash. During a court recess in the middle of Ms. Ash’s testimony, Nelson’s counsel first objected to the defense playing Sexton’s video deposition to the jury, to which the circuit judge responded:

The problem the court has is you could have made that objection on the first day of the trial which was four days ago and then I probably would have granted your objection. But in view of the fact that we’ve all known that this lady was going to testify by deposition, I’m going to — I mean, this late objection is just untimely.

We agree that Nelson’s objection on this point was untimely. At the very least, Nelson’s counsel impliedly agreed to the presentation of Sexton’s video testimony as evidenced by his comments at trial preceding his objection. Cf. Goodwin v. Harri son, 300 Ark. 474, 780 S.W.2d 518 (1989) (finding that appellant’s actions were consistent with an |i:iimplied agreement between the parties that depositions would not be used as evidence at trial; thus, appellant had waived the literal wording of Ark. R. Civ. P. 32(a)(3)). Moreover, Nelson cannot show prejudice as a result of the circuit judge’s ruling. See, e.g., Bridges v. Ark. Motor Coaches, Ltd. Inc., 256 Ark. 1054, 1057, 511 S.W.2d 651, 653 (1974) (“[W]e have often held that error without prejudice will be no ground for reversal.”). Nelson’s counsel clearly participated in thorough cross-examination of Sexton in the video deposition and had the right to mount any objections during that same deposition. See Ark. R. Civ. P. 32(b) (2008).

III. Nelson’s Video Deposition

Prior to trial, Nelson’s testimony was taken during a video deposition because she was suffering from cancer and it was unknown whether she would be able to testify in person at the time of trial. Nelson, though, was able to testify at trial and was cross-examined by the appellees during her case-in-chief. When Dr. Stub-blefield presented his evidence, the circuit judge allowed him, over Nelson’s objection, to play to the jury selected portions of their cross-examination of Nelson during her video deposition.

Nelson now maintains that it was error for the circuit judge to allow Dr. Stubble-field to present portions of her deposition testimony during Dr. Stubblefield’s casein-chief. In support of her argument, Nelson contends that she was present at the trial and had already testified, that the presentation of her deposition testimony was cumulative because it 114 covered points on which she had been cross-examined during trial, and that her deposition testimony contained hearsay statements made by her husband.

Again, a circuit judge is accorded wide discretion in evidentiary rulings, and this court will not reverse such rulings absent a manifest abuse of discretion. See, e.g., Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Arkansas Rule of Civil Procedure 32(a)(2) states that “[t]he deposition of a party ... may be used by an adverse party for any purpose.” Ark. R. Civ. P. 32(a)(2) (2008) (emphasis added). Here, Nelson was a party plaintiff and Dr. Stub-blefield and St. Bernards were the adverse parties. Thus, the presentation of Nelson’s deposition testimony during Dr. Stubblefield’s case-in-chief was a “perfectly permissible practice.” Arthur v. Zearley, 337 Ark. 125, 139, 992 S.W.2d 67, 75 (1999) (Zearleys entitled to present the deposition testimony of Arthur irrespective of his availability to testify at trial); see also Ouachita Mining & Exploration, Inc. v. Wigley, 318 Ark. 750, 887 S.W.2d 526 (1994) (Ouachita Mining was entitled to present the deposition of Wigley irrespective of the hearsay rule and irrespective of his availability at trial).

As to Nelson’s hearsay argument regarding statements made to her by her husband and testified to by her in the video deposition, the rules of evidence are clear that admissions by a party-opponent are not hearsay. Ark. R. Evid. 801(d)(2) (2008); Zearley, supra; Ouachita Mining, supra. Nelson admitted that the statements by her husband were | ir,made. We hold that it was not an abuse of discretion for the circuit judge to allow the appellees to present Nelson’s deposition testimony.

IV. Medical Assurance

For her final point, Nelson asserts that the circuit judge erred by prohibiting her from presenting to the jury that her case was against St. Bernards’s insurance carrier, Medical Assurance, pursuant to the direct-action statute — Arkansas Code Annotated § 23-79-210. Nelson originally filed suit against Dr. Stubblefield and St. Bernards. However, when St. Bernards filed an answer in which it pled that it was a nonprofit entity insured by Medical Assurance, Nelson filed an amended complaint naming Medical Assurance as a party lifidefendant under section 23-79-210. As already noted in this opinion, St. Ber-nards pled charitable immunity at a later time.

Prior to trial, St. Bernards moved in limine to prevent Nelson from, among other things, mentioning or soliciting testimony from any witness that Medical Assurance was its insurer. In moving as it did, St. Bernards argued that such information was irrelevant and prejudicial under the Arkansas Rules of Evidence. At a hearing on the motion in limine, Nelson responded that Medical Assurance was a named defendant. In a written order, the circuit judge ruled that Nelson could not present to the jury that Medical Assurance was St. Bernards’s insurance carrier, so long as St. Bernards waived its charitable-immunity defense.

At trial, before opening statements but after voir dire, Nelson objected on grounds that it was prejudicial that she would not be able to bring out that Medical Assurance was a named party in the lawsuit. The following colloquy ensued:

The Court: [Tjhe reason I ruled that you are to direct your inquiries toward the hospital and not the insurance carriers is because the mere mention of insurance injects a prejudicial effect to the jury and to avoid that prejudicial effect, the court feels like it would be better — even though the insurance earner is the named party — that it would be avoided and any reference to the incident be directed toward the hospital rather than the insurance carrier who is an indemnifier.
Counsel for St. Bernards: That’s correct, your honor ... with the provisal, which we’ve agreed to abide by, that so long asjjjwe don’t try to rest on the charitable immunity status of the hospital.
The Court: The minute you do that I’m going to let him go after the insurance company.
But that’s the reason I’ve ruled that way is because it creates an unreasonable and unfair inference that you’ve got a deep pocket insurance company that’s going to cover for the hospital so I think that’s the better way to present it.

In support of her argument on this point, Nelson asserts that she was entitled to establish to the jury that Medical Assurance “was the defendant being sued, and would be the defendant ultimately liable” should the jury find that the St. Bernards nursing staff negligently caused her injuries because St. Bernards pled charitable immunity as a defense. Nelson further claims that her inability to tell the jury that Medical Assurance, as St. Bernards’s insurer, was a named defendant was prejudicial to her because she was not able “to effectively explore the liability insurance issue to discover [the jurors’] potential for bias in favor of St. Bernards” during voir dire.

To reiterate, this court reviews a circuit judge’s decision to admit or reject evidence under an abuse-of-discretion standard. See Hively v. Edwards, supra. We cannot say that the circuit judge abused his discretion by not allowing Nelson to present evidence that St. Bernards’s insurance carrier was a named defendant.

| iXThis court has long recognized the prejudice inherent in needlessly informing juries about insurance coverage. Synergy Gas Corp. v. Lindsey, 311 Ark. 265, 843 S.W.2d 825 (1992); York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980); Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973); Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959); Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S.W. 83 (1912). We have held that the injection of insurance coverage is proper only when it is relevant and pertinent to an issue in the case. See, e.g., Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). The question is whether a reference to insurance coverage is relevant to an issue before the court or “is designed to skew the jury’s thinking because of the presence or absence of a deep pocket.” Hacker v. Hall, 296 Ark. 571, 576, 759 S.W.2d 32, 35 (1988).

Nelson has simply failed to convince this court that Medical Assurance’s status as a party defendant was relevant to the issues before the court in this action — whether she was injured as a result of the negligence of Dr. Stubblefield or the St. Ber-nards nursing staff — particularly where St. Bernards presented its defense in its own name and did not assert its right to immunity from suit at trial. In fact, Nelson argues in her brief that all she “sought to establish to the jury was that [Medical Assurance] was the defendant being sued, and would be the defendant ultimately liable.” Because this is wholly irrelevant on the issue of St. Bernards’s negligence, it is clear that Nelson’s only purpose was “to press unnecessarily upon the jury’s attention the fact that a defendant is indemnified against loss for the injury 113which is the subject-matter of the suit.” Pekin Stave & Mfg. Co., 104 Ark. at 9, 147 S.W. at 86. This is not a proper purpose.

Furthermore, Nelson cannot show that she was prejudiced by her inability to present Medical Assurance’s status to the jury, and this court will not reverse in the absence of prejudice. See, e.g., Viravonga v. Samakitham, 372 Ark. 562, 279 S.W.3d 44 (2008). Nelson contends that “she could not effectively voir dire because she was prohibited from establishing St. Ber-nards was not financially responsible in the event its employees were found to be negligent.” She argues further that “she was prejudiced because she was not entitled to effectively exercise her preemptory [sic] challenges since she could not explore the liability insurance issue to discover [the jurors’] potential for bias in favor of St. Bernards.”

And, yet, at no point did Nelson argue to the circuit judge that his decision prevented her from adequately conducting voir dire. It is elementary that this court will not consider arguments that were not presented to the circuit judge. See, e.g., Bell v. Misenheimer, 2009 Ark. 222, 308 S.W.3d 120. It is incumbent upon the parties to raise arguments initially to the circuit judge in order to give that judge an opportunity to consider them; otherwise, this court would be placed in the position of possibly reversing a circuit judge for reasons not addressed by that judge. Id. Moreover, Nelson has not established how the circuit judge’s decision prevented her from discovering whether jurors were biased in favor of St. Bernards. Nelson was free to 12»and did, in fact, explore the jurors’ potential for bias in favor of St. Ber-nards during voir dire.

We hold that the circuit judge did not abuse his discretion by prohibiting Nelson from presenting to the jury the fact that St. Bernards’s insurance carrier was a named defendant.

Affirmed.

      . Si. Bernards later raised charitable immunity as a defense in its March 31, 2006 answer to Nelson’s first amended complaint.

      . Arkansas Code Annotated § 16-114-206(a) provides as follows:
      (a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
      (1)By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
      (2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
      (3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.

      . Nelson has not independently appealed the circuit judge's ruling that § 16-114-206(a) controls the admissibility of Dr. Schrader’s testimony as to the standard of care for nurses rather than Arkansas Rule of Evidence 702 but makes that argument only in the context of the failure to give the proffered instruction.

      . In denying Nelson's motion for a new trial on this point, the circuit judge noted from the bench that Nelson had not attempted to qualify Dr. Schrader as an expert witness on the standard of care for nursing services.

      . Counsel for St. Bernards. Do you recall your husband confirming for us that he had observed you use the nurse call button before he had left that evening to return home to your grandson?
      Nelson: Yes.

      Counsel for St. Bernards: Do you recall through the testimony of your husband some nine days ago that just as you did, he too examined your body and could see no evidence of any bruising or injury to any part of it, do you recall that?
      Nelson: Yes.
      Counsel for St Bernards: Do you recall likewise that in your presence your husband told us that as he observed you over the next 30 days you were discharged from St. Ber-nards that you became pain free and returned to normal activities two weeks after Dr. To-neyman performed the surgery on your back, is that correct?
      Nelson. Yes.


source: Caselaw Access Project

license: Public Domain

text:
    2009 Ark. 255
    Ledell LEE, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-160.
    Supreme Court of Arkansas.
    May 7, 2009.

      Durrett & Coleman, by: Gerald A. Coleman; and Ford, Glover and Roberts, by: Danny W. Glover, Wynn, West Memphis, for appellant.
    Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   ROBERT L. BROWN, Justice.

liOn February 9, 1993, twenty-six year-old Debra Reese was found murdered. She had been beaten approximately thirty-six times with a tire thumper and strangled. The appellant, Ledell Lee, was arrested and charged with capital murder. His first trial ended in a mistrial in 1994 because the jury could not reach a unanimous verdict. The State then tried Lee again, and a jury found him guilty of capital murder on October 12, 1995, and sentenced him to death by lethal injection on October 16, 1995. This court affirmed the conviction and sentence on direct appeal. Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997) (Lee I).

Lee subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37 in which he alleged that his trial attorneys had rendered ineffective assistance of counsel during the guilt and penalty phases of his second trial. The [2circuit court held two separate hearings on the matter, on January 20 and 21, 1999, and on March 30, 31 and April 1, 1999. Following these hearings, the circuit judge denied Lee’s petition, and this court affirmed. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001) (Lee II). Petitions for habeas corpus relief in federal court then followed, which culminated in a stay of those proceedings until an issue related to impairment of counsel at the first Rule 37 hearings in 1999 could be resolved by state courts.

On August 30, 2005, Lee moved this court to recall the mandate in Lee II on grounds that his attorney in the post-conviction proceedings rendered ineffective assistance of counsel. Lee maintained, and this court later found, that his postconviction attorney suffered from a substance-abuse problem and had been intoxicated during the initial Rule 37 proceedings in 1999. As a result, this court granted Lee’s motion to recall the mandate and remanded the matter to the circuit judge for further proceedings. Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006) (Lee III).

After this court’s decision in Lee III, Lee filed an amended petition for postcon-viction relief under Arkansas Rule of Criminal Procedure 37. The circuit judge held another hearing on August 28, 2007, and subsequently denied Lee’s petition and entered findings of fact and conclusions of law on November 21, 2007. It is from these findings that Lee now appeals.

|3It is well established that the right to counsel, guaranteed by the Sixth Amendment to the United States Constitution, is “the right to effective assistance of counsel.” See, e.g., Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has held that the question in determining whether an attorney rendered constitutionally ineffective assistance of counsel is “whether the counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. Therefore, to prove a right to postconviction relief based on a claim of ineffective assistance of counsel, a petitioner must show (1) that “counsel’s representation fell below an objective standard of reasonableness,” and (2) that counsel’s particular errors “actually had an effect on the defense.” Id. at 688, 693, 104 S.Ct. 2052.

It is also well settled that there is a strong presumption that the trial counsel’s representation falls within the wide range of reasonable professional assistance. See Wainwright v. State, 307 Ark. 569, 574, 823 S.W.2d 449, 451 (1992). The appellant has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. According to the second prong of the Strickland test, even if counsel’s conduct is shown to be professionally unreasonable, the judgment will |4stand unless the petitioner can demonstrate that the error had an actual prejudicial effect on the outcome of the proceeding. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. In short, the appellant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

On review, this court will not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. See, e.g., Gaye v. State, 2009 Ark. 201, 307 S.W.3d 1. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.

As a preliminary matter, we note that the State urges this court to apply the doctrine of law of the case to a number of Lee’s arguments on appeal. The State specifically contends that Lee makes the same arguments as were made in Lee II, and the evidence before this court is materially the same as what we considered in Lee II. The doctrine of law of the case provides that “the decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review.” See, e.g., Zawodniak v. State, 339 Ark. 66, 68, 3 S.W.3d 292, 294 (1999). Law of the case does not apply in the instant appeal because this court recalled the mandate of Lee II in Lee III and reopened Lee’s postconviction proceeding based on our determination that Lee had not had |r,the benefit of effective counsel at the Rule 37 proceedings in 1999. We reject the State’s argument on this point.

I. The Guilt Phase

Lee was represented during the guilt phase of his trial by William Simpson, Chief Public Defender for the Sixth Judicial District, and Bret Qualls, an attorney with the State Trial Public Defender’s Office.

A. Conflict of Interest

Lee claims initially on appeal that the circuit judge erred in finding that he failed to show that his attorneys’ performance was affected by an actual conflict and that he had waived any conflict that may have existed.

|(iThe surrounding facts for this point are these. After Lee was charged with capital murder for the death of Debra Reese, he became a suspect in several other crimes — a second capital murder case and three rape cases — for which he was later charged. The Reese murder was assigned to Pulaski County Circuit Court, Second Division, while the second capital murder case was assigned to the Seventh Division, and the three rape cases were assigned to the First Division. Simpson and Qualls were appointed to represent Lee in all five cases.

As already noted, in 1994, the first trial in.the Reese murder ended in a mistrial because of a hung jury. During that time, the other four cases against Lee were pending. In early February 1995, Lee, acting pro se, moved First Division Judge Marion Humphrey to relieve Simpson and Qualls as counsel in the rape cases based on an alleged conflict of interest. After a hearing on the pro se motion, on February 17,1995, Judge Humphrey, without stating his reasons, found that a conflict existed and granted Lee’s request |7to have Simpson and Qualls relieved as counsel in the rape cases. Judge Humphrey then appointed Dale Adams to represent Lee in those cases.

Following Judge Humphrey’s decision, Simpson and Qualls sought a hearing in Second Division to determine the status of the public defender’s office in the Reese murder case. On February 22, 1995, Judge Chris Piazza heard the matter and stated that the conflict in the First Division did not govern the issue. He said: “Judge Humphrey can’t declare there is a conflict up there and have any bearing on this case.” On March 8, 1995, Judge Piazza found that there was no conflict between Lee and his attorneys and again refused to relieve Simpson and Qualls.

Judge Piazza held two other hearings during which Simpson and Qualls requested that they be relieved as counsel, and in both cases, Judge Piazza refused their requests. Simpson then filed a petition for writ of certiorari with this court on April 25, 1995, in which he alleged that there was “an intolerable conflict between himself and [Lee].” He asked this Rcourt to relieve Qualls and him as counsel in the Reese murder case. This court denied the petition and declined to hold that Judge Piazza “committed a plain, manifest, clear, great, or gross abuse of discretion in refusing to relieve the public defender.” Simpson v. Pulaski County Cir. Ct., 320 Ark. 468, 899 S.W.2d 50 (1995).

On appeal, a criminal appellant is entitled to a presumption of prejudice only when he demonstrates that an actual conflict of interest adversely affected his lawyer’s performance. See Sheridan v. State, 331 Ark. 1, 4, 959 S.W.2d 29, 31 (1998) (citing Strickland, 466 U.S. 668, 104 S.Ct. 2052). The petitioner has the burden of proving a conflict of interest and of showing its adverse effects. Id. (citing Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988)). The prejudice must be real and have some demonstrable detrimental effect and not merely have some abstract or theoretical effect. Id.

Lee argues that there was a conflict of interest in the instant case that entitles him to “automatic relief.” It is Lee’s specific contention in this appeal that, in circumstances in which a criminal defendant or his lawyer alleged a conflict of interest before trial or at trial, the circuit judge must relieve counsel and appoint separate counsel or take adequate steps to ascertain whether the risk of an actual conflict of interest is too remote to warrant appointment of separate counsel. Lee relies on the United States Supreme Court’s holding in Holloway v. Arkansas for that proposition. 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).

| aLee’s reliance on Holloway is misplaced. The Hollaway case involved an alleged conflict of interest arising from defense counsel’s being forced to represent codefendants over a timely objection. In the case at hand, Lee does not assert that there was a conflict of interest because his attorneys were forced to represent a code-fendant. Rather, he asserts that his trial counsel and he had a breakdown of trust.

The United States Supreme Court has since expounded further on the Holloway automatic-reversal rule. See Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). This court applied Mickens in a case with facts analogous to those at hand. See Townsend v. State, 350 Ark. 129, 85 S.W.3d 526 (2002) (Townsend asserted a conflict of interest when he sued his attorney while he was representing him in a criminal case). In Townsend, this court said:

In Mickens, the Court rejected the argument that automatic reversal is required whenever a trial court neglects a duty to inquire into a potential conflict. Instead, the Court held that an “actual conflict of interest” means “a conflict that affected counsel’s performance, as opposed to a mere theoretical division of loyalties.” ... Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Thus, in the absence of an “actual conflict,” a defendant alleging counsel’s performance was deficient due to a conflict must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In other words, an analysis of a conflict of interest under Mickens requires the same kind of analysis — and the same kind of demonstration of | lftprejudice— that is required under Strickland v. Washington, as opposed to the presumption of prejudice (and the consequent automatic reversal) that was explained in Holloway.

Id. at 134-35, 85 S.W.3d at 528-29 (internal citations omitted).

In the instant case, Lee has not shown a conflict of interest that actually affected his attorneys’ performance. He has also failed to show that any conflict between his attorneys and him had an actual, demonstrable, detrimental effect on their representation of him. Sheridan, 331 Ark. at 4, 959 S.W.2d at 31. In sum, Lee was required to show that there was a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id. He has not done so.

B. Waiver

Lee also contends that the circuit judge erred in finding that he waived any claim to relief based on an alleged conflict of interest. He asserts, and testified at the August 2007 hearing, that he was misled into telling the judge that he wanted to waive any conflict-of-interest claim. Lee further urges that, under Sixth Amendment jurisprudence, any waiver he may have made is no longer valid because he reasserted his conflict-of-interest claim just before the second trial, which was five months after he allegedly waived it.

We decline to reach the merits of this point because we conclude that it is unnecessary. Lee has not shown that the conflict of interest he raises had anything but an “abstract or theoretical” effect on his defense. See Sheridan, 331 Ark. at 5, 959 S.W.2d at 31. | „Because he makes no showing of an adverse impact on his trial, it is not relevant to the disposition of the instant appeal whether he effectively waived any claim regarding a conflict of interest.

C. Alibi Witnesses

For his next point, Lee claims that Simpson and Qualls rendered him ineffective assistance of counsel because they did not call certain alibi witnesses in the second trial in 1995, which resulted in the conviction and the death penalty. Lee asserts that the following were alibi witnesses at the first trial in 1994, which ended in a mistrial, and that they were available and willing to testify during the second trial: Stella Young, Lee’s mother; Howard Lewis Young, Lee’s brother; Patricia Young, Lee’s sister; and Corey Bris-coe, a family friend. According to Lee, Sandra Smith, his cousin, was also available and willing to be an alibi witness for him during the second trial, even though she did not testify in the first trial. Lee testified at the August 2007 hearing that he asked Simpson and Qualls to call the alibi witnesses during the second trial.

The State responds that Lee’s trial attorneys did not render ineffective assistance of counsel in failing to call these witnesses at the second trial. Simpson testified at the August 2007 hearing that Qualls and he determined that the witnesses were inconsistent and not credible and that they did not believe the witnesses had been helpful to Lee in the first trial. Simpson also testified that Qualls and he had discussed all witnesses with Lee, who agreed 112with their recommendation not to call them in the second trial. Qualls added that Simpson and he had believed that the State’s case was weaker during the second trial and that had factored into their decision not to call the alibi witnesses. Qualls testified that “we didn’t feel like the State’s witnesses had come across as good in the second trial as the first trial. We wanted to stay on the attack and attack their witnesses, not give them anything to attack.”

At the conclusion of the State’s case during the guilt phase of the second trial, the following colloquy took place between the court and Lee:

The Court: Mr. Lee, Mr. Qualls has stated that he and Mr. Simpson and Mr. Adams had conversed with you and your family and that you had concurred in the decision that y’all would rest at the conclusion of the State’s case; is that correct?
Lee: Yes, sir. That’s correct.

In rejecting Lee’s argument that Simpson and Qualls rendered ineffective assistance of counsel on this point, the circuit court found that “the decision not to call any of the alibi witnesses in the guilt phase at the second trial was a reasoned, strategic decision of counsel, with which the defendant agreed.”

It is well settled that an attorney’s decision not to call a particular witness is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not, in itself, proof of counsel’s ineffectiveness. See, e.g., Dumond, 294 Ark. at 387, 743 S.W.2d at 783. In the instant case, evidence procured at the August 2007 hearing substantiates that Lee’s attorneys made a | isstrategic decision that it was in his best interest not to call the alibi witnesses at the second trial. This decision was based on their determination that the witnesses had presented conflicting testimony during the first trial and that the State’s case in the second trial was weaker. Furthermore, the record reflects that, at the time the decision was made to rest after the State’s case, without presenting witnesses, Lee agreed with his attorneys’ decision.

Under these circumstances, in order to find that Lee’s counsel rendered ineffective assistance of counsel by failing to call the alibi witnesses, this court would have to rely on the “distorting effects of hindsight” that the Supreme Court has cautioned against. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We hold that it was not clearly against the preponderance of the evidence for the circuit judge to find that Lee’s “allegation of ineffective assistance of counsel for failure to call the alibi witnesses is without merit.”

Lee also argues that it was ineffective not to call these alibi witnesses because his attorneys told the jury in opening statement that they would be called. Lee cites authority from other jurisdictions for the proposition that this amounted to ineffective assistance of counsel. Lee, however, did not include this argument in his amended Rule 37 petition, and the circuit judge did not address it in his findings of fact and conclusions of law. Thus, the issue is not preserved for review on appeal. Fisher v. State, 364 Ark. 216, 223, 217 S.W.3d 117, 123 (2005) (this court was precluded from considering an issue for the first time on appeal where it was not raised in the Rule 37 petition).

| MII. Penalty Phase

As already referenced, Dale Adams, an attorney who practices in Little Rock, was asked by the circuit judge to represent Lee during the penalty phase of his second capital murder trial, which he agreed to do. Lee now raises several issues of ineffective counsel relating to the penalty phase.

A. Mitigation Specialist

Lee first contends that Adams rendered ineffective assistance of counsel by failing to secure a mitigation specialist as part of the defense team. In doing so, he relies heavily on guidelines and comments in The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”). These guidelines, he points out, conclude that “a mitigation specialist is also an indispensable member of the defense team throughout all capital proceedings.” ABA Guidelines 4.1A cmt. Lee, however, does not tell the court that the guidelines, and specifically section 4.1 A, underwent a comprehensive revision, and the current version was adopted in 2003.

Adams testified at the August 2007 hearing that he did not have a mitigation specialist, as the term is now understood, during Lee’s trial. He also made it clear, though, that no one at that time was trained as a mitigation specialist. Adams testified that he did employ a former state trooper, who worked for the Death Penalty Resources Center and “was quite experienced in death penalty cases,” as a mitigation fact investigator.

|iBIn reviewing an attorney’s conduct in light of challenges to the sufficiency of representation, this court will “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. While Adams testified that he would do certain things differently now, it was not ineffective assistance of counsel to fail to engage the services of a mitigation specialist, where Adams testified that no one was trained in that way at the time.

The State also emphasizes that Lee must fail on this point on appeal because he has failed to show how he was prejudiced by Adams’s failure to hire a mitigation specialist. The State is correct. Lee does not point to any evidence that would have been discovered by a mitigation specialist that was not discovered by the mitigation fact investigator Adams hired. Even if this court determined that it was unreasonable and ineffective for Adams not to hire a mitigation specialist, Lee would have to show that there “is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052. Lee has not done so.

B. Mitigation Witnesses

Lee next urges that Adams rendered ineffective assistance of counsel because he did not present essential mitigation evidence. Lee specifically argues that Adams failed to call his mother, Stella Young, and his sister, Lynn Williams, to testify as mitigation witnesses; that he failed to prepare his uncle, Charles Booker, and his aunt, Shelby Smith, properly for them mitigation testimony; and that Adams failed to offer physical evidence in the penalty 11nphase that might “humanize” him. He again relies on the ABA Guidelines, which were significantly revised in 2003, many years after his trial.

Stella Young and Lynn Williams both testified at the August 2007 hearing that they were not asked to testify at the penalty phase of the second trial but would have been willing to do so. Stella Young testified further that Adams had not asked her for any photos or videos of Lee. Adams testified at the August 2007 hearing that he would now offer that sort of physical evidence in a death penalty case. He said that he “do[es] a lot of things differently today in mitigation.”

With respect to Lee’s argument that Adams should have called his mother, Stella Young, to testify as a mitigation witness, the record reflects that Adams was instructed by Lee not to do so. Regarding the other testimony and evidence that Lee argues should have been presented to the jury during the penalty phase, Lee fails to show how he was prejudiced by the lack of that evidence. In his brief before this court, Lee makes the conclusory statement that “[a] heart-felt, moving plea from grieving family members might have caused some juror to spare Lee’s life.” Lee also contends that proper preparation “could have perhaps ” caused his aunt and uncle to give such testimony. However, the Strickland test required Lee to show that, but for the alleged error in Adams’s representation, there was a reasonable probability that the jury “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” 466 U.S. at 695, 104 S.Ct. 2052.

117The guarantee of effective assistance of counsel clearly encompasses the penalty phase of a criminal trial, and this court has recognized that the failure to present any testimony during the mitigation phase of the trial fails to pass constitutional muster. See, e.g., State v. Smith, 368 Ark. 620, 622-23, 249 S.W.3d 119, 121-22 (2007) (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). However, this court has further held that the decision not to offer certain mitigating evidence is a matter of trial strategy where the decision is made after a full investigation of the facts. See Wooten v. State, 351 Ark. 241, 245-46, 91 S.W.3d 63, 66 (2002).

In the instant case, the circuit judge, following the Rule 37 hearing in 2007, noted that Adams called Lee’s aunt and uncle, friends and acquaintances of Lee, and an expert witness during the penalty phase of the trial. These witnesses, according to the judge, gave testimony that Lee did not deserve to die, that he was not a violent person but one who “never got into trouble growing up,” that he “was an excellent worker who was nice and got along with his fellow workers,” and that he was born to an unwed teenage mother and did not have a father figure at home, among other things. Furthermore, the record reflects that Lee asked Adams not to call his mother in the penalty phase. Adams also testified that he hired a mitigation fact investigator who had experience with death penalty cases, and there were family members who gave mitigation evidence.

| lsUnder these circumstances, we hold that the circuit court did not err in finding that Adams “was not ineffective in his preparation and presentation of the penalty phase of the trial.”

C. Sheila Dodson

Lee further contends that it was ineffective assistance of counsel for Adams not to call Sheila Dodson as a witness in the penalty phase of the trial. The State relied on the testimony of a woman, J.P., who had been brutally raped, as an aggravating circumstance. The State, in addition, introduced the testimony of Vernade-an Brazear of the Pulaski County Circuit Clerk’s office, that Lee had been tried and convicted for that rape. Sheila Dodson testified as an alibi witness for Lee at the rape trial and related to the jury that she had spoken to Lee on the telephone during the evening that J.P. was raped. Lee contends that Adams erred in not calling Dodson as an alibi witness in the penalty phase of the trial to refute the State’s evidence that Lee raped J.P.

Adams testified at the August 2007 hearing that he decided not to call Dodson as a witness during the penalty phase of the Reese murder trial because he “had an experience with her in a previous case [J.P.’s rape trial], and it was not a good experience.” Adams further testified that he “made a strategic decision not to use her.” Given that the decision about whether to call a certain witness is largely a matter of professional judgment, the circuit court did not err in finding that “Adams’[s] decision not to call Dodson to rebut the | ^defendant’s guilt of crimes for which he had been convicted, was a matter of trial strategy.” Dumond, 294 Ark. at 387, 743 S.W.2d at 783.

D. Closing Argument

During the prosecutor’s closing argument in the penalty phase of the trial, she said Lee “is a hunter. This is his habitat. And his prey were the people of Jacksonville from 1990 to 1993. And the people of Jacksonville didn’t even know they were being hunted.” In his closing argument, Lee’s counsel asked the jury “who are we then to say that we are going to kill Ledell Lee?” In her rebuttal, the prosecutor said, “I will tell you who we are. We are the hunted.” Adams did not object to these statements. On appeal, Lee claims that the prosecutor’s statements were “grossly improper and inflammatory” and “were deliberately calculated to create intense fear in the mind of each and every juror.” Lee asks this court to grant him a new sentencing trial.

At the August 2007 hearing, Adams acknowledged that he did not hear the prosecutor’s statements and said that he “just missed it.” The circuit court found that the prosecutor’s statements were improper, and “an objection would in all likelihood have been sustained.” The judge found further, however, that the statements were not “so egregious and inflammatory that the defendant was denied a fair trial.”

The failure to object during closing statements generally falls within the wide range of permissible professional legal conduct because “experienced advocates differ about when, |2nOr if, objections are called for.” See Cothren v. State, 344 Ark. 697, 710, 42 S.W.3d 543, 552 (2001) (quoting Sasser v. State, 338 Ark. 375, 391, 993 S.W.2d 901, 910 (1999)). But even if it was error for Adams to fail to object to the prosecutor’s statements, before Lee can prevail, he must show, under Strickland, that there is a reasonable probability that the jury would have imposed a different sentence if the prosecutor had not made the statements. Id. at 710, 42 S.W.3d at 552.

Adams’s failure to object was clearly not part of his strategy because he testified at the August 2007 hearing that he “just missed it.” The jury, however, heard testimony of the violent nature of the Reese murder during the penalty phase and also heard testimony that Lee had raped three different women in Jacksonville. Under these circumstances, we conclude that Lee has not met his burden to show that there is a reasonable probability that the jury would have imposed a different sentence if Adams had objected to the prosecutor’s statements.

E. In-court Identification

As part of the penalty phase, the State called A.S. to testify that she had been raped and to tell the jury about the circumstances of the attack. Charges were pending against Lee |21at the time for the rape of A.S. Prior to her testimony during Lee’s penalty phase, A.S. had not been able to identify Lee as her rapist. On cross-examination, Adams asked A.S. if she could identify her attacker. She responded, “I think I would know him if I saw him.” During redirect examination, A.S. identified Lee as the man who had raped her. Lee maintains that Adams opened the door for A.S. to identify him, and the error amounted to ineffective assistance of counsel. The State responds that it was reasonable trial strategy for Adams to highlight to the jury that A.S. bad never been able to identify her attacker.

Adams testified at the August 2007 hearing that, in retrospect, it was a mistake to ask A.S. if she could identify her attacker and that he asked her “one too many questions.” The circuit judge found that Adams’s question was “intended to point out to the jury that [A.S.] could not identify the defendant as her attacker.” The circuit judge found that the strategy “backfired” but that AS.’s “surprise identification” of Lee did not amount to ineffective assistance of counsel.

Given that there is a strong presumption that an attorney’s conduct “might be considered sound trial strategy,” we affirm the circuit judge on this point. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. It was not unreasonable for Adams to attempt to educate the jury that A.S. had never been able to identify Lee as her attacker, even if the strategy “backfired,” as the circuit judge found. Furthermore, Lee has not shown a reasonable probability that the jury would have imposed a different sentence if Adams had not elicited an identification by A.S.

F. DNA Testing

I22AS already discussed, during the penalty phase of the trial, the State presented evidence to the effect that Lee had raped three women. To support that aggravating evidence, the State offered the expert testimony of Hal Deadman of the Federal Bureau of Investigations (“FBI”). Deadman testified about DNA samples that were taken from the rape victims and told the jury that the samples taken from the victims matched samples taken from Lee. Lee now urges that Adams rendered ineffective assistance of counsel by not seeking to have the samples tested at an independent laboratory. The State responds that Lee has failed to show that an independent test of the DNA samples would have resulted in exculpatory evidence.

At the August 2007 hearing, Adams testified that he did not have the DNA tested by an independent entity because he did not believe that there was such a place, other than the FBI, to have DNA samples tested at that time. Adams testified that he did hire an expert to look into the FBI’s protocol. According to Adams’s testimony, the expert did not discover any problems with the FBI’s procedures. The circuit judge found that Lee had not presented proof that the samples could have been independently tested at the time of trial and that it was not ineffective assistance of counsel for Adams to fail to do so. The circuit judge did not err in this regard because an attorney’s effectiveness is judged based on his perspective at the time of the trial. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

| ^Affirmed.

      . Lee’s current appeal has been delayed by an additional five months because his counsel twice submitted deficient briefs that did not conform to this court's rules. This court issued 1wo per curiam opinions, which ordered rebriefing by Lee. Lee v. State, 375 Ark. 421, 291 S.W.3d 188 (2009) (per curiam); Lee v. State, 375 Ark. 124, 289 S.W.3d 61 (2008) (per curiam).

      . Lee argued before the circuit judge at the August 2007 hearing that Judge Piazza was engaged in a personal relationship with deputy prosecuting attorney, Melody Larue, during the second trial and that Simpson and Qualls rendered ineffective assistance of counsel because they did not seek the recusal of Judge Piazza based on that alleged relationship. In the alternative, Lee argued that the State violated his right to due process and a fair trial by failing to disclose the relationship to defense counsel. The circuit judge found that Lee failed to present evidence that there was an improper relationship between Judge Piazza and Larue at the time of Lee’s second trial.
      In the brief on appeal in the instant case, Lee's attorney wrote that Lee wished to appeal the circuit judge’s findings on this point but that he, the attorney, "determined that said argument is not one that should be pursued." Lee's attorney suggested, in the brief, that he would petition this court to withdraw as counsel, so that new counsel could file an amended and substituted brief, which would argue this point on appeal. However, Lee’s counsel did not petition to withdraw as counsel, and no amended and substituted brief was filed with this court. Therefore, this argument was not made to this court, and we decline to address it.

      . Lee was charged with capital murder for the murder of Christine Lewis; his trial ended in a hung jury; a mistrial was declared; and the case was nolle prossed in 1997. Lee was charged with raping J.P. and was convicted and sentenced to 60 years in prison. Lee was charged with raping L.D. and was convicted and sentenced to life in prison. Lee was charged with raping A.S., and the case was nolle prossed after Lee received the death penalty in the instant case.

      . Adams also represented Lee during the penalty phase of the Reese trial, the instant matter.

      . Judge Piazza also said that he would "give Mr. Lee a chance to file his brief” and set another hearing date.

      . On March 23, 1995, Simpson argued that he would have a problem of inconsistent strategies if he were required to continue to represent Lee in the Reese murder case. On April 21, 1995, Simpson alerted the court that he had received a copy of a document, which was purportedly a civil lawsuit against him by Lee. Simpson also told Judge Piazza that Lee would not discuss the case or cooperate with him or Qualls. Lee told Judge Piazza that he did not trust Simpson or Qualls.

      . In Holloway, the defense counsel expressed his concern to the trial judge that he would be unable to adequately represent the interests of each defendant because he had received confidential information from each of them. Specifically, the attorney was concerned that one of the defendants could testify in a way that would harm another defendant’s interest, and the attorney would be unable to represent both defendants in such a situation.

      . Lee had been convicted of raping J.P. on September 21, 1995, the month before the Reese murder trial. Lee was convicted of raping L.D. on October 19, 1995, three days after the jury sentenced him to death for the Reese murder. The case against Lee for the rape of A.S. was nolle pressed after Lee was found guilty and sentenced to death in the Reese murder.


author: PER CURIAM.

text:
    2009 Ark. 282
    ARKANSAS DEPARTMENT OF CORRECTION, Appellant, v. Frank WILLIAMS, Jr., Appellee.
    No. 08-1031.
    Supreme Court of Arkansas.
    May 14, 2009.
    Jenniffer Horan, Federal Public Defender, by Julie Brain, Little Rock, and Josh Lee, for appellant.

      Dustin McDaniel, Attorney General, by C. Joseph Cordi, Jr., Assistant Attorney General, for appellee.
   PER CURIAM.

| pending before this court are two motions — a Motion to Dismiss Lawsuit filed by appellant Arkansas Department of Correction (“Department”) and a Motion for Supplemental Briefing filed by appellee Frank Williams, Jr. Both motions are filed in connection with the Department’s appeal of the circuit judge’s order granting Williams partial declaratory summary judgment, dated August 28, 2008. The circuit judge’s order concluded that the Department’s Administrative Directive, AD08-28, is subject to the Administrative Procedure Act and that as of the present date it is not valid and may not be invoked by the Department for any purpose against Williams. The circuit judge denied the Department’s motion for summary judgment on the same issue. The Department appealed the circuit judge’s orders.

|2Subsequent to the orders, the General Assembly enacted Act 1296 of 2009, which purports to resolve the issues present in the instant appeal. Act 1296 became effective April 13, 2009.

Briefing in this appeal has been completed, but it was done before the effective date of Act 1296. Oral argument is set before this court for May 28, 2009. The Department now contends that Act 1296 renders the instant appeal moot and moves to dismiss this appeal. We do not consider that motion at this juncture and hold it in abeyance until this case is submitted for decision.

We agree with Williams that an opportunity for supplemental briefing on the effect of Act 1296 should be afforded the parties in this case. Accordingly, we grant Williams’s motion on this point and continue the oral argument in this matter until supplemental briefing is complete and the clerk of this court has set a new date for oral argument.

We ask the parties to brief the following questions for purposes of this appeal, in addition to any other issues pertinent to Act 1296:

1. Does the enactment of Act 1296 resolve the issues facing this court in the instant appeal so as to render these issues moot?
2. If the answer to issue one is in the affirmative, may Act 1296 be applied to Williams’s sentence and execution, when the sentence was entered, and the execution date was set, before the effective date of Act 1296?
|;i3. If the answer to question one is in the affirmative, must this court further decide whether to vacate the circuit judge’s injunction?

We direct the clerk of this court to set the briefing schedule for this supplemental briefing with simultaneous briefs due from the parties thirty days from the date of this per curiam and simultaneous reply briefs due fifteen days thereafter. We further direct the clerk of this court to reset oral argument for a time after the supplemental briefing is completed.

WILLS, J., not participating.

Special Justice STUART JACKSON joins.


text:
    2009 Ark. 281
    Jeffery MOSS, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 09-390.
    Supreme Court of Arkansas.
    May 14, 2009.
    Scott Adams, Morrilton, for appellant.
    No response.
   PER CURIAM.

| ¡Appellant Jeffrey Moss has filed simultaneous motions, one seeking to file a belated appeal and the other seeking leave to proceed in forma pauperis and for appointment of counsel. Moss was convicted of one count of rape and sentenced to a term of 120 months’ imprisonment. A timely notice of appeal was filed on January 14, 2008, but Moss’s appeal was never perfected. Scott Adams, who represented Moss at trial, has filed an affidavit admitting fault for failing to perfect the appeal.

This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:

Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was |2not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.

Id. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.

It is plain from the record that Mr. Adams was at fault for failing to perfect Moss’s appeal. Pursuant to McDonald, we grant the motion for belated appeal and relieve Mr. Adams as counsel of record for Moss. Furthermore, pursuant to Ark. R.App. P.-Crim. 16, Craig Lambert is hereby appointed to represent Moss as he pursues his appeal. Finally, Moss contends that he is indigent and an affidavit in support of his request to proceed in forma pauperis is attached to the motion. As the State has not contested that assertion, we grant the motion to proceed in forma pau-peris. A copy of this opinion shall be forwarded to the Committee on Professional Conduct.

Motion for belated appeal granted; motion for leave to proceed in forma pauperis and for appointment of counsel granted.


text:
    2009 Ark. 280
    Cristobal MANCIA, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-770.
    Supreme Court of Arkansas.
    May 14, 2009.
    Bruce J. Bennett, for appellant.
    No response.
   PER CURIAM.

Bruce J. Bennett was ordered to appear before this court to show cause why he should not be held in contempt for failing to timely file a brief on behalf of his client, Cristobal Mancia, on or before November 24, 2008, as previously ordered by this court. The procedural history of this matter is set forth in a recent per curiam opinion. Mancia v. State, 2009 Ark. 208, 306 S.W.3d 10.

On May 7, 2009, Mr. Bennett appeared before this court, as ordered, and entered a plea of guilty to the contempt charge. In mitigation, he stated that he had been told that Appellant might employ new counsel. As explained by Mr. Bennett, he asked for several extensions of time to file Appellant’s brief, “primarily to see if Appellant would employ new counsel.” Mr. Bennett had also concluded that Appellant’s tender of a guilty plea would necessitate the tender of a no-merit brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(j). The requested extensions, according to Mr. Bennett, allowed him “to make sure [he] was doing the right thing by filing a no-merit brief.” On May 6, 2009, Mr. Bennett filed a motion to allow for filing of belated brief, in which he took responsibility for his failure to timely file Appellant’s brief. He advised the court on May 7, 2009, that he was prepared to tender the no-merit brief to the clerk for filing.

Based on the foregoing, we accept Mr. Bennett’s guilty plea and find him in contempt. We impose a fine of $250, to be paid within thirty days from the date of this order. A copy of this per curiam will be forwarded to our Supreme Court Committee on Professional Conduct to take any appropriate action the Committee deems necessary.

It is so ordered.


text:
    2009 Ark. 296
    JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, Petitioner, v. L.T. SIMES, Circuit Judge, Respondent.
    No. 09-443.
    Supreme Court of Arkansas.
    May 14, 2009.
   PER CURIAM.

hOn April 28, 2009, the Judicial Discipline and Disability Commission filed with this court its “Final Decision Findings and Recommendation” that the Honorable L.T. Simes, II, be removed from the bench. Judge Simes filed a motion for extension of time to file his brief and to supplement the record. The Commission responded, requesting that Judge Simes’s motion for extension of time to file his brief be denied or, in the alternative, if Judge Simes is granted an extension of time to file his brief, that, pursuant to Arkansas Code Annotated section 16-10-408(2) (Repl.1999), the court suspend Judge Simes with pay pending this court’s review of the Commission’s recommendation for removal. The Commission has no objection to Judge Simes’s request to supplement the record.

We grant Judge Simes’s motion to supplement the record of the proceedings before | gthis court with the following documents: (1) transcript of the probable cause hearing held on March 21, 2008; (2) pre-hearing motions and the exhibits thereto; (3) mandamus petition to this court and exhibits thereto; (4) Judge Simes’s proposed findings of fact and conclusions of law; and (5) Judge Simes’s objections to report and recommendations of panel. The record shall be supplemented with the above-referenced documents no later than May 26,

In addition, we grant Judge Simes’s motion for extension of time to file his brief. Pursuant to Rule 12(C) of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, simultaneous briefs shall be filed by Judge Simes and the Commission “in accordance with court rules.” Arkansas Supreme Court Rule 4-2(a)(5) requires an appellant to provide an abstract of the testimony. The Commission, while not an appellant, is the petitioner in this case; therefore, the Commission is required to provide in its brief an abstract of the testimony. Judge Simes and the Commission shall file briefs no later than June 15, 2009, and the Commission’s brief shall contain an abstract of the testimony.

We deny the Commission’s motion to suspend with pay.

WILLS, J., not participating.