text:
    Larry Earl ESMEYER v. STATE of Arkansas
    CR 95-1027
    930 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Murphy, Post, Thompson, Arnold & Skinner, by: J. T. Skinner and Tom Thompson, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

Appellant Larry Earl Esmeyer appeals his convictions for first-degree murder and attempt to commit first-degree murder, and his sentence of 70 years’ imprisonment. He argues that the jury was tainted, that the prosecuting attorney failed to disclose exculpatory evidence, that statements given to the police should have been suppressed, and that admission of his waiver-of-rights form into evidence and cross-examination into his justification defense were prejudicial. We find no merit in any of these points, and we affirm.

The appeal arises out of the shooting death of Rita Passmore and the wounding of her companion, Mark Williams. On June 3, 1994, Passmore and Williams were traveling in a black Pontiac Grand Prix on a gravel road called Scroggins Road in Independence County. They almost collided with Esmeyer, who was traveling in the opposite direction in a white Ford Tempo and who was angered by the incident. Esmeyer turned his car around and followed Passmore and Williams down Scroggins Road. According to witnesses, it was a high-speed chase. Esmeyer testified at trial that he first lost the black car, then spied it parked in a parking lot beside a Church of Christ. He pulled up beside the car and talked to Pass-more, who was the driver. At that point, the stories of Esmeyer and Williams diverge. Esmeyer testified that Passmore cursed and said Esmeyer could not tell her how fast to drive, that she did not care at all about Esmeyer’s grandchildren, who might be placed in jeopardy by her driving, and that he should get out of her way. According to Esmeyer, Passmore then pulled a gun, and he ducked, pulled his own .22 caliber revolver from under the seat, and came up shooting. He shot Passmore five times in the head at close range and killed her. He also wounded Williams in the back of the head. The level of alcohol in Passmore’s body according to the medical examiner, was consistent with the consumption of about two beers.

At trial, Williams denied that either he or Passmore had a gun but later admitted that he and Passmore had been drinking beer and smoking marijuana. After the shooting commenced, he exited his side of the car and ran first to the church and then to the home of Hazel Sharp. Williams forced his way inside the home, and Ms. Sharp called 911. She later related to police officers that the white car had been chasing Williams. She testified that she initially heard shots coming from the Church of Christ parking lot and subsequently heard three more shots as Williams was entering her house.

The following day on June 4, 1994, a composite drawing of the assailant was composed by police officers with Williams’s help. The composite drawing was aired by a regional television station on the 10:00 p.m. news that same day. Esmeyer saw the telecast, and at about 12:45 a.m. the following morning, he called his first cousin, Mike McDougal, who worked for the Independence County Sheriff’s Department. He asked Officer McDougal if he was looking for a white Ford Tempo, and after McDougal responded affirmatively, Esmeyer told the deputy sheriff that he owned one. Officer McDougal asked Esmeyer if he had shot anyone, and Esmeyer answered that he needed to talk to him.

Officer McDougal contacted Officer Jeff Everetts, also of the Sheriff’s Department, and the two men went to Esmeyer’s home. They advised Esmeyer of his Miranda rights and had him execute a waiver-of-rights form. Esmeyer then answered questions about the location of the gun before invoking his right to counsel. After asking for counsel, he made additional comments to the deputy sheriffs. Esmeyer was arrested and charged with capital murder and attempted capital murder. Following a jury trial, he was convicted of first-degree murder, for which he received 40 years, and attempted first-degree murder, for which he received 30 years. The trial court ran the two sentences consecutively.

I. Tainted Jury Panel

Esmeyer’s first point on appeal arises out of the jury selection. During the selection of the alternate jurors, it was brought to the trial court’s attention that a potential juror, Robert Loggains, may have made inappropriate comments in the presence of other jurors. Two of Esmeyer’s daughters testified that they had heard Loggains, who was being questioned as a potential alternate juror, say “[L]ook at that killer between his two high-dollar attorneys.” Loggains testified that he did not make the statement or form any opinion about the case. The trial court, nevertheless, excused Loggains for cause.

After a recess, the prosecuting attorney told the trial court that Loggains apparently made additional statements as he was leaving the courtroom. Officer Alan CockriU of the Sixteenth Judicial District Drug Task Force testified that he heard Loggains speaking down a stairwell to one or more persons in the basement area where the jurors were located. Officer Cockrill heard Loggains state that he should have kept his mouth shut, for if he had done so, he could have “hung” Esmeyer. He also called Esmeyer a “yankee.” A woman responded that Esmeyer was from the area, but Loggains answered that Esmeyer had been up North long enough to learn “their ways.” Loggains also called Esmeyer a murderer.

The parties continued voir dire until the last alternate was seated. The trial court then asked Esmeyer’s counsel if he was going to move for a mistrial based on Loggains’s comments. Counsel stated that he was not seeking a mistrial at that point and expressed satisfaction with the composition of the jury.

Following that, remaining members of the venire were asked by the trial court whether they heard Loggains’s remarks. Four members stated that they had heard various remarks from a man who fit Loggains’s description. They testified that they generally ignored Loggains even though they had heard him say that he had made up his mind.

Esmeyer then moved for a mistrial on the basis that the jury was tainted. The prosecuting attorney responded that there had been extensive voir dire with regard to the seated jury and that the jurors had indicated that they had not heard anything when asked by the court. At that point, the trial court began questioning the jurors individually. Each juror denied hearing Loggains’s comments. One alternate juror, Holly Gage, testified that she heard a man fitting Loggains’s description make a racial comment that had nothing to do with the case, but she stated that what she heard would not affect her ability to serve as a juror. The trial court then announced that it was satisfied with the jury and denied the motions for declaration of a mistrial and to quash the jury. The court specifically ruled that there was not sufficient evidence, after speaking to each juror, to show that the panel was tainted.

Esmeyer now contends that the trial court abused its discretion in denying the motions to quash the panel or for declaration of a mistrial. A jury, though, is presumed to be unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). It is for the trial court to decide whether the jurors are qualified, and that finding will not be reversed absent a showing of abuse of discretion. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Cooper v. State, supra; Franklin v. State, supra; McFarland v. State, supra. In addition, a mistrial is a drastic remedy and appropriate only when the error is beyond repair and cannot be corrected by any curative relief. Goins v. State, supra. The trial court has broad discretion in deciding the issue. Id.

A scenario comparable to the instant case occurred in Goins v. State, supra. In that case, this court declined to reverse the trial court’s refusal to remove jurors for cause where the trial court had given the defendants the opportunity to explore the bias of jurors. In Goins, the defendants did not object to any of the jurors, and they did not identify any juror on appeal who should not have been seated. The same holds true in the case before us. Here, the trial court gave Esmeyer the opportunity to question the jurors about Loggains’s comments, but he did not do so. Moreover, he did not object to any specific juror and did not give his reasons for failing to do so. Hence, no prejudice was shown, and any assertion that the jury was tainted is speculative and does not rise to the level necessary to reverse the trial court’s decision.

II. Discovery Violation

Esmeyer next contends that the prosecuting attorney violated due process and Ark. R. Crim. P. 17.1(d) by not disclosing exculpatory evidence. See also Brady v. Maryland, 373 U.S. 83 (1963). He specifically complains that during Officer Jeff Everetts’s testimony at trial, the police officer revealed that a month or two after the shooting, he had heard that a pistol involved was hidden in an outhouse by the church. He went to investigate but found no gun. Officer Everetts admitted that he did not write about this rumor and his later search in his investigative notes. Based on this revelation, Esmeyer moved for a declaration of a mistrial at the close of the State’s case due to the State’s failure to notify him of the gun rumor. He complained that he had insufficient time to make an independent search of the outhouse and, thus, was denied the opportunity to search for the most critical piece of evidence to his claim of self-defense.

The State counters that Officer Everetts testified that he searched Williams, Passmore, and their vehicle for weapons but found none. The State also points to Officer Alan Cockrill’s testimony that he searched the outhouse on the day of the shooting. Officer Cockrill testified that there were cobwebs on the outhouse door but that he went ahead and looked for a gun inside the facility.

In sum, the State argues, first, that the rumored gun was not exculpatory because the grounds were searched and no gun was found. Searches transpired on the day of the shooting and also some time later. The State further emphasizes that Esmeyer knew about the rumor because during Officer McDougal’s testimony, which preceded Officer Everetts’s, Esmeyer’s counsel asked:

DEFENSE COUNSEL: During your investigation did you acquire any knowledge about Rita Passmore having a gun during this incident?
McDOUGAL: Only hearsay, sir.
DEFENSE COUNSEL: Well, did you receive information from another officer concerning Rita Passmore having a gun in the vehicle on this day in question?
McDOUGAL: All I’ve heard to that has been stricdy rumor.
DEFENSE COUNSEL: Well, no, let me ask you. Did you receive this from another officer?
McDOUGAL: Yes, I did.
DEFENSE COUNSEL: Who was that?
McDOUGAL: Officer Plenderson.
DEFENSE COUNSEL: As a matter of fact, did officer Henderson not tell you that he had heard it was thrown in that outhouse?
McDOUGAL: Yes, sir. That’s correct.

This colloquy occurred before Officer Everetts’s testimony. Yet the motion for mistrial based on the discovery violation was not made until after the conclusion of the State’s case.

The denial of Esmeyer’s mistrial motion should be affirmed for two reasons. It is true that information held by police officers is imputed to the prosecuting attorney. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). But a failure to disclose that information will not warrant a reversal of a conviction absent a showing of prejudice. Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). When the State fails to provide the information, the burden is on the appellant to show that the omission was sufficient to undermine the confidence in the outcome of the trial. Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995). Prejudice, though, does not exist when the defendant already has access to the information that the State did not disclose. See Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (1994). That is the circumstance in the case at hand.

But in addition, Esmeyer did not object to the testimony by Officer McDougal in a timely manner but waited until the close of the State’s case. We have held that mistrial motions must be made at first opportunity. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). The trial court was correct in denying the motion.

III. Miranda Violation

For his next point, Esmeyer urges that certain of his statements must be suppressed due to Miranda violations. At the ensuing suppression hearing, Officer McDougal testified that when he and Officer Everetts arrived at Esmeyer’s house during the early morning hours of June 5, 1994, Esmeyer was informed that they were investigating the Passmore shooting, and he was read his Miranda rights. Esmeyer initialed and signed the waiver-of-rights form. Officer Everetts then asked if the gun was in the house, and Esmeyer responded that it was not in the residence (Statement # 1). Officer Everetts testified that when he asked Esmeyer if he knew where the gun was, he replied that he did and that he would take the police officers to it in the morning (Statement # 2).

At that time, Esmeyer requested to speak to an attorney, and questioning about the crime ceased. He was placed under arrest and taken to the Sheriff’s Department. Officer Everetts testified:

[AJfter I explained that he was under arrest, he stuck his hands out to be cuffed. I asked him about his family, you know, if we needed to secure the trailer or whatever. He said that before we arrived he had done had his family leave the residence, he didn’t want them there when we arrived. After we started walking out, Mr. Esmeyer made the statement I seen the picture on TV, I knew you all would be here pretty soon. [Statement # 3.]

Later, Officer McDougal testified that while they were at the Sheriff’s Department, Esmeyer began asking questions about the booking procedures. Officer McDougal testified:

McDOUGAL: He asked me if I knew any good attorneys, or if I could recommend one, and I told him that I wasn’t supposed to do that.
PROSECUTOR: And what did he say to you after that?
McDOUGAL: Well, he made a statement at that time that I shouldn’t have done it but I don’t feel sorry about it. [Statement # 4.]

McDougal further testified that Esmeyer told him after his arrest and when they were driving to the Sheriff’s Department that he shot Passmore in self-defense.

The trial court ruled that Esmeyer voluntarily waived his rights for purposes of Statements #1 and #2. The court then ruled that the statements made after Esmeyer invoked his right to counsel that he “knew [they] would be coming” (Statement #3) and that he “shouldn’t have done it” (Statement #4) were voluntarily made because they were not made in response to police interrogation.

A defendant’s waiver of his Fifth, Sixth, and Fourteenth Amendment rights must be voluntarily, knowingly, and intelligendy made. Miranda v. Arizona, 384 U.S. 436 (1966). In order to admit into evidence an incriminating statement made pursuant to a waiver, the State must prove by a preponderance of the evidence that the waiver was made in proper fashion. Colorado v. Connelly, 479 U.S. 157 (1986). A valid waiver is said to be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421 (1986). A statement made while in police custody is presumed to be involuntary. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). In addition, the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it in order for his waiver to be voluntary. Moran v. Burbine, supra.

In determining admissibility, this court reviews the totality of the circumstances and reverses only when the trial court’s finding of voluntariness is clearly against the preponderance of the evidence. Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). Conflicts in the testimony are for the trial court to determine and will not be reversed unless clearly erroneous. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994). Here, Esmeyer was read his rights, and he signed the waiver-of-rights form. Officers McDougal and Everetts testified that it appeared that Esmeyer understood his rights, and that point is apparent because he later invoked his right, to counsel. Considering these facts, the trial court’s finding of a voluntary waiver was correct.

With regard to Statements #3 and #4 after Esmeyer invoked his right to counsel, the framework for analyzing their admissibility was set forth in Edwards v. Arizona, 451 U.S. 477, 484 (1981):

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. (Emphasis ours.)

Thus, a statement will be admissible only if the accused initiated further contact, and in doing so knowingly and intelligently waived the right he had invoked. Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991); Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). The pertinent inquiry is whether the defendant initiated the interrogating process with the police, after invoking his right to counsel. See Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995); Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989).

It is clear that Esmeyer spontaneously made both Statements #3 and #4 to the police officers, and we observe no basis for reversing the trial court’s ruhng to allow Statements #3 and #4 into evidence under the totality-of-the-circumstances test. The record supports a conclusion that the police officers did not question Esmeyer for the purpose of soliciting these additional statements. See Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). Moreover, the fact that the trial court suppressed other statements about the gun and the gun itself as violative of Miranda does not render Statements #3 and #4 inadmissible. We conclude that Esmeyer’s Statements #3 and #4 were voluntarily made.

IV Doyle Violation

For his final point, Esmeyer argues that the trial court erred in permitting the introduction of his waiver-of-rights form and by otherwise allowing the prosecuting attorney to comment on his silence during the police interrogation. We agree with the trial court that no violation occurred under Doyle v. Ohio, 426 U.S. 610 (1976).

In Doyle v. Ohio, supra, the defendants were cross-examined by the prosecutors about their post-Miranda silence and asked why they told an exculpatory story for the first time at trial. The Supreme Court held that this was reversible error:

[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Doyle v. Ohio, 426 U.S. at 618. See also Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985).

Here, the waiver-of-rights form was provided to the jury and mentioned on various occasions throughout the trial. Furthermore, during Esmeyer’s cross-examination, the following colloquy occurred:

PROSECUTOR: Okay. And you didn’t stay — you’re here now claiming self-defense, she had a gun, and here you didn’t stay, you didn’t stay and say, hey, folks, Mr. Police Officer, here, that lady pulled a gun on me because that gun would be right there in the car, its right there folks. You didn’t stay and give that information, did you?
ESMEYER: No sir.
PROSECUTOR: Well, I want to get to that. But Mike McDougal, and you know that your cousin was questioned by J. R. Howard back on June 5th, don’t you, and gave a complete statement, and he didn’t say anything about that it was self defense then, but in regard to that, I said, I shouldn’t have done it but I don’t feel sorry about it. Did you say that?
ESMEYER: No, that’s not exactly what I said.

This colloquy, Esmeyer contends, evidences a prosecutorial comment on his right to silence.

The crux of Esmeyer’s argument appears to be that he waived his Miranda rights, and that fact was made known to the jury by the waiver-of-rights form, but then he refused to make a narrative statement. That could suggest to the jury, according to Esmeyer’s theory, that he had something to hide which would violate his Fifth Amendment right against self-incrimination. We give this argument litde credence for one primary reason. Esmeyer did make certain statements after being warned of his rights — Statements #1, #2, #3, and #4 — and these statements were allowed into evidence. Thus, he did talk to police after being advised of his rights, and we fail to see under these circumstances how any impingement of his right to silence occurred. Moreover, we have held that the waiver-of-rights form is relevant as corroborative evidence of the inculpatory statements made by an accused. See Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

Furthermore, unlike the facts in Doyle v. Ohio, supra, Esmeyer had maintained a justification defense before trial and imparted that to Officer McDougal. According to Officer McDougal, Esmeyer told him shortly after his arrest that he shot Passmore and Williams in self-defense. Hence, Esmeyer had not been silent about his theory of the case prior to trial. Finally, the evidence of guilt in this case was overwhelming. We observe no basis for a Doyle violation.

Affirmed.


source: Caselaw Access Project

author: Andree Layton Roaf, Justice.

license: Public Domain

text:
    Damion Jemon BROWN v. STATE of Arkansas
    CR 96-73
    929 S.W.2d 146
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Chris Tarver, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior App. Advocate, for appellee.
   Andree Layton Roaf, Justice.

Appellant Damion Jemon Brown was charged with capital felony murder for the killing of Jess Brown during an attempted robbery. He was convicted of the lesser included offense of first-degree felony murder and sentenced to life imprisonment. For his sole point on appeal, he contends that the trial court erred in refusing to instruct the jury on the lesser included offense of second-degree murder. We find no merit to the argument and affirm the conviction.

On February 22, 1994, Jess Brown was shot while he was working at Rocky’s One Stop convenience store in Litde Rock. Subsequendy, two men were seen running from the convenience store. Jess Brown died as a result of a single gunshot wound to the chest and abdomen.

At trial, the State introduced a taped statement made by Damion Brown in which he stated that he and Greg Hogue were standing outside of Rocky’s One Stop. The plan was for Brown to stand in the doorway to watch for people while Hogue robbed the store. According to the statement, Damion Brown entered the store first, the store owner pulled a gun, and Damion Brown dropped to the floor. Damion Brown stated that Greg Hogue fired the shot that killed Jess Brown.

Marcus Hall, an employee of Rocky’s One Stop, testified that he went to the store on the evening of the shooting to purchase batteries. Hall testified that when he arrived at the store, he observed two men behaving suspiciously at a washeteria next door and warned Jess Brown about them. He stated that Jess Brown had several guns positioned around the convenience store, including one hidden beneath some paper on the counter beside the cash register. Hall further testified that Jess Brown was standing behind the cash register, and Hall was bent over behind Brown searching for batteries when he heard a gunshot and saw that Brown had been shot. The defense presented the testimony of Mark Poindexter, a co-defendant in the case who had testified in a prior proceeding, for the purpose of showing that the robbery was not Damion Brown’s idea. Poindexter’s entire testimony was read to the jury. Poindexter testified that he, Damion Brown, Greg Hogue, and two others drove in Poindexter’s car to a park down the street from Rocky’s One Stop in order to commit a robbery. He stated that Damion Brown and Greg Hogue left the car, covered their faces with ski masks or bandannas and, armed with guns, walked to the store. He further testified that he heard a gunshot, and Hogue and Brown ran back to the car.

After the conclusion of all the evidence, the jury was instructed on capital felony murder, the lesser included offense of first-degree felony murder, aggravated robbery, accomplice liability, and the affirmative defense to capital felony murder that Brown did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. The jury found Brown guilty of first-degree felony murder and aggravated robbery. The aggravated robbery verdict was merged in the first-degree murder conviction, and Brown was sentenced by the jury to life imprisonment.

On appeal, Brown asserts that the trial court erred in refusing to instruct the jury on the lesser included offense of second-degree murder. Brown was charged by information with capital murder and aggravated robbery. The capital murder count alleged that Brown, acting alone or with one or more persons, committed or attempted to commit aggravated robbery and, in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice caused the death of Jess Brown under circumstances manifesting extreme indifference to the value of human life. Prior to submission of the case to the jury, Brown requested that the jury be instructed on the offense of second-degree murder on the basis that it was a lesser included offense of capital felony murder. Brown proffered an instruction on second-degree murder, and the trial court refused to give the instruction. On appeal, Brown contends that a rational basis existed for the jury to conclude that he, through the transferred intent of Hogue, knowingly caused the death of another person under circumstances manifesting extreme indifference to the value of human life.

This court has held that where a rational basis for a verdict of acquittal on the greater offense and conviction on the lesser offense exists, the trial court should give the lesser included offense instruction, and it is reversible error not to do so. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Error occurs when the trial court refuses to give the lesser included instruction where there is the slightest evidence to warrant it. Id. Consequently, we must determine whether second-degree murder is a lesser included offense of capital felony murder and, if so, whether there was sufficient evidence to warrant the instruction on second-degree murder.

Before an offense will be considered a lesser included offense of a greater one, three basic requirements must be met: (1) the lesser offense must be established by proof of the same or less than all the elements of the greater offense; (2) the lesser offense must be of the same generic class as the greater offense; and (3) the differences between the two offenses must be based upon the degree of risk or injury to person or property or upon grades of intent or degrees of culpability. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). Arkansas Code Annotated § 5-10-101 (Supp. 1995), Capital murder, provides in part:

(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, vehicular piracy, robbery, burglary, a felony violation of the Uniform Controlled Substances Act, §§ 5-64-101 - 5-64-608, involving an actual delivery of a controlled substance, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life .

(Emphasis added.) Arkansas Code Annotated § 5-10-103 (Repl. 1993), Murder in the second degree, provides in part:

(a) A person commits murder in the second degree if:
(1) He knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life . . .

(Emphasis added.) Second-degree murder, as defined, requires proof that a person “knowingly” cause the death of another person. In contrast, it is setded law that felony murder simply requires that a death be caused in the course of committing a felony. See Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600 (1973) (first-degree murder conviction upheld where homeowner’s daughter accidendy shot by father during burglary attempt by appellant). Accordingly, because second-degree murder requires proof of an element not required for proof of felony murder, second-degree murder is not a lesser included offense of felony murder. See Tackett v. State, supra.

In addition, we have stated:
Where the indictment for a greater offense does not contain allegations of all the ingredients of the lesser offense,-a conviction of the lesser cannot be sustained, even though the evidence may supply the missing element.

(Emphasis added.) Henderson v. State, 286 Ark. 4, 688 S.W.2d 734 (1985) (quoting Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972)). In the instant case, the information simply charged that Damion Brown or an accomplice caused the death of Jess Brown during the course of a felony. The information did not allege that Brown possessed any culpable mental state in causing the death; an allegation as to a culpable mental state is a necessary element to the charge of second-degree murder. Therefore, a conviction of the lesser offense could not be sustained, even if, as Brown contends, there was evidence of a knowing mental state. See Henderson, supra.

Brown also asserts on appeal that two previous decisions of this court require reversal of his conviction. In Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994), this court held that a single stab wound to the chest penetrating the heart constituted sufficient circumstantial evidence to show that the appellant knowingly caused the death of another. Davis was charged with first-degree murder, and, at his trial, the jury was also instructed on the lesser included offenses of second-degree murder and manslaughter. However, Davis was convicted for the murder of a man with whom he had been living, and he had been seen arguing with the victim within an hour of the estimated time of death. It is clear that Davis did not involve a charge of felony murder.

Brown’s reliance upon the case of Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990) is also misplaced. Hill, like Brown, was charged with capital felony murder committed in the course of a robbery, and, like Brown, he was convicted of first-degree murder. The trial court refused Hill’s proffered jury instruction on the lesser included offense of first-degree felony murder and instead erroneously instructed the jury on first-degree murder after premeditation and deliberation. On appeal, Hill challenged the trial court’s failure to give the proper instruction on first-degree murder. We set aside Hill’s conviction of first-degree murder and reduced his conviction to that of second-degree murder, for which an instruction had been given without objection. Although in Hill we said, without discussion, that “within the capital murder charge is the lesser included offense of second-degree murder,” it is clear that second-degree murder is a lesser included offense of capital murder only if the accused’s mental state is an element of the offense. To the extent that the discussion in Hill regarding second-degree murder as a lesser included offense of capital murder may be in conflict with the clearly articulated principles regarding lesser included offenses set forth in Tacket v. State, supra, and Henderson v. State, supra, we take this opportunity to clarify Hill. Accordingly, we hold that second-degree murder is not a lesser included offense of capital felony murder as set forth in Ark. Code Ann. § 5-10-101 (a)(1).

Ark. Sup. Ct. R. 4-3 (h)

The record has been examined in accordance with Arkansas Supreme Court Rule 4-3 (h), and there were no ruhngs adverse to Brown which constituted prejudicial error.

Affirmed.


author: ANDREE LAYTON ROAF, Justice.

text:
    Jimmy Don WOOTEN v. STATE of Arkansas
    CR 95-975
    931 S.W.2d 408
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   ANDREE LAYTON ROAF, Justice.

Appellant Jimmy Don Wooten was convicted of capital murder, criminal attempt to commit capital murder, and aggravated assault. Wooten was sentenced to death by lethal injection on the capital murder charge, thirty years’ imprisonment on the attempt-to-commit-capital-murder charge, and six years’ imprisonment on the aggravated-assault charge. On appeal, he contends that the trial court erred in (1) overruling his Batson objection during jury selection, (2) in allowing victim-impact evidence during the penalty phase of his trial, and (3) in failing to suppress identification testimony. We find no error and affirm.

On August 5, 1994, David LaSalle, Henry Teb Porter, and Molly Porter were hiking on a forest trail near the Long Pool recreation area in Pope County when they encountered appellant Jimmy Don Wooten. Wooten was riding a six-wheel all-terrain vehicle. At trial, Henry Porter testified that the group had three encounters with Wooten before he attacked them and shot David LaSalle. LaSalle died as a result of a single gunshot wound to the head. Porter also testified that Wooten shot him in the shoulder, forearm, and face, and that he was able to remove the key from Wooten’s all-terrain vehicle before Wooten chased him into the woods. Molly Porter, Henry Porter’s daughter, testified that Wooten shot LaSalle and shot her father and chased after him.

On the day of the shooting, Wooten reported that an assailant who looked just like him had stolen his six-wheel vehicle while he was fishing near Long Pool and had shot at him using the .22-caliber pistol he had in the vehicle. Wooten claimed that he later found the vehicle with the gun abandoned by the side of the road near his truck. A .22-caliber bullet was recovered from David LaSalle’s body. It was determined that Wooten’s gun fired a spent .22-caliber cartridge found at the location where LaSalle and Porter were shot. In addition, swimming trunks found at Wooten’s home matched Henry and Molly Porter’s description of trunks worn by the assailant.

In a bifurcated proceeding, the jury found Wooten guilty of capital murder. During the penalty phase of his trial, the jury found one aggravating circumstance and concluded that it justified beyond a reasonable doubt a sentence of death.

1. Jury Selection

Wooten first argues that the trial court erred in allowing the state to remove the sole African-American from the jury panel by a peremptory strike when she was otherwise qualified and unbiased and not challenged for cause. In Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996), we recently set forth the standard to be applied in reviewing an objection based upon Batson v. Kentucky, 476 U.S. 79 (1986). We wrote:

The procedures to be followed when a Batson objection is raised are well established:
First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.
Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995). Further, this Court has stated that a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire. Id. The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Id.

In the instant case, the State exercised a peremptory challenge to excuse Ms. Shirley Hadey. The prosecuting attorney stated that Ms. Hadey could not say that she would be able to sign the death-penalty form if the State proved its burden. Counsel for Wooten objected based upon Batson and stated for the record that Ms. Hadey was the sole African-American on the panel. Wooten’s counsel asserted that Ms. Hatley in fact stated that she could consider the death penalty. In response, the prosecuting attorney asserted that Ms. Hatley was the only juror who stated that she did not know whether she could sign the death-penalty form. The prosecuting attorney also noted for the record that Wooten and the officers involved in the case were all white, but he conceded that Wooten was not precluded from raising a Batson objection. See Powers v. Ohio, 449 U.S. 400 (1991) (defendant’s race is irrelevant to his standing to object to the discriminatory use of peremptory challenges).

In overruling Wooten’s Batson objection, the trial court concluded that Ms. Hatley was very hesitant in her responses to the state and that she never said that under the proper circumstances she could actually vote for the death penalty. The trial judge stated, “I don’t think there is a proper Batson situation here and I’ll allow them to use a peremptory challenge on Ms. Hatley.”

On appeal, Wooten contends that a prima facie case was established because the sole African-American was excused from the panel. See Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). Granted, we have stated that the prosecution’s use of a peremptory challenge to remove the only black prospective juror may establish a prima facie case. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). However, as in Prowell v. State, supra, here the prosecutor volunteered an explanation for the challenge, and the trial court made no specific ruling on whether a prima facie case was made. In Prowell, this court recognized that once a prosecutor has offered a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. See Hernandez v. New York, 500 U.S. 352 (1991).

Wooten also asserts that the State failed to provide a racially neutral reason for the challenge, and he contends that a white venireperson examined at the same time as Ms. Hatley and two others who were questioned after Ms. Hatley was excused gave answers similar to Hatley’s, but were not challenged. In support of his argument, Wooten cites Ford v. Norris, 67 F.3d 162 (8th. Cir. 1995), where the court stated that “a prosecutor’s failure to apply a stated reason for striking black jurors to similarly situated white jurors may evince a pretext for excluding jurors solely on the basis of race.”

However, Wooten did not present this argument to the trial court. In fact, Wooten did not mention other similarly situated jurors when the prosecuting attorney stated that Ms. Hatley was the only juror to that point who had said she did not know if she could sign the form or when the trial court noted that Ms. Hadey was very hesitant in her responses to the State. Because an appellant may not change his grounds for objection on appeal, this point is not preserved on appeal. Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). We do not address arguments made for the first time on appeal. Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996).

2. Victim-Impact Evidence

Wooten next argues that the trial court erred in allowing the state to use victim-impact evidence in the State’s initial presentation during the penalty phase rather than as rebuttal to any mitigating evidence offered by Wooten.

During its initial presentation of evidence in the sentencing phase of the trial, the State introduced victim-impact testimony from David LaSalle’s wife. Prior to the beginning of the sentencing phase, Wooten asserted that under Payne v. Tennessee, 501 U.S. 808 (1991), victim-impact evidence could only be admitted to counteract or rebut mitigating evidence offered by the defendant. Wooten contended that the State could not present the evidence during its initial presentation in the sentencing phase. The trial court concluded that the General Assembly had authorized the use of victim-impact testimony and that Payne did not clearly provide that victim-impact testimony was limited to rebut mitigating evidence. On appeal, Wooten again argues that victim-impact evidence may be offered only to rebut certain evidence in mitigation offered by the defendant.

The basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning. Hercules Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995); see also State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). The legislative intent is gathered from the plain meaning of the language used. Id. Arkansas Code Annotated § 5-4-602(4) (Repl. 1993), Capital murder charge Trial procedure, provides in part:

(4) In determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in § 5-4-604, any mitigating circumstances, or any other matter relevant to punishment, including, but not limited to, victim impact evidence, provided that the defendant and the state are accorded an opportunity to rebut such evidence.

We initially note that the statute clearly provides that evidence may be presented as to any matter relevant to punishment, including, but not limited to, victim-impact evidence. The statute does require that the defendant and the State be accorded an opportunity to rebut such evidence; however, the statute does not provide that such evidence be limited to rebuttal.

In further support of his argument, Wooten relies on Section 2 of Act 1089 of 1993. Act 1089 enacted § 5-4-602(4), and section 2 provided:

It is the express intention of this act to permit the prosecution to introduce victim impact evidence as permitted by the United States Supreme Court in Payne v. Tennessee, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

Wooten argues in essence that the General Assembly intended to restrict the use of victim-impact evidence to those limits imposed by Payne and that Payne only permits victim-impact evidence to rebut evidence of mitigation offered by the defendant.

We do not agree with Wooten’s reading of the statute or of Payne. Wooten’s interpretation of Payne is too narrow; he concludes that the Supreme Court’s reference to “counteracting” mandates that victim-impact evidence be limited to the rebuttal phase of sentencing. Granted, the Court in Payne stated that “the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entided to put in.” (Emphasis supplied.) However, the Court in the same paragraph stated that “[w]e are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.” Payne, 501 U.S. at 825. The Court went on to hold as follows:

We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.

Payne, 501 U.S. at 827.

3. Identification Testimony

For his final argument, Wooten contends that the trial court erred in denying his motion to exclude evidence of his identification in a lineup because the lineup was unduly suggestive in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Prior to trial, Wooten moved to suppress testimony regarding both his pretrial and in-court identification because the pretrial physical lineup procedures were unduly suggestive, and any subsequent in-court identification would be tainted by the pretrial procedures. On appeal, Wooten submits that the trial court erred in failing to suppress the evidence of the lineup and the identification testimony of Henry Porter and Molly Porter.

We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996). In determining whether an in-court identification is admissible, we look first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect; it is the appellant’s burden to show that the pretrial identification procedure was suspect. Id. A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Id.

However, even when the process is impermissibly suggestive, the trial court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be submitted to the jury, and then it is for the jury to decide the weight the identification testimony should be given. Id. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Id.

Both Henry Porter and Molly Porter selected Wooten from a lineup conducted on the day of the incident and identified him as the assailant at trial. At the suppression hearing, Johnny Casto of the Pope County Sheriff’s Department testified that Henry Porter initially described the assailant as being in his late twenties, five feet, seven inches tall, approximately 135 to 140 pounds, with sandy blond hair. Mr. Porter did not state that the assailant had either a mustache or beard. Pope County Sheriff Jay Winters testified that Molly Porter described the assailant as being in his late twenties with light brown hair, 5'6" tall, and approximately 140 to 150 pounds. She also did not mention a beard or mustache. Appellant Wooten contends that the lineup conducted was overly suggestive because, based upon the description provided by the two witnesses, it was inevitable that he would be picked.

Wooten submits that he was the shortest person in the lineup by three to four inches. He asserts that the person closest to his height had gray hair and a mustache, that two other persons depicted in the lineup had facial hair, and that two persons appeared to be in their late teens or early twenties. The trial court concluded that he did not see “much disparity at all” between the individuals placed in the lineup and “there’s nothing to the Court that appears to be suggestive.” We cannot say that the trial court’s ruling was clearly erroneous; there is simply nothing in the lineup that would direct a witness toward Wooten as the assailant. See King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996). Further, an accused is not entided to have a lineup in which all the participants are identical. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Moreover, even when the pretrial process is impermissibly suggestive, the trial court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be submitted to the jury. See Prowell v. State, supra. On appeal, Wooten submits that the in-court identification was not sufficiently reliable because there was no evidence presented as to the witnesses’ degree of attention or their opportunity to view the assailant during the crime.

However, Wooten did not obtain a ruling on his motion to suppress the in-court identification; therefore, this point is not preserved on appeal. At the conclusion of the suppression hearing, the trial court stated that “with respect to your motion to suppress evidence of in-court identification, it’s a little premature.” Counsel for Wooten stated that, given the court’s ruling on his motion to suppress the lineup identification, he agreed with the trial court. Wooten did not object at trial when Henry Porter and Molly Porter identified him as the assailant. We have repeatedly stated that failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review of the issue on appeal. Laudan v. State, 322 Ark. 58, 907 S.W.2d 131 (1995); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995).

Ark. Sup. Ct. R. 4-3(h)

The . record has been examined in accordance with Arkansas Supreme Court Rule 4-3 (h), and there were no ruhngs adverse to Wooten which constituted prejudicial error.

Affirmed.


author: Per Curiam.

text:
    Lester Tyrone BROOKS v. STATE of Arkansas
    CR 96-771
    927 S.W.2d 801
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Appellant, pro se.
    No response.
   Per Curiam.

Appellant Lester Tyrone Brooks moves this court to declare him indigent for purposes of appeal. He attaches an affidavit to establish indigency which is duly executed. We note from the partial record filed that the appellant had retained counsel for trial who is different from counsel petitioning on appellant’s behalf for indigency. Because of this fact, we remand this matter to the trial court for a determination of indigency and for appointment of counsel for appeal, if indigency is found.


text:
    James GUSS v. STATE of Arkansas
    CR 96-905
    928 S.W.2d 336
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Jeffrey H. Kearney, for appellant.
    No response.
   Per Curiam.

Appellant James Guss, by his attorney, Jeffrey H. Kearney, has filed a motion for a rule on the clerk. Appellant filed a timely notice of appeal from the denial of his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. His attorney admits by motion that the record of the postconviction proceedings was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is therefore granted.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: PER CURIAM.

text:
    David Anthony WEBB v. STATE of Arkansas
    CR 96-711
    928 S.W.2d 793
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Zimmery Crutcher, Jr., for appellant.
    No response.
   PER CURIAM.

Appellant David Anthony Webb by his attorney Zimmery Crutcher, Jr., petitions the court for (1) a writ of certiorari to complete the record and to designate funds to pay for the trial transcript, and (2) for a rule on the clerk regarding the transcript to be prepared.

The facts alleged in the petition are these. On March 22, 1996, the appellant moved to dismiss his trial attorney, Mr. Crutcher, without notice to Mr. Crutcher.

On March 27, 1996, the appellant filed a notice of appeal and request to proceed in forma pauperis, also without notice to Mr. Crutcher.

On April 11, 1996, an affidavit was filed by the court reporter, stating that she had not received a copy of the notice of appeal and that no arrangements had been made with her about the trial transcript.

On June 14, 1996, the trial court notified Mr. Crutcher that a partial record had been filed in the Supreme Court on May 30, 1996, and that the completed record was due June 23, 1996. Mr. Crutcher was given the option of filing the complete record or moving this court to relieve him as counsel.

On June 19, 1996, Mr. Crutcher moved to withdraw as counsel, and on July 8, 1996, that motion was denied by this court. Mr. Crutcher now points out in the indigency petition that his petition to withdraw was filed before the deadline for filing the record but denied by this court after the deadline had passed.

No affidavit of indigency executed by the appellant accompanied these petitions. Hence, this court is unable to determine the indigency status of the appellant. Without that determination, it is premature to grant the petition for writ of certiorari to complete the record. And, without a complete record, it is premature to consider a petition for rule on the clerk.

We emphasize again that Mr. Crutcher was retained counsel during the trial of this matter. We remand this matter to the trial court for a determination of indigency and, if indigency is found, for appointment of counsel for appeal.


text:
    SOUTHLAND RACING CORPORATION and Darby Henry v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas
    96-1016
    927 S.W.2d 338
    Supreme Court of Arkansas
    Opinion delivered September 18, 1996

      Wright, Lindsey & Jennings, by: Alston C. Jennings, John G. Lile, and Stephen R. Lancaster, for petitioners.

      Ann Purvis, and Winston Bryant, Att’y Gen., by: Wendy Michaels, Asst. Att’y Gen., for respondent.
   PER CURIAM.

On August 2, 1996, respondent Sharon Priest, Secretary of State for the State of Arkansas, certified Proposed Amendment 6 bearing the popular name “Amendment to Prohibit Gambling on Contests or Games of Chance or Skill and Specifically Prohibiting Gambling on Horse Racing and Dog Racing” for the ballot for the general election on November 5, 1996. In doing so, the Secretary of State declared that Proposed Amendment 6 satisfied constitutional requirements.

On August 30, 1996, petitioners Southland Racing Corporation and Darby Henry (Southland) filed an original action petition in this court under Amendment 7 of the Arkansas Constitution, alleging (1) that there were various defects in the signatures required to place Proposed Amendment 6 on the ballot, and (2) that the ballot title was “insufficient, misleading, and tinged with partisan coloring.” Southland prayed for the appointment of a special master to make findings concerning the sufficiency of Proposed Amendment 6, for a declaration that the ballot tide is insufficient, and for an injunction enjoining the Secretary of State from placing Proposed Amendment 6 on the ballot. Southland filed a companion motion that same date for an expedited scheduling order, for appointment of a special master, and for leave of the court to take depositions.

On September 6, 1996, the Secretary of State filed her response to the original petition and asserted that she had been informed that the proponent of Proposed Amendment 6, the Christian Civic Action Committee, would not offer a defense to Southland’s allegations regarding various defects in the signature process. The Secretary of State requested that in the absence of a defense this court remove Proposed Amendment 6 from the ballot and decline to appoint a special master. Attached to the Secretary of State’s response was a Resolution of the Executive Committee of the Christian Civic Action Committee dated September 4, 1996, which requested that the Secretary of State and Attorney General enter into a “Consent Judgment” which “will have the effect of removing proposed Amendment Six from the November 5, 1996, general election ballot.” The Secretary of State also responded to Southland’s motion for an expedited scheduling order and stated that it is moot.

On September 11, 1996, Southland moved for expedited consideration of the Secretary of State’s consent to an order removing Proposed Amendment 6 from the ballot or, alternatively, for an order authorizing it to commence discovery. Also, on September 11, 1996, a Stipulation of Parties was filed by the Secretary of State, Southland, and the Attorney General in which it was agreed by those entities that Proposed Amendment 6 lacked sufficient signatures to qualify for the ballot and that it should be struck from the ballot. The Stipulation also states that the Christian Civic Action Committee had informed the Secretary of State that it could not meet its burden of establishing the authenticity of the necessary signatures.

It is clear to this court that the proponent of Proposed Amendment 6 as well as Southland, the Secretary of State, and the Attorney General all concur that the proposed amendment should be removed from the ballot. We, therefore, direct the Secretary of State to remove Proposed Amendment 6 from the November 5, 1996 general election ballot and cease all election activities relating thereto.


author: BRADLEY D. Jesson, Chief Justice.

text:
    George Anthony JOHNSON v. STATE of Arkansas
    CR 96-284
    929 S.W.2d 707
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      William R. Simpson, Jr., Public Defender, by: C. Renae Ford, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   BRADLEY D. Jesson, Chief Justice.

The appellant, George Anthony Johnson, was convicted of aggravated robbery and misdemeanor theft of property and was sentenced as a habitual offender to forty years’ imprisonment. His sole allegation on appeal is that the trial court erred in denying his motion for directed verdict. We affirm.

The following evidence, viewed in a light most favorable to the State, was elicited at trial. Amy Rollins and Jennifer Anderson, scholarship volleyball players attending the University of Arkansas at Little Rock, were at a party at the South Oaks Apartments during the evening hours of February 26, 1994. As they were leaving the party with two of their teammates, Tonya Wolfe and Adonia Guevera, they met a man standing outside the complex. The man, who was later identified as the appellant, told the women that he was from California, was new in town, and wanted to meet some people. Wolfe and Guevera were from Napa Valley and San Diego, California, respectively, and began talking to appellant about their homestate. After talking to him for several minutes, the women went inside a unit that all but Rollins shared with Michelle Wilson, another fellow UALR student and teammate.

The following afternoon, appellant knocked on the door of the apartment. Wilson answered. Appellant introduced himself, explaining that he was from California and that he knew Wolfe and Guevera. Wilson told appellant that her roommates had gone to get a pizza. She felt comfortable as appellant casually walked inside. The two engaged in casual conversation before appellant asked to use the bathroom.

When appellant exited the bathroom, he was wielding a pair of scissors. He attempted to stab Wilson in the neck and arm while demanding money and jewelry. Though Wilson explained that she had neither, appellant proceeded to go through dresser drawers, jewelry boxes, and cupboards. He took Anderson’s watch and ring and Wilson’s video cassette recorder. When Wilson tried to run out the door, appellant stabbed her in the arm -with the scissors. He told her he had a gun and threatened that if she tried to leave the apartment again, he would shoot her. Appellant then ordered Wilson to go into the bathroom and shut the door. When Wilson was sure appellant had left the apartment, she went to a nearby unit and called police.

Nearly two weeks after the incident, Wilson, Anderson, and Rollins were separately shown a photographic lineup. Wilson positively identified appellant as her assailant. Anderson and Rollins likewise identified appellant as the man they had met the night before the incident.

We treat the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. We examine such challenges under the following guideposts:

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. On appellate review, it is only necessary for this court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict.

Choate v. State, 325 Ark. 251, 925 S.W.2d 409 (1996); citing King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). At the close of the State’s case, appellant moved for a directed verdict as follows:

[W]e would move for a directed verdict based on the sufficiency of the evidence. That, number one, scissors are not a deadly weapon; and number two, that they are not — they have not shown that he threatened to employ physical force upon her with a deadly weapon.

Appellant renewed his motion at the close of all the evidence. While he presents numerous arguments in his brief as to why his directed-verdict motion should have been granted, we limit our review to the two grounds appellant presented to the trial court. See Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994).

Appellant first argues that scissors are not a deadly weapon. A person commits aggravated robbery if, with the purpose of committing a felony misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another, and is armed with a deadly weapon or represents by word or conduct that he is so armed. Ark. Code Ann. §§ 5-12-102 and 5-12-103 (Supp. 1995). A deadly weapon is a firearm or “[a]nything that in the manner of its use or intended use is capable of causing death or serious physical injury.” Ark. Code Ann. § 5-1-102(4) (Supp. 1995). There can be no serious challenge to the proposition that scissors are capable of causing death or serious physical injury. In fact, we have affirmed homicide cases where scissors were the weapon of choice in causing death. See e.g., McLendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994)(appellant’s conviction for capital murder affirmed where she stabbed her father with a pair of scissors, and her co-defendants stabbed him with a knife); Riggins v. State, 253 Ark. 1007, 490 S.W.2d 124 (1973) (appellant’s voluntary manslaughter conviction affirmed where she stabbed the victim with a pair of scissors). In short, scissors clearly fall within the definition of a deadly weapon. Appellant’s argument is meritless.

Appellant also preserved the argument that the State failed to show that he threatened to employ physical force upon victim Michelle Wilson with a deadly weapon. This contention is equally meritless. Not only did Wilson testify that appellant stabbed her with a pair of scissors, she also stated that he threatened her with a gun, telling her that if she tried to leave the apartment, he would shoot her. As appellant represented to Wilson that he had a gun, this representation was sufficient to sustain his conviction for aggravated robbery. See Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990). Based on the foregoing, we conclude that the evidence was sufficient to support appellant’s conviction of the crimes charged.

Affirmed.


author: ROBERT H. Dudley, Justice.

text:
    Steven Dean ARMER v. STATE of Arkansas
    CR 96-15
    929 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   ROBERT H. Dudley, Justice.

A police officer saw a disabled car on the side of the road, stopped, looked inside, and in plain view saw Steven Dean Armer passed out in the back seat with about a thousand Valium tablets, several syringes, a coke spoon, and a pipe. Armer was charged with possession of a controlled substance with intent to deliver and with possession of drug paraphernalia. At trial, the jury returned a verdict of guilty on both counts. A part of the bifurcated sentencing procedure provides that after the jury finds a defendant guilty, it shall hear additional evidence, if any, relevant to sentencing and retire to determine the sentence. However, the defendant may waive jury sentencing, with the agreement of the prosecuting attorney and the consent of the trial court, and let the court impose sentence. Ark. Code Ann. § 16-97-101 (Supp. 1993). After the jury returned its verdict of guilt, Armer’s counsel announced, “Your honor, we will waive jury sentencing and let the court decide it.” The trial court inquired of Armer personally, and in response, Armer affirmed that he understood he had the right to have the jury set the punishment, but that he wanted the trial court to decide punishment. The trial court sentenced Armer to four years in prison on each count, with the sentences to run concurrently.

Armer appealed and argued that the trial court erroneously refused to allow him to ask certain questions on voir dire. The court of appeals affirmed both convictions by a tie vote, three to three. Armer v. State, 51 Ark. App. 173, 912 S.W.2d 436 (1995). We granted a petition for review because of the tie vote. When this court grants a petition for review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Maloy v. Stuttgart Memorial Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994); Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). Upon such a review, we affirm the convictions.

During voir dire Armer’s attorney referred to an off-the-record discussion. We have often condemned the practice of off-the-record discussions because, just as in this case, it is impossible for us to know the specific basis of the objection and the exact ruling. Phills v. State, 301 Ark. 265, 266, 783 S.W.2d 348, 349 (1990). After referring to the off-the-record discussion, the attorney said he understood that he could voir dire about the penalty range for the two felonies. The trial court responded that either Armer’s attorney or the prosecuting attorney could ask whether members of the panel would feel uncomfortable sending this person to the penitentiary for the maximum amount of ten years, but added “that’s all I’m going to permit on the issue of punishment.” The prosecuting attorney objected and Armer’s attorney said, “Later on in the trial I would like to proffer into the record if you don’t want me to do it right now —.” The trial judge said, “That’s all I’m going to permit on this voir direThe trial judge did not prevent Armer’s counsel from making a proffer of the questions at the time, but rather prevented him from asking additional questions of the panel. Much later, after Armer rested his case, he proffered six specific questions. Each of the questions involved sentencing in some way, but they involved subjects other than the penalty range, as Armer’s attorney had earlier indicated. For example, one of the questions was: “Should drug addicts be treated differently than drug dealers?”

Armer appeals and contends that the trial court erred in unreasonably limiting him on voir dire. The record does not show that, when the trial court made its ruling, Armer had made specific arguments about the six questions he later proffered, nor does it show that he obtained rulings on the specific questions. It is settled that we will not address arguments that were not made to the trial court, Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995), and it is settled that an appellant must obtain a ruling from the trial court in order to preserve a point on appeal. Williams v. State, 289 Ark. 69, 71, 709 S.W.2d 80, 81 (1986). Even so, because of the trial judge’s statements, we do not decide whether Armer is procedurally barred by failing to make a timely proffer and by failing to obtain a ruling. Instead, we base our holding on the fact that Armer waived any issue about voir dire of the panel about punishment when he waived his right to have the jury decide punishment, asked the trial judge to set it, and made no record of his reason for waiving jury sentencing. Indeed, the reason may have been that indicated in oral argument, that the trial judge did not ordinarily send first-time drug offenders to prison. We have no hesitancy in holding that an accused who waives sentencing by the jury, makes no record of the reason for so doing, asks the trial judge to set the sentence, and apparently receives a harsher sentence than anticipated, cannot obtain a reversal of the sentence on the ground that there was some irregularity in the selection of the jury. On the basis of the record, Armer’s plight is analogous to those cases in which a defendant pleads guilty, is given a harsher sentence than he hoped for or expected, and then seeks to withdraw his plea of guilty. See Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). We have long refbsed to grant relief in such cases.

Affirmed.


author: David Newbern, Justice. DONALD L. Corbin, Justice,

text:
    Michael Wayne BYRD v. STATE of Arkansas
    CR 96-48
    929 S.W.2d 151
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Scott E. Smith and Jeff Duty, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Michael Wayne Byrd was convicted of driving while intoxicated, Ark. Code Ann. § 5-65-103 (Repl. 1993), in the Prairie Grove Municipal Court on May 17, 1993. He appealed his conviction to the Washington County Circuit Court, and in a de novo trial he was convicted on the basis of a verdict reached by a six-person jury. Mr. Byrd appealed to this Court, which, in an opinion announced on July 18, 1994, held unconstitutional the statute authorizing six-person juries, and reversed and remanded the case for a new trial. Byrd v. State, 317 Ark. 609, 879 S.W.2d 434 (1994). The case was again dismissed by the Circuit Court. We must again reverse and remand because the decision of the Circuit Court to dismiss was based upon testimony taken in violation of the attorney-client privilege.

After the case was remanded for a de novo trial, the trial in the Circuit Court was set for April 27, 1995, with a pretrial hearing to be held April 25, 1995. Attorney Doug Norwood appeared before the Court on behalf of Mr. Byrd on April 25, but Mr. Byrd did not appear. Although there is no April 25, 1995 order dismissing the case in the record, we learn from later motions appearing in the record that it was in fact dismissed on that date, apparently for failure of Mr. Byrd to prosecute his case.

On January 9, 1995, Mr. Norwood had asked to be allowed to withdraw from representing Mr. Byrd. Mr. Byrd then obtained other counsel who moved to set aside the dismissal. That motion was granted June 1, 1995, as was Mr. Norwood’s request to withdraw. The case was set for trial on July 20, 1995.

Mr. Byrd moved to dismiss for lack of a speedy trial pursuant to Ark. R. Crim. P. 28.1 on the ground that the trial was not held within one year from July 18, 1994, the date of this Court’s decision reversing the first Circuit Court judgment. At a hearing on that motion held July 19, 1995, the Circuit Court questioned whether the speedy-trial rule required trial within one year from the date this Court’s decision was delivered or from the date our mandate issued, which was August 5, 1994, or perhaps from the date our mandate was received by the Circuit Court, August 10, 1994. Counsel for Mr. Byrd decided to stand on the speedy-trial motion and brief, and the hearing proceeded.

The State presented testimony by Mr. Norwood and his secretary, Ms. Worbington, concerning their relationship with Mr. Byrd and their unsuccessful attempts to communicate with him concerning his case. Mr. Norwood testified that Mr. Byrd owed him money and that he had attempted to contact Mr. Byrd to discuss the hiring of a drug-recognition expert and another drug expert to contradict the testimony of the arresting officer at his trial. Presented as exhibits were six letters from Mr. Norwood to Mr. Byrd in which Mr. Byrd was informed of the urgent need that he consult with Mr. Norwood about his case. In a letter written after the remand of the case, urging Mr. Byrd to communicate, Mr. Norwood informed Mr. Byrd there was an “upcoming trial” in which he might receive a year in jail. Mr. Norwood began his testimony by saying that he had not notified Mr. Byrd of a trial date in the case, but he wanted Mr. Byrd to come to his office to discuss it.

When the State called Mr. Norwood to the witness stand, counsel for Mr. Byrd objected that any communication between Mr. Norwood and Mr. Byrd during the time Mr. Norwood represented Mr. Byrd would be subject to the attorney-client privilege. The objection was overruled as were later objections to the retained copies of letters from Mr. Norwood to Mr. Byrd introduced by the State. In response to the initial objection, the Court stated, in part, that Mr. Norwood’s testimony had a substantial bearing upon the speedy-trial issue.

When Ms. Worbington was called to the witness stand, an objection was made on the ground that her prospective testimony would relate to matters falling within the attorney-client privilege. She testified about attempts to communicate with Mr. Byrd and a telephone conversation she had with him on that subject.

At the conclusion of the hearing, the Court ruled that there had been no violation of Rule 28.1. The Court said further:

The case was reinstated primarily because I was at least given the notion or led to believe by Mr. Byrd’s present attorneys that he had made efforts to perhaps contact Mr. Norwood or communicate with Mr. Norwood. And I felt, in all fairness, he ought to be given a hearing at least on that issue. And, of course, Mr. Byrd was not present during that informal discussion with the attorneys, so I reinstated the case.
Well, it’s clear to me that was a mistake, that the case should never have been reinstated after hearing this proof today. So it will be the order of the Court that I’m going to once again dismiss the appeal. Mr. Byrd made absolutely, as I’ve already observed, made absolutely no effort to communicate with Mr. Norwood or Mr. Norwood’s office. I think he has an obligation to do that or had an obligation. He’s now had an opportunity to be heard on that issue and has elected not to testify or controvert Mr. Norwood’s statements. And it’s clear to me that the case should have never been reinstated and so I’m going to simply, once again, dismiss the appeal.

Perhaps the State’s motive for introducing the testimony of Mr. Norwood and Ms. Worbington was to show that Mr. Byrd had made himself unavailable for trial for a period of time which could be excluded from the one-year period set by Rule 28.1. Rule 28.3 provides for the exclusion as follows:

(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.

While we have serious doubt whether a defendant’s refusal to communicate with his attorney has any bearing upon his unavailability for trial as described in Rule 28.3, it is clear that it was Mr. Byrd’s refusal to communicate with Mr. Norwood that convinced the Court to dismiss the case.

Attorney-client privilege

We agree with Mr. Byrd’s argument that the testimony of Mr. Norwood and Ms. Worbington should not have been admitted in evidence. The privilege is stated in Ark. R. Evid. 502(b).

General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself... and his lawyer_

We have said that the attorney-client privilege “is designed to secure subjective freedom of mind for the client in seeking legal advice.” Arkansas Nat’l Bank v. Cleburne County Bank, 258 Ark. 329, 331, 525 S.W.2d 82 (1975). We agree that “the privilege has played the important role of protecting the private bond of trust between attorney and client and upholding the honor and dignity of the lawyer.” 2 Mueller & Kirkpatrick, Federal Evidence § 181, at p. 302 (2d ed. 1994). “Without the privilege, clients would be deterred from seeking legal assistance in the first instance or at least inhibited from making full and candid disclosure of the relevant facts bearing upon their case.” Id. § 181, at p. 302-03.

Although the privilege is designed to encourage full disclosure by the client to his lawyer, the privilege is not a “one-way one.” 1 McCormick on Evidence § 89, at p. 326 (4th ed. 1992). The attorney-client privilege extends to statements made by the attorney and the client, “each to the other.” Norton v. Norton, 227 Ark. 799, 302 S.W.2d 78 (1957); Kinkead v. Union National Bank, 5 Ark. App. 4, 907 S.W.2d 154 (1995). Communications by an attorney to his client are protected, including “self-initiated attorney communications intended to keep the client posted on legal developments and implications.” Jack Winter, Inc. v. Koratron Co., 54 F.R.D. 44, 46 (N.D. Cal. 1971). See Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 37 (D. Md. 1974). In the Norton case, we pointed out that absent the testimony by a lawyer with respect to privileged matter the case would not have been decided as it was. The same is true here.

The State contends that the information given by Mr. Norwood and Ms. Worbington and the letters did not reveal any confidential communications. Although the communications were somewhat mundane, we hold they fell within the rubric “confiden-rial ” According to Ark. R. Evid. 502(a)(5), a communication is confidential if it is “not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” We have no doubt that, during Mr. Norwood’s representation of Mr. Byrd, neither of them intended to have the information about Mr. Nor-wood’s case strategy or the problem about communication aired to third parties. Mr. Norwood’s testimony was about advice to Mr. Byrd given to facilitate rendition of legal services to him, and thus it was privileged. McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).

The State also suggests that the testimony of Mr. Nor-wood and Ms. Worbington was non-privileged under the exception at Ark. R. Evid. 502(d)(3). That provision states that an otherwise privileged communication is admissible if it is “relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer.” As the commentators have said, “[b] reach of duty by the attorney usually involves professional malpractice, incompetence, or ethical violations, while a breach by a client usually means not paying a fee.” Mueller & Kirkpatrick, supra, § 196, at p. 375. The State may not invoke this exception. The only issue before the Circuit Court was whether the State had violated Mr. Byrd’s right to a speedy trial. Whether Mr. Byrd and Mr. Norwood had breached a duty to each other was not an issue in the hearing or in any manner relevant to Mr. Byrd’s motion to dismiss. The exception therefore does not apply.

We reverse the dismissal order and remand for proceedings consistent with this opinion.

Reversed and remanded.

Glaze and Corbin, JJ., dissent.

DONALD L. Corbin, Justice,

dissenting. I am concerned with the far-reaching effects of the majority opinion’s broad definition of “confidential communication,” and for this reason I respectfully dissent. It appears that the majority is accepting the appellant’s argument that it is not the substance of the communication that matters, but the way in which it is communicated or the messenger who communicates it. This directly contradicts the plain meaning of Rule 502 of the Arkansas Rules of Evidence which protects the client only from the disclosure of confidential communications. Rule 502 further provides that confidential communications are those not intended to be disclosed to third persons. The information elicited from Mr. Norwood and his secretary was not confidential in nature, as it did not concern the appellant’s substantive case nor his guilt or innocence of the charge.

To the contrary, much of what was testified to had already been disclosed to third persons and was also of public knowledge. Specifically, the trial court acknowledged that prior to the hearing on the motion to dismiss, the court had discussed with Mr. Norwood the situation regarding the appellant’s failure to appear at the previously scheduled pretrial hearing. The trial court also pointed out that the bases for Mr. Norwood’s anticipated testimony was contained in the motion to withdraw from appellant’s case which was on file with the clerk’s office. How can it be said, then, that merely because this information was now coming from the mouth of Mr. Norwood that it was magically transformed into a confidential communication? Furthermore, even the fact that the State had previously secured testimony of an expert witness at appellant’s first trial was also public knowledge. Likewise, the testimony by Mr. Norwood concerning his general desire to counter any expert witness employed by the State with one of his own, was not information of a confidential nature, as it merely reflected the nature of the crime with which the appellant was charged without disclosing any particulars of the merits of the case.

I fear that the majority’s decision in this case will have a chilling effect on the day-to-day practice of law and the relationship between trial courts and attorneys. Attorneys may now be reluctant to offer any candid explanation to the trial court as to his or her client’s absence for a scheduled court date, even if it would be beneficial to the client, as such information may later be construed as confidential. Given the majority’s construction of the attorney-client privilege, attorneys may now feel that they are forced to choose between their duties of refraining from revealing potentially confidential information to the court and their duty to be candid and honest with the court as officers of it.

I am equally concerned about the message this opinion sends to criminal defendants that they have no obligation to stay in contact with their attorneys during the course of defending their cases. A criminal defendant need only avoid contact with his attorney, lay low for a year or so, fire the attorney, hire another attorney, and promptly file a motion to dismiss for violation of his right to speedy trial. In light of the majority’s decision, it is unclear what recourse the State would have in such a situation. What is clear in this case, however, even without viewing the substance of the written communications, is that this appellant intended to manipulate the system by causing these delays, and it is equally clear that he succeeded.

GLAZE, J., joins in this dissent.