author: PER Curiam.

text:
    Hilliard NELSON v. STATE of Arkansas
    CR 99-634
    39 S.W.3d 791
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001

      Cross, Kearney, & McKissic, by: Jesse L. Kearny, for appellant.

      Mark Pryor, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   PER Curiam.

Appellant, along with Charles Colbert and Ricky Dillard, was charged with the capital felony murder of Cheryl Franklin. Dillard agreed to be a state’s witness, and appellant’s case was severed from his co-defendants’. Appellant was convicted of the lesser included offense of first degree murder and sentenced to life imprisonment in the Arkansas Department of Correction. We affirmed the trial court’s decision in Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991). On January 22, 1993, appellant filed a pro se petition for postconviction relief. The trial court denied appellant’s requested relief as untimely. In response to the trial court’s decision, appellant sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal court. The federal district court issued a conditional writ of habeas corpus that provided that a writ would issue within 120 days unless appellant was permitted to pursue postconviction relief in state court. Appellant was allowed to pursue postconviction relief, and the trial court eventually denied appellant’s petition. This appeal followed.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

First, appellant contends that counsel was ineffective for failing to subpoena witnesses to testify on appellant’s behalf. We disagree.

The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). When assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, 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. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. State v. Dillard, supra.

At the postconviction hearing, counsel testified that the witnesses appellant wanted called to testify were not going to provide the same information that appellant indicated. The trial court found that appellant had failed to offer any evidence identifying any of the witnesses or their alleged testimony. A bare allegation that there are witnesses that could have been called in the petitioner’s behalf will not support a claim of ineffective assistance of counsel. Decisions involving which witnesses to call to benefit a case lie purely within the realm of counsel’s trial tactics. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Appellant has not sustained his burden of proving that his attorney’s strategic decision to refrain from calling those witnesses was professionally unreasonable. Based on a thorough review of the record, it appears that the witnesses would not have provided any evidence that would have changed the outcome of the trial. We cannot say that the trial court’s decision is clearly against the preponderance of the evidence because the decision by counsel was a matter of trial strategy.

Next, appellant argues that counsel failed to present blood evidence and failed to present evidence that would have contradicted the testimony of Mr. Dillard. Appellant contends that his attorneys never had his DNA typed to be matched against the semen found on the victim. Appellant does not elaborate further how this alleged error prejudiced him or affected the outcome of his trial. This is a conclusory allegation that is not substantiated with the facts. Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988). When a petitioner under Rule 37 asserts that his counsel was ineffective, he is responsible for providing factual support for the allegation. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Counsel is presumed effective. Strickland v. Washington, 466 U.S. 668, and allegations without substantiation are insufficient to overcome the presumption. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1993). The purpose of Rule 37 is not to debate the possible effect of counsel’s conduct but to provide a remedy when a petitioner has suffered actual prejudice. Brents v. State, 285 Ark. 199, 686 S.W.2d 395 (1985). The burden is on the petitioner to provide facts to support his claims of prejudice. Jones v. State, 283 Ark. 363, 767 S.W.2d 738 (1984).

There is no indication whether this DNA evidence would have been exculpatory or incriminating. In addition, appellant was not convicted of capital-felony murder but was found guilty of the lesser included offense of first-degree murder. The state’s proof showed that on the evening of January 20, 1990, the appellant, Colbert and Dillard were frequenting various drinking establishments. After a brief conversation in the parking lot of one of the clubs, Dillard gave Ms. Franklin some money in exchange for sex. Apparently, she wanted money so she could buy a “hit of crack.” When the men left the establishment, Franklin and another woman got in the car. They took the other woman home, and then picked up another individual named Rita Lane. Lane, however, was subsequently let out when appellant and Lane got into an argument. The men and Franklin then drove to a secluded area where they could smoke some crack. Dillard testified that he departed the car and laid upon its front hood. He said that appellant got in the back seat and had oral sex with Franklin. Dillard stated that, during this period when appellant was in the car’s back seat with Franklin, Dillard thought he heard appellant say that if Franklin would not have sex, they would leave her stranded. Dillard heard appellant and Franklin argue, and minutes later, Dillard heard three thumps on the back end of the car. Dillard looked through the back window of the car and saw Colbert with something in his hand making a wiping motion on the car’s trunk. When Dillard walked to the rear of the car, he viewed appellant standing over Franklin with a piece of concrete in his hand, coming down towards her head. With this evidence before them, the jury could have convicted appellant of first-degree murder without the requested DNA evidence. Thus, we cannot say that the trial court’s decision that appellant failed to present evidence to show how DNA evidence would have tended to exonerate him is clearly erroneous.

In addition, appellant asserts that counsel failed to produce evidence that it was raining on the night in question and that such evidence would have contradicted Mr. Dillard’s testimony that it had not rained. Appellant argues that such a contradiction of Mr. Dillard’s testimony would have detracted from his credibility. In support of his argument, appellant submitted data at the Rule 37 hearing showing that 1.35 inches of rain fell on the day of the murder between 4:30 p.m. and 5:00 a.m. in the Dumas area.

The manner of questioning a witness is by and large a very subjective issue about which different attorneys could have many different approaches. Even if a decision proves unwise, matters of trial tactics and strategy are not grounds for post-conviction relief. Leasure v. State, 254 Ark: 961, 497 S.W.2d 1 (1973). Mr. Dillard’s credibility may have been adversely affected by evidence that rain fell on the day of the murder, but counsel’s failure to obtain such evidence was not so prejudicial that it tainted appellant’s entire trial to the degree that the proceeding was unfair. It is the sole province of the jury to determine not merely the credibility of the witnesses, but the weight and value of their testimony. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). With this issue, there is no indication that the trier of fact would have resolved this credibility determination in appellant’s favor. Thus, appellant has failed to demonstrate that the outcome of the trial would have been different had counsel submitted evidence at trial that it rained on the day of the murder.

For his third assignment of error, appellant argues that the trial court erred in failing to relieve counsel because of a conflict of interest. Appellant contends that after his trial he expressed his dissatisfaction with his trial counsel and that counsel failed to pursue certain issues on appeal.

We articulated the proper standard for reviewing ineffective-assistance-of-counsel claims due to alleged conflicts of interest in Johnson v. State, 321 Ark. 117, 124, 900 S.W.2d 940 (1995):

Prejudice will be presumed from a conflict of interest only when the defendant demonstrates that an actual conflict of interest adversely affected his lawyer’s performance. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). Petitioner had the burden of proving a conflict of interest and showing its adverse effects. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). A petitioner is not entitled to relief under the Cuyler test unless he satisfies both prongs of the test. Salam v. Lockhart, 874 F.2d 525, 527-28 (8th Cir. 1989) (citing Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987), cert. denied 488 U.S. 934, 109 S. Ct. 329, 102 L. Ed. 2d 346 (1988)). The prejudice must be real and have some demonstrable detrimental effect and not merely have some abstract or theoretical effect. Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir. 1990).

As with any claim of ineffective assistance of counsel, the petitioner has the burden of providing factual support to demonstrate that the conflict of interest adversely affected counsel’s performance. See Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978). No such demonstration of a conflict of interest was shown. There is no indication from the record that counsel refused to raise issues on appeal or that those issues had merit. Thus, appellant has failed to establish that an actual conflict existed.

Appellant’s fourth point on appeal challenges the trial court’s failure to set aside his conviction because the trial court allowed the prosecutor to amend the charges prior to trial but after jury selection. As the State points out, appellant did not argue this issue below at the Rule 37 hearing but has now changed his grounds on appeal. Since it was not argued below, and since if meritorious, the issue is not so fundamental that it would void the conviction, we will not consider it. Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983).

For his last point on appeal, appellant argues that he was denied due process because eight years passed between the time he filed his postconviction petition until he received a hearing. Appellant contends that this delay violated his due process rights, and he relies on the law set forth in Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984), United States v. Lovasco, 431 U.S. 783 (1977), and United States v. Marion, 404 U.S. 307 (1971). Appellant’s reliance on these cases is misplaced.

Lovasco and Marion stand for the proposition that the Due Process Clause plays a limited role in protecting against oppressive and lengthy preindictment delay. Here, appellant does not challenge any preindictment delay but delay between the time he filed his postconviction petition and the time his petition was acted upon. In addition, appellant has not cited to any authority that extends due process protection for delays to postconviction proceedings which are civil in nature. Based on the foregoing, we decline to reach appellant’s argument.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leon ROBERSON v. STATE of Arkansas
    CR 01-263
    39 S.W.3d 458
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001

      Dan Etherly, for appellant.

      No response.
   PER CURIAM.

Dan Etherly, a state-salaried, part-time public defender for the First Judicial District, was appointed by the trial court to represent appellant Leon Roberson, an indigent defendant, in this criminal case. Following a revocation hearing, Roberson was sentenced to thirty years in the Arkansas Department of Corrections. A notice of appeal from the judgment was timely filed and a partial record has been lodged with our clerk.

Mr. Etherly now asks this court to relieve him as counsel for Roberson in this appeal. As a state-salaried, part-time public defender for the First Judicial District, Mr. Etherly is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also, Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant Mr. Etherly’s motion to be relieved for good cause shown. David Bowden will be substituted as attorney for appellant Leon Roberson in this matter.


text:
    Andrew ROSS, Jr. v. STATE of Arkansas
    CR 01-324
    39 S.W.3d 458
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001

      Charles E. Ellis, for appellant.
    No response.
   PER CURIAM.

Charles E. Ellis, a state-salaried, part-time public defender for the Second Judicial District, was appointed by the trial court to represent appellant Andrew Ross, Jr., an indigent defendant, in this criminal case. Following a jury trial that concluded on August 24, 2000, Ross was convicted of capital murder and sentenced to life imprisonment without parole, and the circuit court sentenced him to ten years for violating the terms of his probation on a previous charge of theft by receiving. Notices of appeal from the judgments of conviction were timely filed and a record has been lodged with our clerk.

Mr. Ellis now asks this court to relieve him as counsel for Ross in this criminal appeal. As a state-salaried, part-time public defender for the Second Judicial District, Mr. Ellis is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also, Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant Mr. Ellis’s motion to be relieved for good cause shown. Clay Buchanan will be substituted as attorney for appellant Andrew Ross, Jr., in this matter.


text:
    Kenneth Gerald BRECKENRIDGE v. Nancie GIVENS, Acting Executive Director and Senior Staff Attorney, Supreme Court Committee on Professional Conduct
    01-394
    39 S.W.3d 798
    Supreme Court of Arkansas
    Opinion delivered April 6, 2001

      Jeff Rosenzweig, for appellant.
    No response.
   PER CURIAM.

On April 2, 2001, the Committee on Professional Conduct entered a three-month suspension of appellant Kenneth Gerald Breckenridge’s license to practice law. The suspension resulted from appellant’s failure to timely answer a formal disciplinary complaint filed by Kim Robinson. Prior to the Committee’s filing the final order of suspension, appellant learned of the Committee’s decision. Consequently, appellant filed a motion for reconsideration, denied by the Committee on March 23, 2001. The Committee also denied appellant’s motion for a stay of suspension pending an appeal to this court. Likewise, the Committee declined to grant appellant’s alternative motion to set an effective date of suspension at some date in the future to permit him to petition this court for a stay. See Procedures Regulating Professional Conduct § 5L(1) (Committee may stay effective date of any action pending appeal). On April 2, 2001, appellee denied Breckenridge’s second motion for reconsideration.

On April 4, 2001, appellant filed the instant motion seeking a stay of suspension pending appeal and a motion for expedited consideration pursuant to Ark. R. Sup. Ct. 6-1 (2000). Contemporaneously, appellant requested oral argument. We granted the motion for oral argument and for expedited consideration. In support of his motion for a stay, appellant contends that (1) he is a sole practitioner responsible for “an extraordinarily busy litigation schedule,” evidenced by an exhibit detailing commitments to clients and trial dates scheduled during the course of the three-month suspension period, and these clients and opposing litigants would be prejudiced by a denial of his motion for a stay; (2) appellant avers that there is a substantial chance that he will prevail on appeal, and if a stay is not granted and this court subsequently reverses the Commission’s decision to suspend him, he would suffer irreparable harm, having already served the term of suspension prior to an appeal on the merits; and (3) appellant poses no harm to the public in light of the sanction imposed.

We find merit in appellant’s arguments and grant a stay pending appeal, provided that (1) appellant posts a $5,000 bond to cover the cost of appeal, and (2) the stay will be dissolved if any additional formal disciplinary complaints are filed against appellant during the stay.


author: TOM Glaze, Justice.

text:
    Pamela SKOKOS v. Theodore SKOKOS
    99-1514
    40 S.W.3d 768
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001
    [Petition for rehearing denied May 24, 2001.]

      Jeff Rosenzweig, for appellant.

      Dover & Dixon, P.A., by: Philip E. Dixon, Gary B. Rogers, and Monte D. Estes; and Judson C. Kidd, for appellee/cross-appellant.
   TOM Glaze, Justice.

Pamela and Theodore Skokos were married in 1967; they separated in May of 1993, and Pamela filed for divorce on June 1, 1993. Chancellor Alice Gray eventually granted Pamela a divorce by decree dated March 30, 1995. The decree also granted custody of their minor daughter to Theodore, and divided the marital property. Among the property divided by the decree were three homes, which had been placed in Qualified Personal Residence Trusts (“QPRTs”), and the couple’s interests in two cellular telephone companies - — one in Little Rock, and the other in New Hampshire. Pamela moved the trial court to vacate the decree. Because Pamela was unable to obtain a hearing or ruling on her ARCP Rule 60 motion, Pamela filed a partial record with this court and appealed, requesting us to remand the case, and to order an adjudication on Pamela’s motion. Skokos v. Skokos, 322 Ark. 563, 909 S.W.2d 653 (1995). In the interim, Judge Gray recused from the case, and this court appointed Chancellor Jim Hannah to preside on remand. Judge Hannah held a hearing on Pamela’s motion and denied it. Id.; see also Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998).

Pamela then appealed from the March 1995 divorce decree, contending that Judge Gray had erred in the following ways: the homes placed in trust were not marital property; the chancellor had made erroneous evidentiary rulings with respect to Pamela’s expert witness testimony; the chancellor had erred in rejecting Pamela’s reimbursement of allegedly improper payments Theodore made with marital funds; and Judge Gray had erred in refusing to recuse. We agreed in part with Pamela’s first two points, and we remanded the case, requesting Judge Hannah to continue on remand. Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998). Pamela petitioned for rehearing, and, in granting rehearing, we clarified our opinion by directing the trial court to redetermine the fair market values of the parties’ interests in the two cellular phone companies. Skokos v. Skokos, 333 Ark. 396, 968 S.W.2d 26 (1998).

Prior to the hearing on remand, the parties presented briefs and arguments about how the various properties should be valued. Pamela noted that, after the March 30, 1995 divorce decree, Theodore had sold his interests in the cellular telephone companies for more than what those values were appraised at the time of the parties’ divorce. She urged that the value of the interests should be determined as of the date of the trial on remand, so as to take into account the increase in value in determining what her half would be. Theodore responded that the phone company interests should be valued as of the date of the March 30, 1995 divorce decree. On March 19, 1999, the chancellor entered an order in which he found that, under Ark. Code Ann. § 9-12-315(a)(l)(A) (Supp. 1999), the parties’ marital property should be valued as of March 30, 1995.

Judge Hannah subsequently held a five-day hearing, commencing on May 5, 1999. At the hearing, both Pamela and Theodore presented expert witnesses who testified regarding the values of the cellular telephone company interests and the reversionary interests in the QPRTs. Finding Theodore’s expert witness to be more credible, the judge ordered that the cellular telephone companies should be valued at $3,238,172, and, since Pamela had already received $2,687,220, she should get another $550,952. On the question of the QPRTs, Judge Hannah found that Pamela’s expert witness was more credible, and determined that Theodore still owed Pamela $546,536 for her one-half interest in the reversionary interests in the trusts.

From that order, Pamela has appealed, and Theodore has cross-appealed. Pamela argues that Judge fiannah erred in determining the value of the cellular phone companies in two respects: 1) by using the March 30, 1995 date of the parties’ divorce decree as the time at which the interests should be valued; and 2) by applying large discounts to account for the fact that the interests being sold were minority interests in the companies. On cross-appeal, Theodore contends that Judge Hannah erred in valuing the parties’ reversionary interests in the QPRTs, and in denying a reduction in the award based on the applicable capital gains tax. We first address our standard of review in these matters.

On appeal, chancery cases, such as divorces, are reviewed de novo. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; the division of property itself is also reviewed, and the same standard applies. Id.; Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327 (2001). In order to demonstrate that the chancellor’s ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). We give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999).

Keeping these standards in mind, we turn to Pamela’s first argument, wherein she argues that the chancellor abused his discretion by applying the date of the divorce, rather than that of the remand hearing, as the date on which to value the cellular telephone companies. Ark. Code Ann. § 9-12-315(a)(1) (Repl. 1998) provides that, “[a] t the time a divorce decree is entered[,] [a]ll marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable.” (Emphasis added.) Cases interpreting this statute have clearly stated that this means that marital property is required to be distributed at the time the divorce is entered. See Hadden v. Hadden, 320 Ark. 480, 483, 897 S.W.2d 568, 569 (1995); Askins v. Askins, 288 Ark. 333, 335, 704 S.W.2d 632 (1986). Obviously, for a chancellor to determine if there is an equitable (or inequitable) division of the marital property at the time of the parties’ divorce, the chancellor must know the value of the parties’ property interests for distribution purposes. Accordingly, based on § 9-12-315(a)(l), the trial court in the present case held that it should determine the value of the parties’ marital property as of the date of the divorce — March 30, 1995.

Pamela cites to several cases from other jurisdictions which seem to hold that the date of a remand, rather than the initial divorce decree, should control in valuation and division of marital property purposes. She cites no Arkansas citation of authority for such a proposition, and, as already stated, our own statutory law and case law are clear that marital property is to be divided at the time the divorce decree is entered. Thus, we hold the chancellor acted correctly in using March 30, 1995, as the date for determining the value of the two companies.

Pamela’s second point concerns Judge Hannah’s conclusions regarding the actual monetary value to be placed on the two companies. Judge Hannah determined that Pamela’s one-half share of both properties should be valued at $3,238,172, and, since Pamela had already received $2,687,220 after the first divorce decree, she was entitled to another $550,952. Pamela now asserts the judge erred with respect to three issues: 1) the value of the companies; 2) the application of “minority discounts” to their value; and 3) the unfair result that stems from the use of such discounts.

Both parties presented the testimony of several expert witnesses. Pamela’s experts offered appraisals ranging from $5.68 million to $9.86 million for the Little Rock company, and from $5.56 million to roughly $10 million for the New Hampshire company. Of her witnesses, only one, Sharon Armbrust, applied minority discounts. In this respect, Armbrust suggested that discounts of 35% for Little Rock and 30% for New Hampshire would have been appropriate, based on the lack of control and marketability inherent in the ownership of a minority interest.

Theodore’s experts, on the other hand, appraised the companies at values ranging from $2.91 million to $3.1 million for New Hampshire, and $2.89 million to $2.94 million for Little Rock. Both of Theodore’s experts, Thomas Buono and James Rabe, applied minority discounts to the two companies. Buono calculated a 57% discount for Little Rock and approximately 50% for New Hampshire; Rabe figured a minority discount of 45% for Little Rock and 40% for New Hampshire.

After considering the evidence offered by both parties, Judge Hannah found that the application of minority discounts would be appropriate because of the parties’ minority stand-alone interests in the company; the judge also found that Buono’s testimony should be given more weight and was more credible than that of the other witnesses. Buono, the president and CEO of BIA Consulting, asserted that his company appraised between 200 and 300 companies a year, with a few hundred cellular companies included in that number. Buono received a degree in applied mathematics and a M.B.A. from Dartmouth College; he iso held memberships in wireless communication trade associations, and maintained his status in the American Society of Appraisers. Buono additionally inspected both the Little Rock and New Hampshire .facilities, and interviewed the general manager of the Little Rock Company. His figures were based on a thorough analysis of a host of factors, including the fact that the interests to be appraised were minority interests that, in March of 1995, lacked a large degree of control and marketability. Bueno testified that in 1995 the cellular market did not look promising, and the sales Theodore eventually made could not have been foreseeable in 1995.

By contrast, Pamela’s experts had litde or no training in appraising cellular companies, and none of them had an affiliation with any national appraisal society. Given the deference this court accords to the chancellor’s superior position to judge the credibility of witnesses, we cannot say that Judge Hannah abused his discretion in finding Buono’s testimony to be worthy of greater weight. See Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1990). Pamela attempts to argue that, because the companies actually sold for much more than the values assigned to them by the subsequent appraisals, the assessed value was improperly low. However, her argument ignores the fact that the properties were properly valued as of the date of the divorce decree, at which time the companies had not yet been sold. Moreover, expert testimony established, too, that certain tagalong rights and a put/call provision that accompanied the 1998 New Hampshire sale did not exist in March of 1995. Finally, two other highly significant events affected the March 30, 1995 valuation as opposed to the subsequent sale price: (1) Competition from the new PCS spectrum cell phones, which depressed the value of existing cell phone properties; and (2) the passage of the Telecommunications Act in 1996, which served to significantly enhance the value of existing cell phone properties. Because the appropriate date for valuation and division of properties was March 30, 1995, the chancellor was correct in not considering the subsequent sales prices of the companies.

Theodore raises two points on cross-appeal: 1) Judge Hannah erred in determining the value of certain interests in the Qualified Personal Residence Trusts; and 2) the judge erred in denying a reduction by a capital gains tax in Pamela’s fair market value in the two cellular companies.

On the question of the QPRTs, these trusts are estate-planning devices which permit the grantor to place a piece of real estate in trust, yet allow the grantor to retain a possessory interest in the property for a term of years. The creation of a QPRT results in three distinct interests in the property. First, there is a possessory interest, or the right retained by the grantor to use' the residence for a term of years. Next, there is a reversionary interest, which would be the value of the interest that could potentially come back to the grantor; finally, there is the remainder interest which would pass to the eventual beneficiaries of the trust. If the grantor survives the selected term of years of the possessory interest, then the residence would be transferred out of the grantor’s estate and would then, go to the beneficiaries (the remainder interest). If the grantor does not survive the possessory term, then the residence would revert back to the grantor’s estate (the reversionary interest). On remand, Judge Hannah was to determine the value of the reversionary interest because Judge Gray had failed to consider that interest when she divided the parties’ properties at the March 30, 1995 date of divorce. See Skokos, 332 Ark. at 531.

The Skokoses created three of these trusts in the early 1990s. Into the first trust, Theodore placed their property located at #10 Edgehill in Little Rock, valued in fee (by stipulation of the parties) at $900,000. The corpus of the second trust was composed of the so-called “Hosta Bay” property, one of their homes in Hot Springs; this was valued in fee (by stipulation of the parties) at $620,000. This trust was also in Theodore’s name. Theodore established a twenty-five-year possessory interest in these two properties. The third trust was created by Pamela, and included the “Longpointe” property, another lake home in Hot Springs valued in fee (by stipulation of the parties) at $141, 500. Pamela retained a fifteen-year possessory interest in this home.

The parties agree, and Judge Hannah likewise concluded, that the sum of the three interests created by a QPRT — the possessory, reversionary, and remainder interests — must equal the fair market value of the fee for each residence. Pamela and Theodore again presented expert witnesses on this issue. Pamela offered the -testimony of Mike Lax and Richard Stephens; both of these witnesses began with the fee value of the homes and subtracted the sum of the possessory and remainder interests, using the figures for these two interests that had been determined at the first trial. Lax’s final figure for the value of each party’s reversionary interest in all three properties was $588,210.50. Stephens, who took into account the Skokoses’ ages and adjusted for the federal discount rate as of March 30, 1995, calculated the value to be $546,536.

Byron Eiseman testified on Theodore’s behalf. Mr. Eiseman, a tax lawyer, calculated the value of the reversionary interests by entering the various figures for the interests into a computer software program. Based on his analysis, Eiseman opined that the net value due Pamela for her one-half of the reversionary interests in the QPRTs totaled $62,106.50.

In ruling on this issue, Judge Hannah specifically found Stephens’s testimony to be more credible, and therefore awarded Pamela $546,536 for her half of the reversionary interests in the QPRTs. Theodore appeals this decision, arguing that the chancellor was not bound to accept the possessory value set out in the original decree. However, although he urges that there was no reason for the remand court to rely on that possessory value, we note that the only issue to be decided on remand was the value in fee of the reversionary interest. In our earlier opinion, we stated that Pamela “lost her possessory interests in the Edgehill and Hosta Bay residences and was compensated for them in the divorce decree. The parties, however, were not required to account for the value of the reversionary interests they retained in [the three] properties.” (Emphasis added.) Skokos, 332 Ark. at 530. It does not appear from the 1998 Skokos opinion that either party appealed the first chancellor’s decision on the value of the possessory interests. As a result, the trial court’s decision on possessory interests became the law of the case. See Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998) (on second appeal, the decision of the first appeal becomes the law of the case and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not decided.) Here, we stated that the only thing to be determined on remand was the value of the reversionary interests because “those reversionary interests were erroneously not considered in the distribution of the marital property.” Skokos, 332 Ark. at 531. Because the value of the possessory interests had been determined, and was not an issue on remand, the trial court properly accepted those values during the second trial.

As for the trial court’s decision that Richard Stephens’s testimony was “entitled to more weight and credibility than the other experts,” that determination is well within the scope of the chancellor’s discretion. As we noted earlier, we give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be given their testimony. See Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). Further, it is within the province of the trier of fact to determine the credibility of witnesses and resolve conflicting testimony. Id. In determining the value of the reversionary interests, Stephens, who has been a real estate appraiser since 1965, considered the value of the possessory interests, the gift tax returns that had been filed on the trusts, and the fact that the trusts could be terminated by the grantor. Although Theodore’s expert did not take into consideration this power reserved to the grantor in his valuing the reversionary interests, the trial court found such power would be significant to a potential buyer. The trial court was engaged in an independent process of valuing the reversionary interests and was not bound to a mechanical application of the Internal Revenue Service Regulations, upon which Theodore’s expert appeared to solely rely. The trial court found Stephens’s approach the most reliable, and, as already mentioned, that kind of decision regarding the credibility of an expert witness is not one that this court will reverse on appeal absent a showing of abuse of discretion. Because it was not error for the trial court to accept, as an initial matter, the value of the possessory interests determined earlier, Theodore has not demonstrated that the court abused its discretion in accepting the figures of Stephens over those of Theodore’s own expert. Therefore, we do not reverse the trial court on this point.

Finally, Theodore’s second point on cross-appeal is that the Judge Hannah erred when he denied Theodore’s request that Pamela’s fair market value in the two cellular companies be decreased by a capital gains tax. In the original decree, Judge Gray wrote that “[t]o the extent possible, [Theodore’s] payments to [Pamela] shall be in cash. If necessary, a portion of the payments may be made in stock or other assets readily convertible to cash. Each party shall be liable for one-half of any tax liability, a) that the minority partnership interests incurred as of the filing of this Decree, and b) that may result from [Theodore’s] paying [Pamela] for her interests in the partnerships.”

On this point, Theodore urges two subpoints: first, that the trial court on remand should have considered tax implications because the marital property was not equally divided, and second, that the first decree’s direction that both parties were to be responsible for one-half of any tax liability is law of the case, since this portion of the original decree was not appealed. As to the first of these points, we reject Theodore’s argument that the marital property was unequally divided, and therefore the court should have taken tax consequences into account pursuant to Ark. Code Ann. § 9-12-315(a)(1)(A)(ix) (Repl. 1998). That statute reads in relevant part as follows:

(a) At the time a divorce decree is entered:
(1)(A) All marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration . . .
(ix) [t]he federal income tax consequences of the court’s division of property.

It is Theodore’s argument that the chancellor on remand found the marital property to be unequally divided and therefore should have, but failed to take tax consequences into account under Ark. Code Ann. § 9-12-315(a)(1)(A)(ix). We cannot agree. As we read the record, the chancellor initially indicated that the Skokoses would share the tax consequences, whatever the division of their property was. However, when he entered his order, the chancellor denied Theodore’s request that Pamela’s fair market value in the two cellular companies be decreased by a capital gains tax. Although the chancellor declined to require Pamela to share in the tax consequences, neither the court’s findings nor its order reflect that the chancellor failed to consider such tax consequences; rather, they reflect only that he decided Pamela did not have to share in them.

Next, Theodore contends that Chancellor Gray’s first decree found that each party would bear the tax consequences and such ruling became law of the case. The tax consequences for which each party was to have been responsible pertained to any liability that “may result from [Theodore’s] paying [Pamela] for her interests in the partnerships.” Theodore, however, did not sell any stock in either of the cellular companies in order to pay Pamela; any capital gains taxes which may have resulted from the sale of those companies would not have been incurred until years after the divorce. In fact, Theodore concedes that the capital gains tax was triggered by the sale of his stock after the parties’ divorce. Because Theodore has not shown the capital gains taxes were incurred as a result of paying Pamela for her interests in the partnership, there was nothing for the court to consider.

Finally, Theodore makes no arguments in his brief as to precisely what the tax consequences were that the chancellor should have considered. In the absence of any convincing argument on the subject, we cannot say that the trial court erred.

For the foregoing reasons, we affirm the trial judge on direct appeal and on cross-appeal.

Special Justices EDWARD MORGAN, DONALD DONNER, DAVID Nixon, and Randy Laney join in this opinion.

Corbin, Brown, Imber, and Hannah, JJ., not participating.

       A minority discount is an allowance or deduction applied to the value of a minority interest, such as the Skokoses held in these companies; the discount reflects that the interest may be worth less to a potential buyer because of the lack of marketability and lack of control inherent in owning only a minority interest in a company.

       The Little Rock company sold some eighteen months after the divorce for $9,987,313.86; New Hampshire sold some three and half years later for $16,219,544.

       According to Black’s Law Dictionary, 1237 (6th ed. 1990), a “put” is an option permitting its hoider to sell a certain stock or commodity at a fixed price for a stated quantity and within a stated period. Such a right is purchased for a fee paid the one who agrees to accept the stock or goods if they are offered. The buyer of this right to sell expects the price of the stock or commodity (the put) at a profit. If the price rises, the option need not be exercised. A “call” is an option or contract giving the holder the right to purchase a stated number of shares of stock at a specified price on or before a certain fixed date. Stated another way, a put in the language of the commodity or stock marked is a privilege of delivering or not delivering the subject matter of the sale; and a call is a privilege of calling or not calling for it. According to Pamela’s expert, Jeffrey Fox, the “tagalong” provision meant that if the general partner elected to find a buyer to sell his partnership, the minority partner would have the right to tag along and force sale of that interest at the same pro rata price.

       We note that, in arguing this point, Pamela also argues that the discounts used were too large, and further asserts that this valuing minority discounts issue is one of mixed question of law and fact. Citing Wal-Mart Stores, Inc. & Subsidiaries v. Comm’r of Internal Revenue, 153 F.3d 650 (8th Cir. 1998), she claims the accounting principles relied on by the trial court here were erroneous. The Wal-Mart case, however, involved an accounting method to account for inventory levels, and did not involve valuating discount interests. The federal case is not applicable or in any way binding here. Moreover, Pamela agrees the method used by Theodore’s experts to determine the minority discounts was proper, but at the same time, still argues that method should be “trumped” by the later actual sales. She also fails to show the trial judge was clearly erroneous in accepting the valuation method utilized by Theodore’s expert testimony. On this same point, Pamela cited the case of the Arkansas State Highway Commission v. Smith, Jr., 254 Ark. 644, 495 S.W.2d 147 (1973), and argues a sale occurring years after the taking of property can be used to establish the value of the property taken. That case, too, is of no help or application here, since the Smith case was an eminent domain matter and no statute was controlling there, like § 9-12-315(a)(1) in the instant case. We also point out that the Smith court specifically stated that the reason why it was not error for the trial court to consider subsequent sale data was because there was no indication that circumstances had changed materially between the valuation date and the sale date, i.e., the subsequent sale data might be a relevant indicator of value as of the previous date. However, in the instant case, such a comparison could not be made because of the change of several material factors between the two dates.

       The income tax regulations provide that a person cannot hold a term interest in more than two QPRTs. Because the parties have three residences, they could not both be grantors of all three and receive tax advantages.


author: DONALD L. Corbin, Justice. RAY THORNTON, Justice,

text:
    Michael Drew KENNEDY v. STATE of Arkansas
    CR 00-1250
    42 S.W.3d 407
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001

      Perroni & James Law Firm, by; Samuel A. Perroni and Janan Arnold Davis, for appellant.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant Michael Drew Kennedy was convicted in the Van Buren County Circuit Court of first-degree battery and sentenced to ten years’ imprisonment. Appellant appealed his conviction to the Arkansas Court of Appeals, asserting that the trial court erred when it allowed a prior statement given by an eyewitness to be read into evidence by the police officer who took the statement. In a 4-2 decision, the court of appeals affirmed the judgment of conviction. See Kennedy v. State, 71 Ark. App. 171, 27 S.W3d 467 (2000). We granted Appellant’s petition for review, pursuant to Ark. Sup. Ct. R. l-2(e)(ii). We affirm.

The record reflects that on July 27, 1997, around 2:30 a.m., a fight occurred outside the 659 Club, in Choctaw, Arkansas. The fight was primarily between Appellant and Lanny Bates, although there was testimony that Appellant’s friend, Rodney Brown, was also involved. As a result of the fight, Bates received multiple knife wounds to his back, neck, throat, and face. Appellant received a cut on his hand. Bates was taken by ambulance to a nearby hospital and later air-lifted to UAMS in Little Rock. Appellant was subsequently arrested and charged with first-degree battery. No other arrests were made. At trial, Appellant claimed that he had acted in self-defense and that Bates was the initial aggressor. Appellant admitted that he had cut Bates two times in the back with his knife; however, he denied making any of the other cuts to Bates.

The State presented testimony from numerous persons who witnessed the fight. Only two of the State’s witnesses, Bates and Kim Kennedy, had knowledge as to how the fight started. Kim, who is the wife of Appellant’s first cousin, Mark Kennedy, gave a statement to Arkansas State Police Investigator Ross Dean, approximately one week after the fight. Kim told Dean that Appellant had started the fight, and that he had a knife in his hand. At trial, however, Kim did not recite the incident as she had to the police. Instead, she claimed that she could not recall much of the details about the fight. Specifically, Kim testified that she could not remember who started the fight or whether Appellant had a knife. When pressed by the prosecutor, she offered the excuse that she had been pregnant at the time and had been fighting with her husband. She also stated that she was nervous. When questioned about specific statements that she had made to police, Kim repeatedly claimed a lack of memory.

After Kim was excused from the witness stand, the prosecutor recalled Dean and asked him to tell the jury what Kim had told him. Defense counsel objected to the testimony on the ground that it was hearsay. A hearing was then held outside the presence of the jury. The prosecutor argued that he should be permitted to impeach the witness with her prior inconsistent statements. Defense counsel countered that Kim’s inability to recall what happened was not inconsistent with her statements to Dean. Defense counsel further argued that the prior statements would be prejudicial to the defense, and that Appellant would be deprived of the opportunity to confront the witness if her statement was offered through the officer. The trial court allowed the testimony under Ark. R. Evid. 613(b) and this court’s holding in Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The trial court, however, did not allow the State to introduce the officer’s written report of the statements.

Thereafter, Dean read Kim’s statements to the jury. In pertinent part, Kim told the officer that she was in the parking lot of the 659 Club with her husband, Mark Kennedy, Bates, and another man. Kim saw Bates walk over to where Mark, Appellant, and Brown were standing. Kim followed Bates, but she could not hear what was being said, due to her hearing impairment. Kim saw Mark give Brown $10 to keep Brown from fighting him. Kim could not hear what Bates and Appellant were saying, but she observed a knife in Appellant’s right hand. Kim then saw Appellant hit Bates in the face with his fist. The next thing she saw was that the knife had switched from Appellant’s right hand to his left hand. She saw Bates fall to the ground, and she yelled for Mark to stop the fight. Mark declined, telling Kim that Bates had told him that he (Bates) could handle the fight himself. Kim then heard Bates call for Mark to help him. At that point, Mark grabbed Appellant and took him to his truck. Kim could see that Appellant had blood on his hand. When Bates, who was still on the ground, turned his head, Kim could see that his throat was cut.

In the court of appeals, Appellant argued that the trial court erred in allowing Kim’s testimony to be impeached with extrinsic evidence of her prior statements to Dean. Specifically, he contended that (1) Kim’s testimony was not inconsistent with her prior statements to police, as required by Rule 613(b); (2) Dean’s testimony of her prior statements was impermissibly used and considered by the jury as substantive evidence, in violation of Ark. R. Evid. 801(d)(1)(i); and (3) he was denied his right to confront the witness because her prior statements were admitted through the testimony of Dean. The court of appeals rejected Appellant’s arguments, relying entirely on this court’s holding in Chisum, 273 Ark. 1, 616 S.W.2d 728. The dissent, on the other hand, concluded that Chisum was not applicable and had been limited in its scope by this court’s holding in Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983). We granted Appellant’s petition for review in order to clarify any perceived inconsistencies in this court’s decisions. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000).

For purposes of clarification, we note that Appellant does not argue that it was error to allow the prosecutor to impeach Kim’s testimony during his direct examination of her. Indeed, the record demonstrates that Appellant did not object to the prosecutor’s questions to Kim about her prior statements to Dean. Thus, Appellant is not challenging the use of intrinsic evidence to impeach the witness. Rather, he argues only that it was error for the trial court to allow impeachment by extrinsic evidence, i.e., Dean’s testimony of her prior statements. We discuss the points on appeal separately.

I. Admissibility of the Prior Statements under Rule 613(b)

Appellant first argues that the witness’s lack of memory did not render her testimony sufficiently inconsistent with her prior statement to police. Correspondingly, he asserts that because her statements were not inconsistent with her testimony, the trial court erred in allowing the prosecutor to present extrinsic evidence of her prior statements. We disagree.

A. Degree of Inconsistency Required

The first issue we must resolve is whether Kim’s professed lack of memory of the particular details of the incident rendered her trial testimony inconsistent with her prior statement to police. This court has previously recognized that an “ ‘inconsistent statement’ as used in Rule 613, is not limited to those instances in which diametrically opposite assertions have been made.” Roseby v. State, 329 Ark. 554, 564, 953 S.W.2d 32, 37 (1997), overruled on other grounds, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), (citing Truck Ctr. of Tulsa, Inc. v. Autrey, 310 Ark. 260, 836 S.W.2d 359 (1992); Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985)). See also United States v. McCrady, 774 F.2d 868, 873 (8th Cir. 1985) (quoting United States v. Dennis, 625 F.2d 782, 795 (8th Cir. 1980)) (holding that under Fed. R. Evid. 613, inconsistency “may be found in evasive answers, inability to recall, silence, or changes of position”). This court has adopted Judge Weinstein’s view that a statement is inconsistent “whenever a reasonable person could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs.” Roseby, 329 Ark. at 564, 953 S.W.2d at 37. Considerable discretion is given to the trial court when determining where the fine is drawn in the impeachment of a hostile witness, and those rulings will not be reversed absent an abuse of discretion. Id.; Hughey v. State, 310 Ark. 721, 840 S.W.2d 183 (1992).

The leading Arkansas case on this issue is Chisum, 273 Ark. 1, 616 S.W.2d 728. In that case, the appellant’s sister, called as a witness for the state, testified that she had forgotten many of the details of the crime and had also forgotten what she had told the police in a prior interview. Due to her lack of memory, the trial court allowed the state to impeach her testimony by having the sheriff and his secretary narrate the statements given by the witness to the sheriff. On appeal, this court held that “the statements were unquestionably admissible for the purpose of impeachmentf.]” Id. at 6, 616 S.W.2d at 730. This court reasoned that the fact that the witness had “professed not to remember what she had said to the sheriff did not preclude the prosecution from using her prior inconsistent statements.” Id. at 8, 616 S.W.2d at 731. This court relied on the case of Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889), in which it was held:

The statute does not place the right to impeach a witness by proof of contradictory statements, upon the condition of his denial. It requires his cross-examination upon the matter; nothing more. This is exacted in order that he may explain apparent contradictions and reconcile seeming conflicts and inconsistencies. If he cannot remember the fact, he is unable to do what the law affords him the opportunity to do. If he cannot remember the statement made, it is quite as probable that his recollection of the occurrence about which he testifies is inaccurate or incorrect. If contradiction properly affects the value of his testimony when he denies, it is difficult to see why it should not when he ignores the contradictory or inconsistent statements. The testimony is discredited because he affirms today what he denied yesterday; the legitimate effect of such contradiction cannot depend upon his power to remember it. If the defect in the memory is real, the proof of the contradiction apprises the jury of this infirmity of the witness; if he has made a false statement under the pretense of not remembering, he should not escape contradiction and exposure. We think the evidence was properly admitted.

Chisum, 273 Ark. at 8, 616 S.W.2d at 732 (emphasis added) (quoting Billings, 52 Ark. at 308, 12 S.W. at 575).

Similarly, in Roseby, 329 Ark. 554, 953 S.W.2d 32, the witness, who was related to the defendant, admitted making statements to the police, but claimed that she could not remember what she had said. After she was given the opportunity to review her prior statements, the witness stated that she could not remember saying those things because she was under the influence of drugs at the time. The prosecutor then proceeded to ask the witness about specific information that she had given to the police. Each time, the witness responded that she did not remember. On appeal, the appellant argued that the prosecutor should not have been allowed to impeach the witness with her unsworn statements because she did not directly contradict her prior statements; rather she merely declared that she could not remember them. This court disagreed, relying in large part on the decision in Chisum. This court noted that just as in Chisum, the witness’s “statements that she ‘forgot’ were sufficiently inconsistent to allow the introduction of her prior sworn statement.” Id. at 564, 953 S.W.2d at 37. This court then observed that it has “reached this same conclusion in numerous cases where a witness claimed to have forgotten a prior statement that is unfavorable to the defendant.” Id. (citing Hughey, 310 Ark. 721, 840 S.W.2d 183; Flynn, 287 Ark. 190, 697 S.W.2d 114; Humpolak v. State, 175 Ark. 786, 300 S.W. 426 (1927); Billings, 52 Ark. 303, 12 S.W. 574).

The facts of the present case are very similar to those in Chisum and Roseby. Here, the witness, Kim Kennedy, is married to the Appellant’s first cousin. Kim gave the police a detailed account of the fight, approximately one week after the incident had occurred, in which she stated that Appellant had a knife, and that he threw the first punch. At trial, however, she claimed that she had forgotten many of the details that were crucial to the State’s case. When questioned by the prosecutor about many of those details, she repeatedly claimed that she could not remember them. The pertinent parts of her testimony are as follows:

By Mr. James:
Q. Okay. Kim, were you very close to what happened and saw what happened that night?
A. I don’t quite remember all that happened. I was pregnant at the time.
Q. Okay. Kim, you made a statement to the police just a few days after this happened, isn’t that right?
A. Yes, sir.
Q. And have you had a chance to review or would you like to review your statement?
A. I’ve already reviewed it, Sir.
Q. Okay. So, what you told the police that day, was that what you remember happening?
A. Part of it.
Q. Part of it?
A. Uh-huh.
Q. Are you saying that now that you’ve read your statement you’re not sure about something?
A. I —-I can’t quite remember all for sure. I wasn’t really for sure.
Q. Uh. .
A. If it all happened. ‘Cause me and my husband was in an argument. We were fussing and fighting.
. . . .
Q. Okay. All right. Now, during the fight, did you see a knife?
A. Not, I can’t remember. I don’t quite remember.
Q. Oh. Well, do you remember telling the police officer that you saw Michael Drew Kennedy with a knife in his hand?
A. I don’t remember seeing Michael Drew Kennedy with a knife.
Q. And that you — you remember — do you remember telling the police officer that you saw him hit Lanny in the face with his fist?
A. That’s what I don’t remember. I cannot remember if he did or not because that’s when me and my husband both were standing there fighting; ‘cause we were arguing.
Q. Do you remember telhng the police officer that the next thing you saw was that Michael had the knife in his left hand, he had moved it from the right hand to the left hand?
A. No, sir, I don’t.
Q. And then Lanny fell to the ground. Do you remember telling the police officer that?
A. I can’t remember if I did or not, sir.
Q. Okay. Do you remember yelling to Mark to stop the fight?
A. Pardon me?
Q. Do you remember yelling to Mark at that point to stop the fight?
A. I was, no. All I can remember was that [we] were talking about something and I was ready to go.
Q. You were just talking about something and you were ready to go?
A. Uh-huh. I can’t quite remember.
. . . .
Q. Okay. I’d like to show you a photograph. I’m going to show you a picture it’s State’s Exhibit No. 4. Did you see a wound on Lanny Bates like that on his neck?
A. I can’t remember. I don’t remember seeing no — I didn’t — all I saw was him laying on the ground.
Q. Do you remember telling the police officer that when Lanny turned his head while laying on the ground you could see that his throat was cut?
A. That’s all I can remember. That’s all I could see was blood. That’s just all I could see.
Q. You don’t remember telling the police officer —
A. I don’t remember if his throat was cut or what. All I know I saw was blood.
. . . .
Q. Well, do you believe that you told the police officer the truth on the day that you talked to him?
A. All I remember is what I told him what I saw and that’s all I could remember at what I seen.
Q. All right. But you weren’t lying to him when you talkfed] to him, were you?
A. No, sir.
Q. Okay. So, if the police officer said that you told him these things on here, he would be telling the truth, wouldn’t he?
A. Well, sir, all I know is I — what I told the cop is what I think I know. I didn’t — I wasn’t for sure. I just know what I thought.
Q. Okay.
A. But I was not for sure.
Q. But you wouldn’t make up some specific things if you weren’t pretty sure; like Michael Drew Kennedy having a knife in his hand, like Lanny Bates having his throat cut. You wouldn’t have guessed on these things, would you?
A. No, sir. I do not guess on them things. I’m just — I’m for sure.

Based on the foregoing exchange, we conclude that the witness’s trial testimony was sufficiently inconsistent with her prior detailed statements to the police. Her claimed loss of memory, which was conveniently favorable to Appellant, her husband’s first cousin, was similar to the testimony given by the witnesses in Chisum and Roseby. Accordingly, it was not error to allow impeachment of the witness.

B. Extrinsic Evidence

The next issue is whether the trial court erred in allowing the State to present extrinsic evidence of the witness’s prior inconsistent statements under Rule 613(b), which provides in pertinent part:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon[.]

Under this rule, three requirements must be met before extrinsic evidence of a prior inconsistent statement will be admissible. First, the witness must be given the opportunity to explain or deny the inconsistent statement. Second, the opposing party must be given the opportunity to explain or deny the witness’s inconsistent statement. Third, the opposing party must be given the opportunity to interrogate the witness about the inconsistent statement. Additionally, this court has held that when the witness admits to having made the prior inconsistent statement, Rule 613(b) does not allow introduction of extrinsic evidence of the prior statement to impeach the witness’s credibility. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). In other words, once a witness acknowledges having made a prior inconsistent statement, the witness’s credibility has successfully been impeached. “An admitted liar need not be proved to be one.” Id. at 18, 753 S.W.2d at 263 (quoting Gross v. State, 8 Ark. App. 241, 250, 650 S.W.2d 603, 608 (1983)). Where, on the other hand, the witness is asked about the prior statement and either denies making it or fails to remember making it, extrinsic evidence of the prior statement is admissible. See 1 John W Strong, McCormick on Evidence § 34, at 126 (5th ed. 1999). See also United States v. Cline, 570 F.2d 731 (8th Cir. 1978).

In the present case, the requirements for admitting extrinsic evidence of the witness’s prior inconsistent statements were met. First, the foregoing exchange between the prosecutor and the witness demonstrates that the witness was given an opportunity to. explain or deny the prior statements. During her questioning, Earn consistently demonstrated an inability to recall the facts or to remember what she had previously said to the police. We disagree with Appellant’s assertion that Kim admitted making the prior statements. Her testimony in to to reflects that the only thing that she fully admitted was that she had given a statement or interview to the police. When asked about specific information or particular statements that she made, she professed a lack of memory. Indeed, even when she stated that she had not lied to the police or guessed at the details that she had previously provided, she hedged her answers by stating that she told the police what she thought she knew, but that she was not “for sure” about what happened. Her exact testimony bears repeating: “Well, sir, all I know is I — what I told the cop is what I think I know. I didn’t — I wasn’t for sure. I just know what I thought.... But I was not for sure.” These answers are hardly full and unequivocal admissions of having made the prior inconsistent statements. See Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983).

The second and third requirements of Rule 613(b) were also met. Appellant was given the opportunity to explain or deny the witness’s prior inconsistent statements, and he was given the opportunity to interrogate her about them. The record reflects that Appellant was able to conduct a full cross-examination of the witness, during which defense counsel attempted to rehabilitate her credibility. For example, defense counsel pointed out that it had been some nineteen months between the time the crime had occurred and the time of trial. Defense counsel also attempted to suggest that the witness was either too far away to have seen much of the fight or was too distracted from fighting with her husband to be able to accurately recall the event. Accordingly, the trial court did not abuse its discretion in allowing the State to present extrinsic evidence of the witness’s prior inconsistent statements.

We reject Appellant’s reliance on the holdings in Roberts, 278 Ark. 550, 648 S.W.2d 44, and Smith, 279 Ark. 68, 648 S.W.2d 490. Neither of those cases presented facts that would have sustained the use of extrinsic evidence for impeachment. Both cases involved witnesses who admitted that they had made prior inconsistent statements and that those prior statements were false. Thus, under Rule 613(b), extrinsic evidence was not admissible. Moreover, in Roberts, the state was aware before the trial that the witness had recanted his prior statements. Nonetheless, the trial court allowed the state to introduce the complete text of the witness’s statement through a deputy sheriff. This court reversed, holding that “[o]nce a witness has fully and unequivocally admitted making the prior inconsistent statement, then it cannot be proven again through another witness.” Roberts, 278 Ark. at 552, 648 S.W.2d at 46 (citing McCormick, Evidence § 37, at 72-73 (2d ed. 1972)). This court held further that because the prior statement was unsworn, it could not be admitted as substantive evidence under Rule 801 (d) (1) (i). This court ultimately concluded that the impeachment of the witness in that situation was “a mere subterfuge” for the prosecution’s true intention of introducing the hearsay statements as substantive evidence of the defendant’s guilt. Id. Under those circumstances, this court held that the error was not cured by an instruction to the jury directing them to consider the prior statements for impeachment purposes only.

One month after the decision in Roberts, this court decided Smith, 279 Ark. 68, 648 S.W.2d 490. In that case, the witness recanted his prior statements on the witness stand, while testifying for the state. The witness readily admitted that he had lied in his previous statements to the police, and that he had falsely implicated the defendant in the crime charged. Despite his full and unequivocal admissions, the prosecutor sought to introduce the witness’s written statement previously given to police. The trial court initially sustained defense counsel’s objection that the statement was hearsay. Later, however, the prosecutor was permitted to read the statement to the jury over the defense’s objection. On appeal, this court reversed on the ground that it was “manifest from the record that [the witness’s] written statement was read to the jury, not for purposes of impeachment, but as substantive evidence to prove the truth of the matters asserted in it.” Id. at 69, 648 S.W.2d at 491. As in Roberts, the decision in Smith turned on the pivotal fact that the witness had admitted making the prior inconsistent statements and had admitted that he had lied. Under those circumstances, extrinsic evidence of the lies was not admissible.

Contrary to the position taken by Appellant and the dissent in the court of appeals, the holding in Smith, 279 Ark. 68, 648 S.W.2d 490, did not limit that in Chisum, 273 Ark. 1, 616 S.W.2d 728. Smith merely concluded that Chisum was not controlling, because the witness had admitted to the jury that he had lied in his previous statements. Thus, through his own admission, his believability had been impeached, and extrinsic evidence of his prior statements was not admissible under Rule 613(b). Furthermore, because they were not given under oath and subject to the penalty of perjury, the prior statements were not exempt from the hearsay rule under Rule 801(d)(1)(i). Thus, the decision in Smith did not turn on the form of the evidence used, i.e., the witness’s prior statements read in their entirety by another person. Rather, that decision turned on what this court concluded were impermissible purposes for admitting the evidence. Accordingly, Smith, does not stand for the proposition that it is error to allow the impeachment of a witness by introducing extrinsic evidence of prior inconsistent statements through the testimony of a second witness or through the admission of documentary evidence. Were that the case, Rule 613(b) would have no meaning. Nor does Smith stand for the proposition that a witness may not be impeached with prior inconsistent statements unless those statements were given under oath and are thus admissible as substantive evidence. Again, were that the case, Rule 613(b) would have no meaning independent of Rule 801(d)(1)(i).

In sum, the factual circumstances presented in Roberts and Smith precluded the use of extrinsic evidence to impeach the witnesses, who both admitted to having lied in their prior statements. The facts here are quite distinguishable from those. In this case, the witness did not fully and unequivocally admit that she had made the incriminating statements to the police. Rather, all she admitted was that she had given an interview to the police. Her testimony reveals that when asked about specific statements that she had made to the officer, she repeatedly professed a lack of memory. As such, the holdings in Roberts and Smith are not controlling of this appeal, and the trial court did not err in allowing the witness to be impeached through the admission of extrinsic evidence of her prior inconsistent statements.

II. Use of Prior Inconsistent Statements as Substantive Evidence

In a related argument, Appellant contends that Smith, 279 Ark. 68, 648 S.W.2d 490, mandates reversal because the prosecutor impermissibly used Kim’s prior statements to police, introduced through the officer, as substantive evidence of Appellant’s guilt, in violation of Rule 801(d)(1)(i). Specifically, Appellant points to the prosecutor’s repeated references to Kim’s prior statements during his closing argument to the jury. Appellant thus contends that the prosecutor’s actions demonstrate that the evidence was not admitted as impeachment evidence, but as substantive evidence of his guilt. We reject this argument for two reasons.

First, the record is devoid of any objection to the improper use of the evidence during the prosecutor’s closing argument. Because he failed to make a timely objection in the trial court, he has waived this argument on appeal. See, e.g., Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000); State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000). The record reflects that during the in-chambers hearing held prior to the introduction of the statements, the trial court ruled that it was admitting the testimony as impeachment evidence under Rule 613(b) and Chisum, 273 Ark. 1, 616 S.W.2d 728. Had Appellant objected to the prosecution’s later use of the statements as substantive evidence, the trial court would have undoubtedly sustained the objection.

Second, we reject Appellant’s argument because he failed to ask for a limiting instruction directing the jury to consider the prior statements only for purposes of determining the witness’s credibility. “When evidence is admissible for one purpose but not for another, an objection is wholly unavailing unless the objecting party asks the court to limit the evidence to its admissible purpose.” Chisum, 273 Ark. 1, 9, 616 S.W.2d 728, 732 (citing City of Springdale v. Weathers, 241 Ark. 772, 410 S.W.2d 754 (1967); Shipp v. State, 241 Ark. 120, 406 S.W.2d 361 (1966); Uniform Evidence Rule 105). Similarly, Ark. R. Evid. 105 provides that when evidence is admissible for one purpose but not another, it is up to the objecting party to request a limiting instruction from the trial court. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). When an appellant contends that the failure to give a cautionary or limiting instruction at trial constitutes reversible error, the failure to request the instruction precludes reversal based on that claim. Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000).

In the present case, as discussed above, the witness’s prior statements were properly admitted for the purpose of impeaching her testimony at trial. It was thus Appellant’s burden to request a limiting instruction directing the jury to consider her prior inconsistent statements only for the purpose of judging the witness’s credibility, and not for the truth of the matter set forth therein. See AMCI 2d 202. Because there was no request for a limiting instruction, the trial court was not required to give one.

Again, we are not persuaded by Appellant’s reliance on Smith, 279 Ark. 68, 648 S.W.2d 490, and Roberts, 278 Ark. 550, 648 S.W.2d 44. In those cases, extrinsic evidence of the witnesses’ prior statements was not admissible for any proper purpose. Because the witnesses admitted to having lied in their prior statements, the statements themselves had no impeachment value and were thus not admissible under Rule 613(b). Moreover, because, the prior inconsistent statements were not made under oath, they were not alternatively admissible under Rule 801 (d) (1) (i). Accordingly, the error in admitting the prior statements in Smith and Roberts could not have been cured by a limiting instruction.

III. Right to Confrontation of the Witness

For his last point for reversal, Appellant argues that he was denied his right to confront the witness about her prior inconsistent statements because they were admitted through the testimony of another witness. He argues that it was not possible to ask the officer about Kim’s powers of observation and perception at the time, as well as the physical circumstances that may have affected her statements about the fight. We find no merit to this argument, as Appellant was afforded a full opportunity to ask Kim about the circumstances surrounding the fight and her prior statements to Dean.

The Confrontation Clause, found in both the United States and Arkansas Constitutions, is intended to permit a defendant to confront the witnesses against him and to provide him with the opportunity to cross-examine those witnesses. See Smith v. State, 340 Ark. 116, 8 S.W.3d 534 (2000); Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). Appellant was not denied his right to confront Kim at trial, nor was he denied the right to fully cross-examine her regarding her prior inconsistent statements. As evidenced by her direct testimony, set out above, the prosecutor asked Kim about the individual statements that she had made to the police. Appellant was then allowed to cross-examine her about those statements.

The record reveals that defense counsel cross-examined Kim on how close she stood to the fight, the effect of her fight with her husband, and the fact that the trial took place over a year and a half after the fight. Had he chosen to do so, he undoubtedly would have been allowed to ask her about the lighting that night, the type of knife that she allegedly saw Appellant use, the effect of her pregnancy on her ability to remember and recall the event, and any other issue that he now claims may have touched upon her ability to recall. There is no indication from the record that the trial court in any way attempted to limit Appellant’s cross-examination of Earn. The record also reflects that Appellant was given a full opportunity to cross-examine Dean about the circumstances of his interview of Kim. Appellant certainly could have called Kim as his own witness if he had any further questions stemming from Dean’s testimony of her statements. We thus conclude that Appellant was not denied the right to confront the witnesses against him.

IV Conclusion

The trial court did not err in allowing the prosecutor to impeach Kim with her prior statements, as Kim’s testimony was sufficiently inconsistent with her prior statements to the police. Moreover, because Kim was given the opportunity to explain or deny the prior inconsistent statements and did not admit having made the statements, it was not error to allow the prosecutor to introduce extrinsic evidence of her prior statements under Rule 613(b). Because the prior statements were properly admitted for impeachment purposes, and not for the truth of the matter asserted by them, the statements were not hearsay. Thus, it was irrelevant that they were not given under oath and subject to the penalty of perjury, as provided in Rule 801(d)(l)(i). That the prior statements were later used as substantive evidence by the prosecutor during closing argument is of no consequence, as Appellant did not make a timely objection, nor did he ask for a Hmiting instruction directing the jury to consider the prior statements only as impeachment evidence. Lastly, there was no violation of Appellant’s right to confront the witness due to the admission of extrinsic evidence of the witness’s statements. Appellant was afforded a full and fair cross-examination of the witness. We thus affirm the judgment of conviction.

Thornton, J., concurs.

RAY THORNTON, Justice,

concurring. In my view, it was error to allow Kimberly’s previously unsworn statement to be admitted into evidence, and to be used as substantive evidence supporting Michael Kennedy’s conviction.

The only permissible use of the unsworn statement was to impeach Kimberly’s credibility as a witness. Kimberly did not deny making a prior inconsistent statement, but responded to a detailed cross-examination revealing the inconsistencies between her sworn statement during trial with the notes made by Officer Dean concerning what he heard her say within a few days of the incident.

Perhaps the use of Officer Dean’s notes for purposes of cross-examination was appropriate to impeach Kimberly’s sworn testimony at trial, but such use is a far cry from allowing Officer Dean’s notes of his recollection of an earlier unsworn statement to be read to the jury and used by the prosecutor as substantive evidence of the commission of the crime.

By allowing the officer’s notes to be read to the jury as a reflection of an earlier unsworn statement by Kimberly, we are standing the prohibition against hearsay on its head, and the use of Officer Dean’s notes for that purpose was clearly an abuse of discretion. In Smith v. State, supra, the fact that a prior inconsistent statement was read in its entirety to the jury, and treated as substantive evidence in argument by trial counsel, convinced us that the statement was impermissibly used as substantive evidence and was not used merely for impeachment.

In this case, by having Officer Dean read his notes of Kimberly’s prior unsworn statement to the jury and by using it as substantive evidence in its closing argument, the State used Kimberly’s statement in precisely the manner that was proscribed by Smith v. State, supra.

In closing arguments, the State treated Kimberly’s unsworn statement as if it were substantive evidence. Specifically, the prosecutor argued:

Kimberly Kennedy gave a very detailed statement to the police on August 4, 1997, which was a week after this incident. She had seven days to calm down and think about it. She saw a knife in Michael’s right hand and in the left hand. She saw Lanny fall. She saw her husband pull Michael off of Lanny and take him back to the truck. Kim saw Michael hit Lanny first. That was her statement. The first blow Kim talked about was Michael striking Lanny in the face. That’s what she said.

The prosecutor never points out that the earlier statement on which he relies was unsworn and not admitted as substantive evidence. The prosecutor also explained to the jury that they should “believe” Kimberly’s earlier statement because, as a person with a hearing impairment, she was “more perceptive” and a better “observer.”

However, as clear as the error in using an unsworn statement for substantive proof supporting a conviction, it is regrettably equally clear that Kennedy did not request a limiting instruction to allow consideration of the prior statement only for impeachment purposes, and no objection was made to the prosecutor’s flagrant use of the unsworn statement as substantive evidence supporting a conviction during closing arguments. As the majority correctly notes, we have often held that the failure to make a timely objection, thereby allowing the trial court to rule on the issue, prevents us from reaching a point on appeal. See Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). For that reason, I reluctantly concur in the result.