author: Per Curiam.

text:
    Jason Ryan CARTER v. STATE of Arkansas
    CR 98-273
    29 S.W.3d 716
    Supreme Court of Arkansas
    Opinion delivered November 2, 2000

      Clarence W. Cash, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Per Curiam.

Jason Carter was convicted as an accomplice of first-degree murder, first-degree battery, and aggravated assault in connection with a shooting that occurred at the Harvest Foods parking lot in Sherwood on December 18, 1993. He was sentenced to concurrent sentences of sixty years, thirty years, and ten years, respectively. This court affirmed his conviction and sentence in Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996). The case is again before us pursuant to Carter’s appeal of the circuit court’s denial of his petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37.

The evidence that was introduced during the trial indicated that during an altercation that occurred in the parking lot, Jason Hatcher was fatally wounded, Tim McGarrity was shot in the leg, and Derek Hammonds, although escaping injury, was in the fine of fire. There was proof that more than one weapon was fired, although the State could not prove which one of the weapons fired the shot that killed Hatcher or the shot that injured McGarrity. Several witnesses testified that the driver of a blue Honda Accord shot a handgun into the crowd. The identity of the driver was established by Carters custodial statement, in which he told police that he drove a blue Honda Accord into the parking lot and fired a .38 caliber handgun, but that he aimed it “into the air” in order to break up the altercation that was taking place.

In his petition for postconviction relief, Carter made several allegations of ineffective assistance of counsel. He alleged that he was prejudiced by his attorney’s failure to fully investigate the State’s witnesses; by his failure to move for a mistrial after a potential juror made prejudicial statements during voir dire; by his failure to challenge a biased juror; and by his failure to move to suppress Carter’s custodial statement. The circuit court did not hold an evidentiary hearing, but denied relief in the following order:

1. A jury convicted the Petitioner of first-degree murder, first-degree battery, and aggravated assault on March 23, 1995. He was sentenced to imprisonment in the Arkansas Department of Correction for sixty years on the murder charge, thirty years on the battery charge, and ten years on the aggravated assault charge to be served concurrently. The sentence was enhanced in accordance with Arkansas Code Annotated § 5-74-108 (Michie 1993). Petitioner was given credit for 460 days in jail.
2. Petitioner appealed his case to the Arkansas Supreme Court. The judgment of this Court was affirmed and the mandate was issued on May 17, 1996.
3. Petitioner alleges that his attorney, C.P. Christian, was ineffective in representing him.
4. The allegations contained in the Petitioner’s petition do not show that Mr. Christian’s performance was deficient such that he made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment of the United States Constitution.
5. The petitioner’s Rule 37 petition is hereby denied.

On appeal, Carter argues that the circuit court erred when it denied relief on his claims of ineffective assistance of counsel. He also assigns error to the circuit court’s decision to deny relief without holding an evidentiary hearing. We must reverse and remand the case because an evidentiary hearing is necessary in order to resolve Carter’s claim that his counsel was ineffective for failing to move to suppress his custodial statement; and because the circuit court’s order does not otherwise comply with Rule 37.3(a).

Rule 37.3(a) provides that the trial court need not hold a hearing if “the files and records of the case conclusively show the petitioner is entided to no relief.” But in doing so, the trial court “shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” If the trial court fails to make these findings in accordance with the Rule, it is reversible error. Bohanan v. State, 327 Ark. 507, 939 S.W.2d 507 (1997). If, however, the record before this court conclusively shows that the petition is without merit, we will affirm despite the circuit court’s failure to make written findings. Bohanan, supra; Rawls v. State, 264 Ark. 186, 569 S.W.2d 662 (1978).

The circuit court erred when it failed to hold an evidentiary hearing on Carter’s claim that his attorney was ineffective for failing to file a motion to suppress his custodial statement. The record in this case does not conclusively show that the claim is without merit. First, the evidence that was introduced during the trial does not conclusively show that the alleged failure to file the motion did not prejudice Carter. As indicated above, while several witnesses testified that the driver of a blue Honda Accord shot into the crowd, none were able to identify him. The only evidence introduced by the State that identified the driver was Carter’s custodial statement.

Second, there is no means of determining whether counsel performed deficiently when he did not file a motion to suppress. The absence of such a motion also means that there is no record of a Denno hearing in which the facts pertinent to the admissibility of the statement would have been developed. See generally, Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). When it is alleged that counsel performed deficiently in failing to file such a motion, an evidentiary hearing pursuant to Rule 37 is the first opportunity to make a record of the circumstances surrounding the custodial statement. Without such a record, it is impossible to determine whether a motion to suppress would have been successful, and therefore, whether counsel performed deficiently in failing file it.

The circuit court’s failure to make specific written findings on Carter’s claims regarding his counsel’s performance during voir dire is also reversible error. We are unable to affirm despite the absence of written findings because thevoir dire was never transcribed by the court reporter, and therefore, is not in the record on appeal. Bohanan, supra.

In summary, we must reverse and remand the case for an evidentiary hearing on Carter’s allegation that his trial counsel was ineffective for fading to move to suppress his custodial statement. We also direct the circuit court to order a transcription of voir dire and, if necessary, hear additional evidence in order to resolve Carter’s remaining ineffective-assistance-of-counsel claims. As required by Rule 37.3(a) and Rule 37.3(c), the circuit court’s resolution of these claims shall be reflected in written findings of fact and conclusions of law.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE: Henry Thomas JONES, IV (Arkansas Bar ID # 97018)
    00-1011
    29 S.W.3d 364
    Supreme Court of Arkansas
    Opinion delivered November 2, 2000
   Per Curiam.

A consent order of discipline was issued on February 1, 2000, by the Supreme Court Committee on Professional Conduct, finding that Henry Thomas Jones, IV, violated the Procedures of the Arkansas Supreme Court Regulating the Professional Conduct of Attorneys at Law. As part of the findings and order, the Committee ordered Mr. Jones to pay a $100 fine and costs in the amount of $6.17. Mr. Jones has neither paid the $106.17, nor communicated with the Committee why he cannot pay the sanction. Section 7(G)(1) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law provides that willful disobedience of any Committee order shall subject the attorney to contempt of the supreme court. The Committee petitions this court for an order of this court for Henry Thomas Jones, IV, to appear and show cause why he should not be held in contempt for failing to comply with the Committee’s February 1, 2000, order. We grant the Committee’s petition.

Henry Thomas Jones, IV, is hereby ordered to appear before this court on the 30th day of November, 2000, at 9:00 a.m., to show cause why he should not be held in contempt of this court.

It is so ordered.


text:
    Carl Rankin NEWHARD v. STATE of Arkansas
    CR 00-1173
    29 S.W.3d 364
    Supreme Court of Arkansas
    Opinion delivered November 2, 2000

      Mason Law Firm, PLC, by: W. Blair Brady, for appellant.
    No response.
   Per Curiam.

Appellant, Carl Rankin Newhard, by his attorney, W Blair Brady, has filed a motion for rule on the clerk. On June 6, 2000, the Benton County Circuit Court entered a judgment and commitment order accepting Newhard’s guilty plea to two counts of rape and one count of first-degree sexual abuse, finding him guilty as charged, and sentencing him to twenty-five years’ imprisonment in the Arkansas Department of Correction, with credit for one day in custody before sentencing and a five years’ suspended sentence. Newhard then filed a timely notice of appeal on June 13, 2000. Pursuant to Ark. R. App. P. — Civ. 5(a), (2000), the record on appeal was due to be filed with the Supreme Court Clerk by September 11, 2000. On September 11, 2000, Newhard filed a motion for and received an extension of time to lodge the record on appeal until October 6, 2000.

The record was not tendered until October 12, 2000. Mr. Brady admits in the instant motion that the record 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). Accordingly, we grant the motion for rule on the clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.


text:
    Ronald OWEN v. STATE of Arkansas
    CR 00-820
    29 S.W.3d 365
    Supreme Court of Arkansas
    Opinion delivered November 2, 2000

      Miller Law Firm, by: Randel Miller, for appellant.
    No response.
   Per Curiam.

Appellant, Ronald Owen, by and through his attorney, has filed a motion for a rule on the clerk. In Owen v. State, 342 Ark. 6, 26 S.W.3d 122 (2000), we denied appellant’s motion, stating that upon receipt of an affidavit in which counsel accepted responsibility, the motion would be granted. His attorney, Randel Miller, states in his affidavit that the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by an 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).

Therefore, the motion is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: W.h. “Dub” Arnold, Chief Justice. Tom Glaze, Justice, Ray Thornton, Justice,

text:
    William BENTON v. The Honorable Jim GUNTER, Circuit Judge on Assignment; Janice Roberts and Jerry Riley; Helen McClinton Bradley, County and Probate Clerk for Jefferson County; and Jefferson County Board of Election Commissioners
    00-1156
    29 S.W.3d 719
    Supreme Court of Arkansas
    Opinion delivered November 6, 2000

      Evans Benton, P.A., by: Evans Benton; and John W. Cone, for appellant.

      J. Slocum Pickell, for appellees.
   W.h. “Dub” Arnold, Chief Justice.

Appellant William Benton filed the instant appeal challenging the Jefferson County Circuit Court’s determination that he was ineligible to be a candidate for the position of Second Division Pine Bluff Municipal Court Judge. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(4) (2000). On September 28, 2000, appellees Janice Roberts and Jerry Riley, residents of Pine Bluff, filed a complaint and petition for writ of mandamus and declaratory judgment, urging the trial court to disqualify Benton as a candidate because he failed to satisfy the constitutional requirements for that office. Specifically, appellees complained that he was not qualified to run because he was not a qualified elector of the City of Pine Bluff.

The trial court agreed and found that Benton was not a “qualified elector” of the City of Pine Bluff pursuant to Ark. Const., Art. 19, sec. 3, and Ark. Code Ann. section 16-17-108 (dddd)(2)(A). Benton is a resident of White Hall, located in Jefferson County, Arkansas. Accordingly, the court ordered that Benton’s name be removed from the ballot as a nominee for the second-division municipal judge’s race, that he not be certified or declared eligible as a candidate in the general election, and that any votes cast for him not be counted or certified to the appropriate election officials. Additionally, the court ruled that no certificate of election be issued to Benton.

On appeal, Benton maintains that he is a qualified elector because his residence in Jefferson County subjects him to the Pine Bluff Municipal Court’s jurisdiction. In light of the pending election on November 7, 2000, this court granted a stay of the trial court’s judgment and appellant’s petition for an accelerated appeal per Ark. R. Sup. Ct. 6-1 (b) (2000). The sole point on appeal questions whether residency in Pine Bluff is required to be eligible as a candidate for the position of municipal judge for the Second Division of the Pine Bluff Municipal Court. Recognizing that the legislature has created a disparity between election procedures for the two divisions of the Pine Bluff Municipal Court, we must conclude that residency in Pine Bluff is required for the position of second-division municipal judge. Therefore, we affirm the trial court’s order removing Benton from the ballot.

I. Motion to strike

As a preliminary matter, we consider appellant’s motion to strike a portion of appellees’ brief addressing the merits of the trial court’s rulings regarding the remaining candidate on the ballot, Waymond Brown. Although appellees have briefed the issue of Brown’s eligibility and have argued in support of the trial court’s findings, we need not consider these arguments on appeal. Appellant Benton advances no argument on the issue of Brown’s eligibility and presents no basis for removing Brown from the ballot. Accordingly, we grant the motion to strike.

II. “Qualified elector” requirement

The primary issue before us is whether appellant Benton is ineligible to run for the Second Division Pine Bluff Municipal Judge seat because he is not a resident of Pine Bluff. Ark. Const., Art. 19, sec. 3, entitled “Elected or appointed officers — Qualifications of an elector required” provides that:

No persons shall be elected to or appointed to fill a vacancy in any office who does not possess the qualifications of an elector.

(Emphasis added.) Further, Ark. Code Ann. section 16-17-108(dddd)(2)(A) states, in part, that:

The qualified electors of the city of Pine Bluff shall elect in addition to the presently elected municipal judge an additional municipal judge for the Second Division of the Pine Bluff Municipal Court.

(Emphasis added.)

We must examine current statutory enactments to guide us in interpreting the constitutional requirement in the instant case. The two relevant statutes are Ark. Code Ann. sections 16-17— 108(dddd)(2)(A) and 16-17-120, both amended in 1999. Clearly conflicting with the former statute, section 16-17-120(a) provides that municipal judges shall be elected by the electors of the entire county and section 16 — 17—120(b) (2) states that:

Any candidate for municipal court judge shall meet all requirements now set by law, but residency in the municipality shall no longer be a requirement.

(Emphasis added.) Although the legislature expressed a general intent to abandon the city-residency requirement for municipal-court-judge candidates and electors, section 16-17-120 is a general statute. On the other hand, section 16-17-108(dddd)(2)(A) is a specific statute addressing the unique election requirements established by the legislature for the second-division Pine Bluff municipal-judge position.

We have long held that a general statute must yield when there is a specific statute involving the particular subject matter. Shelton v. Fiser, 340 Ark. 89, 94, 8 S.W.3d 557, 560 (citing Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997); Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Conway Corp. v. Construction Eng’rs, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989)). This principle governs the issue before us and compels us to affirm the trial court’s order determining that residency in the City of Pine Bluff is required to be eligible as a nominee for Pine Bluff second-division municipal judge. Pursuant to Ark. Code Ann. section 16-17-108(dddd)(2)(A) (Repl. 1999), we affirm the trial court’s order removing appellant’s name from the ballot.

Affirmed.

Glaze, J., concurs.

Thornton, J., dissents.

Tom Glaze, Justice,

concurring. I concur. In pertinent part, Art. 19, § 3, provides that “no person shall be elected to fill a vacancy in any office who does not possess the qualifications of an elector.” In interpreting Ark. Const, art. 19, § 3, the court has held that the person (elector) to be elected shall be a resident in the political subdivision to be served by the elected official. (Emphasis added.) Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991). Furthermore, when confronted with the issue of whether a municipal court vacancy filled by a countywide election is a county or municipal office (political subdivision), this court held it was a municipal, not county, office. Oliver v. Simons, 318 Ark. 402, 885 S.W.2d 859 (1994); see also Beshear v. Clark, 292 Ark. 47, 728 S.W.2d 165 (1987) (the office of municipal judge is a municipal office).

From the above, whether a person who is running to fill a municipal court vacancy must be a qualified elector of the municipality is a constitutional issue, not just a statutory one. Any statute that conflicts with our constitution is a nullity. In short, this court has held that, under the Arkansas Constitution, a person must be a resident of the municipality if he or she is to be elected to a vacancy in an office in that municipality. Because the appellant William Benton admits he is not a domiciliary or resident of Pine Bluff, the trial court decision must be affirmed, and Benton’s name should be removed from the ballot. If the ballots have already been cast in the race, they should not be counted or certified.

Ray Thornton, Justice,

dissenting. I respectfully dissent from the majority’s holding that, notwithstanding the latest legislative enactment establishing the requirements to run for the office, William Benton of Jefferson County cannot run for a position on the municipal court exercising jurisdiction over Jefferson County.

The latest legislative enactment states: “Any candidate for municipal court judge shall meet all requirements now set by law, but residency in the municipality shall no longer be a requirement.” Ark. Code Ann. § 16-17-120(b)(2) (Repl. 1999) (emphasis added). The majority concludes that this statute, being general, cannot override the provisions of an earlier statute, Ark. Code Ann. § 16-17-108(dddd)(2)(A) (Repl. 1999) that states in part:

The qualified electors of the city of Pine Bluff shall elect in addition to the presently elected municipal judge an additional municipal judge for the Second Division of the Pine Bluff Municipal Court.

Id.(emphasis added).

We have recently determined who are the qualified electors for the Pine Bluff Municipal Judge. In Foster v. Jefferson County Bd. of Election Comm’rs., 328 Ark. 223, 944 S.W.2d 93 (1997), we upheld countywide elections for the judge of the Pine Bluff Municipal Court, based upon a legislative enactment which stated in pertinent part:

The office of Municipal Judge in any Municipal Court ... [in Jefferson County] . . . shall be voted upon by the qualified electors of the entire county ...[.]

Act 181 of 1955. This decision remains in effect until and unless this court reverses Foster, supra.

I believe that any person qualified as an elector for Pine Bluff Municipal Judge should not be barred as a candidate for that office. The reasoning of Foster, supra, that county residents should have the right to vote for a judicial position, supported in part by countywide taxes remains valid and reflects sound principles of public policy. Those principles have been reflected by the latest act of the legislature declaring specifically that residency in the city of Pine Bluff is not required to seek office as judge of this municipal court.

I respectfully dissent.

       See our decision in Foster v. Jefferson County Bd. of Election Comm’rs., 328 Ark. 223, 944 S.W.2d 93 (1997), where we upheld county-wide election for Pine Bluff’s first municipal-judge position. We acknowledged that a county-wide election remedied the inequity caused by denying county residents, whose taxes fund the Pine Bluff Municipal Court, the opportunity to vote and be represented in the election for municipal judge. Foster, 328 Ark. at 227, 944 S.W.2d at 95.

       The appellant relies on language in Davis where this court said that the Arkansas Constitution requires a residence in the political subdivision to be “served” by the elected office. He suggests that since the Pine Bluff Municipal Court serves the county, he can be a resident of the county and still comply with art. 19, § 3. As already discussed, this court has interpreted the Arkansas Constitution to say the person must be a resident of the political subdivision (here municipality). Nowhere in the Arkansas Constitution can I find any language that permits a person to be a nonresident of the political subdivision to which he or she seeks to be elected, or permits the person to reside outside that political subdivision or office, even though that office may also incidentally benefit or serve electors outside that subdivision’s boundaries.


author: Tom Glaze, Justice.

text:
    Roy Don TESTER v. STATE of Arkansas
    CR 00-409
    30 S.W.3d 99
    Supreme Court of Arkansas
    Opinion delivered November 9, 2000

      Henry & Cullen, L.L.P., by: Mark Murphey Henry, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Roy Tester was charged with capital murder in connection with the deaths of his parents, Don and Dana Tester. Following a jury trial, he was convicted of first-degree murder for the death of his father, and capital murder for the death of his mother. He received a life sentence for each conviction. Tester now appeals, raising three points for reversal. We affirm.

The bodies of Don and Dana Tester were discovered in their home just outside of London in Pope County on the morning of Saturday, July 18, 1998. It was later determined that they had both been strangled; in addition, Dana Tester’s throat had been cut. One of their cars, a purple Dodge Stratus, was missing from their home, as were two guns, some of Don Tester’s rings and his watch, and Mr. Tester’s guitar and guitar case.

The facts that developed at trial reveal the following. Roy Tester went to his parents’ home on the morning of Friday, July 17, with Mary D’Angelo and Thomas Taylor. After visiting with Mrs. Tester for some time, the three left the house, but returned a few hours later. Tester was inside talking to his mother when his father came inside and asked why Tester had come back. Tester and his father began arguing, and according to D’Angelo, Tester told his father that “all I wanted to do was give you a hug.” As Mr. Tester tried to push his son off of him, D’Angelo said, Tester started to choke his father. Mrs. Tester, who had recently had back surgery, was apparently unable to intervene. D’Angelo said that a few minutes later, the elder Tester was laying down on the ground; his face was a purplish-brown color, and he was not breathing.

At that point, D’Angelo and Taylor left the house, but not before they saw that Tester had gone to his mother and had a tight grip on her, holding her down tightly. Some few minutes later, Tester came out of the house with a black guitar case, and the three left the house; Tester drove the Dodge Stratus away, with Taylor and D’Angelo following in Tester’s father’s white pickup truck. Shortly thereafter, Taylor and D’Angelo parked the truck and got into the Stratus with Tester, and the three drove to Houston, Texas.

While in Houston, Tester confessed to D’Angelo and Taylor that he had killed his parents. According to D’Angelo, “it was really getting to him . . . ’cause he had killed his mom . . . , and he said he didn’t mind killing his dad, but it really broke him down to kill his mom. It was getting to him that ... he had sliced her throat.”

For his first point on appeal, Tester argues that there was insufficient evidence to convict him of capital murder in the death of his mother. He contends that the trial court should have granted his motion for directed verdict based on his affirmative defense that he was not guilty by reason of mental disease or defect. A motion for directed verdict is a challenge to the sufficiency of the evidence. Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Id. (citing Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999)). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it. Id. (citing Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990)).

However, when a defendant challenges the sufficiency of the evidence, he must apprise the trial court of the specific basis on which the motion is made. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994) (citing Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992)). A directed verdict motion must be a specific motion to apprise the trial court of the particular point raised. Id. (citing Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993)). The reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. Id. (citing Standridge v. City of Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1982)).

It is well-settled that parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1996) (citing Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995)). This is true even in cases where the sentence is life without parole, as our duty is only to examine the record for error on objections decided adversely to the appellant, not to address arguments that might have been made. Id. (citing Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995)).

At the close of the State’s case, counsel for Tester made the following statements:

By Mr. DUNHAM: Judge, the Defendant moves for a directed verdict on counts one and count two of the Second Amended Information filed August 25, 1999.
It’s my understanding that is the last amended information that’s been filed. Both counts allege that the Defendant caused the death of the named individual with the premeditated and deliberated purpose of causing the death.
There is insufficient evidence from which a jury could find beyond a reasonable doubt that the Defendant engaged in premeditated and deliberated purpose of causing the death of either victim.
There’s been no testimony whatsoever about the intention and according to the state’s own witness, Ms. D’Angelo, who was an eye witness, it was unexpected and appeared to her to be a response to the conduct of Don Tester.
Under the circumstances there is simply insufficient evidence to convict for capital murder. That’s my motion.
By THE COURT: The Court will deny that. Are you ready to proceed, Mr. Dunham?
By Mr. Dunham: Yes, sir.

At the close of the defense’s case, the following statements were made:

By THE COURT: Mr. Dunham, you may proceed.
By Mr. DUNHAM: The Defendant renews his motions for directed verdict previously made on the same basis.
By THE COURT: Okay. I’ll deny those, Mr. Dunham, based on the same reasoning of the Court on your first motion.

Thus, Tester’s motions for directed verdict were made on the basis that there had been insufficient evidence of premeditation and intent. More particularly, counsel argued at trial simply that the State’s witness, Ms. D’Angelo, said Roy Tester’s acts were unexpected. On appeal, however, he argues that the trial court erred in denying his motions for directed verdict “based on his affirmative defense that he was not guilty by reason of mental disease or defect.” While he does continue to argue that there was insufficient evidence of premeditation and deliberation, he premises this contention solely on the fact that there was evidence presented that he suffered from a mental defect or deficiency. The trial court, however, was never apprised of this specific basis for the directed-verdict motion. Therefore, we cannot consider this point for reversal.

Tester’s second point on appeal is that the trial cofirt erred in refusing to suppress the in-court identification of Sam Platt, a Houston pawn-shop owner who identified Roy Tester in a photograph shown him by officers investigating the case. The trial court had held a hearing on Tester’s motion to suppress the identification, at which time the foEowing facts were revealed. Pope County Sheriff Jay Winters discovered that the purple Dodge Stratus missing from the Testers’ house had been located in a Houston, Texas, impound yard. Upon arriving in Houston, Sheriff Winters also found some of the Testers’ property — the guitar, some rings, and a watch — at a pawn shop. The Sheriff spoke to Sam Platt, who remembered that two men brought the items in, but that only one of them actuaEy pawned them. Platt remembered the second man, however, because he had played the guitar for seven or eight minutes, and he described the second man as a white male, 5T0” to six feet taE, with long black hair, facial hair, and a dark complexion. At the hearing on the motion to suppress, Platt identified the man he saw in the pawn shop as Tester.

Sergeant John Swaim, an investigator in the homicide division of the Houston Police Department, testified at the hearing that he interviewed Platt, who described the man who had visited the pawn shop as “a white male, about five foot eight inches taE, medium buüd, and dark hair. I believe he said he had a ponytail.” It was not until after this encounter, where Platt described the man he had seen, that Sergeant Swaim showed him a photo of Tester; at that time, however, when Swaim asked if the man in the photograph was the man Platt had described, Platt responded that it was.

After considering this testimony, the court ruled that it would aEow an in-court identification during the trial, but stated that it “had a problem” with the identification given to the officers when the photograph was presented. The judge ruled that Platt could give an in-court identification based on the seven-or-so minute time period that he saw him play the guitar, but that he could not reference the photograph the officers showed him on their subsequent visits. Platt offered testimony consistent with this ruling.

Even if prior identifications may have been improper or suggestive, an in-court identification wiE not be suppressed if indicia of reliabiEty are found to independently exist. Burnett v. State, 302 Ark. 279, 790 S.W.2d 137 (1990). A court may consider a number of factors in determining whether such indicia of reliabEity exist, including the foEowing: the prior opportunity to observe the aEeged criminal act, the existence of any discrepancy between any pre-lineup description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, the lapse of time between the alleged act and the lineup identification, and the degree of certainty that a witness professes to possess that the perpetrator and the defendant are the same individual. Burnett, 302 Ark. at 282 (citing United States v. Wade, 388 U.S. 218 (1967), and Neil v. Biggers, 409 U.S. 188 (1972)). The conclusion to be drawn from these factors is dependent on the totality of the circumstances. Id.

Even if the identification technique is impermissibly suggestive, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide the weight the identification testimony should be given. Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995). We do not reverse a ruling on the admissibility of an identification unless it is clearly erroneous, and we will not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. Id.

Sam Platt, who had seen Tester in a brightly lit area for approximately fifteen minutes, gave an accurate description of Roy Tester to two different law enforcement officers before ever seeing a photograph of him. Platt never identified anyone else as the man he had seen in his pawn shop, and the first identification came only five-and-a-half weeks after seeing him for the first time. It cannot be said that there is a “very substantial likelihood of misidentification” in this instance, and the trial court’s ruling was not clearly erroneous.

Tester’s third argument is that the trial court erred in failing to suppress a statement from his sister, Donna Martin, that he had confessed the murders to her. Tester’s trial was set for August 30, 1999. On August 25, 1999, the prosecution sent a letter to defense counsel, stating that “in addition to the statements by Roy Don Tester already provided to you, the State has discovered that Mr. Tester made a statement to his sister Donna Martin. Mr. Tester made the following statement: “I strangled dad. I strangled mom, but I couldn’t have cut mom’s throat.”

Tester immediately filed a motion to suppress that statement, arguing that the late disclosure of the statement and the suspicious circumstances of its disclosure by Donna Martin to the prosecutor rendered the statement completely unreliable. Further, he contended that the late disclosure, after the time in which he had been assured that all statements which would be used at trial had already been disclosed, violated Ark. R. Crim. P. 17.1.

The trial court held a hearing on the motion to suppress shortly before the trial started. The prosecution informed the court that Donna Martin had not come forward with her brother’s statement until after a trial preparation meeting with the prosecutor during which she had heard the statement in Tester’s psychiatric evaluation that Tester had no memory of strangling his mother. Upon hearing that part of the report, Martin related the statement above. The prosecutor told the court that as soon as he knew of the existence of this statement, he forwarded it to defense counsel. At that point, the judge offered Tester a continuance, suggesting that the real problem was not with the admissibility of the statement, but with whether or not it would prejudice Tester in the preparation of his trial. Tester, however, expressly rejected the continuance, stating that the situation would be the same in a week or a month. The court thereupon denied the motion to suppress.

On appeal, Tester argues that this amounted to a discovery violation, and that the State subjected the defense to an unfair surprise after discovery was closed. This court discussed the rules dealing with discovery and the prosecutor’s obligation to disclose certain statements to defense counsel in Rayford v. State, 326 Ark. 656, 934 S.W.2d 496 (1996).

Rule 17.1 (a)(ii) of the Arkansas Rules of Criminal Procedure mandates that the prosecutor disclose, upon timely request, “any written or recorded statements and the substance of any oral statements made by the defendant.” Rule 19.2 imposes a continuing duty on the prosecutor to disclose this information. In the event of noncompliance, Rule 19.7 allows the trial judge to order the undisclosed evidence excluded, grant a continuance, or enter such an order as he or she deems proper under the circumstances. The key in determining whether a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995).

Rayford, 326 Ark. at 658-59. It is within the trial court’s discretion as to which sanction to employ. Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993) (holding that any possible prejudice caused by the state’s failure to comply with the pretrial discovery rule would have been cured by a continuance, and since the trial court offered appellant a continuance before any testimony was presented, which he declined, there was no error).

However, even if we were to find that the State had violated its discovery obligations, the trial court offered to give Tester a continuance in order to figure out how to deal with the statement; Tester, however, refused this offer. No reason was given by Tester that the week or so the trial court offered him as a continuance would be insufficient to counter or to impeach Ms. Martin’s testimony. Because he rejected the trial court’s offer of a continuance, he cannot claim that the refusal to suppress the statement was reversible error.

The record has been examined under Ark. Sup. Ct. R. 4-3 (h) for reversible error, and none has been found.

For the foregoing reasons, Tester’s convictions are affirmed.

       Tester does not challenge his conviction for first-degree murder in the death of his father.

       We do not concede that a discovery violation occurred in this case, as the prosecutor immediately forwarded Donna Martin’s statement to defense counsel, thus fulfilling his obligations under Ark. R. Crim. P. 19.2.

       We also note that the State introduced, without objection, Mary D’Angelo’s testimony that Tester confessed the murders to her, including her statement that he told her that he had cut his mother’s throat.


author: Donald L. Corbin, Justice.

text:
    Versie BURCH v. Bennie GRIFFE and Douglas Griffe
    00-444
    29 S.W.3d 722
    Supreme Court of Arkansas
    Opinion delivered November 9, 2000

      Frances Morris Finley, for appellant.

      Dodds, Kidd, Ryan & Moore, by: Greg Alagood, for appellees.
   Donald L. Corbin, Justice.

This is a probate case involving a surviving spouse’s right to take against his wife’s will. Appellant Versie Burch, the personal representative of the estate of Aileen Griffe, appeals the Pulaski County Probate Court’s order allowing the surviving spouse, Robert Griffe, to elect to take against the will. Appellees in this matter are Robert Griffe’s co-guardians, Bennie Griffe and Douglas Griffe. This appeal presents an issue of first impression, requiring our interpretation of Ark. Code Ann. §§ 28-39-401 to -405 (1987). Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1 — 2(b) (1). We find this appeal meritorious, and we reverse.

The facts of this matter are somewhat convoluted, as they are derived from two separate probate cases. Aileen Griffe died of respiratory failure on November 18, 1997. She left a will that distributed her property as follows: (1) all of her jewelry plus $25,000 to her niece, Charlotte Griffe Simpson; (2) all of her stock to Appellant; and (3) the rest and residue of her estate to her husband, Robert. The will further provided that Robert should be appointed as executor of her will, but in the event that he should be unable to serve as executor, then Appellant should be appointed. At the time of Aileen’s death, Robert had been diagnosed with senile dementia of the Alzheimer’s type and was receiving care and treatment at the Chenal Rehabilitation Center.

On February 11, 1998, Appellant petitioned the Pulaski County Probate Court, First Division, to be appointed as personal representative of Aileen’s estate. Attached to the petition was a letter from Robert’s treating physician stating that Robert was not competent to serve as executor of his wife’s estate. On May 12, 1998, the First Division admitted Aileen’s will to probate and appointed Appellant to serve as personal representative of the estate. No notice was ever sent to Robert by the court clerk, regarding the probate of Aileen’s will and his right to elect to take against the will. However, on September 29, 1998, Appellant filed a waiver of notice and entry of appearance, as well as a waiver of inventory and accounting, on Robert’s behalf. This, she did through a durable power of attorney, which Robert had granted to his wife and Appellant in May of 1995.

On October 27, 1998, Appellees were appointed co-guardians of Robert’s estate by the Fifth Division of the Pulaski County Probate Court. On November 12, 1998, Appellees filed a petition to revoke the waiver that Appellant had filed on Robert’s behalf. Appellees then demanded notice of any hearing on Aileen’s will and requested an inventory and accounting of her estate. A final accounting was filed by Appellant on February 16, 1999. This accounting reflected that the total value of Aileen’s estate was $220,500. On April 6, 1999, Appellees filed an objection to the final accounting, questioning the ownership of certain shares of stock. Two days later, Charlotte Simpson filed a similar objection.

On April 12, 1999, Appellees filed an election on Robert’s behalf to take against his wife’s will. In response, Appellant filed a motion to strike the election, alleging that it was not timely, and that it was made without authorization of the Fifth Division, which had jurisdiction over Robert’s guardianship. On August 18, 1999, before any action was taken on the motion to strike, Robert died. Appellees subsequently petitioned the Fifth Division to authorize, after the fact, their action of exercising Robert’s election to take against the will. In a letter order dated October 1, 1999, the Fifth Division granted the authorization. The court reasoned that, under the circumstances, it would have authorized the election at the time it was filed.

On December 3, 1999, the probate of Aileen’s estate was transferred from the First Division to the Fifth Division, thus giving the Fifth Division jurisdiction over both cases. The Fifth Division ultimately allowed Robert to take against his wife’s will, finding that (1) the election was timely made under section 28-39-403; (2) Appellees’ failure to obtain prior authorization from the probate court before they filed the election was not fatal; and (3) Robert’s right of election was not invalidated by his death, because it was filed during his lifetime.

We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000) (citing Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998)). Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Shaw v. Shaw, 337 Ark. 530, 989 S.W.2d 919 (1999). We are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. We begin our consideration of this appeal by reviewing the relevant statutes.

Section 28-39-401 provides in part that when a married person dies testate, the surviving spouse has the right to take against the will and receive either a dower or curtesy interest, provided that the spouses have been married continuously for over one year. Section 28-39-405 sets out who may make the election to take against the will and who may benefit from it:

(a) The right of election of the surviving spouse is personal. It is not transferable and does not survive the surviving spouse.
(b) The guardian of the estate of an incompetent surviving spouse, when authorized by the court having jurisdiction over the estate of the ward, may elect to take against the will in the ward’s behalf. (Emphasis added.)

We believe that this section requires a reversal of the probate court’s order, as the decisive factor in this case is that Robert died before a proper election was made on his behalf.

The record reflects that Appellees filed the election, on Robert’s behalf, to take against Aileen’s will on April 12, 1999, prior to Robert’s death. It is undisputed, however, that Appellees never sought or received the probate court’s authorization prior to the time that they purported to make the election. It is also undisputed that Appellees did not seek the probate court’s authorization until after Robert’s death. Accordingly, their failure to seek and obtain court authorization during Robert’s lifetime nullifies the election.

Under section 28-39-405 (b), the guardian’s power to make the election on behalf of the surviving spouse is clearly limited by, and dependent upon, the probate court’s authorization of the election. Undoubtedly, this provision was intended by the legislature to act as a safety net, enabling the probate court to consider all the circumstances before authorizing the election. Any other interpretation would result in the guardian being given complete authority to make the election, regardless of whether it is' in the best interest of the surviving spouse. Had the legislature wished to place that authority solely with the guardian, it could have done so. Because it did not, we conclude that the election in this case was not effective.

We disagree with the probate court’s interpretation of Jeffcoat v. Harper, 224 Ark. 778, 276 S.W.2d 429 (1955), on this point. There, in reference to the predecessor to section 28-39-405 (b), this court stated: “Furthermore, the statute takes into account the possibility of the surviving spouse’s insanity, authorizing the guardian to make the choice for his ward.” Id. at 780, 276 S.W.2d at 430 (emphasis added). The probate court interpreted this language as somehow minimizing the need to obtain court authorization, so long as the result was just. For the reasons stated above, we do not share this view. Moreover, this language is dictum, as Jeffcoat did not involve an attempt by a guardian to make an election without prior court authorization. In fact, no guardian had been appointed for the surviving spouse in that case.

In any event, notwithstanding Appellees’ failure to obtain authorization prior to filing the election, we conclude that the probate court was without power under section 28-39-405 to authorize any election after Robert’s death. “The legislature could not have declared more plainly that the right of election is personal, that it does not survive the surviving spouse.” Jeffcoat, 224 Ark. at 780, 276 S.W.2d at 430. This declaration certainly carries with it the implication that the right is intended for the personal benefit of the surviving spouse. Id. Indeed, the primary reason that the law allows a surviving spouse the right to take against the will is to prevent injustice that may result from the testator’s failure to provide for the surviving spouse in the will. See Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984). Thus, when an incompetent surviving spouse dies prior to the time that an election is made and authorized on his or her behalf, there is no justification for allowing the election. This point is well illustrated by the following case.

In In re: Peden’s Estate, 185 A.2d 794 (Pa. 1962), John Peden died testate and was survived by his wife, Bella. Bella was subsequently adjudged incompetent, and a guardian was appointed on her behalf. Without the authority of the court having jurisdiction over the guardianship, the guardian elected on Bella’s behalf to take against her husband’s will. Shortly thereafter, Bella died. Bella’s heirs and administrators urged the appellate court to uphold the election. The court refused, holding:

Since the election was filed by Bella’s guardian in Bella’s lifetime without the authority of the Court, it was a nullity; after Bella Peden’s death the Court could not authorize or direct the guardian of her estate to file an election to take against or under his will.

Id. at 796. Citing In re: Harris’s Estate, 41 A.2d 715 (Pa. 1945), the court reasoned that the guardian of an incompetent person cannot elect on behalf of the ward to take against the will unless empowered to do so by the court, which is the real guardian of the incompetent person. The court held that the functions and powers of the guardian cease when the ward-dies, and that, likewise, the court’s power to act also ceases. Thus, “[affter the ward’s death, no action as to an election was within the power of either court or guardian.” Peden’s Estate, 185 A.2d at 797 (quoting In re: Gerlach’s Estate, 193 A. 467, 471 (Pa. Super. Ct. 1937)). By the same token, the court is without power to enter a nunc pro tunc order authorizing an election after the death of the ward. We believe that this reasoning is sound.

Accordingly, we reverse the probate court’s untimely authorization of Robert’s election to take against his wife’s will. Because the right to elect is personal and does not survive the surviving spouse, the probate court lacked the power to authorize the election after Robert died. Under the facts of this case, it is irrelevant that the election was attempted during Robert’s lifetime, as it lacked the required authorization of the court having jurisdiction over Robert’s guardianship. In short, both the guardians and the probate court exceeded their powers in this case. Because we reverse on this issue, we do not reach Appellant’s remaining arguments. We note, however, that our opinion today is not intended to affect the additional issues currently pending before the probate court, namely those concerning the accounting of Aileen’s estate and Appellees’ allegation that Appellant breached her fiduciary duty as personal representative.

Reversed and remanded.


author: Donald L. Corbin, Justice. W.h. “Dub” Arnold, Chief Justice,

text:
    James A. NEAL, as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct v. Charles Dawson MATTHEWS
    00-217
    30 S.W.3d 92
    Supreme Court of Arkansas
    Opinion delivered November 9, 2000

      James A. Neal, Executive Director, Supreme Court Committee on Professional Conduct, by: Lynn Williams, for appellant.

      Darrell F. Brown & Associates, P.A., by: Darrell F. Brown, for appellee.
   Donald L. Corbin, Justice.

Appellant James A. Neal, in his official capacity as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct, appeals the order of the Pulaski County Circuit Court suspending Appellee Charles Dawson Matthew’s license to practice law for a period of fourteen months. Mr. Neal sets forth three points for reversal: (1) that the evidence warranted disbarment; (2) that the trial court lacked the authority to order that the suspension was retroactive; and (3) that the trial court lacked the authority to reinstate Appellee’s law license. Our jurisdiction of this matter is pursuant to Ark. Sup. Ct. R. 1 — 2(a) (5). We agree, in part, with Mr. Neal’s arguments, and therefore reverse and remand this matter to the trial court.

Mr. Neal filed a disbarment complaint against Mr. Matthews in Pulaski County Circuit Court on November 4, 1996. The events leading up to the disbarment action stemmed from information uncovered in connection with the Whitewater investigation. Mr. Matthews was indicted on two felony counts, but ultimately pled guilty to two counts of Bribery of a Small Business Investment Official, a federal misdemeanor in violation of 18 U.S.C. § 215. Mr. Matthews admitted that he signed a legal opinion for David Grace and Gene Fitzhugh in an attempt to secure a small business loan for himself from David Hale. He was sentenced to twelve months’ imprisonment on each count, with four months of the second count to run consecutively with the twelve months of the first count. In addition, he was sentenced to one year of supervised release and fined $7,500. He ultimately served eleven months in a federal prison camp, one month in St. Francis Halfway House, and two months of home confinement. Mr. Matthews satisfied all the conditions of his probation on April 12, 1997.

The disbarment complaint alleged that Mr. Matthews violated Rule 8.4(b) and (c) of the Model Rules of Professional Conduct (“Model Rules”), as well as Section 6(B) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (“Procedures”). On April 15, 1998, the trial court granted, in part, Mr. Neal’s motion for summary judgment that the convictions involved dishonesty and breach of trust. After finding that Mr. Matthews’s conduct violated Model Rule 8.4(b), the trial court ordered that a sanctions hearing be scheduled.

The sanctions hearing was delayed until October 13, 1999, due to severe injuries suffered by Mr. Matthews as the result of a car accident. During the sanction phase, Mr. Matthews presented mitigating evidence through the testimony of witnesses regarding his good moral character and fitness as an attorney. Mr. Matthews testified that no client lost money as a result of the legal opinion that he signed, and that he did not receive any type of financial gain as a result of his conduct. He also testified that he regretted his past actions. After considering the evidence, the pleadings, and the stipulation of the parties, the trial court determined that Mr. Matthews’s law license should be suspended for fourteen months, with the suspension to be applied retroactively to coincide with the time Mr. Matthews served in custody. The trial court then reinstated Mr. Matthews’s license to practice law effective upon the date he was released from federal custody. Mr. Neal now appeals the trial court’s order.

Disbarment proceedings are neither civil nor criminal in nature but are sui generis, meaning “of their own kind.” Procedures § 1(C); Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). Section 5(L)(4) of the Procedures mandates that this court review appeals from disbarment proceedings in a manner consistent with civil appeals. As disbarment proceedings are tried without a jury by the circuit court, we conduct a de novo review, and will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Id.; Ark. R. Civ. P. 52(a). A finding is clearly erroneous when although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Foundation Telecomms. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000); Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000). This court must view the evidence in a fight most favorable to the appellee, resolving all inferences in favor of the appellee. Arkansas Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000); Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). Disputed facts and determinations of the credibility of witnesses are within the province of the factfinder. Id.

Appropriate Sanction

For his first argument on appeal, Mr. Neal argues that based on the evidence, the only appropriate sanction was disbarment. Specifically, he argues that Mr. Matthews’s conduct occurred because of a dishonest or selfish motive, and that it consisted of multiple offenses. Mr. Matthews responds that his conduct does not warrant disbarment as it does not involve any misappropriation of money, a key element in other disbarment actions. Further, he contends that he has suffered enough and the sanction imposed by the trial court is fitting, appropriate, and proper, and thus should be affirmed by this court.

As previously stated, the trial court determined that Mr. Matthews violated Model Rule 8.4(b), which provides that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” We now must decide whether the fourteen-month suspension imposed by the trial court was appropriate here. With regard to whether the evidence warrants suspension or disbarment, Section 7 of the Procedures divides violations of the Model Rules into two separate categories of conduct: serious misconduct and lesser misconduct. Serious misconduct warrants a sanction terminating or restricting the lawyer’s license to practice law, whereas lesser misconduct does not. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771. Conduct will be considered serious misconduct if any of the considerations set forth in Section 7(B) of the Procedures apply. Those considerations are:

(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer’s prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities; or
(6) The misconduct constitutes a “Serious Crime” as defined in these Procedures.

Clearly, Mr. Matthews’s convictions may be classified as serious misconduct. The inquiry into the appropriate sanction does not end there, however. Once the court determines that there has been a violation of the Model Rules, it must then proceed to the penalty phase during which the defendant attorney and the Committee’s Executive Director are allowed to present evidence and arguments regarding any aggravating or mitigating factors, in order to assist the trial court in its determination of the appropriate sanction. Id. The American Bar Association’s Joint Committee on Professional Standards developed a fist of aggravating and mitigating factors in order to assist the trial court in making its determination of the appropriate sanction. Those factors were adopted by this court in Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998). They are:

Aggravating Factors:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with [the] rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge [the] wrongful nature of [the] conduct;
(h) vulnerability of [the] victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances;
Mitigating factors:
(a) absence of prior disciplinary record;
(b) absence of dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify [the] consequences of [the] misconduct;
(e) full and free disclosure to [the] disciplinary board or cooperative attitude towards [the] proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
(j) delay in the disciplinary proceedings;
(k) impositions of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.

Wilson, 332 Ark. at 164, 964 S.W.2d at 207 (citing Model Standards for Imposing Lawyer Sanctions §§ 9.22 and 9.32 (1992)).

To determine whether the trial court’s imposition of a fourteen-month suspension, instead of disbarment, was clearly erroneous, we review the trial court’s specific findings regarding rule violations and aggravating and mitigating factors. A review of the record reveals the presence of three aggravating factors. First, the evidence supports a finding that Mr. Matthews’s actions occurred because of a dishonest or selfish motive. Mr. Matthews testified that he signed off on the legal opinion for Grace and Fitzhugh because he thought it might help himself in obtaining a small business loan. Next, there are multiple offenses involved in that Mr. Matthews pled guilty to two counts of bribery; however, it must be noted that both of those counts arose from the same transaction. Finally, Mr. Matthews has been a licensed attorney since 1964, and thus has substantial experience in the law. Indeed, Mr. Matthews testified that at the time he signed the loan opinion, he was very experienced in banking law.

The above-mentioned aggravating factors are not considered in isolation; instead, they must be weighed against the mitigating factors. Here, the mitigating factors far outweigh the aggravating factors. First, Mr. Matthews has no prior disciplinary record. Mr. Matthews also made a timely good-faith effort to make restitution or to rectify the consequences of his misconduct. The trial court specifically found that Mr. Matthews had at all times exhibited full and free disclosure to the Committee, as well as exhibited a cooperative attitude during his disbarment proceedings. Further, numerous witnesses testified on behalf of Mr. Matthews regarding his good character. Mr. Matthews has also served time in federal custody, and paid the $7,500 fine imposed on him. Finally, the trial court also found that Mr. Matthews “has demonstrated beyond a doubt that he is truly and unconditionally remorseful, contrite and penitent for his actions[.]”

This court has further determined that there are additional factors appropriate for the Committee’s consideration in determining the sanction to be imposed in disciplinary cases. See Hollingsworth, 338 Ark. 251, 992 S.W.2d 771. While we recognize that these factors are not classified as either aggravators or mitigators, we believe they are harmonious in their objectives and their focus with the factors adopted in Wilson, 332 Ark. 148, 964 S.W.2d 199. Id. These factors, as identified by Section 7(F) of the Procedures, are:

(1) The nature and degree of the misconduct for which the lawyer is being sanctioned.
(2) The seriousness and circumstances surrounding the misconduct.
(3) The loss or damage to clients.
(4) The damage to the profession.
(5) The assurance that those who seek legal services in the future will be protected from the type of misconduct found.
(6) The profit to the lawyer.
(7) The avoidance of repetition.
(8) Whether the misconduct was deliberate, intentional or negligent.
(9) The deterrent effect on others.
(10) The maintenance of respect for the legal profession.
(11) The conduct of the lawyer during the course of the Committee action.
(12) The lawyer’s prior disciplinary record, to include warnings.
(13) Matters offered by the lawyer in mitigation or extenuation except that a claim of disability or impairment resulting from the use of alcohol or drugs may not be considered unless the lawyer demonstrates that he or she is successfully pursuing in good faith a program of recovery.

A review of these additional factors also indicate that a sanction less than disbarment was appropriate here. The nature and degree of Mr. Matthews’s conduct, while egregious, does not rise to the level of those cases where disbarment has been appropriate. Mr. Matthews’s misdemeanor convictions involved an amount of money of less than $100. The profit Mr. Matthews hoped to gain was the possibility of obtaining a small business loan. The instant action does not involve an attorney absconding with a client’s money, as was the situation in Hollingsworth, 338 Ark. 251, 992 S.W.2d 771. Moreover, Mr. Matthews testified that no one lost money as a result of his signing the legal opinion. He stated that the legal opinion was for a valid secured loan that was repaid. His conduct was criminal in that he signed the legal opinion with the knowledge that Mr. Hale was engaged in illegal activity. Mr. Matthews also testified that on two separate occasions he attempted to notify others, including the Federal Bureau of Investigation, of what he suspected to be wrongdoing on the part of Mr. Hale. •

The evidence in the instant case also indicates that future clients will be protected from this type of misconduct. Mr. Matthews testified that he is now working primarily in the field of estate planning. The trial court relied on the following facts as evidence that Mr. Matthews has been rehabilitated:

(a) Since being released from incarceration, the defendant has been and continues to be an active member of the Arkansas Bar Association and the adjunct committee of the Arkansas Lawyers for the Elderly;
(b) That since his release from the Federal Bureau of Prisons, the defendant has actively served on two (2) ad hoc committees of the Arkansas Bar Association assisting victims of two recent tornadoes which struck the State of Arkansas;
(c) The defendant continues to serve as an active member of the Probate Committee and of the Arkansas Bar Association Paralegal Committee;
(d) Since his release from the Federal Bureau of Prisons, the defendant became the senior legal advisor to Píenry Abts, III, who is the president and founder of an organization relating to living trusts and setding estates;
(e) The defendant has regularly attended the Grace Community Church of Litde Rock, where he not only teaches, but provides counsel and legal assistance to the church and its members, when requested; and
(f) That the defendant has provided pro bono services to low income residents, particularly in the Rixey area, in their venture to obtain a sewer improvement district, resulting in great benefits to these citizens of the State of Arkansas and the City of North Little Rock.

A final factor for this court to take into consideration is our recent holding in Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000), where this court affirmed a sanction less than disbarment for violations of the Model Rules stemming from a plea to five counts of federal misdemeanors. While we are mindful that the plurality opinion in Wilson has no precedential effect, we must consider the practical effects of that opinion, namely, that an attorney convicted of federal offenses received a sanction less than disbarment. It would certainly be unfair to now hold that an attorney similarly convicted is subject to a higher standard. After reviewing both the mitigating and aggravating factors present in this case, as well as taking into consideration this court’s recent holding in Wilson, we are not convinced that the trial court was clearly erroneous in imposing a sanction less than disbarment.

With that said, we must consider whether the fourteen months imposed by the trial court is an appropriate amount of time for the suspension. We believe it is not. Mr. Matthews pled guilty to two federal misdemeanors and served fourteen months in federal custody. Because his actions have damaged the profession, we must be certain that any sanction imposed on him is not only commensurate with his offenses, but will also serve as a deterrent for other members of the legal community. With that in mind, we believe that a five-year suspension will serve both the purpose of punishing Mr. Matthews and deterring other attorneys from engaging in similar conduct.

Retroactivity of Suspension

Having decided that a five-year suspension is appropriate, we now must turn to the issue of whether it was appropriate for the trial court to order Mr. Matthews’s suspension to run retroactively. Procedure 5(K)(2) authorizes the trial court to impose one of four sanctions, including suspension. There is nothing in the Procedures authorizing the trial court to run the suspension retroactively. In so ruling, the trial court effectively rendered Mr. Matthews’s suspension meaningless. Moreover, the requirements for an attorney suspended set out in the Procedures cannot be met when the suspension is imposed retroactively. See Procedures § 7(1). Accordingly, Mr. Matthews’s suspension is to run from the date of this mandate.

Having determined that the appropriate sanction for Mr. Matthews’s violation of Rule 8.4(b) is a five-year suspension, it is not necessary for us to consider Appellant’s argument that the trial court lacked authority to reinstate Mr. Matthews’s license. We reverse and remand this matter to the trial court for entry of an order consistent with the foregoing opinion.

Arnold, C.J., and Smith, J., dissent.

Glaze, J., not participating.

W.h. “Dub” Arnold, Chief Justice,

dissenting. I respectfully disagree with my fellow justices that disbarment is not the appropriate sanction in this case. As I noted in my dissent in Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000), the appropriate sanction is not only important to the appellant in this case, but it is ultimately important to the entire legal profession, in that appellant’s conduct constitued a violation of Rule 8.4(b) of the Model Rules of Professional Conduct, which regards the commission of a “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Mr. Matthews was indicted on two felony counts, but ultimately pled guilty to two counts of Bribery of a Small Business Investment Official, a federal misdemeanor in violation of 18 U.S.C. § 215. He ultimately served eleven months in a federal prison, one month in St. Francis Halfway House, and two months of home confinement.

The majority agreed with the trial court that these convictions, even though they were misdemeanors, involved dishonest or selfish motives and constituted serious misconduct. However, in light of the effect of the Wilson v. Neal case, supra, wherein Mr. Wilson was merely suspended from the practice of law for five years after defrauding the federal government of a substantial amount of money, the majority has determined that it would be unfair to now hold an attorney similarly convicted to a higher standard than Mr. Wilson. Therefore, the majority has determined that the fair thing to do where Mr. Matthews is concerned is to, likewise, suspend him from the practice of law for five years. I find this troubling. In an attempt to now be “fair” to all attorneys “similarly convicted, “(i.e., those who have served time in a federal prison for crimes, albeit misdemeanors, involving dishonesty), this Court is now in effect setting a standard of five-year suspensions as the appropriate sanction.

For all of the reasons I articulated in the Wilson case, particularly the fact that practicing law is a privilege rather than a right, I believe a dangerous precedent is being set by this Court, moving the standard which guides the actions of attorneys to a considerably lower level. In my opinion, the decision in this case in no way advances public trust and confidence in our profession; in fact, this decision, along with the Wilson case, further diminishes it. I, therefore, must respectfully dissent.

Smith, J., joins.

       The present situation is distinguishable from the one in Wilson, 341 Ark. 282, 16 S.W.3d 228, where Mr. Wilson was given credit for the time he was precluded from practicing law. There, Mr. Wilson was disbarred after the trial court erroneously determined that disbarment was mandatory under Section 6(B) of the Procedures. We ultimately reversed the trial court’s order of disbarment, and therefore, Mr. Wilson was entided to a credit for the time he was improperly disbarred from practicing law.


author: Robert L. Brown, Justice.

text:
    Jamie Paul BOWEN v. STATE of Arkansas
    CR 00-702
    30 S.W.3d 86
    Supreme Court of Arkansas
    Opinion delivered November 9, 2000

      James P Clouette, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Jamie Paul Bowen appeals from a judgment of conviction for first-degree murder and a sentence of life imprisonment. He raises four points on appeal: (1) there was insufficient evidence to support the judgment and sentence; (2) the trial court erred in not suppressing letters written by Bowen while in jail; (3) the trial court erred in not granting a mistrial, when the prosecutor solicited testimony from a witness that Bowen distributed marijuana; and (4) the trial court erred in failing to grant a mistrial based on the prosecutor’s failure to divulge the names of “309 prisoners,” who were used in scouring the crime scene for the murder weapon. We find merit in none of the points raised, and we affirm.

On March 21, 1998, at 1:29 p.m. the Lonoke County Sheriff’s Department received a telephone call that a body had been seen lying on the side of the road on Graham Road near Bayou Meto Creek in Lonoke County. Lieutenant Frank Sturdivant and Detective John Andolina responded to the call and found the body ofJ.R. Glover, age 18, who was deceased. He had been shot once in the back and twice in the left leg. Lieutenant Sturdivant learned that Bowen, age 17, who lived in Jacksonville, was possibly the last person to have contact with J.R. Glover. Jacksonville police officers picked up Bowen on that same day for questioning, and Lieutenant Sturdivant interviewed him. Bowen told the police officers that Glover had come to his apartment that day to return a music tape he had borrowed. He remarked that he and Glover were merely acquaintances. He told the officers that Glover stayed at his apartment in Jacksonville for a short time, and that they smoked marijuana and watched television. He added that Glover was the only person whom he had seen that day.

In the subsequent police investigation, evidence was amassed to justify Bowen’s arrest for Glover’s murder. On March 23, 1998, he was arrested and charged with first-degree murder. At that time, Bowen made a second statement to the police officers. He told them that on the Friday before the murder, which was March 20, 1998, he dropped off two girls at Southside Junior High School in Jacksonville and went to Cory McKay’s house. While smoking marijuana and talking to McKay, Glover’s name came up, and McKay told Bowen, “I’m going to kill the motherfucker. He owes me money.” Bowen testified that McKay asked him to use his car. Bowen told the officers that the next morning, the morning of the murder, both Glover and McKay separately came to his apartment. After smoking marijuana, McKay asked Glover to go for a ride, and he used Bowen’s car. Bowen said that McKay later brought his car back and told him, “I killed that little motherfucker.” He told the officers that he did not tell the truth in his first statement on March 21, 1998, because he was scared, and everything was pointing to him as the murderer.

On March 30, 1998, Bowen made a third statement. At that time, he told police officers that on Friday, March 20, 1998, he again went to McKay’s house, and McKay showed him a pistol that he had. Bowen handled the weapon. He told police officers that he wanted to add this point to his earlier statement. Lieutenant Sturdivant stated that the murder weapon had been found at the crime scene between March 23 and March 30, 1998.

On December 8, 1999, a two-day jury trial began. The prosecutor’s case against Bowen was based on circumstantial evidence. It consisted of testimony from Lieutenant Sturdivant regarding Bowen’s statements to police and the gun found at the crime scene. It further consisted of testimony from witnesses that Bowen’s maroon vehicle was spotted at the crime scene the day of the murder; that two men were seen standing by the car, one of whom resembled Bowen; that, according to state criminalist Lisa Sakevicius, fibers were found on Glover’s clothing consistent with an upholstery sample taken from Bowen’s car; that Glover had plans to visit Bowen the morning of the murder; that Bowen was involved in selling marijuana; that Bowen had been told Glover had stolen $1,200 in cash, speakers, Nintendo 64, a phone, stereo, car CD and speakers, and other equipment from his apartment; that, according to Rachel Bennett, Bowen had threatened to “put a stop” to Glover and he had something chrome in his pocket that day; that after the murder Bowen was acting real nervous and was asking friends to feel his heart because it was beating so fast; that, according to Cory McKay, on the day of the murder Bowen came by his house, he had someone in his car whom he said he was going to shoot, and he had a gun with him; that the chrome-and-brown-handled gun found at the crime scene fired the bullets that killed Glover; that an inmate in the county jail testified that Bowen had admitted to him that he killed Glover; and a letter by Bowen to his father suggesting he had committed the murder.

Bowen’s defense was that Cory McKay had borrowed his car and perpetrated the murder. The jury found Bowen guilty of first-degree murder, and he was sentenced to life in prison.

I. Sufficiency of the Evidence

We first consider whether the evidence was sufficient to support the judgment and sentence. If it was not, Bowen could not be retried due to his constitutional protection against double-jeopardy. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996). Thus, we consider this issue before reviewing asserted trial error. Burmingham v. State, supra; Lee v. State, supra.

Bowen argues that there was no direct evidence that he was the person who murdered Glover. He adds that the State relied solely on the testimony of unreliable witnesses to establish that he was the last person to be seen with Glover and argues that this raises a reasonable doubt. He further contends that the evidence showing that Glover had been in his car on the day of the murder was consistent with his story that he loaned his car to Cory McKay and that it was McKay who drove Glover to the crime scene where he shot Glover. Further, Bowen claims that there were two witnesses who saw McKay in Bowen’s car just prior to the murder and that there was another witness who saw McKay leave Bowen’s apartment with Glover just before the murder. He asserts that the only State witness who testified that he was with Glover on the day of the murder was McKay himself and that McKay was obviously lying to protect himself.

We do not reach the merits of this issue. When Bowen’s counsel moved for a directed verdict at the conclusion of the State’s case at trial, he stated only that his motion was based on a “lack of evidence.” That was not enough. Arkansas Rules of Criminal Procedure 33.1(c) states:

A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

The court has repeatedly addressed this issue and held that a directed-verdict motion “requires movant to apprise the trial court of the specific basis on which the motion is made.” See, e.g., Davis v. State, 330 Ark. 501, 506, 956 S.W.2d 163, 165 (1997) (court held that directed-verdict motion was not sufficiently specific to preserve issue for review); see also Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994) (court held that a “bright line” has been drawn and that directed-verdict motion must state specific grounds). Based on the above, it is clear that Bowen’s claim of insufficient evidence is barred by his failure to state specific grounds in his directed-verdict motion.

II. Suppression of Letters

Bowen’s next point is that the trial court erred in failing to grant his motion to suppress two sealed letters to his father that he wrote while in the Lonoke County Detention Center awaiting trial. In the more damaging letter dated March 31, 1998, Bowen wrote: “I want you to keep your head up to (sic), don’t let this get to you ok, because I did it, and I’m going to have to pay for it but everyone knows I’m not a killer.” The letters were opened by the jail administrator, Bob Holloman, and turned over to Lieutenant Sturdivant. The State then introduced the letters at trial. The issue is whether Holloman had the authority to confiscate Bowen’s outgoing mail and read it.

Bowen initially maintains that he has a right to free speech and that his use of the mails is part of that right. The State correctly responds that Bowen did not raise this argument before the trial court. As a result, we will not address it for the first time on appeal. Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000); Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999).

That leaves, however, Bowen’s second argument that opening his mail violated his Fourth Amendment right to privacy. Bowen contends that the confiscation of his mail was preconviction and that the standards applied should be different from those applied to convicted felons who are in prison. He cites us to Inmates of San Diego County Jail v. Duffy, 528 F.2d 954 (9th Cir. 1975), in support of this proposition. Bowen further urges us to focus on the fact that the State produced no written policy or regulation adopted by the Lonoke County Sheriff’s Department, which authorized the opening of mail. Moreover, he points out that he was placed in the general jail population and not in isolation, which would be the case if he were on a suicide watch.

The State counters that the “general rule is that an inmate at a jail has no right to privacy.” Metcalf v. State, 284 Ark. 223, 226, 681 S.W.2d 344, 346 (1984) (citing People v. Hunt, 133 Cal. App.3d 543, 184 Cal. Rptr. 197 (1982)). As such, where there is no reasonable expectation of privacy, the protections of the Fourth Amendment are not available. Katz v. United States, 389 U.S. 347, 351 (1967). Based on the above, the State argues that the Fourth Amendment is not violated when prison officials monitor outgoing mail to promote jail security. See United States v. Kelton, 791 F.2d 101 (8th Cir. 1986), cert. denied, 479 U.S. 989 (1986). That is what the State contends occurred with regard to Bowen.

More specifically, the State points to the fact that Holloman, as jail administrator, testified that Bowen was on suicide watch and, thus, it was necessary and permissible under the jail’s unwritten practice and policy to inspect his outgoing mail. According to Holloman, Bowen’s youth and his charge for committing a violent crime led to the watch. In addition, the State emphasizes that Bowen did in fact attempt to hang himself in the detention center three or four months after his mail was opened, which confirmed the potential for suicide.

We agree with the State’s position on this matter. There was the testimony from Bob Holloman that Bowen was on a suicide watch and that it was the policy of the Lonoke County Detention Center, under such circumstances, to monitor outgoing mail. The trial court believed the testimony of the jail administrator. Surely prevention of suicide by young alleged offenders awaiting trial provides ample justification for opening their mail. In addition, this court has held that a letter written by an accused from jail to his wife prior to trial, which was turned over to the sheriff by a fellow inmate, was admissible into evidence. See Metcalf v. State, supra. The Metcalf facts bear some similarities to the case at hand, though the letter at issue in Metcalf was unsealed. And the State is correct that in that case we cited favorably to authority that an inmate in jail has no right to privacy. Bowen asks that we overrule our decision in Metcalf, but we decline to do so. There was no error in the trial court’s ruling.

III. Solicited Testimony

Bowen next contends that the trial court erred in not granting a mistrial when the prosecutor solicited testimony from Rachel Bennett in direct examination that Bowen sold her drugs. The specific colloquy was this:

PROSECUTOR: And did you consider Jamie Bowen your friend, also?
BENNETT: Not really. He was just an acquaintance.
PROSECUTOR: Okay. That you bought drugs from?
Bennett: Yeah.

Bowen’s counsel immediately objected and moved for a mistrial. The trial court denied the motion but gave a cautionary instruction to the jury that it should not consider Bowen’s sale of marijuana in its deliberation on the murder charge but could consider it in connection with whether it provided the motive for Glover’s death.

Bowen complains that this testimony is inadmissible under Rule 404(b) of the Arkansas Rules of Evidence because the sale of marijuana is uncharged misconduct that was introduced only to prove Bowen’s propensity to commit a crime. Moreover, he contends that this evidence is highly prejudicial. He states that where the trial court allows testimony that is prejudicial and of little or no probative value in determining a defendant’s guilt, the trial court commits reversible error. See McCoy v. State, 270 Ark. 145, 603 S.W.2d 418 (1980). See also Ark. R. Evid. 403.

The State’s response is that Bowen’s counsel did not object at the time of Bennett’s testimony or set forth his grounds for the requested mistrial. We disagree with the State on this point. During the prosecutor’s question that immediately followed the colloquy quoted above, Bowen’s counsel asked for a sidebar conference, at which time he said: “I move for a mistrial again. The prosecutor has no business stating that.” He then elaborated that what he objected to was the prosecutor’s allusion to purchasing drugs from Bowen. The trial court said it would give a cautionary instruction. The prosecutor then argued that the drug testimony was necessary to establish the motive for the murder. The trial court concluded that it would allow the jury to consider the testimony for purposes of motivation only.

While we disagree that Bowen is procedurally barred from raising this point, the State is correct that a mistrial was not warranted. This court stated in Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997), that a mistrial is a drastic remedy that is granted only when error is so prejudicial that justice cannot be served by continuing the trial or where fundamental fairness of the trial itself has been manifesdy affected. That is not the situation here. For one thing, “motive” is a Rule 404(b) exception to the prohibition against proving other crimes in order to establish bad character. See also Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997). The prosecutor’s theory of the .case was that Bowen sold drugs and that Glover’s alleged theft of Bowen’s drug money was the motive for his murder. Hence, Bowen’s dealing drugs was a vital cog in the prosecutor’s proof of motive.

Furthermore, the trial court gave a cautionary instruction to the jury that we believe adequately sets forth what could and could not be considered by the jury. An admonition to the jury is exactly what transpired in Davis v. State, supra. There was no abuse of discretion by the trial court in this regard.

IV Discovery Violation

For his final point, Bowen claims that the trial court erred in refusing to grant a mistrial or, alternatively, a continuance, when the State failed to comply with discovery requests. At issue was law enforcement’s use of “309 prisoners” to search the crime scene following Glover’s murder. The prisoners found the chrome-and-brown-handled murder weapon. The names of the “309 prisoners” were not furnished to the defense before trial, even though in the motion for discovery, Bowen requested under Ark. R. Crim. P. 17.1(d) “any material or information within his knowledge, possession or control, or in the hands of any law enforcement agency, that could negate the guilt of the defendant of the offenses charged or should reduce the punishment therefor.” After Bowen’s mistrial motion, the trial court ordered that the names be provided to Bowen, but only a partial list of names was furnished. As a result, Bowen claims he was prejudiced in his defense.

This point is barred for purposes of our review due to defense counsel’s failure to raise his discovery objection to the trial court in timely fashion. The State points out that Lieutenant Sturdivant testified about the use of “309 prisoners” on the first day of the trial, and that Bowen’s counsel did not mount his mistrial motion based on a discovery violation until the next day after eight additional witnesses had testified. This court has said: “[Objections to discovery violations must be made at first opportunity in order to preserve them for appeal.” Hinkston v. State, 340 Ark. 530, 538, 10 S.W.3d 906, 911 (2000). Furthermore, it is unclear to us how disclosing the names of “309 prisoners” could negate the guilt of the defendant under Ark. R. Crim. P. 17.1(d). Certainly, Bowen did not make a case before the trial court or on appeal as to how he was thwarted, damaged, or prejudiced by the absence of this information.

We affirm the trial court’s ruling on this point.

The record in this matter has been reviewed for other reversible error pursuant to Ark. Sup. Ct. R. 4-3 (h), and none has been found.

Affirmed.

       Bowen’s brief refers to letters to his father and brother, but the two letters introduced by the State are written to his father.

       A 309 prisoner is a prisoner in the custody of the Department of Correction who is on a work-release program with a local law enforcement agency to perform certain chores under the authority of Act 309 of 1983, now codified as part of Ark. Code Ann. §§ 12-30-401 through 407 (R.epl. 1999).