author: Ray Thornton, Justice.

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Overtus BRINKER
    01-1435
    84 S.W.3d 846
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Butler, Hickey, Long & Harris, by: Andrea Brock, for appellant.

      Easley, Hicky & Hudson, by: B. Michael Easley, for appellee.
   Ray Thornton, Justice.

This appeal is a continuation of the controversy we addressed in Brinker v. Forrest City School Dist. No 7, 344 Ark. 171, 40 S.W.3d 265 (2001) relating to injuries appellee Overtus Brinker sustained in an automobile accident caused by the negligence of the school district and its employee, Virginia Roland. The original complaint was amended on December 4, 1996, naming Brinker’s insurance provider, Southern Farm Bureau Casualty Insurance Co. (Farm Bureau) as a defendant based on its underinsured tortfeasor coverage of Brinker. Brinker sought $100,000.00 in damages.

The trial court granted Farm Bureau’s motion to sever and ruled that Farm Bureau would not be bound by any judgment entered concerning Brinker and the original tortfeasors. The controversy proceeded to trial, and the jury returned a verdict of $100,00.00 in favor of Brinker on June 22, 1998.

On July 8, 1998, Brinker sent a letter to Farm Bureau, demanding that Farm Bureau pay the remaining $75,000.00 of the judgment. Farm Bureau refused to pay, and on July 28, 1998, Brinker promptly filed an amended complaint requesting penalties, payment and interest. Brinker subsequently filed a motion for summary judgment 'against Farm Bureau, which was denied. Brinker then appealed the trial court decision to sever the case and its ruling that Farm Bureau would not be bound by the verdict of the first trial.

On June 28, 2001, we reversed and remanded the trial court’s order and held that Farm Bureau was bound by the verdict in the first trial because the motion to sever should not have- been granted without requiring that Farm Bureau be bound by the ensuing judgment. We remanded for further action consistent with that opinion. On remand, Brinker requested an award of attorney’s fees, penalties and interest on the unpaid $75,000.00. Farm Bureau objected and argued that Brinker was not entitled to penalties, attorney’s fees, and interest because the award of $75,000.00 was not within twenty percent of the amount demanded, as required by Ark. Code Ann. § 23-79-208(d). On June 28, 2001, the trial court entered an order as follows:

The court, having considered the issue of attorney fees and interest, finds:

That if the court had granted the plaintiff s motion for summary judgment in the amount of $75,000.00, penalty and attorney fees would have been awarded. Since the court was in error in its rulings, the plaintiff should be able to recover what it would have if the court had not been in error. Plaintiff is entitled to penalty, interest and attorney fees.
The parties have agreed that $30,000.00 is a reasonable attorney fee.
The interest should begin to run from the judgment date of June 22, 1998.

The decision to award attorney’s fees and the amount of an award are discretionary determinations that will be reversed only if the appellant can demonstrate an abuse of discretion. Holmes v. McClendon, 349 Ark. 162, 76 S.W.3d 836 (2002).

Farm Bureau appeals on the issues of whether the statutory requirement for an award of attorney’s fees and penalty had been met, and whether postjudgment interest should be awarded from June 22, 1998 through June 28, 2001, arguing that actual judgment against Farm Bureau was not entered until June 28, 2001.

We conclude that the trial court order correctly interpreted and applied our decision in Brinker, supra.

The first issue we address is whether the trial court erred in awarding penalty and attorney’s fees to Brinker pursuant to the statute. The rule concerning the award of penalty and attorney’s fees is codified at Ark. Code Ann. § 23-79-208(d), which states:

Recovery of less than the amount demanded by the person entitled to recover under the policy shall not defeat the right to the twelve percent (12%) damages and attorney’s fees provided for in this section if the amount recovered for the loss is within twenty percent (20%) of the amount demanded or which is sought in the suit.

Id.

Farm Bureau argues that the amount recovered was not within twenty percent of the amount demanded and therefore penalties and attorney’s fees must be denied. Based upon Brinker’s July 8, 1998, demand letter for $75,000.00, we affirm the trial court’s award of penalty and attorney’s fees and hold that the amount recovered was within the twenty-percent range required by the statute. The statute provides that attorney’s fees and the twelve-percent penalty are authorized only if the insured’s recovery is within twenty percent of the amount demanded or sought in the suit. National Standard Insurance Co. v. Westerbrooks, 331 Ark 445, 962 S.W. 2d 355 (1998). The policy behind the statute is clearly stated in case law:

It could never have been the púrpose of the legislature to make the insurance company pay a penalty and attorney’s fees for contesting a claim that they did not owe. Such an act would be unconstitutional. The companies have the right to resist the payment of a demand that they do not owe. When the plaintiff demands an excessive amount he is in the wrong. The penalty and attorney’s fees is for the benefit of the one who is only seeking to recover, after demand, what is due him under the terms of his contract, and who is compelled to resort to the courts to obtain it.

Id., [Emphasis added.] See, Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S.W. 384 (1909).

Farm Bureau contends that the demand for payment should be established as the first demand for $100,000.00 in the first complaint, not the second demand for $75,000.00 embodied in the demand letter sent by Brinker to Farm Bureau and in the amended complaint. Farm Bureau relied on National Standard Insurance Co. v. Westerbrooks, 331 Ark. 445, 962 S.W.2d 355 (1998) to support its argument. In that case, we determined that the trial court erred in assessing statutory penalties and attorney’s fees based on the following reasoning:

[A]ppellee demanded the sum of $78,908.89 in his complaint. Thus he would have had to recover $63,527.11 or greater to come within the twenty percent. As the jury’s verdict was $62,750.00, the appellee fell short of recovering within twenty percent of the amount he demanded.

Id. While the law interpreted in National Standard Insurance Co. is on point, the facts are not. The court held in that case that because appellant never amended its complaint to reflect the reduced amount owed by appellee, appellant was tied to the amount asked for in the complaint, and that higher amount was not within the twenty-percent range.

In the instant case, Brinker sent a letter to Farm Bureau, dated July 8, 1998, demanding that Farm Bureau pay the remaining $75,000.00. Farm Bureau refused to pay the demand of $75,000.00, and on July 28, 1998, Brinker filed a complaint amended to reflect the lower amount owed by Farm Bureau. In our first decision, we determined that Farm Bureau should have been bound by the judgment in the first trial, and we now conclude that the trial court was correct in treating the July 8, 1998, demand for $75,000.00 as the demand upon which $75,000.00 was awarded.

We need not reexamine the other proceedings between the parties as the second trial would not have happened but for the trial court’s error in the first proceeding.

The second issue we address is Farm Bureau’s argument that the trial court erred in awarding postjudgment interest against Farm Bureau from the date judgment was entered against the Forrest City School District, June 22, 1998, because the judgment from the second trial was not entered until June 28, 2001. We do not find an abuse of discretion in the trial court’s ruling that interest commenced on the date of the June 22, 1998 judgment. We affirm the trial court’s decision on this issue.

Postjudgment interest is awarded according to Ark. Code Ann. § 16-65-114(a) (2000), which states:

Interest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution, Article 19, § 13, as amended.

Public policy dictates that postjudgment interest is awarded by the courts in order “to compensate the judgment creditor for the fact that he has not had the use of a certain sum of money that has been adjudged to be his.” Equifax, Inc. v. Luster, 463 F. Supp. 352 (E.D. Ark 1978).

Farm Bureau argues that the interest should be calculated from June 28, 2001, which was the date that the trial court entered judgment against it. Brinker responds that he was entitled to judgment against Farm Bureau on June 22, 1998, the date that the first judgment was entered and that Farm Bureau was bound by that judgment when we reversed and remanded.

As a general rule, if the court on appeal awards a new award, then the interest on that award would run from the date that the new judgment was entered. Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001). However, in Glover, we addressed the question of when interest begins to accrue on a judgment that has been appealed, and concluded that when the appellate decision does not result in an actual reversal of the judgment, the interest begins accruing from the date of the original judgment. Id. We explained our reasoning:

In determining whether an appellate decision is a reversal or merely a modification, we agree with the Supreme Court that we must look not only to the words used therein, but also to the legal effect of the decision. In other words, we are persuaded that the rights of the parties must not be sacrificed by placing form over substance.

In the first Brinker case, we concluded that the trial court erred in severing Farm Bureau without requiring it to be bound by the verdict in the original trial. We did not reverse the award of damages from the first trial, nor did we reverse the original judgment in favor of Brinker. Therefore it was proper to award post-judgment interest from the date of the June 22, 1998, judgment.

We also consider appellee’s motion for attorney’s fees. Pursuant to the provisions of Ark. Code Ann. § 23-79-208 and the case of Newcourt Fin., Inc. v. Canal Ins. Co., 341 Ark. 181, 15 S.W.3d 328 (2000), we award attorney’s fees for this appeal in the amount of $2,500.00 plus costs.

We find no error in the trial court’s order as entered on June 28, 2001.

Affirmed.


source: Caselaw Access Project

author: Jim Hannah, Justice.

license: Public Domain

text:
    William E. DAVIS v. STATE of Arkansas
    CR 01-433
    86 S.W.3d 872
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002
    Substituted Opinion on denial of rehearing delivered October 24, 2002

      Robert L. Depper, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

William E. Davis appeals his conviction for capital murder and sentence of life without parole. The conviction is based on accomplice liability. This case comes before this coürt pursuant to Ark. Sup. Ct. R. 1 — 2(a)(2) as a criminal case in which the penalty of life imprisonment without parole has been imposed.

Davis asserts seven issues on appeal. He asserts that the trial court erred in denying his motion for a directed verdict, that the trial court abused its discretion when it denied his motion to transfer to juvenile court, that the trial court abused its discretion in the admission of photographs of the victim, that the trial court erred in declaring Matthew Elliott a hostile witness, that the trial court erred in denying admission of a letter to impeach witness Elliott, that the trial court erred in finding it lacked jurisdiction to hear certain posttrial motions, and that the trial court erred in denying bail. We hold there was no error and no abuse of discretion. The trial court is affirmed on all points.

Facts

Sometime in the early hours of February 5, 2000, Matthew Elliott bludgeoned fifteen-year-old Brittni Pater at least seventeen times in the head with a two-foot aluminum bar. He then drove over her head with his car. Brittni died from her injuries. Elliott killed Brittni because he believed she was pregnant with his child. Davis was convicted of being an accomplice.

The facts implicating Davis as an accomplice in the murder were provided almost exclusively through the testimony of accomplice Elliott. Elliott’s testimony is summarized as follows. Sometime before Christmas in December 1999, Brittni Pater told Elliott over the phone that she was pregnant with his child. Brittni was fifteen and Elliot was sixteen at that time. According to Elliott, Brittni wanted an abortion and asked that he arrange and pay for it. Elliott then testified that, about the middle of January 2000, he called Davis, who had been his friend since first grade, and asked him to come by his house. Elliott testified that they spoke in Davis’s car, and that they discussed solutions to Elliott’s problem, such as leaving home, going to his parents, or murdering Brittni. Elliott further testified that he concluded during the conversation that he was going to murder Brittni, and that he believed he communicated that conclusion to Davis. According to Elliott, they commenced planning Brittni’s murder at that point.

Elliott testified that he believed that he had enlisted Davis’s help in carrying out the murder, arid that they discussed it a number of times informally in the halls at school in the following days. According to Elliott’s testimony, he and Davis then met formally a second time in their cars at school to make final plans for the murder. Elliott testified that they set up a camping trip to Davis’s father’s hunting lease as an alibi and set the weekend when the murder was to be committed.

Elliott further testified that they planned to go to Brittni’s house and kill her there, that Elliott would strike the blow, and that Davis would be present to help with the body. In this same regard, Elliott testified that he talked Davis into allowing him to bury the body on Davis’s father’s hunting lease, and that Davis went there and selected a secluded grave site. According to Elliott, Davis took him to the site Davis had selected where the two of them dug the grave. Elliott also testified that Davis got down in the grave and laid down to make sure it was long enough because they knew Davis was taller than Brittni. Elliott further testified that he provided the shovels they used to dig the grave, but Davis hauled them out to his house where they left Davis’s car. After leaving his car there, Davis got on a four-wheeler, and Elliott followed him to the deer camp in his own car. Elliott then testified that he left his car where he could get to it from the deer camp so that no one would know he had left the deer camp and gone to town to get Brittni and kill her. He also testified that Davis had a key to his car in case something unexpected occurred and Davis needed to move the car.

Elliott then testified that he spoke to Davis about a weapon, and that Davis gave him the aluminum bar that he used to kill Brittni. Elliott also testified that he and Davis discussed evidence such as blood and hair. They decided to put plastic in the car so that Brittni’s body would not leave blood and hair in the car. According to Elliott, Davis got the plastic from Kroger where Davis worked.

According to Elliott’s further testimony, he and Brittni agreed that she would sneak out of her house that night at 2:00 a.m. under the pretense of taking her to get an abortion, but the evening of the murder did not go as he planned. Davis’s brother-in-law ended up going to the deer camp with them that night after Elliott and Davis returned to town to eat and get the plastic. Elliott testified that he asked Davis to make an excuse to cause his brother-in-law to leave the camp so that they could go murder Brittni pursuant to the plan. According to Elliott, however, Davis would not do so. Davis told Elliott that he was drunk and was not going anywhere. Elliott testified that at that point he decided to go alone. Elliott stated that he was going to ride the four wheeler. Davis’s brother-in-law expressed concern about Elliott’s sobriety, but later let him go, telling Elliott that if he did not return, they would come looking for him. Elliott testified that Davis gave him a watch and told him to be back by 3:00 a.m. Elliott left on Davis’s four-wheeler to go to his car.

Elliott then testified that he picked up his car and drove to the Pater home. Brittni came out to Elliott’s car as planned. Elliott decided he could not kill her there because they were too close to the house. So he drove Brittni out of town. Outside of town, Elliott stopped the car, telling Brittni that he was covering his license plate in case his parents called him in as a runaway. It was there that Elliott struck her with the aluminum bar and killed her. He testified that he struck her more than ten times. He also testified that he feared she was still alive so he drove over her head with the tires of his car.

Dr. Charles Paul Kokes, an associate medical examiner for the State of Arkansas, expressed the opinion that Brittni died as a result of seventeen blows to her head. Davis’s father testified that he had a bar of aluminum on which he had fashioned a handle that appeared to be State’s Exhibit 3, the murder weapon. He further testified that he had checked his home after the murder and found that the aluminum bar was missing. Christopher Burns testified that on about January 31, or February 1, 2000, Elliott told him he planned on killing Brittni with “either a knife or a metal object that he said he got from William or is going to get from William. He never stated he did get it from William.”

Davis admitted in a statement to police that Elliott told him of his intent to kill Brittni, and that Elliott took him out to dig the grave. Davis also told police that he tried to convince Elliott not to kill her, but he admitted that he did help dig the grave. John Bishop of the Arkansas State Police testified that he found two sets of footprints at the grave site, one on the soil dug from the grave and one in the bottom of the grave. Davis’s mother testified that at about 5:30 on Friday evening before the murder, Elliott and Davis arrived at the Davis home. Their shoes were muddy and they left them outside. She further testified that although she saw Elliott’s shoes on her back porch that night at 10:30 p.m. when she checked her locks, the shoes were gone the next morning.

Bishop testified that Exhibit 25 was plastic that had blood and hair on it. He further testified that the aluminum bar was found on Exhibit 25. Foster Bailey, manager of the Kroger store, testified that Exhibit 25 was plastic of the type used.in the store, and that while such plastic is occasionally given to the public, it is generally only accessible to employees. Bishop also testified that Exhibit 34 was a roll of plastic that he obtained from the floorboard of Elliott’s blue Toyota, and that he obtained a similar roll from Kroger. Bailey testified that Exhibit 34 was a roll of trash liners or bone liners that were used in the store and which were available to employees in the break room.

Directed Verdict

Preservation of Davis’s right against double jeopardy requires that we consider the challenge to the sufficiency of the evidence before we consider alleged trial error even though the issue was not presented as the first issue on appeal. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996).

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). See also, Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or ¡circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Atkinson, supra. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id.

Davis moved for a directed verdict, alleging that there was insufficient evidence to support accomplice liability. In reply to the State’s argument at trial, Davis’s counsel stated,, “Of course, Your Honor, what I am suggesting is that there has not been any corroborating evidence of the defendant’s testimony.” The reference to the “defendant’s testimony,” is apparently a reference to the testimony of Elliott.

Davis’s criminal liability is based upon his status as an accomplice. A person.is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402 (Repl. 1997). Under Ark. Code Ann. § 5-2-403 (Repl. 1997), an accomplice is defined as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

The determination of the status as an accomplice is ordinarily a mixed question of law and fact. Atkinson, supra. In this case, the issue was submitted to the jury. The facts do not place Davis at the murder scene. However, that is not necessary. A criminal defendant is an accomplice where the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of the fact that the defendant was not present at the murder scene and did not directly commit the murder. Atkinson, supra. See also, Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). Although Davis was not present at the murder, he may be liable as an accomplice if he assisted and actively participated in the crime. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991). When two persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. A participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Crutchfield, supra; Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).

The facts asserted against Davis involve him in planning the murder from the moment Elliott decided to resolve the pregnancy problem by murdering Brittni. There was evidence that he agreed to be present at the murder to assist with disposing of the body, that he helped Elliott in choosing a weapon, and that he provided the weapon knowing it would be used to murder Brittni. There was also evidence that Davis helped Elliott set up his alibi, that he selected the grave site, that he helped dig the grave, and that he helped determine it was big enough to hold Brittni’s body. There was also evidence that Davis helped Elliott with concerns about hair and blood that might result from the murder, that Davis provided plastic from his employment to hold the weapon and to protect the car. There is no doubt that this evidence would be more than sufficient to submit the issue to the jury and to support a jury’s verdict that Davis was an accomplice. However, the bulk of this evidence was provided by the testimony of Elliott, who murdered Brittni. Under the State’s case, Elliott was therefore an accomplice.

The testimony of an accomplice must be corroborated before a defendant may be convicted of a felony. Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001). Arkansas Code Annotated, section 16-89-lll(e)(l)(A-B) (Supp. 2001), provides that a conviction cannot be had in any case of a felony upon the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense and, further, the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

We must therefore consider what corroborating evidence was offered in this case. As already noted, Dr. Charles Paul Kokes expressed the opinion that Brittni died as a result of seventeen blows to her head. Further, Davis’s father testified that he had a bar of aluminum on which he had fashioned a handle that appeared to be State’s Exhibit 3, the murder weapon. He further testified that he had checked his home after the murder and found the bar of aluminum was missing. This evidence corroborates Elliott’s testimony that Davis provided the murder weapon.

A grave was dug prior to the murder. Davis admitted in a statement to police that Elliott told him of his intent to kill Brittni, and that Elliott took him out to dig the grave. He also admitted that he helped dig the grave, although he asserted that he tried to convince Elliott not to kill Brittni. John Bishop of the Arkansas State Police testified that there were two sets of footprints at the grave site. This evidence corroborates Elliott’s testimony that Davis helped him prepare for the murder in getting ready to dispose of the body.

Bishop also testified that Exhibit 25 was plastic that held the weapon after its use and that the plastic had hair and blood on it. Foster Bailey, manager of the Kroger store, testified that Exhibit 25 was the type of plastic used in the store and that while such plastic is occasionally given to the public, it is generally only accessible to employees. Bishop also testified that Exhibit 34 was a roll of plastic that he obtained from the floorboard of Elliott’s blue Toyota, and that he obtained a similar roll from Kroger. Bailey testified that Exhibit 34 was a roll of trash liners or bone liners that were used in the store and which were available to employees in the break room. This evidence corroborates Elliott’s testimony that Davis assisted him in planning so as to avoid evidence that could connect him to the murder.

Elliott’s status as an accomplice was challenged by Davis. Therefore, the jury was instructed pursuant to AMCI 403 that they were to determine whether the corroborating evidence offered was sufficient. While not every aspect of Elliott’s testimony is corroborated, the evidence noted goes well beyond merely showing that the offense was committed and the circumstances thereof. Evidence offered through witnesses other than Elliott corroborates that Davis provided the weapon, helped dig the grave, and provided materials to protect Elliott’s car from evidence that might be generated by the crime. In short, the corroborating evidence shows that Davis was an active participant in the crime. Thus, there is no merit to the claim of insufficiency of the evidence.

Refusal to Release on Bond

Davis argues the trial court erred in refusing to grant him release on bond pending his trial. Because we affirm his conviction, the question of his pretrial bond is moot. Shields v. State, 348 Ark. 7, 70 S.W.3d 392 (2002). This court does not decide moot issues. See, K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000).

Motion to Transfer to fuvenile Court

Davis next argues that the trial court erred in failing to transfer his case to juvenile court. For criminal prosecutions commenced after May 1, 1995, an order granting or denying transfer of a case from one court to another having jurisdiction over juvenile matters must be challenged by way of interlocutory appeal. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). An appeal of such order after conviction in circuit court is untimely and will not be considered. Sanford, supra.

Photographs

Davis argues for his next point that the trial court erred in admitting two photographs of Brittni’s body at the crime scene. He argues there was no issue whether Brittni was murdered, and that the photographs were inadmissible because Davis was being tried as an accomplice. He argues that the photographs failed to make it more or less likely that he was an accomplice. Davis argues that the photographs were not relevant to any fact in question. The fact that Davis did not administer the blows does-not make the photographs irrelevant because he is liable for the conduct of his accomplice. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).

The verdict placed before the jury asked for a determination of whether Davis was guilty of capital murder. He was accused of helping to plan and carry out the premeditated and • deliberated murder of Brittni Pater. Brittni was so murdered. This court recently stated:

The admission of photographs is a matter left to the sound discretion of the trial court. Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999) . When photographs are helpful to explain testimony, they are ordinarily admissible. Id. (citing Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995)). Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Id. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000) . Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence. Id.

Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). The challenged Exhibits, Nos. 14 and 17 were introduced into evidence during the testimony of Arkansas State Police Investigator Bishop. Bishop testified that he took the two photographs, and that Exhibit 14 was taken in part to show the wounds Brittni suffered. He testified that Exhibit 17 was taken from further away and shows the area including the tire track where Elliott ran his car over her head. Photographs are relevant to corroborate testimony. Berry, supra. Dr. Kokes referred to Exhibit 14 in describing injuries Brittni suffered. The photograph was relevant on this point. Id.

As an accomplice, Davis was accused of participating in the crime of capital murder. Dr. Kokes used one photograph to explain Brittni’s injuries. This photograph corroborated the nature of the blows that Elliott testified he administered with the aluminum bar he was given by Davis. That same photograph, as well as the other photograph, were used by Bishop in explaining the crime scene. Both photographs were relevant to the crime alleged. Both photographs corroborated that the crime was carried out in a manner consistent with the plans Elliott testified he and Davis developed. The probative value of the photographs outweighed the danger of unfair prejudice. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). The issue is not so narrow as Davis argues. We hold no abuse of discretion occurred.

Letter

Davis asserts that the trial court abused its discretion in refusing to admit a handwritten letter from Elliott to Davis which contains the statement:

I’m sorry you’re in here. I’m sorry for how I lied about all this shit, but it’s too late. I hope you will forgive me for all I’ve done. By the way, you’re still my friend aren’t you.

Davis intended to use the letter to impeach Elliott in his testimony-regarding Davis’s involvement in planning the murder. There is no doubt that if the jury believed the letter sought Davis’s forgiveness for implicating him in the murder when he actually was not involved, it could have had a profound impact on the jury’s decision of whether Davis was an accomplice.

The State argues that the letter more likely addressed Elliott’s prior inconsistent statements to police regarding whether or not he had sex with Brittni. The State does not offer a convincing argument as to why Elliott would apologize to Davis for such an inconsistency. Further, the letter makes no reference to sex.

When Davis tried to use the letter to impeach Elliott, the trial court ruled it inadmissible hearsay. At the later proffer, the trial court stated, “The most basic problem that the court has with all the arguments for the introduction of this document is that I have a serious, serious question as to the authenticity of the document.” The trial court further stated that the letter could have been and should have been submitted to a handwriting expert and on the basis of a lack of authentication the court denied admission.

A cursory examination of the letter reveals that it contains an erasure and change in wording in the above quoted critical language. The letter is written in pencil. Erasures and changes can be readily identified in at least six additional locations in the letter.

Within the quoted critical language noted above, it appears that where the word “all” appears, there was once a word there that began with an “e.” It appears that just before the word “lied,” there was once a word that contained a “y.” The word “lied” stands out slightly, appearing as if the lead were darker there, or perhaps that it was written on a different surface. The letter “d” in the word “lied” appears to have a tail, which might be part of the “d” or part of another letter that was once in that same location.

Elliott testified as follows:

Q. All right. Is that your handwriting?
A. For the most part, yes.
Q. All right. And did you write that letter?
A. I, I believe — I remember — I remember writing the better part of it. Yes, sir. I’m pretty sure I wrote that.
Q. Now, you say that you recall writing part of that letter. Let’s just get to it: What part of the letter do you think you didn’t write?
A. Well, I’m not sure, but the last little part of the sentence in the fourth paragraph uses the word, “aren’t—
Q. Uh-huh (yes).
A. —which I avoid words like that, because I never do get them right. I can’t remember if they need an E in them or not.
Q. Okay, thank you. Any other parts of that letter that you think you didn’t write?
A. Well, like I say, I’m not sure if I did or did not, but the second sentence has the word, “lied,” in it and—
Q. The second sentence of what paragraph?
A. Of the second to the last.
Q. Okay. All right.
A. It has the word, “lied” in it and it’s not how I make my D’s. I don’t curl the end of my D’s like that.
Q. Uh-huh (yes). Okay. So what are you telling me about that word “lied?”
A. I’m not telling—
Q. Did you write that?
A. I’m not positive if I did.
Q. You might-have written it?
A. I might have.
Q. Okay. Anything else that you aren’t certain about, whether you wrote that letter or part of that letter.”
A. No, sir, not that I can see.

On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion. Nor will we reverse absent a showing of prejudice. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). In evidentiary determinations, a trial court has wide discretion. Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992).

On the issue of authentication, Rule 901(a) of the Arkansas Rules of Evidence provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” Subsection (b) of the Rule provides, in part, as follows:

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of a witness ivith knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert imtness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
* * *

The requirements of authentication and identification under Rule 901 are satisfied where the trial judge in his discretion is satisfied that the physical evidence presented is genuine and in reasonable probability has not been tampered with. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001).

The trial court was presented with a letter that the writer acknowledged was his, but which contained words the writer was not sure were his, although he thought the words might be his. There was also one word the writer stated had a “d” in it which was not written as he wrote the letter “d”. However, the writer stated he nonetheless might have written the “d”.

Under Rule 901, Davis was free to offer evidence to support his claim of authenticity and dispel the confusion the trial court found. Davis offered no evidence that the entire letter was written by Elliott, either by testimony of a witness with knowledge, a non-expert on handwriting, or an expert on handwriting as allowed under the Rule. Under these facts, we cannot say that the trial court abused its discretion in excluding the letter upon finding that there was a reasonable probability it had been tampered with. We note that the State also argued the letter should be excluded on the basis of hearsay, surprise and harmless error.

Because we hold the trial court did not err in denying admission based upon authentication, we do not reach the other issues of admissibility. Authentication of a document is a condition precedent to admissibility. Ark. R. Evid. 901(a). It is only once prima facie evidence of a document’s authenticity has been offered that the document is authenticated against the parties for purposes of determining admissibility into evidence. 29A Am. Jur. 2d Evidence § 1034 (1994). This is so because before a discussion of hearsay may be undertaken it must first be determined that the document is what it is purported to be. In other words, if, as in this case, the document is not shown to be authentic, it is not relevant, and whether the document constitutes hearsay does not even come into consideration. For example, in Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989), the appellant objected to certain documents because they were not authenticated and because they constituted hearsay. This court determined that they were authenticated and then determined that the documents were not subject to a hearsay objection. The requirement of authentication is separate from the requirement that a hearsay document must satisfy the applicable hearsay exception for admissibility. Columbia Mutual Insurance Company v. Patterson, 320 Ark. 584, 899 S.W.2d 61 (1995).

Hostile Witness

Davis next argues that the trial court abused its discretion in declaring Elliott a hostile witness and allowing the State to ask leading questions. The State moved twice for a declaration by the trial court that Elliott was a hostile witness. The first motion was denied. On the second motion, the trial court concluded that Elliott was not volunteering any specific facts other than those elicited through the questions asked. The trial court further stated that it appeared to the court that Elliott was speaking in generalities as opposed to giving specific details, and on that basis the motion to treat him as a hostile witness was granted. In Swaim v. State, 257 Ark. 166, 514 S.W.2d 706 (1974), this court stated:

The determination whether a witness is hostile is to be made by the trial judge, in the exercise of a sound judicial discretion and may be based upon such circumstances as the demeanor of the witness, his situation and relationship to and with the parties, his interest in the case and the inducements he may have for withholding the truth. Sinclair v. Barker, supra; III Wigmore on Evidence (Chadbourne Rev.) 167, (1970) 774; 4 Jones on Evidence (6th Ed.) 97, 24:12 (1972). See also, Rossano v. Blue Plate Foods, Inc., supra; Superior Forwarding Co. v. Sikes, supra. The mere fact that Brewer was cooperating with the police in investigating suspected illegal drug activities did not necessarily make him so hostile to the defendant that the trial judge had no discretion in determining whether leading questions were allowable.

Swaim, 267 Ark. at 172-173. Based upon the answers given, and the demeanor of the witness, the trial court declared him to be hostile. We find no abuse of discretion.

Posttrial Motions

Davis finally argues that the trial court erred in refusing to hear his posttrial motions for judgment notwithstanding the verdict, for a new trial, and for a reduction in sentence. He filed his motions on November 21, 2000. The motions were set for hearing on December 4, 2000, but pursuant to agreement of the parties, the hearing was not held until January 17, 2001, to accommodate time required for testing and expert examination of the letter discussed above. At the hearing on January 17, 2001, the trial court determined that it lacked jurisdiction to hear the posttrial motions because more than thirty days had passed since their filing which meant they were deemed denied pursuant to Ark. R. Crim. P. 33.3. Rule 33.3(c) provides, “If the trial court neither grants nor denies a post-trial motion or application for relief within thirty (30) days after the date the motion or application is filed, the motion or application shall be deemed denied as of the 30th day.”

The posttrial motions were deemed denied on the 30th day. Therefore, there was nothing to be heard on the motions on January 17, 2001.

Arkansas Supreme Court Rule 4-3 (h)

The transcript of the record in this case has been reviewed pursuant to Rule 4-3 (h). Rule 4-3 (h) requires that in cases of sentences of life imprisonment or death, we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a) (1987). None have been found.


author: Per Curiam.

text:
    Damien Wayne ECHOLS v. STATE of Arkansas
    CR 99-1060
    84 SW.3d 424
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Edward A. Mallett; Al Schay; and Robert C. Owen, for appellant.

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

Appellant Damien Wayne Echols has filed a motion for continuance of the oral argument scheduled for September 19, 2002, and a motion for a stay of the proceedings on appeal pending the outcome of a petition for forensic DNA testing, currently before the Craighead County Circuit Court. After due consideration of the motions and the response from the State, we hereby grant a stay of the proceedings on appeal for a period of sixty days, to allow the trial court to consider the petition.

The procedural history of this case is quite lengthy. Echols, along with Jason Baldwin and Jessie Misskelley, were convicted of the May 5, 1993, murders of three eight-year-old boys, Michael Moore, Steve Branch, and Christopher Byers, in West Memphis. Misskelley was tried first, and he was convicted of one count of first-degree murder and two counts of second-degree murder and was sentenced to life imprisonment and a total of forty years’ imprisonment, respectively. This court affirmed his convictions and sentences in Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898 (1996). Echols and Baldwin were tried together and were each convicted of three counts of capital murder. Baldwin received life imprisonment without the possibility of parole, while Echols was sentenced to death. This court affirmed their convictions and sentences in Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Thereafter, the United States Supreme Court denied Echols’s petition for writ of certiorari. See Echols v. Arkansas, 520 U.S. 1244 (1997).

Echols subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition, and Echols appealed. The appeal was set to be heard, with oral argument, in this court on March 15, 2001. Prior to that date, however, on February 27, 2001, Echols filed a motion asking this court to stay the Rule 37 appeal and reinvest jurisdiction in the circuit court to consider his petition for writ of error coram nobis. We denied the motion for stay, but, due to the complexity of the motion, we directed the Clerk of this court to instruct the parties to brief this issue as a separate case and to establish a briefing schedule.

Thereafter, the Rule 37 appeal was heard as scheduled on March 15. In an opinion issued on April 26, 2001, we affirmed the trial court’s judgment in part, but reversed in part and remanded for the trial court to enter a written order in compliance with Rule 37.5(i) and this court’s holding in Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). See Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001). The trial court entered the new order on July 30, 2001. Thereafter, we instructed the Clerk of this court to set a new briefing schedule in the Rule 37 appeal.

Several extensions of time to file the briefs in the Rule 37 appeal were granted to both sides. Finally, on July 29, 2002, the Clerk set oral argument in this case for September 19, 2002. On September 5, 2002, Echols filed the current motions — for continuance of oral argument and for a stay of the proceedings pending outcome of his petition for DNA testing in the circuit court. In support of his motion for continuance of oral argument, Echols asserted that his lead counsel, Mr. Edward Mallett, of Houston, Texas, would be unavailable to argue the case or even to help prepare the argument, because another client of his, a death-row inmate in the state of Texas, was scheduled to be executed on September 18, 2002.

In support of his motion for a stay of these appellate proceedings, Echols asserts that he has made the requisite showings under Act 1780 of 2001, now codified as Ark. Code Ann. § 16-112-201 to -207 (Supp. 2001), entitling him to a hearing in the circuit court on his petition for forensic DNA testing. Act 1780 was passed by the General Assembly in response to nation-wide concerns that innocent persons were being imprisoned and even executed for crimes that they did not commit. Section 1 of the Act reflects the legislature’s belief that the “mission of the criminal justice system is to punish the guilty and to exonerate the innocent.” Accordingly, the purpose in passing Act 1780 was to change Arkansas laws and procedures “in order to accommodate the advent of new technologies enhancing the ability to analyze scientific evidence.” Id.

Echols asserts that he has made a prima facie showing that entitles him to pursue the DNA testing that he requests. Although we issue no ruling on the merits of the petition filed by Echols in the circuit court, it is apparent that the petition is appropriately filed in circuit court under procedures established by Act 1780. Under section 16-112-201, the circuit court has jurisdiction to consider a petition for scientific testing even though an appeal may be pending in this court or the Arkansas Court of Appeals. Accordingly, it is not necessary that we issue a stay. However, in the interest of justice, we believe it would be more prudent to grant a stay of our proceedings, pursuant to the discretionary authority set out in section 16-112-201(b). We therefore grant the motion to stay the proceedings in this court for a period of sixty days, so that the circuit court may consider the merits of Echols’s petition for forensic DNA testing, including whether to hold an evidentiary hearing on the matter. See section 16 — 112— 205. Because we grant the motion to stay, the motion for continuance of oral argument is moot.

As a matter of housekeeping, we must address the parties’ confusion regarding whether the two pending appellate matters, the Rule 37 appeal and the petition pertaining to the writ of error coram nobis, will be submitted together or as separate cases. We determine that the two matters are separate cases and should be considered individually. We therefore direct the Clerk of this court to establish the coram nobis matter as a separate case, filed under the direct-appeal case number, CR 94-928. The two cases will then be submitted and heard on the same date.


text:
    FORD MOTOR COMPANY and North Point Ford, Inc. v. The Reverend Milton HARPER, Janice Harper, Upper Room Apostolic Church, and Leon Dulemer
    01-1286
    84 S.W.3d 441
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Wright, Lindsey & Jennings LLP, by: Edwin L. Lowther, Jr., for appellants.

      David A. Hodges, for appellees.
   Per Curiam.

Appellant Ford Motor Company (Ford) moves this court to direct the Supreme Court Clerk to file a packet of documents under seal. The packet is presently retained by the Pulaski County Circuit Clerk in a sealed and certified envelope in the circuit clerk’s office but, apparently, was never placed in the circuit clerk’s file in this case prior to appeal. The appellees, the Reverend Milton Harper, Janice Harper, Upper Room Apostolic Church and Leon Dulemer, acknowledge they are not entitled to review the documents under seal but state they are entitled to some identification or “privilege log” indicating what has been filed in this court under seal. They further request a stay of their briefing schedule and move for an extension of time to file a supplemental abstract and brief until the issue of the sealed documents has been resolved by this court.

At issue in this appeal are certain documents which Ford sought to protect from disclosure under the attorney-client privilege and work-product doctrine. On July 27, 2001, the circuit court entered an order directing Ford to produce those documents which had been filed under seal. The order was entered over Ford’s objections and after the circuit court had reviewed the sealed documents in camera. On August 27, 2001, Ford appealed from that order and designated the entire record as the record on appeal. Ford filed its appellant’s brief on April 23, 2002. Ford’s motion to supplement the record was filed on July 15, 2002, before the appellees had filed their brief.

The documents under seal appear pertinent to Ford’s appeal. We therefore grant the motion to supplement the record. We further grant the appellees’ request that an identification of the documents submitted in the supplemental record under seal be prepared by Ford and made part of the supplemental record. On this latter point, we note that a “privilege log” was prepared for the benefit of the circuit court and is part of the addendum in Ford’s brief filed in this court. Finally, we grant the appellees thirty days from the date the supplemental record is filed with the clerk of the Supreme Court to file their supplemental abstract and brief.

The appellees also ask this court to require an explanation as to why the documents under seal were not filed as part of the original record. This appears to have been a matter of oversight, since the documents were retained by the circuit court in its office and not returned to the circuit clerk until later. Apparently, the sealed documents were not made part of the circuit court’s file in this matter. We decline to request an explanation from Ford.


text:
    Marlon Donte HOWELL v. STATE of Arkansas
    CR 01-349
    84 S.W.3d 442
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Linda Scribner, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Appellant, Marlon Donte Howell, appeals from his conviction of capital murder and life sentence in connection with the shooting death of Darryl Allen, Sr., that occurred on April 29, 2000, in Hope, Arkansas.

Although two separate writs of certiorari have previously been issued in this case, ordering a true and complete transcript of the record to be certified to this Court, the record remains incomplete in that certain matters specifically designated by appellant to be included in the Notice of Appeal and Designation of Record are not included.

Supreme Court Rule 3-4(b) (2002) states as follows:

(b) Record of jury matters. The record shall not include the impaneling or swearing of the jury, the names of the jurors, or any motion, affidavit, order, or ruling in reference thereto unless expressly called for by a party’s designation of the record. (Emphasis added.)

In the Notice of Appeal and Designation of Record, Marlon Donte Howell expressly designated the entire record as the record on appeal, “including voir dire and jury selection.” In addition, pursuant to Supreme Court Rule 4-3 (h) (2002), when the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. § 16-91-113(a). Moreover, the Attorney General must certify that it has, likewise, complied with Rule 4-3 (h). Although the Attorney General made such certification in this case, a complete review is impossible to make without a true and complete transcript of the record.

As such, we hereby order the Clerk of the Court of Hempstead County Circuit and the court reporter to correct any and all omissions in the record and to certify to this Court a true and complete transcript of the record, to include what was expressly designated, within thirty days of this date. We further order that State’s Exhibit 40, the cassette tape containing the statement of Marlon Donte Howell, be included with the complete record.


text:
    Carl Gene McGHEE v. STATE of Arkansas
    CR 02-353
    84 S.W.3d 423
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Jeff Rosenzweig, for appellant.
    No response.
   Per Curiam.

The underlying facts for this motion were set out in our previous per curiam opinion:

On May 6, 1999, movant Carl Gene McGhee was convicted of various drug offenses. On May 25, 1999, his attorney retained for his appeal, Scott Adams, filed a notice of appeal. Three extensions of time were then granted for filing the record, with the ultimate deadline for filing the record being September 30, 1999. McGhee’s record was tendered for filing on October 4, 1999. The Supreme Court clerk refused to file the record because it was late. No motion for rule on clerk was filed on McGhee’s behalf. On December 20, 1999, the record was returned to McGhee’s counsel, Scott Adams. Nothing further apparently was done on the matter.
On April 11, 2002, McGhee with new counsel filed a motion for Belated Appeal or motion for Rule on Clerk and tendered a record for his appeal for a second time. His new counsel argues on McGhee’s behalf that though the record was not timely filed under Ark. R. App. P. — Crim. 2(e), this court should allow a belated appeal or lodging of the late record because McGhee was unaware his record had not been timely filed. McGhee files an affidavit in support of his contention.

McGhee v. State, 348 Ark. 573, 74 S.W.3d 627 (2002). In that opinion, we remanded the matter to the trial court to determine why the record was not timely filed and why a motion for rule on clerk was not pursued.

On July 16, 2002, findings of fact by the trial court were filed in this court. Those findings included the following:

Carl McGhee was not aware that the appeal had not been properly perfected. Carl McGhee did not instruct Adams not [sic] abandon appeal. McGhee desired to continue the appeal and believed that the appeal was in process. His brother Charles McGhee, who was in occasional communication with Adams, also believed that.
Scott Adams did not confer with Carl McGhee to notify him of the status of the appeal. Adams had communication with Charles McGhee concerning strategies to assist Carl McGhee, and even wrote a letter to Carl McGhee discussing a possible new trial motion. Adams believed that the appeal did not have substantive merit and thus did not pursue it. However, Adams conceded that he may not have effectively communicated the facts of the appeal’s status to the McGhees, and that the McGhees could have reasonably believed that the appeal was pending, a situation for which he apologized in court.

The operative rule dealing with failure to pursue an appeal is Ark. R. App. P. — Crim. 2(e). Rule 2(e) provides that this court may decide a case where the transcript of the trial record was not timely filed “when a good reason for the omission is shown by affidavit.” Rule 2(e) goes further and says “no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken.” The motion before us deals with failure to file a transcript and not a motion for belated appeal.

Scott Adams, as attorney for Carl Gene McGhee, was found by the trial court to have conceded that he may not have effectively communicated the status of the .appeal to this client. He apologized for this. We conclude that this admission of error under oath before the trial court provides good cause for granting the motion. See Nuehring v. State, 347 Ark. 912, 68 S.W.3d 298 (2002) (per curiam); In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). We, therefore, grant the motion for rule on clerk and direct the clerk of the Supreme Court to file the tendered record.

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


text:
    Rickey Dale NEWMAN a/k/a Ricky Dale Newman v. STATE of Arkansas
    CR 02-811
    84 S.W.3d 443
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Pro Se Motion to Waive Appeal of Judgment and Sentence; moot.

      Appellant, pro se.
    No response.
   Per Curiam.

On June 10, 2002, judgment was entered reflecting that Rickey Dale Newman had been found guilty by a jury of a capital murder committed on February 7, 2001, and sentenced to death. An appeal was lodged in this court on August 2, 2002. We granted a stay of execution on August 20, 2002. Appellant Newman, who is represented by counsel, now seeks by pro se motion to waive the appeal of the judgment and sentence so that the sentence can be executed immediately. The State contends that a competency hearing for waiving his personal right to an appeal is still required. See, e.g., Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001). We disagree.

Rule 10 of the Rules of Appellate Procedure— Criminal, effective for all cases in which its death penalty is imposed on or after August 1, 2001, provides that whenever a sentence of death is imposed, this court shall undertake an automatic review of the case for egregious and prejudicial errors. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). As a result, even though a convicted defendant in a capital case may desire to waive his personal right to appeal, the appellate review of the case must proceed, rendering any motion to waive the appeal moot. In accordance with Ark. R. App. P. — Crim. 10(b), counsel for appellant Newman is directed to abstract the record and brief the issues required to be reviewed by the rule.

Motion moot.


text:
    Rickey NEWMAN v. STATE of Arkansas
    CR 02-811
    84 S.W.3d 43
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Robert C. Marquette, for appellant.
    No response.
   Per Curiam.

Robert C. Marquette, a state-salaried, full-time public defender for the Twenty-First Judicial District, was appointed by the trial court to represent Appellant Rickey Newman, an indigent defendant, on the charge of capital murder. Following a trial, Newman was convicted of the charge and sentenced to death. A timely notice of appeal was filed by the circuit clerk, pursuant to Ark. R. App. P. — Crim. 10, and the record was timely lodged in this court.

Mr. Marquette now asks to be relieved as counsel for Appellant in this criminal appeal, based on the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). There, this court determined that state-salaried, full-time public defenders were ineligible for compensation by the court for work performed in the appeal of a matter in which the public defender represented the defendant. Mr. Marquette also relies on the case of Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam), wherein this court relieved the appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances.

Since the time of those decisions, however, the law was changed by the General Assembly. Particularly, Act 1370 of 2001 provided in part: “Persons employed as full-time public defenders who are not provided a state funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” That provision is now codified as Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2001).

Mr. Marquette’s motion does not state whether he is provided a state-funded secretary. Accordingly, we must deny his motion at this time. See Mills v. State, 347 Ark. 695, 66 S.W.3d 643 (2002) (per curiam). Mr. Marquette may resubmit his motion, providing information about whether he is provided a state-funded secretary, in order for us to determine whether he qualifies for dismissal in light of section 19-4-1604(b)(2)(B).

Motion denied.


text:
    Eddie KING; Napoleon Gillispee; Samuel Jordan v. The Honorable Bentley E. STORY; Lee County School District, Wayne Thompson, Superintendent, et al.

    02-947
    84 S.W.3d 445
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Wilson & Valley, Attorneys at Law, by: J.F. Valley, for appellants.
    No response.
   Per Curiam.

Appellants petition this Court for writ of certiorari and request that this Court stay the election proceedings at issue, which are scheduled to take place on Tuesday, September 17, 2002. Appellants filed this petition on Wednesday, September 11, 2002. We deny appellants’ petition and motion to stay.

Our denial is based upon the settled rule that the courts are without authority to enjoin the holding of a regular election, regularly called. Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989); Brown v. McDaniel, 244 Ark. 362, 427 S.W.2d 193 (1968). If a court, trial or appellate, can at the eleventh hour prohibit a regular election, regularly called, it is at once apparent that the control of judges over the election process goes far beyond reasonable limits. Id. In Brown, the court had four days to consider the taxpayers’ request to enjoin the election, and accordingly, it concluded that the best course was to let the election be held, leaving the parties to their post-election remedies. That same procedure was dictated here, since this case was first presented to this Court four business days prior to the scheduled election. Appellants have failed to follow the necessary procedures to accelerate this case. Valley v. Bogard, 341 Ark. 302, 20 S.W.3d 271 (2000) (The court was unable to determine when a full record can be provided so this court can establish a briefing schedule).

Denied.


text:
    Georgia BOYD; Anterica Towne; Laketha Brown; Beatrice Johnson; Dana Flowers; Ersaline Bryant v. The Honorable Bentley STORY; Helena-West Helena School District
    02-949
    84 SW.3d 444
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Wilson & Valley, Attorneys at Law, by: J.F. Valley, for appellants.
    No response.
   Per Curiam.

Appellants petition this Court for writ of certiorari and request that this Court stay the election proceedings at issue, which are scheduled to take place on Tuesday, September 17, 2002. Appellants filed this petition on Wednesday, September 11, 2002. We deny appellants’ petition and motion to stay.

Our denial is based upon the settled rule that the courts are without authority to enjoin the holding of a regular election, regularly called. Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989); Brown v. McDaniel, 244 Ark. 362, 427 S.W.2d 193 (1968). If a court, trial or appellate, can at the eleventh hour prohibit a regular election, regularly called, it is at once apparent that the control of judges over the election process goes far beyond reasonable limits. Id. In Brown, the court had four days to consider the taxpayers’ request to enjoin the election, and accordingly, it concluded that the best course was to let the election be held, leaving the parties to their post-election remedies. That same procedure was dictated here, since this case was first presented to this Court four business days prior to the scheduled election. Appellants have failed to follow the necessary procedures to accelerate this case. Valley v. Bogard, 341 Ark. 302, 20 S.W.3d 271 (2000) (The court was unable to determine when a full record can be provided so this court can establish a briefing schedule).

Denied.


text:
    Fannie FIELDS; Annetta Carruth; Casey Cox; Willie Spriggs; Loretta Jarrett v. The Honorable John PLEGGE; Marvell School District # 22, et al.

    02-951
    84 S.W.3d 446
    Supreme Court of Arkansas
    Opinion delivered September 12, 2002

      Wilson & Valley, Attorneys at Law, by: J.F. Valley, for appellants.
    No response.
   Per Curiam.

Appellants petition this Court for writ of certiorari and request that this Court stay the election proceedings at issue, which are scheduled to take place on Tuesday, September 17, 2002. Appellants filed this petition on Wednesday, September 11, 2002. We deny appellants’ petition and motion to stay.

Our denial is based upon the settled rule that the courts are without authority to enjoin the holding of a regular election, regularly called. Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989); Brown v. McDaniel, 244 Ark. 362, 427 S.W.2d 193 (1968). If a court, trial or appellate, can at the eleventh hour prohibit a regular election, regularly called, it is at once apparent that the control of judges over the election process goes far beyond reasonable limits. Id. In Brown, the court had four days to consider the taxpayers’ request to enjoin the election, and accordingly, it concluded that the best course was to let the election be held, leaving the parties to their post-election remedies. That same procedure was dictated here, since this case was first presented to this Court four business days prior to the scheduled election. Appellants have failed to follow the necessary procedures to accelerate this case. Valley v. Bogard, 341 Ark. 302, 20 S.W.3d 271 (2000) (The court was unable to determine when a full record can be provided so this court can establish a briefing schedule).

Denied.


text:
    Harry WARD, Individually, and On Behalf of Arkansans To Protect Police, Libraries, Education & Services v. Sharon PRIEST, Secretary of State
    02-954
    86 S.W.3d 383
    Supreme Court of Arkansas
    Opinion delivered September 17, 2002

      Friday, Eldredge & Clark, by: Robert S. Shafer, for petitioner.
    No response.
   Per Curiam.

Based on this court’s docket and the parties’ schedules, we grant petitioner’s motion and set the following briefing dates:

Respondent’s answer due on September 23, 2002.
Petitioner’s brief due on October 3, 2002.
Respondent’s response due on October 7, 2002.
There will be no reply briefs.

In addition oral arguments in this matter will be set for Thursday, October 10, 2002, at 9:00 a.m.


author: Tom Glaze, Justice.

text:
    Ray DANSBY v. STATE of Arkansas
    CR 00-1218
    84 S.W.3d 857
    Supreme Court of Arkansas
    Opinion delivered September 19, 2002

      David W. Talley, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Ray Dansby was convicted of capital murder for the 1992 shooting of his ex-wife, Brenda Dansby, and Ronnie Kimble. A jury sentenced him to death by lethal injection on both counts. This court affirmed his conviction and sentence in Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). Dansby filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37 on May 26, 1995, and an amended-petition on June 22, 1995. The circuit court held a hearing on Dansby’s petition on December 3, 1999, and issued an order on July 30, 2000, rejecting each of Dansby’s twenty-seven claims of ineffective assistance of counsel and denying his claim for relief. From that order, Dansby brings this instant appeal.

The general standard of review for reviewing claims of ineffective assistance of counsel, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), has been stated many tim.es. A defendant must show first, that counsel’s performance “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, and second, that the errors “actually had an adverse effect on the defense.” Id. at 693; see also Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Id.; Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000).

On appeal from a trial court’s ruling on Rule 37 relief, we will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.

For his first point on appeal, Dansby argues that his trial counsel, Jan Thornton, was ineffective in her pre-trial preparation in two respects: (1) he alleges that, pending trial, Thornton only visited him four or five times while he was in jail; and (2) Thornton failed to visit the crime scene with Dansby prior to trial. In his first argument, Dansby asserts that, at the Rule 37 hearing, Thornton testified that while she only met with Dansby four or five times, and she could not remember a specific conversation with him, she did know that they talked about his case and that he provided her with the names of witnesses. Dansby testified that they only had two or three conferences while he was in jail, and that the other two meetings occurred when she was coming to see another inmate, and he would see if she had time to meet with him. The trial court rejected this assertion of ineffective assistance, ruling that Dansby’s statement was conclusory, and that there were no facts to show that more visits would have somehow benefitted Dansby at trial.

In his brief on appeal, Dansby asserts, without citation to authority, that there must be adequate investigation and preparation of the case for an attorney’s performance to be considered reasonable, and he states simply that Thornton only visited him in jail a few times during the ten months he was incarcerated prior to trial. There is no allegation of prejudice; as the trial court noted, there is no argument that more visits would have produced a better result at trial. Thus, this conclusory statement, wholly lacking in allegations of prejudice, falls far short of meeting the Strickland standard, and is insufficient to warrant Rule 37 relief.

In his second argument, Dansby has similarly failed to prove that he was prejudiced by Thornton’s failure to view the crime scene with him. Thornton testified at the Rule 37 hearing that, although she had gotten a court order to view the scene with Dansby, she did not show up on the appointed date. However, she testified that she did view the house alone and also looked at photos of the home. Further, she asserted that, by using the photos, she could relate to what Dansby had told her about the crime.

In Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995), this court was presented with a similar argument. There, Johnson argued that his trial counsel had been ineffective for failing to view the crime scene, but his attorney testified that he did go to view the scene, and in fact gave a detailed description of the scene. This court hqld that not only did Johnson fail to show that the trial court’s ruling was against the preponderance of the evidence, but that he also did “not show how it would have made a difference even if his attorney had not visited the scene, and he must do so in order to prevail.” Johnson, 321 Ark. at 127-28 (citing Strickland, 466 U.S. at 687). Dansby has likewise failed to offer any argument as to how his case would have come out any differently if Thornton had gone to view the crime scene with him.

Dansby’s second point on appeal is that Thornton was ineffective in conducting voir dire. Here, Dansby points to the testimony of attorney Didi Sailings, who sat at counsel table during Dansby’s trial and advised Thornton on how to handle certain aspects of the trial. At the Rule 37 hearing, Sailings testified that she wrote notes to Thornton during voir dire, suggesting questions to ask the jury panel, but that Thornton refused to act on her advice.

Dansby’s argument is rejected because he used only eleven of his peremptory challenges at trial. Since he was not forced to exhaust all twelve of his peremptory challenges to try to secure a fair and impartial jury, Dansby has not demonstrated sufficient prejudice. See Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998). Without a showing of prejudice, a Rule 37 petitioner cannot overcome the Strickland requirements. See Huddleston v. State, 339 Ark. 266, 5 S.W.3d 456 (1999). Thus, Dansby’s second point must be rejected.

Third, Dansby contends that counsel was ineffective for failing to secure the presence of a witness named Calvin Paschal. Thornton testified at the Rule 37 hearing that she considered Paschal to be an important witness, but she did not issue a subpoena for him. Thornton asserted that Paschal would have testified that Dansby carried a gun because Dansby worked in a bar where he had “had some trouble”; that Ronnie Kimble, one of the victims, had once pulled a gun on Dansby; and that Dansby and Brenda had an “on-again, off-again” relationship.

In rejecting this argument, the trial court found that Dansby introduced this same testimony through other witnesses. We agree. At least three witnesses — Marie Dansby, Marilyn Larry, and Ruthie Kemp — testified that Dansby and Brenda had an “on-again, off-again” relationship, and that they did not seem to have any problems. Vivian Dansby, Dansby’s sister, testified that he carried a gun with him for protection while he was running his bar. Larry McDuffie, a fellow inmate, testified that Dansby said that Kimble had once pulled a gun on him. Thus, although Thornton did not subpoena Paschal to testify at trial, Dansby suffered no prejudice. The omission of a witness when his or her testimony is cumulative does not deprive the defense of vital evidence. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Dansby’s failure to demonstrate prejudice precludes relief under Rule 37.

Dansby’s fourth point on appeal is that Thornton was ineffective because she failed to move to suppress Dansby’s statement to law enforcement officials. After the arresting officers read Dansby his Miranda rights, they took him to the crime scene to locate the murder weapon. Because Thornton did not file a motion to suppress, Dansby alleges he was precluded from making an argument on appeal on this issue. The Rule 37 court rejected this argument, finding that Dansby was not prejudiced by Thornton’s failure to move to suppress this evidence, because Dansby confessed his involvement in the murder to the police.

On appeal, Dansby argues simply that, had a motion to suppress been granted, the effect would have been “substantial.” However, Dansby has failed to assert what could have formed a basis for the trial court to have granted a motion to suppress. There was no evidence in the record at trial or developed at the Rule 37 hearing that a motion to suppress his statement was warranted, or that such a motion would have succeeded. His unsupported, conclusory allegation cannot form the basis for Rule 37 relief, see Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001), and we therefore repudiate this point as well.

Finally, Dansby argues that Thornton was ineffective for failing to properly prepare the mitigation phase of his trial. He asserts that Thornton did not know the identities of the witnesses or the substance of their testimonies. Dansby contends that the best indication of Thornton’s ineffectiveness was that the jury found no mitigating evidence to exist.

Thornton testified that she talked with some of the witnesses, but not all of them, prior to trial. During the sentencing phase, she called twelve witnesses to testify on Dansby’s behalf, including a Department of Corrections officer, a psychologist, Dansby’s mother and sister, a family friend, a parole officer, and Dansby’s employer; each of these witnesses testified as to mitigating circumstances. Thornton testified that she made a determination as to which witnesses to call during sentencing by talking with Dansby and his family.

The decision to call a particular witness is one of strategy and is beyond the purview of Rule 37. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001); Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). Moreover, fatal to Dansby’s claim is his failure to demonstrate what other witnesses Thornton should have called and what their testimonies would have been. See Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980) (where petitioner faded to furnish the names of the witnesses requested and the substance of their testimonies, he did not present facts to support his allegations, nor did he demonstrate any prejudice to him by these alleged omissions).

Finally, although Dansby claims the prejudice was obvious because the jury found no mitigating factors, this court has previously held that “[a] jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance.” Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998) (quoting from Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995)). This court held further that the jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it the jurors believe to be true. Id. (citing Davasher v. State, 308 Ark. 154, 823 S.W.2d 863, cert. denied, 504 U.S. 976 (1992). Thus, the mere fact that the jury did not find any mitigating circumstances to exist is insufficient proof of Thornton’s ineffective assistance of counsel during the penalty phase.

Affirmed.

       This case was initially remanded for rebriefing due to abstracting deficiencies. See Dansby v. State, 347 Ark. 509, 65 S.W.3d 448 (2002) (per curiam). "We now have Dansby’s abstract of the original trial proceedings, and we are now able to proceed to the merits of the appeal.

       In Dansby’s Rule 37 petition, he raised some eleven issues regarding Thornton’s alleged ineffectiveness during her pretrial preparation. However, in his first point on appeal, wherein he argues Thornton’s pretrial performance was ineffective, his brief addresses and argues only the two above-described points. In response, the State’s brief addresses the majority of Dansby’s original issues raised in his petition. However, all claims raised below but not argued on appeal are considered abandoned. See Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001); Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). Therefore, we confine ourselves to a discussion of those two subpoints in Dansby’s first point on appeal.

       Dansby’s trial was Thornton’s first capital murder case.


author: Donald L. Corbin, Justice.

text:
    Bruce Earl WARD v. STATE of Arkansas
    CR 00-1322
    84 S.W.3d 863
    Supreme Court of Arkansas
    Opinion delivered September 19, 2002

      William A. McLean, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Bruce Earl Ward appeals the order of the Pulaski County Circuit Court denying his petition for postconviction relief filed pursuant to Ark. R. Crim. P. 37.5. Appellant’s petition stated six allegations of ineffective assistance of counsel. Following a hearing, the trial court denied Ward’s petition. On appeal, Ward alleges only two instances when his counsel was ineffective: (1) in failing to object to the hearsay testimony of a prosecution witness; and (2) in failing to seek the recusal of the trial judge. Our jurisdiction of this appeal is pursuant to Rule 37 and Ark. Sup. Ct. R. 1-2(a)(8). We find no error and affirm.

As this case has been before this court on numerous occasions, it is unnecessary for us to delve into a recitation of the underlying facts of the case. Those facts were set out in ample detail in Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied, 506 U.S. 841 (1992). Suffice it say, Ward was convicted of the capital murder of Rebecca Doss and sentenced to death. On direct appeal, this court affirmed his conviction, but reversed and remanded for resentencing. Id. Ward was again sentenced to death, but due to an error by the court reporter, this court again reversed and remanded for resentencing in Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995). Then, in Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999), this court affirmed Ward’s third sentence of death.

This court issued the mandate affirming Ward’s conviction and sentence on October 19, 1999. On February 10, 2000, Ward filed a timely petition for postconviction relief, alleging that his trial counsel rendered ineffective assistance of counsel during his trial. Thus, this appeal is governed by Ark. R. Crim. P. 37.5, as Ward was sentenced to death and became eligible to file his petition after March 31, 1997.

At the outset, it must be noted that this court will not reverse the denial of a Rule 37 petition unless the trial court’s decision is clearly erroneous. Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001); Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). In State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998), this court stated that the question on appeal is whether the trial court clearly erred in holding that counsel’s performance was not ineffective under the standard enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland standard, as relied on by this court, provides:

First, the defendant must show 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 defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. See Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000); Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995). Furthermore, this court, consistent with the holding in Strickland, has held that an appellant raising allegations of ineffective assistance of counsel is subject to the general requirement of proving prejudice. Sanford, 342 Ark. 22, 25 S.W.3d 414. Remaining cognizant of this standard, we now turn to the merits of Ward’s arguments on appeal.

I. Hearsay

For his first point on appeal, Ward argues that his trial counsel was ineffective in fading to object to a portion of testimony elicited through prosecution witness Dale Danzeisen. At the time of Doss’s murder, Danzeisen was a newspaper courier for the Arkansas Democrat and supplied newspapers to the gas station where Doss worked. Danzeisen testified that he saw Ward at the station on the night of the murder and that he was in a fit of rage. Danzeisen further testified that two weeks prior to Doss’s murder, he witnessed Ward make obscene comments to Doss while at the station. Specifically, Danzeisen testified that he heard Ward tell Doss, “I would like to take you in the back room over the boxes and fuck you up the ass.” Ward further stated, “I would like to pull my dick out and make you lick the shit off of it.”

Ward’s trial counsel, Tom Devine, did not object to the admission of these statements. At the Rule 37 hearing, Devine testified that in hindsight it might have been possible for him to construct a hearsay objection, but that he did not know how successful it would have been. Devine went on to state that the defense team believed Danzeisen’s statements were so unbelievable that they would not hurt the defense. According to Devine, Danzeisenwas a “[l]oose cannon.” Devine further testified that it was the defense’s intent to imply that Danzeisen was the one who actually committed the murder. In its written order, the circuit court found that Devine’s decision not to object to the statements was a matter of trial strategy and, thus, was not a basis for Rule 37 relief.

Ward’s argument on this point is without merit. The argument is premised on the notion that Danzeisen’s statements constituted inadmissible hearsay. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c). As the State correctly points out, Danzeisen’s statements are an admission by a party opponent. Rule 801(d) (2) (i) provides in relevant part that a statement is not hearsay if “[t]he statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity [.]”

In Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997), the appellant made statements to a nurse who was drawing a sample of his blood that he wanted her to give him his lethal injection. This court held that the statements were admissible as an admission by a party opponent, because they were the appellant’s own statements and were being offered against him at trial. Likewise, the statements at issue here were statements made by Ward and offered against him at trial and, thus, constitute an admission of a party opponent. The court in Webb also pointed out that a claim concerning how a defendant’s statement should be interpreted does not go to the admissibility of the statement, but only to its weight, which lies within the province of the jury. Id. Moreover, this court has held that evidence linking a perpetrator to a victim is both relevant and evidence. Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), cert. denied, 520 U.S. 1242 (1997) . Here, Ward’s statements were relevant evidence demonstrating Ward’s knowledge at the time of the murder.

In sum, even if Ward’s counsel had attempted to object to the admission of the statements, any such objection would have failed. This court has often held that counsel cannot be found ineffective for failing to make an argument that could not succeed. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Sanford, 342 Ark. 22, 25 S.W.3d 414.

II. Recusal

For his second point on appeal, Ward claims that his trial counsel was ineffective in failing to seek the recusal of the trial judge, because the trial judge was biased against him. This perceived bias is based on an instance during the trial in which the trial judge would not allow defense counsel to approach the bench in order to make an objection, but would allow the state’s attorney to approach. Ward, however, makes no argument to this court that his counsel’s failure to seek the judge’s recusal prejudiced him. In fact, in this point on appeal, Ward simply asks the court to revisit the issue in light of Justice Dudley’s dissent to the opinion in Ward I. This court has repeatedly held that arguments unsupported by authority or convincing argument will not be considered by this court. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998) . Thus, where a party presents no convincing argument nor cites to any convincing legal authority, this court will not reach the merits of that point on appeal. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). Ward’s failure to make an argument and cite authority in support of that argument is sufficient reason for this court to affirm the trial court’s ruling on this point. See Bunch, 344 Ark. 730, 43 S.W.3d 132.

Nonetheless, even if the argument was properly presented to us, it would still fail. Justice Dudley’s dissent demonstrates that this court has already addressed this precise issue in Ward’s direct appeal. Justice Dudley noted that he had reviewed the record pursuant to Ark. Sup. Ct. R. 11(f) (now Rule 4-3(h)), which required a contemporaneous objection in order to preserve an issue for review. Thus, Appellant’s counsel made a sufficient enough objection to preserve this issue for appellate review, and the matter was considered in Ward’s direct appeal. In Ward I, pursuant to our review of the record, this court determined that no prejudice resulted from the trial judge’s refusal to allow counsel to approach the bench on this one specific occasion. This court will not reconsider those issues that have been considered on direct appeal. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Thus, the court’s decision in Ward I is the law of the case on this issue.

Affirmed.

       This appeal was previously submitted to this court on January 10, 2002, but was remanded due to a deficient abstract. See Ward v. State, 347 Ark. 515, 65 S.W.3d 451 (2002) (per curiam).