author: David Newbern, Justice. Tom Glaze, Justice,

text:
    STATE of Arkansas v. Chad Eugene JONES
    CR 95-461
    907 S.W.2d 674
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Appeal from Pulaski Circuit Court; Marion Humphrey, Judge; appeal dismissed.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellee.
   David Newbern, Justice.

Recently we released our opinion in Jones v. State, CR95-397 , affirming the conviction of Chad Eugene Jones of first-degree murder and second-degree battery. The State has filed a separate appeal arising from the same trial which was the subject of CR95-397. In its appeal brought pursuant to Ark. R. Crim. P. 36.10, the State asks that we declare the Trial Court erred in refusing to permit certain evidence tending to show that Mr. Jones was a member of a street gang known as “The Southwest Kings.” Rule 36.10(c) provides in part:

If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within (60) days of filing the notice of appeal.

We disagree with the Attorney General’s conclusion that the correct and uniform administration of justice requires a review in this case, and we thus dismiss the appeal.

The Trial Court determined that the probative value of some of the evidence about Mr. Jones’s membership in a gang was outweighed by the danger of unfair prejudice. The ruling of the Trial Court concerning gang-affiliation testimony turned on a question of relevancy and the balancing test provided in Ark. R. Evid. 403. It was a determination based on the particular facts of this case, and thus we cannot say that the uniform administration of the criminal law would require a declaration of error even if error were found in the application of Rule 403.

Mr. Jones was one of the individuals charged in the shooting death of Jason Hatcher and the wounding of Tim McGarrity in Sherwood on December 18, 1993. The State produced evidence that on the evening of December 17, 1993, Mr. Hatcher and his friends went to a basketball game at North Little Rock High School. Following the game, the group went to a place called “Fones,” which is apparently a dead-end road where teenagers frequently go to “hang out.” After spending some time at Fones, the group proceeded to Parkway Music Studio in North Little Rock, where a party was being held.

After leaving the party, Jason Hatcher and his friends proceeded toward Taco Bell in Sherwood, which shares a parking lot with a Harvest Foods store. The testimony showed the group used three separate vehicles and that each vehicle reached the parking lot at close to the same time. The first car to arrive at the parking lot was a white Subaru containing Casey Stalnaker, Tim McGarrity, and Clay Cochran. Mr. Hatcher was a passenger in one of the other vehicles that arrived shortly thereafter.

In the period between the arrival of the white Suburu and the vehicles containing Mr. Hatcher and his other friends, the occupants of the Subaru saw a white low-rider pickup truck parked by the pay phones in front of Harvest Foods. Although it is not entirely clear, it was suggested that the occupants of the pickup, Shan Messer and James Gross, had earlier made “gestures” at Jason Hatcher’s group at an intersection. Clay Cochran and Tim McGarrity walked over to Shan Messer and James Gross, and a fight broke out. By this time, the other members of Mr. Hatcher’s party had arrived, and a crowd had begun to form around the fracas.

After the fight had begun and the crowd of spectators had formed, a Blue Honda carrying Mr. Jones and others arrived on the scene. With the arrival of the Honda, a series of shots were heard. Although the testimony concerning these events varied, several witnesses testified they saw Mr. Jones standing outside the vehicle and holding an object. Casey Stalnaker, who remained in the Subaru during the incident, testified he saw Mr. Jones with a gun. Mr. Jones was also heard yelling, “I told you not to fuck with the Southwest Kings.” Tim McGarrity was wounded in his leg and Mr. Hatcher suffered a back wound which resulted in his death.

These events gave rise to the information filed against four defendants, including Mr. Jones. Because the State was unable to demonstrate conclusively which defendant shot Tim McGarrity and which shot Jason Hatcher, it proceeded on an accomplice theory against all four defendants. The State later amended its information to include a charge of engaging in violent criminal group activity against each of the defendants.

Prior to the trial, Mr. Jones moved in limine to prevent the State from introducing evidence of Mr. Jones’s alleged affiliation with the Southwest Kings. Subsequently, the State proffered the testimony of Mr. Jones’s former girlfriend and other youths who stated that they either knew of Mr. Jones’s membership in the gang or heard him proclaim his membership in a threatening manner at the party at Parkway Music Studio. At the conclusion of the proffered testimony, the Trial Court refused to admit gang-affiliation evidence and said, “this testimony, whatever, would be more prejudicial than probative. And I think there may be even some problems with the factual basis of this as well.” The ruling excluded the evidence of activity earlier in the evening suggesting Mr. Jones’s gang affiliation but permitted reference to Mr. Jones’s alleged statement about the Southwest Kings which occurred on the parking lot.

In its argument that the appeal should be allowed, the State cites a case in which we addressed, pursuant to Rule 36.10, the State’s cross-appeal concerning whether a dying declaration of a small child should have been admitted in evidence. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). The Trial Court had suppressed the child’s statement because “no one told him he was going to die.” We did not discuss in detail the propriety of the appeal. We concluded the child’s statement, made shortly before he died, about having been beaten by his mother’s fiance should not have been suppressed because there was evidence he suspected his impending death.

Also cited is State v. Browning, 206 Ark. 791, 178 S.W.2d 77 (1944), in which we entertained the State’s appeal of questions concerning admissibility of a confession of one accused of a crime. One of the questions in the Browning case was whether it was proper for the Trial Court to exclude a confession obtained by police authorities prior to the arraignment of the accused. We held the exclusion to have been improper.

In both cases the Trial Courts and we were concerned with direct, technical application of evidence rules. Neither presented the sort of balancing issue present here in the application of Rule 403 which provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In the case now before us, the Trial Court made no sweeping decision about the admissibility or inadmissibility of evidence of gang membership of a criminal defendant. That is obvious from the fact that not all references to the Southwest Kings were excluded. Nor was there a technical interpretation of an evidence rule. Any decision we might make in response to the State’s appeal would have to address the Trial Court’s discretion in excluding evidence he apparently thought might result in unfair prejudice.

In State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994), the State attempted to appeal from a decision that a Department of Human Services food stamps fraud investigator was a law enforcement officer required to advise a suspect, in accordance with Arkansas Rules of Criminal Procedure 2.3, that she was free to leave his office after having been invited for an interview. We dismissed the appeal and said:

In short, an interpretation of the Criminal Rules with widespread ramifications is simply not at issue in this case. We have said the following in connection with a prior decision on the correct and uniform application of the law:
Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim P. 36.10.

State v. Mazur, 312 Ark. 121, 123, 847 S.W.2d 715, 716 (1993); quoting State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). Such is the situation before us now in this appeal.

The same is true here, therefore, we dismiss the State’s appeal.

Appeal dismissed.

Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting.

In this case, the trial judge rejected the state’s evidence showing the defendant’s gang affiliation with the Southwest Kings. The state brings this appeal in its efforts to obtain this court’s decision on whether the trial judge erred in excluding such gang-affiliation evidence. It seeks a decision because other cases are pending involving these same facts and issue. The state is permitted to appeal when the attorney general is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the court. Ark. R. Crim. P. 36.10. The majority court dismisses the state’s appeal, stating that the trial court made no “sweeping decision” about the admissibility or inadmissibility of evidence of gang membership of a criminal defendant.

This court has recognized that a defendant’s affiliation with a group may show “motive, and hence the doing of the criminal act, the identity of its actor, or his intention.” Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992) [quoting Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987), and 490 U.S. 1075 (1989)]. From my research I can find no Arkansas case, except the one before us now, where a trial court had actually excluded gang-affiliated evidence in a felony or homicide trial after a trial court, pursuant to A.R.E. Rule 403, weighed the probative value of such evidence against its prejudicial value.

In my view, the legal issue sought to be ruled on is one which will reoccur, but which this court will never be able to reach, unless we do so in a state appeal like the one before us now. The question needing an answer here is what are the relevant factors for a trial court to consider under A.R.E. Rule 403 when admitting or excluding gang-affiliation evidence. I would take the state’s appeal and decide the issue.

Corbin, J., joins this dissent.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Tony WILLIAMS v. STATE of Arkansas
    CR 95-578
    907 S.W.2d 120
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Daniel D. Becker, for appellant.

      Winston Bryant, Att’y Gen., by; Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Tony Williams was convicted of rape, aggravated robbery, and felony theft. The prosecution offered six photographs of the elderly female victim, showing her beaten and bloody condition shortly after the crime occurred. The Trial Court compared the photographs and admitted four of them. Counsel objected to the pictures on the ground that their prejudicial effect outweighed their probative value and that they were cumulative. He renews the prejudice argument on appeal. He also contends it was error to admit a “rape kit” laboratory report compiled by a State Crime Laboratory analyst. He contends the report was hearsay and cumulative to the analyst’s testimony. We find no error and affirm.

1. The photographs

Mr. Williams cites cases such as Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), in which we held the Trial Court abused his discretion by admitting too many autopsy pictures of a victim. His argument, for which he cites no authority, is that the victim testified about her injuries; therefore, the photographs were not helpful to the jury but served only to inflame them.

The Trial Court committed no abuse of discretion in allowing the photographs. The fact that photographs may be inflammatory is not alone sufficient reason to exclude them if they enable a witness better to describe that which they portray or if they corroborate the witness’s testimony. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1992); Williams v. State, 300 Ark. 84, 776 S.W.2d 359 (1989). Our law clearly contemplates situations where photographs are used in addition to the testimony of a witness as to that which the photographs depict.

2. The report

The use of a State Crime Laboratory report as evidence in a trial is governed by Ark. Code Ann. § 12-12-313 (Supp. 1993). Subsection (a) of the statute provides that such a report is admissible when properly attested. Mr. Williams argues the statute does not apply when the serologist who compiled the report testifies in person. That is not so because subsection (c) of the statute provides specifically that “the records and reports shall be admissible through the analyst who shall be subject to cross-examination by the defendant or his counsel.”

Affirmed.


author: Tom Glaze, Justice.

text:
    Willie Charles SUGGS v. STATE of Arkansas
    CR 95-478
    907 S.W.2d 124
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Durrett & Coleman, by; Gerald A. Coleman, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is appellant Willie Suggs’s second appeal. In his first, this court reversed his first degree murder conviction due to trial error and remanded the case for a new trial. Suggs v. State, 317 Ark. 541, 879 S.W.2d 428 (1994). Suggs was retried, and was convicted of second degree murder and sentenced to twenty years. He raises four points for reversal.

In his first argument, Suggs states that when he was originally tried and convicted in 1993, Arkansas law then authorized, and he received, a non-bifurcated trial. However, after his original conviction, but before his case was reversed and remanded by this court, the General Assembly amended Arkansas law, effective January 1, 1994, to permit bifurcated trials in all felony cases. See Ark. Code Ann. § 5-4-103 (Repl. 1994). At Suggs’s second trial on remand, which commenced in February of 1995, the trial court ruled it should try Suggs’s case pursuant to the newly-enacted bifurcated trial procedure. Suggs suggests the trial court’s decision to retroactively apply the new law in his case violated the Ex Post Facto Clause. We disagree.

In Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994) , Williams made a similar argument to the one Suggs advances here. There, Williams, who was tried in January of 1994, contended that, because his alleged crimes occurred in 1993, he was entitled to the non-bifurcated trial procedure in effect in 1993. Williams claimed that, when the trial court retroactively utilized Arkansas’s new bifurcated sentencing procedure (effective January 1, 1994), it violated the Ex Post Facto Clause. This court rejected Williams’s argument, and explained that Arkansas’s new bifurcated sentencing laws do not violate the Ex Post Facto Clause because they do not criminalize conduct that was previously non-criminal, do not increase the severity or harshness of the punishment for the offenses that Williams committed and do not deprive him of a defense that was available to him at the time he committed the offenses with which he was charged. See also Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995) . The court further determined that the penalty or sentence authorized under the sentencing statutes remained the same at all relevant times in Williams’s situation and any change in the sentencing trial procedure was merely procedural, not substantively prejudicial or an Ex Post Facto violation. Here, the same is true in Suggs’s situation.

Suggs’s second point emanates from his having refused to be present when trial proceedings reconvened on the morning of February 9, 1995. The deputy sheriff relayed Suggs’s message that Suggs “did not care how long the court and jury had to wait, he would come when he got dressed and he got ready.” Defense counsel then moved for a mistrial, claiming Suggs was prejudiced because the jury became aware that the sheriff’s department had Suggs incarcerated “because they’ve (deputies have) been going back and forth trying to find him.”

Here, Suggs asserts the trial court’s denial of his motion amounted to reversible error. Suggs is wrong on this point for more than one reason, but the short answer is that the record fails to demonstrate the error asserted on appeal. Claiborne v. State, 319 Ark. 537, 893 S.W.2d 324 (1995). In fact, the colloquy between the trial court and the deputy sheriff and the exchange between defense counsel and the trial court are designated in the record as being “held at the bench out of the hearing of the jury.” In sum, our review of the record fails to reveal the jury saw Suggs in prison garb or show it was in any way made aware of his incarceration.

Suggs raises a third issue wherein he claims the state criminalist expert witness, Don Smith, knowingly gave opinion evidence that could not be true. Suggs reasons that, at trial, Smith testified that he was given hair samples from Debbie McKenzie’s body and from Suggs, and he compared those samples with hair found on a tennis shoe belonging to Suggs. Smith opined that the hair found on Suggs’s shoe was Debbie’s. However, Suggs points out that, on cross-examination, Smith agreed with the proposition that “the scientific field cannot prove the hair came from a certain individual to the exclusion of any other person.” In view of this response on cross-examination, Suggs contends Smith’s earlier opinion should have been excluded.

It is well settled that the determination of the qualifications of an expert witness lies within the discretion of the trial court, and the trial court’s decision will not be reversed unless that discretion has been abused. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980). Once an expert witness is qualified, the weakness in the factual underpinning of the expert’s opinion may be developed upon cross-examination and such weakness goes to the weight and credibility of the expert’s testimony. Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907 (1976). And where the testimony shows a questionable basis for the opinion of the expert, the issue becomes one of credibility for the factfinder, rather than a question of law for the court. Arkansas State Highway Comm’n v. First Pyramid Life Ins. Co. of America, 265 Ark. 417, 579 S.W.2d 587 (1979).

Here, the trial court correctly qualified Smith as an expert concerning the field of trace evidence. Smith testified that, as a criminalist, he deals with scientific evidence and traces evidence or residues recovered at a crime scene which includes such things as hair. His training, Smith said, included specialized areas of hair analysis, and he obtained such training and experience with the FBI lab and St. Louis Metropolitan Police lab. He also related his broader work and training, obtained in the trace evidence field. After having been qualified as an expert, Smith went into considerable detail concerning the analysis performed on Suggs’s and Debbie McKenzie’s hair samples and how those samples were analyzed and compared with the hair found on Suggs’s tennis shoe. Suggs’s counsel then thoroughly cross-examined Smith concerning his training and about the tests performed and, as discussed above, counsel further questioned Smith as to whether Smith could actually prove the.hair on Suggs’s shoe belonged to Debbie. Both state and defense counsel did an excellent job of pinpointing the strengths and weaknesses of Smith’s opinion evidence; once done, however, it became the jury’s duty to determine the weight and credibility to be given Smith’s testimony. In sum, the court did not err in allowing Smith’s testimony. ■

Suggs’s final argument concerns testimony given by state witness Carolyn Hudnall. Hudnall said that she saw Suggs several times at Debbie McKenzie’s workplace, and those occasions occurred a few days before Debbie’s murder. Suggs asked Debbie for a date, and she told him no. Hudnall said that Suggs asked a second time, and Debbie became agitated and told, him she already had a boyfriend. Suggs objected to Hudnall’s testimony as being inadmissible hearsay. He claims the prosecution elicited this testimony to establish Suggs’s motive in killing Debbie. The trial court overruled Suggs’s objection.

Even if the trial court’s ruling was error, it was harmless. This court has held that where hearsay evidence is improperly admitted, but the same evidence is properly admitted through another source, there is no reversible error. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995); Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988). That is the situation here. Four other state witnesses testified without objection to the same, or even stronger, evidence reflecting that Suggs had harassed Debbie shortly before her death with contacts at work and at home, and she repeatedly rejected his offers. Patricia Parker and Elsie Mills testified that Suggs bothered Debbie at work and she would not talk to him. Mills said she was at Debbie’s home, and answered numerous calls from Suggs, but Debbie would not take the calls. Similar testimony was given by another state witness, Linda Malone. Debbie’s brother, Lee Lemmon, testified Debbie had called and asked him to her house because Suggs was beating and kicking on her door in an attempt to break in. Lemmon said that Debbie appeared frightened and nervous.

After careful review of the record and arguments of counsel, we hold no reversible error occurred. Therefore, we affirm.


author: Donald L. Corbin, Justice. Tom Glaze, Justice,

text:
    Betty Lou GRINNING v. CITY of PINE BLUFF
    CR 94-964
    907 S.W.2d 690
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      William M. Howard, Jr., for appellant.

      Winston Bryant, Att’y Gen., by; J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Betty Lou Grinning, appeals the order of the Jefferson County Circuit Court convicting her of disorderly conduct and refusal to submit to arrest and fining her $100.00 and $500.00, respectively. She raises two points for reversal of the order: that the trial court erred in overruling her objection based on Batson v. Kentucky, 476 U.S. 79 (1986), and that she was deprived of her right to a jury trial because she was tried by a jury composed of only six members. The Arkansas Court of Appeals certified this case to this court pursuant to Ark. Sup. Ct. R. 1-2(d)(2) as involving a legal principle of major importance. We find merit to appellant’s argument that she was deprived of her right to be tried by a twelve-member jury and therefore reverse and remand.

After voir dire, the trial court stated, “[f]or the edification of the jury, these charges today are misdemeanor charges, or actually under the statute we call them non-felony, which means that we can utilize pursuant to a 1993 enactment of the legislature a six-person jury.” Appellant did not object to the utilization of a six-member jury, nor did she challenge the legislation to which the trial court alluded, presumably Act 592 of 1993. In fact, after the foregoing statement by the court, there was no further discussion of the jury issue by the court, the prosecutor, appellant, or appellant’s counsel.

On appeal, appellant argues for the first time that the Constitutions of the United States and the State of Arkansas entitle her to be tried by a twelve-member jury. She relies upon Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994), for reversal, and cites Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), for the proposition that the right to jury trial is not subject to the contemporaneous objection rule such that she may raise this argument for the first time on appeal.

We first consider appellant’s argument pursuant to the United States Constitution. The United States Supreme Court has held that a twelve-member panel is not a necessary ingredient of the Sixth Amendment right to trial by jury, made applicable to the states through the Fourteenth Amendment. Williams v. Florida, 399 U.S. 78, 86 (1970). The United States Court of Appeals for the Eighth Circuit applied the Williams holding to criminal prosecutions in state courts and stated, “[t]here is no federal rule binding the state courts to use a twelve-member jury in state criminal prosecutions. The state courts are bound by their own sets of criminal procedure rules.” Vinston v. Lockhart, 850 F.2d 420, 424 (1988). As appellant was tried in state court for a state crime, there are no federal issues presented here.

Accordingly, we turn to appellant’s argument pursuant to the Arkansas Constitution. Appellant relies primarily on Ark. Const, art. 2, § 7, consistently applied by this court in criminal cases, which states in pertinent part: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law[.]”

After appellant was tried, but before this appeal was submitted to us, this court decided Byrd, 317 Ark. 609, 879 S.W.2d 435, in which this court held that Act 592 of 1993, codified at Ark. Code Ann. §§ 16-32-202, -203 (Repl. 1994), which provides for a jury of six persons in non-felony cases at the judge’s discretion, violated Ark. Const, art. 2, § 7. This court stated in Byrd that the art. 2, § 7 guarantee of a defendant’s right to a jury trial meant the right to be tried by a twelve-member jury and that such right must be waived by the defendant “in the manner prescribed by law.” Thus, the Byrd Court concluded that Act 592 violated art. 2, § 7 by effectively eliminating the waiver requirement and leaving the matter to the judge’s discretion.

Since Act 592 was declared unconstitutional, sections lb-32-202 and -203 remained viable as they existed prior to the enactment of Act 592. Byrd, 317 Ark. 609, 614, 879 S.W.2d 435, 438. Prior to Act 592, section 16-32-202 provided for trial by jury of less than twelve members only upon agreement of the parties. Rules 31.1 through 31.5 of the Arkansas Rules of Criminal Procedure establish the process by which a defendant may waive his right to trial by jury. According to those rules, except in misdemeanor cases where only a fine is imposed by the court, a defendant must waive his right personally either in writing or in open court and the waiver must be assented to by the prosecutor and approved by the court; a verbatim record of the waiver is required.

Our case law has been clear for more than a century

that a defendant’s failure to object to the denial of the right to trial by jury does not constitute a waiver of that right. Warwick v. State, 47 Ark. 568, 2 S.W. 335 (1886). In every criminal trial where there is a right to trial by jury, the court should proceed as if there will be a jury trial, and it is the court’s burden to ensure that, if there is to be a waiver, the defendant waives her right to trial by jury in accordance with the Arkansas Constitution and Rules of Criminal Procedure. Calnan, 310 Ark. 744, 841 S.W.2d 593. In short, there was no waiver in this case in the manner prescribed by law, and appellant’s case must therefore be reversed and remanded.

The state contends that appellant has not preserved her argument for appellate review. We must reject the state’s responsive argument on the basis of the Winkle case. The facts of Winkle are remarkably similar to the present case. In both cases, neither the appellants nor their counsel objected to the violation of their jury trial right. In Winkle, this court stated that denial of the right to trial by jury in a criminal case, without the requisite waiver in accordance with the law, is a serious error for which the trial court should intervene, and is therefore an exception to the contemporaneous objection rule. Winkle, 310 Ark. 713, 717, 841 S.W.2d 589, 591 (citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)).

The state contends Winkle is distinguishable from the present case because it involved a bench trial instead of a trial by jury. We find Byrd forecloses the possibility of affirming this case based on the state’s asserted distinction. Byrd states unequivocally that art. 2, § 7 clearly contemplates that the right to trial by jury means a right to trial by a twelve-member jury. Byrd, 317 Ark. 609, 612, 879 S.W.2d 435, 437.

The state cites Ford v. State, 222 Ark. 16, 257 S.W.2d 30 (1953), in support of its contention that the contemporaneous objection rule applies to this case. It is true, as the state contends, that Ford did dispose of the twelve-member jury argument by applying the contemporaneous objection rule. However, that rule was applied in Ford in the context of an invited error, inasmuch as Ford not only failed to object to being tried by a jury of less than twelve members, but agreed in open court to be so tried. There was no such agreement or waiver by appellant in the present case. Finally, two civil cases cited by the state as inconsistent with the result we reach today are not so. In Venable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985) and Mode v. Barnett, 235 Ark. 641, 361 S.W.2d 525 (1962), this court found that valid waivers occurred in the manner prescribed by law; specifically, in the manner prescribed by ARCP Rule 38 and the former statute which Rule 38 superseded, Ark. Stat. Ann § 27-1743.

Therefore, we conclude, given the absence of a waiver, appellant’s argument that she was denied her right to trial by jury may be raised without a contemporaneous objection. We are well aware of the view expressed by the state that some abuse of the criminal justice system could result from our construction of the Arkansas Constitution and the Arkansas Rules of Criminal Procedure. However, as the Arkansas Court of Appeals recently and accurately observed, “this may be the price the judicial system must pay to ensure that a defendant is not deprived of his fundamental constitutional right to a trial by jury.” Reaser v. State, 47 Ark. App. 7, 11, 883 S.W.2d 851, 854 (1994).

As for appellant’s Batson argument, we first observe that the record is insufficient to demonstrate error. We do not presume error, and it is therefore appellant’s burden to produce a record sufficient to demonstrate error. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). The record on appeal is confined to that which is abstracted. Id. The failure of the record to demonstrate error is perhaps due to the lack of attention that was given the Batson challenge by the parties and the trial court. Appellant’s counsel created confusion by using the term “jury pool” loosely. The record does not clearly indicate whether counsel was referring to the venire or the petit jury that tried this case. The prosecutor’s proffered racially-neutral explanation of “past performance” is painfully lacking in detail. The trial court’s cursory disposition of appellant’s challenge completely overlooked one juror the state had struck. Most importantly, the record does not disclose the total number of African-American jurors in the venire, the number of African-Americans who were seated on the petit jury, and whether any questions were asked during voir dire, be they racially-based or racially-neutral.

The order of conviction is reversed, and the case is remanded for a new trial.

Jesson, C.J., Glaze and Brown, JJ., dissent.

Tom Glaze, Justice,

dissenting.

Grinning relies on Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992) and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992) in arguing that the contemporaneous objection rule is inapplicable. I disagree. Both Calnan and Winkle involve cases in which no jury was provided. The court in Calnan relied in part on an exception to the contemporaneous objection rule, which allows for an exception when a trial court should intervene on its own motion to correct a serious error. The serious error was the total absence of a jury; that simply is not the issue in the case before us here. In both Winkle and Calnan an issue addressed was whether there had been a waiver of the right to a jury trial. The issue here simply does not go so far. We should affirm.

Jesson, C.J., and Brown, J., join this dissent.


text:
    Everett L. KING v. STATE of Arkansas
    CR 94-1205
    907 S.W.2d 127
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      John R. Hudson, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Donald L. Corbin, Justice.

On direct appeal, this court affirmed the convictions in the Washington County Circuit Court of appellant, Everett L. King, for possession of a controlled substance with intent to deliver and delivery of a controlled substance. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993). Appellant now appeals the trial court’s order entered on August 10, 1994 denying his petition for post-conviction relief filed pursuant to A.R.Cr.P. Rule 37. Jurisdiction of this case is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(5).

At the commencement of the hearing on the petition, appellant requested that Joel Huggins, appellant’s former trial counsel who was present at the hearing simply as a witness, be excused from the courtroom in accordance with A.R.E. Rule 615. Huggins’s representation of appellant at trial on the drug charges was the subject of the numerous ineffective assistance of counsel claims raised in the Rule 37 petition. The trial court, however, permitted Huggins to remain in the courtroom on the ground that he “might be considered a party[.]” Appellant then took the stand as the .first witness and was followed on the witness stand, in order, by Rebecca Anderson, Larry Walker, Huggins and Dana Watson; Huggins was then recalled as the final witness. Each witness presented testimony relevant to appellant’s ineffective assistance of counsel claims.

Appellant argues the trial court erred in refusing to exclude Huggins from the courtroom and asks this court to grant him a new Rule 37 hearing. Rule 615 provides as follows:

Exclusion of witnesses. — At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Rule 615 uses the word “shall” and, as this court has stated, it must be construed to be mandatory. Chambers v. State, 264 Ark. 279, 571 S.W.2d 79 (1978). Huggins did not become a party to the action by virtue of his status as appellant’s former trial counsel. Maddox v. State, 283 Ark. 321, 675 S.W.2d 832 (1984); Chambers, 264 Ark. 279, 571 S.W.2d 79. No argument is presented and the record does not reflect that Huggins was qualified to remain in the courtroom pursuant to either of the other exceptions enumerated in Rule 615. Therefore the trial court’s ruling was erroneous and Huggins should have been excluded. Maddox, 283 Ark. 321, 675 S.W.2d 832; Chambers, 264 Ark. 279, 571 S.W.2d 79.

The state argues that appellant is procedurally barred from raising this issue by his failure to raise an objection before the trial court to its refusal to exclude Huggins. We are not persuaded by this argument. Appellant’s invocation of his mandatory right to exclude Huggins pursuant to Rule 615 sufficed to bring this issue to the attention of the trial court.

In the Chambers and Maddox decisions, this court specifically ruled upon identical procedural errors under Rule 615, then proceeded to reach differing dispositions of those cases after addressing each appellant’s Rule 37 ineffective assistance of counsel claims. In Chambers, where we held the petitioner proved ineffective assistance of counsel, we reversed the denial of the Rule 37 petition and remanded the case for further proceedings. Six years later, in Maddox, where we held the ineffective assistance of counsel claim was neither proved nor a proper Rule 37 issue, we affirmed the denial of the petition.

In Maddox, we cited Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982), cert. denied, 472 U.S. 1019 (1985), for the proposition that we have generally held such erroneous procedure goes only to the witness’s credibility. After reviewing Allen and the cases cited therein, we observe today that, with one exception, the sequestration issue in each case arose when a witness violated Rule 615 after having been excluded by the trial court; in the exceptional case referred to, the trial court refused to exclude the proffered witness or to permit his testimony. Allen and the cases cited therein, therefore, are factually distinguishable from the present case in which the trial court itself violated Rule 615, ab initio, by denying appellant’s mandatory right to exclude Huggins and by permitting Huggins to testify.

The purpose of Rule 615, which is the same as the federal rule, can best be learned by studying the recommendations made to Congress. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). The Original Advisory Committee’s Note on Rule 615 provided in pertinent part as follows: “The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion. 6 Wigmore §§ 1837-1838.” 3 Jack B. Weinstein et al., Weinstein’s Evidence 615-3 (1995). Said another way, Rule 615 is employed to expose inconsistencies in the testimonies of different witnesses and “to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.” Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 215, 682 S.W.2d 457, 458 (1985). This court has held that Rule 615 is considered as effective as cross-examination in serving the court to garner the truth and should not be easily circumvented. Gustafson, 267 Ark. 278, 590 S.W.2d 853.

The present case particularly illustrates the need for Rule 615. Prior to taking the stand initially, Huggins heard the testimonies of appellant, Anderson and Walker, the three witnesses who preceded him. Prior to taking the stand as a recalled witness, Huggins heard the testimony of Watson, the only witness who was called after Huggins’s initial testimony was given.

Among his numerous allegations of ineffective assistance, appellant alleged Huggins was ineffective for failing to call Walker as a trial witness. At the hearing, Walker testified that he was at appellant’s residence on the day of appellant’s arrest on the drug charges, and saw the police informant purchase drugs from another person and not from appellant. Walker testified he was interviewed by Huggins prior to appellant’s trial, was present at the trial and ready to testify, but was told by Huggins that he would not be needed.

Huggins then took the stand at the hearing and testified that Walker’s testimony was different from the statement Walker had given Huggins in their pretrial interview. Huggins testified that Walker’s pretrial statement was that he saw the police informant and appellant go into another room in appellant’s residence, where they had remained for a short time. Huggins testified Walker’s pretrial statement was consistent with the prosecution’s evidence of the drug sale. Huggins testified he chose not to call Walker because he felt Walker’s testimony would be damaging and because Huggins’s trial strategy, in part, was to argue that Walker was present at appellant’s residence and could have participated in the drug sale, without calling Walker to the stand where Walker could deny participation. Huggins testified he would have called Walker to testify if Walker’s pretrial statement had been consistent with Walker’s testimony at the hearing.

No other evidence was introduced at the hearing with respect to the ineffective assistance claim concerning Walker. In its order denying the Rule 37 petition, the trial court held Walker’s testimony presented no evidence that could have assisted appellant in his defense at trial, and ruled Huggins was not ineffective for failing to call Walker.

To the extent the trial court based its denial of the Rule 37 petition upon conflicting testimonies presented by Huggins viz. the other witnesses at the hearing, appellant has demonstrated prejudice as a result of the trial court’s Rule 615 error. Appellant’s request for a new Rule 37 hearing is granted. In light of the taint cast upon the evidence presented at the hearing, we do not address appellant’s remaining arguments regarding the trial court’s rulings on his ineffective assistance of counsel claims for reversal of his convictions.

In Maddox, we stated that, as a practical matter, a rehearing would be a useless gesture, and therefore held the trial court’s Rule 615 error was not prejudicial under the particular circumstances of that case. In so ruling, we did not address the nature of the testimony, if any, given by Maddox’s former trial counsel at the Rule 37 hearing or its effect upon the trial court’s decision. To the extent it conflicts with our decision today, Maddox is overruled.

The order denying the petition is reversed and the case remanded for further proceedings in accordance with this opinion.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting.

As is becoming much too commonplace, this court again overrules another of its precedents — Maddox v. State, 283 Ark. 321, 675 S.W.2d 832 (1984). In overruling Maddox, the majority court reverses and remands this case for another proceeding which is clearly a total waste of everyone’s time.

The situation in Maddox is identical to the one here — the trial court ruled that the defendant’s former trial counsel, who was alleged to have been ineffective, could remain in the courtroom during the Rule 37 proceeding. Like the case at hand, the defendant appealed, arguing the trial court committed prejudicial error. The Maddox court disagreed and gave the following reasoning:

We next discuss the error by the court in allowing the trial counsel to remain in the courtroom during the Rule 37 proceedings. In an ineffective assistance claim the trial attorney does not become a party to the action. He should have been excluded from the courtroom during the testimony pursuant to the Rule 37 petition. We specifically ruled upon this issue as early as the case of Chambers v. State, 264 Ark. 279, 571 S.W.2d 79 (1978). We have generally held that such illegal procedure goes only to the credibility of the witness. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). Although it was clearly erroneous for the court to fail to exclude the trial counsel from the hearing the matter was heard before the court without a jury. As a practical matter a retrial would be a useless gesture in this case. Therefore, we hold that under the particular circumstances of this case the error was not prejudicial.

Like in Maddox, King can show no prejudice, even if it was trial court error under A.R.E. Rule 615 to allow his former defense counsel to remain present during the Rule 37 proceeding. Here, as is generally true in these matters, the trial judge conducting the Rule 37 proceeding is the same judge who had presided over the defendant’s earlier trial. King v. State, 314 Ark. 205, 862 S.W.2d 22 (1993). That judge, David Burnett, was well aware at King’s trial that King had a change in attorneys and King wanted a continuance which was denied. Judge Burnett knew King had changed the nature of his defense shortly before trial, and requested a subpoena for an additional witness. The judge stated that, although defense counsel had known of that new witness’s identity for some time, the judge still issued the subpoena. At trial, King also complained, unsuccessfully, concerning an absent witness.

Common sense tells me that Judge Burnett had sufficient background knowledge of King, his former trial counsel and the various trial strategies offered by both to permit him to hear and decide King’s Rule 37 petition, irrespective of King’s former counsel’s presence during the hearing. Nonetheless, this court is sending this case back to the judge so he can hear and decide this matter yet again. Forgive me if I predict Judge Burnett’s decision will be the same. Even so, I am sure new counsel, defenses and strategies will be offered, and this court will get another appeal. If this court followed its precedent in Maddox and the rationale therein, it would affirm this case in this appeal.

Here, the majority court should be reminded of a fundamental rule that, where a principle of law has become settled by prior decisions, it is binding on the courts and should be followed in similar cases. This rule is referred to as stare decisis. If precedent is erroneous or is no longer valid, I would not hesitate to overrule it. That is not the case here.

For the foregoing reasons, I respectfully dissent.


author: Donald L. Corbin, Justice.

text:
    Peter LAUDAN and Anna Moan v. STATE of Arkansas
    CR 95-481
    907 S.W.2d 131
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Roy Hodnett, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellants, Peter Laudan and Anna Moan, were separately convicted of one count of distribution of handbills in violation of the Fort Smith Municipal Code of Ordinances § 14-51, and assessed a fine of $100.00 and court costs of $62.26. Their cases were consolidated for appeal. Appellants assert Ordinance § 14-51 is unconstitutional because it is overbroad and impermissibly burdens their rights to free speech and exercise of religion protected by the First Amendment to the United States Constitution. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3) and (d)(1). We affirm the judgments of the trial court.

We first observe that appellants failed to obtain a ruling from the trial court on the issue of the constitutionality of Ordinance § 14-51. This court has repeatedly stated that failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review of the issue on appeal. E.g., Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992). Appellants argue the judgments of conviction implicitly contain the trial court’s ruling that Ordinance § 14-51 is constitutional because the constitutionality of the ordinance was the only contested issue at trial. Assuming, arguendo, the judgments of conviction implicitly contain the trial court’s ruling on the constitutionality of Ordinance § 14-51, we conclude other procedural obstacles remain that preclude our consideration of this appeal on its merits.

First, we observe that appellants’ overbréadth argument is raised for the first time on appeal. Hence, no ruling was obtained from the trial court on this issue, even implicitly, thereby precluding its review on appeal. Donald, 310 Ark. 197, 833 S.W.2d 770; Bonds, 310 Ark. 541, 837 S.W.2d 881. Second, appellants’ arguments that were raised at trial, i.e., that Ordinance § 14-51 violated their First Amendment rights to free speech and exercise of religion, are nonetheless precluded from review on appeal by appellants’ failure to obtain a ruling from the trial court specifying which of the three subsections of Ordinance § 14-51 were violated.

Ordinance § 14-51, entitled “Distribution of handbills and other hand-distributed advertisements,” provides, in full, as follows:

(a) It shall be unlawful for any person to throw or deposit any commercial or noncommercial handbill or other hand-distributed advertisement in or upon any sidewalk, highway, street, boulevard, alley or other public way or in or upon any public park, square, public plaza, public recreational area or public building within the city, provided however, that it shall not be unlawful on any sidewalk, street, or any other public place in the city for any person to hand out or distribute any commercial or noncommercial handbill or other hand distributed advertisement to any person willing to accept it.
(b) It shall be unlawful for any person to drop, deposit, or distribute any commercial or noncommercial handbill or other hand-distributed advertisement, in or upon any private premises within the city, except by handing and transmitting any such handbill or advertisement directly to the owner, occupant or other person then present in or upon such private premises, or by so placing or depositing said handbill or advertisement so as to secure and prevent same from being blown or carried about by the elements from any such premises to other public or private places. This subsection does not apply to those commercial or noncommercial handbills or other hand-distributed advertisements which the owner or occupant of the premises has given permission to be delivered to the owner or occupant of the premises or for which the owner or occupant of the premises has otherwise contracted for, solicited for, or otherwise authorized the placing or depositing of such handbills or advertisement upon the premises.
(c) It shall be unlawful for any person to place or deposit any commercial or noncommercial handbill or other hand distributed advertisement upon any vehicle not his own, or in his possession, upon any public street, highway, sidewalk, road, or alley within the city, providing, however, that it shall not be unlawful upon any such street or other public place for a person to hand out and distribute to the receiver therefor, any handbill to any occupant of the vehicle that is willing to accept it. [Emphases added.]

A cursory reading of Ordinance § 14-51 reveals that subsections (a) and (c) address the regulated activity when it occurs in or upon the public property enumerated therein, whereas subsection (b) addresses the regulated activity when it occurs in or upon private premises. Only subsection (c) expressly addresses the regulated activity when it involves placing literature upon vehicles. Appellants contend they have “standing to challenge Sub-section (c) of the Ordinance since they were found guilty of violating the Ordinance by placing [literature] on parked automobiles.” The state disagrees and asserts appellants were convicted under subsection (b) because their conduct occurred on private premises.

The record contains no ruling regarding whether appellants’ conduct occurred on public property, private premises, or both, within the meaning of Ordinance § 14-51. The evidence introduced at trial showed that appellant Laudan was arrested by an off-duty police officer who observed him placing religious tracts on the windshields of unoccupied vehicles parked in the parking lot of the Sutherland Lumber Company in Fort Smith. The evidence introduced at trial showed that appellant Moan was arrested pursuant to a report made by the owner and manager of Ci-Ci’s Pizza in Fort Smith, who testified he observed Moan placing copies of religious tracts “on a row of vehicles immediately to my right between my pizza place and Dr. Burd’s veterinarian clinic,” after another restaurant employee reported to him that Moan was putting handbills on the windshields and sticking them through the open windows of vehicles parked in the restaurant’s parking lot. No finding of fact was made as to whether the parking lots were public property or private premises within the meaning of Ordinance § 14-51.

Our review must be limited to those subsections of Ordinance § 14-51 that were violated by appellants’ actions. See United States v. Grace, 461 U.S. 171, 175 (1983) (limiting its affirmance of the lower appellate court’s holding purporting to declare a federal statute unconstitutional in its entirety to that portion of the statute actually violated by the appellants’ conduct). On this record, however, we cannot determine which subsections of Ordinance § 14-51 were violated by appellants, and we will not speculate as to that determination.

The burden of providing a record sufficient to show that reversible error occurred was upon appellants. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994). We conclude appellants have failed to carry their burden in this matter. Ordinance § 14-51 is presumed to be constitutional and the burden of showing its invalidity was upon appellants. Board of Adj. of Fayetteville v. Osage Oil & Transp., Inc., 258 Ark. 91, 522 S.W.2d 836 (1975); accord Mt. Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993) (holding that a municipal ordinance is entitled to the presumption of validity that legislative enactments ordinarily receive). Appellants have failed to carry the burden in this matter, as well.

Affirmed.


text:
    Paul Edward SCHALSKI v. STATE of Arkansas
    CR 95-599
    907 S.W.2d 693
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      John Joplin, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Paul Edward Schalski, appeals the judgment of the Sebastian County Circuit Court convicting him of rape and sentencing him as a habitual offender to sixty years imprisonment. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). He raises four points for reversal, all of which involve admissibility of evidence. We find no error and affirm.

Appellant does not challenge the sufficiency of the evidence, so there is no need to repeat it in great detail. Essentially, the evidence showed that appellant offered the victim a ride home from a bar, told her he would take her to her friend’s house, instead drove to a remote wooded area, where he held a knife to her throat and back and raped her orally and vaginally several times, beat her, bit her, kicked her in the groin with his cowboy boots, bruised her breasts and burned them with a cigarette. Appellant left the victim in the woods without her clothing. She made her way to a highway where someone picked her up, covered her and took her to the police station. In his own defense, appellant testified he did not commit the rape.

Appellant’s first assignment of error is the trial court’s ruling allowing the state to impeach appellant’s credibility by introducing evidence of his previous conviction for false imprisonment. Appellant relies heavily on Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), a case in which the appellant was convicted of the sexual abuse of a nine-year-old boy. In Jones, this court held the trial court erroneously allowed the state to introduce evidence of Jones’s prior conviction for the rape of a little boy. The Jones court concluded the prejudicial effect of the previous rape conviction clearly outweighed its probative value on the issue of credibility, in part because sexual abuse of a child is such a particularly shameful and outrageous crime and in part because Jones had two previous convictions for burglary and theft that could have been used to impeach his credibility as a convicted felon. Appellant argues the crime of false imprisonment is similar to the present case in that the state showed the victim was taken into a secluded area and held against her will as she was raped and beaten. Furthermore, appellant emphasizes the state was also allowed to impeach his credibility with his prior conviction for theft by deception. Thus, appellant argues, his prior conviction for false imprisonment had scant probative value as to his credibility.

The case upon which appellant primarily relies, Jones, 274 Ark. 379, 625 S.W.2d 471, was overruled to the extent it was inconsistent with the ruling announced in George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991). In George, this court considered the admissibility of prior convictions under A.R.E. Rule 404(b) and concluded that prior convictions of similar sexual abuse crimes are admissible under Rule 404(b) as probative of motive, plan or intent. However, the George court did not consider the issue before us today: the admissibility of prior convictions of similar crimes for impeachment purposes under A.R.E. Rule 609(a).

When a defendant in a criminal case testifies in his own behalf, his credibility is placed in issue, and the state may impeach his credibility by introducing evidence of prior felony convictions in accordance with Rule 609. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994). The trial court has considerable discretion in determining whether the probative value bearing on credibility of a prior conviction outweighs its prejudicial effect, and we will not reverse that decision absent an abuse of discretion. Id. However, for prior convictions involving crimes of dishonesty, the trial court need not weigh the prejudicial effect against the probative value. See Jones, 274 Ark. 379, 625 S.W.2d 471.

The admissibility of a prior conviction for impeachment purposes is to be determined on a case-by-case basis. Thomas, 315 Ark. 518, 868 S.W.2d 85. Factors to consider include the impeachment value of the prior crime, the date of the conviction and the defendant’s subsequent history, the similarity between the prior conviction and the crime charged, the importance of the defendant’s testimony, and the centrality of the credibility issue. Id. This court has consistently allowed prior convictions to be used for impeachment purposes, even when the convictions are for similar crimes to those charged. Id. Even in Jones, 274 Ark. 379, 625 S.W.2d 471, this court acknowledged there may be instances in which proof of an earlier conviction for the same crime as the one on trial may be admissible. Rule 609 places limitations on the time and nature of the prior convictions used for impeachment and on their probative value, but does not place any limitation on the number of prior convictions that can be used for impeachment. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680, cert. denied, 464 U.S. 865 (1983).

Considering the factors stated in Thomas, we find no merit to appellant’s argument. The crime of false imprisonment has no sexual overtones of necessity and is therefore dissimilar to the crime of rape. Appellant was the only witness in his behalf, his testimony was therefore important. Because this was a rape case with only two witnesses, the victim and the rapist, the credibility of appellant’s testimony as the accused rapist was a critical issue. Given the foregoing considerations and the absence of limitations on the number of admissible prior convictions, we cannot say the trial court abused its discretion in allowing impeachment by appellant’s false imprisonment conviction.

Appellant’s second assignment of error is the trial court’s ruling allowing rebuttal testimony by the victim to identify appellant’s voice. After appellant took the stand and denied committing the rape, the state recalled the victim who testified unequivocally that she heard appellant’s testimony in court and that his voice was the voice of the person that raped her. Appellant contends this was improper rebuttal evidence because it was not in reply to any evidence offered in his case and should have been presented during the state’s case-in-chief with the victim’s in-court identification of appellant as the rapist.

This argument is without merit. This court has defined genuine rebuttal evidence as evidence offered in reply to new matters. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 114 S. Ct. 1306 (1994) (quoting Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986)). Evidence is still categorized as genuine rebuttal evidence even if it overlaps with the evidence in-chief so long as it is responsive to evidence presented by the defense. Id. The victim’s voice identification in this case was responsive to appellant’s testimony that he did not rape her and was therefore genuine rebuttal evidence. Identification was a critical issue in this case. Rebuttal evidence is a discretionary matter with the trial court, Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982), and we find no abuse of that discretion here.

Appellant’s third assignment of error is the admission of photographs of the victim taken at a hospital showing her bruises and injuries. Appellant argues the photographs were inflammatory and prejudicial and, because he did not dispute that the victim suffered these injuries, not relevant to any issue in the case. The state correctly points out that a defendant cannot prevent the admission of photographs simply by conceding the fact of the crime. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). Moreover, photographs of a rape victim’s injuries are relevant and admissible as proof of the element of forcible compulsion. Id. Even inflammatory photographs are admissible in the trial court’s discretion if they tend to shed light on any issue or enable the jury to better understand a witness’s testimony. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

The trial court allowed the state to admit four photographs in this case. In its brief, the state describes these photographs as depicting different areas of the victim’s body: State’s Exhibit 1 showed the victim’s face with bite marks and a broken nose; State’s Exhibit 2 depicted knife wounds and scratches on the victim’s back; State’s Exhibit 3 showed numerous scratches on the victim’s legs; and State’s Exhibit 4 depicted yellow and purple bruises on the victim’s vaginal area. Despite the foregoing description, we are unable to address this issue fully because appellant’s abstract contains only photocopied black-and-white reproductions of the photographs. Simply put, we cannot tell what these photographs depict, and we certainly cannot tell whether they were without probative value. Consequently, we cannot say the trial court abused its discretion in admitting the four photographs. Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990).

As appellant’s fourth and final assignment of error, he challenges the denial of his motion to suppress a police officer’s observations of appellant’s truck and photographs of the truck. Appellant contends the evidence was gained as a result of a pretextual arrest for failure to appear because the officer knew appellant was a suspect in a rape case. Appellant argues he was prejudiced because the testimony and photographs were important to the state’s case since the victim had described in detail the truck the rapist drove and items contained in the truck. The trial court denied the motion to suppress because the officer was legally at the residence.

On appeal, the state does not attempt to justify admission of the challenged evidence. Rather, it argues appellant has not demonstrated prejudice resulting from the denial of appellant’s motion to suppress. Specifically, the state contends the challenged evidence was cumulative of other evidence admitted without appellant’s objection, namely the testimonies of Cami and Jason Patillo, and of appellant himself.

The victim described the truck her assailant drove as a black Ford pickup with a column shift and indoor-outdoor carpet in the floorboard. She aiso described two items hanging from the rearview mirror, an arrowhead and a plastic caterpillar that was changing into a butterfly. Cami Patillo testified she saw appellant’s truck on the morning after the rape occurred. She stated she observed he had wrecked his truck and that an arrowhead and butterfly were hanging from the rearview mirror. Cami’s husband, Jason Patillo, testified he saw appellant’s truck on the morning after the rape occurred and observed large scratches on the exterior. He also noticed an arrowhead and a butterfly hanging from the rearview mirror. On cross-examination and without objection, appellant testified he had scratches on his truck and that he had a butterfly and arrowhead hanging from the rearview mirror.

Even assuming without deciding that the challenged evidence was erroneously admitted as the result of an illegal search, given the foregoing evidence, which was admitted without objection by appellant, we agree with the state that the challenged evidence was cumulative and therefore appellant has not demonstrated prejudice from its admission, illegally obtained evidence that is erroneously admitted is subject to the constitutional harmless error analysis. Fahy v. Connecticut, 375 U.S. 85 (1963). Before a federal constitutional error can be held harmless, this court must declare it harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967) (cited with approval in Pollard v. State, 258 Ark. 512, 527 S.W.2d 627 (1975)). Given the fact that the challenged evidence was admitted at trial through four other witnesses, two of whom were disinterested and one of whom was appellant himself, we cannot say the challenged evidence might have contributed to the conviction. We therefore conclude it was harmless beyond a reasonable doubt. See Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992) (holding that similar evidence admitted without objection is cumulative and not prejudicial).

Appellant’s four assignments of error are without merit. The judgment of conviction is therefore affirmed.


author: Robert L. Brown, Justice. David Newbern, Justice,

text:
    Albert Lewis HUGGINS v. STATE of Arkansas
    CR 94-564
    907 S.W.2d 697
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Addie M. Burks, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is a capital case where the appellant, Albert Lewis Huggins, was convicted of murdering Clark White and sentenced to life imprisonment without parole. Huggins was further convicted of theft of an automobile and sentenced to 20 years imprisonment. On appeal, he argues that the evidence was insufficient to sustain the judgments. We disagree, and we affirm.

Clark White, also known as Troy White, was an employee of the Crittenden County Sheriff’s Department Drug Task Force. Although White worked for the Drug Task Force, he had a friendship with Huggins and a third man, Mark Lewis, also known as Renee Lewis, which involved smoking crack cocaine together. Lewis, who testified for the State at the ensuing trial, provided much of the factual background in this case.

Clark White had a credit arrangement with Huggins and Booker T. Shelton, a crack cocaine supplier in Memphis, Tennessee. Huggins would provide cocaine to White on credit with White using personal property as collateral for payment. Huggins in turn purchased the crack cocaine from his supplier, Booker Shelton. The “pawned” property would be released to White when he paid for the cocaine. On January 8, 1993, a Friday, White purchased crack cocaine from Huggins and smoked it with Lewis and Huggins at Huggins’s residence in Memphis. They also drank alcoholic beverages. Early Sunday morning, January 10, 1993, White had spent all of his money, and Huggins sold him more crack cocaine on credit, using a 1987 Pontiac Firebird as collateral. White drove the Firebird, but it was actually owned by the Crittenden County Sheriff’s Department. Later that day, White returned to Arkansas in a different car and cashed a $300 check at a convenience stroe to satisfy the debt to Huggins. The three men then went back to Huggins’s home in Memphis to smoke more crack cocaine.

Later on that Sunday, White’s money supply was again depleted, and again he used the Pontiac Firebird as collateral for $400. The three men continued to smoke crack cocaine in Memphis into Monday, January 11, 1993, but on that day they returned to Crittenden County so that White could obtain money to repay Booker Shelton and remove the Pontiac Firebird from “hock.” Shelton had told Huggins to return from Arkansas with either the car or the money to pay the debt.

Huggins and Shelton would not allow White to drive to Arkansas alone in the Pontiac Firebird because they were afraid that White would not come back. Huggins drove the car with White and Lewis as passengers to White’s trailer home near Crawfordsville in Crittenden County. White’s parents and brother lived next to him in separate trailers. During that same day, White began preparing chicken for the three men to eat, but at some point White and Lewis left the kitchen area to do laundry, leaving Huggins there alone. Prior to leaving, White had pulled “something” out of one of the cabinets, according to Lewis, and cut it open. When Lewis and White returned to the kitchen, Lewis saw Huggins holding White’s cup and pouring beer into it. The three men had eaten the prepared food and returned to the living room area, when White “keeled over” and began foaming at the mouth. According to Lewis, he immediately got up to run to get White’s mother for help, but Huggins stopped him, told him not to worry, and asked him for assistance in moving White to the couch. Huggins assured Lewis that White would be all right.

After White collapsed, Lewis heard something hit the garbage can in the kitchen. (Lewis earlier testified that this occurred when the three men were in the kitchen but later clarified this point on direct examination.) When he looked in the garbage can, he saw a plastic bottle of Sleep Away, a barbiturate agent used for putting animals to death. White had been issued the Sleep Away in 1989, when he had worked as an ordinance officer for the City of Earle. Lewis saw Huggins remove the Sleep Away container from the garbage can with a paper towel and put it in a basket or bowl in the kitchen area. Huggins subsequently admitted in a statement to State Police Investigator Edward Fitzpatrick that he used the paper towel because he did not want to leave his fingerprints on the bottle at that time. When Lewis asked Huggins what Sleep Away was, Huggins replied that it was poison for putting dogs to sleep.

Huggins got a cloth towel, put some ice in it, and placed it on White’s forehead. White was still foaming at the mouth. The men stayed in the trailer for another ten minutes and then left for Memphis in the Pontiac Firebird. Both Huggins and Lewis knew at that time that the car was owned by the Crittenden County Sheriff’s Department. On the way to Memphis, Tennessee, Lewis asked Huggins where the Sleep Away bottle was and Huggins replied, “Goddamn, I forgot it.” The two men took the car to Memphis and gave it to Booker Shelton. They did not return to White’s trailer home. The Firebird was found some days later in Memphis in the possession of Booker Shelton.

White’s body was found four days later on January 15, 1993, by his brothers. Subsequent medical examination revealed that his death was caused by a fatal dosage of pentobarbital, a barbiturate which is the active ingredient in Sleep Away. Both Lewis and Huggins were charged with premeditated capital murder in connection with the death of Mark White. Lewis pled guilty to second degree murder and theft of property and received a sentence of five years for murder and theft of property and received a sentence of five years for murder and a suspended sentence of 20 years for theft. On cross examination, Lewis first admitted and then denied making a statement to law enforcement officers that Clark White had pulled a jug from the cabinet, cut it open, and thrown the container in the trash can. Also, on cross examination, he denied making a statement that he did not see anyone but White pour contents from the container into his own cup. Lewis’s statement to law enforcement officers was not introduced into evidence by the State or by the defense.

Following the jury trial, Huggins was convicted of capital murder. During the penalty phase, Huggins told the jury that he “panicked” after White drank the Sleep Away. He was sentenced to life imprisonment without parole. He was further convicted of theft of the Pontiac Firebird and sentenced to 20 years.

The crux of Huggins’s appeal centers on whether the State provided sufficient evidence to support the two judgments of conviction. Evidence is sufficient to support the two judgments of convictions. Evidence is sufficient if it is substantial, that is, if the trier of fact can reach a conclusion without resorting to speculation or conjecture. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). The evidence must also be forceful enough to compel reasonable minds to reach a conclusion one way or ther other. Id. When a defendant challenges the sufficiency of the evidence, we do not weigh the evidence but review it in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.; Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

The evidence of Huggins’s guilt in this case was circumstantial. Circumstantial evidence may constitute substantial evidence, but to do so it must exclude every other reasonable hypothesis consistent with innocence. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Paige v. State, 45 Ark. App. 13, 870 S.W.2d 771 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Trimble v. State, supra; Paige v. State, supra; Sheridan v. State, supra; Bennett v. State, supra.

Following these precepts for determining substantial evidence, we first take note of the fact that it is uncontroverted that White’s death was caused by a fatal dosage of pentobarbital which is the active ingredient found in Sleep Away. Viewing this evidence in the light most favorable to the State, the following proof was amassed by the State. Huggins had the opportunity to add Sleep Away to his drink container because Huggins was left alone in the kitchen while Lewis helped White take some laundry into another room. Huggins then held White’s cup and poured beer from his drink container into it. After White keeled over, Lewis heard something hit the garbage can, and when Lewis looked into the garbage can, he saw a Sleep Away container. Huggins told Lewis that the Sleep Away was a poison. After collapsing, White was foaming at the mouth and was unconscious. When Lewis began running for the door to get help from White’s mother, Huggins stopped him and stated that White would be all right. Huggins and Lewis placed White on the couch, and Huggins put a towel on his head. Huggins removed the Sleep Away bottle from the garbage can with a paper towel so that he would not leave his fingerprints. On their way to Memphis, Huggins remarked to Lewis when reminded of the Sleep Away container, “Goddamn, I forgot it.” Neither man notified medical or law enforcement authorities; nor did they contact White’s family about White’s unconscious state or the fact that he was foaming at the mouth. They further did not return to White’s trailer over the next four days to check on him. We conclude that the State’s evidence that Huggins perpetrated White’s murder was ample in this case. Furthermore, we cannot say that the jury clearly erred in determining that there was no other reasonable hypothesis which explains White’s death in light of these circumstances.

We next turn to the issue of the theft of the 1987 Pontiac Fire-bird. A person is guilty of theft, if he “[k]nowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with the purpose of depriving the owner thereof.” Ark. Code Ann. § 5-36-103(a)(1) (1987). Again, Huggins asserts that there is no substantial evidence to support his conviction for the theft of the Pontiac Fire-bird owned by the Crittenden County Sheriff’s Department. We believe that the following evidence is substantial.

Although White’s car was actually owned by the Crittenden County Sheriff’s Department, he often used the car as collateral to finance his substance abuse. White “pawned” the care in Memphis on Sunday, January 10, 1993, to purchase more crack cocaine. He then needed to travel to Arkansas to obtain the money to pay off the debt. Lewis testified that Booker Shelton, Huggins’s crack cocaine supplier, instructed Huggins to return from Arkansas with either the car or the money. Huggins and Shelton would not allow White to go back to Arkansas in the car alone because they were worried that White would not return to Memphis. Huggins, Therefore, drove the three men to White’s trailer. When Huggins and Lewis took the car after White collapsed on January 11, 1993, they both knew that the Sheriff’s Department owned the car. Regardless of that fact, they delivered the car to Shelton.

The jury found Huggins guilty of theft and, no doubt, determined that he knowingly exercised unauthorized control of a car which belonged to the Sheriff’s Department and not to White. The jury further could reasonably have inferred from what ultimately transpired that Huggins exercised unauthorized control of the vehicle in Arkansas for the purpose of delivering it to Booker Shelton in Memphis. That is enough to constitute substantial evidence of theft.

There is one final point. The theft information in this case charged Huggins with committing the offense on January 11, 1993, and the State argued in opposition to Huggins’s motion for directed verdict that the theft occurred after White collapsed. At one point in its ruling, the trial court stated that the theft occurred on January 10, 1993, at the time of the “pawn” of the car in Tennessee. We disagree with that statement because it runs contrary to the information and to the State’s theory of the case. Nonetheless, the trial court correctly denied the motion, even if for the wrong reason, and we affirm its decision. See Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993).

The record has been reviewed for other reversible error pursuant to Supreme Court Rule 4-3(h), and none has been found.

Affirmed.

Dudley, Newbern, and Roaf, JJ., dissent.

David Newbern, Justice,

dissenting.

In its opinion, the majority has found that Albert Lewis Huggins’s conviction of capital murder was supported by substantial evidence. I disagree. I also conclude the theft conviction must be reversed. Mr. Huggins may have been proven guilty of theft by receiving under Ark. Code Ann. § 5-36-106 (Repl. 1993), an offense with which he was not charged, but he was not proven guilty of theft of property as defined in Ark. Code Ann. § 5-36-103(a)(l) (Repl. 1993).

1. Murder

With respect to the murder charge, the case against Mr. Huggins was entirely circumstantial. While it is well established that circumstantial evidence can constitute substantial evidence, the nature of such evidence necessarily requires a jury to rely on inferences in reaching a decision to convict the accused. A jury has a special role in circumstantial evidence cases because to render a verdict of conviction it must find the evidence is such as to exclude every other reasonable hypothesis of guilt. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974). The standard of review of convictions based on circumstantial evidence must insure that the jury, after evaluating the evidence, was forced to conclude that the defendant was guilty of the crime charged, and that the verdict was not based on speculation and conjecture. See Brown v. State, 258 Ark. 360, 524 S.W.2d 616 (1975).

Although the decision that only one hypothesis, i.e., one suggesting guilt of the accused, is acceptable belongs to the jury, our review should consider whether the evidence was sufficient to exclude other reasonable hypotheses. We have considered the existence (or nonexistence) of a hypothesis consistent with innocence when reviewing the sufficiency of the evidence. An example is Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993), in which we found sufficient evidence to support the conviction but discussed and rejected an alternative hypothesis.

Although our consideration of the special role of the jury in circumstantial evidence cases, as in the Dixon case, may go somewhat beyond the standard of review frequently enunciated, it is the better approach, and it should always be used in cases where the circumstantial evidence connecting the defendant to the crime is sparse. In such situations, our determination whether the jury reached its verdict through speculation and conjecture of necessity takes into account other hypotheses, consistent with innocence, that would explain the defendant’s behavior. Other courts have followed this course. See, e.g., Chaudoin v. State, 362 So.2d 398 (Fla.App. 1978), in which the following appears:

Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, is not sufficient to sustain the conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence. So it is in the instant case we find implicit in the circumstantial evidence offered a possibility of innocence which is equally as strong as the possibility of guilt.

If the circumstantial evidence against Mr. Huggins on the charge of capital murder is reviewed according to this standard, I cannot conclude the conviction was supported by substantial evidence. The majority opinion indicates that substantial evidence of Mr. Huggins’s guilt lies in the opportunity that he had to place the poison in Clark White’s drink, which is the period when Mr. Lewis and Mr. White went to the back of the trailer, as well as Mr. Huggins’s subsequent efforts to conceal the fact that he had been present when Mr. White died. In addition, the majority mentions, as a possible motive, that Mr. Huggins was under orders to return to Memphis with either the money or the car.

The most troubling aspect of the majority view is that the undisputed instrument of Mr. White’s death was just as likely, and perhaps even more likely, to have been under Mr. White’s control rather than that of Mr. Huggins. Other evidence suggests at least one alternative explanation for Mr. White’s demise.

Captain Greg Martin testified that Mr. White was an officer with the Earle Police Department before he joined the Crittenden County Sheriff’s Department. Mr. White’s first assignment with the Earle Police was as an ordinance officer, whose duties included euthanizing stray dogs not claimed by their owners. Captain Martin testified that Mr. White used Sleep Away for that purpose. On cross-examination, he stated Mr. White did not return the bottle of Sleep Away that he had in his possession when his tenure as ordinance officer was over. Mr. White thus had possession of a container of Sleep Away as well as knowledge concerning its effects as an anesthetic.

As the majority points out, Mr. Lewis testified that while he, Mr. Huggins, and Mr. White were in the kitchen, he saw Mr. White pull “something” out of the cabinet and cut it open. Mr. Lewis’s testimony supports a conclusion that Mr. White not only removed the Sleep Away from the kitchen cabinet, but also made it possible for the substance to be poured.

Dr. John Stevens, a veterinarian from West Memphis, testified that Sleep Away is normally administered intravenously to dogs. The doctor also testified that Sleep Away contains a 26% concentration of the barbiturate agent sodium pentobarbital, which is a common anesthetic. Dr. Stevens also testified that whether or not Sleep Away is lethal depends upon the amount actually consumed, and he stated that if a dog were given less than the lethal amount, he would merely sleep, or be in what the doctor called “a plane of anesthesia.”

Clark White and his friends had, according to Mr. Lewis, smoked 50 or 60 rocks during three days. They had been without sleep all that time. Mr. White was already late in reporting to the State Police in Jonesboro on his new assignment. It seems plausible to me that he may have wanted to get some sleep. He could easily have miscalculated the necessary dosage.

Suicide is another reasonable hypothesis. Here was a police officer who had pawned the State’s vehicle to drug dealers, been on a three-day crack binge, and missed his reporting date in Jonesboro. He might have seen death as the only way out.

Under these circumstances, the State’s evidence regarding Mr. Huggins’s motive and opportunity to commit capital murder, as well as his efforts to conceal the cause of Mr. White’s death, must point so forcefully to his guilt that all other hypotheses are excluded. I do not believe that it does.

The majority contends that Mr. Huggins had the opportunity to put the Sleep Away in Mr. White’s drink when Mr. White and Mr. Lewis left Mr. Huggins in the kitchen and went to the back of the trailer. Mr. Lewis’s testimony revealed that up to that point, the three men went into the kitchen, began to cook, and Mr. White pulled “something” from the cabinet and cut it. Mr. Lewis also testified that while they were in the kitchen, he heard something, which he eventually discovered to be the container of Sleep Away, “hit the can.” If the container of Sleep Away was thrown out while all three men were in the kitchen, Mr. Lewis’s testimony suggests that the substance was dispensed in Mr. White’s presence, if not by White himself. If that is true, then the Sleep Away was put in Mr. White’s drink before Mr. Huggins’s was left alone in the kitchen.

The majority has interpreted Mr. Lewis’s testimony to indicate that he heard the container of Sleep Away “hit the can” after Mr. White “keeled over” in the living room. That is an erroneous interpretation. The relevant portions of Mr. Lewis’s testimony during direct examination are as follows:

A. That’s when, well, after we was in the kitchen, Clark was behind me, and what he was doing behind me I really didn’t know.
Q. Who was?
A. Clark was standing behind me in the kitchen. We all was in the kitchen together, and he was behind me in the kitchen. And, you know, I seen a knife laying on the cabinet, but I didn’t know what the knife was for.
Q. Okay.
A. So I, you know, everything went so fast, and I heard something hit the garbage can.

Then, later during direct examination, Mr. Lewis testified about what happened after Mr. White collapsed:

A. Well, after Clark fell over, I remember hearing something hit the garbage can, so I walked back over to the garbage can and saw what it was.
Q. What was it?
A. It was a container of Sleep Away.
Q. All right. And when was this?
A. This was after we had went in the living room and sat down.
Q. So I get this right, what is the time frame about said you heard him hit the ground?
A. He hit the floor.
Q. All right. And then you heard what?
A. I remember the container hitting the garbage can.

Rather than changing his testimony to say that he heard the bottle being thrown away after they were all in the living room, Mr. Lewis’s testimony indicates that Mr. White’s falling over made him recall hearing an object hit the garbage can, and he walked over to see what it was.

The majority opinion also implies that Mr. Huggins had a motive to commit murder because he was under orders to return to Memphis with either the money or the car. Arguably, if Mr. White could not produce the money to take the car out of pawn, Mr. Huggins would have had to return to Memphis with the car. However, there is no evidence whatsoever to indicate that Mr. White could not pay to get the car out of pawn as he had done earlier in the weekend. Therefore, there is no evidence that indicates why Mr. Huggins would have to murder Mr. White in order to obey his orders.

The majority also emphasizes that Mr. Huggins’s guilt is indicated by his efforts to conceal the fact that Clark White died from poisoning. However, the events of the weekend preceding Mr. White’s death support other explanations for Mr. Huggins’s behavior. The evidence presented by the State revealed that the entire weekend was filled with illegal activity, including the sale and consumption of crack cocaine, as well as the acceptance of a pawn arrangement by a large drug operation in which Mr. Huggins was a major participant. Mr. Huggins, as a collector for the operation, was under orders to return to Memphis with the money or the car. Under these circumstances, it is likely that Mr. Huggins sought to conceal the nature of Mr. White’s death in order to avoid implicating his drug operation in Mr. White’s demise and returning to Memphis without something to satisfy the pawn arrangement.

The State’s evidence concerning motive, opportunity, and the concealment of the manner of death simply does not force a conclusion that Mr. Huggins murdered Mr. White. In these circumstances, the evidence is not sufficient to support the murder conviction.

2. Theft

As to the theft conviction, the majority relies on proof that Mr. Huggins and Mr. Lewis, with knowledge that the Pontiac Firebird belonged to the Crittenden County Sheriff’s Department, returned to Memphis in the vehicle on January 11, 1993. Specifically, the majority has concluded that Mr. Huggins’s behavior amounted to the exercise of unauthorized control over the automobile, as prohibited by Ark. Code Ann. § 5-36-103(a)(l). I disagree.

The Trial Court was correct when he concluded that a theft occurred when Clark White pawned the vehicle, which he knew belonged to the Crittenden County Sheriff’s Department. In its brief, the State rejects that conclusion, however, because it would mean that the offense occurred outside Arkansas and thus outside the jurisdiction of the Circuit Court. The argument is that we should affirm the conviction because the theft occurred when Mr. Huggins and Mr. Lewis drove the car back to Memphis after leaving Mr. White’s trailer. That is wrong because the only evidence is that Mr. White, who had a possessory interest in the car, had previously transferred possession of the car to Mr. Huggins. Huggins took possession of the car in Memphis, and his superior in the drug operation cautioned him not to allow Mr. White to drive the car for fear he would not bring it back to Memphis.

Albert Huggins’ control of the vehicle does not constitute “theft” as is defined in Ark. Code Ann. § 5-36-103(a). The more appropriate charge under these circumstances would have been for theft by receiving, which is set forth as follows in Ark. Code Ann. § 5-36-106:

(a) A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.
(b) For purposes of this section, “receiving” means acquiring possession, control, or title or lending on the security of the property.
(c) The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen.

Mr. Huggins could have been charged with theft by receiving even though he initially received the car in Memphis because theft by receiving is a continuing offense. State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978). Mr. Huggins was simply mischarged, and we should not affirm a conviction of an offense which did not occur.

I respectfully dissent.


author: Robert L. Brown, Justice.

text:
    Jed LINEBERRY and Heather Renee Lineberry v. STATE of Arkansas
    CR 95-532
    907 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Sam Sexton, III, for appellants.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

On July 22, 1994, the appellants, Jed Lineberry and Heather Renee Lineberry, were found guilty by the Ft. Smith Municipal Court of violating the Used Motor Vehicle Buyers Protection Act and fined $250 plus costs. On Monday, August 22, 1994, the Lineberrys paid the municipal court clerk the fee for the record to appeal the judgment of conviction to circuit court. The payment of the fee for the appeal was actually paid on the thirty-first day following the entry of judgment because the thirtieth day fell on a weekend. The record of the municipal court proceeding was not filed in circuit court until August 23, 1994, which was the thirty-second day from entry of judgment.

The prosecutor moved to dismiss the Lineberrys’ appeal because the record was not lodged in circuit court within 30 days as required by Inferior Court Rule 9(a). The Lineberrys responded that the fault for lateness lay with the municipal court clerk and that Rule 9(a) was unconstitutional as applied because it violated their right to trial by jury and their due process rights as protected by the Arkansas and U.S. Constitutions. The circuit court dismissed the appeal as being untimely filed and remanded the matter to Ft. Smith Municipal Court.

On appeal, the Lineberrys mount the argument that Inferior Court Rule 9(a) works an impermissible waiver of their right to a jury trial. Rule 9(a) states: “All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.” We have previously applied Rule 9(a) to criminal appeals. Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994); Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989).

The precise issue of whether a late filing in circuit court thwarted the right to a jury trial was addressed by this court in 1989. See Edwards v. City of Conway, supra. In Edwards, the appellants also failed to perfect their appeal in circuit court within the required 30 days. We held that Inferior Court Rule 9(a) was mandatory and jurisdictional and that the appeal was appropriately dismissed for lateness. We then addressed the jury-trial argument:

However, persons are not entitled to a jury trial in municipal court except that such right to jury remains inviolate when they pursue their appeal to circuit court where their case is tried de novo. See Ark. Code Ann. §§ 16-17-703 and -704 (Supp. 1987). That appeal, as previously discussed above, must be properly perfected; the circuit court has no authority to accept untimely appeals. In other words, in order to exercise this right in circumstances as those present here, a timely appeal must have been filed pursuant to Arkansas Inferior Court Rule 9.

Edwards, 300 Ark. at 138, 777 S.W.2d at 584.

This court has steadfastly refused to countenance untimely appeals from municipal court to circuit court. See Hawkins v. City of Prairie Grove, 316 Ark. 150, 871 S.W.2d 357 (1994); Ottens v. State, supra; Bocksnick v. City of London, supra; Edwards v. City of Conway, supra. This is so even when the right to a de novo jury trial is lost due to a late filing of the record. These decisions, however, are not at odds with our criminal rules or the Arkansas or U.S. Constitutions. The right to a jury trial presupposes that the party is properly within the court’s jurisdiction. Here, that was not the case owing to the Lineberrys’ lateness in filing the record in circuit court.

The Lineberrys further contend that the procedure under Inferior Court Rule 9(a) violates the due process clause of the Arkansas and U.S. Constitutions. They argue that this is the case for three reasons: (1) technical errors of counsel should not deprive them of a jury trial in circuit court; (2) their access to the circuit court has been denied; and (3) as appellants from municipal court, they have been denied the same right to a belated appeal that appellants to the state appellate courts are afforded. None of these precise arguments was broached at the circuit court level. The Lineberrys merely contended in circuit court that due process required a fair trial in a fair tribunal. This contention was an adjunct to their jury-trial argument, which we have already answered in this opinion. With respect to the new reasons for reversal, we will not consider arguments raised for the first time on appeal. See Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

Affirmed.