text:
    George DUNHAM v. STATE of Arkansas
    CR 93-632
    868 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered January 24, 1994

      Thurman Ragar, Jr., for appellant.

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

Appellant George Dunham was convicted by a jury of theft by receiving, and the court of appeals affirmed Dunham’s conviction, in an unpublished opinion on September 9, 1992. Dunham subsequently filed a Rule 37 petition for post-conviction relief which was denied on May 17, 1993, by the trial court after it conducted an evidentiary hearing. He now brings this appeal from the trial court’s denial of post-conviction relief.

Dunham’s first point for reversal is that the trial court erred in finding it had jurisdiction to hear and decide his felony conviction, asserting that no evidence showed he was in Arkansas when the crime occurred. In short, he claims a crime may have been committed in Missouri where he was arrested and found in possession of stolen articles, but no proof showed he ever possessed stolen goods in Arkansas. Because Dunham raised this issue on direct appeal and it was rejected by the court of appeals, we do not address it here. In deciding this issue, the court of appeals concluded that, when reviewing the evidence on a jurisdictional question, it need only determine whether there is substantial evidence to support the finding of jurisdiction. See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). The appellate court held the record showed that the property found in Dunham’s vehicle when he was arrested in Missouri had been stolen in Arkansas and that evidence also indicated Dunham had removed the stolen property from his sister’s house where it had been kept. As already mentioned, Ark. R. Crim. P. 37 does not provide an opportunity to reargue points settled on direct appeal, and we reject such a notion here.

Dunham’s final point asserts that he was denied effective assistance of counsel at trial. Specifically, he claims that his trial counsel lacked knowledge of the law and did not explain to Dunham that a presumption existed that Dunham knew the property found in his possession was stolen. See Ark. Code Ann. § 5-36-106(c) (Repl. 1993). Without such advice, Dun-ham argues that he was in no real position to decide whether he and other witnesses should testify in an attempt to explain why he was in possession of stolen goods when he was arrested.

Dunham’s counsel testified that he understood it was the state’s burden to prove the offenses with which Dunham was charged. Counsel stated further that at Dunham’s trial, he did not discuss the particular issue of presumption with him, but regardless, he had analyzed the state’s case, as developed, as being weak. In addition, he said that the prosecutor had made no real issue concerning any presumption.

On the other hand, counsel said that he and Dunham fully discussed the possibility of Dunham testifying and rejected the idea because he had several prior felonies that would have been used by the state to impeach Dunham’s testimony. Several other witnesses were suggested by Dunham, but upon further discussion, counsel concluded those witnesses would hurt Dun-ham’s case because their versions of what occurred conflicted with Dunham’s version of what had occurred. One witness suggested by Dunham was his sister who voiced reluctance to testify because she, too, had charges pending against her and also if she testified favorably to Dunham, her testimony might hurt her son, who was implicated in the crime. In sum, counsel said that no evidence or testimony existed which supported Dun-ham’s story, and if Dunham had testified, he was certain to be impeached by his prior convictions. Thus, counsel said that he, in discussing matters with Dunham, decided the best chance to prevail would be based on the state’s failure to make its case.

From our review of the record, we find the trial judge in Dunham’s original trial gave AMCI 2206 which permitted the jury to consider the fact that Dunham was in the unexplained possession of recently stolen property along with all other evidence in the case when deciding whether Dunham knew or believed the property was stolen. AMCI 2206 has been upheld by this court on earlier occasions. See Grooms v. State, 283 Ark. 224, 675 S.W.2d 353 (1984); Newton & Stricker v. State, 211 Ark. 427, 609 S.W.2d 328 (1980). No mention of presumption was in the instruction given the jury, and, as pointed out by Dunham’s trial counsel, nor did the prosecutor argue such presumption to the jury. Dunham’s counsel was confronted with a matter of trial strategy with which to deal — should he place Dunham on the stand to be impeached by several prior convictions and other damaging, conflicting evidence, or should he opt to chance the trial’s outcome on what counsel had evaluated as a weak case put forth by the state? Counsel chose the latter. As we have stated before, matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993).

For the above reasons, we affirm the trial court’s denial of Dunham’s Rule 37 petition.

       in his reply brief, Dunham takes exception to the court of appeals’ factual underpinning by asserting no such evidence existed indicating he removed the property from his sister’s house. From our review of the record, we conclude such evidence was shown circumstantially by his girlfriend’s testimony and a letter purportedly written by him to his nephew, who also was implicated in the crime.

      Dunham points out that the state had also charged him with being a felon in possession of a firearm which was dismissed. Nevertheless, Dunham says that the jury, knowing already he was a felon, would riot have been further prejudiced by learning of his several prior convictions. Again, counsel’s decision to keep such convictions from the jury remained a matter of tactics and, as such, is not a ground for granting a Rule 37 petition.


source: Caselaw Access Project

author:
Tom Glaze, Justice.
      Jack Holt, Chief Justice,

license: Public Domain

text:
    STATE of Arkansas v. Abraham HATTON
    93-537
    868 S.W.2d 492
    Supreme Court of Arkansas
    Opinion delivered January 24, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: Llewellyn J. Marczuk, for appellee.
   Tom Glaze, Justice.

On March 20, 1992, the state filed a two-count felony information in Pulaski County Circuit Court against Abraham Hatton, who was sixteen years old. Hatton was charged with possession of cocaine with intent to deliver and possession of drug paraphernalia with intent to use. The information reflected that Hatton was arrested on January 30, 1992.

On January 20, 1993, Hatton filed a motion to transfer his felony charges to the Juvenile Division of Pulaski County Chancery Court, and the state opposed the motion. On January 26, 1993, the circuit court conducted an evidentiary hearing on Hatton’s transfer motion and ordered Hatton’s case transferred, noting Hat-ton had no record of violence. In a February 10, 1993 memorandum, the juvenile-division judge declined to accept Hatton’s case and in her March 3, 1993 order, filed and entered the same date, the juvenile judge stated the following reasons for refusing jurisdiction:

1. The defendant has a history of delinquency in this juvenile court;
2. The circuit court is therefore a more proper forum for jurisdiction of these offenses;
3. Speedy trial ran prior to presentation to juvenile court.

No appeal was taken from the foregoing order. Instead, the state filed a motion to supplement the record in the circuit court with a copy of the juvenile judge’s March 3 order, and on March 23, 1993, the circuit court granted the motion, stating the juvenile-division chancery judge’s “order is in direct conflict with and therefore affects the orders of this court and said order is necessary to make this court’s record complete.” The state filed a notice of appeal from the circuit court’s March 23 order, and argues in this appeal that the juvenile-division judge lacked jurisdiction to refuse to accept Hatton’s case after the circuit court transferred the case to juvenile court.

Although the juvenile court may well have been without jurisdiction to have refused the circuit court’s transfer of Hat-ton’s case, the state failed to file a notice of appeal from the juvenile court’s proceeding and March 3 order. That order effectively denied transfer of Hatton’s case, and under Ark. Code Ann. § 9-27-318(h)(Repl. 1993), the state should have appealed from the March 3 order if it desired to challenge the juvenile judge’s decision.* This court simply has no jurisdiction to decide the efficacy of the juvenile court’s ruling in this appeal from the circuit court proceeding. Therefore the state’s appeal must be dismissed.

In conclusion, we would add that, while the dismissal of this appeal leaves Hatton’s case in circuit court, the juvenile judge’s finding in her March 3 order that the speedy-trial time had run is in no way binding on the circuit court. In refusing transfer and jurisdiction of Hatton’s case, the juvenile judge obviously precluded herself from hearing and deciding the speedy-trial issue.

Holt, C.J., concurs; Hays and Brown, JJ., dissent.

Jack Holt, Chief Justice,

concurring. I heartily concur with the majority that the State’s appeal must be dismissed. The majority predicate their action on the premise that this court does not have jurisdiction to decide the efficacy of the juvenile court’s ruling in this appeal from the circuit court proceeding, whereas I would dismiss on the basis that the circuit court had lost its jurisdiction over Hatton when it transferred his case to juvenile court. This court has a duty to raise the question of subject-matter jurisdiction on its own motion. See State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992).

To support my position, an exploration of the factual background is necessary. On March 20, 1992, the State filed a two-count felony information against the appellee, Abraham Hatton, charging him with possession of cocaine with intent to deliver and possession of drug paraphernalia with intent to use. On the date of his alleged offenses, January 20, 1992, Hatton was sixteen years old. The information recited that he had been arrested on January 30, 1992.

A year later, on January 20, 1993, Hatton filed a motion in Pulaski County Circuit Court to transfer the two pending criminal charges to the Juvenile Division of Pulaski County Chancery Court. This motion was made under the authority of Ark. Code Ann. § 9-27-318(d) (Supp. 1993), which provides that

Upon the motion of the court or of any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.

The State filed a response opposing the motion on January 25, 1993.

Pursuant to the statutory requirement, an evidentiary hearing on the motion to transfer was held in the Pulaski County Circuit Court on January 26, 1993. After hearing witness testimony and argument for counsel, the circuit court, noting that Hatton had no record of violence, ordered the transfer of the case to the Juvenile Division of the Pulaski County Chancery Court.

In a memorandum sent to the First Division Chancery Judge on February 10, 1993, the juvenile division of the chancery court declined to accept the transfer of Hatton’s case.

Thereafter the Pulaski County Circuit Court and the Juvenile Court made certain orders and entries on its docket sheet which are of no further consequence.

In its single point for reversal, the State frames the issue on appeal — whether the juvenile court lacked statutory authority to refuse to accept jurisdiction of Hatton’s case upon transfer from the circuit court — in the larger context of the limitations on judicial power imposed by the legislature through the enactment of procedural statutes. The State’s argument is primarily focused on the language of the controlling statute itself.

Out of these arguments, the real question surfaces: that is, did the circuit court, when it conducted a hearing to determine whether to retain jurisdiction or to transfer this case to juvenile court under Ark. Code § 9-27-318(d) and decided upon the latter course, lose jurisdiction over the case for all purposes? If, as I believe, the answer is that the circuit court has in fact lost jurisdiction, then the appeal of its present orders is of no moment, and I would hold accordingly. Actions taken by a court without jurisdiction are null and void. State v. J.B., 309 Ark. 70, 827 S.W.2d 144 (1992).

The relevant statutory section, Ark. Code Ann. § 9-27-318(d), provides for “the judge of the court in which a delinquency petition or criminal charges have been filed” to “conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.” Nowhere does this statute authorize “another court having jurisdiction” to refuse to accept the transfer. Indeed, the rest of the statute is silent on the question of the power of the court, whether circuit or chancery, to do anything other than accept the transferred case.

So, too, are our opinions on juvenile transfer cases, all of which presuppose that the fundamental issue is whether a court has properly ordered or denied a transfer, not whether “another court having jurisdiction” has the option to decline the transfer. See, e.g., Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).

In another context, we have declared that § 9-27-318 “clearly delegates” the responsibility for determining whether the circuit court or the juvenile division of chancery court is the more appropriate forum “to the court in which the charges were brought.” Pennington v. State, 305 Ark. 312, 315, 807 S.W.2d 660, 662 (1991). The Pennington case dealt with an instance in which the circuit court ignored its own findings and deferred solely to the prosecutor’s judgment in selecting a forum for trial. Obviously, if the legislature has vested the decision-making power regarding transfers in the particular court before which the juvenile first appears, the other court cannot assume this statutorily conferred authority, any more than the prosecutor could in Pennington. Had the circuit court here accepted the case after the juvenile division of chancery court refused it, there would have been, as in Pennington v. State, an abuse of discretion.

Simply put, the juvenile division of chancery court had no legal authority to decline to accept the appellee’s case. In so doing, it exceeded its jurisdiction, see State v. Garrison, 272 Ark. 470, 615 S.W.2d 371 (1981), and its order reflecting that excess is erroneous on its face. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 208 (1992). As noted above, actions taken by a court without jurisdiction are null and-void. State v. J.B., supra.

Three cases from two other states have directly addressed this issue: In re Glenn S., 445 A.2d 1029 (Md. 1982); Crosby v. State, 523 A.2d 1042 (Md. App. 1987); Commonwealth v. Pitt, 385 A.2d 574 (Penn. Super. Ct. 1978). Each involved a court system in which jurisdiction regarding criminal charges filed against juveniles was divided between a criminal trial court and a juvenile court. In each case, one of the two courts, acting under the authority of a state statute, ordered the matter in question to be transferred to the other court, and the second court, in each instance, returned the matter to the original court.

In each of the three cases, the Maryland and Pennsylvania appellate courts held that the second, or receiving, court lacked statutory authority, and hence jurisdiction, to make a “reverse” transfer. In Crosby v. State, supra, the Maryland Court of Special Appeals made the following pertinent observations:

The Legislature has concluded that with respect to juveniles who allegedly commit certain offenses, 15-year-olds and 16-year-olds are not to be treated identically. In the case of a 15-year-old youth accused of committing armed robbery, the General Assembly has determined that the juvenile system is in the first instance the most appropriate place to adjudicate the matter. This determination may be challenged by the State at a waiver hearing. With respect to a 16-year-old youth accused of committing the same crime, the Legislature has concluded that the adult criminal court is the appropriate place to handle the matter, subject to a contrary determination by the circuit court that a reverse waiver is in the best interests of the juvenile and society. . . .
In creating the current statutory framework, the Legislature intended that a single waiver determination was to be made. As the statutes are designed, the juvenile is afforded one waiver hearing at which time the court with original jurisdiction is empowered to decide whether the criminal court or the juvenile system is the best forum to handle his or her situation. This statutory scheme makes sense from the point of view of judicial economy and expediency of juvenile matters.
To read the statutes otherwise and permit multiple waivers, waiver between courts could unproductively clog dockets and create a sense of uncertainty of responsibility within the judicial system. Additionally, the ultimate disposition of juvenile cases, which should be handled expeditiously, would be unnecessarily delayed by the addition of an extra waiver hearing.

523 A.2d at 1046.

In my view, for the reasons enumerated above, and in order to prevent jurisdictional confusion and to promote judicial efficiency, Ark. Code Ann. § 9-27-318 should be strictly construed to vest the sole authority to transfer a juvenile case, after the statutorily required hearing, in the first court in which a delinquency petition or criminal charge has been lodged. That decision must be final and not subject to a second opinion by the receiving court.

Likewise, once the first court effects a transfer, as the circuit court did here, it divests itself of jurisdiction. I would therefore hold that there is no valid order from which the State could have brought this appeal.

Robert L. Brown, Justice, dissenting. The case involves a struggle between two courts over which one will hear the drug case of a juvenile. The Pulaski County Circuit Court ordered the case transferred to juvenile court pursuant to Ark. Code Ann. § 9-27-318 (Repl. 1993) while Abraham Hatton was still younger than 18. The juvenile court refused to accept the case or to give it a case number. The case is now moot for purposes of the Juvenile Code since Hatton is over age 18. See Ark. Code Ann. § 9-27-303(1) (Repl. 1993). To confuse matters further, the circuit court denies that it has jurisdiction over Hatton because of its prior transfer.

Resolving the issue of whether the receiving juvenile court has authority to refuse a juvenile transfer is of the utmost importance. These transfer cases are heard by the circuit courts with increasing frequency. For that reason alone, it is incumbent on this court to address the issue of whether a transfer may be refused.

I disagree with the majority opinion that the State erred in not appealing the juvenile court’s March 3 order refusing the transfer. As the State took pains to point out in its reply brief, it could not appeal the juvenile court’s order because that court had refused the transfer and declined to open a case:

Therefore, the juvenile court did not place a case number on this March 3, 1993 order. So, as of March 3, 1993, the State had an order to appeal, but no court case to appeal from. With no case in juvenile court and, necessarily, no case number, the State was unable to file a notice of appeal in juvenile court.

The circuit court, as a consequence, entered an order on March 23, 1993, detailing the fact that the juvenile court had refused the transfer and supplementing the circuit court record with the juvenile court’s order. It is that circuit court order which the State now appeals.

Admittedly, this case is something of a procedural conundrum. The case is moot in juvenile court, and the circuit court refuses to hear it because of its transfer. As a result, the drug case of Abraham Hatton rests in limbo, and justice is ill-served.

I would resolve the jurisdictional confusion inherent in this matter. We have said that even when a case is moot, we will entertain the case where an issue of significant public concern is involved. See Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993); Duhon v. Graven, 302 Ark. 358, 790 S.W.2d 155 (1990). Surely this case meets that criterion.

Secondly, the State had no choice but to appeal the circuit court’s supplemental order. There was no case in juvenile court. The juvenile judge had refused it. How else could this matter be appealed for resolution other than the way in which it was done?

It is clear that the juvenile court has no existing authority to refuse a juvenile transfer under Ark. Code Ann. § 9-27-318. See also Crosby v. State, 523 A.2d 1042 (Md. App. 1987); In re Glenn S., 445 A.2d 1029 (Md. 1982). I would interpret the operative statute to that effect and further declare that the case currently resides in juvenile court for resolution.

Hays, J., joins.

       On occasion, this court has treated an appeal from a judgment or decree which lacks judicial support as if it were brought up on certiorari. Bridges v. Ark. Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). However, even in such instances, certiorari lies to correct proceedings that are erroneous on the face of the record. Id. Here, the juvenile court’s proceeding and record is not before us — only its March 3 . order is. For the same reason and others (including the fact that the juvenile court has not been made a party to this proceeding) mandamus also does not lie in these circumstances.

       In her memo to the circuit judge, the chancery judge stated she could not determine if there are any legitimate tolling periods. In addition, the circuit court at this stage of the proceeding below has refused to grant appellee’s speedy-trial motion.

       Procedurally, this case developed in an unusual manner. Hatton initially moved to transfer to juvenile court, and the state opposed that motion. The circuit court granted Hatton’s motion, but the juvenile court refused to accept jurisdiction of the case. In short, the state appears ultimately to have prevailed below, but argues that position here. See Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993) (where this court held a party who prevails has no ground for appeal).


author: Donald L. Corbin, Justice.

text:
    David L. EBERLEIN, Jr. v. STATE of Arkansas
    CR 93-32
    869 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered January 24, 1994

      Dennis R. Molock, for appellant.

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

Appellant, David L. Eberlein, Jr., was convicted after an Arkansas Circuit Court bench trial of four counts of delivery of marijuana, a schedule VI controlled substance. At the conclusion of the trial on March 24, 1992, the court did not pronounce guilt. On April 13, 1992, the court filed an order finding appellant guilty on all counts. On June 12,1992, a judgment order was filed in which the court imposed ten year sentences for each of the four counts to run consecutively, the last ten years suspended. There was no sentencing hearing, though the April order set out that sentencing would be postponed until a presentence report could be generated.

Appellant appeals the judgments of conviction based upon the lack of a sentencing hearing. Appellant additionally argues that the trial court lacked authority to suspend one of the ten year sentences. The sentences imposed were illegal. We reverse and remand for a sentencing hearing with directions to the court to impose sentences without suspension.

The right to be present at sentencing is critical and vital to our criminal law system. In Lowery v. State, 297 Ark. 47, 759 S.W.2d 545 (1988), the fundamental right to be present at sentencing was emphasized and upheld.

[W]e are unwilling to hold that the fundamental right to be present at sentencing was knowingly waived in the absence of language specifically advising an accused that he is subject to being sentenced prospectively without his being present.

Id. at 49,759 S.W.2d at 546. From reading the abstract of the trial, all parties were under the impression that a sentencing hearing would be forthcoming, and no other indication is reflected in the record.

Appellant relies on a defendant’s right to be sentenced in open court as reversible error. Appellee agrees that though one should be sentenced in open court, one must raise an issue in the trial court before this court will consider it on appeal. Willis v. State, 299 Ark. 356, 772 S.W.2d 584 (1989). However, in the instant case no opportunity to object ever arose. After appellant presented his case, the prosecuting attorney declined rebuttal. The prosecuting attorney then made the following remark:

I would assume this would be bifurcated and at some point if there’s a determination of guilt I need to offer this into evidence.

The trial of appellant’s wife began at that time, and the transcript with regard to appellant ends. Though the court noted it would need a presentence report before sentencing in its April order finding guilt, no formal hearing was held after trial. This was error.

Appellee relies on Willis, 299 Ark. 356, 772 S.W.2d 584, for the proposition that appellant must have objected to preserve the right of review. In that case, two appellants were convicted after a bench trial, and they argued to this court that the convictions should have been reversed because the trial judge failed to formally pronounce the verdict of guilty. This case can be distinguished, though, as the current appeal concerns the right of a defendant to be present for sentencing as well as pronouncement of guilt. The court in Willis also noted that no objection was made, whereas in the instant case no opportunity to object ever arose. If an objection were required, it would in many cases preclude the availability of the remedy. Lowery, 297 Ark. 47, 759 S.W.2d 545.

For his other point for reversal, appellant argues that the trial court lacked authority to suspend imposition of one of the ten year sentences, and appellee agrees. Appellant argues that because he had been convicted of two prior felonies, his sentence could not be suspended. Appellee points out that under Arkansas law then in effect, those convicted of certain drug related offenses were not eligible for suspended sentences. Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992). Delivery of marijuana was included in those offenses. There appears to be no dispute that the trial court exceeded its authority, and we concur that the trial court erred. This court has repeatedly held that sentencing is entirely a matter of statute. State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). If the General Assembly sets a constitutional sentencing guide for an offense, the trial court has no authority to suspend it. Id.

If the original sentence is illegal, even though partially executed, the sentencing court may correct it at any time. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). Resentencing upon remand is not prohibited by former jeopardy considerations. State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

Reversed and remanded.


author: Robert L. Brown, Justice.

text:
    STATE of Arkansas v. Paula HARRIS
    CR 93-1013
    868 S.W.2d 488
    Supreme Court of Arkansas
    Opinion delivered January 24, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      Daniel D. Becker and Terri L. Harris, for appellee.
   Robert L. Brown, Justice.

The State brings an interlocutory appeal under Ark. R. Crim. R 36.10(a) on grounds that the trial court improperly suppressed the confession of the appellee, Paula Harris. The State, as it must do under Ark. R. Crim. P. 36.10(c), asserts in its jurisdictional statement that the correct and uniform administration of justice requires our review of this matter. See State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). We do not agree with the State that the correct and uniform administration of justice is at issue in this appeal, and, accordingly, the appeal is dismissed.

The facts in this case are not disputed. On February 27, 1991, a fraud investigator for the Arkansas Department of Human Services, Hank Whittington, wrote the following letter to Paula Harris:

Your public assistance case is under review by Fraud Investigations. Information obtained indicates you may have received benefits to which you were not entitled. Therefore, it is very important that I meet with you.
Your interview is scheduled at the Human Services Office in Hot Springs on Wednesday, March 6, 1991 at 10:00 a.m.
If you cannot keep this appointment, please contact my office at 682-8849 within three (3) days upon receipt of this letter. Otherwise, your case could be referred for further action without your input.

On March 6, 1991, Harris kept the appointment with Whittington. When she arrived at Whittington’s office, he greeted her and identified himself as a “criminal investigator.” Whittington then advised Harris of her Miranda rights and had her sign a form waiving those rights. The interview commenced at which time Harris admitted that she had failed to report certain household income so that she would remain eligible for food stamps. Specifically, she failed to report that a man named Fred Crawford was living with her when she filled out the food stamps application and that he was employed. Whittington wrote out Harris’s statement and had her sign it. On April 26, 1991, Whittington signed an affidavit for an arrest warrant which resulted in a felony information charging Harris with theft by deception. Almost two years later on May 19, 1993, she was arrested on the charge.

Harris moved to suppress the statement given to Whittington on grounds that he failed to advise her that she had no obligation to come down to his office, as required by Ark. R. Crim. P. 2.3. The prosecutor retorted that Whittington was not a law enforcement officer as defined by Ark. R. Crim. P. 1.6(a) and, thus, Rule 2.3 did not apply. Rule 1.6(a) defines “law enforcement officer” as “any person vested by law with a duty to maintain public order or to make arrests for offenses.” The trial judge heard the matter and, specifically, Whittington’s testimony about what occurred. He then ruled that “the spirit of Rule 2.3 would include Mr. Whittington’s position as criminal investigator,” and he suppressed the statement.

The sole point raised in the State’s appeal is whether the DHS criminal investigator, Hank Whittington, is a law enforcement officer under these facts for purposes of the application of Rule 2.3. We must first consider, however, whether this interlocutory appeal is properly before us under Rule 36.10 or, more precisely, whether we concur with the Attorney General that the correct and uniform administration of justice is at issue. We conclude that it is not.

The decision by the trial judge which we are asked to review turned on the facts of this case to such an extent that the correct and uniform administration of the law could not be at issue. It is undisputed that Whittington did not meet the definition of law enforcement officer under Rule 1.6(a). The question which the trial judge was called upon to resolve was whether he was acting like a law enforcement officer under these facts so as to bring into play the application of our criminal rules. Hence, what was presented to the judge was the investigative status of Whittington, the letter he wrote to Harris, the Miranda warnings, her statement, and the affidavit for arrest warning signed by Whittington. The trial judge viewed these unique circumstances and determined that the spirit of the Criminal Rules did embrace Whittington.

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. R 36.10.

State v. Mazur, 312 Ark. 121, 123, 847 S.W.2d 7Í5, 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.

Appeal dismissed.


text:
    Raque STERLING v. STATE of Arkansas
    CR 93-206
    868 S.W.2d 490
    Supreme Court of Arkansas
    Opinion delivered January 24, 1994

      Donald A. Forrest, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Raque Sterling, was convicted of aggravated robbery and for being a felon in possession of a weapon. The robbery victim had been shot, and his jewelry and wallet were taken. Sterling was sentenced as a habitual offender to 50 years imprisonment for the robbery conviction and 15 years for the weapons conviction, with the two sentences to run concurrently. He appeals on two grounds, both of which are alleged procedural lapses at his trial. First, he argues that he was denied the opportunity to make a closing argument after his attorney had already done so and immediately before the jury retired to deliberate. Secondly, he argues that he was prejudiced because two witnesses, Melvin Brown and LaWanda Terry, were not called in his defense. Neither issue has merit, and we affirm.

At the conclusion of closing arguments, the trial court counseled the jury on verdict forms and advised that it could retire to the jury room to deliberate. Sterling then said before the jury had left the room: “Your Honor, I would like to address your Honor and the jury. There’s a lot of mistakes going on in this case. I know if you look and see it yourself, you will decide another thing on it.” A sidebar conference ensued with counsel, and the trial court ruled that Sterling had had adequate trial counsel and that it was not going to permit Sterling to address the jury. The jury then left the courtroom to consider its verdict.

Sterling now urges that the trial court erred in its ruling. We hold otherwise. We have previously interpreted language in the Arkansas Constitution which gives a defendant in a criminal case “the right to be heard by himself and counsel....” Ark. Const, art. 2, § 10; see Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1990) (per curiam). In Monts, we stated: “The use of the conjunction ‘and’ between ‘himself’ and ‘counsel’ should not be interpreted as entitling a defendant to represent himself in part of the proceedings while accepting counsel’s representation in other parts.” 305 Ark. at 204, 806 S.W.2d at 380. In this same vein, we have held that the decision of whether a defendant may make a portion of the closing arguments is best left to the sound discretion of the trial court in order that it may maintain order, prevent unnecessary consumption of time or other undue delay, and preserve dignity and decorum. Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970); cited with approval, Monts v. Lessenberry, supra.

The trial court correctly denied Sterling’s request which came during the guilt phase of the trial but after his counsel had already made his closing argument and following the State’s rebuttal argument. Sterling clearly was not entitled to a second argument at this stage of the proceedings.

For his second point, Sterling argues that the trial court erred in not allowing him to reopen his case and call two additional witnesses after the jury had retired to deliberate Sterling’s guilt or innocence. We disagree.

We have held that it is discretionary with the trial court whether to permit a party to reopen a case either before or after the jury begins deliberating. Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993); Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992); Curtis v. State, 279 Ark. 64, 648 S.W.2d 487 (1983); Powell v. State, 270 Ark. 236, 605 S.W.2d 2 (1980). Clearly, though, a decision to permit additional evidence to go to the jury after its retirement must be exercised sparingly and only when the exigencies of the situation warrant it.

Here, the trial court did not err in its ruling. Sterling was somewhat muddled in his presentation of how the witnesses would be helpful and even as to what relief he specifically wanted. We also note that previously the two witnesses in question — Melvin Brown and LaWanda Terry — had given statements to police officers which were damaging to Sterling, although Terry later recanted. The earlier damaging statements alone could be ample reason why the trial counsel did not call them as part of the defense.

Under these facts, we cannot say that the trial court abused its discretion in refusing to allow Sterling to reopen his case at this juncture.

Affirmed.


author: Per Curiam.

text:
    David Michael MAPLES v. STATE of Arkansas
    CR 93-1318
    867 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered January 24, 1994

      Linda Scribner, for appellant.
    No response.
   Per Curiam.

Petitioner, David Michael Maples, asks this court to issue a writ of certiorari directing the court reporter, Linda Caswell, to complete the transcript in this case. Petitioner states that the court reporter has been unable to prepare the record because of numerous trials and appeals, and asks for an unspecified additional amount of time for the reporter to complete the transcript. Petitioner filed a partial record on December 12, 1993, and states that the transcript was due in this court on the same date. In sum, the reporter has not completed the transcript, is now slightly more than one month past the seven month deadline, and has given only a general reason for needing additional time.

We grant the petition for the writ of certiorari and direct Ms. Caswell to complete the transcript forthwith. The clerk is directed to forward a copy of this per curiam to the Board of Certified Court Reporter Examiners for any action it may deem necessary under its rules.


author: Jack Holt, Jr., Chief Justice.

text:
    Ronald Dean CLARK v. STATE of Arkansas
    CR 93-1034
    870 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Ronald Dean Clark was charged with three counts of class Y felony rape for his sexual exploits with three minor females: two sisters, ages five and four, and his one-year-old daughter. Clark appeals his conviction for rape of the five- and four-year-olds, contending that the evidence was insufficient to support the jury’s verdict. He also appeals the convictions of rape and sexual misconduct with the one-year-old arguing that the trial court erred in not declaring a mistrial after the prosecutor repeatedly asked leading questions of the two older victims. We affirm.

During the jury trial, the five-year-old was questioned about her association with Clark and answered, “Ron hurt me.” When asked if he had touched her, she said yes, but refused to show the court where he had touched her, other than to say it was in “a bad place.”

The four-year-old testified after her sister, stating that, “Ron had put the screwdriver in my private part.” She also declared that she had seen Ron stick the screwdriver, a nail, and his tongue in her five-year-old sister’s private part. She nodded “yes” when asked if she had seen his private parts and testified that she saw Clark stick a screwdriver and his tongue in her one-year-old sister’s private part.

Dr. Joy Hill, a pediatrician at Arkansas Childrens Hospital, who had examined all three girls and was qualified as an expert in pediatrics, also testified for the State. She explained that she had found three abnormalities during her genital examination of the five-year-old, all of which are consistent with child abuse: (1) abnormal mound or rolled edge on her hymen; (2) an area of white in the middle of the hymen, appearing like an old scar; and (3) presence of chlamydia, a sexually transmitted disease. Although her physical examination results would not stand on their own as evidence of sexual abuse of the two younger girls, she did note some “non-specific findings” of a little bit more visible vessels on the posterior end of the four-year-old’s hymen, which is unusual for a child of that age.

At the end of the State’s case, Clark asked for a directed verdict as to each of the three counts of rape, contending that the evidence was insufficient to support each charge. The trial judge granted the motion for directed verdict as to the charge of rape of the one-year-old because there was no evidence of penetration, but submitted the issue of sexual misconduct with her to the jury.

Clark testified in his own defense denying the charges and presenting his negative test results for chlamydia, a sexually transmitted disease. To rebut his testimony, the State recalled Dr. Hill who, when asked whether an adult male who had chlamydia in June or July of 1992 would still have it in December of 1992 or January of 1993, responded that because chlamydia reacts well to treatment, any of a number of antibiotics, taken for some other infection, could have cleared it up.

The jury found Clark guilty of rape of the five- and four-year-old females and sexual misconduct with the one-year-old female, and sentenced him to two thirty-year terms of imprisonment on each of the rape charges, to be served consecutively, and six months on the misconduct charge to run concurrently-

I. Failure to grant motion for directed verdict Sufficiency of the evidence

We first address Clark’s claim that the trial court erred in refusing to grant his requests for directed verdict as to the two counts of rape as it involves a challenge to the sufficiency of the evidence which must be considered prior to a review of trial errors. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Since sufficiency of the evidence of the sexual misconduct charge has not been challenged, we will not address this issue.

Arkansas Code Annotated § 5-14-103 (Supp. 1993) defines rape as:

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(3) Who is less than fourteen (14) years of age. It is an affirmative defense to prosecution under this subdivision that the actor was not more than two (2) years older than the victim.
The legislature has defined “deviate sexual activity” as:
(A) The penetration, however slight, of the anus or mouth of one person by the penis of another; or
(B) The penetration, however slight of the vagina or anus of one person by any body member of foreign instrument manipulated by another person.

Ark. Code Ann. § 5-14-101(1) (1987).

On appeal from the denial of a directed verdict, we view the evidence in the light most favorable to the party against whom the verdict is sought and affirm if there is any substantial evidence to support the verdict. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992); Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). Substantial evidence has been defined as being of sufficient force and character to compel a conclusion one way or the other, forcing the mind to pass beyond suspicion or conjecture. Davis, supra;

A. Sufficiency of evidence of rape of five-year-old.

Reviewing the evidence that Clark raped the five-year-old female, we hold that the evidence was more than sufficient. The five-year-old specifically testified that “Ron hurt me” and that he touched her “in a bad place.” She also indicated that Clark had touched her between her legs with his tongue. In addition, Dr. Hill’s testimony revealed that the five-year-old had a healing scar and an abnormal mound or rolled edge on her hymen as well as chlamydia, a sexually transmitted disease, all of which are consistent with sexual abuse.

The four-year-old was more detailed in her testimony regarding Clark’s rape of her five-year-old sister:

Q. Did you ever seem him touch [her]?
A. (Affirmative nod.)
Q. What did you see him do to [her]?
A. Sticked the screwdriver in her private part.
Q. And, is her private part the same place yours is?
. A. Yes.
Q. When he touched [her], did he touch her with anything
else?
A. Nail.
Q. And, where did he touch her with the nail?
A. (Witness points.)
Q. Did her ever touch her with any part of his body?
A. His tongue.
Q. Where did he put his tongue?
A. (Witness points.)

B. Sufficiency of evidence of rape of four-year-old

During her testimony, the five-year-old also discussed Clark’s rape of her four-year-old sister:

Q. And, when you saw him touch [her], was it in a good or a bad place?
A. Bad place.
Q.Did [she] have her clothes on?
A. (negative nod)

In addition, the four-year-old described Clark’s rape of her, explaining:

Q. Did anything ever bad happen to you when you were living with Ron?
A. (Affirmative nod.)
Q. What happened to you?
A. S ticked this screwdriver in my private part.

We have held that the testimony of the victim which shows penetration is enough for conviction. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). Although the victim’s testimony need not be corroborated Jackson, supra., we have the four- and five-year-old’s testimony corroborating each other’s testimony.

Clark makes much of the inconsistencies in the older girls’ testimony regarding whether their clothing was on or off when he was allegedly raping them. Inconsistencies in the testimony are for the jury to resolve. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Clearly, this evidence is sufficient to support the rape convictions.

II. Leading child witnesses

Although Clark does not question the competency of the two minor victims to tell the truth, he claims error on the part of the trial court in refusing to declare a mistrial after the prosecutor repeatedly asked leading questions of the five- and four-year-olds.

During the course of the examination of the four-year-old witness concerning her rape, the rape of her five-year-old sister and the sexual misconduct with her other sister, the following took place:

Q. Did your grandma tell you to tell the truth?
A. (Affirmative nod.)
Q. And, the other people that told you to come in here and talk today, did they tell you to tell the truth?
A. (Affirmative nod.)
Q. Is that what you’re doing?
A. (Affirmative nod.)
Q. Have you told other people about what happened to you? A. (Affirmative nod.)
Q. When Ron touched you with his tongue, you said that he touched your private part?
A. (Affirmative nod.)
Q. Did he touch the skin on your private part?
A. (Affirmative nod.)

MR. HARDIN: Your Honor, I’m going to object to leading the witness. May I approach the bench?

(THEREUPON, Counsel for the State and Defense approached the bench.)

MR. HARDIN: Your Honor, I’ve objected approximately ten times on her leading the witness, both of these minor witnesses. She’s leading them in critical areas. Our objections have been overruled and at this time I think the proper ruling is a mistrial because she’s basically testifying.

THE COURT: The motion for a mistrial is denied. The prosecution, you may lead this witness as this witness is a child four years old, she’s reluctant to testify. She obviously is scared and it’s difficult to communicate with her. For those reasons and because of her age, you may lead the witness.

Granted, the record reflects continual leading questions propounded to the five- and four-year-old witnesses by the State. Yet, a mistrial is a drastic remedy to which the court should resort only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). It should only be ordered when the fundamental fairness of the trial itself has been manifestly affected. Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993).

We have often said that if it appears necessary to lead a child witness to elicit the truth, we will affirm the trial judge’s decision in allowing leading questions, absent an abuse of discretion. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); Wallace v. State, 177 Ark. 892, 9 S.W.2d 21 (1928). In cases involving very young females who are alleged to have been victims of sexual crimes, we will not disturb the action of the trial judge in permitting leading questions to be asked by the prosecution, if it appeared to the judge to be necessary to elicit the truth, unless his discretion has been abused. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). The youth, ignorance, and timidity of the witness are important factors militating against the finding of abuse of discretion. Id.

In Jackson, supra, we examined the criteria for permitting the leading of a child witness and noted that our cases do not hold that a witness cannot testify below a certain age. We approve the procedure of leading child witnesses in rape cases because of (1) the seriousness of the crime, (2) the natural embarrassment of the witness about the incident, (3) the child’s fear of being in a courtroom full of people, (4) the necessity of testimony from a victim, (5) threats toward victims from those perpetrators, and (6) to avoid the possibility that an accused might escape punishment for a serious offense merely because of the victim’s reluctance to testify. Id.

Looking at the circumstances of the direct examinations of both young girls, we hold that the trial judge did not abuse his discretion in allowing leading questions to elicit their testimony because they had allegedly been the victims of an especially intrusive, violent crime and were having to describe the acts to a room of strangers as well as in front of the perpetrator. Given the ages of the victims, the nature of the crime, and the girls’ timidity, we understand the necessity of asking leading questions of them, and we commend the trial court for its patience in searching for the truth. See Hamblin, supra. Similarly, in Jackson, supra, the witnesses were only eight- and five-years old and answered by nodding their heads affirmatively or negatively or by saying “yes” or “no.” Here, the minor children were much more articulate in their answers.

Simply put, Clark has failed to prove that such a prejudicial error occurred during his trial, and the court satisfactorily explained its reasons for permitting the leading questions:

This is a child witness who is having a difficult time coping with the situation. I’m going to allow the State to lead the witness. The jury will take into consideration the questions are leading and give the testimony whatever weight the jury decides it should have. I request that you don’t need to lead the witness any more than is absolutely necessary and don’t lead on absolutely critical matters.

We have no hesitancy in holding that there was no error in allowing the prosecutor to repeatedly ask leading questions of the two child witnesses and for denying Clark’s request for a mistrial.

Affirmed.


text:
    Maurice COLEMAN v. STATE of Arkansas
    CR 93-676
    869 S.W.2d 713
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

      Bill E. Ross, by: Mikke Connealy Bracey, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This is an appeal from a criminal conviction on the charge of first-degree murder in the slaying of nineteen-year-old Stephen Jerome Woodard. The appellant, Maurice Coleman, was sentenced to life imprisonment. On appeal, he raises three arguments for reversal: (1) his custodial statement should have been suppressed, (2) the trial court erred in failing to grant Coleman’s directed verdict motion, and (3) evidence of his prior convictions should not have been admissible. We affirm.

I. Failure to grant motion for directed verdict Sufficiency of the evidence

We address Coleman’s directed verdict contention first because it involves a challenge to the sufficiency of the evidence which must be considered prior to a review of trial errors. See Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). The directed verdict motions were properly made and preserved.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal we review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Friar, supra; Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990). A defendant’s intent to commit murder may be inferred from the type of weapon used, and the nature, extent, and location of the wounds. Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992).

Arkansas Code Annotated § 5-10-102(a)(2) (Repl. 1993) provides that a person commits murder in the first degree if, “With a purpose of causing the death of another person, he causes the death of another person.” Coleman claims that the evidence was insufficient, stressing that “there was no plausible connection between the death of Steven Jerome Woodard and Maurice Coleman.” This contention is not true.

The strongest evidence supporting Coleman’s conviction is his custodial statement to the police in which he admitted the following: He, Shawn “Too Short” Jefferson, and the victim travelled to Williams Park in Blytheville, Arkansas, after having consumed crack cocaine. The three men were in a white car driven by Woodard — he was in the backseat and Jefferson in the front —and Woodard and Jefferson were quarreling over a statement Woodard had made to the police regarding a murder that had occurred in Cherokee Court a few days earlier, when he produced a chrome semi-automatic .25 handgun, fired at Woodard from the backseat, striking him in the back of the head. Jefferson dragged Woodard out of the car, intending to put him in the trunk, when Woodard ran a short distance yelling, “I’m dead.” Woodard fell, and he and “Too Short” obtained a tire tool and took turns repeatedly beating him on the head. Nevertheless, Woodard refused to die, and they “drove over him and back” with the car “trying to make sure he was dead.” Believing Woodard was still alive, they placed him in the trunk, drove to “Senior Citizens Pond” and partially submerged the car in the water.

In his statement, Coleman also referred to one of Woodard’s shoes that Jefferson had thrown away from Woodard’s body. A shoe was discovered by Detective Hill at Williams Park. He identified to the officers and to the jury a shirt worn by him on the night of the murder that was submitted to the crime lab for tests. Although stains on the shirt were identified as human blood, there was not enough present to positively identify it as the victim’s blood.

Other witnesses testimony corroborates parts of Coleman’s statement to the police. Lucretia Jones, Woodard’s girlfriend, testified that Woodard had access to her car, a 1981 white Ford, and that she discovered it missing the morning of July 21,1992. She later identified the car the police officers pulled from a pond which contained Woodard’s body in its trunk as her car.

Kim Smith, Woodard’s sister, testified that she saw her brother, Coleman, Jefferson, Margaret James, and others, at her apartment the night before Woodard disappeared. According to her testimony, at one point she looked outside and saw her brother and Jefferson “fixing to charge each other.” Later, she saw Woodard leave in the white Ford automobile and saw Coleman and Jefferson leave on foot in the same direction as Woodard was driving. Minutes later, she saw the car come “flying out of the project.” She tentatively identified the driver as her brother, the backseat passenger as Coleman and Jefferson as sitting in front.

Margaret James testified that Coleman and Jefferson arrived at Ms. Smith’s apartment together and Woodard arrived by himself, having driven in his girlfriend’s car. When Woodard left and got in the car, she saw Coleman and Jefferson leave on foot. About five minutes later, she saw the car drive by. She assumed the three male occupants were Woodard, Coleman, and Jefferson.

Floyd Moran testified that he often picked up cans at local parks, and on July 21, 1992, he went to Williams Park in Blytheville. He reported to the police that there was an area of pavement near a shelter that appeared to be marked by a large amount of fresh blood and shirt buttons. During Detective Hill’s investigation of the park, he discovered body tissue, an earring, shirt buttons, and a shoe. The shoe was later matched to its mate on Woodard’s body.

The gun, a chrome .25 semi-automatic pistol, was discovered, due to a lead from Jefferson, buried in a bean field located about two miles from Williams Park. A bullet recovered from the dash on the driver’s side of the Ford matched the recovered firearm. Ron Andrejack, a firearms examiner with the State Crime Lab, testified that the bullet fragments recovered from Woodard’s body were .25 caliber but were so mutilated that identification with a specific .25 caliber firearm was impossible.

Dr. William Stumer, Chief Medical Examiner with the State Crime Lab, testified regarding the results of his autopsy of Woodard. He discovered gunshot wounds on three locations on the victim: three on the right side of his head, three to his back and a “though and through” superficial wound on the right shoulder. Sturner also described abrasions on various parts of the deceased — on his head, chest, shoulders, elbow, knuckles — consistent with having been dragged or scraped across pavement. These witnesses’ testimony is corroborative and consistent with Coleman’s statement to the police. This evidence, together with Coleman’s statement, is more than sufficient to support the verdict of first-degree murder.

Coleman argues that there was not sufficient corroboration of the accomplice testimony of Jefferson. Due to the facts that Jefferson neither testified nor was he charged as an accomplice, and the jury was not instructed as to accomplice liability, this argument is without basis.

II. Voluntariness of custodial statement

Coleman next contends that the police coerced him into making his taped confession and, therefore, the trial court erred in refusing to suppress his custodial statement.

Custodial statements are presumed involuntary, and the State has the burden of proving otherwise. Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992). In considering a motion to suppress a custodial statement, we make an independent determination of the voluntariness of the confession but do not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).

Typically, the question of whether the trial court erred in admitting a confession into evidence is two pronged: (1) whether the trial court erred in holding that the proof showed that the waiver and confession were voluntarily given; and (2) whether the trial court erred in holding that the proof showed that the waiver and confession were knowingly and intelligently given. See Weger v. State, No. CR93-408 (January 24, 1994). In his brief, Coleman addresses both the issue of voluntariness and whether or not the proof showed his waiver and confession were knowingly and intelligently given. However, in Coleman’s motion to suppress, as abstracted, he questions only the voluntariness of his confession and notes that the court’s ruling on suppression of involuntary statement was denied. For this reason, we limit our discussion to this single issue.

The testimony is in conflict on the issue of voluntariness. At the hearing on the motion to suppress, Blytheville Police Detectives Hill and Gann submitted that they did not coerce or threaten Coleman in any way. Coleman was arrested for the murder of Woodard, was read his rights, and signed a rights-waiver form. He was questioned that day by Detective Hill, but this interview was not recorded. Coleman was then sent to Jonesboro for a polygraph test but was returned to the Blytheville jail that same evening. At about 8:30 a.m. the following day, Detective Gann advised Coleman of his rights and had him sign a second rights waiver form. From about 8:30 a.m. until his talk with Coleman at 10:30 a.m. Gann was fingerprinting and photographing prisoners, including Coleman. At 10:30 a.m. Gann resumed his contact with Coleman and at 11:30 a.m., Gann, along with Hill, recorded the statement at issue.

Coleman contends that on the morning of the recording he repeatedly told Hill that he “didn’t have no knowledge of this situation,” to which Hill allegedly responded, “When you sit here and you pretend you can’t remember nothin’ you say your mind is so gone where you can’t remember being here, this taking place. We got a different version from Shawn Jefferson. As long as you sit here and play this little game. . .1 give you my word. . . that you’re going to get death row.” Hill added, “You know Jerome as well as I do. He ain’t worth dying over because you know as well as I do he was a known drug dealer.” Coleman contends that he finally agreed to make a statement after Hill told him again that if he did not make some statement regarding what he had done, he would “see to it that you get death row or lethal injection.” Coleman also claims it scared him when Hill advised, “If I wanted to help myself — life or maybe forty or fifty years but at least you got some chance. The way you’re playing it I’m going to see to it that you will never get to see the streets no more if you get lethal injection or the electric chair.” When Coleman asked Hill if he could have a lawyer present when he made his statement, Hill responded, “You know yourself there ain’t no way you can have a lawyer present now. We read you your rights and everything but you know yourself you can’t get no lawyer until after you, get your bond set and get in Circuit Court.”

Coleman now claims, as he did in his testimony at the Denno hearing and before the jury, that the police basically scripted his tape-recorded statement for him and that he gave the statement due to threats of “death row” or “lethal injection.” However, the facts as to these claims are disputed. Both Hill and Gann testified that they did not threaten, promise or coerce Coleman in any way, although Hill did admit that he confronted Coleman with elements of Jefferson’s statement to the police that implicated him in the murder of Woodard. Further, Coleman’s allegation that he asked for a lawyer is denied by the officers and is not reflected in his tape-recorded statement.

The conflicting testimony during the Denno hearing presented issues of credibility to be resolved by the trial court. See Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). Clearly, the recorded statements given by Coleman, together with the record of the proceedings on the motion to suppress, supported the trial court’s refusal to grant the motion to suppress his recorded statement. See Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). Coleman renewed his objections to the voluntariness of the confession at trial when his taped confession was admitted to the jury. When he testified in his own defense, he again denied his participation in the murder, claiming that the officers had scared him into making his confession. His credibility then became a question for the jury to decide. See Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993); Jones v. State, 314 Ark. 289, 862 S.W.2d 242 (1993).

III. Evidence of prior convictions admitted to impeach

For his last argument for reversal, Coleman claims that the trial court abused its discretion in permitting the State to impeach him with evidence of his prior convictions. Coleman filed a motion in limine asking that the evidence of his two prior convictions occurring in the last ten years be inadmissible in the event that he took the stand. Coleman contended that the prejudicial value of such evidence in a murder trial outweighed the probative value. The trial court found that Coleman’s prior convictions for burglary and theft of property could be used to impeach him, explaining that, “The question of his — should he testify, his truthfulness would be an issue and the long standing tradition is to allow impeachment as to truthfulness on burglary and theft.”

Rule 609(a) of the Arkansas Rules of Evidence provides the general rule for attacking the credibility of a witness with evidence of prior convictions:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one (1) year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

The trial court has considerable discretion in determining whether the probative value of a prior conviction outweighs its prejudicial effect and will not be reversed absent an abuse of discretion. Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988). This rule concerns itself with the credibility of a witness who is offering testimony in the current case and admissibility must be decided on a case-by-case basis. Id. When a defendant in a criminal case takes the stand in his own behalf, credibility becomes an issue and the State may, under certain circumstances, test that credibility by asking the defendant if he has been convicted of certain crimes. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979).

Since Coleman disputed the accuracy of his recorded statement to Detective Gann, his credibility was at issue. When testifying before the jury, Coleman claimed that the detectives had coerced him into making the recorded statement and that “They did everything but write a script for me to follow while giving this statement so I’d be sure and accurate when I said it.” Under the circumstances, admission of his two prior convictions for burglary and theft was not error.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that'there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: Jack Holt, Jr., Chief Justice. Glaze, J., Steele Hays, Justice,

text:
    Michael GRANDJEAN v. Patrick GRANDJEAN
    93-172
    869 S.W.2d 709
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

      Mike Wilson, for appellant.

      Diana M. Moulding, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Michael Grand-jean, raises a single point for reversal in this appeal from a decision of the Pulaski County Circuit Court. He argues that, as a matter of law, the trial court erred in awarding $1,000 in damages to his brother, appellee Patrick Grandjean, for false arrest.

On appeal, Michael Grandjean presents an argument that, in form, addresses the trial court’s false-arrest finding but that, substantively, constitutes a defense based on the elements required for the tort of malicious prosecution. We hold that Michael Grandjean has effectively changed his grounds for appeal, having asserted a point for reversal under the rubric of malicious prosecution that was not, as such, considered by the trial court. We therefore are unable to consider his argument.

An appellant may not change the basis for his argument or raise a new argument on appeal; he is limited to what was requested in the trial court. See Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993); Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992).

Michael and Patrick Grandjean, together with two other brothers, James and Daniel Grandjean, shared equally in their father’s estate upon his death in April 1991. By common agreement, Michael was named executor of the estate. Patrick was living at his father’s house in Jacksonville at the time of his death. James moved in shortly thereafter.

The house was the major asset of the estate. By tacit understanding of the four brothers, Patrick and James, were allowed to continue residing in the house until the property could be sold. Several months later, a verbal agreement was struck under which Patrick and James would be allowed to purchase the interests of Michael and Daniel for $10,000 per share. Patrick and James then attempted to secure a loan from a bank but were unsuccessful.

In the meantime, Michael and his wife, Cathy, painted, cleaned, and repaired the interior and exterior of the house, for which Michael was subsequently compensated from proceeds of the sale of the house. (Michael also received remuneration in his capacity as administrator of the estate.) According to Michael, neither Patrick nor James made any effort to maintain the property or to assist in its restoration.

Michael had grown impatient with Patrick and James because of their inability or unwillingness to proceed with the purchase of the house. As administrator of the estate, he listed the house with a realtor in early September 1991. Upon consultation with the attorney for the estate, who represented all four brothers, Michael was advised that he could evict Patrick and James. Subsequently, he gave individual notices to the two brothers to vacate the premises by October 10, 1991, despite objections from his brother Daniel, who resided out of state.

When Patrick and James failed to move by the specified date, Michael went to the prosecuting attorney on October 24, 1991, and signed affidavits for arrest warrants for failure to vacate. The affidavits contained the following identical boilerplate language under the heading, “Facts Constituting Probable Cause”:

I Michael John Grandjean. state that I ©wn/manage the property at 408 Braden Street. Jacksonville. Ar. The residence at that address is leased or rented to James Grandiean and Patrick Grandjean. They are behind on there (sic) rent, and were served with a (10) ten day notice to vacate on Oct 11. 1991. The residence has not been vacated and the rent has not been paid.
I swear that the allegations contained herein are the truth, the whole truth and nothing but the truth.

Michael crossed out the word “own” in the first sentence, leaving the word “manage.”

The following day, arrest warrants were issued. Patrick was arrested and remained in jail from 12:30 p.m. until 5:00 p.m., when a friend posted bond. James turned himself in prior to an arrest. Following these events, Patrick and James began moving articles out of the house, and Michael requested on three occasions that the prosecuting attorney drop the charges. On December 18, 1991, Patrick and James appeared in municipal court and were informed that the case had been dropped from the docket.

In March 1992, Patrick and James filed suit against Michael, alleging false arrest and breach of contract and asserting the right to punitive damages. A bench trial was held in October 1992, and the court found for Michael on the breach of contract claim. However, the court ruled that there was no agreement regarding the amount of rent to be paid to the estate by Patrick and James and that the affidavit signed by Michael was false. Moreover, the court declared, “Defendant was responsible for the false affidavit and Defendant knew that the judge would rely on the affidavit in determining whether probable cause existed for issuance of an arrest warrant.” Finally, the court determined that the “defense of an affidavit is not available to Defendant on the claim of false arrest.” Compensatory damages of $1,000 were awarded to Patrick Grandjean. (James received no award because, having turned himself in voluntarily, he was not subject to false arrest.)

In his sole point for reversal, appellant Michael Grandjean contends that, as a matter of law, the trial court erred in giving judgment against him on the false arrest claim. His argument, however, as indicated earlier, is based on the probable-cause defense to an action for malicious prosecution, and all of his authorities — Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990); Price v. Morris, 122 Ark. 382, 183 S.W. 180 (1916); Laster v. Bragg, 107 Ark. 74, 153 S.W. 1116 (1913); L.B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S.W. 194 (1911); Rogers v. General Electric Co., 341 F.Supp. (W.D. Ark. 1972) — are cases involving malicious prosecution rather than the issue at hand — false arrest.

It is, in fact, easy to understand the confusion regarding these two concepts. Courts in this country have confounded them for more than a century. See Prosser and Keeton on the Law of Torts, § 11, p. 54 (5th ed. 1984), citing Rich v. McInerny, 103 Ala. 345, 15 So. 663 (1894); Neall v. Hart, 115 Pa. 347, 8 A. 628 (1886); Stewart v. Cooley, 23 Minn. 347 (1877). As others have before, the trial court acknowledged the conceptual confusion in its findings from the bench:

The [fact] of the matter is that whatever it is he signs, he, Mr. Grandjean, Mr. Michael Grandjean, signs an affidavit that is fundamentally false. It doesn’t make me a lot of difference that someone prepared it for him. He had an obligation, even having disclosed what the circumstances were, to say, [“]No, Mr. Prosecutor, I manage the property in that I am the executor. But they’re not behind in their rent. We never had an agreement as to what the rent ought to be. Maybe they should be charged rent, and perhaps I have an obligation as the personal representative of the estate to marshall together the assets of the estate to make the estate assets profitable, but I’ve not told them whether it’s a dollar a year or anything else.[”] That is a misstatement. And I believe under our law that he’s responsible for that. I don’t agree with you, Mr. Wilson, I will not disagree with you that maybe they’re different concepts of the law that we say are false arrest and malicious prosecution or something of that nature. But I say that in this context of these lawyers and this lawsuit that’s just a label. It’s a generic term. And the evidence presented here shows that Mr. Grandjean signed an affidavit; if he didn’t know he had good reason to believe or he’s chargefd] with knowing that a Magistrate is going to look at that and determine whether or not probable cause is shown. The Judge doesn’t hear this evidence. He determines from this writing whether or not. So I find that... the Plaintiffs have prevailed'on the issue of the illegal detention or unlawful arrest or whatever.

(Emphasis added.)

In whatever light the trial court may have regarded them, false arrest and malicious prosecution are separate torts, and the fact remains that the trial court was dealing with a suit for false arrest. False arrest, or false imprisonment, has been defined by this court (and was formerly defined by a criminal statute, long since repealed) as the unlawful violation of the personal liberty of another, consisting of detention without sufficient legal authority. Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433, 738 S.W.2d 418 (1987); Moon v. Sperry & Hutchison Co., 250 Ark. 453, 465 S.W.2d 330(1971).

Malicious prosecution, on the other hand, consists of the following elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the proceedings; (4) malice on the part of the defendant; and (5) damages. Hollingsworth v. First National Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993).

Michael Grandjean now advances a new argument on appeal that is appropriate to a claim for malicious prosecution rather than one for false arrest. In doing so, he asserts a point for reversal based on a tort not considered by the trial court and a defense not, strictly speaking, germane to the trial court’s finding of false arrest. For this reason, we do not consider his argument on appeal. Warhurst v. White, supra.

On appeal, Michael Grandjean insists, as he did at trial, that he went to the prosecutor only after having been advised by the estate’s attorney that, as administrator, he could seek his brothers’ eviction from the house. He avers that he presented all the facts concerning co-ownership of the property to the prosecutor. This is a malicious-prosecution defense and is of no moment in a suit for false arrest. Had the case below been litigated as a suit for malicious prosecution, or had Michael Grandjean objected to the nature of the proceedings, a different result might have obtained. As matters stand, though, we can neither consider an argument that has been raised for the first time on appeal nor fashion a holding on the basis of a form of action that was not pursued at the trial level.

We hold that the finding of the trial court is affirmed.

Glaze, J.,

concurs on the merits on the grounds that the appellant failed to prove malicious prosecution.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. It is clear this case was pled, tried and decided on the theory of “false arrest.” The complaint specifically alleges false arrest and the trial court awarded judgment to appellee Patrick Grandjean on that basis alone. The appellant’s single point of error on appeal is that “the trial court erred as a matter of law in giving judgment against the appellant.”

Before the trial court counsel for appellant carefully noted the distinction between false arrest/imprisonment and malicious prosecution, the latter cause requiring actual prosecution, an element lacking here. Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433, 738 S.W.2d 418 (1987). In fact, counsel cited the Headrick case to the trial court as distinguishing the two causes of action. Nor can I agree that appellant has altered his theory on appeal. It is now argued, as it was before the trial court, that he acted pursuant to his responsibility as executor, that Patrick and James Grandjean were occupying the only asset of the estate, rent-free, committing or permitting waste, and that appellant’s duty was to sell the property. In October 1992, some seven months after their father’s death, appellant consulted the attorney for the estate and was advised to evict the two brothers, which he proceeded to do.

There is no evidence appellant did not give a full disclosure to the deputy prosecuting attorney, in fact he showed him his Letters Testamentary. At no time did appellant claim that rent was owed by the brothers- the words “behind in there (sic) rent” were preexisting in a printed form used by the prosecutor and completed in the handwriting of the prosecutor. In short, all the appellant wanted was for the two brothers to vacate and when they did so he notified the prosecutor to dismiss the case.

Appellant’s brief asserts that appellant acted on advice of counsel, a defense “supported by a long line of decisions of this court.” It is true, as the majority observes, that those cases refer to malicious prosecution, but there is much overlapping of the substantive elements of the two torts and the cases cited are pertinent to appellant’s theory of error, the identical theory he presented to the trial court. Indeed, much of our discussion of these two torts is interchangeable: For example, in discussing false imprisonment, this court has stated that, as a general rule, where a person does no more than give information by affidavit to an officer relative to á matter over which he has jurisdiction, such person is not liable for a trespass for false imprisonment for acts done under a warrant which the officer issues on said charge. Moon v. The Sperry and Hutchinson Co., 250 Ark. 453, 465 S.W.2d 330 (1971). Yet in L. B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S.W. 194 (1911), one of the cases cited by appellant, we said (discussing malicious prosecution) “where one lays all the facts in his possession before the public prosecutor, or before counsel learned in the law, and acts upon the advice of counsel in instituting a prosecution, this is conclusive evidence of probable cause, and is a complete defense in an action for malicious prosecution.” In Laster v. Bragg, 107 Ark. 74, 153 S.W. 1116 (1913) cited by the appellant, we said that where a party “lays all the facts before counsel and acts bona fide upon the opinion of counsel he is not liable for malicious prosecution.” Yet, in McIntosh v. Bullard, 95 Ark. 227, 129 S.W. 85 (1910), in discussing false imprisonment, we wrote: “Where a person does no more than give information by affidavit to an officer relative to a matter over which he has jurisdiction, such person is not liable for false imprisonment which the officer issues on said charge.” In Beebe v. DeBaun, 8 Ark. 510 (1848), we said that malice and want of probable cause are both essential requisites to the maintenance of an action for false imprisonment. In Vinson v. Flynn, 64 Ark. 453 (1897), we said these were the essential elements of malicious prosecution.

I believe the appellant has not changed arguments on appeal and is entitled to a ruling on the merits. I would reverse and dismiss.

       More generally “false imprisonment.” See Prosser and Keeton, The Law of Torts, § 11,47 (5th Ed. 1984).


author: Robert H. Dudley, Justice.

text:
    Michael Jihad AKBAR v. STATE of Arkansas
    CR 93-966
    869 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

      Ogles Law Firm, P.A., by: John Ogles, for appellant.

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

Michael Jihad Akbar was found guilty of first degree murder and aggravated assault. His punishment was set at life imprisonment for the murder and six years imprisonment for the assault. He appeals from the murder conviction and argues that the evidence of intent to cause the victim’s death was insufficient to support the verdict. We affirm the judgment of conviction.

The standard of review is clear. In determining sufficiency of the evidence, the appellate court reviews the evidence most favorably to the appellee, and considers only the evidence that tends to support the verdict. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1993). The appellate court does not weigh the evidence, but rather determines whether evidence that supports the verdict of guilt is substantial. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Evidence is substantial if it is forceful enough to compel a conclusion one way or another. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986).

The law concerning murder is equally clear. “A person commits murder in the first degree if, with a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). The culpable mental state is “purposely” causing the death of another. “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202 (1) (Repl. 1993). Intent is seldom capable of proof by direct evidence. Usually, it must be inferred from the circumstances of the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). The intent necessary for first degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). It is axiomatic that one is presumed to intend the natural and probable consequences of his actions. Furr v. State, 304 Ark. 41, 822 S.W.2d 380 (1991).

Direct evidence is not required to support a conviction. Circumstantial evidence can provide the basis, but it must be consistent with the defendant’s guilt, and inconsistent with any other reasonable conclusion. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). Whether the evidence excludes any other hypothesis is for the jury to determine. Ciganero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992).

There is substantial evidence, both direct and circumstantial, to support the verdict in this case. Wendy Montgomery testified that she was near the Straight Up Club in Little Rock on the evening Kevin Cohn was killed. She testified that appellant drove his sports car past the club and then returned to the front of the club. Other testimony established that the car was a Datsun 280 ZX automobile with a T top, and all of the top was removed except for the permanent center part. This would allow a driver, without difficulty, to reach out of the open side window and the area above the open side window where the top would normally be. Ms. Montgomery testified that she saw another man, Jerry Craig, in the back seat of appellant’s car. She saw Craig stick his hand outside the car and “throw up” a “Crip” gang sign, by making a “C” with his thumb and forefinger. She testified that members of the “Eight Ball Posse” which is a “set” of a rival gang named the “Bloods” were present in the club’s parking lot. She testified that someone in the crowd became angry and hit appellant’s car with a beer bottle. Next, she saw appellant bend over, pull something from under the car seat, shoot a pistol into the air, and then begin firing into the crowd. She heard six or seven rapidly fired shots. She testified that she did not see anyone else, either in the car or in the crowd, fire a weapon. Very soon afterwards, she saw Cohn lying on the ground. Appellant fled the scene in his car.

Charles Thomas, a member of the Eighth Street Posse set of the Bloods gang, testified that he was outside the club the night of the shooting. Cohn told him there were some Crips in a nearby parking lot. One member of the Crips was wearing his cap pointed to the left, which indicates membership in the Bloods, but Thomas knew that this person was, in fact, a Crip. He stated that such an act was “perpetrating” and can cause trouble. He recognized appellant in this group. Thomas testified that he urged his group to stay out of trouble and to ignore the perpetrating. Thomas corroborated Ms. Montgomery’s testimony that subsequently a rider in appellant’s car threw up a Crip sign. He testified that appellant made the sign. He explained that making a Crip sign to members of the Bloods can cause trouble because the Bloods consider it to be disrespectful. He confirmed that someone hit appellant’s car with a beer bottle. He testified that he saw appellant begin shooting out the window of the car. He testified that, after the first shot, Cohn knocked him down, and that the second shot hit Cohn as he was attempting to get up and run from the attack. Thomas ran to Cohn after Cohn fell to the ground, and covered him with his body. Thomas heard eight or nine shots. He testified that appellant fled the scene in his car.

Tony Farr, the manager and part owner of the Straight Up Club, also testified that he saw the group standing on the parking lot and observed the bottle being thrown at appellant’s car. Although he is not acquainted with appellant and could not identify him in court, Farr stated that he saw a person’s hand come out of the driver’s side of the car, appellant’s side, and fire a pistol into the crowd. He subsequently recognized the victim, Cohn, lying on the ground. He saw appellant’s car flee the scene.

David Yarberry and Barbara Polite are both crime scene specialists for the Little Rock Police Department. They found two Remington Peters .380 caliber shell casings at the scene. One of them was bent, as if it had been run over by a car.

The medical examiner testified that Cohn was killed by a bullet wound to the chest. The bullet removed from Cohn’s chest was deformed. The testimony indicated the deformed projectile removed from Cohn was consistent with a .380 caliber bullet, although it was not identified definitely as that caliber.

Appellant admitted that he was driving his car at the place and time of the shooting, but contended that passengers in his car were the ones who fired the shots.

In summary, appellant admitted that he was driving the car from which the shots were fired. Wendy Montgomery saw appellant get a pistol out from under the drivers seat. Three witnesses, Ms. Montgomery, Charles Thomas, and Tony Farr, testified that they saw appellant begin rapidly firing the pistol. All three were positive they saw the hand that fired the gun come out of the driver’s window, where appellant was sitting, and not from anywhere else in the car. Charles Thomas saw the victim, Kevin Cohn, as he was hit by the second shot. Cohn died as a result of the shot to his chest. A large caliber bullet was removed from Cohn’s chest. This evidence of guilt, both direct and circumstantial, is sufficient to support a conviction for first degree murder. The evidence of the type of weapon used, the manner of its use, and the nature, extent, and location of the wound, infer an intent to commit first degree murder.

Appellant has been sentenced to life imprisonment. Accordingly, pursuant to Rule 4-3 (h) of the Rules of the Supreme Court and Court of Appeals, an examination of all rulings adverse to appellant has been made, and there is no reversible error in those rulings.

Affirmed.