author: Robert L. Brown, Justice.

text:
    Carolyn Lanore ARNETT v. STATE of Arkansas
    CR 99-1442
    27 S.W.3d 721
    Supreme Court of Arkansas
    Opinion delivered September 21, 2000

      Herbert T. Wright, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Carolyn Lanore Arnett was convicted of hindering apprehension or prosecution of Edward Ferguson and capital murder involving the death of Danny Rogers. She was sentenced to sixty months on the hindering-apprehension count and life without the possibility of parole on the capital-murder count, with the sentences to run concurrently.- She appeals from those judgments and raises four points on appeal: (1) substantial evidence does not exist to support her conviction for capital murder; (2) her statements should be suppressed due to an illegal arrest; (3) her statements should be,> suppressed due to an unnecessary delay in taking her before a magistrate; and (4) testimony regarding her presence at the murder of G.I. Higgins violated Ark. R. Evid. 404(b) as a prior bad act. None of the issues raised has merit, and we affirm.

On October 4, 1997, two murders occurred in Greene County. The victims were G.I. Higgins and Danny Rogers. Higgins was murdered that morning at his place of business in Paragould, G.I. Higgins Car Sales. Rogers was murdered in his van on a gravel road in Paragould after dark, and his van and body were then moved to a location about two to three miles outside of Paragould. On December 17, 1977, Edward Ferguson was arrested in Paragould for the theft of musical instruments and placed in the Greene County jail until his escape on February 14, 1998. On February 19, 1998, Ferguson and Arnett were arrested in connection with the escape.

After her arrest, Arnett gave four statements to law enforcement officers in Greene County. The dates and times of each statement follow:

Friday, February 20 at 5:12 p.m.
Friday, February 20 at 8:30 p.m.
Saturday, February 21 at 12:45 a.m.
Saturday, February 21 at 7:47 p.m.

She also took investigating officers to the crime scenes where evidence relating to the Higgins and Rogers murders had been destroyed. Arnett was taken before a circuit judge for her first appearance on Monday, February 23, 1998, at 1:00 p.m.

On February 23, 1998, Arnett was charged with capital murder, and on February 24, 1998, she was charged with hindering apprehension or prosecution with respect to Edward Ferguson. Prior to trial, she filed a motion to suppress her four statements due to an illegal arrest in Missouri and a second motion to suppress based on unnecessary delay in bringing her before a circuit judge for her first appearance under Ark. R. Crim. P. 8.1. Both motions were denied. She was tried before a jury, found guilty on both counts, and sentenced to life without the possibility of parole and sixty months.

I. Sufficiency of the Evidence

For her first point on appeal, Arnett contends that the trial court erred in denying her motion for a directed verdict because there was insufficient evidence to convict her of either capital felony murder (Ark. Code Ann. § 5-10-101(a)(l) (Repl. 1997)), or premeditated capital murder (Ark. Code Ann. § 5-10-101 (a)(4) (Repl. 1997)). She argues, rather, that she was merely present at the murder of Danny Rogers but took no part in it, and, accordingly, she claims an affirmative defense under Ark. Code Ann. § 5-10-101(b) (Repl. 1997).

This court has stated that the test for determining the sufficiency of the evidence is whether there is substantial evidence to support the conviction. Britt v. State, 334 Ark 142, 974 S.W.2d 436 (1998). We must affirm a conviction if there is substantial evidence to support it, and in our assessment we view the evidence in the light most favorable to the State. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). 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. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). Issues of credibility are for the jury to determine. Williams v. State, 338 Ark. 178, 188, 992 S.W.2d 89, 93 (1999).

Arnett contends that there is no proof that she was an accomplice to the murder of Danny Rogers and argues that her mere presence at the crime scene does not equate to accomplice status. She cites this court to Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990), in support of her argument. The Arkansas Criminal Code defines an accomplice in the commission of an offense as one who, with the purpose of promoting or facilitating the offense:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Ark. Code Ann. § 5-2-403 (a) (Repl. 1997); see also Britt v. State, supra.

Contrary to Arnett’s argument, there was evidence presented at trial of considerably more than her presence at the crime scene. Ferguson testified that it was Arnett who wanted him to rob someone so that they could have money to get on with their lives. Regarding the Higgins murder, Ferguson stated that he was drunk and killed Higgins because Arnett wanted the money. He shot Higgins six times, took his wallet, and returned to Arnett. There was no money in the wallet, and Arnett berated him for killing Higgins before he got Higgins’s ATM number. They destroyed the evidence of the crime together.

Regarding Danny Rogers, Ferguson testified that Arnett told him to rob Rogers and made the statement: “You done killed one person for no money, why stop now?” Arnett lured Rogers to a deserted road on the pretense that she needed Rogers to follow her back across town after she dropped off Ferguson. Ferguson testified that she said specifically: “He’s [Rogers] going to follow us out to the country. When he does, I want you to rob him.” According to Ferguson, Arnett told him that Rogers asked Arnett if she would have sex with him if he paid her. This infuriated Ferguson. He stated that Arnett then told him, “I’m going to the back of his van, and when I do, you get out and you shoot him and take his money.” After the shooting, Ferguson moved the van with the body to a more secluded area outside of Paragould, with Arnett following. They then went back to their apartment and destroyed the evidence. In Arnett’s fourth statement to police officers, she admitted that she knew Rogers was going to be robbed because they thought he had money and she saw Ferguson’s gun. She also admitted that she lured him to the location where Ferguson shot him and took his wallet. There was no money in it. They later burned the wallet.

Arnett submits that even if there was evidence that she lured Rogers to the site to be robbed, there was insufficient evidence that she encouraged the homicidal act. This court, however, has held that to sustain a conviction of capital felony-murder, it is not necessary that the defendant be shown to have taken an active part in the killing as long as she was an accomplice to, and had the requisite intent for, the underlying felony. Britt v. State, supra, (citing O’Neal v. State, 321 Ark. 626, 907 S.W.2d 116 (1995)). Here, Arnett admitted that she enticed Rogers to the rural area where he was robbed.

Moreover, there is ample evidence to support a conviction of premeditative murder based on the fact that Arnett was Ferguson’s accomplice. Ferguson testified extensively at Arnett’s trial that she advised, encouraged and solicited him to murder Rogers. According to Ferguson, she informed him that Rogers had money because he had just been paid and that Rogers had agreed to follow them to the destination where she told Ferguson to shoot him and take his money. That certainly is evidence of a plan to rob and kill Rogers.

Finally, Arnett’s argument that Ferguson’s story is inconsistent and should not be credited is of no merit as it is solely up to the jury to decide the credibility of a witness. Williams v. State, supra. From the evidence presented, it is clear that there was substantial evidence to convict Arnett of capital murder under either the premeditation count or the felony-murder count.

II. Illegal Arrest

Arnett’s next point is that she was arrested in the state of Missouri and that this was an illegal arrest. She contends that her four statements must be suppressed as a result. According to law enforcement officers, including Greene County Sheriff Dan Langston, Arnett told them where Ferguson could be found in Kennett, Missouri on February 19, 1998. She was afraid of Ferguson, according to Sheriff Langston, and wanted to see her children in Paragould. For those two reasons, she asked for transportation back to Arkansas. Chief Beasley of the Cardwell, Missouri Police Department obliged, while Sheriff Langston left to find Ferguson. When she arrived in Arkansas, she was arrested by deputy J.T. Harris of the Greene County Sheriff’s Department.

When a trial court’s denial of a motion to suppress is challenged, our court makes an independent examination of the issue based on the totality of the circumstances and views the evidence in the light most favorable to the State. Muhammad v. State, 337 Ark. 291, 295, 988 S.W.2d 17, 19 (1999). We reverse only if the decision to deny the motion to suppress was clearly against the preponderance of the evidence. Id.

Arnett claims that her arrest was illegal because she was arrested in Missouri without a warrant and transported across the state line into Arkansas. It is well-established that an Arkansas law enforcement officer cannot make a warrantless arrest outside of the territorial limits of his jurisdiction without statutory authority. See Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997). No statutory authority applies to this case. Nevertheless, we conclude that Arnett’s argument must fail.

In support of her contention that she was illegally arrested in Missouri, Arnett relies on the testimony of Sheriff Dan Langston that he would not have allowed her to leave had she tried to do so in Missouri. Arnett’s reliance on this statement, however, is misplaced because the subjective beliefs and opinions of other persons, including law enforcement officers, regarding whether a person is free to leave are irrelevant. See Ohio v. Robinette, 519 U.S. 33, 38 (1996) (“[s]ubjective intentions play no role in ordinary, probable cause Fourth Amendment analysis”). A person is “seized” under the Fourth Amendment if “a reasonable person would have believed that [s]he was not free to leave.” Perry v. State, 303 Ark. 100, 102, 794 S.W.2d 141, 142 (1990).

We agree with the State that the circumstances do not support a finding that Arnett was arrested in Missouri. There was no evidence presented that Arnett herself had the belief that she was not free to leave while she was in Missouri. To the contrary, the evidence shows that she repeatedly stated that she wanted to go back to Arkansas and accepted an offer from Chief Beasley to drive her back to Arkansas because she was afraid of Ferguson and wanted to see her children. At all times during the encounter in Missouri, she was aware that the men were plain-clothed police officers. However, no signs of arrest such as force or arresting language were manifested to her by the police officers, and she voluntarily went with Chief Beasley back to Arkansas. Once she was in Arkansas, she was legally arrested by a deputy of the Greene County Sheriffs Department. We cannot say that a reasonable person would have believed she was arrested in Missouri under these circumstances. See Perry v. State, supra. The trial court was correct in denying Arnett’s motion to dismiss the statements based on an underlying illegal arrest.

III. Unnecessary Delay

Arnett next argues that her four statements to law enforcement officers must be suppressed because of unnecessary delay in taking her before a magistrate. See Ark. R. Crim. P. 8.1. Rule 8.1 requires that “[a]n arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.” In this case, Arnett was arrested on the night of Thursday, February 19, 1998, and was first taken before a circuit judge in Paragould on Monday, February 23, 1998. During this interval of time, she made four recorded and several unrecorded statements to law enforcement officers. The circuit judge denied her motion to suppress these statements based on the delay, and she appeals that decision.

Arnett first claims that this court has adopted a forty-eight hour rule, which means that a delay in excess of forty-eight hours under Rule 8.1 is constitutionally unreasonable. She cites Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992), for this proposition and asserts that the remedy afforded to a defendant who has been held in violation of Rule 8.1 is the suppression of statements taken during the delay prior to the first appearance.

Pier reliance on the forty-eight-hour rule in Johnson v. State, supra, is misplaced. The forty-eight-hour rule and that case dealt specifically with the necessity for a probable cause hearing under Ark. R. Crim. P. 4.1 relating to an arrest. The instant case does not deal with the issue of probable cause for an arrest. It involves an alleged violation of Rule 8.1, which requires an appearance before a circuit judge to be informed of the charges against her, her right to remain silent, and her right to counsel without unnecessary delay.

This court has never adopted a specific time limit for measuring Rule 8.1 violations. Landrum v. State, 328 Ark 361, 944 S.W.2d 101 (1997)(citing Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987)). Instead, when Rule 8.1 is violated, the Court in Duncan set out a three-part test to determine whether a statement given during a period of delay must be suppressed: (1) whether the delay was unnecessary, (2) whether the resulting evidence was prejudicial, and (3) whether the resulting evidence was reasonably related to the delay. Id. See also Britt v. State, supra. The defendant has the burden of proving each prong of the Duncan test.

Here, there appears to be no doubt that Arnett’s four statements were prejudicial. She admitted that she assisted in the disposal and destruction of evidence relating to the deaths of Higgins and Rogers and further admitted to being present at the murder of Rogers. She added that she followed Ferguson in her vehicle when Ferguson moved Rogers’s van and body to a more secluded area. However, Arnett must also prove that the delay was unnecessary and that her statements reasonably resulted from the delay in order for suppression to occur.

We initially conclude that she did not prove that the delay was unnecessary. Arnett implies in her argument that she should have been taken before a judge sooner than February 23, 1998. However, as the State correctly points out, the record is silent on whether any court was in session during the times that her statements were given. Her statements were given Friday evening, early Saturday morning, and Saturday evening, and it stands to reason that no circuit judge was holding court at these times. And Arnett offers no proof to the contrary. The fact that a circuit judge was available to conduct a first-appearance proceeding hearing under Rule 8.1 was a crucial part of the appellant’s argument in Landrum v. State, supra. That circumstance has not been shown to exist in the instant case.

Arnett has further failed to show that her statements were reasonably related to the delay. This court has said that statements are reasonably related to a delay “if it reasonably appears the delay contributed to obtaining the confession.” Britt, 334 Ark. at 155, 974 S.W.2d at 442 (quoting Duncan, 291 Ark. at 530, 726 S.W.2d at 657). In determining whether a statement obtained from the accused was reasonably related to the delay, this court will consider the following factors: (1) any proof that the delay was for the purpose of obtaining a confession; (2) the frequency of police interrogation; (3) whether the accused was held incommunicado; and (4) the passage of time. Landrum, 328 Ark. at 365, 944 S.W.2d at 103.

Arnett argues that she was interrogated by police officers on four separate occasions during the period of the delay, including one interrogation which began at 12:45 a.m. In addition, she points out that she spent considerable time taking police officers to places where she and Ferguson had allegedly disposed of evidence relating to the murders of Higgins and Rogers. She argues in her brief that this is “a highly frequent system of interrogation allowing [her] little time for rest or contemplation between times.”

The evidence shows, however, that Arnett began requesting to talk to Sheriff Langston from the moment she was arrested and repeatedly asked to speak with law enforcement officers during the next three-and-a-half-day period. Her first statement was taken at 5:12 p.m. on Friday, February 20, 1998, and this was at her instigation. Indeed, up to the time of her first statement, law enforcement officers had no indication that she and Ferguson were involved in any murder. Thus, police officers had no reason to use delay to obtain a confession for the Rogers murder. Later, Arnett agreed to make three additional statements after being fully informed of her Miranda rights. We are hard pressed to conclude that her confession was reasonably related to a delay when the delay was prompted by her desire to speak with law enforcement officers. See Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990).

Arnett additionally argues that if she had been taken before a circuit judge, she would have been provided with the protections offered by Rule 8.1. She contends that she did not understand the charges against her, and a circuit judge was not given the opportunity to determine whether counsel should be appointed for her. In this regard, she relies on Clay v. State, 318 Ark. 122, 133, 883 S.W.2d 822, 828 (1994), where we said that had counsel been appointed, it is “most unlikely that the statements made would have been forthcoming.”

We give Arnett’s argument little credence in light of the fact that her actions precipitated the statements to the police officers, and she was repeatedly informed of her right to an attorney and her right to remain silent before every statement was taken. Thus, speculation that she might not have been as forthcoming and cooperative had she first appeared before a judicial officer is not persuasive. She was advised of her Miranda rights and could have requested an attorney or refused to answer questions at any time during her questioning. Yet, she continued to speak voluntarily with the law enforcement officers and never requested an attorney. Furthermore, the Clay decision is distinguishable. In Clay, a deputy sheriffhad verbally stated that they should “delay in taking Mr. Clay before a judicial officer ‘for evidence involving this case.’ ” Clay, 318 Ark. at 133, 883 S.W.2d at 828. There was clear evidence in that case that the delay was ordered by the deputy sheriff with the expectation that Clay would admit to the crime. There is no evidence of a comparable motivation in the case at hand or that the delay was deliberate, as was the case in Clay v. State, supra, or Duncan v. State, supra.

We further observe that Arnett’s last statement to police occurred Saturday evening, February 21, 1998, which was within two days of her arrest. Unlike the situation in Britt v. State, supra, where this court held that an unnecessary delay had transpired, Arnett was taken before a circuit judge the following Monday for her first appearance. In addition, there was no suggestion that the delay was caused so that police officers could conduct “further investigation,” which was the situation in Britt.

Viewing the totality of the facts and circumstances surrounding the four statements, and particularly the fact that no police misconduct occurred or is even alleged, there appears to be no basis for the suppression of Arnett’s statements. The trial court’s judgment is affirmed.

IV Prior Bad Act

For her last point, Arnett argues that the circuit court erred in admitting Ferguson’s testimony regarding her presence at the murder of G.I. Fliggins earlier that same day. This, she contends, was evidence of an inadmissible prior bad act under Ark. R. Evid. 404(b). She underscores the fact that she was not charged with participating in the murder of Fliggins, and asserts that Ferguson’s testimony was offered merely as proof of her bad character, which is inadmissible under Rule 404(b) as well as being unfairly prejudicial under Ark. R. Evid. 403.

Arkansas Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence or mistake or accident.

A circuit court has broad discretion in deciding whether to admit evidence pursuant to Rule 404(b). Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999).

We agree with the State that Arnett’s argument must fail because the evidence of her involvement in the Higgins robbery/ murder on the same date as the Rogers robbery/murder belies her defense that she acted with Ferguson only out of duress. Ferguson testified that Arnett needed money to make car payments and rent and that money was the primary reason for both the Higgins and the Rogers murders. He further testified that she told him Higgins had money and berated him for killing Higgins before he got Higgins’s ATM personal identification number. We discern no abuse of discretion in the ruling of the circuit court under Rule 404(b).

Arnett further argues that the Higgins evidence should have been excluded under Rule 403 because any probative value of this evidence was substantially outweighed by its prejudicial effect. She claims on this point that the State had other means of proving that she was not acting under duress, and, therefore, the balance under Rule 403 should be tipped in favor of the evidence being excluded because of its prejudicial effect. The State argues correctly, however, that the evidence of her involvement in the Higgins murder is extremely probative of the fact that she was not acting under duress either during the Higgins murder or later in the day when the Rogers murder occurred. Plus, the State had no other evidence which showed such a complete lack of duress. Again, we do not find that the circuit court’s ruling allowing evidence of the Higgins robbery/murder constituted an abuse of discretion.

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

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    James Richard HALFORD v. STATE of Arkansas
    CR 99-1246
    27 S.W.3d 346
    Supreme Court of Arkansas
    Opinion delivered September 21, 2000

      Ben Beland, Public Defender, by: Claire Borengasser, Deputy Public Defender, for appellant.

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

This is an appeal by appellant James Richard Halford from a judgment of conviction for aggravated robbery and a sentence of life imprisonment. Halford advances three grounds for appeal: (1) certain photographic evidence was cumulative, inflammatory, and unfairly prejudicial; (2) the trial court erred in disallowing defense counsel to cross-examine Patricia Payne on possible bias; and (3) victim-impact evidence presented during the sentencing phase was fundamentally unfair. We hold that none of these grounds warrants a reversal of the judgment, and we affirm.

The facts of this case were described by the victim, Everett Tolton, at trial. On April 15, 1998, Tolton, age 58, pulled into the driveway of his residence in Fort Smith for lunch and found a red Ford Escort station wagon parked there. He thought it might be his sister-in-law’s vehicle. He walked to the front door of his house and found it locked. He unlocked the door and went inside. After he said, “Hello, is anyone here?,” he heard a voice behind him say, “Hit the floor.” Startled, he turned and saw a person behind him who said, “Hit the floor I said. I will kill you.” The intruder was wielding a knife. Tolton fell to the floor and the intruder, who was later identified as Halford, tied his hands behind his back.

After taking the money from Tolton’s wallet and a gold ring, Halford told Tolton that he had to kill him. He turned Tolton over and began stabbing him in the face and ears. He next tried to choke him saying, “Give it up old man, you can’t fight me.” He added, “Goodbye.” Tolton freed his hands and grabbed Halford in the groin. He then grabbed the knife and backed Halford up into the entrance way of the house, at which point Halford began kicking him. Tolton fled the house, but while in his yard, Halford struck him on the head with an iron skillet. Tolton attempted to cut Halford, and Halford hit him in the head again. Tolton passed out for a few minutes. When he came to, Halford had left. Tolton went to his car and called 911 on his cellular phone.

At the ensuing trial, Tolton identified Halford as his assailant. The jury found Halford guilty of aggravated robbery, and after considering five prior felony convictions in Texas, the jury sentenced him to life in prison.

I. Photographic Evidence

Halford first argues that the trial court erred in admitting State’s Exhibits 6 and 7 because they were cumulative and inflammatory photographs following in the wake of State’s Exhibit 5. All three photographs depicted blood stains on the carpet at Tolton’s house. Halford further contested the admission of State’s Exhibits 10 and 11, which were photographs of Tolton, after the attack. Regarding State’s Exhibits 10 and 11, Halford claims that one of these photographs would have been sufficient. He also claims regarding all the photographs that they failed to assist the jury in understanding the testimony and contributed no additional probative value. The main purpose of admitting all the photographs, he contends in his brief, was to “get more blood in front of the jury.” He further states in connection with both sets of photographs that the trial court failed to apply the balancing test found in Arkansas Rule of Evidence 403, regarding whether the danger of unfair prejudice substantially outweighed the photographs’ probative value.

With respect to State’s Exhibits 6 and 7, which depict the blood on the living room floor, the State first maintains that Halford’s arguments are barred by his failure to make timely and specific objections to the introduction of the photographs. More specifically, the State argues that following the admission of State’s Exhibit 5, Halford’s counsel objected to the admission of one of the next two photographs based on their cumulative and inflammatory nature. But, the State contends, counsel’s objection was unclear and failed to specify which of the two photographs was the objectionable photograph. Additionally, the State notes that after the trial court allowed the next two photographs to be presented, the State offered them into evidence, and they were admitted with Halford’s affirmative assertion of “no objections.” Regarding State’s Exhibits 10 and 11, the State again asserts counsel was unclear as to which photograph he wanted excluded.

We conclude that defense counsel sufficiently preserved the issue of prejudicial photographs relating to Exhibits 6 and 7 for appeal. From the context of his objection and the argument that followed at the sidebar conference, it is clear that the discussion pertained to the next two photographs to be admitted after State’s Exhibit 5. Throughout the discussion, defense counsel had said that he did not want both photographs introduced because that would be cumulative and inflammatory. When the trial court made its ruling, it referred to allowing “those two to be introduced,” which, taken in context refers to State’s Exhibits 6 and 7. The same holds true for State’s Exhibits 10 and 11. Defense counsel argued that one of the photographs was all that was necessary, but the trial court ruled otherwise. It is clear to us that the ruling concerned State’s Exhibits 10 and 11.

This court will not reverse a trial court’s admission of photographs absent an abuse of discretion. See Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999) (citing Jones v. State, 329 Ark. 62, 947 S.W.2d 339, cert. denied, 522 U.S. 1002 (1997)). In Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997), we discussed the admission of photographs at trial and said:

Although highly deferential to the trial court’s discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. Berry v. State, 290 Ark. 223, 227, 718 S.W.2d 447, 450 (1986). We have cautioned against “promoting a general rule of admissibility that essentially allows automatic acceptance of all photographs of the victim and crime scene the prosecution can offer.” Id. at 228, 781 S.W.2d at 450. This court rejects the admission of inflammatory pictures where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature. Id. at 228-29, 781 S.W.2d at 450. We require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.

Camargo, 327 Ark. at 637, 940 S.W.2d at 467.

In this case, State’s Exhibit 6 displayed the same living room as State’s Exhibit 5 but from the opposite end of the couch in the direction of the hallway. It further displayed the victim’s wallet, which was not depicted in State’s Exhibit 5. State’s Exhibit 7 was a close-up of the blood stain on the floor in front of the couch and on it as well as a close-up of the victim’s wallet. We conclude that there is nothing in the record to suggest that the trial court adopted a carte blanche approach to the admission of the crime scene photographs. On the contrary, the photographs appear to serve a valid purpose in assisting the jury to better understand the layout of the crime scene. They clearly depict the living room from different angles and allow a more in-depth view of the scene itself.

With respect to State’s Exhibits 10 and 11, these were photographs of Tolton and his injuries. State’s Exhibit 10 is a vertical photograph of the victim. State’s Exhibit 11 is a horizontal photo of the victim from more of a close-up perspective and from a different angle. The trial court admitted them both following a sidebar conference on the basis that the second photograph showed Tolton’s wounds from a different perspective.

This court has said “that the nature and extent of a victim’s wounds is relevant to a showing of intent.” Jones, 329 Ark. at 66, 947 S.W.2d at 341 (citations omitted). Here, Halford was charged with aggravated robbery, an element of which is (1) that he be armed with a weapon or represent that he is so armed, or (2) that he inflict or attempt to inflict death or serious physical injury upon another person. See Ark. Code Ann. § 5-12-103(a) (Repl. 1997). Because State’s Exhibits 10 and 11 show the extent of the victim’s injuries from different angles, they are relevant for purposes of determining Halford’s intent. His intent may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wounds. See Camargo, 327 Ark. at 638, 940 S.W.2d at 468 (citations omitted). There was no abuse of discretion by the trial court regarding the admission of any of the disputed photographs.

As for Halford’s argument that the trial court did not discuss the Rule 403 balancing test regarding unfair prejudice, we observe that he did not specifically raise Rule 403 to the trial court; nor did he ask for or receive a ruling on this issue. We have, however, stated in the past that mounting an argument that evidence is “cumulative and prejudicial” is sufficient to raise the Rule 403 point. See Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997). Accordingly, we will address it. We have said that the trial court must “consider whether such evidence, although relevant creates a danger of unfair prejudice and then . . . determine whether the danger of unfair prejudice substantially outweighs its probative value.” Camargo, 327 Ark. at 637, 940 S.W.2d at 467 (citation omitted) (emphasis added). Here, there is nothing to suggest that the trial court did not engage in this analysis in making its ruling. If Halford harbored doubts in this regard, it was incumbent upon him to ask the trial court for a specific ruling. This he did not do.

II. Witness Bias

Halford next contends that the trial court erred in not allowing him to cross-examine State’s witness, Patricia Payne, regarding possible bias. He asserts that he put on the record the fact that the witness’s husband was in jail and that her brother was wanted on a warrant. He also wanted to ask her if she was hiding her brother, but the trial court denied this. He further states in his brief that he “made a record of the facts he wished to elicit from Ms. Payne.” It was error, he maintains, to exclude this relevant evidence of bias.

This court has held, and our Rules of Evidence require, that when challenging the exclusion of testimony, an appellant must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. See, e.g., Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999) (citations omitted); Arkansas Rules of Evidence 103(a)(2). At trial, defense counsel engaged in the following questioning of. the witness during cross-examination, which was then halted by the State’s objection:

DEFENSE Counsel: Who is Rick or Ricky Payne?
Payne: He is my husband.
Defense Counsel: Where was he at the time [in May of 1998 when Detective Steven Scott was interviewing you]?
PAYNE: He was incarcerated.
PROSECUTOR: I am going to object to relevance. I don’t know what relevance this has to this matter.
The Court: Why don’t you both step forward. (Bench conference).
The Court: What is the relevance?
Defense Counsel: Your Honor, her husband was in jail, her brother had outstanding warrants for him. I am going to ask her if it isn’t true that she was hiding her brother out to keep her brother from getting arrested and ask her if that had an influence on her statement to Detective Snell.

The trial court denied the line of questioning but did permit counsel to delve into whether any promises or assurances had been made by the State in exchange for her testimony. Counsel never pursued this line of inquiry.

What is critical to our determination of this point is that defense counsel failed to go forward and make any proffer of what Ms. Payne’s testimony would have been. He only advised the trial court that he wanted to pose certain questions to her. Hence, we can only speculate about Ms. Payne’s answers relating to bias and any resulting prejudice. Leaks v. State, supra. Accordingly, this point is not preserved for our review.

III. Victim-Impact Evidence

For his last point, Halford claims that the trial court erred in allowing Tolton’s victim-impact statement to be read to the jury in its entirety. In this statement, the victim voiced his opinion about Halford’s propensity for future crime, about what could have happened had Halford robbed the next-door neighbor who was elderly, and about his opinion that Halford had committed similar crimes before. He concluded that Halford should be punished to the “full extent of the law.” Halford contends that there is no way of knowing what weight the jury gave to this statement in returning its sentence but urges that the statement was irrelevant and fundamentally unfair. He asks this court either to modify the sentence or remand for resentencing.

We are foreclosed from reaching the merits of this issue because Halford did not object to Tolton’s victim-impact statement. This court has been adamant in holding that we will not consider arguments and issues not objected to at trial and raised for the first time on appeal. See, e.g., Hill v. State, 341 Ark. 211, 16 S.W.3d 539 (2000); Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). The limited exceptions to our plain-error rule are set out in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), and do not apply here.

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

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Danny Ray WOODS v. STATE of Arkansas
    CR 99-1269
    27 S.W.3d 367
    Supreme Court of Arkansas
    Opinion delivered September 21, 2000

      Kearny Law Offices, by: John L. Kearny, for appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Appellant Danny Ray Woods was convicted of rape, aggravated robbery, and residential burglary. He was sentenced as a habitual offender to life imprisonment for the rape and to 40 years for aggravated robbery and 30 years for residential burglary. For reversal, Mr. Woods argues that the trial court erred by denying his motion for a mistrial and by excluding the testimony of two defense witnesses. We find no error and affirm the convictions and sentences.

At approximately 2:30 a.m. on September 4, 1998, Ms. Aldena Jennings awoke to find an intruder in her bedroom. He had covered her head with a cloth and a sheet had been thrown over the television in order to darken the room. Ms. Jennings was raped at knife point, and then she was forced by the assailant to walk to an ATM machine located at a bank in the vicinity. While her assailant stayed out of sight behind the bank building, he ordered Ms. Jennings to withdraw funds from the ATM machine. She made an unsuccessful attempt to withdraw funds and then walked away from the ATM machine and headed toward a nearby university campus security office where she reported the attack. That office immediately notified the city police department, whereupon a police officer was dispatched to the scene. Ms. Jennings gave the following description of her assailant to the officer: a black man, approximately six feet and three inches tall, weighing around 150 pounds, and wearing white shorts and a striped or checkered shirt. This description was broadcast to all police officers in order for them to be on the lookout (BOLO) for a person fitting that description.

At approximately 5:40 a.m. that same day, a police officer spotted Mr. Woods walking through town wearing clothing that matched the description given by Ms. Jennings. The officer detained Mr. Woods and took him to the victim’s home, where she confirmed that his size and clothing were like her assailants. Mr. Woods was carrying a knife in his pocket at the time he was arrested and stains on his clothing were consistent with the damaged shrubbery outside of the window through which the assailant evidently entered the victim’s house. One of Mr. Woods’ thumbprints was later discovered on the frame of the window screen that had been removed by the assailant, and his DNA was a 1 in 200 trillion match to the semen from the rape kit.

At the trial, Mr. Woods testified in his own behalf that he did not rape Ms. Jennings. He testified that he had an ongoing sexual relationship with her that dated back a couple of years. It was his opinion that she fabricated the story of a rape out of jealousy. He admitted to having sexual intercourse with Ms. Jennings on the night of September 3, 1998, but claimed that it was consensual. According to Mr. Woods, he was walking to his brother’s house to pick up some carpentry tools when he was arrested around 5:40 a.m. on September 4, 1998. Ms. Jennings not only denied any ongoing consensual sexual relationship with Mr. Woods but also denied knowing him at all.

I. Motion for Mistrial

For his first point on appeal, Mr. Woods argues that the trial court erred in denying his motion for mistrial based upon the following testimony of Detective Daniel Dykes during cross-examination:

Defense Counsel: Do you have a personal ax to grind with this gentleman?
Detective Dykes: No, sir, I don’t.
Defense Counsel: Have you had any contact with him in the past?
DETECTIVE Dykes: I’ve arrested Danny Ray Woods for burglary, theft of property, theft by receiving. He was on federal probation when I first met him when I moved to Pine Bluff.

At this point, defense counsel moved for a mistrial, which the trial court denied on the basis that counsel invited the answer.

A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. We will not reverse a trial court’s decision to deny a motion for mistrial absent an abuse of discretion^ or manifest prejudice to the complaining party. Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). See also Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000); Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999).

In Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984), the trial court denied a motion for mistrial following a police officer’s testimony that the department had the defendant’s fingerprints on file because he had previously been arrested. The trial court determined that the officer could have believed his answer was a legitimate response to the question asked by defense counsel; as such, the testimony was invited by the defendant. We held that the trial court’s decision was not an abuse of discretion under the circumstances. Similarly, in the instant case, Detective Dykes could have believed his answer was a legitimate response to the question posed by defense counsel. Defense counsel asked Detective Dykes whether he had any contact with the defendant in the past. Detective Dykes responded affirmatively by describing his past contact with the defendant. The trial court determined that the testimony had been invited and denied the motion for mistrial. We cannot say the trial court abused its discretion.

Mr. Woods also cites King v. State, 9 Ark. App. 295, 658 S.W.2d 434 (1983), for the proposition that the trial court should have granted his request for a mistrial. That case, however, is inapposite. The statement challenged in King v. State, supra, was a gratuitous remark that was not responsive to the question. Here, on the other hand, the officer’s testimony was responsive to the question posed by defense counsel. Any error that may have occurred was invited by the defense.

Mr. Woods argues further on appeal that once a motion for mistrial is made by the defense, the trial court must assume the responsibility for considering other avenues that might eradicate any harm caused by the prejudicial testimony. He also argues that his Fifth and Fourteenth Amendment rights to due process and his Sixth Amendment rights to confrontation and the effective assistance of counsel have been violated by the denial of a mistrial. However, a review of the record demonstrates that Mr. Woods never raised any of these arguments before the trial court. It is well settled that an appellant may not change the grounds for objection on appeal but is limited by the scope and nature of his objections and arguments presented at trial. Ayers v. State, 334 Ark. 258, 264, 975 S.W.2d 88, 91 (1998). Moreover, we cannot consider arguments raised for the first time on appeal. Hill v. State, 341 Ark. 211, 16 S.W.3d 539 (2000); Wallace v. State, 326 Ark. 376, 379, 931 S.W.2d 113, 115 (1996). Even a constitutional argument, raised for the first time on appeal, will not be addressed. Claiborne v. State, 319 Ark. 537, 892 S.W.2d 324 (1995). We are therefore precluded from addressing these arguments on appeal.

Finally, Mr. Woods emphasizes the fact that his prior criminal conduct was mentioned a second time by Detective Dykes. This occurred when defense counsel concluded his cross-examination of Detective Dykes by asking the detective why he did not simply say yes in response to the previous question about prior contact with Mr. Woods. Once again, defense counsel elicited testimony by Detective Dykes that Mr. Woods was involved in other criminal conduct: “My first contact with Mr. Woods was shortly after he moved here from El Dorado, and I worked a case on him.” Although Mr. Woods stresses this second answer in his appeal, he did not raise any objection to this testimony at trial. A contemporaneous objection must be made to the trial court before we will review an alleged error on appeal. State v. Donahue, 334 Ark. 429, 978 S.W.2d 748 (1998). Thus, this argument is procedurally barred. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

II. Excluded Witnesses

For his second point on appeal, Mr. Woods argues that the trial court erred by refusing to allow him to call two witnesses. The trial court excluded the testimony of Mr. Edgar Goshen and Mr. Ricky Akins because Mr. Woods failed to notify the State about these witnesses before the day of trial. Mr. Woods argues that the trial court acted unfairly in excluding these witnesses, since defense counsel did not see the State’s full witness list until the morning of trial. We are unable to reach the merits of this issue.

“Where error is assigned in the refusal of the court to hear the testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial.” Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996); Ark. R. Evid. 103(a)(2). In the instant case, there was no proffer of what the two witnesses’ testimony would have been. In fact, in a rather perplexing response to the State’s argument pointing out the failure to proffer, Mr. Woods proclaims in his own reply brief that “the two (2) defense rebuttal witnesses never testified at all. No discussion is of record showing any effort to have the jury leave the Courtroom while the Court, without the jury present, heard the testimonies of the two (2) witnesses.” No proffer having been made, we cannot address the exclusion of the testimony of Mr. Goshen and Mr. Akins.

III. Arkansas Supreme Court Rule 4-3 (It)

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

       Appellant’s abstract of the record in this case is clearly deficient, notwithstanding his submission of an expanded abstract-brief after this court granted a joint motion to compel compliance with our abstracting rules. Furthermore, the State has not supplemented the abstract in its own brief. Because we must review all adverse rulings in this case pursuant to Ark. Sup. Ct. R. 4-3(h), we are not precluded from addressing the merits of appellant’s first point on appeal.


author: Ray Thornton, Justice.

text:
    Robert Todd BURMINGHAM v. STATE of Arkansas
    CR 99-678
    27 S.W.3d 351
    Supreme Court of Arkansas
    Opinion delivered September 21, 2000

      Randel Miller, for- appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant was convicted of rape, kidnapping, and aggravated robbery, and sentenced to eighty years in the Arkansas Department of Correction. The victim, S. W, a seventeen-year-old girl, was driving home from Lonoke to Cabot on the night of July 11, 1997. A car, driven by appellant, Robert Todd Burmingham, overtook her and signaled for her to pull over by flashing a blue light. Thinking she was going to receive a ticket for speeding, she stopped and turned toward the passenger seat to get her driver’s license. When she turned back toward her window, she saw appellant standing beside her window wearing a ski mask and carrying a gun. She was told to cover her face with a shirt, to get out of her car and into appellant’s vehicle, and was then driven to a remote house, where she was compelled to have sex with her assailant. Appellant raises seven points on appeal and, finding no reversible error, we affirm the convictions.

Because of our consideration of prohibitions against double jeopardy, we review the sufficiency of the evidence prior to examining trial error. Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996). In determining the sufficiency question, we disregard any alleged trial errors. Id.

Appellant urges that the trial court erred in denying his motion for a directed verdict. Motions for directed verdicts are treated as challenges to the sufficiency of the evidence. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). We have also noted that this review includes an evaluation of otherwise inadmissible evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We do not reweigh the evidence but determine instead whether the evidence supporting the verdict is substantial. McFarland, supra. We affirm a conviction if substantial evidence exists to support it. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion without having to resort to speculation or conjecture. Id. We do not, however, weigh the evidence presented at trial, as that is a matter for a factfinder. Wilson, supra. Nor will we weigh the credibility of the witnesses. Id. We have also noted that the testimony of the rape victim satisfies the substantial-evidence requirement in a rape case. Prater, supra.

Here, the trial court denied all motions for a directed verdict. To determine whether the trial court erred, it is necessary to review the trial testimony. First, S. W, the victim in the case, testified that on the evening of July 11, 1997, she was traveling home from Lonoke to Cabot. She stated that she was driving too fast and she noticed a car following closely behind. The car turned on a blue light and she pulled over. The victim testified that when she leaned over to get her driver’s license a man in a ski mask with a gun appeared at her window. The man gave her a shirt and told her to cover her face. She was then told that he was not going to hurt her but that his “buddy” was going to take her car and go to Little Rock to pick up his girlfriend. The victim further stated that he forced her into his car and drove her to a remote location and raped her vaginally. She was forced to remove her clothes and to perform oral sex. S. W also testified that the rapist smoked cigarettes and told her if she would “kiss hirn back” he would not hurt her. After the rape, she was told to get dressed, and was taken to a field, where she was told to lie face down until he was gone.

In addition to the foregoing testimony, S. W was able to give a meticulously detailed description of where the rape occurred. Her description of the house included the following information: (1) the house was off a gravel road; (2) there were steps leading onto a porch with a screened door; (3) the door opened from left to right and was opened with some difficulty; (4) there was a rocking chair, which had a loose arm, on the inside to the left of the door; (5) the kitchen was also to the left of the front door; (6) the house had a bedroom; (7) the bathroom had a wooden cabinet with a sink in it; and (8) the living room had hardwood floors. S. W.’s description of the house matched that of a vacant home owned by appellant’s father. The victim also gave a description of the car in which she was kidnapped. She stated that the car was a two-door, with bucket seats, and did not have air conditioning. Her description matched a car owned by appellant’s wife.

Kermit Channel from the Arkansas State Crime Laboratory also testified at trial. He explained the process used in establishing a DNA profile. Mr. Channel also testified that the semen sample obtained from S. W.’s rape kit allowed him to prepare a DNA profile on her attacker. He stated that appellant’s DNA profile matched S. W.’s rapist and that there was one chance in a trillion that the DNA on the vaginal swab recovered from S. W., following the rape, came from someone else.

After reviewing the evidence, we have determined that there was substantial evidence to support appellant’s convictions. Specifically, we hold that there was evidence, both direct and circumstantial, that was forceful enough to compel reasonable minds to reach a conclusion without having to resort to speculation or conjecture. Accordingly, the trial court’s denial of appellant’s motions for directed verdict is affirmed.

Appellant next contends that the trial court erred when it refused to provide him with funds to hire a DNA expert and a private investigator. Appellant has divided this issue into two questions. He outlines the issues as follows: (1) whether the trial court erred in ruling that appellant was not indigent; and (2) whether an indigent defendant that has been provided counsel from a collateral source is entitled to state-funded auxiliary services. Appellant also questions whether the trial court in all cases where the key evidence is DNA should always provide funds for indigent defendants to have the services of a DNA expert.

First, we address the question of whether the trial court erred in determining that appellant was not indigent. On appeal, the standard of review is whether the trial court abused its discretion in finding that petitioner was not indigent. Hill v. State, 304 Ark. 348, 802 S.W.2d 144 (1991). In Hill, we outlined the criteria to be used in determining the indigency of a defendant. We stated:

This court has considered indigency on a case-by-case basis, as have most other jurisdictions. Most appellate courts have held that a person need not be destitute to qualify as an indigent. The burden of establishing indigency is on the defendant claiming indigent status, and the defendant who seeks indigent status is responsible for verifying the motion to proceed as a pauper with a supporting affidavit as set out in our Rule 28.
While there is no bright-line test for indigency, which is a mixed question of fact and law, some of the factors to be considered are: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for the appeal.
The ability of bystanders such as friends and family members to post bond or assist with expenses is not a factor in determining the appellant’s indigency since indigency of the appellant does not depend on the financial position of his family and friends. Bystanders have no obligation to the state. An exception could be made, however, where the appellant has control or complete discretionary use of funds raised by others.

Hill, supra, (citations omitted).

In the present case, appellant filed an affidavit of indigency on March 10, 1998. In that affidavit, appellant declared:

I have been incarcerated since mid-September, 1997, in Lee County Jail on a total bail of $400,000.
I am married and have two children. I farm for my father-in-law, and he pays me a salary. In the off-season he pays me $250 per week, which is paid over to my wife to help with her support and our children’s support since I am in jail.
My wife, Angie, also works and it takes all the money she makes plus the above mentioned to make ends meet now that I am in jail.
We are buying the mobile home we live in that is situated on approximately eight acres of land in which my parents have a life estate. At their deaths this land goes to my son. Another eight acres of land that they live on, they have a life estate in. When they die I will own 1/5 of that eight acres.
I also farm seventeen acres of land that my sister owns. I get approximately $5,000 per year as my part of that. That has already been paid for 1997 and spent or is being spent for support of my wife and children, and I expect no more income from that as long as I am incarcerated.
I have no savings, stock, bonds, mutual funds, securities or anything of that nature that could be converted to cash.
The only personal property I own is jointly with my wife and is of little market value. It is needed by her for use for her and the children: things such as older used cars, furniture, appliances, and household goods.
I have no cash, bank accounts, real estates or personal property of any significance. I cannot make bail, so I will remain in jail pending trial.

After reviewing appellant’s affidavit, we note that it does not give totals as to how much money appellant had at the time of his petition or how much debt he had at the time of his petition. It appears that a hearing was held on January 16, 1998, to discuss appellant’s petition to be declared indigent so that he could receive funds to hire a private investigator and a private DNA expert. This hearing is not in the record.

Based upon the record before us, appellant did not meet his burden of showing that the trial court erred in determining that he was not indigent. Without a record of the hearing before the trial court on the question of indigency, we cannot determine that the trial court’s finding that appellant was not indigent was an abuse of discretion. Accordingly, we affirm the trial court’s finding that appellant was not indigent.

Because the trial court did not commit error with regard to this finding, the remaining issue of whether an indigent criminal defendant is entitled to receive state funds for the hiring of a DNA expert or a private investigator is not presented by the facts of this case. Additionally, we note that appellant was not prejudiced by this finding because he was able to obtain the services of a DNA expert for use at trial without receiving state funds.

In his next point on appeal, appellant argues that the trial court erred when it allowed the State’s expert witness to testify that appellant was the person who produced the DNA found in the victim’s rape kit. Specifically, appellant contends that an expert may only testify as to the probabilities of some other individual contributing the DNA found in the rape kit, but may not express an opinion that the DNA evidence shows that appellant was the donor of the DNA material found on the victim’s vaginal swab.

The testimony that is objected to is as follows:

Q: [Mr. Long, State’s Attorney]: And what is the probability of finding someone random, in the world, who matches on all fifteen points as that does?
A: [Mr. Channel of the Arkansas Crime Laboratory] The statistics that would generate from that would be one in one trillion. And what that does, we’re trying to determine how rare or how common that DNA profile is in the general population and specifically in the Caucasian population. So that gives me the ability to render an opinion on that to say that the DNA profile on the DNA vaginal swabs from S.W came from that of Robert Burmingham.
Q: Period?
A: Yes, that’s correct.
Q: When you reach that order of numbers you’re not talking about probabilities any more. What you are saying is, it is him?
A: Right —
Mr. Miller: [Defense Attorney] Your honor, I object —
Dr. Channel: Bight, It’s my opinion that it’s him.
The COURT: Hold on, Mr. Channel. What’s the basis of your objection?
Mr. MILLER: This witness has just testified as to probabilities. He cannot, based on what he just said, testify with absolute certainty that in his; it can only be him. He can testify to the probability, but not to identify him as the only person to the exclusion of all others. I don’t think —
Mr. LONG: He just said that he could. Now, if Mr. Miller wants to bring an expert witness that says he can’t, then fine, we can wait for him.
The COURT: The objection is overruled. You may proceed.

Appellant argues that an expert witness can only express statistical probabilities of a DNA match, and must refrain from expressing an opinion as to the origin of the tested DNA material. Appellant’s argument must fail. We first note the testimony by the State’s expert that the DNA material on the swab was identical to that obtained from a blood test from appellant in all fifteen points analyzed, and that the probability of finding such a match would be one in one trillion. This scientific analysis was not challenged by appellant’s DNA expert. We also note that it has been nearly a decade since our decision in Prater, supra, where we held that DNA testing is a reliable scientific procedure. Based upon the undisputed testimony in this case, we hold that the trial court did not err in permitting the expert to testify that in his opinion appellant was the source of the DNA material found on the victim’s vaginal swab.

In his next point on appeal, appellant contends that his due process rights were violated when the trial court allowed the State to pursue a line of questioning regarding appellant’s ability to retest the DNA evidence. Specifically, appellant argues that because the State introduced evidence that appellant had an opportunity to have the DNA evidence retested the burden of proof was shifted to appellant to prove his innocence instead of the State having to prove his guilt.

The testimony that the trial court allowed and that the appellant is now challenging is as follows:

Q [Prosecuting Attorney, Mr. Long]: Now, is it your practice in your laboratory to obtain a sample for further testing by the defense if they so desire?
A [Kermit Channel] [DNA expert from the State Crime Laboratory]: Yes, we do.
Q. And —
Mr. Miller[Defense ATTORNEY]: Your honor, may we approach?
Mr. Miller: Your honor, I object to him making the argument to the jury or asking questions about saying this was available to be tested. We had no obligation to test this. And if we ask any questions that would open the door to that, I don’t think that would be proper for them to say “this was available and they could have tested it.”
MR. LONG: Judge, I think I’m entitled to do that because if I don’t, I’m sure we’re going to hear the argument, or I might possibly hear the argument “we don’t know what somebody else’s results would be.” And I want to be able to answer that argument by saying they are not able to prove anything, but if they wanted to question the results here they are. I’m not aware it’s not commenting on the accused’s failure to take the stand. The prosecution can always comment on the failure of other evidence - other proof of the defense. There is nothing improper about that.
The COURT: Is that an objection, Mr. Miller?
Mr. Miller: Yes, it is.
The COURT: Okay. It’s overruled.
Q. [Mr. Long] : Now, the defense requested, and you did provide to the defense, the material in your file in connection with this DNA testing?
A. [Mr. Channel]: Yes, I did.
Q. Does that material indicate the availability of the additional material for testing?
A: Yes, it does.
Q: And was any such material requested from you for testing?
A: No, it was not.

Appellant’s argument is misplaced. The record reveals that the testimony elicited from Mr. Channel by the State merely established the availability of the DNA sample to be retested by any party. Mr. Channel’s testimony did not imply that it was appellant’s responsibility to have the sample retested. We hold that the trial court did not abuse its discretion in allowing the State to introduce this line of testimony.

In his fifth point on appeal, appellant argues that the trial court erred in permitting the testimony of another alleged victim of a “blue light rape” that occurred in Marianna. The State introduced this evidence pursuant to Rule 404(b) of the Arkansas Rules of Evidence. On this issue the trial court found that “the State will be permitted to offer evidence of a rape in Marianna, Arkansas, allegedly committed in exactly the same fashion as evidence of method of operation, similar scheme (plan) or intent.”

Rule 404(b) of the Arkansas Rules of Evidence states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

We have recognized that the list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list but rather represents examples of the types of circumstances where evidence of other crimes or wrongs or acts would be relevant and admissible. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994). The test for establishing motive, intent, or plan as a Rule 404(b) exception is whether the evidence of the other act has independent relevance. Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000). Evidence is indisputably relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Id. In our review of the admission or rejection of evidence under Rule 404(b), we have noted that trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Lindsey, supra.

In a case involving facts strikingly similar to the one now on review, a former deputy sheriff was convicted of raping a woman whom he stopped with his patrol car. Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993). In analyzing the issue, we stated:

[T]he circuit court allowed Brenda Kaup, Dillon’s purported victim on October 12, 1990, to testify under A.R.E. 404(b) because her testimony was evidence that Dillon followed a particular plan, or modus operandi, with Tammy Falcone. Dillon’s plan, as revealed by Kaup’s testimony, was consistent with the circumstances depicted in Falcone’s testimony. According to the respective testimony, both women were unaccompanied when they were pulled over. Both women were accused of crossing the center line, and both were ordered to get into the patrol car. Both women had family out of town: Falcone’s husband was in Saudi Arabia, and Kaup’s family lived out of state. In Kaup’s case, she stated that Dillon threatened to take her in for DWI but said perhaps he could work something out. At that point he obliged her to expose herself to him under the pretext of searching for drugs. He then released her and followed her to her babysitter’s house.

Dillon, supra. After reviewing the testimony, we explained that “we have held that modus operandi evidence is admissible in rape cases to prove a common plan. Id. (citing Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971)). We then went on to note that “this situation fits squarely within that holding” and affirmed the trial court’s decision to allow the 404(b) evidence to be introduced at trial. Id.

To determine whether the trial court erred in allowing evidence of another act to show whether a modus operandi was used, we must review the other victim’s testimony. The witness testified that on the evening of January 9, 1996, she was driving home from Marianna to Forrest City. She also stated that she was speeding and she could see a car following her. The witness then testified that the car following her turned on a blue light and pulled her over. She further stated that she thought she was going to receive a ticket so she was looking for a driver’s license in her purse when a man in a ski mask with a gun appeared at her car door. The witness also testified that the man told her to cover her eyes with a sweatshirt. He told her to get out of her car and that he would not hurt her but that he wanted her car. He said that he and his “buddy” would just take her down the road and drop her off. The rapist told her to remove her clothes and that he was not going to hurt her. The witness then stated that the man was a smoker who took her to a “field road” and raped her vaginally. She finally testified that after the rape he told her to put her clothes back on, drove her down “the road a little ways,” stopped the car, and took her to the edge of the woods where he made her lie face down with the sweatshirt on her head until he was gone.

At the outset we note that the two rape kits each supported an expert opinion that the source of the DNA was the same individual. Comparing this witness’s testimony to the events described by S.W, it appears that appellant performed his rapes following the same modus operandi on both victims. Specifically, both victims were traveling alone at night by automobile. Both were stopped by a man who followed them and pulled them over with a blue light. The rapist in both situations wore a ski mask and forced the victim to cover her face with a shirt. Both victims were assured that they would not be hurt but that the attacker just wanted to use their car. Both victims were vaginally raped. Both victims were taken to a remote area and told to lie face down while the attacker drove away.

We conclude that the other victim’s testimony was relevant evidence that appellant followed a particular modus operandi with S. W. and that such evidence is admissible in rape cases. As revealed by the other victim’s testimony, the modus operandi followed during her attack was consistent with the circumstances depicted in S. W’s testimony. As in Dillon, supra, we hold that allowing the other victim to testify was not an abuse of the trial court’s discretion.

In his sixth point on appeal, the appellant contends that the trial court erred in granting the State’s motion in limine to exclude appellant from presenting evidence at trial that while appellant was incarcerated other “blue light” rapes occurred. This ruling prevented appellant from claiming that an unnamed third party committed the crime.

In Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), we addressed the issue of admitting evidence intended to incriminate others of a crime charged against a defendant. We considered under what circumstances such evidence would be admitted to prove the defendant did not commit the crime. Id. Citing language from two other jurisdictions, which we adopted as our new rule, we stated:

A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible.
State v. Wilson, 367 S.E.2d 589 (N.C. 1988).

The Supreme Court of California has recognized that a defendant has the right to present evidence of third party culpability but stated:

[T]he rule does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability ... [Ejvidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.
People v. Kaurish, 802 P.2d 278 (Cal. 1990).

Zinger, supra. On review we must determine whether the trial court abused its discretion in refusing to allow the evidence to be admitted. See Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997).

Turning to the facts of this case, we do not know what evidence of third-party culpability appellant wished to introduce because appellant did not proffer such evidence for our review. However, assuming that he wanted to merely make the jury aware that other “blue light rapes” had occurred while he was in jail, this evidence would be inadmissible. Specifically, appellant could have only properly introduced evidence which pointed to the guilt of a third party who could be linked to the crime for which appellant was charged. Presenting evidence that other “blue light rapes” occurred while appellant was in jail without additional evidence does nothing more than create an inference or conjecture as to another unnamed individual’s guilt in an unrelated crime. Because appellant failed to provide evidence as to a particular third party’s guilt in the rape of S. W, we hold that the trial court did not abuse its discretion in granting the State’s motion in limine.

In his final point on appeal, appellant argues that the trial court erred in refusing to grant his motion to suppress blood samples taken from him prior to his consultation with an attorney. On March 10, 1998, appellant filed a motion “to suppress all evidence taken as a result of bodily searches (blood, saliva, urine, and hair) for DNA testing taken without his consent on September 11, 1997.” The trial court denied appellant’s motion. On appeal, appellant contends that the evidence should have been suppressed because he was not permitted to consult with an attorney prior to the giving of the sample in violation of Rule 18.1 of the Arkansas Rules of Criminal Procedure and other constitutional principles, and therefore his right to counsel was violated.

First, it should be noted that our Rule 18.1 does not give a defendant a “right to consult with counsel.” It merely states that if a defendant has an attorney, notice of the taking of the samples will be given to that attorney. Id. Specifically, Rule 18.1 of the Arkansas Rules of Criminal Procedure states in relevant part:

(a) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the defendant to:
(vii) permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof; and
(ix) submit to a reasonable physical or medical inspection of his body.
(b) Whenever the personal appearance of the defendant is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the prosecuting attorney to the defendant and his counsel. Provision may be made for appearances for such purposes in an order admitting the defendant to bail or providing for his release.

Id.

There is no constitutional right to counsel prior to the filing of formal charges. See Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995). Specifically, we have held that when there has been only an arrest and the information or indictment has not been filed, formal proceedings have not begun and no right to counsel attaches. Id.

Here, the samples were taken September 11, 1997, and a felony information was not filed against appellant until September 19, 1997. At the time the trial court ordered appellant to give the blood sample, formal charges were not pending and his right to counsel had not yet attached.

It should also be noted that appellant did not have a Fifth Amendment right to consult with an attorney because the evidence he was forced to give to the court was demonstrative in nature. See Schmerber v. California, 384 U.S. 757 (1966) (holding that the Fifth Amendment right against self-incrimination does not protect against a defendant being forced to give a blood sample).

In this case, appellant was not represented by an attorney at the time the trial court ordered the taking of the samples from appellant. Rule 18.1 only requires giving notice to appellant, and his attorney if he had one. Even if Rule 18.1 had been violated, which we have concluded it was not, we have held that suppression of the evidence is not the appropriate remedy for the State’s failure to comply with Rule 18.1 (b). Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). Under these circumstances, we hold that the trial court’s denial of appellant’s motion to suppress was proper and affirm the trial court.

Having found no reversible error, we affirm the trial court on all points.

Affirm.

       During oral arguments, appellant challenged the accuracy of the State’s DNA evidence on the basis that the evidence was the product of “junk science.” This argument, however, was not raised at trial or in appellant’s brief. Thus, we will not address it on review.


author: Lavenski R. Smith, Justice.

text:
    SHOWMETHEMONEY CHECK CASHERS, INC. v. Wanda WILLIAMS and Sharon McGhee
    99-1398
    27 S.W.3d 361
    Supreme Court of Arkansas
    Opinion delivered September 21, 2000

      The Rose Law Firm, A Professional Association, by: Allen W. Bird II, for appellant.

      Friday, Eldredge & Clark, by: R. Christopher Lawson and Chris A. Averitt and Morgan & Turner, by: Todd Turner, for appellees.

      Stacy J. Canan and Deborah M. Zuckerman and Bond & O’Brien, by: Will Bond, for brief of amici curiae.

   Lavenski R. Smith, Justice.

Appellant Showmethemoney, Inc. (“Showme”) appeals the Clark County Circuit Court’s denial of its Motion to Arbitrate the claims of Appellees Wanda Williams and Sharon McGhee. Williams and McGhee filed a class-action lawsuit against Showme alleging it had violated Arkansas’s usury law. Showme argues that the trial court erred by not enforcing language contained in a “Check Cashing Agreement” prepared by Showme and signed by the appellees which purported to require arbitration of all claims. We disagree and affirm.

Facts

Showme entered into agreements with its customers wherein the customers obtained up to $100 cash in return for checks of equal amount plus a $15 “check cashing fee.” Showme promised to hold the checks and deposit them on an agreed date in the future usually coinciding with their next periodic payment from an employer or other payer. In August 1998, McGhee received a cash advance from the Conway Showme office, where she received $300 cash and provided Showme with three $115 checks ($345 total) to be cashed when she got her next paycheck.

In January 1999, Williams received a cash advance from the Arkadelphia Showme office, where Williams took out a $200 loan and provided Showme with two $115 checks ($230 total) to be cashed when she got her paycheck. Both women did not repay the loans or have their checks cashed on the following payday. Instead, both women returned to the Showme offices, paid an additional $15 for each check ($45 total for McGhee; $30 total for Williams) so that Showme would again hold the checks until the following payday. Both women repeated this process several times. For instance, McGhee ultimately paid $720 in “fees” over an eight-month period on the original $300 advance without reducing the principal of the debt.

On February 5, 1999, Williams filed a class-action complaint against Showme alleging that the cash loans provided by Showme violated the Arkansas usury laws as stated in Article 19, Section 13 of the Arkansas Constitution and Ark. Code Ann. § 4-57-101 to § 4-57-108 (Repl. 1996). Showme filed a motion to dismiss and to compel arbitration on February 26, 1999, alleging that Williams’s complaint violates the Arkansas Uniform Arbitration Act because the parties agreed to arbitrate such issues in the loan agreement signed by Williams. In addition, Showme argued that Williams’s complaint should be dismissed under Ark. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

Williams proceeded to file requests for discovery, and Williams and McGhee filed an Amended Class Action Complaint around July 8, 1999, restating the cause of action in the original complaint, but adding McGhee as an additional class representative based on her claims against Showme. Showme again filed a motion to dismiss and compel arbitration on July 27, 1999.

The trial court held a hearing on August 6, 1999, to consider the pleadings and motions filed by the parties. Showme presented testimony from Robert A. Srygley, owner of Showme, and counsel for the appellees cross-examined the witness. Srygley was the only witness at the hearing. Counsel for both parties argued before the trial court, and the court issued its oral ruling at the hearing, denying both the motion to dismiss and motion to compel arbitration.

Following the hearing, the court issued its order on August 26, 1999. In its order, the court denied Showme’s motion to dismiss, finding that the appellees’s amended complaint stated a cause of action for usury under Arkansas law, and further found that the arbitration clause was unconscionable and unenforceable as well as conflicting and potentially illegal should the usury claim be found to be true. Consequently, the trial court denied the motion to arbitrate under either the Arkansas or Federal Arbitration Acts. On November 29, 1999, Showme filed its appeal from the denial of its motion to arbitrate.

Jurisdiction and Standard of Review

Our jurisdiction arises under Ark. R. App. P. — Civ. 2(a)(12). The denial of a motion to compel arbitration is an immediately appealable order. Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999); Terminix Int’l Co. v. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996); American Ins. Co. v. Cazort, 316 Ark. 314, 871 S.W.2d 575 (1994).

Our review of the trial court’s denial of a motion to compel arbitration is de novo. Walton v. Lewis, supra, (decision made under Federal Arbitration Act)

Arbitration clause

On appeal, Showme argues that both the Arkansas Arbitration Act and the Federal Arbitration Act apply, and that both require arbitration of this usury claim pursuant to the contract language to which Williams and McGhee, as well as all other possible class members, agreed. Showme’s written “Check Cashing Agreement,” in addition to detailing the amount of the loan and terms of repayment, also contained language which Showme contends constitutes a valid arbitration clause. The subject language in the agreements states:

All disputes and controversies of every kind and nature between the parties hereto arising out of or in connection with this agreement as to the existence, construction, validity, interpretation or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination thereof, as well as whether the controversy or dispute is subject to arbitration, and the amount of any loss or damage, shall be submitted to arbitration pursuant to Ark. Code Ann. § 16-108-201, ET SEQ., except, only, insofar as actions of Showmethemoney Check Cashers, Inc., to collect amounts due it.
The parties hereto stipulate and agree that this provision for mandatory arbitration shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy or dispute arbitrable under the terms hereof, which terms requiring arbitration shall survive the termination or expiration of the agreement involved.
The parties specifically state their understanding that Showmethemoney Check Cashers, Inc., cannot be sued in any court or (sic) any controversy or dispute.

The issue presented by this case is whether this language created a valid and enforceable arbitration agreement under Arkansas law. The Arkansas Uniform Arbitration Act, found at Ark. Code Ann. § 16-108-201 to § 16-108-224, outlines the scope of arbitration agreements in Arkansas. Ark. Code Ann. § 16-108-201 states:

(a) A written agreement to submit any existing controversy to arbitration arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.
(b) A written provision to submit to arbitration any controversy thereafter arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract; provided, that this subsection shall have no application to personal injury or tort matters, employer-employee disputes, nor to any insured or beneficiary under any insurance policy or annuity contract.

Ark. Code Ann. § 16-108-202 further states:

Proceedings to compel or stay arbitration.
(a) On application of a party showing an agreement described in 16-108-201 and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied.
(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
(c) If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subdivision (a) of this section, the application shall be made therein. Otherwise, and subject to 16-108-218, the application may be made in any court of competent jurisdiction.
(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section, or, if the issue is severable, the stay may be with respect thereto only. When the application is made in the action or proceeding, the order for arbitration shall include the stay.
(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

These two statutes, read together, provide that a party in a lawsuit may apply to the trial court to obtain a stay of the proceedings and an order for arbitration pursuant to their agreement. The party resisting arbitration may only dispute the existence or validity of the agreement to arbitrate.

In Arkansas, as a matter of public policy, arbitration is strongly favored, and is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. May Constr. Co. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000); Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996); Lancaster v. West, 319 Ark. 293, 891 S.W.2d 357 (1995); see also, Estate of Sandefur v. Greenway, 898 S.W.2d 667 (Mo. App. WD. 1995). If there is no case law and no compelling policy on an issue, provisions of the Uniform Arbitration Act should be construed consistent with the decisional law of other states that have adopted the Act. May Constr. Co. v. Thompson, supra; Heineman v. Charno, 877 S.W.2d 224 (Mo.App.WD. 1994). Arbitration is simply a matter of contract between the parties. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995).

The question of whether a dispute should be submitted to arbitration is a matter of contract construction. International Union, United Auto., Aerospace, & Agri. Implement Workers of Am. v. General Elec. Co., 714 F.2d 830 (8th Cir. 1983). The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally. May Constr. Co., Inc. v. Benton Sch. Dist. No. 8, 320 Ark. 147, 895 S.W.2d 521 (1995). Therefore, the court should seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself, with doubts and ambiguities being resolved in favor of arbitration. Id. The Federal Arbitration Act and the laws of other jurisdictions do not restrict the scope of arbitration as we do in this state. Under Arkansas law, certain matters are not arbitrable, regardless of the language used in an arbitration agreement. Terminix Int’l Co., supra. Generally, the scope of arbitration is defined by the contract between the parties, see Anthony, supra, and the Act contemplates that the courts will effectuate this agreement.

The preliminary issue in this case is whether the subject language constitutes a valid contract to arbitrate. Showme stated during oral argument that it contended that the relationship between the parties consisted of three separate contracts. One of those contracts was an agreement to arbitrate. Again, the same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally. May Constr. Co., Inc. v. Benton Sch. Dist. No. 8, supra. The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000); Hunt v. McIlroy Bank & Trust, 2 Ark. App. 87, 616 S.W.2d 759 (1981). Of particular importance to this case is the element of mutuality of obligations. The concept of “mutual obligations” has been explained by this court as follows:

A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party." . . . [M]utuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.” A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other.

Townsend v. Standard Indus., Inc., 235 Ark. 951, 954-955, 363 S.W.2d 535, 537 (1963) (quoting El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S.W. 460 (1910) (citations omitted)). Mutual promises that constitute consideration for each other are the classic method of satisfying the doctrine of mutuality. Odom Antennas, Inc. v. Stevens, 61 Ark. App. 182, 966 S.W.2d 279 (1998) (citing J.L. McEntire & Sons, Inc. v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974)).

Our courts have never specifically addressed the question of mutuality in an arbitration contract. However, construing similar language, several federal courts have found that lack of mutuality to arbitrate in arbitration clauses renders the clauses void as to the bound party. In Hull v. Norcom, Inc., 750 F.2d 1547 (11th Cir. 1985), the Court of Appeals determined that New York law required mutual obligations to arbitrate to render the clause valid. In Hull, the arbitration agreement only required one of the parties to submit to arbitration, while the other party did not have to. The Court of Appeals found that this rendered the provision invalid because there was no mutuality of consideration. In Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126 (7th Cir. 1997), the Court of Appeals determined that Indiana law required the same, and also concluded that it could not find other consideration in the contract to balance one parties’ obligation to arbitrate where the other party was not required to. The opposite conclusion was found, however, in Design Benefit Plans, Inc. v. Enright, 940 F.Supp. 200 (N.D. Ill. 1996), where the District Court found that other consideration existed under Illinois law to support a one-sided arbitration requirement.

Ultimately, these federal cases interpreting state contract law indicate that it is state law that must be considered to determine an obligation of mutuality. Arkansas precedent on mutuality requires that the terms of the agreement must fix a real liability upon both parties. Townsend, supra. In the instant case, a review of the arbitration contract within the “Check Cashing Agreement” indicates that it fixed no real liability upon Showme. Showme drafted the language and specifically reserved to itself the right to institute legal action “to collect amounts due it.” Under the terms of the agreement the only performance due Showme by its customers is payment. While the customers must submit all disputes and controversies of every kind and nature to arbitration, Showme may proceed immediately to court to collect amounts due it. Those amounts could include twice the amount of the check, a $20 collection fee, a reasonable attorney’s fee, and court costs. Additionally, the so-called arbitration clause contains a limitation of remedies statement that forbids suit against Showme under any circumstances. Given the lack of mutuality to support the arbitration agreement, we hold the arbitration clause contained in the “Check Cashing Agreement” does not constitute a valid enforceable agreement to arbitrate and affirm the trial court’s denial of Showme’s application to compel arbitration. The laudable policy behind enforcing arbitration agreements is the belief that they provide a less expensive, more expeditions means of settling litigation and relieving congested court dockets. However, they should not be used as a shield against litigation by one party while simultaneously reserving solely to itself the sword of a court action. Having held the arbitration agreement invalid, we do not address questions of unconscionability and legality.

Affirmed.

GLAZE, J., not participating.

       Although we have not previously established a review standard under the Arkansas Uniform Arbitration Act the subject language contained in Ark. Code Ann. §16-108-201 (Supp. 1999) is identical to the language in the federal act.

       We note that some jurisdictions have found that an agreement that requires the weaker party to arbitrate any claims he or she may have, but permits the stronger party to seek redress through the courts, is presumptively unconscionable. Ramirez v. Circuit City Stores, Inc. 90 Cal. Rptr. 2d 916 (1999).


author: Per Curiam.

text:
    H. Baker KURRUS, Individually and on Behalf of Arkansans to Protect Police, Libraries, Education & Services (APPLES) v. Sharon PRIEST, Secretary of State
    00-1071
    26 S.W.3d 785
    Supreme Court of Arkansas
    Opinion delivered September 21, 2000

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray, R. Christopher Lawson, and Tamara G. Ward, for complainant.
    No response.
   Per Curiam.

On September 18, 2000, an original action was filed in this court pursuant to Amendment 7 to the Arkansas Constitution. The complaint seeks an order from this court enjoining the Respondent from placing on the November 7, 2000 General Election ballot a proposed initiated constitutional amendment entitled, “An amendment to abolish the state and local sales and use tax on used goods, to prohibit the increase of taxes without voter approval at a general election, to provide for a three year statute of limitations for actions to recover taxes, by the taxing authority or by an aggrieved tax payer, to provide procedural safeguards for taxpayers, and for other purposes.” This same date, a motion for an expedited scheduling order was filed.

The motion for an expedited scheduling order is granted. The schedule will be as follows: Interventions and answers will be filed by September 29, 2000. Simultaneous briefs from all parties, including the intervenors, will be filed by October 6, 2000. Simultaneous reply briefs from all parties, including the intervenors, will be filed by October 10, 2000. Oral argument will be held October 12, 2000, at 9:00 a.m.

We direct complainant Kurrus to personally serve the sponsor of the proposed amendment with a copy of this per curiam.


text:
    Oscar STILLEY, Appellant v. Harold E. HENSON, Appellee; Doris Tate, in her official capacity as County Clerk of Sebastian County, Arkansas; Tom Johnson, Richard Griffin, and David Harp, in their official capacities as County Election Commissioners of Sebastian County, Arkansas, Appellees/Respondents
    00-1060
    26 S.W.3d 786
    Supreme Court of Arkansas
    Opinion delivered September 22, 2000

      Oscar Stilley, for appellant.
    No response.
   Per Curiam.

Appellant Oscar Stilley moves this court to advance this appeal concerning an election contest on our docket and to establish an expedited briefing schedule. The Election Code provides that it is our duty to advance appeals of election contests. See Ark. Code Ann. § 7-5-804(b) (Repl. 2000). We have had occasion to expedite consideration of election appeals in the past, which involved setting a schedule for filing the record and for briefing. See, e.g., Heathscott v. Raff, 334 Ark. 224, 971 S.W.2d 266 (1998) (per curiam). We grant the motion to expedite the appeal and to set the briefing schedule. The record in this matter and appellant’s brief have been filed. Responsive briefs shall be filed by the parties no later than September 28, 2000. There will be no reply briefs.