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    Darrell Wayne SHERIDAN v. STATE of Arkansas
    CR 90-295
    852 S.W.2d 772
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      John Wesley Hall, Jr., P.A., by: John Wesley Hall, Jr. and Craig Lambert, for appellant.

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

This is an appeal from Darrell Wayne Sheridan’s conviction for capital murder. After a jury trial, Sheridan was found guilty and sentenced to the death penalty for the premeditated murder of Laurie Ann Brown.

Darrell Wayne Sheridan and Laurie Ann Brown had formerly lived together in Little Rock. Darrell’s brother, Robert Sheridan, lived with Laurie Ann’s sister, Cherie Brown, for several years.

On February 9,1990, Laurie Ann told Ray Bollen that she had informed the Sherwood Police that Darrell and his new wife, Connie, were involved in drug dealing. As a result, Ray Bollen went to Robert Sheridan’s house in Benton, and the two went to Darrell’s residence, where they told Darrell about Laurie Ann’s statements.

The next day, February 10,1990, Darrell and Connie went to Benton, in his words, to “scare” Laurie Ann. They went to Robert’s house and asked him to show them where Laurie Ann lived. Robert willingly accompanied them and knocked on the door while Darrell stood behind. Darrell entered Laurie Ann’s house and spoke with Mike Coker, Laurie Ann’s boyfriend, and accused him of informing on them. Laurie Ann first hid in a bedroom but later came out, and she and Mike Coker got into the Sheridans’ car to go and “talk.”

They decided to go to Robert’s house to talk because this was “neutral” territory, but when they reached the street to turn toward his house, Darrell told his wife Connie, who was driving, to drive straight and go to the China Grove Cemetery. Connie drove there and backed into the road leading to the cemetery. Darrell got out of the car and told Laurie Ann to get out of the car. He told his brother to hold her so she could not run away, but this proved unnecessary. Mike Coker testified that he saw a knife in Darrell’s hand after he exited the car. Darrell Sheridan then told the passengers of the car, “Give me ten minutes.” Then, Robert Sheridan, Connie Sheridan, and Mike Coker drove off.

After driving a short distance, Mike Coker asked to be let out of the car. Robert gave him his coat and let him go. Mike Coker walked to the nearest store, but there was no phone to call for help. He hitchhiked back to the house where he got into a truck and drove to Cherie Brown and Robert Sheridan’s house.

After Connie and Robert returned to the cemetery in the car, Darrell asked her to open the trunk, where he put his shirt. Connie, Robert, and Darrell then went to Mike Magby’s house, where Darrell asked Robert to get him another shirt. Inside Mike Magby’s house, Darrell took a knife and cut his thumb and smeared his own blood on his pants. As Robert was getting in his truck to leave, Darrell Sheridan said to him, “If you have any trouble with Coker, tell him you’ll get him.” Robert replied, “No, I won’t do that, I won’t have to.” Darrell then said, “Well, just tell him I will.”

Robert returned to his own house but would not tell Cherie where her sister was. Immediately after this, Mike Coker reached Cherie’s house, and Cherie and Mike then went out to the cemetery. After a short search, they found Laurie Ann Brown stabbed to death on the road to the cemetery. Laurie Ann received multiple injuries including stab wounds to her neck, face, forehead, jaw, right upper chest, arm, and back. Both hands had multiple defensive stab wounds. Laurie Ann was approximately six months pregnant with Mike Coker’s child.

Later that night, Darrell and Connie took Darrell’s clothes to the Arkansas River where they burned them.

There was conflicting evidence regarding the knife which was the actual murder weapon. Testimony at trial revealed that a large hunting knife was stuck into the wood frame over the inside front door of Laurie Ann’s house and that, upon entering the house, Connie took this knife down. However, Darrell testified that he took this knife away from Connie and threw it down on a couch inside the house.

Another knife came up when Cherie Brown testified that Darrell “flashed” a knife at her at Robert Sheridan’s apartment upon first arriving in Benton the night of the murder when Darrell alluded to killing Mike Guynn. Darrell positively identified this knife at trial as the same knife he had shown Cherie the night of the murder and as the same knife he gave the police through his attorney after his arrest, although this knife was not positively linked to the crime by police testing. Also, although Darrell stated that he did not have a knife with him, Mike Coker testified that he saw Darrell with a knife in his hand when he got out of the car with Laurie Ann at the China Grove Cemetery.

Finally, when questioned about where the murder weapon came from, Darrell testified that Laurie Ann brought her own knife to the cemetery which she hid on her person. It was her knife which Darrell said slit her throat. Although it was never recovered by a police search, Darrell testified that he threw this knife into the woods after the killing.

The day after the murder, Darrell and Connie Sheridan met with an attorney, C.P. Christian, who arranged for them to turn themselves in. At the police station, Connie gave her statement first with Mr. Christian present. After hearing her statement, Mr. Christian opted to represent Connie and declined to represent Darrell.

After trial, a jury found the appellant, Darrell Sheridan, guilty of capital murder under Ark. Code Ann. § 5-10-101 (a) (4) (Supp. 1991), which defines capital murder as murder committed “[w]ith the premeditated and deliberated purpose of causing the death of another person.” At sentencing, the jury found the aggravating circumstance existed which justified the death penalty because Darrell Sheridan committed the murder “for the purpose of avoiding or preventing an arrest or effecting an escape from custody,” the statutory aggravating circumstance at Ark. Code Ann. § 5-4-604(5) (1987).

Darrell, Robert, and Connie Sheridan were originally all charged with capital murder. In exchange for his testimony, Robert pled guilty to hindering the apprehension of a criminal. The record before us is silent as to what happened to Connie.

I. SUFFICIENCY OF THE EVIDENCE

Sheridan moved for a directed verdict at the close of the State’s evidence and again at the close of the case, thus preserving for appeal the issue of sufficiency of the evidence. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).

On appeal, the appellate court does not weigh evidence on one side against the other; it simply determines whether the evidence in support of the verdict is substantial. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992); Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992); Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). Circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). This becomes a question for the fact finder to determine. Id. In determining whether there was substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, S.W.2d 887 (1977). Guilt may be proved, even in the absence of eyewitness testimony, and evidence of guilt is no less because it is circumstantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984). See also Standridge v. State, 310 Ark. 408, 837 S.W.2d 447 (1992); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

Sheridan’s first point of error is that there was insufficient evidence of the aggravating circumstance which the jury found justified the death penalty, i.e., that “the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody,” to support the death penalty. We disagree and find the evidence was overwhelming that Darrell Sheridan killed Laurie Ann Brown because she had informed narcotics agents that he was involved in drugs.

Some of this evidence includes:

(1) Laura Gill, Laurie Ann Brown’s coworker, testified that Sheridan came to their workplace six months before the murder, and Laurie Ann told her he was “out to get her.”

(2) One month before Laurie Ann’s death, Darrell and Connie returned to her workplace and pointed a gun at Laurie Ann and threatened her.

(3) The day before the murder, Laurie Ann told Ray Bollen she had informed on Sheridan. As a result, Robert Sheridan testified that Ray Bollen came over and asked him to take him to Darrell’s house in Little Rock. Once there, Robert stated that Ray Bollen and his brother talked in the other room and then Darrell came back in and asked Robert if he would take them to Laurie Ann’s house.

(4) The next day, Darrell, Connie, and Robert Sheridan went to Laurie Ann’s home and demanded that Mike Coker and Ms. Brown accompany them. Testimony revealed that Darrell Sheridan said he was taking Laurie Ann to a “black hole.”

(5) In the car, Darrell asked Laurie Ann to “tell me what you’ve done,” and he said she had “snitched on him.”

(6) After Darrell and Laurie Ann got out of the car at the China Grove Cemetery, Connie Sheridan said to Mike Coker, “What else can happen? Don’t know what else to do.”

(7) After leaving the cemetery, Darrell told Robert to threaten Mike Coker to not reveal what had happened that night.

(8) A Sherwood Police Department investigator, Charles Gassoway, testified that he received an anonymous phone call from a female informant who stated that Darrell and Connie were involved in the trafficking of crystal methamphetamine. A phone bill documenting the call was introduced.

(9) A local newspaper was received into evidence with Laurie Ann’s handwriting which stated Charles Gassoway’s name.

(10) Patricia Brown, Laurie Ann’s mother testified that Laurie Ann had called the police regarding Darrell and Connie.

Sheridan further argues that this statutory aggravating circumstance is inapplicable here because Laurie Ann’s murder was carried out to punish her and not carried out to “prevent an arrest,” since Ms. Brown had already called the police and thus the police could have arrested the Sheridans. Regardless of the timing, Laurie Ann could have been a witness against the Sheridans, and we have held that killing a victim to eliminate a witness is the same thing as avoiding or preventing a lawful arrest. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).

II. CONSTITUTIONAL ARGUMENTS

A. MANDATORY NARROWING FUNCTION AND OVERLAP OF OFFENSES

Sheridan next argues that the capital murder statute is unconstitutional under the Eighth and Fourteenth Amendments for two reasons: (1) the statute does not satisfy the mandatory narrowing function and, (2) because there is no difference in “premeditation and deliberation” and “purposely”, the capital murder statute and the first degree murder statutes impermissibly overlap.

We most recently rejected both arguments in Ward v. State, 308 Ark. 415, 418-9, 827 S.W.2d 110, 111-2 (1992):

Appellant’s initial argument raises two challenges to the constitutionality of the capital murder statute, Ark. Code Ann. § 5-10-101 (Supp. 1991). As we have previously addressed appellant’s constitutional arguments, our discussion will be brief. First, appellant argues that the homicide statutes’ 1989 revisions, which upgraded “premeditated and deliberated” murder from first-degree murder to capital murder, violate the constitutional prohibition against sentencing guidelines that fail to sufficiently narrow jury discretion in death penalty cases.
Under Ark. Code Ann. § 5-4-604 (Supp. 1991), the death penalty may not be imposed unless the state can prove the existence of an “aggravating circumstance.” In O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), we emphasized the following language from the Supreme Court’s decision in Lowenfield v. Phelps, 484 U.S. 231 (1988), where the Supreme Court explained that, in order to genuinely narrow the class of persons eligible for the death penalty, a state may choose between two capital sentencing schemes:
The legislature may itself narrow the definition of capital offenses, ... so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.
O'Rourke, supra, at 64, 56 (quoting Lowenfield, supra, at 246).
Under Arkansas’ revised capital sentencing scheme, the constitutionally-required narrowing function is provided by the “aggravating circumstance” requirement at the penalty phase. Since appellant would not have been eligible for the death penalty in the absence of any aggravating circumstance, we find that the sentencing scheme passes constitutional muster.
Appellant’s second constitutional challenge is that the elements of “premeditated and deliberated” capital murder, § 5-10-101(a)(4), and the elements of “purposeful” first-degree murder, Ark. Code Ann. § 5-10-102(a) (2) (Supp. 1991), impermissibly overlap. We have previously rejected this argument based on the same rationale we have used to uphold capital felony murder and first degree felony murder. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). As long as there is no impermissible uncertainty in the definitions of these offenses, the mere existence of any overlapping does not render a statute constitutionally infirm. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

See also McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990).

B. JURY’S ABILITY TO SHOW MERCY UNDER THE SENTENCING PROVISIONS OF THE ARKANSAS DEATH PENALTY STATUTE

Sheridan’s third argument is that our statutory scheme results in a mandatory death sentence such that the jury can show no mercy.

We rejected this argument most recently in Johnson v. State, 308 Ark. 7, 17-18, 823 S.W.2d 800, 806 (1992), cert. denied, 112 S. Ct. 3043 (1992):

The appellant next argues that “the Arkansas capital murder statutory scheme becomes a mandatory death statute, and as such, is unconstitutional because it does not allow the jury to show mercy to a particular defendant.” We most recently rejected this argument in Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). There, quoting from Clines, Holmes, Richley & Orndorff v. State, 280 Ark. 77, 82, 656 S.W.2d 684, 686 (1983), we wrote: “[W]hatever the jury may find with respect to aggravation versus mitigation, it is still free to return a verdict of life without parole, simply by finding that the aggravating circumstances do not justify a sentence of death.”

C. AMCI FORM 2

Sheridan next argues that the court erred in denying his request to submit his version of Form 2 of the AMCI on mitigating circumstances that added eleven potential mitigating circumstances. The court instead submitted the standard instruction. He claims that this violated his Eighth and Fourteenth Amendment rights but fails to tell us how.

Sheridan’s offered verdict form reads as follows:

A.( ) We unanimously find that the following mitigating circumstances probably existed at the time of the murder:
( ) The Capital Murder was committed while Darrell Wayne Sheridan was under extreme mental or emotional disturbance.
( ) Darrell Wayne Sheridan has no significant history of prior criminal activity.
( ) Darrell Wayne Sheridan has a good work record.
( ) Darrell Wayne Sheridan was a good family person.
( ) Darrell Wayne Sheridan has shown remorse for the crime.
( ) Darrell Wayne Sheridan cooperated with the police in that he surrendered to the police when he learned that he was wanted.
( ) Darrell Wayne Sheridan has good character but for this criminal act.
( ) Darrell Wayne Sheridan’s act had stressful events underlying it.
( ) Darrell Wayne Sheridan has a good record of conduct while in jail.
( ) Darrell Wayne Sheridan has engaged in religious activities while in jail.
( ) Darrell Wayne Sheridan acted impulsively at the time of the crime.
( ) The members of the jury, while having found Darrell Wayne Sheridan guilty by a reasonable doubt, still have some possible doubt as to guilt for the crime of capital murder.
Other: ( ) specify in writing-
B. ( ) One or more members of the jury believed that the following mitigating circumstances probable existed, but the jury did not unanimously agree:
[repeat the same eleven factors]
C. ( ) There was evidence of the following mitigating circumstances, but the jury unanimously agreed that they did not exist at the time of the murder:
[repeat the same eleven factors]
D. ( ) There was no evidence of any mitigating circumstance.

The standard version of Form 2 submitted to the jury reads as follows with their choices indicated:

A. (X) We unanimously find that the following mitigating circumstances probably existed at the time of the murder:
( ) The capital murder was committed while Darrell Wayne Sheridan was under extreme mental or emotional disturbance.
( ) Darrell Wayne Sheridan has no significant history of prior criminal activity.
(X) Other: Specify in writing
(1) That his only previous record was one DWI.
B. (X) One or more members of the jury believed that the following mitigating circumstances probably existed, but the jury did not unanimously agree:
( ) The capital murder was committed while Darrell Wayne Sheridan was under extreme mental or emotional disturbance.
( ) Darrell Wayne Sheridan has no significant history of prior criminal activity.
(X) Other: Specify in writing:
(1) That Pinky Sheridan left Laurie Brown to try to get away from drugs.
(2) That Pinky worked at a job to provide for his family.
(3) While incarcerated awaiting trial for nine months, he has been a model inmate.
(4) He loves his children and exercised his visitation rights.
(C) (X) There was evidence of the following mitigating circumstances, but the jury unanimously agreed that they did not exist at the time of the murder:
( ) The capital murder was committed while Darrell Wayne Sheridan was under extreme mental or emotional disturbance.
( ) Darrell Wayne Sheridan has no significant history of prior criminal activity.
(X) Other: specify in writing:
(1) He turned himself in to law enforcement after the crime.
D. ( ) There was no evidence of any mitigating circumstance.

In explaining the jury forms to the jury before deliberation, the trial judge said:

If you do find unanimously that one or more aggravating circumstances exist [on Form 1], you should then complete Form 2, which deals with mitigating circumstances. Form 2 lists some factors that you may consider as mitigating circumstances. However, you are not limited to this list. You may, in your discretion, find other mitigating circumstances.

(Emphasis added.)

In support of his argument, Sheridan cites Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the United States Supreme Court found that a criminal defendant’s Eighth Amendment prohibition upon the infliction of cruel and unusual punishment is violated where he is sentenced to death and no instructions were given informing the jury that it could consider and give effect to mitigating evidence of the defendant’s mental retardation and former abuse received. The United States Supreme Court has held that it is a mandatory safeguard of the Eighth Amendment for the sentencing body to be allowed to consider any mitigating factor that is relevant to the particular offender’s case. California v. Brown, 479 U.S. 538 (1987); Roberts v. Louisiana, 431 U.S. 633 (1977); Gregg v. Georgia, 428 U.S. 153 (1976). The defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense. California v. Brown, supra. Not only must relevant mitigating evidence be admitted, it must be actually considered, which in appropriate cases means specifically instructing the jury to do so. Penry v. Lynaugh, supra; Eddings v. Oklahoma, 455 U.S. 104 (1982). In other words, any death sentence that results from a deliberate exclusion of any relevant mitigating evidence is presumptively invalid. Hitchcock v. Dugger, 481 U.S. 393 (1987).

Applying these U.S. Supreme Court rules to the instant case, it is clear to us that the jury was not limited to the mitigating factors listed on Form 2 but was invited by the judge to consider any others they saw fit and to write them in the blank spaces provided in each category. Therefore, the submission of Form 2 to the jury instead of the form proffered by Sheridan did not act as an impermissible exclusion of relevant mitigating factors. The court specifically told the jurors that the mitigating factors listed were not the sole ones to be considered and that they could consider other factors.

D. JURY MAKEUP

Sheridan’s next point is that his Sixth Amendment right to a jury that reflected a fair cross-section of the community was violated. Before trial, Sheridan requested that a “fair cross section of the community” be summoned for the jury by jury wheel, by random scheme and without anyone having discretion over process, and by method other than voter registration list such as by searching utility bills for names of potential jurors.

We have considered and rejected this argument in Cherry v. State, 302 Ark. 462, 470,791 S.W.2d 354, 358 (1990):

Appellant’s next contention is that the jury panel should have been quashed. He argues that the selection of jurors from a list of registered voters denied him an impartial jury.
We have held that the use of such a method to select jurors does not violate the requirement that the jury be selected from a representative cross-section of the community. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989); Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989). Appellant argues that the jury was partial because it was composed of the same registered voters who elected the judge and prosecutor. This argument is answered simply by saying that a list of registered voters would include those who voted for the judge or prosecutor, those who voted for their opponents and those who did not vote at all.

E. DISPROPORTIONATE SENTENCE, CRUEL AND UNUSUAL PUNISHMENT, AND PASSION AND PREJUDICE

Sheridan argues that the death penalty violates the cruel and unusual punishment clause of the eighth Amendment to the U.S. Constitution, and the sentence in this case was the result of the jury’s passion and prejudice. This court and the United States Supreme Court have clearly held that the death penalty is not cruel and unusual punishment. Pulley v. Harris, 465 U.S. 37 (1984); Coker v. Georgia, 433 U.S. 584 (1977); Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976), reh’g denied, 429 U.S. 875 (1976); Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993)\ Johnsons. State, 308 Ark. 7, 823 S.W.2d 800 (1992), cert. denied, 112 S. Ct. 3043 (1992); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), cert. denied, 112 S. Ct. 102 (1991); Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987), cert. denied, 484 U.S. 917 (1987).

Finally, we undertake a “proportionality review” of his capital case which we have made a requirement under Arkansas law. We review capital cases involving the death penalty to insure that the sentence is not imposed in a freakish, capricious, or whimsical manner. Johnson v. State, supra; Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). In doing so, Sheridan would have us compare his case to all capital murder and first degree murder cases occurring after July 3, 1989, the date of the passage of this act, involving any death sentence or first degree murder charged as “premeditated or deliberated.” This is an improper comparison; we only compare death sentence appeals to other death sentence appeals. To do otherwise would be to compare apples to oranges.

In conducting our comparative review of death penalty cases, this court considers the following things: 1) whether the sentence was the result of passion, prejudice, or any arbitrary factor; 2) whether the evidence supports the jury’s finding of any statutory aggravating circumstances; 3) whether the evidence supports the jury’s findings on the question of whether the mitigating circumstances outweigh aggravating ones; and 4) whether the sentence is excessive. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).

We compared this appeal to other death penalty cases and hold that the sentence was not the result of passion, prejudice, or any arbitrary factor. Second, as discussed under Point I., above, the evidence supports the finding of the aggravating circumstance. Third, the jury was only unanimous on one mitigating factor: that his only previous criminal conviction was a DWI. Fourth, the sentence was not excessive given the violent nature of this murder and all the surrounding facts and circumstances.

In applying the factors set out above, we do not find that the jury’s verdict was the result of passion, prejudice or any other arbitrary factor. We find such a holding consistent with other death penalty cases where the death penalty was given for the purpose of avoiding or preventing an arrest or effecting an escape from custody. Accordingly, we hold that the sentence of death was not freakishly or arbitrarily applied, and we will not, on our own motion, set aside the sentence. For statistical purposes, we note that both the victim and the appellant are white persons.

III. EVIDENTIARY OBJECTIONS

A. PHOTOGRAPHS OF THE FETUS REMOVED FROM LAURIE ANN BROWN

Sheridan next argues that photographs taken of the dead fetus removed from Laurie Ann Brown during her autopsy were shown to the jury and doing so constituted reversible error since these photos were irrelevant, inflammatory, and prejudicial.

The State responded in its initial brief that the record does not demonstrate that the pictures were ever admitted into evidence or placed before the jury and that, at most, the pictures were marked for identification purposes only. The State then filed a motion to clarify the record with this court. We granted the motion and ordered the case remanded to the trial court to settle the record.

Prior to the trial court’s hearing, Sheridan filed a motion asking that the presiding judge recuse inasmuch as he had expressed a definite opinion on the merits of the issue under remand in a letter to the Attorney General on the subject. (The recusal is addressed at Point IV.) The trial judge did not disqualify himself but conducted a hearing at which time Lois Green, the court reporter at trial, testified that the photographs in question were “marked for identification only.” She further stated that she set them aside so that they would not get mixed in with the other exhibits, that the jury was not given these pictures of the fetus, and that she was positive the jury did not view these photographs. As a result of her testimony, the court made the following finding:

I think it’s clear that these exhibits of the fetus during the course of the trial were ruled inadmissible by the court. They were marked for identification purposes only by the prosecuting attorney, they were delivered to Ms. Green. She retained them in her possession. They did not become available to the jury. The jury did not see these exhibits and that should settle the record with regard to the exhibits.

Sheridan’s allegation fails because there is simply no evidence that the jurors actually saw the photos. An appellant must do more than allege prejudice, he must demonstrate it. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 490 U.S. 1076 (1988). This court will not reverse on the mere potential for prejudice. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). At most, we merely have Sheridan’s allegations and suspicions that the jury saw the photos.

A review of the record at trial as well as the testimony on remand of Lois Green, the court reporter, makes it clear that the jury did not see the photos of the fetus. The prosecutor used a two-part format to introduce exhibits into evidence during the trial. First, the prosecutor asked that a proposed exhibit be marked for identification. Then, after the witness identified the exhibit, the prosecutor would tender the exhibit to the trial court for introduction into evidence. The court in turn would accept or reject the tender. During the direct examination, of Dr. Fahmy Malak, the state presented State’s Exhibits 3 through 13 in this exact manner. In each instance, the court uniformly accepted the tender and allowed them admission into evidence.

However, the prosecutor did not complete his established pattern for introducing his exhibits into evidence when it came to the photos of the fetus, and these photos were not accepted into evidence as an exhibit to be given to the jury. The following exchange occurred;

Q. Did you photograph the fetus, Dr. Malak?
A. Yes, sir, I did.
Q. I’ll ask that these three photographs, I don’t want these shown, that these three photographs are of the fetus?
A. That’s correct. I did also examine the placenta and it was a quite healthy placenta.
PROSECUTOR ARNOLD: I want these just marked for identification, Your Honor. I’ll ask that these three photographs just referred to by Dr. Malak, be marked for identification only as 14, 15, and 16.
(THEREUPON, the photographs were marked for identification only as State’s Exhibits No. 14, 15, and 16.)
Q. What was the cause of death of the unborn child?
A. The death of the mother.
MR. HALL: Objection, Your Honor.
THE COURT: The objection is sustained.
MR. ARNOLD: Withdraw the question.
Q. Dr. Malak, you may have said earlier and I apologize if I request it again, what was the cause of death of Laurie Ann Brown?
A. Laura Brown died because of multiple stabs to her neck and torso, which led to exsanguination, or bleeding outside and inside the body.
Q. Did she strangle on her own blood?
A. She aspirated a lot of blood. That’s one of the mechanisms of death.
MR. ARNOLD: Pass the witness.

(Emphasis ours.)

It is obvious that Sheridan did not take issue with this procedure of marking the photos of the fetus for identification purposes as he failed to interpose an objection in this regard. In short, the record is completely barren of any evidence that the photos were introduced into evidence or shown to the jury or that the jury was prejudiced by the in-court discussion of these photos.

B. STATE’S COMMENT ABOUT VICTIM DURING PENALTY PHASE

Sheridan next argues that the State made an improper comment during the closing argument of the sentencing phase:

The Prosecutor: . . . [Darrell Sheridan] asked you to look at the way he’s dressed and reminded you he’d be dressed that way the rest of his life and this is not meant to be smart or trite, but I can assure you Laurie Ann Brown today is dressed the same way she’ll always be dressed and as far as—
Mr. Hall: I object to that because any reference to the victim is improper at this point in the trial and the jury should be. admonished to remember in this phase the defendant has nothing to do with Laurie Brown.
The Court: I think the jury understands what to consider and what not to consider and you may proceed, Mr. Arnold.

After this exchange, the prosecutor concluded his closing argument and did not mention Laurie Ann Brown again.

The trial court did not specifically overrule or sustain Sheridan’s objection, nor did defense counsel ask the trial court to admonish the jury. The court’s failure to give an admonitory instruction was not prejudicial error in the absence of a request. State v. Wheat, 295 Ark. 178, 747 S.W.2d 112 (1988); McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).

Sheridan’s argument also fails because this remark was an invited comment made in response to the closing argument of defense counsel who asked the jury to look at how Darrell Sheridan was dressed because he would be dressed like that for a long time. In reviewing both closing arguments, we conclude that Sheridan opened the door to the State’s comment about what both Sheridan and the victim would be wearing from now on, and the trial court did not abuse its discretion in overruling Sheridan’s objection to the prosecutor’s remarks. Nelson v. State, 306 Ark. 456, 460, 816 S. W.2d 159, 161 (1991); Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983); Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982).

We have said many times that the trial court has discretion to control closing argument and is in a better position to determine the possibility of prejudice by observing the argument first hand. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). The appellate court will not reverse the action of the trial court in matters pertaining to its controlling, supervising, and determining the propriety of the arguments of counsel in the absence of manifest gross abuse. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). There was no such gross abuse here.

C. EVIDENCE OF DECEASED’S DRUG USAGE

Sheridan’s theory of the case was that Laurie Ann Brown was a heavy methamphetamine abuser and that she was suffering from a drug psychosis the night of her death which caused Darrell Sheridan to fear for his life and act in self defense. However, Sheridan failed to put on any evidence as to the effects of drugs on the victim. Sheridan subpoenaed a medical specialist from Arkansas Children’s Hospital and informed the court before trial that this witness would be testifying about pharmokinetics, the effects of drugs, but Sheridan did not call this witness or any other expert to testify as to drug usage and its effects. Instead, he sought to elicit testimony on this subject from Dr. Fahmy Malak, the State’s medical examiner and witness.

Sheridan argues that it was error for the court to cut short his attempt to cross-examine Dr. Malak on this subject.

This argument fails for two reasons. First, Sheridan’s attorney made no proffer to the record as to what Dr. Malak would testify about as required by Ark. R. Evid. 103(a)(2). National Bank of Commerce v. HCA Health Servs., 304 Ark. 218, 800 S.W.2d 713 (1990) (failure to make an offer of proof precludes review of the issue on appeal under Ark. R. Evid. 103(a)(2)). We recently stated in Garner v. Kees, 312 Ark. 251, 254-5, 848 S.W.2d 423 (1993):

Appellants now argue that such a limitation on Dr. Howard’s testimony prevented the jury from seeing the true character of the appellees. They contend the testimony was admissible to rebut the appellees’ claim that they acted out of affection rather than spite. See Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989). We disagree for two reasons: Appellants failed to make a proffer of what Dr. Howard’s testimony would have been as required under A.R.E. Rule 103 (a)(2) and we have stated that failure to make an offer of proof precludes review of the issue on appeal. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990). Moreover, it is within the discretion of the trial court to limit the testimony of witnesses and that decision will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S. W.2d 799 (1988). We cannot say appellants have demonstrated an abuse of discretion.

Secondly, Sheridan’s attorney made no attempt to qualify Dr. Malak as an expert in this area of specialty as required by Ark. R. Evid. 702. Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986); Robinson v. State, 274 Ark. 312, 624 S.W.2d 435 (1981). If Sheridan’s counsel wanted to utilize Dr. Malak’s testimony in this regard, he could have taken this witness as his own, qualified him as an expert in this area, and elicited the testimony. If the testimony had been denied, he could have then proffered the proof into the record to preserve his issue for appeal.

We find no “manifest abuse of discretion” by the trial court in conducting the trial.

D. CROSS-EXAMINATION OF CHERIE BROWN AND MIKE COKER

Sheridan here makes a carte blanche complaint about the trial court’s “limiting” of his cross-examination of Cherie Brown and Mike Coker. He claims his opportunity for effective cross-examination of these witnesses was denied. Following the authority cited above in III(C), we again hold that there was no manifest abuse of discretion by the trial court during the cross-examination of Cherie Brown and Mike Coker. Garner v. Kees, supra; Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

E. STATE’S PENALTY PHASE CROSS-EXAMINATION OF ROBERT SHERIDAN

Sheridan next objects to the prosecutor’s reference during the sentencing phase to Darrell “sheltering” Robert. Robert Sheridan had testified that his older brother, Darrell, always “sheltered” him growing up. The prosecutor asked Robert on cross-examination during the penalty phase of the trial:

Q. Robbie, you say your brother sheltered you?
A. Yes, sir.
Q. Was he sheltering you on Friday the tenth when he got you to go get Laurie out of the house? Did he use you to get Laurie out?
Mr. Hall: Your Honor, we’ve already tried the guilt in this case. This is not about the defendant.
The Court: The objection’s overruled, you may proceed, just don’t go too far with it, strictly punishment.

Sheridan fails to show how this is prejudicial error, and this matter is soundly within the discretion of the trial court.

F. APPELLANT’S MOTION TO PERMIT THE JURORS TO QUESTION DARRELL WAYNE SHERIDAN

Finally, Sheridan argues that it was reversible error for the trial court to deny his motion to allow the jurors to question the defendant after the State completed its cross-examination. Sheridan fails to support this argument with persuasive authority and instead cites Ratton v. Busky, 230 Ark. 667, 326 S.W.2d 889 (1959) and Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 (1974) for the general rule that juror questioning of witnesses is discretionary with the court. We hold that the trial judge did not abuse his discretion by denying this request.

IV. JUDICIAL DISQUALIFICATION

As mentioned above, prior to considering this appeal on its merits we remanded to the trial court to settle the record and determine whether or not the photographs of the fetus were introduced into evidence or shown to the jury or merely marked for identification purposes. Prior to the hearing on remand, Sheridan moved that the presiding judge recuse himself. His motion was based primarily on the judge’s letter to the Attorney General. After reading Sheridan’s appellate brief, the trial judge wrote the Attorney General that “it is not true and Mr. Hall knows it is not true” that the photos of the fetus were introduced into evidence.

In his motion for recusal, Sheridan noted that the trial court had personal knowledge of a disputed fact in the case, had expressed his opinion on the merits of the factual issue to be addressed in his letter to the Attorney General, could be a potential witness at a hearing on remand, had apparently decided the issue before the hearing, and would be asked to evaluate the credibility of his own court reporter if he presided at the hearing. Sheridan argued that the trial judge violated the Code of Judicial Conduct, which reads in pertinent part:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. . .

Ark. Code of Judicial Conduct Canon 3(C)(1)(a) (1988).

The court responded to the motion stating:

I have gone over everything that has been filed that has been brought to my attention and find the motion to be without merit. The court was in no way biased or prejudiced not as a matter of fact or through implication so the motion is denied.

The decision to disqualify from a case is discretionary with a judge and a judge’s decision in this regard will not be reversed absent an abuse of that discretion. Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992); Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984); Woods v. State, 278 Ark. 271, 644 S.W.2d 937 (1983); Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959).

Obviously, the Code of Judicial Conduct and its canons are applicable to judicial conduct in criminal cases. Adams v. State, 269 Ark. 548, 601 S.W.2d 881 (1980).

While Judge Cole had personal knowledge concerning the disputed evidentiary fact in question, whether the photos of the fetus were introduced into evidence and shown to the jury, this does not alone disqualify his services as a trial judge.

We have held in the past that the personal knowledge of a judge gleaned from previous judicial proceedings does not fall under this “personal knowledge” category. Roe v. Dietrich, supra (Canon 3(C)(1) does not preclude participation of a judge who has obtained knowledge of a case through previous judicial participation); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988)(judge not required to recuse himself where appellant threatened to file a class action lawsuit in federal court against judge for failure to promptly arraign him and others); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987), reh’g denied, 293 Ark. 438, 742 S.W.2d 550 (1987) (judge who issued search warrant not required to recuse himself from hearing to suppress based on invalidity of warrant under Canon 3(C)(1)(a)); Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984) (same judge who presides over a defendant’s trial may also preside over postconviction proceeding).

The case before us is somewhat similar to the dilemma faced by the Arkansas Court of Appeals in Elmore v. State, 13 Ark. App. 221, 682 S.W.2d 758 (1985). In Elmore, during Sammy Joe Elmore’s trial on charges of fleeing and criminal attempt to commit capital murder, a juror approached the trial judge and told him that she recognized someone in the defendant’s family. The trial judge asked her if that would influence her judgment in the case, to which she replied it would not. The trial judge made no record of this conversation at that time, and Elmore later claimed that the trial judge’s failure to record the conversation and notify him entitled him to a new trial.

After strongly emphasizing the advisability of recording conversations like this one, the court of appeals held that there was no evidence that the juror’s knowledge in any way affected her decision:

At the hearing on the motion for a new trial, it became necessary for the trial judge to testify to what had passed between himself and the juror. Appellant asked the trial judge to recuse himself from ruling on the motion for a new trial because he was going to testify in the hearing. The trial judge denied appellant’s motion to recuse. This put the trial judge in the position of ruling upon his own credibility and thus open to a charge of impartiality. This is one situation that the A.B.A. Code of Judicial Conduct cautions us against. Canon 3(C)(1) of the Code states:
A judge should disqualify himself in a proceeding which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has. . .personal knowledge of a disputed evidentiary facts concerning the proceeding. . .
Our Supreme Court has recognized the need for a judge to disqualify when he must appear as a witness for want of a record. Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972). Our judicial system is founded upon the premise that justice is impartial. When a trial judge sits as judge and as witness, the appearance of impartiality is destroyed. It is clear that the trial judge should have recused himself when it became necessary for him to testify. However, we do not find that his failure to do so is reversible error under the facts of this particular case. While it was clearly error, we believe the appellant suffered no prejudice as a result. For the reasons discussed above, we do not believe that the trial court’s failure to record the juror’s communication or to inform counsel was prejudicial and therefore, appellant was not entitled to a new trial on that basis. Having reached that decision, the trial judge’s failure to recuse himself becomes a moot issue.

We agree with the rationale of our Court of Appeals in Elmore and we hold that it was not necessary for Judge Cole to recuse under the circumstances and that Sheridan suffered no prejudice as a result.

In cases related to administrative hearings, we have held that the mere happenstance that a trier of fact has expressed an opinion on a matter under consideration does not automatically disqualify that person from further participation. Sexton v. Arkansas Sup. Ct. Comm. on Prof. Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989). See also Arkansas State Bd. of Nursing v. Long, 8 Ark. App. 288, 651 S.W.2d 109 (1983) (a judge’s reaction to what happens in a case based on observations of proceedings is not a ground to disqualify). Although the trial judge’s conduct seemed inappropriately adversarial to appellant’s counsel, the same rule applies.

Having reached this decision we hold that the trial judge’s failure to recuse himself was not an abuse of discretion.

Pursuant to Ark. Sup. Ct. R. 11(f), the entire record has been reviewed, and this review has uncovered no prejudicial error warranting reversal.

Affirmed.


source: Caselaw Access Project

author: Robert Dudley, Justice.

license: Public Domain

text:
    James R. HARSHAW v. STATE of Arkansas
    CR 92-1318
    852 S.W.2d 318
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Robert Meurer, for appellant.

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

Appellant was convicted of driving while under the influence of intoxicants. On appeal he argues that the trial court erred in refusing to grant his motion to suppress the evidence of his blood-alcohol level because the arresting officer did not meet the standards for training set by the Arkansas Commission on Law Enforcement Standards and Training. The court of appeals certified the case to this court. We affirm the judgment of conviction.

Previously, Ark. Code .Ann. § 12-9-108 (a) read:

A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid. (Emphasis added.)

In accordance with the language of the statute, we applied the exclusionary rule to searches and seizures by an officer who did not meet the standards and qualifications. See, e.g., Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989). The General Assembly amended the statute, and repealed the last phrase, so that the exclusionary rule would no longer be applied in cases involving officers who were not qualified. It passed Act 44 of the First Extraordinary Session of 1989, codified as Ark. Code Ann. § 12-9-108(a) (Supp. 1991), which provides:

Actions taken by law enforcement officers who do not meet all of the standards and qualifications set forth in this subchapter or made by the Arkansas Commission on Law Enforcement Standards and Training shall not be held invalid merely because of the failure to meet the standards and qualifications. (Emphasis added.)

In accordance with the language of the amendment, we ceased applying the exclusionary rule to cases in which the officer failed to meet the standards. See, e.g., Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991).

Appellant argues that Act 44 of 1989 should be interpreted to mean that the exclusionary rule is not applicable when a governmental unit fails to meet the employment standards for officers, but that it is applicable when the governmental unit fails to meet the training standards. The argument is without merit. The act makes no distinction between employment standards and training standards. It refers to “actions” taken by officers “who do not meet all of the standards” and then provides that such actions “shall not be held invalid merely because of the failure to meet the standards and qualifications.” (Emphasis added.) When the words used in a statute have a well-defined meaning, and the wording of the statute is clear, we give those words their plain meaning. McGee v. Armorel Pub. Schs., 309 Ark. 59, 827 S.W.2d 137 (1992). In this case, the act applies to “all of the standards.” The words used are clear. There is no room for an interpretation that makes a distinction between employment standards and training standards.

Appellant’s second point of appeal is that the trial court erred in allowing into evidence a certified copy of his driving record. He contends that the document violates the rule against hearsay, apparently because of some deficiency in its form. We affirm this point under Rule 9(e) of the Rules of the Supreme Court and Court of Appeals because there is no abstract of the document.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Garland F. MORRIS v. B. Reagan McLEMORE
    92-1179
    852 S.W.2d 135
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      David J. Potter, for appellant.

      Atchley, Russell, Waldrop & Hlvanka, by: John R. Mercy, Helmut F. Taitón & Jeffrey C. Lewis, for appellee.
   Robert H. Dudley, Justice.

This case involves construction of the statute of limitations provision for legal malpractice. Garland Morris, Jr., appellant, contends that his father, Garland Morris, Sr. and his father’s wife, Sophia, entered into a contract to make irrevocable wills, and that they employed appellee Reagan McLemore, an attorney licensed in Texas, to prepare the wills for them on August 8,1969, more than twenty-three years ago. According to appellant, Garland Morris, Jr., Sophia’s will was to provide that her entire estate would go to Garland Morris, Sr., but if he predeceased her, it would go to appellant, and Garland Morris, Sr.’s will provided that half of his estate would go to his wife, and the other half in trust for Garland Morris, Jr., with Sophia as trustee. In short, after the death of both Morris, Sr. and Sophia, appellant would receive all of the property. However, Sophia destroyed her will soon after making it. Garland Morris, Sr. died in January 1985, and his will was admitted to probate on April 5, 1985. He was survived by Sophia.

Appellant, Garland Morris, Jr., filed suit alleging the wills were reciprocal and could not be revoked. The chancellor held there was no agreement for reciprocal wills and dismissed the suit. We affirmed. Morris v. Cullipher, 299 Ark. 204, 772 S.W.2d 313 (1989). In 1987, appellant Garland Morris, Jr. again sued Sophia, but this time alleged breach of fiduciary duty in her performance as executrix of the estate of Morris, Sr. The probate court denied relief, and we affirmed. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991). In this suit, appellant Morris, Jr. alleges that the attorney who prepared the wills, appellee Reagan McLemore, committed malpractice when he prepared the wills more than twenty-three years ago. The trial court dismissed the case because the three-year limitation on malpractice had run, and because there was no privity which would allow appellant Morris, Jr. to sue the attorney. Garland Morris, Jr. appeals and argues that the trial court erred in both rulings. We affirm the ruling dismissing the case on the basis of the statute of limitations. As a result, it is not necessary for us to reach the privity issue.

The statute of limitations in legal malpractice cases begins to run, in the absence of concealment of the wrong, when the act of negligence occurs, not when it is discovered. Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991). This has been our interpretation of the applicable statute for over 100 years. See White v. Reagan, 32 Ark. 281 (1877). Even so, appellant asks us to apply the “time of injury” rule in this case. We decline to do so. A cardinal rule in dealing with a statutory provision is to give it a consistent and uniform interpretation so that it is not taken to mean one thing at one time and something else at another time. When a statute has been construed, and that construction has been consistently followed for many years, such construction ought not be changed. Southwest Ark. Communications, Inc. v. Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988). As time passes, the interpretation given a statute becomes a part of the statute itself. Gibson v. Gibson, 264 Ark. 418, 572 S.W.2d 146 (1978). Accordingly, we will not change our interpretation of the statute that provides the limitation for legal malpractice actions.

Affirmed.


author: Robert H. Dudley, Justice. Steele Hays, Justice, Tom Glaze, Justice, Robert L. Brown, Justice,

text:
    Benjamin WEAVER v. STATE of Arkansas
    CR 92-814
    852 S.W.2d 130
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      William R. Simpson, Jr., Public defender, by: Bret Qualls, Deputy Public Defender, for appellant.

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

We reverse and dismiss appellant’s judgments of conviction because the speedy trial rules were violated. The facts are as follows. A series of armed robberies took place in Little Rock in November 1989. On December 5, 1989, appellant was arrested and subsequently charged in a twenty-one count information with committing eleven of the aggravated robberies and thefts. He has remained incarcerated since that time. At his first appearance in court on February 12,1990, a little over two months after he was arrested, appellant moved for severance of the charges. The severance was granted that same day, February 12. Thus, both the State and the trial court knew that appellant faced eleven separate trials within the next ten months. The cases could have been set for trial within the next ten months, and, if the appellant thought that was unfair, he could have moved for a continuance. However, no order concerning a delay resulting from other trials was entered. See A.R.Cr.P. Rules 28.3(a) and (i).

On April 10,1990, the public defender’s office was appointed to replace appellant’s original lawyer. A jury trial was scheduled for June 14, 1990, but on June 8, 1990, appellant appeared and stated that he wished to employ a private attorney. On October 8, 1990, appellant appeared with a new attorney, James Smedley. On October 15,1990, the State moved to reset the trial because of the unavailability of a witness. On November 8,1990, appellant was tried on counts fourteen and fifteen, aggravated robbery and theft of property of a Texaco station, and was found not guilty.

On December 10, 1990, after he had been in jail for more than a year, appellant moved to dismiss the remaining counts for lack of a speedy trial. The trial court denied the motion, but did not set out any excluded periods in an order. On April 10,1991, Bill McArthur was appointed to represent appellant, and another motion to dismiss for lack of a speedy trial is noted on the docket sheet. The motion was denied, and again no excluded periods were set out in a written order. McArthur represented appellant at the trial on counts five and six, which alleged the aggravated robbery and theft of property from a Roadrunner store, and again a jury found appellant not guilty.

A new attorney, Bennie O’Neil, was appointed to represent appellant on counts twenty and twenty-one, the robbery of a Circle K convenience store, and these counts were set for trial on July 9, 1991. The case was tried, but resulted in a mistrial. On July 15, the public defender’s office was again appointed to represent appellant. Three months later, on October 14, 1991, another motion was made to dismiss the remaining counts because of lack of a speedy trial. A hearing was held on the motion, and the State offered the testimony of a deputy court clerk who outlined the proceedings set out above. The trial court orally denied the motion to dismiss and, at the time, stated that the primary reason for the delay was that the court did not wish to make any one lawyer defend appellant on all of the counts of the indictment. For that reason, the court stated that it would appoint one lawyer for one trial, and then later appoint another, and so forth until all counts had been tried. However, again, no excluded periods were set out in a written order. On November 14, 1991, appellant was again tried on counts twenty and twenty-one, and this time the jury found him not guilty.

On April 14,1992, or 868 days after his arrest, appellant was tried in the case now on appeal, counts three and four, the aggravated robbery of, and theft of property from, another Roadrunner convenience store. This time he was found guilty. In the judgment of conviction appellant was given credit for the 868 days he had been in jail.

Appellant was subsequently acquitted on counts nine and ten, and the State dismissed all of the remaining counts, seven, eight, eleven, and twelve. Appellant appeals and argues that the trial court erred in refusing to dismiss the charges because of violation of the speedy trial rules. The argument is well taken. Rule 28.1 (c) provides that a defendant “shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months” from the date of arrest, excluding only those periods of delay as authorized by Rule 28.3. In the argument part of its brief, the State concedes “that all of the possible excludable periods in this record combined would not extend the speedy trial deadline to the date appellant was tried and convicted.” In short, the State concedes that the speedy trial rules were violated, but asks us to disregard the rules and adopt the reasoning of the dissenting opinion of Justice Hickman in Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989). Even if we were to adopt that reasoning and change the rules, we could not do so retroactively, so it would not change the result of this case. Additionally, we decline the State’s invitation to prospectively change the rules.

Before we had speedy trial rules, an accused was often released on bond and remained free for a long period of time before trial was scheduled. The accused usually was pleased with such a system, but the public, the victim, and the victim’s family were uncomfortable while the accused remained free for such an extended period. At other times, an accused might remain in jail for long periods of time without ever being convicted of a crime. A reform movement began. In 1968, the American Bar Association approved a draft of the Standards Relating To Speedy Trial. In 1971, this court created the Arkansas Criminal Code Revision Commission, and a part of its task was to implement standards relating to speedy trial. In 1972, the Supreme Court of the United States handed down Barker v. Wingo, 407 U.S. 514 (1972), which enunciated the constitutional criteria for determining an accused’s right to a speedy trial.

In 1975, this court adopted the Criminal Code Revision Commission’s recommendations as the Arkansas Rules of Criminal Procedure. Article VIII of those rules is entitled “Speedy Trial.” The commentary to that article provides in part: “[T]he concern here is with how the interest of defendants and the public in prompt trial should be determined and protected.” (Emphasis added.) The Commission studied the American Bar Association’s standards. A part of that commentary provides:

The principles underlying most of the standards in this report deal primarily with protection of the defendant, who otherwise would not be in a position to force a prompt trial. The interest of the public in the prompt disposition of criminal cases, however, must also be recognized. Speedy trial may be of concern to the defendant, as he may want to preserve the means of proving his defense, to avoid a long period of pretrial imprisonment or conditional release, and to avoid a long period of anxiety and public suspicion arising out of the accusation. From the point of view of the public, a speedy trial is necessary to preserve the means of proving the charge, to maximize the deterrent effect of prosecution and conviction, and to avoid, in some cases, an extended period of pretrial freedom by the defendant during which time he may flee, commit other crimes, or intimidate witnesses.

Wayne R. LaFave, Standards Relating to Speedy Trial commentary at 5-6 (Am. Bar Ass’n 1967) (emphasis added).

Similarly, we have written that one purpose of the speedy trial rule is to protect the accused, but that the rule is also to protect the victim of the crime and, perhaps above all, to serve the interests of the public. See, e.g., Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985). The concept of the prompt and speedy trial is based upon sound public policy.

The only meaningful way to ensure that the public policy is effectuated is to discharge an accused who is not promptly tried. This is the purpose of Rule 28.1 (c). At times, such as in this case, it is an unpleasant task to reverse and dismiss a conviction, but it is the only way prompt criminal trials are assured.

The dissenting opinion in Asher v. State criticizes our present rule because it does not require the accused to prove prejudice nor require him to assert his right to a speedy trial prior to the expiration of the time. Our Criminal Code Revision Commission recommended to this court, and this court created, the rule we now have instead of the standard of the dissenting opinion in order to prevent issues of byzantine complexity. The rules have worked relatively well, and we decline the invitation to change them.

Reversed and dismissed.

Hays, Glaze, and Brown, JJ., dissent.

Steele Hays, Justice,

dissenting. In this case, as in Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991), it was the appellant’s motion to sever that prevented appellant being tried within the time for speedy trial. In Lewis, we held that a delay attributable to a motion to sever was “good cause” as provided in Ark. R. Crim. P. 28.3(h). In Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982), we found good cause for delay when counsel for the defendant moved to withdraw because of the defendant’s lack of cooperation. In Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978), we found good cause for delay when counsel for defendant withdrew after being assaulted by the defendant. In Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986), the defendant asked for an omnibus hearing and then, fifty-five days later, waived a hearing. We wrote that if the request for an omnibus hearing had delayed the trial the delay would not have counted for purposes of speedy trial. In Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981), a delay attributable to the defendant’s motion alleging a conflict of interest by the prosecutor was good cause.

Turning to the case at bar, it seems evident that a defendant who demands a separate trial on each of eleven felony counts cannot complain on speedy trial grounds if that process requires more than ten months to complete. Between the time the appellant moved for severance and the conviction now before us, five separate trials were conducted, another was delayed because appellant wanted to change counsel on the eve of trial and one was delayed because a witness for the state was unavailable. Both are “good cause” delays. See Divanovich v. State, supra and Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981). It strikes me the state has moved with reasonable diligence to dispose of these cases in the face of the appellant’s demand for eleven separate trials.

The majority maintains the eleven cases could have been set for trial over the ensuing ten months. That may be true, but conducting eleven trials at intervals of three to four weeks would have played havoc with the scheduling of literally hundreds of other cases and put an inordinate burden on the prosecutor, defense counsel and trial court by essentially requiring that their undivided attention be devoted to a single defendant over a span of ten months to the near exclusion of all other matters.

The result in this case demonstrates the dire need for a reexamination of our rule on speedy trial. The rule obviously was drafted with no thought given to the problems created by a demand for severance of a multiplicity of charges. And even though the rule itself has no provision dealing with the situation presented by this case, the majority considers only the element of time in overturning the conviction and dismissing the charges. Arkansas is unique in this mechanical approach to speedy trial. The other states and the District of Columbia uniformly adopt the four criteria approved in Barker v. Wingo, 407 U.S. 514 (1972): the length of the delay, the reasons for the delay, whether the defendant asserted the right to speedy trial and whether the defendant was prejudiced by the delay. See 78 Georgetown Law Journal 853, at 984 - 988 (1990). It is notable that in the Barker case, to which the majority hearken, the Supreme Court unanimously rejected Barker’s speedy trial argument, even though this trial came after sixteen continuances granted on motion of the state and more than five years after his arrest.

I suggest it is time this court took a more reasoned view of speedy trial.

Glaze, J., joins in this dissent.

Tom Glaze, Justice,

dissenting. This appeal presents yet another case where this court has dismissed a defendant’s conviction on speedy trial grounds when the defendant never requested a trial or a trial date be set. Here, Benjamin Weaver was arrested on December 5, 1989, and subsequently charged with twenty-one counts of aggravated robberies and thefts. On February 12, 1990, Weaver asked the twenty-one counts be severed, and the trial court granted his request, making it necessary for eleven separate trials to be scheduled. Rules 28.1 (b) and 28.2(a) provide that Weaver had twelve months from his arrest, or until December 5, 1990 to be tried unless necessary delays occurred as authorized in Rule 28.3.

Although Weaver was represented by counsel and had until December 5, 1990 to demand a trial, he failed to do so. One can reasonably presume from these facts that, since he failed to request a trial date, he wanted no speedy trial. In my dissenting opinion in State v. Tipton, 300 Ark. 211, 779 S.W.2d 138 (1989), I made my views clear that I believe Barker v. Wingo, 407 U.S. 514 (1972) requires a defendant to make a timely request for a trial to be set and to show the defendant’s case has been prejudiced by any unnecessary delay before a defendant’s right to a speedy trial is violated. See also Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989) (Hickman, Hays and Glaze, JJ., dissenting); Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991) (Corbin, Hays and Glaze, JJ., dissenting).

In this case, Weaver requested no trial be set, and in fact, his motion to sever, which was granted, placed the trial court in the position of scheduling eleven trials in a twelve-month period. The trial court expressed its unwillingness to appoint the same attorney to try all eleven trials. The trial court’s decision in this respect seems reasonable to me. Certainly, Weaver never objected. In any event, the state diligently pursued its case against Weaver by trying its first charges on November 8, 1990 — well within the initial twelve-month period calculated under Rule 28. Again, it was only after the twelve-month period expired that Weaver moved to dismiss the state’s remaining charges against him.

Because Weaver’s own severance motion caused the trial court’s delay in trying eleven cases in twelve months and because he failed to make a timely request for a speedy trial or show he was prejudiced as a result of any delay, I believe the majority court’s decision to dismiss is wrong. For the foregoing reasons and those expressed in earlier dissents cited hereinabove, I respectfully dissent.

Hays, J., joins this dissent.

Robert L. Brown, Justice,

dissenting. The decision of the majority places an impossible burden on the state to try all charges against a multiply charged defendant within one year, after that defendant requests severance and separate trials. Here, there were eleven charges for aggravated robbery and theft necessitating eleven separate trials. Under the rationale of the majority, the state would be required to try all charges against a certain defendant within a year’s time, no matter how great the number and irrespective of the fact that the defendant had moved for a severance.

I cannot go that far. The result of such a strict interpretation of our criminal rules would be to seriously bog down a circuit court’s docket due one person’s crime spree. In Pulaski County, at least, there are several criminal divisions. In a more rural judicial district, the logistical problems in trying a multiply charged defendant are even more dramatic.

The truth of the matter is that Ark. R. Crim. P. 28 does not contemplate this contingency of multiple charges and a defendant’s motion for severance. Yet, by moving to sever, the defendant in reality is asking for a continuance relating to the severed charges. To be sure, this places the defendant in a position of choosing between the prejudice associated in a single trial of several counts and a loss of his speedy trial rights. However, in such situations the defendant should voice an objection to the trial settings if they span more than a year’s time. In other words, it is incongruous to permit a defendant to request first a severance of charges for trial and then allow that defendant to say nothing and move to dismiss the untried charges a year after incarceration.

This case is troubling because of the length of time that Weaver has remained in jail — some 2 '/a years — awaiting the series of trials. When a severance has been granted at the defendant’s request on multiple charges, care must be taken by the circuit court to assure that the resulting delays associated with the subsequent trials are appropriate. Stated differently, the mere request of a severance of charges does not give the state carte blanche to move with anything less than maximum speed to dispose of the remaining charges. But there is nothing before us in this case suggesting that the circuit court was remiss in moving the process along.

In sum, I am not prepared to take the absolute approach of the majority when the delay is due to a severance request by Weaver, no objection was made by Weaver to the cases being tried for a period of more than a year until the twelve months had passed, and our criminal rules do not contemplate multiple charges and a severance request.

Hays and Glaze, JJ., join.

       Though I joined the dissent in Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991), I view the sheer number of charges in the present case as distinguishable.


author: Steele Hays, Justice.

text:
    Dustin Heath VICKERS v. STATE of Arkansas
    CR 92-630
    852 S.W.2d 787
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      J. Blake Hendrix, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

On October 6, 1990, the appellant, Dustin Heath Vickers, and Dale Larque drove from their hometown of Stuttgart to Little Rock supposedly to see Vickers’ girlfriend and to purchase drugs. They picked up Kenneth Ray Jackson in the Highland Courts and rode around. Jackson evidently sold Vickers and Larque counterfeit drugs. They then drove to Pratt Road where Jackson got out of the vehicle and was shot in the left eye and in the back of the head.

After Jackson’s body was discovered, Dale Larque was arrested and questioned. In his first statement to police, Larque denied any knowledge of the shooting. A second statement was taken in which Larque implicated Vickers. Larque was then charged with first degree murder. The charges were subsequently dropped.

Vickers was later charged with first degree murder in circuit court. He filed a motion to transfer the case to juvenile court which was denied. That ruling was affirmed by this court in Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).

Larque testified at trial that he was not involved in the shooting and that Vickers was the one who fired the two shots. Vickers testified that it was Larque who was responsible for the murder. The physical evidence included photographs of footprints and tire tracks taken at the crime scene.

The jury found Vickers guilty of first degree murder and sentenced him to life imprisonment. In challenging his conviction, Vickers asserts four points for reversal. We find no error and affirm the trial court’s decision.

Vickers first argues that the trial court erred in failing to find Dale Larque an accomplice as a matter of law. Under settled law, appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Scherrer v. State; 294 Ark. 287, 742 S.W.2d 884 (1988). Under Ark. Code Ann. § 5-2-403 (1987), an accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces the other person to commit it, or aids, agrees to aid or attempts to aid the other person in planning or committing it, or fails to make a proper effort to prevent the commission of the offense, provided he has a legal duty to prevent it. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) . Mere presence at the scene of the crime does not make one an accomplice. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983).

At trial, appellant actually made this argument in the form of a motion to dismiss for failure to corroborate an accomplice’s testimony. The trial judge stated that he would not hold that Larque was an accomplice as a matter of law at that time and would reserve that ruling until later. However, appellant failed to obtain a ruling on this issue. At the end of trial, Vickers renewed his previous motions that had been overruled by the court but did not renew his motion with regard to whether Larque was an accomplice.

We have consistently stated that the burden of obtaining a ruling is on the movant and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. See Donald v. State, 310 Ark. 197, 833 S.W.2d 375 (1992); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Pace v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). Therefore, appellant is procedurally barred from raising this issue on appeal.

Second, Vickers contends the evidence was insufficient to corroborate Larque’s testimony. Because Larque was never found to be an accomplice whose testimony must be corroborated, we need not address this argument. Even so, appellant has not preserved this issue for our review. During a discussion which took place outside the hearing of the jury, defense counsel withdrew the accomplice instructions which included the instruction on corroboration. Such action has the same effect as if Vickers had originally failed to request an instruction.

Also, appellant did not proffer the accomplice instructions and they are not included in the abstract. We have held numerous times that the failure to proffer an instruction results in the issue’s not being preserved for appeal. Pearson v. State, 307 Ark. 360, 819 S.W.2d 284 (1991); Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990). Because the record on appeal is confined to that which is abstracted, the failure to abstract a critical document precludes the court from considering issues concerning it on appeal. See Porchia v. State, 306 Ark. 443, 815 S. W.2d 926 (1991) ; Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Without the proffered instructions before us, we decline to address this argument.

Appellant next argues that the trial court erred in refusing to instruct the jury on the elements of second degree murder and manslaughter. For the same reasons as stated above, Vickers is procedurally barred from arguing this point on appeal. Again, during a discussion with the trial judge, Vickers agreed to withdraw AMCI 301, the instruction on lesser included offenses. In doing so, he waived his right to raise the issue at this time.

Moreover, appellant failed to proffer and abstract the requested instructions. As stated, in order to preserve for appeal any objection to the trial court’s failure to give an instruction, the appellant must make a proffer of the instruction to the judge. See People’s Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). Simply giving a set of instructions to the trial judge prior to trial is not sufficient to allow the appellate court to address the propriety of appellant’s proposed instructions. City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989). In Weber, we held that to so hold would place the responsibility on the trial judge of bringing up a record on appeal from which the appellate court could fully review the proceedings rather than on the appellant, where this court has many times said it belongs. Because the requested instructions were not abstracted, we will not consider whether they should have been given. See Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985).

In addition, Vickers was not entitled to instructions on lesser included offenses because he relied upon the defense of complete denial. We have stated numerous times that a lesser included offense instruction need not be given unless there is a rational basis. See Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986); Crenshaw v. State, 271 Ark. 484, 609 S.W.2d 120 (1980). Because there was no rational basis for giving instructions on lesser included offenses in this case, the trial court was correct in refusing such instructions. •

Finally, appellant asserts that the trial court erred in failing to declare Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991) unconstitutional. The statute provides that a person commits murder in the first degree if “with the purpose of causing the death of another person, he causes the death of another person.”

It is well settled that a party challenging the statute has the burden of proving that it is unconstitutional. Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990); Dutton v. State, 299 Ark. 503, 774 S.W.2d 830 (1989). In this case, Vickers has failed to meet his burden of proof in persuading this court that the first degree murder statute is unconstitutionally vague because it covers both the situation in which a person intends to kill someone and does so and the situation in which a person intends to kill a particular person and kills someone else instead. The appellant has cited no authority to support such a contention.

Although we have not addressed the constitutionality of the first degree murder statute alone, this statute has been challenged along with the capital felony murder statute. We have held several times that the statute for murder in the first degree and capital murder are not unconstitutionally vague, and any overlap in the two statutes does not create a constitutional infirmity in the statutes. See Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988).

The statute in question is not void for vagueness. The first degree murder statute is merely broad enough to cover two situations in which a purposeful killing might occur. Flexibility and reasonable breadth in a statute are permissible, rather than meticulous specificity or great exactitude, so long as its reach is clearly defined in words of common understanding. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986). The phrase “causes the death of another person” is commonly understood to have a certain meaning and comes within the statute.

Arguably appellant has no standing to raise this constitutional argument. When challenging the constitutionality of a statute on the grounds of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning; if by this action, that individual clearly falls within the conduct proscribed by the statute he cannot be heard to complain. Burrow v. State, 282 Ark. 479, 669 S.W.2d 441 (1894). In the present case, the appellant’s actions undeniably fall squarely within the actions described by the statute. The first shot which killed Jackson was fired within four feet of him, and the second shot was fired in close proximity to his head as he lay on the ground. Vickers’s footprints and those of the victim are the only ones adjacent to the body. Thus, Vickers is not one of the “entrapped innocent,” who had not received fair warning of the consequences of his actions.

Pursuant to Ark. Sup. Ct. R. 11(f), the record has been reviewed and no other errors appear which were prejudicial to the appellant.

Affirmed.


author: David Newbern, Justice.

text:
    Nikki Sue ZINGER and Daniel Wayne Risher v. STATE of Arkansas
    CR 92-923
    852 S.W.2d 320
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Jean M. Madden, for appellants.

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

The appellants, Nikki Sue Zinger and Daniel Wayne Risher, were convicted of the first degree murder of Zinger’s mother, Linda Holley, and sentenced to life imprisonment. Zinger and Risher argue the Trial Court erred by (1) failing to grant a directed verdict in their favor, (2) giving a jury instruction on circumstantial evidence other than the model instruction approved by this Court, (3) failing to grant a motion for new trial when it was discovered that a juror was a convicted felon and thus should have been disqualified, (4) allowing into evidence a photograph showing several stab wounds with wooden probes illustrating the entry of the wounds into the victim’s body, and (5) refusing to allow testimony suggesting that someone other than those charged may have committed the crime. We find no error and affirm.

On March 10,1991, officers from the Magnolia City Police Department were called to Holley’s home by a friend of Ms. Holley, Buddy Hight. They entered through the back door and discovered Holley’s body in the living room. The trailer had been ransacked. A medical examiner, Dr. Violetta Hnilica, testified Holley had been stabbed a number of times and had received several blows to the head causing multiple skull fractures. Investigating officers concluded a burglary was staged after Ms. Holley was killed. Glass from the broken rear door was found to be on top of items strewn on the floor. Evidence was also presented that someone had attempted to clean blood from parts of the area after the murder.

Risher was Zinger’s boyfriend, and at the time of the offense the two were living at Risher’s parents’ home. Zinger and Risher lived part-time with Risher’s parents and part-time with Holley. The State presented the theory that Zinger and Risher killed Holley to collect $90,000 in insurance proceeds for which Zinger was the beneficiary. Evidence indicated Zinger knew about her mother’s insurance policy before the murder occurred. On March 14th, police found a box containing the insurance papers at Risher’s parents’ home. All officers testified the box was not in the trailer on March 11th when they conducted what they described as a very thorough search.

The State also introduced the expert testimony of Don Smith, a criminalist from the Arkansas State Crime Laboratory. Smith first examined a piece of polymer glass taken from Holley’s eyeglasses lens which had been broken during the offense. Smith then removed all trace evidence from a camouflage type field jacket which was identified as belonging to Risher and which he had been seen wearing the probable day of the murder. In the right front pocket of the jacket, Smith found a fragment of glass similar to the polymer glass from Holley’s eyeglasses lens. Smith also determined a piece of fiber removed from the jacket to be similar to a fiber which he believed came from Holley’s nurse’s uniform worn by her at the time of the offense.

Using the chemical reagent Luminol, Smith tested various areas of Holley’s home as well as items of clothing belonging to Zinger and Risher for the presence of blood. No objection was raised to the admissibility of this evidence. Smith stated the following items tested positive for the presence of blood: a robe hanging inside Zinger’s closet, a pair of boots taken from the Risher home, and the camouflage jacket which had also been found in the Risher home. This testimony served further to connect Zinger and Risher to the offense.

1. Sufficiency of the evidence

Zinger and Risher contend the evidence was insufficient to support their convictions. Although they moved for a directed verdict at the close of the State’s case, they failed to renew their motion at the close of the evidence. We will not consider an argument that evidence was insufficient to support a conviction when there has been no renewal of the directed verdict motion at the close of the evidence. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992).

2. Jury instruction

The jury was instructed in accordance with the approved model instruction, AMCI 106, which concerns circumstantial evidence. Approximately three hours after the jury retired to consider its verdict, they sent out a note requesting clarification of the following statement found in AMCI 106: “However, circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion.” The Trial Court then provided the jury with a more expansive, nonAMCI instruction on circumstantial evidence. No objection was raised to the instruction when it was read to the jury. Only after the jury again retired to deliberate was an objection raised.

Objections to jury instructions must be made either before or at the time the jury instructions are given. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990). An objection made after the jury retires is not timely.

3. New Trial

Zinger and Risher next argue the Trial Court erred by refusing to grant a new trial because a juror who participated had been convicted of a felony. Arkansas Code Ann. § 16-31-102(5) (1987) disqualifies convicted felons from serving on a jury. The controlling Statute in this case, however, is Ark. Code Ann. § 16-31-107 (1987) which provides:

No verdict or indictment shall be void or voidable because any juror shall fail to possess any of the qualifications required in this act unless a juror shall knowingly answer falsely any question on voir dire relating to his qualifications propounded by the court or counsel in any cause.

The Trial Court correctly determined no juror was asked during voir dire whether he or she had been convicted of a felony. The Trial Court did not abuse his discretion in finding Harris did not knowingly answer falsely to any question on voir dire. Thus, the jury’s verdict is not void or voidable under § 16-31-107. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

4. Admissibility of photograph

Zinger and Risher contend the Trial Court erred by allowing as evidence State’s Exhibit 59 which was a photograph of the victim taken during the autopsy showing the location and direction of the stab wounds. Dr. Hnilica had inserted wooden probes into the stab wounds to show that all the wounds except one were inflicted from an upward direction at the same angle. She testified the fact that the wounds came from the same angle indicated they were rapidly inflicted. From the angle of the wounds, Dr. Hnilica opined that a right handed person inflicted the injuries from behind the victim. The admissibility of photographs rests within the sound discretion of the trial court, and its decision will not be reversed without a showing of clear abuse of discretion. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). Even inflammatory photographs are admissible if they tend to shed light on an issue, if they are useful to enable a witness to better describe the objects portrayed, or if they better enable the jury to understand the testimony. See Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).

We cannot say the Trial Court clearly abused its discretion by allowing the photograph into evidence. The photographs assisted Dr. Hnilica’s testimony and helped the jury understand what she was saying.

5. Similar crime

The Trial Court refused to allow Officer Jimmy Morgan to testify about a similar murder which occurred in Cullen, Louisiana, approximately thirty miles from Magnolia. Zinger and Risher wanted to use the testimony to convince the jury that the person who committed the crime in Louisiana might also have murdered Holley.

Proffered testimony indicated the Louisiana victim had been beaten and stabbed several times and left in a position similar to that of Holley. There was also evidence of an attempted clean-up after the Louisiana incident and that the victim and the assailant knew each other and that it was a drug-related offense. The murder weapons used in Louisiana, a hammer and pair of scissors, were found at the scene of the crime.

To address this issue, we must consider under what circumstances evidence incriminating others is relevant to prove a defendant did not commit the crime charged. In Killian v. State, 184 Ark. 239, 42 S.W.2d 12 (1931), and West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973), the defendants attempted to introduce testimony that other parties had been charged with the offense for which they were being tried. In each case, we upheld the Trial Court’s refusal to allow the testimony because there was no evidence showing the other party was guilty.

Addressing this precise issue, the Supreme Court of North Carolina 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 as 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 . . . [E]vidence 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).

Although there are some similarities between the crimes committed in Louisiana and Arkansas, there was no evidence presented connecting the Louisiana suspect to the Holley murder. The Trial Court was not even given the name of the Louisiana suspect or whether he or she had any connection to Holley. There was neither direct nor circumstantial evidence connecting the Louisiana perpetrator to the Arkansas crime, other than a few similarities found in the two crime scenes, and we cannot conclude the Trial Court abused his discretion in refusing to allow the evidence to be admitted.

Affirmed.


text:
    WEST WASHINGTON COUNTY EMERGENCY MEDICAL SERVICES, Emery Phillips, Sidney Britten, Glinda Kirk, E.E. Newell, Douglas R. Moore, Kathy Struble, Norma Tomboulian and Bob Hasha v. WASHINGTON COUNTY
    92-1267
    852 S.W.2d 137
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Prior, Barry, Smith, Karber & Alford, by: Gregory T. Karber, for appellants.

      George E. Butler, Jr., for appellee, Washington County.
    Davis, Cox & Wright, by: Wm. Jackson Butt II and Tim Howell, for appellee Central Emergency Medical Services.
   David Newbern, Justice.

This is an illegal exaction case. West Washington County Emergency Medical Services and eight individual taxpayers (referred to collectively as WWCEMS), sued Washington County seeking an injunction based on the general authority of Ark. Const, art. 16, § 13, which permits taxpayers to sue to protect inhabitants of a county against enforcement of an illegal exaction. Another emergency medical services provider, Central Emergency Medical Services (CEMS), was also made a defendant for the purpose of recovering tax monies it had received illegally.

The claim was that the County had illegally established an emergency medical service and thus misapplied County funds by contracting with and paying CEMS for providing the service. More specifically, it was contended by WWCEMS that the County had failed to comply with requirements, found in Ark. Code Ann. § 20-13-303 (Repl. 1991), that establishment of such a service be preceded by notice, public hearings, and referendum of the establishing ordinance. The Chancellor held the Statute posing those requirements applied only when emergency medical services were to be financed by imposition of a service charge on potential users of the service or a separate millage assessment. As the services in this case were to be funded by a county sales tax, he concluded there had been no violation. We affirm the decision.

WWCEMS is a private, non-profit corporation which provided emergency medical services in western Washington County. It began operating in 1977. In 1980 Washington County helped establish Central Emergency Medical Services (CEMS), a private, non-profit corporation providing ambulance services authorized by County Ordinance #80-3 to operate in areas of the County not served by WWCEMS. Ordinance #80-5 provided for a per household service charge to be levied in the area of the County to be served by CEMS and a procedure for collection of the fee. In Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982), the legality of these ordinances was challenged, and we held the County had substantially complied with § 20-13-303 and thus CEMS had been properly established.

In March 1982 Washington County did away with the service charge financing for CEMS and contracted with both CEMS and WWCEMS, dividing the County between the two services, and paying each from the proceeds of a county-wide sales tax approved by the electorate. The tax and the plan to use part of the proceeds from it to pay for CEMS had been widely publicized prior to the election at which it was approved. The contracts with CEMS and WWCEMS continued in effect until sometime in 1988 when the County canceled with its contract with WWCEMS and expanded its contract with CEMS to have it service the whole County. There was no hearing and no voter approval of the extension of service by CEMS beyond the boundaries established in the 1980 Ordinance.

On appeal WWCEMS argues the Chancellor’s decision is contrary to the statutory scheme for establishing an emergency medical service and contrary to our decision in the Vandiver case in which we held that the requirements of § 20-13-303 are mandatory. The County and CEMS argue the Statute does not apply, and if it does there has been substantial compliance, given the notice to the voters who approved the sales tax for the specific purpose of financing county-wide emergency medical service.

In the Vandiver case we were concerned with establishment of an emergency medical service to be financed by a service charge rather than by a county-wide tax. It is apparent that the General Assembly intended the procedural requirements of § 20-13-303 apply to a county’s establishment of an emergency medical service to be financed by such a service charge rather than by county-wide taxation. We reach that conclusion by reading other sections in Act 51 of 1979, of which § 20-13-303 was a part. That Act is now codified as Ark. Code Ann. § § 20-13-301 through 20-13-307 (Repl. 1991).

Section 20-13-301 is the general provision of legislative intent, and it refers to authorization of counties to “provide emergency medical services for residents . . . and to provide for levying service charges upon residents. . . .’’Section 20-13-305 deals with financing. It states the services “may be financed by service charges levied in the ordinance establishing the service.” It does not refer to any other form of financing.

We do not depart from our decision in the Vandiver case that the general county powers law found in Ark. Code Ann. § 14-14-801 (1987) is circumscribed by § 20-13-303 when the method of financing a county emergency medical service is by service charge. We find, however, no reason to hold that a county may not establish an emergency medical service pursuant to § 14-14-801 which allows a county to levy taxes as provided by law, appropriate public funds for county expenses as provided by law, and provide for “any service. . . relating to county affairs.” Section 14-14-802 (b)(2)(D) specifically gives county government authority to establish emergency ambulance service. WWCEMS contends “as provided by law” refers to § 20-13-303, but we disagree in view of our determination that the latter section is limited to cases in which a service charge is to be imposed.

Affirmed.