author: W.H. “Dub” Arnold, Chief Justice. Ray Thornton, Justice,

text:
    Beatrice D. DOLPHIN v. Henrietta J. WILSON and Jimmie L. Wilson
    96-631
    942 S.W.2d 815
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997
    [Petition for rehearing denied May 12, 1997.]

      David Solomon, for appellant.

      Wilson Law Firm, P.A., by: E. Dion Wilson, for appellees.

       Special Justices ¥m. Lee Fergus, Leon Holmes, and John C. Lessel join. Newbern, Glaze, and Corbin, JJ., not participating.

   W.H. “Dub” Arnold, Chief Justice.

The case concerns an alleged oral contract for the sale of land. The appellees, Jimmie L. Wilson and Henrietta J. Wilson, filed suit for specific performance against appellant Beatrice D. Dolphin. The chancellor ruled in favor of the Wilsons, and Mrs. Dolphin appeals, raising two issues. The first question presented is whether the chancellor, a former law partner of Mr. Wilson’s, should have recused from the case. The second issue is whether the complaint for specific performance was barred by the statute of frauds. Because we disagree with the chancellor’s conclusion that the proof of the alleged agreement was clear and convincing, we hold that the complaint was barred by the statute of frauds, and reverse and remand.

Mrs. Dolphin and her late husband owned approximately 22 acres of farm land in Phillips County. It was heavily encumbered by over $300,000.00 in liens. The great majority of the encumbrance was due to farm loans made by the Farmers Home Administration. Mrs. Dolphin left the Phillips County area in 1988 and had very little to do with the land thereafter.

On April 5, 1994, the FmHA obtained a judgment in the amount of about $271,000.00 as the result of an in rem foreclosure action filed in federal district court. The land was set to be sold at public auction when Mr. Wilson, an attorney, saw the auction notice in the newspaper and contacted Mrs. Dolphin in Ohio the week before the auction. At this point, Mrs. Dolphin and the Wilsons offer conflicting accounts of what happened. According to Mr. Wilson, Mrs. Dolphin agreed that, if he could purchase the land in her name for its appraised value, approximately $13,000.00, and if he could clear up all outstanding indebtedness, she would deed the land to him. However, when it came time to sign the deed, Mrs. Dolphin refused. Mrs. Dolphin denies the existence of an agreement.

i. Recusal

We first consider the question of whether the chancellor should have recused from the case. After the Wilsons filed their complaint for specific performance, Mrs. Dolphin filed a motion asking Chancellor Kathleen Bell to recuse. The basis of the motion was that Mr. Wilson was Judge Bell’s law partner from 1981 to 1989. The motion also stated that Judge Bell’s name remained listed in the yellow pages of the Helena-West Helena telephone directory as an attorney in private practice with the same address and phone number as Usted for Mr. Wilson.

On appeal, Mrs. Dolphin argues that the chancellor’s failure to recuse violates Canon 1, Canon 2(a), and Canon 3(e) of the Arkansas Code of Judicial Conduct. Canon 1 is general in nature, requiring a judge to uphold the integrity and independence of the judiciary. Canon 2(a) requires a judge to avoid impropriety and the appearance of impropriety. Canon 3(e) requires a judge to disqualify herself in a proceeding in which her impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party or a party’s lawyer.

Judges must refrain from presiding over cases in which they might be interested and must avoid all appearance of bias. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). However, we will not reverse a judgment on the basis of a trial judge’s decision not to disqualify unless the judge has abused her discretion. Id. To decide whether there was an abuse of discretion, we review the record to determine if any prejudice or bias was exhibited. Id. The question of bias is usually confined to the conscience of the judge. Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996). Judges are presumed to be impartial, and the party seeking disqualification has the burden of showing otherwise. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996).

Mrs. Dolphin did not mention Canon 1 at the trial level, so we will not address this portion of her argument for the first time on appeal. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). Canons 2(a) and 3(e), also relied on by Mrs. Dolphin, do not address the situation in which a judge is a former law partner of an attorney who is before the judge. We are aware, however, of one federal district court case from Arkansas holding that a judge is not required to disqualify if a former law partner is counsel in the proceeding. Katz v. Looney, 733 F.Supp. 1284 (W.D. Ark. 1990). Cases from other jurisdictions have held likewise. Singer v. Wadman, 745 F.2d 606 (10th Cir. 1984), cert denied, 470 U.S. 1028 (1985); Certain Underwriters at Lloyds, London v. Oryx Energy Co., 944 F. Supp. 566 (S.D. Tex. 1996); Miller Industries, Inc., v Caterpillar Tractor Co., 516 F.Supp. 84 (S.D. Ala. 1980), affirmed, 733 F.2d 813 (11th Cir. 1984); Bonelli v. Bonelli, 570 A.2d 189 (Conn. 1990); Hall v. Hall, 247 S.E.2d 754 (Ga. 1978).

It does concern us that, in this case, Mr. Wilson is not appearing as an attorney, but as the party seeking specific performance of an alleged oral contract. However, no hearing was held on the issue of recusal, and none was requested. The decision on the part of a judge not to recuse is affirmed when there is no abuse of discretion. Reel v. State, supra. Mrs. Dolphin did nothing more on this issue than file a motion making the assertions described above, and the chancellor denied the motion without comment, so we have little information in the record. Because Mrs. Dolphin has not met her burden of proving that Judge Bell was biased, we must conclude that the chancellor did not abuse her discretion in faffing to recuse from the case. We add, however, that the recusal issue was not well developed in this case. We do not foreclose the possibility that the outcome might be different in another case with a better-developed record.

2. Specific performance of an oral contract to sell land

We next consider whether the Wilsons’ complaint for specific performance was barred by the statute of frauds. In a letter opinion, the chancellor ruled in favor of the Wilsons and granted the petition for specific performance. The chancellor found that, by clear and convincing proof, the terms of the oral contract had been proven. She also required the Wilsons to reimburse Mrs. Dolphin for the 1994 taxes she paid on the land.

Contracts for the sale of lands must be in writing to be enforceable. Ark. Code Ann. § 4-59-101 (a)(4) (Repl. 1996). There is no allegation in this case that a written agreement exists. Instead, Mr. Wilson claims that his payment for the land and his assumption of possession took the contract out of the operation of the statute of frauds. However, to take an oral contract out of the statute of frauds, both the making of the oral contract and its performance must be proven by clear and convincing evidence. French v Castleberry, 238 Ark. 1038, 386 S.W.2d 482 (1965); Pfeifer v Raper, 253 Ark. 438, 486 S.W.2d 524 (1972).

The trial in this case primarily consisted of the competing testimonies of Mr. Wilson and Mrs. Dolphin. According to Mr. Wilson, Mrs. Dolphin told him that she owed so much money on the property that she could not do anything about the public sale. It was Mr. Wilson’s testimony that Mrs. Dolphin agreed that, if he could get the indebtedness satisfied and could pay for the land to keep it from being sold at auction, she would deed the land to him. According to Mrs. Dolphin, she told Mr. Wilson that he could “look into” the sale of the property. However, she testified that she specifically told him that he could not purchase the land in her name. She denied the existence of any agreement to deed the property to the Wilsons.

The only written evidence of communications between the parties is a facsimile that was sent from Mrs. Dolphin to Mr. Wilson on May 18, 1994. Mr. Wilson had told Mrs. Dolphin that he needed her authorization to obtain information from the FmHA about the indebtedness on the property. The one-page fax that Mrs. Dolphin sent read, according to her, as follows:

This is to certify that I, Beatrice Dolphin, authorize Jimmie L. Wilson, to obtain information relating to the sale of my property located at Lakeview (Phillips County Arkansas).
Past due monetary amounts are not to be dispensed with.
s/Beatrice Dolphin NOTARIZED

The record reflects that this exhibit is an original with a raised notary seal. Mr. Wilson denies that the sentence relating to past-due monetary amounts was included.

After receiving the fax, Mr. Wilson sent a letter to the FmHA on his law firm’s letterhead, in which he stated that Ms. Dolphin had contacted his office and had asked that he determine the appraised value of the property. The letter referenced the in rem action in federal district court, and stated that Mr. Wilson’s representation in the matter was limited to tendering the settlement to FmHA. However, at trial, Mr. Wilson testified that he did not represent Mrs. Dolphin as an attorney. Attached to Mr. Wilson’s letter to the FmHA was a copy of Mrs. Dolphin’s May 18, 1994, fax; however, this authorization did not contain the sentence, “[p]ast due monetary amounts are not to be dispensed with.”

On May 24, 1994, one day before the auction, Mr. and Mrs. Wilson sent checks to the FmHA in the amount of $13,200.00 for the property, and $1,239.40 for costs. These payments stopped the public sale of the property, and resulted in a satisfaction of judgment being entered on the FmHA’s foreclosure action in federal court. The Wilsons then began work on trying to reduce the $300,000.00 indebtedness on the property. Unbeknownst to them, Mrs. Dolphin was working on her own, during this same period, to get her debt forgiven. She filed a formal application for settlement on August 16, 1994, and the FmHA issued a satisfaction on August 17, 1994. On August 18, 1994, the FmHA county supervisor recommended that Mrs. Dolphin’s debt be can-celled. The FmHA approved the cancellation of the debt on May 2, 1995.

Once the debt was satisfied, Mr. Wilson sent a warranty deed to Mrs. Dolphin so she could sign the property over to him. He also began to work on the land. He tried to clean up the property, and drained the back part of the land. He hired the city to mow the property a few times. He had someone disc the land, and he allowed others to plant a crop on part of the parcel. Sometime thereafter, he received notice from Mrs. Dolphin’s attorney that she would not sign the warranty deed.

The factors that point to the making of the contract and its performance include the following. The Wilsons paid the appraised value of the land, and worked to remove the indebtedness from the land. After the debt was satisfied, the Wilsons performed maintenance on the land and allowed a crop to be planted on a part of it. Finally, the Wilsons prepared a warranty deed for Mrs. Dolphin to sign.

The cases of French v. Castleberry, supra, and Pfeifer v. Raper, supra, are instructive. Both involved tenants who claimed that their landlord had orally agreed to sell them the land which was the subject of their tenancy. In each case, the tenants claimed to have made improvements on the land in reliance on the oral contract. We observed in both cases that the improvements were of the type that might ordinarily be made by tenants. French, 238 Ark. at 1040; Pfeifer, 253 Ark. at 440. We also noted that, to satisfy the statute of frauds, the improvements must be so valuable and substantial that it would be inequitable to refuse specific performance. Id.; Blanton v. First Nat’l Bank of Forrest City, 136 Ark. 441, 206 S.W. 745 (1918).

The improvements (mowing, discing to keep down the weeds, and bulldozing debris from a burned building into a pile) by the Wilsons in this case essentially amounted to maintenance. They are the type of maintenance an agent will do for an absentee landowner and hence are consistent with Mr. Wilson’s representation to the FmHA that he was acting as Mrs. Dolphin’s agent. For that matter, Mr. Wilson testified that he had known Mrs. Dolphin all of his life, and this type of maintenance could easily be done by a long-time friend of an absentee landowner. These acts are not “unequivocally referable to the agreement”; they are not “unintelligible or extraordinary unless as an incident of ownership.” 1 E. Allen Farnsworth, Farnsworth on Contracts § 6.9, at p. 442, & n. 11 (1990), quoting Burns v. McCormick, 135 N.E.373 (N.Y. 1922). Thus, the only evidence of an agreement in this case is the Wilsons’ payment for the land, in Dolphin’s name, and the maintenance of the property. When examining this evidence, we must conclude that it “lacks the clarity and cogency that the law demands.” French, 238 Ark. at 1039. When looking at the countervailing evidence on behalf of Mrs. Dolphin, the written evidence that she offered reflects that she only authorized Mr. Wilson to obtain information relating to the sale of her property. She also continued her own efforts to cancel the indebtedness on the land, and paid taxes on the lánd in 1994. When considering all the evidence, we conclude that the chancellor clearly erred in finding that there was clear and convincing evidence that an agreement existed between the parties. Under these circumstances, we hold that the Wilsons’ complaint was barred by the statute of frauds, and reverse and remand for entry of an order consistent with this opinion.

Reversed and remanded.

Newbern, Glaze, and Corbin, JJ., not participating.

Special Justices William Lee Fergus, Leon FIolmes, and John C. Lessel, join in this opinion.

Thornton, J., dissents.

Ray Thornton, Justice,

dissenting. I agree with the majority opinion that Chancellor Bell did not commit reversible error by not recusing from this case. As noted in the opinion, the record reveals no indication or expression of bias on the part of the chancellor. However, I must respectfully dissent from the majority decision that the chancellor erred in finding that there was an oral contract between Beatrice Dolphin and Jimmie L. Wilson whereby she would convey her interest in the land to Mr. Wilson in return for his efforts in stopping a foreclosure sale by paying the appraised value of the real property and effectively negotiating settlements of the outstanding debts owed on the land.

As the majority points out, in order to take an oral contract to convey land out of the statute of frauds, both the making of the oral contract and its performance must be proven by clear and convincing evidence. French v. Castleberry, 238 Ark. 1038, 386 S.W.2d 485 (1965). As we recently stated in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996): “In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence.” Id. at 487, 931 S.W.2d at 770; see also McGarrah v. McGarrah, 325 Ark. 81, 924 S.W.2d 260 (1995). Because the chancellor is in a superior position to judge the credibility of the witnesses, this court gives deference to the trial court’s findings of fact unless the appellant can demonstrate that the chancellor abused her discretion by making a decision that was arbitrary or groundless. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996).

As in most cases where the existence of a contract is in dispute, the testimony of the parties in the case before us is contradictory; the decision whether a contract existed addresses itself to the sound discretion of the judge who hears the testimony, considers documentary evidence, and determines factual issues such as whether and to whom payment was made, and whether possession was assumed. Based upon substantial evidence presented at the trial, the chancellor found that Mrs. Dolphin’s farm had become heavily encumbered by debt, and that after her husband’s death in 1988 she took no action to stop a foreclosure proceeding scheduled for May 25, 1994, or to discharge the debt. For all intents and purposes, she had written off the land and the debt.

The chancellor considered Mr. Wilson’s testimony that Mrs. Dolphin agreed to sell him the property if he could get the indebtedness satisfied and prevent the public auction by paying the appraised purchase price of FmHA. The chancellor then made the following specific findings:

Upon reaching this agreement with Respondent, Wilson then contacted the County Supervisor . . . [and] was informed, by letter dated May 20, 1994, of the procedure required to ehminate the public sale of the property. As the result of this letter, Wilson caused to be issued two cashiers checks, both dated May 24, 1994 ... as follows:
1. Department of Justice — $1239.40; and
2. Farmers Home Administration — $13200.00.
The satisfaction of the judgment was filed June 7, 1994 and forwarded to Wilson.
Wilson also engaged the services of a farmers’ organization directed by Calvin King, Arkansas Land and Farm Development Corporation. That organization engaged in mediation efforts with the state and national offices of FmHA. As the result, the mortgages reflecting the outstanding indebtedness of this Respondent were satisfied on August 17, 1994. This satisfaction was forwarded to Wilson.
After the satisfactions were received, Petitioners [the Wilsons] assumed possession of the real property in question. The acts of possession of the Petitioners consisted of having the grass mowed at least 4 times by the City of Lakeview; had the land disced; hired someone to bulldoze debris; and had the back of the property drained .... Wilson then forwarded to [Mrs. Dolphin] the satisfaction referred to previously and a proposed deed. . . .

The majority refers to the cases of French v. Castleberry, supra, and Pfeifer v. Raper, 253 Ark. 438, 486 S.W.2d 524 (1972), where we observed that similar improvements made by tenants were insufficient to take an alleged oral agreement to convey the land out of the statute of frauds because such improvements were of the type that might ordinarily be made by tenants. However, Mr. Wilson had no right to be on the land as a tenant. His claim to possession was pursuant to the oral agreement that he testified he and Mrs. Dolphin had entered into.

We have noted that to take a contract out of the statute of frauds, the improvements must be so valuable and substantial that it would be inequitable to refuse specific performance. Id.; Blanton v. First Nat’l Bank of Forrest City, 136 Ark. 441, 206 S.W. 745 (1918). Certainly the clear and convincing evidence is that Mr. Wilson made very valuable and substantial improvements to the property. He redeemed it from foreclosure and took action to assist in the satisfaction of the other debts. He also took possession of the property and made improvements including bulldozing and draining parts of the realty.

When deference is given to the chancellor’s findings of fact in this case, it does not appear that those findings are clearly erroneous or clearly against a preponderance of the evidence. The chancellor weighed the evidence, evaluated the credibility of the witnesses, and decided that clear and convincing evidence proved the existence of an oral contract to convey real property, and that Mr. Wilson’s assumption of possession and making of improvements took the contract out of the operation of the statute of frauds.

I would affirm the chancellor’s order granting specific performance, and for that reason, I must respectfully dissent.


source: Caselaw Access Project

author: W.H.“Dub” Arnold, Chief Justice.

license: Public Domain

text:
    David Anthony WEBB v. STATE of Arkansas
    CR 96-711
    941 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Montgomery, Adams & Wyatt, PLC, by: James W. Wyatt, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

The appellant, David Anthony Webb, was charged with capital murder for shooting and killing Jimmy Griffiths. A jury found him guilty of the lesser-included offense of first-degree murder, for which he received a sentence of life imprisonment. Webb’s sole argument on appeal is that there was insufficient evidence to support his conviction. We affirm the conviction and sentence.

The State’s case against Webb included the following evidence. On June 20, 1995, the victim, Jimmy Griffiths, was returning his and Angela Nelson’s minor child to Angela’s residence at the Pine Gardens Apartments in Little Rock. While Angela’s name was on the lease, her boyfriend, appellant Webb, and her sister Dawona also lived in the apartment and were present there on the date in question.

When the victim arrived at the apartment, Webb told him that he (the victim) was “foul,” and that he had “disrespected” him (Webb). As Webb became angrier and approached the victim, Angela and Dawona repeatedly asked the victim to leave. The victim refused to do so, and, instead, asked to use the telephone. By this time, a security guard had arrived at the apartment, but was told that everything was alright. Instead of asking for the security guard’s assistance, Webb went back to his bedroom and retrieved a nine millimeter pistol. He returned and fired what he termed to be a “warning” shot in the general area of the victim, who was standing by the door.

After the first shot was fired, the victim rushed Webb, and the two began wresding. Angela and Dawona attempted to separate the men. Angela positioned herself between Webb and the victim. While the victim never struck Webb, Webb hit the victim twice in the head with the gun. Angela and Dawona tried to take the gun away from Webb, but he resisted. Webb then reached over Angela’s shoulder and fired a second shot that struck the victim in the forehead. The victim fell to the floor, and Webb ran out the door. According to Angela and Dawona, at no time during the incident did the victim produce a weapon or threaten Webb.

Dr. William Sturner, Chief Medical Examiner of the State Crime Lab, performed the autopsy on the victim. He testified that the victim was killed by a single gunshot wound to the forehead, and that powder marks surrounding the wound indicated that he was shot at very close range — less than three feet and perhaps even inches away.

At the close of the State’s case, Webb “moved for a directed verdict of acquittal” on the grounds “that the State has failed to meet its burden of proof in this case of showing premeditation on behalf of this Defendant.” His motion only addressed capital murder, and did not address first-degree murder either by name or by the culpability required for the crime. The trial court denied the motion.

We have held that a defendant is required to address the lesser-included offenses in his motion for a directed verdict to preserve a challenge to the sufficiency of the evidence necessary to support a conviction for a lesser-included offense. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). Because Webb failed to question the sufficiency of the evidence for first-degree murder either by name or by apprising the trial court of the elements of this offense, he did not preserve his argument for our review.

Since Webb received a life sentence, we have examined the record in accordance with Ark. Sup. Ct. R. 4-3(h) for error in rulings by the trial court that were adverse to him. None has been found. Accordingly, we affirm Webb’s conviction and sentence.

Affirmed.

       First-degree murder requires proof that the actor, with the purpose of causing the death of another person, caused the death of another person. See Ark. Code Ann. §5-10-102(a)(2) (Repl. 1993). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.]” Ark. Code Ann. § 5-2-202(1) (Repl. 1993).


author: David Newbern, Justice.

text:
    Lamont BOWDEN v. STATE of Arkansas
    CR 95-1258
    940 S.W.2d 494
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Ronald Carey Nichols, for appellant.

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

Lamont Bowden was convicted of capital felony murder, Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1995), and sentenced to life imprisonment without parole as the result of his participation in an aggravated robbery of Andre’s Restaurant in Little Rock during which Andre Simon was shot and killed. Mr. Bowden presented the affirmative defense of lack of capacity, due to mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. Ark. Code Ann. § 5-2-312 (Repl. 1993). In support of that defense, he sought to show that he had received Social Security checks from the federal government due to a mental disability. The Trial Court held that evidence inadmissible absent a showing that the standard for determining the entitlement to such aid was the same as the statutory description of lack of capacity to engage in criminal misconduct. As the Trial Court did not abuse his discretion in determining the evidence to be inadmissible, we affirm the judgment.

By a per curiam order of October 14, 1996, we granted Mr. Bowden’s motion to supplement the record with a transcript of an omnibus hearing that was conducted for the purpose of deciding motions presented to the Trial Court. Bowden v. State, 326 Ark. 266, 931 S.W.2d 104 (1996). The stated purpose of granting the motion to supplement the record was to permit an abstract to be filed so that the entire record could be reviewed for errors prejudicial to the accused. Such a review is required by our Rule 4-3 (h). In his substituted brief containing the revised abstract, Mr. Bow-den added three points of appeal to the one mentioned above. In a subsequent order we granted the State’s motion to strike the three additional points and arguments because permission had not been granted to add arguments. We thus address only the one argument made by Mr. Bowden in his initial brief.

The State’s evidence showed that Mr. Bowden and three others drove to Andre’s Restaurant where Mr. Bowden had formerly been employed. In a statement to police officers, Mr. Bow-den admitted that he drove the car, that he was aware that his passengers were armed, and that he knew they intended to rob the restaurant. The evidence showed that Marco Prowell and Terry Smith, two of the passengers, entered the restaurant and demanded money. Mr. Prowell shot Mr. Simon, and both departed in the car driven by Mr. Bowden.

When the issue arose about Mr. Bowden’s attempt to introduce evidence of his Social Security checks, his counsel said he planned to present evidence from Mr. Bowden’s girlfriend to the effect that Mr. Bowden received the checks. Counsel also alluded to the fact that he had discussed the matter with a psychologist who testified in Mr. Bowden’s behalf, but counsel did not inform the Trial Court of the witness’s response. At one point, Mr. Bow-den informed the Trial Court, “The check is for two personalities switching personalities. A second personality switching retardation.” There was no proffer of any evidence concerning the standard used by the Social Security agency to determine Mr. Bowden’s entitlement to the checks.

The Trial Court’s decision to exclude the evidence in question was expressed as follows:

But you’re going to have to show me that the Social Security Administration’s standards are the same as the legislative mandated standards determining mental capacity. If they are, it’s admissible, but if they’re not, it’s not admissible.

The decision was obviously based on the Trial Court’s concern, in response to the State’s objection, that the mere evidence that Mr. Bowden was receiving the Social Security checks would not be relevant. Ark. R. Evid. 401. Even if it could be said to have been marginally relevant, it might well have been confusing to the jury, which might have concluded that a determination by the federal government that Mr. Bowden was entitled to assistance due to a mental disability amounted to proof that he lacked the capacity to commit the crime alleged. See Ark. R. Evid. 403.

Decisions on relevancy, such as the one made in this case, fall within the broad discretion of the Trial Court, and we do not reverse unless there has been an abuse of that discretion. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993); Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). We conclude there was no abuse of discretion. That is especially so in view of the possibly confusing nature of the evidence sought to be presented and the opportunity offered to Mr. Bowden, but not accepted by him, to demonstrate its relevancy.

Mr. Bowden also argues the evidence that he was receiving the Social Security checks should have been admitted pursuant to Ark. R. Evid. 702 as expert testimony. No such argument was made to the Trial Court, and we decline to consider it. Myers v. State, 317 Ark. 70, 876 S.W.2d 246 (1994); Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993).

In accordance with Rule 4-3 (h), the record has been reviewed for trial errors prejudicial to Mr. Bowden, and none has been found.

Affirmed.


author: Tom Glaze, Justice.

text:
    BOARD of ZONING ADJUSTMENT of the City of Little Rock v. Vernon CHEEK
    96-117
    942 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Thomas M. Carpenter, City Attorney, by: Robert L. Baker, for appellant.

      Timothy O. Dudley, for appellee.
   Tom Glaze, Justice.

This case involves property located within Little Rock’s three-mile zoning jurisdiction, and while the property was zoned for residential purposes, the City had allowed it to be used for an auto repair business as a nonconforming use as of 1991. After Cheek purchased the property in 1993, he opened his auto-repair business, and the Little Rock zoning staff concluded that the nonconforming use of the property had been abandoned. Cheek appealed the staff s decision to the Little Rock Board of Zoning Adjustment, but at a hearing held on December 27, 1993, the Board upheld the staffs determination that Cheek’s documentation was insubstantial and failed to support his claim that the nonconforming use of the property had not been abandoned for one year. The Board orally announced its decision at the December 27 hearing, and that decision was noted on the bottom of Cheek’s application for a variance.

On January 19, 1994, the Board received further documentation from Cheek and notice that he intended to appeal the Board’s determination to circuit court. In fact, Cheek mailed a notice of appeal to the Board on January 26, 1994, but he failed to file his notice with the circuit court. Instead, on February 7, 1994, Cheek filed a complaint in circuit court against the Board, seeking a declaratory judgment and demanding a jury trial. On February 22, 1994, Cheek received the Board’s final notice that he must cease operation of his auto repair shop or file for rezoning. Cheek filed a motion to stay enforcement of the Board’s action.

On August 26, 1994, the Board filed a motion to dismiss Cheek’s complaint, contending the circuit court lacked jurisdiction because Cheek had not properly perfected his appeal. Cheek responded, stating that, under Ark. Code Ann. § 14-56-425 (1987), he had thirty days within which to appeal the Board’s final action under Arkansas’s Inferior Court Rules. The trial court determined that Cheek’s appeal time commenced when the Board, in its final action, approved its minutes on January 31, 1994; it further found Cheek’s complaint filed in circuit court on February 7, 1994, was a timely appeal from the Board’s approval of its minutes. The trial court erred.

We need not decide whether Arkansas law required Cheek to perfect his appeal from the Board’s initial action on December 27, 1993, or from the Board’s approval of its minutes on January 31, 1994, because Cheek indisputably did neither. As previously mentioned, § 14-56-425 required Cheek to appeal the Board’s final action in the manner provided under Rules 8 and 9 of Arkansas’s Inferior Court Rules. In particular, Rule 9(a) provides that an appeal of a civil case from an inferior court to circuit court must be filed with the clerk of the circuit court having jurisdiction within thirty days from the entry of the judgment, and Rule 9(c) specifically mandates as follows:

When the clerk of the inferior court, or the court [Board, here] in the absence of a clerk, neglects or refuses to prepare and certify a record for filing in the circuit court, the person desiring an appeal may perfect his appeal on or before the 30th day from the date of the entry of the judgment in the inferior court [Board] by filing an affidavit in the office of the circuit court clerk showing that he has requested the clerk of the inferior court or the inferior court [Board] to prepare and certify the record thereof for purposes of appeal and that the clerk or the court [Board] has neglected to prepare and certify such record for purposes of appeal. (Insertions added.)

As previously mentioned, Cheek failed to file a timely appeal from the Board’s December 27, 1993 decision, nor did he appeal from the Board’s approval of minutes on January 31, 1994. Instead, on January 26, 1994, he mailed an appeal notice to the Board from the December 27 decision, but subsequently abandoned that effort and filed a complaint in circuit court for declaratory relief against the Board on February 7, 1994. While the trial court made some mention that it would treat Cheek’s February 7 complaint as an appeal, Cheek never filed a record of the Board’s proceedings with the circuit court, nor did Cheek ever file an affidavit with the circuit court stating, as required by Inferior Court Rule 9, that Cheek had requested a record, but the Board had failed and neglected to prepare and certify it. In sum, Cheek simply failed to perfect his appeal in the time and manner provided by law; therefore, the trial court never acquired jurisdiction of Cheek’s appeal. See West Apartments, Inc. v. Booth, 297 Ark. 247, 760 S.W.2d 861 (1988); see also Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989).

Cheek also argues that the Board is now precluded from raising the argument that the circuit court had no jurisdiction of Cheek’s appeal because, earlier, the Board had filed a petition for writ of prohibition with our court concerning the same issue, and it lost. In this respect, on December 9, 1994, Cheek filed a mandamus action directing the circuit court to accept Cheek’s belated appeal. When the circuit court granted mandamus, the Board did not appeal, but instead petitioned this court for a writ of prohibition, asserting the trial court had no jurisdiction to accept a belated appeal. Cheek argues that, because the Board’s petition was denied and the Board did not appeal the trial court’s mandamus order, the Board is barred by res judicata and cannot now collaterally attack it.

Suffice it to say, in denying the Board’s earlier petition for writ of prohibition, we offered no opinion indicating whether the trial court had jurisdiction of Cheek’s appeal. We also note that the Board’s contention has always remained essentially the same throughout all the parties’ actions, petitions, motions, and responses, namely, that the trial court never acquired jurisdiction of Cheek’s appeal.

While Cheek argues the Board is barred by res judicata or collateral estoppel, his argument simply overlooks the fact that he faded to comply with the provisions of Inferior Court Rule 9, which are mandatory and jurisdictional in nature. In short, the circuit court in this matter never had jurisdiction of Cheek’s appeal, and the trial court never acquired it by Cheek’s filing a mandamus action. Neither did the circuit court have authority to grant a belated appeal. Edwards, 300 Ark. 136, 137, 111 S.W.2d 583, 584.

Although we are resolute in deciding the circuit court had no authority to hear Cheek’s appeal, we would be remiss in failing to point out the obvious and understandable confusion the parties and trial court encountered when trying to interpret § 14-56-425. That statutory provision attempts to provide for appeals to circuit court from final actions taken by administrative and quasi-judicial agencies, and, in doing so, incorporates the same appeal procedure this court has provided in our Inferior Court Rules 8 and 9.

Our Inferior Court Rules, of course, generally deal in terms of appeals from “entry of judgment” and appellate records prepared and certified by a “court clerk” — terms normally inapplicable to actions taken by administrative agencies, boards, and commissions. We would like to suggest to the General Assembly that it address this rather murky area caused by § 14-56-425, and provide some clarity so as to avoid administrative-appeal problems such as the ones evidenced in this decision.

For the reasons given hereinabove, we reverse and dismiss.


text:
    T.C. JEFFERSON v. STATE of Arkansas
    CR 96-655
    941 S.W.2d 404
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      Thomas D. Deen, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant T. C. Jefferson was serving time at the Arkansas Department of Correction’s Delta Regional Unit for having committed rape when, on September 20, 1994, he stabbed three fellow inmates ■ — ■ James Jerry, Anthony Monts, and Rusty Cook. Jerry and Monts died. Jefferson confessed to the stabbings, and was charged with two counts of capital murder and one count of attempted capital murder.

At trial, Jefferson’s defense was that he acted in “preemptive” self-defense, stating the three men would have killed him if he had not killed them first. The jury found him guilty of the capital murder of Jerry, of the first-degree murder of Monts, and of the attempted capital murder of Cook. He received respective sentences of life imprisonment without parole, life, and sixty years. Jefferson appeals, raising three points for reversal.

Jefferson’s first argument arises from the jury’s visit to view the crime scene. At trial, both the State and the defense urged the judge to allow the jurors to visit the prison, so they could view the kitchen and dining rooms where the stabbings occurred. Although he initially was against the idea, the judge relented. Defense counsel and the State persuaded the judge that the jury could get the smell, feel, and sounds of the penitentiary that it could not get from pictures, video, and testimony. Arrangements were made to transport the jury members to the correction facility, and the trip, plus the viewing, took one and one-half hours. Immediately prior to recessing court for the trip, the judge instructed the jurors as follows:

Ladies and gendenien, vans are — a van is available for your transport to the correctional facility and what we are going to do is recess. As I understand the procedure, you will just be shown the area of the inmate dining room and the kitchen area. You will not be able to ask any questions or you will not be able to elicit any testimony from anybody. Therefore, based upon what you have heard, the testimony you’ve already heard and other evidence introduced, this will just be additional opportunity for you to determine what the facts are. We anticipate it will take approximately thirty minutes to get there, thirty minutes to come back, and probably thirty minutes there, including going through security. So, we will take a recess and the bailiff will escort everybody downstairs. I understand a van is available. A bailiff will drive the van along with the twelve members of the jury.

After the judge gave the foregoing instructions, neither the defense counsel nor the prosecutor objected that the judge’s instructions were deficient or that the procedures utilized for the viewing were improper. Neither did the defense ever complain at trial that any improper communication or contact occurred involving any member of the jury. Nevertheless, Jefferson submits that the trial court’s instructions did not conform with Ark. Code Ann. § 16-89-118 (Repl. 1987), which mandates the procedure to be employed in a jury view. In particular, he argues the trial court erred in failing to instruct, under oath, the officer (bailiff), taking the jury for viewing, to keep the jurors from communicating with others about the case. See § 16-89-118(b)(2). Jefferson further submits that, based upon this court’s interpretation of this same statute in Baxter v. State, 225 Ark. 239, 281 S.W.2d 931 (1955), we should reverse and remand his case for a new trial, even though Jefferson never objected to the trial judge’s noncompliance with the statute or showed he suffered any prejudice as a result of such noncompliance.

In Baxter, the defendant, like Jefferson in the present case, requested that the jury inspect the crime scene, and the trial court granted the request. Although § 16-89-118 (b)(2) [then Ark. Stat. Ann. § 43-2120 (1947)] required the court officers, escorting the jury, to be “sworn to suffer no person to speak or communicate with the jury on any subject connected with the trial, nor to do so themselves,” the record does not reveal that the trial court administered the officer the oath. Nor does the record reflect Jefferson requested the oath be given.

In a split decision, the Baxter court reversed and remanded the case, holding that § 16-89-118(b) (2) made it mandatory that officers conducting a jury to a crime scene be required to take the statutory oath, and stating further that it was not for the court to say no harm was done. In a dissenting opinion, Justice George Rose Smith pointed out that the majority opinion conflicted with the court’s prior holding in Atterberry v. State, 56 Ark. 515, 20 S.W. 411 (1892), but, the majority court never overruled Atterberry. Atterberry, too, involved the matter of administering a special oath to an officer in charge of a jury, and the trial court’s failure to administer the oath before the jury went into deliberation. However, the Atterberry court affirmed the defendant’s conviction, holding the defendant had waived the mandatory giving of the oath because he never objected or asked the trial court to administer the oath, and no prejudice was shown resulting from the trial court’s failure to swear the officer.

Any confusion over whether Atterberry or Baxter controls jury-view situations such as the one before us now was laid to rest when this court decided Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Berna, itself, did not involve § 16-89-118, but it did concern a trial court’s failure to comply with the mandatory statutory provisions [Ark. Stat. Ann. § 39-210 (Supp. 1983)] establishing the manner by which jurors shall be summoned. While the Berna court stated that it did not approve the procedure used by the trial court and circuit clerk in selecting the defendant’s jury panel, it held that some prejudice must be shown in order to find grounds to reverse a conviction. The court further announced the rule that no longer is it presumed that simply because an error is committed it is prejudicial error. Quoting from McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), the Berna court said the following:

This Court has long held that “[a litigant] is entitled to a fair trial but not a perfect one,” for there are no perfect trials. Brown v. United States, 411 U.S. 223, 231-232 (1973), quoting Bruton v. United States, 391 U.S. 123, 135 (1968), and Lutwak v. United States, 344 U.S. 604, 619 (1953). Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for society which pays the judges and support personnel who manage the trials. It seems doubtful that our judicial system would have the resources to provide litigants with perfect trials, were they possible, and still keep abreast of its constantly increasing case load ....
We have also come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered “citadels of technicality.” Kotteakos v. United States, 328 U.S. 750, 759 (1946), quoting Kavanaugh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A.B.A.J. 217, 222 (1925). The harmless error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for “error” and ignore errors that do not affect the essential fairness of the trial. See Kotteakos, 328 U.S., 759-760.

This court’s decision in Berna gives added strength and support to its earlier holding in Atterberry. Accordingly, we conclude that, even though the trial court here did not fully comply with § 16-89-118 by administering an oath to the officer conducting a jury view, the trial court’s error did not affect the essential fairness of Jefferson’s trial. Jefferson was required to object to the officer’s taking charge of the jury without receiving the special statutory oath and to show that some misconduct by a juror or officer resulted. Here, the trial court admonished the jurors that they would not be able to ask questions of anybody, they were to determine the facts, and they would be escorted by the court’s bailiff. Although the trial court did not administer the statutory, special oath to its bailiff, nothing in the record remotely suggests that any officer or juror misconduct occurred or that prejudice resulted during the jury’s trip to the correctional facility. Therefore, we reject Jefferson’s argument that, in these circumstances, the trial court’s failure to comply with § 16-89-118 requires reversal.

Before leaving Jefferson’s first argument, we address his reference to Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995), wherein this court, citing earlier cases, reiterated the proposition that the right to a jury trial is not subject to the contemporaneous-objection rule, and such a right may be raised for the first time on appeal. Specifically, the Grinning court, citing Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), stated that the denial of the right to trial by jury in a criminal case, without the requisite waiver in accordance with the law, is a serious error for which the trial court should intervene, and is therefore an exception to the contemporaneous-objection rule. See Wick v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Jefferson suggests a trial court’s error in failing to comply with § 16-89-118 is comparable to the type of serious error in Grinning and Winkle, where the defendant was deprived of his or her right to a jury trial. That being true, Jefferson argues he was not subject to the contemporaneous-objection rule, and it was unnecessary for him to raise the § 16-89-118 issue below as a prerequisite to arguing it on appeal. We disagree.

As this court explained in Winkle, the right to a trial by jury in a criminal case is a fundamental right of our jurisprudence and is recognized by the Magna Charta, the Declaration of Independence, the federal constitution, and our state constitution. The Winkle court further explained the right to jury trial is part of the basic structure of our courts, and every judge, on his or her own motion, should accord such a basic right.

Obviously, while a trial court’s failure to give an officer the special oath required under § 16-89-118 might result in some misconduct or prejudicial error, such error does not encompass the type of fundamental or structural right this court sought to protect and ensure in Grinning and Winkle. Because Jefferson failed to object to the lower court’s failure to comply with § 16-89-118, that failure alone is sufficient to affirm on his first point.

For his second point of error, Jefferson contends that the trial court erred by admitting into evidence a videotape showing the crime scene and victims’ bodies, which was cumulative, inflammatory, and gruesome, thus prejudicing him. Jefferson argues that, he freely admitted to the stabbings, thus, the videotape’s probative value was minuscule compared to its prejudicial effect, and the trial court erred by denying his motion for a mistrial based on the prejudicial nature of the videotape.

Jefferson relies on Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), where this court held that the admission of photographs was a matter subject to the trial court’s discretion but explained that, “[T]he analysis should firmly emphasize the need for the trial court to carefully weigh the probative value of the photographs against their prejudicial nature, rather than promoting a general rule of admissibility which essentially allows automatic acceptance of all the photographs of the victim and crime scene the prosecution can offer.” In Berry, this court reversed the accused’s murder conviction on the basis of unduly prejudicial photographs. Id. at 223. Jefferson claims that the videotape, like the photographs in Berry, added absolutely nothing of probative value to the numerous still photographs the State had previously introduced without objection. Jefferson’s argument is without merit.

A videotape is admissible if it is relevant, helpful to the jury, and not prejudicial. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). Generally, the same considerations and requirements for admissibility that apply to photographs also apply to videotapes. Williams v. State, 316 Ark. 694, 874 S.W.2d 369 (1994). The admissibility of such evidence is in the sound discretion of the trial judge, whose discretion will not be set aside absent an abuse of that discretion. Bradford v. State, 306 Ark. 590, 815 S.W.2d 947 (1991). And while this court’s decision in Berry holds that a trial court cannot admit photographs carte blanche, it only prohibits the admission of photographs whose prejudicial effect substantially outweighs any probative value.

In Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994), this court held that no error occurred when the jury was shown both a videotape of the homicide scene and photographs of the victim’s wounds. This court stated the well-settled law as follows:

The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. (Citation omitted.) Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. (Citation omitted.) Of course, if a photograph serves no valid purpose and could be used only to inflame the juror’s passion, it should be excluded.

Here, the record reflects that the trial court carefully considered the admissibility of the videotape and allowed it into evidence, determining that it gave an overall perspective of the scene of the crime at the time the crimes were committed, and was helpful to the jury’s understanding of the nature and extent of the injuries as well. Further, the capital murder charges were based on the allegation that Jefferson caused the deaths after premeditation and deliberation, and the videotape showed where the victims were when they were assaulted and the distance Jefferson covered when stabbing his victims. While Jefferson agreed to a jury view and never objected to the introduction of photographs, he cannot by such admissions prevent the State from putting on its proof. See Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). In sum, we cannot say that the trial court abused its considerable discretion in weighing the probative value against prejudice before allowing the videotape to be admitted into evidence.

Jefferson’s final point challenges the trial court’s denial of his request to appear before the jury without shackles. During closing arguments in the guilt phase, Jefferson wept loudly and, while attempts were made by security officers and counsel to subdue him, the jury was escorted out of the courtroom. Subsequently, closing arguments resumed, and the jury returned its guilty verdicts. No further disruptions occurred.

On the next day, Jefferson’s sentencing phase commenced and his counsel stated he did not want the jury to see Jefferson walk into the courtroom wearing shackles and handcuffs. He asked the trial judge to remove the jury from the courtroom until Jefferson was seated, but the judge denied his request. Jefferson claims the trial judge’s denial was prejudicial error.

Recently this court stated the settled rule that it is not prejudicial, per se, when the defendant is brought into the courtroom handcuffed. Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996). In Stanley this court recognized the holding in Illinois v. Allen, 397 U.S. 337 (1970), where the Court said that, where it is essential to maintain dignity, order, and decorum in the courtroom, restraints may be used. Moreover, this court in Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985), upheld the use of restraints where the defendant has been charged with violent offenses, engaged in disruptive behavior, or attempted escape.

Here, Jefferson certainly falls within two of the categories mentioned in Hill — Jefferson had previously been convicted of rape, was presently charged with two counts of capital murder and one count of attempted capital murder, plus he had caused disruption during his trial. The shackles added nothing to the trial that was not already apparent from the nature of the case. See Holloway v. Alexander, 957 F.2d 529 (8th Cir. 1992). In these circumstances, we conclude that any general prejudice caused by the presence of the shackles could have been cured by the trial court’s admonishment to the jury to disregard the shackles in its consideration of Jefferson’s case, but Jefferson failed to request such an admonition.

■In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for trial errors prejudicial to Mr. Jefferson, and none has been found.

Because we find no merit in Jefferson’s three points for reversal, we affirm.


author: Donald L. Corbin, Justice.

text:
    Lester Tyrone BROOKS v. STATE of Arkansas
    CR 96-771
    941 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Lester Tyrone Brooks appeals the judgment of the Pulaski County Circuit Court convicting him of second-degree murder and possession of drug paraphernalia and sentencing him as a habitual offender to respective terms of imprisonment for thirty years and five years. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2) (as amended by per curiam July 15, 1996). Appellant’s sole point for reversal is that the trial court erred in excluding as victim-impact evidence the victim’s arrests that were abated by his death. We find no error and affirm.

Appellant was charged with the capital murder of Herman Pitts and with possessing a crack pipe. He pleaded guilty to the drug paraphernalia charge and was tried by a jury on the capital murder charge. At trial, Appellant raised the defense of justification and presented testimony from numerous witnesses that Pitts had a reputation for being violent and for always carrying a gun. These witnesses stated that, among many other vile acts, Pitts held a gun to various person’s heads on different occasions, raped a woman at gunpoint while children were in the next room, and forced his live-in girlfriend, who is Appellant’s cousin, to “turn tricks.” One witness testified that she waited until she was sure Pitts was dead before she called 911; she also stated that the community’s reaction to Pitts’s death was “joy.” After hearing such evidence, the jury found Appellant guilty of second-degree murder.

During the sentencing phase of the trial, for purposes of enhanced sentencing, the State introduced evidence of Appellant’s five prior convictions for theft and drug-related offenses. Appellant was then allowed to introduce evidence of Pitts’s prior felony convictions as well as the testimony of then-eleven-year-old Quincy Morrison, who is Appellant’s cousin and the brother of Pitts’s live-in girlfriend. Morrison stated that his life had improved since Pitts’s death because he did not “have to worry about what [he was] going to go through when [he got] home.”

In addition to the foregoing evidence presented during the sentencing phase, Appellant sought the introduction of seven of Pitts’s arrests that were abated by Pitts’s death. Appellant argued that, under the Equal Protection Clause of the Fourteenth Amendment, a defendant should be allowed to put on evidence that shows the victim was not the same kind of person as a first-time offender or someone with no prior convictions at all. On appeal, he contends the trial court erred in excluding the arrests abated by death because they were relevant to sentencing and because victim-impact evidence should be a “two-way street.” The trial court ruled below that it would grant Appellant some leeway and allow him to introduce Pitts’s prior convictions and Morrison’s testimony, but that Appellant could not present evidence of the arrests abated by Pitts’s death. We cannot say the trial court abused its discretion in so ruling.

We make this conclusion without addressing the novel question of whether the Fourteenth Amendment requires that defendants, as well as states, be allowed to introduce victim-impact evidence because the State did not introduce any victim-impact evidence in this case, and Appellant cannot, therefore, demonstrate prejudice. Victim-impact evidence is admissible during the sentencing phase of bifurcated trials pursuant to Ark. Code Ann. § 16-97-103(4) (Supp. 1995). Before a person can challenge the constitutionality of a statute, he must show that the challenged statute had a prejudicial impact upon him. Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995). In the present case, the State did not introduce victim-impact evidence, and Appellant was allowed to introduce Morrison’s testimony and Pitts’s prior felony convictions. Appellant cannot, therefore, demonstrate a prejudicial impact from the application of section 16-97-103(4). Accordingly, we cannot say the trial court abused its discretion in excluding from the sentencing phase Pitts’s arrests that were abated by his death.

The judgment of conviction is affirmed.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    William Shiloh McCLURE v. STATE of Arkansas
    96-1310
    942 S.W.2d 243
    Supreme Court of Arkansas
    Opinion delivered April 7, 1997

      David H. McCormick, for appellant.

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

Appellant William Shiloh McClure appeals the order of the Pope County Circuit Court denying his motion to transfer the charges against him to juvenile court. We have jurisdiction of this interlocutory appeal. Ark. Sup. Ct. R. l-2(a)(ll) (as amended by per curiam July 15, 1996); Ark. Code Ann. § 9-27-318(h) (Supp. 1995). We cannot say the trial court’s decision to retain jurisdiction of the case was clearly erroneous, and therefore we affirm.

Pursuant to the prosecutor’s discretion in section 9-27-318(b)(1), Appellant was charged in circuit court with one count of delivery of a controlled substance, marijuana, a Class C felony, and two counts of delivery of a non-controlled substance represented to be a controlled substance, methamphetamine, Class B felonies. The information alleged that Appellant was born August 15, 1978, and that the crimes occurred on June 27, 1995, April 18, 1995, and May 12, 1995, respectively. According to the information, he was aged sixteen years when the crimes were committed.

Appellant moved to transfer the charges to juvenile court. After a hearing on the motion, the circuit court considered the three factors in section 9-27-318(e) and decided to retain jurisdiction of Appellant’s case. Appellant was aged seventeen years when the hearing was held on his transfer motion. Appellant asserts five points of error in the transfer hearing. We find no merit to his assertions of error and affirm the circuit court’s decision to retain jurisdiction.

I. Procedure Order of Proof

Appellant’s first point of error is the manner in which the circuit court conducted the transfer hearing. At the hearing, the State presented two witnesses: James Krohn, Appellant’s probation officer, and Aaron Duvall, a criminal investigator for the Pope County Sheriffs office. Appellant then moved for a directed verdict on the basis that the State had not met its burden of proof. Appellant then presented testimonies from three witnesses: himself, his mother, and Kenneth Canitz, the youth director at the Baptist church where Appellant sometimes attended. On appeal, Appellant claims this procedure was error because, as the moving party, it was his burden to prove the transfer was warranted. He contends he was prejudiced by the presentation of the State’s case prior to his because that placed him in the position of having to rebut the State’s evidence.

Generally, it is the moving party that carries the burden of proof. Specifically with respect to juvenile-transfer motions, a defendant seeking a transfer from circuit court to juvenile court has the burden of proving that a transfer is warranted under section 9-27-318(e). Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). While it is clear that the circuit court did not follow the usual procedure of allowing the party with the burden of proof to present its evidence first, it is equally clear that Appellant did not object in any form or fashion to the unusual procedure of the hearing at issue. In fact, not only did Appellant participate in the hearing without objection, but he even moved for a directed verdict at the close of the State’s case and then proceeded with evidence in his behalf.

It is well settled that we do not consider arguments on appeal that were not raised in the trial court. This is sometimes called the contemporaneous-objection rule, and this court has applied it in juvenile-transfer hearings. See, e.g., Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996).

II. Decision to Retain Jurisdiction

Appellant contends the trial court’s decision to retain jurisdiction of his case was clearly erroneous. We cannot agree.

A circuit court’s decision to retain jurisdiction of criminal charges against a juvenile must be supported by clear and convincing evidence. Section 9-27-318(f); Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995). When reviewing the denial of a motion to transfer to juvenile court, we view the evidence in the fight most favorable to the State. Kindle v. State, 326 Ark. 282, 931 S.W.2d 117 (1996). We do not reverse a circuit court’s decision to retain jurisdiction unless the decision is clearly erroneous. Id.

When deciding whether to retain jurisdiction of or to transfer a case to juvenile court, the factors for the circuit court to consider are the seriousness of the offense and whether the juvenile used violence in committing the offense; whether the offense is part of a repetitive pattern of adjudicated offenses leading to the conclusion that the juvenile is beyond rehabilitation in the juvenile system; and the juvenile’s prior history, character traits, mental maturity, or any other factor reflecting upon the juvenile’s prospects for rehabilitation. Section 9-27-318(e). A circuit court does not have to give equal weight to each factor, nor does evidence have to be presented as to each factor. Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).

This court has often said that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and for trying a juvenile as an adult. Id. at 141, 913 S.W.2d at 781 (quoting Sims v. State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995)). However, that a crime is serious without the use of violence is not a factor sufficient in and of itself for a circuit court to retain jurisdiction. Sebastian v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994).

Appellant relies heavily on Sebastian. Our statement in that case that the commission of a serious crime without the use of violence is not sufficient standing alone to retain jurisdiction does not mean that the commission of a serious crime without the use of violence is not a factor to be considered. Quite to the contrary, it may be considered; and when combined with evidence of either of the other two factors, it may, depending upon the particular evidence presented, constitute clear and convincing evidence to support a decision to retain jurisdiction.

It is not disputed that Appellant did not employ violence in the commission of these three offenses. However, these three offenses are serious — delivery of a controlled substance and non-controlled substances represented to be controlled substances, Class B and C felonies. There was some evidence that the deliveries at issue here occurred on school property. There can be no doubt about the seriousness of the increasing drug problem in our state. Those who deliver controlled substances contribute significantly to that problem. In addition, the charge of misrepresenting a non-controlled substance for a controlled substance is indicative of a poor character for dishonesty.

Evidence presented at the transfer hearing revealed the following concerning section 9-27-318 (e)(2). On January 7, 1994, Appellant was ordered to receive treatment at the Youth Bridge facility. On July 22, 1994, Appellant pleaded true to the charges of commercial burglary and theft. Appellant had been on probation and had completed the terms of his probation. Thus, Appellant had at least one prior adjudication and at least one attempt at rehabilitation under the juvenile system. One prior adjudication and attempt at rehabilitation does not a repetitive pattern make. Thus, we agree with the trial court that the evidence under this factor is neutral.

As for section 9-27-318 (e)(3), the following evidence, as viewed most favorably to the State, was presented. Appellant had been suspended from school for fighting. He worked full-time and was interested in obtaining a GED, but had not done so because he was being given the “run-around.” He was interested in attending college in Missouri, but did not know the name of the college. Appellant had once participated in the youth group at the First Baptist Church in Dardanelle, but had not done so in almost two years. Appellant had violated his curfew on the night of the unrelated murder of Kenneth Lloyd. In addition, he furnished ammunition to Kevin Lloyd, who had previously stated he wanted to kill his father Kenneth Lloyd, and then transported Kevin Lloyd shortly after hearing gunshots. All of this evidence indicates that Appellant’s character traits are poor and his mental maturity is low.

Appellant is age eighteen or over and has not yet been sent to a juvenile justice facility for the crimes alleged in this case. We stated in Maddox, 326 Ark. 515, 931 S.W.2d 438, that young people over age eighteen can no longer be committed to the Division of Youth Services (DYS) for rehabilitation unless they are already committed at the time they turn eighteen. Ark. Code Ann. § 9-28-208(d) (Supp. 1995). The fact that Appellant cannot be committed to the DYS is highly relevant to his prospects for rehabilitation and is important to our review. Maddox, 326 Ark. 515, 931 S.W.2d 438.

Given the aforementioned facts, this case is distinguishable from Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992), where we reversed a circuit court’s decision to retain jurisdiction of a juvenile who was charged with possession of a controlled substance with intent to deliver, had no prior adjudications, and attended school regularly and made passing grades. Here, we have the commission of a serious offense, a prior adjudication for two offenses that would have been felonies if committed by an adult, previous treatment under the juvenile justice system followed by violation of probation conditions, the failure to attend school or obtain a GED, and an impossibility of future rehabilitation with DYS due to age. The present case is thus even a stronger case for a circuit court’s retention of jurisdiction than was Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992), where this court affirmed the denial of a transfer to juvenile court where the juvenile had no prior adjudications and was alleged to have committed three controlled-substance violations, one occurring on school grounds. Accordingly, we cannot say the trial court was clearly erroneous in denying the motion to transfer Appellant’s case to juvenile court.

III. Prior Adjudications

As his third point of error, Appellant contends the trial court erred in admitting two documents into evidence. State’s Exhibit 1 is a judgment and disposition order dated July 22, 1994, wherein Appellant pleaded true to the charges of commercial burglary and theft of property, Class C and B felonies respectively. State’s Exhibit 2 is an order dated January 7, 1994, committing Appellant to the Youth Bridge facility in Fayetteville, Arkansas. Both documents were signed by Appellant’s counsel; the same counsel he has in the present case.

Appellant objected to the admission of the two documents on the bases that they were not properly authenticated and were not properly certified in compliance with A.R.E. Rule 902. The trial court ruled that since Appellant’s counsel had signed the two documents, he would not be surprised by their admission into evidence. Appellant does not challenge the accuracy of the contents of these documents or contend that these documents were originally entered against someone other than himself. Rather, he claims prejudice from the admission of these two documents by arguing that the trial judge would not have been able to determine that Appellant had violated the terms of his probation if they had not been admitted into evidence.

This claim of prejudice is simply without merit. Appellant testified that he was on probation and that he had violated his curfew on isolated occasions. He also testified that he had not completed his community service, although he stated he had not been asked to do so. His mother also testified that Appellant had not completed his community service. Given this evidence that Appellant violated the terms of his probation, Appellant’s claim of prejudice from admission of these two documents is without merit. We cannot say the trial court abused its discretion in admitting the two documents.

Given our resolution of this issue, we need not address the State’s argument that the rules of evidence do not apply in juvenile-transfer hearings.

IV. Statement

For his fourth point of error, Appellant contends the trial court erred in allowing Investigator Duvall to testify about a statement he took from Appellant concerning the unrelated murder of Kenneth Lloyd. He claims that the taking of the statement violated Ark. Code Ann. § 9-27-317 (Supp. 1995) because he did not have a parent or guardian present. The State responds that section 9-27-317 does not require that a parent or guardian be present before a juvenile can validly waive his rights and answer questions from a law enforcement officer. In his reply brief, Appellant concedes that the State’s argument is correct and withdraws this point from our consideration.

V. Appellant’s Complicity in an Unrelated Murder

As his final point of error, Appellant contends the trial court erred in going beyond the testimony of record and considering evidence it had heard in the unrelated case against Kevin Lloyd for the murder of his father Kenneth Lloyd. It is true that the trial judge considered evidence from the Lloyd murder case that Appellant had made available to Kevin Lloyd a coat that contained ammunition. However, it is riot true that this evidence was beyond the evidence of record in this case. Moreover, Appellant did not raise this argument to the trial court, although he most certainly could have.

Investigator Duvall testified to the following at the transfer hearing. Appellant told him that he talked to Kevin Lloyd on the night of Kenneth Lloyd’s murder and that Kevin asked Appellant if he would bring him the jacket. Appellant thought he was taking the jacket to Kevin because it had some shotgun shells in it. Kevin had previously told Appellant that he wanted to use the shells to kill his father, although Appellant did not believe Kevin. Appellant took the jacket to Kevin’s house and heard gunshots while waiting outside in a car. After a few minutes, Kevin came out of the house and got into the car with Appellant. Appellant refused to allow Kevin to go home with him, but took Kevin to another person’s house. Kenneth Lloyd died from being shot with a shotgun. Kevin Lloyd was convicted of capital murder. Given this testimony, we cannot say that the trial court went outside the record when considering Appellant’s actions in making the shotgun shells available to Kevin.

The trial judge stated from the bench that he was considering Appellant’s actions in the Kenneth Lloyd murder and that Appellant could possibly be considered an accomplice. Even if the trial court improperly relied on its memory of Kevin Lloyd’s trial, Investigator Duvall’s testimony was entirely consistent with the court’s recollection. Testimony of subsequent criminal acts is indicative of a juvenile’s prospects for rehabilitation under section 9-27-318(e)(3). Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996). Accordingly, we cannot say the trial court erred.

For the aforementioned reasons, we affirm the circuit court’s decision to retain jurisdiction.

Brown and Imber, JJ., concur.

Robert L. Brown, Justice,

concurring. I concur in the result but write separately to emphasize my belief that juvenile-transfer hearings should be conducted subject to the Arkansas Rules of Evidence. On previous occasions, this court has decided various assignments of error related to the admission of evidence in juvenile-transfer hearings. See, e.g., Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994)(involving hearsay and judicial notice objections); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), reh’g denied, 303 Ark. 402-A, 805 S.W.2d 80 (1991)(holding that a criminal information is only evidence that the defendant was charged with a violent crime).

This approach is not only sound but is supported by the evidentiary rules adopted by this court. Under Ark. R. Evid. 1101, the rules of evidence are to be applied in all actions and proceedings in the courts of this state, except as otherwise provided therein. Rule 1101 reads in pertinent part:

(b) Rules Inapplicable. The rules other than those with respect to privileges do not apply in the following situations:
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; [preliminary examination] detention hearing in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

Ark. R. Evid. 1101. Based on the plain language of this provision, the Arkansas Rules of Evidence contemplate an exception only for preliminary hearings on whether to detain in criminal cases. These hearings do not encompass juvenile-transfer hearings. Thus, juvenile-transfer hearings are not excepted from the application of the Arkansas Rules of Evidence.

Other jurisdictions have also determined that juvenile-transfer hearings must comport with the rules of evidence. See, e.g., A.D. v. State, 668 P.2d 840 (Alaska App. 1983); In re Jose M., 620 A.2d 804 (Conn. App. 1993); State v. Milk, 519 N.W.2d 313 (S.D. 1994). Of particular significance is the decision of the Supreme Court of South Dakota in State v. Milk, supra, where the court determined that it was bound by the dictates of S.D. Codified Laws Ann. § 19-9-14 (1987), a provision analogous to Ark. R. Evid. 1101. The South Dakota Supreme Court said:

Juvenile transfer hearings are clearly not included among the listed exceptions to the application of South Dakota Rules of Evidence. Hearings held for the purpose of determining whether a juvenile matter should be transferred to adult court are “proceedings” held in the circuit courts of this state; thus, the rules of evidence are apphcable.

State v. Milk, 519 N.W.2d at 315 (internal citation omitted) (emphasis in original).

As is the case under the laws of South Dakota, the Arkansas Rules of Evidence do not except juvenile-transfer hearings from the applicability of evidentiary rules. For this reason, I conclude that juvenile-transfer hearings must be conducted in accordance with the Arkansas Rules of Evidence.

Imber, J., joins in this concurrence.

       The Connecticut General Assembly has since eliminated juvenile-transfer, or waiver, hearings by requiring an automatic transfer from juvenile court to the regular criminal docket for juveniles of certain ages when charged with serious offenses. See 1995 Conn. Pub. Acts 225, now codified at Conn. Gen. Stat. 46b-127 (1997).