author: ROBERT L. Brown, Justice.

text:
    Richard HILL, Jr. v. STATE of Arkansas
    CR 00-921
    40 S.W.3d 751
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001
    [Petition for rehearing denied April 26, 2001.]

      Arkansas Public Defender Commission, by: Llewellyn J. Marczuk and Cheryl Upshaw, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

       Glaze, J., concurs. See published concurring opinion at 344 Ark. 231-A, 40 S.W.3d 751 (2001). CORBIN, J., not participating.

   ROBERT L. Brown, Justice.

This appeal by appellant Richard Hill, Jr., is from a judgment of conviction for capital felony murder and attempted aggravated robbery. Hill was sentenced to life imprisonment without the possibility of parole and six years, respectively. He appeals on multiple grounds which include: (1) error by the circuit judge in refusing to give an instruction on felony manslaughter; (2) error by the circuit judge in declining to dismiss the capital felony murder charge because it was too vague; (3) error by the circuit judge in permitting the hearsay testimony of Bobbie Gates as an excited utterance; (4) error by the circuit judge in refusing to suppress his statement given to police officers; and (5) error by the circuit judge when she revealed to the jury that the death penalty had been waived. We conclude that the points raised are without merit, and we affirm.

On September 30, 1997, Hill, who was age sixteen at the time, together with John Powell, Dashone Simms, and Brad Scott formulated a plan to rob the White Oak Package Store in Ouachita County. The four youths had in their possession a .16 gauge shotgun which had been reported stolen by E. W. Moorehead that same day. When they arrived at the package store at about 9:45 p.m., Kenneth Oglesby and Bobbie Gates, who were the two clerks in the store, were in the process of closing. According to Gates, Hill walked up to the store a couple of times and at one point turned around and said: “Are you all coming?” Gates did not recognize Hill as a customer she had ever seen before. She described him as wearing a dark-colored sweatshirt with a hood that he had pulled down over his head. When Hill heard a dog barking inside the store, he retreated.

Gates and Oglesby locked the store. Gates was walking to her mobile home which was adjacent to the store when she saw the same youth with the hooded sweatshirt. Oglesby walked to his red Dodge pickup and got in. According to the statements given to police by Brad Scott and Dashone Simms, Hill said he wanted the shotgun, and they gave it to him. According to Scott and Simms statements to police, Hill believed that Oglesby had money which he needed to return to Minnesota. Hill ran toward the truck with the shotgun, and Gates heard the tires of the truck “screech” as Oglesby accelerated. Hill fired the shotgun, and the pellet load broke the driver’s window, pierced the car seat cloth, and struck Oglesby in the back. He ran his truck off the road and into a ditch. According to the Associate Medical Examiner, Dr. Charles Paul Kokes, Oglesby died because of internal bleeding and a collapsed left lung. Hill maintained that his finger accidentally hit the trigger, and he did not know the shotgun was “already cocked back.” After firing the shot, Hill dropped the shotgun and was picked up by his friends in a getaway car. Nothing was taken from the package store.

The four youths were apprehended at various locations by law enforcement officers during the early morning hours of October 1, 1997. They were taken to the Ouachita County Sheriffs office in Camden. All four waived their Miranda rights and gave statements to the investigators. Hill was the last accused to give a statement, and that took place at approximately 7:55 a.m. The statement was given to Investigator Glenn C. Sligh and Investigator Jerry. Digman of the Sheriff s Office. In the statement, Hill admitted that he shot Oglesby, albeit by accident, and that he was wearing a hooded sweatshirt. He told the police officers that he had had no drugs or alcohol that night.

Hill was charged with attempted aggravated robbery and capital felony murder. On March 23, 1998, he filed an amended motion to suppress the statement on grounds that it was involuntarily given and that he had not knowingly and intelligently waived his Miranda rights. A hearing was held, and the motion was denied.

On January 10, 2000, a three-day trial began. At the beginning of the trial, the circuit judge, over defense counsel’s objection, permitted the prosecuting attorney to advise the jury that the punishment for capital felony murder was life without parole. At the end of the trial, the jury was instructed on capital felony murder and first-degree felony murder. Hill sought an additional instruction for felony manslaughter based on his claim of accidental murder. The instruction was not given. Hill was convicted, as already stated in this opinion, and sentenced accordingly.

I. Felony Manslaughter Instruction

Hill first claims that felony manslaughter is a lesser included offense of capital felony murder and that the circuit judge erred in not giving the instruction when there was a rational basis for doing so. He urges that the law is that an instruction on a lesser included offense should be given, if it is supported by the slightest evidence and cites us to Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). He further argues that failure to give an instruction, when warranted, is reversible error. See Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992).

Hill’s evidentiary justification for the instruction is his own statement, where he said the shooting was inadvertent and the fact that his associates in the attempted robbery also told the police officers that Hill had told them it was an accident. This easily qualified as sufficient proof for the instruction, according to Hill, and the question of whether the murder, indeed, was an accident was for the jury to decide.

We begin our analysis by looking at the instructions given for capital felony murder and first-degree felony murder and compare those instructions to the proffered instruction for felony manslaughter. The capital felony murder instruction and the first-degree felony murder instruction given at trial, which are based on our criminal statutes, read as follows:

Richard Hill is charged with capital murder. To sustain this charge, the State must prove the following things beyond a reasonable doubt:
First: That Richard Hill acting alone or with one or more other persons attempted to commit the crime of robbery; and
Second: That Richard Hill in the course of and in furtherance of that attempt, Richard Hill caused the death of Kenneth Ray Oglesby under circumstances manifesting an extreme indifference to the value of human life.
If you have reasonable doubt of Richard Hill’s guilt on the charge of capital murder you will then consider the charge of murder in the first degree.
To sustain this charge, the State must prove the following things beyond a reasonable doubt:
That Richard Hill, acting alone or with one or more persons, committed attempted robbery; and
Second: That in the course and in furtherance of that attempt, Richard Hill caused the death of Kenneth Ray Oglesby under circumstances manifesting extreme indifference to the value of human life.

See Ark. Code Ann. §§ 5-10-101(a)(l) and 5-10-102(a)(l) (Repl. 1997).

Hill proffered the foEowing instruction on felony manslaughter, which is also based on our criminal statutes:

To sustain this charge the State must prove beyond a reasonable doubt that:
Acting alone or with one or more persons Richard HiE, Jr. attempted to commit robbery, and in the course of and in furtherance of that crime:
He negligently caused the death of Kenneth Oglesby.
(The term “negligently” as used in this criminal case means more than it does in civE cases. To prove negEgence in a criminal case the State must show that Richard HiE, Jr. should have been aware of a substantial and unjustifiable risk that the death would occur. The risk must have been of such a nature and degree that Richard HiE, Jr.’s failure to perceive 'it, considering the nature and purpose of his conduct and the circumstances known to him, involved a gross deviation from the standard of care that a reasonable person would have observed in his situation.)

See Ark. Code Ann. §§ 5-2-202(4) and 5-10-104(a)(4)(A) (Repl. 1997). See also AMCI2d 1004(d).

Our Criminal Code declares what constitutes a lesser included offense:

(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

Ark. Code Ann. § 5-1-110(b) (Repl. 1997). In addition, our caselaw has set out these same three basic requirements as essential to a determination of lesser-included-offense status. See, e.g., Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989).

In the case before us, we are dealing with capital felony-murder where the murder is perpetrated “in the course of and in furtherance of ” attempted aggravated robbery. The culpable intent or mens rea relates to the crime of the underlying felony — attempted aggravated robbery — and not to the murder itself. State v. Jones, 336 Ark. 191, 984 S.W.2d 432 (1999). The same holds true for first-degree felony murder, which qualifies as a lesser included offense of capital felony murder.

Hill’s proffered instruction on felony manslaughter adds a new element to felony murder that relates to the perpetration of the murder itself. That additional element is negligence, which is defined as the failure to perceive a gross deviation from the standard of care, using the reasonable man standard. On its face, the proffered instruction adds a different concept to the felony-murder mix and, thus, fails to qualify as a lesser included offense under § 5-1-110(b)(1). Nor does it represent an attempted offense under § 5-1-110(b)(2). And, finally, we cannot say that felony manslaughter qualifies under § 5-1-110(b) (3). Felony manslaughter does not represent a less serious injury to the victim, since death resulted. Nor does it represent a lesser kind of-culpable mental state, since the culpable mental state to perpetrate robbery is the same for capital felony murder and felony manslaughter. In sum, we hold that felony manslaughter is not a lesser included offense of capital felony murder or first-degree felony murder.

Our statutes - and cases are clear that the standard of whether there is a rational basis or the slightest evidence for giving an instruction are tied to situations where the proposed instruction is a lesser included offense. See, e.g., Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001); Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Kail v. State, supra; Byrd v. State, supra; Brown v. State, supra; Rainey v. State, supra. In Rainey, we quoted the pertinent law as follows:

When there is a rational basis for a verdict acquitting a defendant of the offense charged and convicting him of an offense included in the offense charged, an instruction on the lesser included offense should be given, and it is reversible error to fail to give such an instruction when warranted. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991); Ark. Code Ann. § 5-1-110(c) (1987). When there is the slightest evidence to warrant an instruction on a lesser included offense, it is error to refuse to give it. See, e.g., Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980) (emphasis added).

310 Ark. at 422, 837 S.W.2d at 455. In short, because we have already concluded that felony manslaughter is not a lesser included offense of capital felony murder, it is unnecessary to decide whether Hill’s proof meets either the rational-basis standard under § 5-1-110(c) or the slightest-evidence standard under our cases. There was no abuse of discretion in the circuit judge’s failure to give the felony manslaughter instruction.

II. Vagueness of Capital Murder Charge

Hill next asserts that the capital felony murder charge should have been quashed by the circuit judge because it was unconstitutionally vague. The gravamen of this argument is that the jury instructions on capital felony murder and first-degree felony murder, which are based on the criminal statutes, are identical. Under both instructions, as already set out in this opinion, the elements of the respective crimes are:

(1) attempted robbery, and
(2) in the course and furtherance of that attempt, Hill caused the death of Kenneth Oglesby under circumstances manifesting an extreme indifference to the value of human life.

See Ark. Code Ann. § 5-10-101 (a)(1) (Repl. 1997) (capital felony murder); Ark. Code Ann. § 5-10-102(a)(l) (Repl. 1997) (first-degree felony murder). Before instructing the jury on first-degree felony murder, the instruction read: “If you have reasonable doubt of Richard Hill’s guilt on the charge of capital murder you will then consider the charge of murder in the first degree[.]”

The State maintains that this issue has been largely decided by this court in previous cases. We agree. Hill is raising an overlap argument between capital felony murder and first-degree felony murder that has been rejected by this court on numerous occasions. See, e.g, Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), cert. denied 502 U.S. 829 (1991); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). In Coulter, we acknowledged that this court has consistently rejected the overlap argument.

Specifically, in Cromwell this court considered a void-for-vagueness argument mounted against the two felony-murder statutes and the circuit judge’s instructions to the jury. We stated that underlying the vagueness argument in Cromwell was the argument that the sameness of the two statutes enabled the prosecutor to arbitrarily decide to charge the defendant with either capital felony murder or first-degree felony murder without any guidance or standard from the General Assembly. In holding against the defendant/ appellant on the arbitrariness point, we said:

Moreover, the prosecutor or grand jury is often compelled to choose one or two or more offenses, no matter how precise the statutes may be. For example, the conflicting testimony of eyewitnesses may, depending on their variying (sic) credibility, establish capital murder if the accused committed robbery but only murder in the first degree if he committed a lesser felony such as theft of property, battery, or aggravated assault. §§ 41-2103, -2203, -1601, and -1604. There can be no constitutional objection to the exercise of a reasonable discretion in that situation.

Cromwell, 269 Ark. at 107, 598 S.W.2d at 734.

Hill’s argument in the instant case is somewhat convoluted. He urges that the capital felony murder charge should have been dismissed by the circuit judge because of the manner in which it was presented to the jury in conjunction with the first-degree felony murder instruction. He first made the argument to the circuit judge in the form of a motion that was denied. He then renewed it as part of his motion for a directed verdict, and it was again denied. At its essence, Hill appears to be arguing vagueness, the lack of a differentiating standard proposed by the General Assembly, and the risk of an arbitrary charge by the prosecutor or jury verdict. All of these arguments were disposed of in Cromwell and its progeny.

Furthermore, Hill was convicted of capital felony murder, even though the jury was instructed on both capital felony murder and first-degree felony murder. The jury clearly was convinced that Hill was guilty of the higher charge. There is, too, the point that different grades of punishment between the capital offense and the first-degree offense give the jury the option of assessing a lesser penalty. See Jones v. State, 328 Ark. 307, 942 S.W.2d 851 (1997); Cromwell v. State, supra. Even with bifurcated trials for the guilt phase and penalty phase, the instruction in the guilt phase indicates a difference in degree between capital murder and first-degree murder.

There was no error in the circuit judge’s refusal to dismiss the capital felony murder charge.

III. Excited Utterance

Hill next contends that the circuit judge erred in admitting the hearsay statement of Bobbie Gates as an excited utterance. This, he claims, prevented him from confronting and cross-examining Gates, who was deceased at the time of trial. Hill’s hearsay objection was made during the testimony of Investigator Sligh at the point when he began describing what Gates told him thirty minutes after the murder. At that time, Investigator Sligh described her as “visibly shaken and upset”and looking as if “she had just been through an ordeal.”

Our Rules of Evidence prevent the admissibility of hearsay evidence. Ark. R. Evid. 802. One exception to the rule, however, is a statement relating to “a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.” Ark. R. Evid. 803(2). Investigator Sligh’s description of Gates, within thirty minutes of the murder is a description of a person under stress or excitement. This, of course, is readily understandable as she had just witnessed the murder of her co-worker.

The delay of thirty minutes in interviewing Gates does not automatically render the excited-utterance exception inoperable. See Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996). We consider Ms. Gates’s condition, as described by Investigator Sligh, as one that would give vent to a spontaneous or impulsive statement. Id. We also do not believe that the second statement taken by Investigator Sligh from Gates nine days later negates the excited utterance. Investigator Sligh testified that the information obtained from Gates on both occasions was essentially the same. The diagram of the crime scene with the position of Kenneth Oglesby’s truck was no more than a demonstrative exhibit of what the investigator had learned from Gates, from his investigation of the area, and from other witnesses.

There was no abuse of discretion by the circuit judge in allowing the excited utterances of Gates into evidence.

IV Suppression

For his next point, Hill claims that his statement given to police officers on the morning of October 1, 1997, was involuntary and that his waiver of his Miranda rights was not knowingly and intelligently made. Thus, he claims that the circuit judge erred in denying his motion to suppress. He premises his arguments on these allegations:

• He had just turned sixteen at the time of the murder and had no family in Arkansas.
• He had no prior experience with the criminal justice system.
• He had been drinking gin and smoking marijuana the night of the killing.
• His I.Q. was 89, and he had the listening comprehension of a fourth grader and the reading comprehension of a fifth grader.
• He was frightened by Sergeant Easter when he slammed his fist against a file cabinet and called him a liar.
• At one point five police officers were in the interrogation room and he was intimidated.
• Police officers used the ploy of “good cop-bad cop” with Sergeant Easter and Investigator Sligh performing the respective roles.

The State responds by emphasizing the testimony of Investigator Sligh and Investigator Digman that Hill waived his Miranda rights in writing after their full explanation of what those rights were. The State adds that Dr. William Peel, a forensic psychiatrist, testified at Hill’s juvenile-transfer hearing that he was “of low average intelligence” but understood the nature of the charges against him and the essential components of the criminal justice system. The State also emphasizes that Investigator Sligh and Investigator Digman disputed that Hill was under the influence of drugs or alcohol, and credibility of the witnesses is a matter for the circuit judge to weigh. Finally, the State underscores that Hill’s statement shows no indication that he was impaired or under duress, or that his will had been overborne.

We recently set out the standards for examining the legitimacy of custodial statements:

We review a trial court’s ruling on a motion to suppress by making an “independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State.” Wright v. State, 335 Ark. 395, 403-04, 983 S.W.2d 397, 401 (1998) (citing Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998)). The ruling will only be reversed if it is clearly against the preponderance of the evidence. See id. An accused’s statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that the custodial statement was given voluntarily and was knowingly and intelligendy made. See Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998) (citing Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). We make an independent review of the totality of the circumstances surrounding the confession to determine whether the appellant knowingly, voluntarily, and intelligently waived his constitutional rights. See id. (citing Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997)).

Barcenas v. State, 343 Ark. 181, 184, 33 S.W.3d 136, 138-139 (2000). Where coercion is alleged, we have established the test that to be considered voluntary, the statement must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Sanford v. State, 331 Ark. 334, 345, 962 S.W.2d 335, 341 (1998). The proper question is whether the will of the accused has been overborne. United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987). Coercive police activity is a necessary component of an involuntary statement, and there must be an essential link between the coercive behavior of the police and the resulting confession of the accused for suppression to take place. Landrum v. State, 326 Ark. 994, 936 S.W.2d 505 (1996).

We conclude on this point that the circuit judge’s order denying suppression was thorough and well reasoned:

The interview of Richard Hill was the last one conducted by investigators Glenn Sligh and Jerry Digman of the Arkansas State Police. Both officers testified his Miranda warnings were read to him and explained to him. Hill never indicated he did not understand his rights as explained to him. He initialed each separate right and signed the waiver, of rights form. Further, the defendant denied any use of either alcohol or drugs on the previous night.
The Court is of the opinion the defendant was adequately advised of his rights and that he understood them. The Court further finds he was given the opportunity to ask questions and did not do so. Both the school records and the testimony of Dr. Wetherby indicate Richard Hill would ask questions when he was confused or did not understand the material. The Court simply does not believe the defendant did not comprehend what he was doing when he voluntarily waived his rights.
The Court would further note that while Dr. Wetherby places the defendant’s reading comprehension at a fifth grade level and his listening comprehension at a fourth grade level, his standardized test scores assess him as average in almost every category. There simply is ample evidence to determine he was capable of understanding his rights and of making a voluntary decision to waive those rights.
In addition, the Court does not find he was forced to make a statement due to intimidation or coercion. While the conduct of Detective Easter in slamming his hand on a file cabinet was out of line, it did not act as coercive or rise to the level of intimidation. Easter was immediately asked to leave by Inv. Sligh and did so. He was not in the room when the defendant gave his taped statement. In addition, there was nothing overly oppressive about the number of officers in the room or the placement of the officers.
The defendant denied any drug or alcohol use on the night of September 30 or early morning hours of October 1, 1997. Both Inv. Sligh and Digman testified they neither observed any evidence of impairment or smelled any evidence of drug or alcohol use. The court does not believe the defendant failed to understand his constitutional rights due to the use of any substances.

We cannot say that the judge was clearly erroneous in her findings. Furthermore, this court has previously held that defendants, age sixteen or fifteen, are capable of waiving their Miranda rights. See, e.g., Sanford v. State, supra; Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995); Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). The suppression point is without merit.

V. Death-Penalty Waiver

As a final point, Hill argues that it was reversible error for the circuit judge to permit the jury to learn that the State had waived the death penalty for this capital felony murder. Hill urges that this lessened the jury’s sense of responsibility and assuaged certain jurors’ doubts about the death penalty. He further maintains that this suggested that the State had already granted Hill mercy and, thus, the State was currying favor with the jury. He adds that the jury was told of the State’s waiver before there was even a finding of guilt.

We are not persuaded that the case adduced by Hill, Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999), supports his argument. The Leaks case involved an allusion by the prosecutor in his closing argument to a higher degree of murder (capital murder) for which the defendant had not been charged but, according to the prosecutor, could have been found guilty. The prosecutor in Leaks added that the defendant had already received a “break” from the State because he was not charged with capital murder. We said in Leaks that the argument by the prosecutor was improper, and we reversed the judgment of conviction and remanded the case.

The Leaks facts are not comparable to what is before us in the instant case. We hold that there was no abuse of discretion by the circuit judge in allowing the reference to the death-penalty waiver to be made by the prosecutor.

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

Affirmed.

       We note that the disjunctive “or” is used in § 5 — 1—110(b) and the conjunctive “and” is used in our caselaw. That distinction has not been raised in this appeal, and we will not address it.


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice.

license: Public Domain

text:
    Crystal LUEBBERS v. MONEY STORE, INC., Robert Kinder and Barbara Kinder, and the Connecticut Surety Company
    00-858
    40 S.W.3d 745
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      The Nixon Law Firm, by; David G. Nixon, Michael Shahan, and Paige E. Young, for appellant.

      Rose Law Firm, by: John T. Hardin; and J. Trail Rogers, for appellees.

      Morgan & Turner, by: Todd Turner; and Friday, Eldredge & Clark, by: R. Christopher Lawson, for amici curiae Betty Dickerson, Angela Dooley, Wanda Williams, Sharon McGhee, Denise New, Kathy Martin, Roger Splettstoesser, and Stephanie Thomas.

      Wright, Lindsey & Jennings LLP, by: David M. Powell and Claire Shows Hancock; and Bowman and Brooke LLP, by: Robert M. Buell and Charles K. Seyforth, Of Counsel, for amicus curiae Advance America, Cash Advance Centers of Arkansas, Inc.
   ANNABELLE Clinton Imber, Justice.

Crystal Luebbers appeals from a summary-judgment order in favor of Appellees Money Store, Inc., Robert Kinder and Barbara Kinder, and The Connecticut Surety Company. In her appeal, she asserts that the circuit court erroneously upheld the constitutionality of section 4(b) of Act 1216 of 1999, the “Check-Casher’s Act” (“the Act”), codified at Ark. Code Ann. § 23-52-104(b) (Repl. 2000). We agree with appellant’s contention and hold that section 23-52-104(b) is an invalid attempt to evade the usury provisions of the Arkansas Constitution and, further, that such an attempt violates the constitutional mandate requiring separation of powers set forth in Article 4 of the Arkansas Constitution. We reverse and remand.

It is undisputed that Appellant Crystal Luebbers was a customer of the Lowell branch of Appellee Money Store, Inc. (“the Money Store”), and that she entered into more than one agreement entitled “Arkansas Deferred Presentment Agreement” with the Money Store. For example, the agreement signed by Ms. Luebbers on September 3, 1999, shows that she wrote the Money Store a check for $400, and the Money Store paid her $350 cash in return. The $50 difference consisted of a $40 “check cashing fee” and a $10 “deferred presentment fee.” In consideration for the deferred presentment fee, the Money Store expressly agreed to “hold your check and not present it to your bank for payment before 9/17.” Additionally, the agreement stated that Ms. Luebbers had the right between September 3 and September 17 to repurchase her check from the Money Store by paying the face amount of the check ($400). In the event that she did so, the Money Store agreed to “deliver your check to you but you will not be entided to a refund of any fees you already paid us.” Finally, the agreement disclosed that the $50 in fees constituted an “annual percentage rate” of 372.4%.

It is further undisputed that each aspect of the agreement is in compliance with the Act. Section 23-52-104(c) of the Act authorizes check cashers to charge a fee of 10% of the face amount of a personal check “[f]or the service of selling currency ... in exchange for checks.” Here, that fee actualized as the $40 “check cashing fee.” Likewise, section 23-52-104(c) authorizes the $10 fee for a deferred presentment option. Moreover, with regard to all fees and deferred presentment check-cashing transactions authorized by the Act, section 23-52-104(b) specifically provides that:

The fee, when made and colle cted, shall not be deemed interest for any purpose of law, and a check-cashing transaction, including one (1) with a deferred presentment option, shall not be and shall not be deemed to be a loan, loan contract, or a contract for the payment of interest notwithstanding any disclosures required by this chapter.

In her original class-action complaint against the Money Store and its owners and operators, Ms. Luebbers alleged that her agreement with the Money Store, as well as similar agreements between the Money Store and all of its other customers, violate the usury provisions of Article 9, section 13, of the Arkansas Constitution. She further asked the circuit court to declare that section 23-52-104 of the Act violates Article 19, section 13, of the Arkansas Constitution. The defendants filed a motion to dismiss in which they asserted that they were in compliance with the Act in all respects and that the legislature, by its enactment of section 23-52-104(b) of the Act, “intended to exempt, and did exempt, check-cashing businesses from the laws pertaining to usurious interest rates.” The circuit court held a hearing on April 6, 2000, and considered the pleadings and attached affidavits and exhibits, thereby converting the motion to dismiss into a motion for summary judgment. Crockett v. Essex Home, Inc., 341 Ark. 558, 19 S.W.3d 585 (2000). On May 2, 2000, the court entered its order granting summary judgment in favor of the appellees and dismissing Ms. Luebbers’s complaint and amended and restated complaint with prejudice. In granting summary judgment, the circuit court upheld the constitutionality of Ark. Code Ann. § 23-52-104. From that determination comes this appeal.

The sole issue presented in this appeal is whether the circuit court erred in upholding the constitutionality of Ark. Code Ann. § 23-52-104(b) and in granting summary judgment in favor of the appellees. We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).

Article 19, section 13, of the Arkansas Constitution states, in relevant part:

(a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.
***
(b) Consumer Loans and Credit Sales: All contracts for consumer loans and credit sales having a greater rate of interest than seventeen percent per annum shall be void as to principal and interest and the General Assembly shall prohibit the same.

Thus, only if the transaction at issue constitutes a loan and if the fees charged constitute interest will the constitutional prohibition against usurious interest rates apply. Haley v. Greenhaw, 235 Ark. 481, 360 S.W.2d 753 (1962). By means of section 23-52-104(b), the General Assembly has excluded deferred presentment check-cashing transactions, such as the transaction between Ms. Luebbers and the Money Store on September 3, 1999, from the confines of the Arkansas Constitution’s usury provisions by declaring that such agreements shall not be deemed to be loans and the fees collected shall not be deemed interest “for any purpose of law[.]” The question then is whether the General Assembly may lawfully make such a declaration.

In reviewing the constitutionality of an act, we recognize that every act carries a strong presumption of constitutionality. State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999). The burden of proof is on the party challenging the legislation to prove its unconstitutionality, and all doubts will be resolved in favor of the statute’s constitutionality, if it is possible to do so. Foster v. Jefferson County Bd. of Election Comm’rs, 328 Ark. 223, 944 S.W.2d 93 (1997). An act will not be struck down unless it conflicts with the constitution “clearly and unmistakably.” Board of Trustees v. City of Little Rock, 295 Ark. 585, 589, 750 S.W.2d 950, 952 (1988) (citing Board of Trustees of Municipal Judges & Clerks Fund v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981); Buzbee v Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932)). The conflict between Ark. Code Ann. § 23-52-104(b) and the Arkansas Constitution is clear and unmistakable.

“[I]n Arkansas whether a transaction is usurious is a question arising under the Constitution, Art. 19, § 13, and is therefore for the courts rather than the legislature.” Bell v. Itek Leasing Corp., 262 Ark. 22, 26-A, 555 S.W.2d 1, 4 (1977). Thus, whether a transaction is usurious under Ark. Const. art. 19, § 13, must be decided by the courts pursuant to the judicial power vested in them by Ark. Const. art. 7, § 1. Furthermore, the judicial power to decide whether a transaction is usurious shall only be exercised by the courts and not by the General Assembly, pursuant to the separation-of-powers doctrine set forth in Ark. Const, art. 4, §§ 1 and 2:

§ 1. Departments of government.
The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
§ 2. Separation of departments.
No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

An act of the General Assembly violates the separation-of-powers doctrine when it deprives the courts of the power to decide a judicial question. Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987); McConnell v. State, 227 Ark. 988, 302 S.W.2d 805 (1957). One such judicial function is the ascertainment of the facts of a particular case. McConnell v. State, supra. While it is within the legislative authority to provide that “certain results shall follow particular actions or conditions; ... the ascertainment of the act or condition and the application of the consequences belong to the courts.” McConnell v. State, 227 Ark. at 991, 302 S.W.2d at 808 (citing Burt v. Williams, 24 Ark. 91 (1863)). Accordingly, this court has held that the General Assembly may not make a per se determination that certain private property is used exclusively for public purposes and is thus exempt from a tax because such a determination “is a judicial function performed only after appropriate fact-finding by the trial court.” City of North Little Rock v. Pulaski County, 332 Ark. 578, 968 S.W.2d 582 (1998). Likewise, the General Assembly may not make a per se determination that a certain transaction is not a loan or that a certain fee is not interest because such determinations are judicial functions performed only after appropriate fact-finding by the trial court.

In Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S.W.2d 307 (1952), we construed a provision in the Arkansas Installment Loan Law similar to the one at issue here, which stated that “ ‘such charges shall not be considered to be interest or compensation for the use or forbearance or detention of money.’ ” Id., 220 Ark. at 574, 249 S.W.2d at 312 (quoting section 27(c) of Act 203 of 1951). That provision was referring to service charges for overhead expenses. Likewise, in this case the fees at issue were meant in part to “defray operational costs incurred in the check-cashing business[.]” Ark. Code Ann. § 23-52-104(a). We held such legislative language to be an “ineffectual device” to evade the usury provisions of the Arkansas Constitution, as well as “a patent attempt by the Legislature to usurp a judicial function.” Id., 220 Ark. at 575-76, 249 S.W.2d at 312.

Additionally, this court has repeatedly held that the form of the contract is not material. Doyle v. American Loan Co., 185 Ark. 233, 46 S.W.2d 803; Habach v. Johnson, 132 Ark. 374, 201 S.W. 286 (1918). “The mere fact that the contract has the form of a contingency will not exempt it from the scrutiny of the court, which is bound to exercise its judgment in determining whether the contingency be a real one, or a mere shift and device to cover usury.” Doyle v. American Loan Co., 185 Ark. at 236, 46 S.W.2d at 804 (emphasis added). Likewise, here the mere fact that the transaction has been given a certain form by the General Assembly will not exempt it from the scrutiny of the court, which is bound to exercise its judgment in determining whether or not the form of the transaction is a device to cover usury. In other words, the court does not take the instrument at face value. Bunn v. Weyherhaeuser Co., 268 Ark. 445, 598 S.W.2d 54 (1980). This principle is reflected in the oft-quoted maxim: “ ‘The law shells the covering, and extracts the kernel. Names amount to nothing when they fail to designate the facts.’ ” Winston v. Personal Finance Co. of Pine Bluff, Inc., 220 Ark. 580, 586-87, 249 S.W.2d 315, 319 (1952)(citing Sparks v. Robertson, 66 Ark. 460, 51 S.W. 460 (1899)). It does not matter what the added charges are called, because the courts look to the facts of each case to determine whether the additional charges are a cloak for usury; and, if they are, the contract is void. Bunn v. Weyherhaeuser Co., supra. Courts must consider all attendant circumstances in deciding whether a transaction is usurious and may not rely merely on names. Id.; McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). Accordingly, the General Assembly may not avoid the constitutional prohibition against usury by merely stating that fees shall not be deemed “interest” or by stating that a transaction shall not be deemed to be a “loan.” Thus, we hold that Ark. Code Ann. § 23-52-104(b) clearly and unmistakably runs afoul of the separation-of-powers doctrine and Article 19, Section 13, of the Arkansas Constitution.

The appellees point out that Ark. Const. art. 19, § 13(b), grants the General Assembly the power to pass laws regarding usury. However, by its plain language, that section provides that the General Assembly shall pass laws to “prohibit” usury. State v. R & A Investment Co., 336 Ark. 289, 985 S.W.2d 299 (1999) (“[Article] 19, § 13, expressly authorizes the General Assembly to enact legislation to punish parties who knowingly violate the usury provisions. Moreover, the plain language of subsection (b) mandates that the General Assembly prohibit usurious contracts.”); Strickler v. State Auto Finance Co., supra (“The Constitution directs the enactment of laws to prohibit, and not to permit, usury.”). We cannot say that section 23-52-104(b) “prohibits” usury. Instead, that section is an attempt by the legislature to exclude deferred presentment check-cashing transactions from the confines of the Arkansas Constitution’s usury provisions. The appellees also state that “the Art. 19, § 13 power to ‘prohibit’ by necessity includes some power to ‘define’ what is not prohibited.” In support of that proposition, appellees cite the cases of Evans v. Harry Robinson Pontiac-Buick, Inc., 336 Ark. 155, 983 S.W.2d 946 (1999) and Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973 (1952), However, Evans is a choice-of-law case that is inapposite, and Hare actually supports our holding in this case when it states:

“Yet it is apparent that if giving this form to the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter. Courts, therefore, perceived the necessity for disregarding the form, and examining into the real nature, of the transaction. If that be in fact a loan, no shift or device will protect it.”

Hare v. General Contract Purchase Corp., 220 Ark. at 608, 249 S.W.2d at 977 (quoting the language of Chief Justice Marshall from Scott v. Lloyd, 9 Peters 446, as quoted in Tillar v. Cleveland, 47 Ark. 287, 1 S.W. 516 (1886)). It is therefore clear that the courts must investigate the true nature of an alleged usurious transaction without regard to the form of the transaction. The Legislature may not usurp this judicial function.

Reversed and remanded.

GLAZE, J., not participating.

       The owners and operators of the Money Store were identified as “Defendants John Doe’s 1-20” in the original class-action complaint. Ms. Luebbers subsequently filed a first amended and restated class-action complaint in which she sought to hold appellees the Money Store, Robert Kinder, and Barbara Kinder jointly and severally liable for all relief granted to Ms. Luebbers and members of the class. Specifically, she alleged that the Money Store is nothing more than an alter ego of its owner, Robert Kinder, and that the Money Store and the Bunders jointly engaged in a civil conspiracy in violation of the usury provisions of Arkansas. Ms. Luebbers also alleged in the amended complaint that The Connecticut Surety Company is liable on its surety bond with the Money Store as a result of violations of the usury laws of Arkansas.

       The circuit court’s summary-judgment order disposed of all the claims between the parties.

       The appellees suggest that the rational-basis test as set out in Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), should be applied in reviewing the constitutionality of section 23-52-104(b). However, the rationality standard of review applies to constitutional challenges based upon equal-protcction-type arguments, and, thus, is not applicable here.

       We refrain from deciding in this appeal whether the $50 in fees charged by the Money Store constitute interest on a loan because that issue, although briefed extensively by the parties, was not decided by the trial court and is not before this court on appeal. Issues not ruled on by the trial court are not preserved for appellate review. Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000).


author: RAY THORNTON, Justice. TOM Glaze, Justice,

text:
    Steven Scott BADER v. STATE of Arkansas
    CR 00-565
    40 S.W.3d 738
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      Brad Karren and Doug Norwood, for appellant.

      Mark Pryor, Att’y Gen., by: Leslie Fisken, Ass’t Att’y Gen., for appellee.
   RAY THORNTON, Justice.

Appellant, Steven Scott Bader, appeals the judgment of the Benton County Circuit Court, convicting him of murder in the first degree and sentencing him to forty years’ imprisonment in the Arkansas Department of Correction. Appellant raises three points for reversal: (1) the trial court erred in not allowing inquiry of the jury panel as to their religious denomination and the number of times that they attended a religious service each month, (2) the trial court erred in failing to find the Arkansas peremptory challenge statute, Ark. Code Ann. § 16-33-305 (Repl. 1999), facially unconstitutional, and (3) the trial court erred by not making an on-the-record determination of appellant’s waiver of his right to testify. We find no error and affirm.

Appellant does not challenge the sufficiency of the evidence supporting his conviction. The evidence showed that he broke into the home of seventy-two-year-old Robert Sikes (“Sikes”) on April 12, 1998, and beat him severely. The victim was hospitalized until his death on May 9, 1998. After Sikes’s death, the State charged appellant and Diana Martens with murder in the first degree.

At a pretrial hearing on September 14, 1999, appellant notified the court that he wanted to submit a jury questionnaire pertaining to religion to the prospective jurors. The trial court declined to address appellant’s intention to submit these questions because it thought the questions could be asked within the constraints of voir dire. Appellant then notified the trial court that he wished to strike prospective jurors based solely on their religious affiliation. The trial court responded to this argument by notifying appellant’s counsel that he must provide legal authority in order to strike prospective jurors because of their religious beliefs.

Prior to jury selection on September 20, 1999, appellant again requested that the court permit him to strike jurors based on their religious beliefs. Appellant specifically requested that he be permitted to ask certain questions of the prospective jurors as to their (1) general religious classifications, such as whether they are Christian, Jewish, Muslim, Buddhist, or any of the other major religions, (2) denominational affiliations under those general religious classifications, such as whether they are Church of Christ, Lutheran, Presbyterian, etc., and (3) how many times in the average month that they attend any kind of religious services. Appellant stated that he should be permitted to use peremptory challenges to strike jurors based on religion because of the provisions of the First, Sixth, and Fourteenth Amendments to the United States Constitution. He further contended that the United States Supreme Court has not extended Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama, 511 U.S. 127 (1994) to include any classifications other than race and gender. The trial court ruled that the proposed questions relating to religious affiliation or practice could not be asked because they would violate the Arkansas Civil Rights Act of 1993, as codified at Ark. Code Ann. §§ 16-123-101 — 16-123-210 (Supp. 1999), or, more specifically, Ark. Code Ann. §§ 16-123-102(8) (Supp. 1999) & 16-123-107(a) (Supp. 1999). The trial court went on to state the following:

And so you will not be allowed to utilize a peremptory challenge strictly on the basis of religion ... but that does not in any way prohibit you from inquiring, either side, from inquiring as to whether anyone possesses religious beliefs or convictions or philosophical ideas so strong that they would interfere with their ability to follow the [cjourt’s instructions, follow the law and objectively consider the evidence and rule as the evidence dictates.

Appellant had also filed a pretrial motion on September 16, 1999, asking the trial court to disallow all peremptory strikes and to hold the Arkansas peremptory challenge statute, Ark. Code Ann. § 16-33-305, unconstitutional on the grounds that the statute allows both sides to strike jurors for unlawful reasons. At the pretrial status hearing on September 17, 1999, the trial court denied appellant’s motion, finding that peremptory challenges have been historically accepted in Arkansas and every state in the United States. The trial court noted that safeguards against unlawful peremptory challenges were established in Batson v. Kentucky, supra. The trial court further stated the following: “[T]he safeguards that have been put in place, the Batson rule and analysis to avoid discrimination ... ha[ve] later been extended as much as possible to cover gender discrimination, I think those are sufficient safeguards and clear up ... to some extent the abuses you are talking about.”

Following the trial court’s ruling that voir dire examination of jurors would be limited to inquiry as to whether any of the jurors possessed religious beliefs, convictions, or philosophical ideas so strong that they would interfere with their ability to follow the court’s instructions, follow the law, and objectively consider the evidence and rule as the evidence dictates, the State used four, and appellant used seven, peremptory strikes to eliminate jurors. There is no indication in the briefs that any of these strikes were used for any particular reason. In addition, no jurors were stricken for cause. Finally, there is no indication in the briefs that either appellant’s counsel or the prosecution objected to the make-up of the jury.

I. The trial court did not abuse its discretion by limiting voir dire.

For his first argument on appeal, appellant contends that the trial court erred in not allowing inquiry of the jury panel on voir dire as to their religious classification, denomination, and number of times that they attend a religious service each month. Appellant asserts that the trial court’s ruling restricting his voir dire in this manner constituted reversible error. We disagree.

We have held that the extent and scope of voir dire is left to the sound discretion of the trial court and that the trial court’s ruling will not be disturbed on appeal, absent an abuse of discretion. E.g., Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998) (citing Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996)). For example, in Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992), we held that there is no abuse of discretion when the trial court curtails protracted voir dire examination, or restricts questions that do not touch upon the qualifications of venirepersons to serve as impartial jurors, or that are potentially confusing to the prospective jurors. In addition, when we have upheld voir dire limitations, we have held that we do not find the questions so plainly appropriate that we are prepared to say the trial court’s discretion was abused. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986) (citing Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983)).

In this case, the questions regarding religious preferences that appellant was seeking to ask were not so plainly appropriate that we should say the trial court’s discretion was abused. While the desired questions were not submitted by written proffer, the abstract shows that appellant was seeking specific information concerning each juror’s (1) general religious classifications, such as whether they are Christian, Jewish, Muslim, Buddhist, or any other of the major religions, (2) denominational affiliations under those general religious classifications, such as whether they are Church of Christ, Lutheran, Presbyterian, etc., and (3) how many times in the average month the venireperson attends any kind of religious service. The purpose of the proposed voir dire was, according to appellant’s brief, to use peremptory strikes to remove venirepersons that appellant considered to be too religious.

We note that there are prohibitions against using religious tests as a qualification for holding office, voting, or exercising the rights of a citizen to participate fully in the instrumentalities of government. The principles of religious freedom and the prohibition against religious discrimination are well-grounded in this country. The United States Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” U.S. Const. art. 6. This principle is similarly articulated in Article II, Section 26, of the Arkansas Constitution, which provides that “[n]o religious test shall ever be required of any person as a qualification to vote or hold office, nor shall any person be rendered incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths or affirmations.” Id.

The principle that there is a prohibition against discrimination based on religious beliefs existed long before the Batson decision was handed down in 1986, and, indeed, existed long before Arkansas adopted the Arkansas Civil Rights Act of 1993, the statute upon which the trial court relied. The principle is well established that a trial court does not abuse its discretion in limiting the scope of voir dire examinations to questions addressing whether the venireperson would be qualified to serve as an impartial juror. Henry, supra. Here the trial court permitted an alternative fine of questioning that was designed to educe information as to whether the venireperson had personal religious beliefs, convictions, or philosophical ideas that would impair his ability to serve as an impartial venireperson, and we note that appellant did not choose to inquire using the permitted alternative line of questioning. We conclude that trial court did not abuse its discretion in limiting the scope of the voir dire examination in this case to questions addressing whether the venireperson’s personal religious beliefs, convictions, or philosophical ideas would prevent the venireperson from following the law upon the instructions of the court. The trial court clearly did not interpret Ark. Code Ann. §§ 16-123-102(8) and 16-123~107(a) as preventing any general inquiry as to the ability of venirepersons to follow the law.

We conclude that the trial court’s limitation on questions regarding religious beliefs was not an abuse of discretion. The trial court was well within its discretion in limiting appellant’s use of religious questions that would range far beyond those needed to evaluate the qualifications of venirepersons to serve as impartial jurors. Certainly appellant’s proposed questions were not “plainly appropriate” under Roderick, supra. Accordingly, the trial court’s ruling is affirmed.

II. Appellant is barred from challenging the constitutionality of the peremptory statute because he did not demonstrate prejudice.

For his second assignment of error, appellant argues that the trial court erred in failing to find that the Arkansas peremptory challenge statute, Ark. Code Ann. § 16-33-305, is unconstitutional. Specifically, appellant argues that the Arkansas peremptory challenge statute violates the Sixth Amendment right to an impartial jury and fair cross-section of the community and, alternatively, the Fourteenth Amendment right to equal protection.

It is well settled that in order to have standing to challenge the constitutionality of a statute, a person must show that the challenged statute had a prejudicial impact on him. E.g., Brooks v. State, 328 Ark. 32, 941 S.W.2d 409 (1997); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995).

For example, in Brooks, supra, we held that appellant did not have standing to challenge the constitutionality of Ark. Code Ann. § 16-97-103 (Supp. 1999) because he could not demonstrate a prejudicial impact from the application of that statute, which provides for victim-impact evidence to be admissible during the sentencing phase of bifurcated trials, because the State did not introduce any victim-impact evidence.

Similarly, in Garrigus, supra, we held that appellant did not have standing to challenge the constitutionality of Ark. Code Ann. § 5-65-310 (Repl. 1997, Supp. 1999) because he could not demonstrate a prejudicial impact from the application of that statute, which prescribes various penalties for the refusal of an underage person arrested for DUI to submit to a chemical test based on whether the arrestee is a resident or nonresident of the state and whether he has a valid driver’s license, because he voluntarily submitted to a breathalyzer, and, thus, there was no finding that he violated the statute.

Appellant did not demonstrate how the application of the peremptory-strike statute had a prejudicial impact upon appellant or upon any juror in the case. Indeed, there is no indication in the briefs of the reasons why either appellant or the State struck jurors. Because appellant did not demonstrate that the peremptory challenge statute had a prejudicial impact on either him or on any stricken juror, it thus follows that appellant lacks standing to raise the issue on appeal and we decline to reach the merits of the constitutional challenge.

III. Appellant failed to preserve for review his argument that the trial court erred by not determining whether he waived his right to testify.

For his third argument on appeal, appellant asserts for the first time that the trial court erred by not determining through an on-the-record colloquy as to whether appellant knowingly and voluntarily waived his right to testify. We note from the abstract that appellant did not seek to testify. Because appellant did not make his argument that he had not waived his right to testify to the trial court, we do not reach it here.

Our contemporaneous-objection rule requires objection at the trial level in order to preserve an argument for appeal. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992); Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). We have also consistently held that the contemporaneous-objection rule applies, even with respect to the denial of constitutional rights. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).

In making the argument that he is not barred from raising this issue on appeal, appellant relies on Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992) as authority for the proposition that the contemporaneous-objection rule does not apply in this case. In Calnan, supra, we outlined four exceptions to the contemporaneous-objection rule. In Calnan, supra, we applied the exception that there is no need for there to have been a contemporaneous objection at the trial level in order to raise an issue on appeal if a serious error will otherwise result. Id. Appellant relies on this exception as being applicable to the present case. However, appellant’s reliance on this case is misplaced.

While it is true that Calnan applied the Wicks exception under Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) that there is no need for a contemporaneous objection to raise an issue on appeal if a serious error will otherwise result, Calnan is clearly distinguishable from the present case. Calnan involved a different issue than the present case, namely the denial of the right to jury trial. In Calnan, supra, appellant was tried in municipal court and found guilty of DWI, disorderly conduct, violation of the implied-consent law, and speeding. Id. She appealed to the circuit court and was found guilty of all charges but speeding in a de novo bench trial. Id. This conviction by a bench trial had the effect of depriving Calnan of her right to a jury trial. Id. The appellant in Calnan, supra, claimed that she did not waive her right to a trial by jury, whereas in the case before us, appellant does not contend that he did not waive his right to testify, but, rather, argues that his waiver was not documented through a colloquy on the record. Therefore, Calnan is not applicable to the present case for the proposition for which appellant asserts it.

Appellant did not make a contemporaneous objection at trial as to the issue of appellant’s waiver of the right to testify. Accordingly, we are precluded from addressing this argument on appeal.

The judgment of conviction is affirmed.

Glaze, J., concurs.

TOM Glaze, Justice,

concurring. Regarding Point I of the majority opinion, I concur and do so on the sole basis that the trial court permitted appellant Steven Bader an alternative line of questioning that was designed to educe information as to whether the venireperson had personal religious beliefs, convictions, or philosophical ideas that would impair his or her ability to serve impartially. Bader chose not to pursue such questioning. This court has held that the trial court’s “limited restriction” on voir dire does not constitute an abuse of discretion. See Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992).

Here, the trial court determined that specific information about denomination and church attendance was irrelevant for Bader to determine whether the potential jurors’ religious beliefs would prohibit them from following the law. Only when proposed questions are “plainly appropriate” will this court conclude that the trial court abused its discretion by restricting voir dire. Mr. Bader failed to show how his proposed questions were plainly appropriate in the circumstances; thus, it cannot be said that the trial court abused its discretion in restricting his voir dire and by allowing Bader to offer a reasonable alternative fine of questions.

       The particular statutes the trial court invoked were Ark. Code Ann. § 16-123-102(8) and Ark. Code Ann. § 16-123-107(a). Ark. Code Ann. § 16-123-102(8) provides, in relevant part:
      For the purposes of this subchapter:
      (8) “Religion” means all aspects of religious belief, observance, and practice.

        Id. Ark. Code Ann. § 16-123-107(a) provides, in relevant part:
      (a) The right of an otherwise qualified person to be free from discrimination because of race, religion, national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:
      (1) The right to obtain and hold employment without discrimination;
      (2) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;
      (3) The right to engage in property transactions without discrimination;
      (4) the right to engage in credit and other contractual transactions without discrimination; and
      (5) The right to vote and participate fully in the political process.

        Id.

       These four exceptions are usually referred to as the Wicks exceptions because they were first outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).


author: Ray Thornton, Justice.

text:
    Karl Anthony GUYDON v. STATE of Arkansas
    CR 01-037
    39 S.W.3d 767
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001

      James P Clouette, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

On September 3, 1998, a felony information was filed, charging appellant, Karl Guydon, with two counts of delivery of a controlled substance. The information alleged that appellant had delivered cocaine on two occasions on June 4, 1998. Appellant entered a plea of not guilty on both counts.

On April 19, 1998, a jury trial was held. At trial, Ron Messer, a Little Rock Police Officer, working undercover, testified that he went to appellant’s residence and made two separate purchases of what was allegedly crack cocaine for twenty dollars each. Officer Messer testified that he turned the off-white, rock-like substance over to Officer Scott Leger of the North Little Rock Police Department.

Officer Leger testified that when Officer Messer gave the substances to him, he weighed them, placed them in sealed property envelopes, initialed the envelopes, and transported them to the Arkansas State Crime Laboratory. He further testified that State’s Exhibit 1 weighed 0.3 of a gram and State’s Exhibit 2 weighed 0.2 of a gram.

Kathy Shanks, a forensic chemist from the Arkansas State Crime Laboratory, also testified. She was able to identify State’s Exhibits 1 and 2 because they were marked with her initials, laboratory case number, and the date and time that she performed her analysis of the substances. Ms. Shanks testified that her analysis showed that State’s Exhibit 1 was a plastic bag containing off-white rock-like substance weighing 0.1828 of a gram, which tested positive for cocaine base and Benzocaine. She further stated that State’s Exhibit 2 was a plastic bag containing off-white rock-like substance weighing 0.1183 of a gram, and that it tested positive for cocaine base and Benzocaine.

Following Ms. Shanks identification of State’s Exhibits 1 and 2, the State moved to introduce the two exhibits. Before the trial court had admitted the exhibits into evidence, appellant requested a voir dire of Ms. Shanks. During voir dire, Ms. Shanks testified that Stephanie Gray from the evidence receiving department took both exhibits into custody. Ms. Shanks noted that, when she was ready to perform her analysis on the substances, Lori Schumacher from the evidence receiving department gave her the evidence.

At the conclusion of the voir dire, appellant’s attorney objected to the admission of the exhibits based on the difference in the testimony of Officer Leger and Ms. Shanks regarding the weight of the drugs and the fact that two employees at the Arkansas State Crime Laboratory, who came into contact with the evidence, were not there to testify. In response, the State contended that there was no evidence of tampering and that there had been substantial compliance with the chain of custody. The trial court overruled appellant’s objection and admitted the two exhibits into evidence.

Appellant was convicted by a jury of two counts of delivery of a controlled substance, and was sentenced to twelve years on each count, to be served concurrently. Appellant appealed his conviction to the court of appeals. On December 20, 2000, the court of appeals reversed and remanded appellant’s case, holding that the trial court had abused its discretion when it admitted State’s Exhibits 1 and 2 without a proper chain of custody established. See Guydon v. State, 72 Ark. App. 285, 34 S.W.3d 804 (2000).

On January 8, 2001, the State filed a petition for review of the court of appeals’ decision. We granted the State’s petition. When we grant review following a decision by the court of appeals, we consider the case as though it had been originally filed with this court. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999). Appellant raises one point for our review, and we-affirm the trial court.

In his only point on appeal, appellant contends that the trial court erred when it admitted State’s Exhibits 1 and 2 into evidence. Specifically, appellant argues that because there was a discrepancy in the weight of the exhibits and because the State failed to prove a proper chain of custody, we should conclude that the trial court abused its discretion in admitting the evidence.

Before addressing the merits of appellant’s issue on appeal, it is necessary for us to discuss a procedural matter raised by the State. On appeal, the State argues that appellant’s appeal is procedurally barred because appellant did not raise his chain-of-custody objection until the physical evidence was offered for admission into evidence. The State’s argument is based on our holding in Gonzalez v. State, 306 Ark. 1, 811 S.W.2d 760 (1991). In Gonzalez, we declined to address a challenge to the admission of evidence based on an improper chain of custody. We held that a party has a duty to make a timely and complete objection to the admission of evidence. Id. In our cases following Gonzalez, we have held that an objection to the admission of evidence based on an allegation of an improper chain of custody needs to be made at the time the evidence in question is offered for admission. A chain-of-custody objection made after the evidence has been admitted is not timely. See Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993); see,also Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). In this case, appellant objected immediately after Ms. Shank’s testimony revealed the weight discrepancy and the break in the chain of custody and before State’s Exhibits 1 and 2 were admitted into evidence. Accordingly, the issue was preserved for appellate review.

Turning now to the merits of appellant’s case, appellant contends that State’s Exhibits 1 and 2 were improperly admitted into evidence because the State failed to establish an unbroken chain of custody. The alleged missing links were the absence of testimonies by Stephanie Gray, the employee at the Arkansas State Crime Laboratory, who received State’s Exhibits 1 and 2 into custody from Officer Leger, and Lori Schumacher, an employee at the Arkansas State Crime Laboratory, who removed the evidence from the secured area at the Arkansas State Crime Laboratory and gave it to Ms. Shanks for analysis. Appellant claims that because conflicting evidence was introduced as to the weight of the evidence, a greater burden is placed on the State when establishing its chain of custody. Appellant’s argument is without merit.

We have consistently stated that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Newman v. State, 321 Ark. 339, 939 S.W.2d 811 (1997). To prove authenticity of evidence the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Id. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Id. On review, we will not reverse a ruling on an evidentiary matter regarding the admissibility of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court. See Newman, supra.

In the present case, we conclude that the State established within a reasonable probability that the evidence had not been tampered with. At trial, Officer Messer positively identified State’s Exhibits 1 and 2 as the crack cocaine, which he purchased from appellant. He further testified that the evidence looked the same as it did when appellant first gave it to him. Officer Messer explained that after appellant sold him the drugs, he turned them over to Officer Leger.

Next, Officer Leger positively identified State’s Exhibits 1 and 2 as the evidence that Officer Messer gave him during an undercover investigation in June of 1998. Officer Leger testified that when he took possession of the evidence, he (1) weighed the evidence; (2) put the evidence in a sealed packet; (3) put the packet in a property envelope; (4) completed the necessary paperwork; (5) sealed the envelope with evidence tape; (6) initialed the evidence tape; and (7) transported the evidence to the Arkansas State Crime Laboratory. He noted that the evidence looked the same at trial as it did on the day he received it from Officer Messer.

Finally, Kathy Shanks, a forensic chemist from the Arkansas State Crime Laboratory, positively identified State’s Exhibits 1 and 2 as substances that she had tested and determined contained cocaine and Benzocaine. She was able to identify the evidence because it was marked with her initials, the laboratory case number, and the date on which she performed her analysis of the substances. Ms. Shanks explained the process by which evidence is received and analyzed at the Arkansas State Crime Laboratory. She stated: “a officer or representative of the law enforcement agency will bring the materials to our evidence receiving department. They are cataloged and assigned a number. They are then put in our secure area and locked up until upon which time a chemist is assigned the case [sic]. When we get to that case in our backlog, we then go check out the evidence from our evidence receiving area. We take it up to our desk, or lab bench and we analyze it.” Ms. Shanks also testified that when evidence is received at the Arkansas State Crime Laboratory, the “person who takes it in insures that it’s in sealed condition [and] they initial or sign their name on the submission sheet.” Ms. Shanks further stated that to the best of her knowledge, the evidence was in the evidence-receiving department from the time that Ms. Gray received it until Ms. Schumacher removed it and gave it to Ms. Shanks to perform her analysis. Finally, Ms. Shanks testified that it is lab protocol that once evidence is submitted into evidence receiving, it is taken to a secured area and it remains there until it comes into the possession of the chemist.

From our review of the testimony presented by the State in establishing the chain of custody, we cannot say that the trial court abused its discretion in allowing the introduction of State’s Exhibits 1 and 2. Although there was conflicting testimony concerning the weight of the evidence, we conclude that this variation was insignificant, and note that minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. See Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995) see also Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

Appellant argues that his case is analogous to Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997), and that based on our analysis of the facts in that case, we must conclude that the trial court in the present case abused its discretion when it admitted State’s Exhibits 1 and 2. In Crisco, we were asked to determine whether the trial court had abused its discretion when it admitted evidence after conflicting testimony as to the evidence’s description had been offered. While attempting to establish a proper chain of custody, the State entered the testimony of an undercover police officer, who purchased the substance, and the testimony of the chemist at the crime lab, who tested the substance. The police officer identified the evidence as “one bag of off-white powder substance.” Id. By contrast, the forensic chemist described the evidence as “one triangular piece of plastic containing a tan rock-like substance.” Id. The chemist also testified that the evidence at issue was a substance which would not ordinarily change colors. Id. On appeal, Crisco argued that the varying descriptions of the substance raised an inference that a break had occurred in the chain of custody. Id. We agreed with Crisco, and held that the marked difference in the description of the substance by the police officer and the chemist established a significant possibility that the evidence tested was not the same as that purchased by police officer, and reversed the trial court. Id.

The facts in Crisco are distinguishable from the facts in the case now on review. In the present case, a marked difference in description simply does not exist. The testimony from Officer Leger was that State’s Exhibit 1 weighed 0.3 of a gram and State’s Exhibit 2 weighed 0.2 of a gram. By contrast, Ms. Shanks testimony was that State’s Exhibit 1 weighed 0.1828 of a gram, and State’s Exhibit 2 weighed 0.1183 of a gram. The difference in testimony regarding the weight of State’s Exhibit 1 was .1172 of a gram, and the difference regarding State’s Exhibit 2 was .0817 of a gram. We do not consider this minor discrepancy sufficient to raise a reasonable probability that a break in the chain of custody occurred. Accordingly, we affirm the trial court.

Circuit court affirmed; court of appeals reversed on petition for review.

       We note that the slight variation in the weight of the exhibits could have resulted from the differing sensitivity in the scales used by Officer Leger and Ms. Shanks.


author: Ray Thornton, Justice. ROBERT L. Brown, Justice,

text:
    Duretha LOEWER, as Administratrix of the Estate of Minnie Sanford, Deceased v. CLA-CLIFF NURSING and REHABILITATION CENTER
    00-1331
    39 S.W.3d 771
    Supreme Court of Arkansas
    Opinion delivered March 22, 2001
    [Petition for rehearing denied April 19, 2001.]

      Timothy O. Dudley, for appellant.

      Fletcher Long, Jr., for appellee.
   Ray Thornton, Justice.

Appellant, Duretha Loewer, brings this appeal as the administratrix of the estate of Minnie Sanford. Ms. Sanford, who suffered from dementia and osteoporosis, developed pneumonia and died on September 16, 1998, at the age of ninety. On February 16, 1999, appellant filed a complaint against appellee, Cla-Cliff Nursing and Rehabilitation Center [Cla-Cliff], alleging that Ms. Sanford suffered a broken right leg in January of 1998 and a broken left leg in August of 1998, as well as bruises, abrasions, and swelling on her face and upper body, during the time that she was a resident at Cla-Cliff. Appellant complained that these injuries were the result of negligent care by Cla-Cliffs employees, and that complications from Ms. Sanford’s injuries caused her to develop pneumonia which led to her death.

Contending that appellant’s claim raised an issue relating to a “medical injury” as defined by the Arkansas Medical Malpractice Act, Ark. Code Ann. § 16-114-201 et.seq. (1987), and that appellant had failed to offer proof of the required standard of medical care, or any proof that appellee had failed to meet that standard, appellee moved for summary judgment. In response, appellant argued that her claim was not for a “medical injury” and that she did not have to provide expert testimony. She supported her claim that the standard of ordinary negligence should apply to her case, with Ms. Sanford’s medical records and excerpts from the deposition given by Ms. Sanford’s physician, Dr. Jerry Morgan, that he had been told by Cla-Cliff employees that Ms. Sanford’s injuries had resulted from a fall. Specifically, appellant argued that appellee’s employees were negligent because they: (1) intentionally abused Ms. Sanford; (2) faded to use ordinary care in properly supervising Ms. Sanford; or (3) failed to follow Dr. Morgan’s order that Ms. Sanford be restrained.

Appellee then filed a supplemental motion for summary judgment, asserting that there was no proof that appellee committed any actions that would support a claim of negligence, and that there was no proof that appellee abused Ms. Sanford. In support of its motion, Cla-Cliff filed affidavits from its staff. The staff members stated that Ms. Sanford was not abused or neglected and that because of her illness she would sometimes “thrash” about in her bed. Each of the staff members also asserted that Ms. Sanford had not fallen during the previous two years while in the care of Cla-Cliff. Additionally, appellee offered portions of Dr. Morgan’s deposition testimony in support of its motion for summary judgment. Dr. Morgan testified that Ms. Sanford’s broken legs and other injuries could have been caused by her thrashing about in her bed.

Appellant responded to appellee’s motion for summary judgment by arguing that there was evidence to support the theory that Ms. Sanford had been injured by a fall rather than as a result of thrashing around in her bed. Specifically, appellant offered testimony from Dr. Morgan, who stated that he was informed by ClaCliff employees that Ms. Sanford had fallen and broken her leg in January and the other leg in August 1998. Dr. Morgan also testified that the broken leg sustained in August 1998 was consistent with an injury that would occur when an individual falls. Dr. Morgan’s medical records reflected that he was told by Cla-Cliff employees that Ms. Sanford fell. Based on this testimony, appellant argued that there was an issue of fact as to whether appellee’s employees had acted negligently in failing to follow Dr. Morgan’s order to restrain Ms. Sanford which caused her to fall and sustain injuries. Dr. Morgan’s testimony was that he had ordered that Ms. Sanford be restrained when she was in her wheelchair.

Ruling that the injuries were “medical injuries,” the trial court granted appellee’s motion for summary judgment because appellant had failed to offer proof as to the requisite standard of care in a medical malpractice case, and appellant failed to offer proof that appellee had not complied with that standard of care in the treatment of Ms. Sanford. The trial court also found that even if appellant’s claim was for simple negligence “there is no proof of any such negligence before the court and there is proof by way of affidavit that no such negligence occurred.” It is from this order that appellant appeals.

In her only point on appeal, appellant argues that the trial court improperly granted appellee’s motion for summary judgment. We have held that summary judgment is an extreme remedy. Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and affidavits show that there is no genuine question of material fact to be litigated and the moving party is entitled-to judgment as a matter of law. Anderson v. First National Bank of Hot Springs, 304 Ark. 164, 801 S.W.2d 273 (1990). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. City of Dover v. A. G. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000).

After reviewing the motion for summary judgment, the accompanying affidavits, and exhibits, we hold that a genuine issue of material fact exists. We conclude that a question exists as to whether the injuries were medical injuries sustained while Ms. Sanford was thrashing about in bed, or whether there was a negligent breach by custodial personnel of Dr. Morgan’s orders to restrain Ms. Sanford, causing a fall that resulted in her injuries. Because this question is unresolved on the record before us, we hold that it was error to grant a motion for summary judgment. Accordingly, we reverse the trial court and remand this matter for further proceedings consistent with this opinion.

Reversed and remanded.

Brown and Imber, JJ., concur.

ROBERT L. Brown, Justice,

concurring. I concur in the BERT and the remand. I write to point out that my reading of the abstract is that the only order from Dr. Jerry Morgan regarding restraints for Ms. Sanford concerned Ms. Sanford in a wheelchair. According to Dr. Morgan’s deposition, he had ordered that she be tied in the wheelcháir with a bed sheet. The abstract reflects no order from Dr. Morgan that Ms. Sanford be restrained in bed. Five nurses’ affidavits state that Ms. Sanford had not fallen since December 6, 1996. Thus, the only issue of material fact resulting from the nurses’ affidavits and Dr. Morgan’s deposition relates to whether Ms. Sanford was injured falling from her wheelchair, in violation of Dr. Morgan’s order that she be so restrained. That is the issue that needs to be resolved in further proceedings before the trial court.

Imber, J., joins.