text:
    Terrick Terrell NOONER v. STATE of Arkansas
    CR 94-358
    907 S.W.2d 677
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995
    [Petition for rehearing denied November 13, 1995.]

      Herbert T. Wright, Jr., for appellant.

      Winston Bryant, Att’y Gen., by; David R. Raupp, Asst. Att’y Gen., with Savannah Dyer, Law Student practicing pursuant to Rule XV(E)(l)(b), for appellee.
   Robert L. Brown, Justice.

The appellant, Terrick Terrell Nooner, was convicted of capital murder committed in furtherance of a robbery and sentenced to death by lethal injection. He raises 15 points on appeal. We agree with the State that the points have no merit, and we affirm.

On March 16, 1993, at approximately 1:30 a.m., Scot Stobaugh entered the FunWash laundromat on West Markham Street in Little Rock to do laundry. While there, he was shot seven times and died of multiple gunshot wounds. He was found lying face down on the laundromat floor in a pool of blood. Subsequent examination showed that he was shot twice in the upper right arm and five times in the back in what later were described as contact wounds. Seven .22 caliber shell casings were found on the floor close to the body together with a tan hat, keys, and a jar of Carmex lip salve. His Chevrolet Beretta was parked in the laundromat’s parking area unlocked, with its parking lights on, and with keys in the ignition. A ring and a neck band remained on the victim’s body.

The FunWash laundromat had three surveillance cameras in operation at the time of the shooting which recorded on one VHS videotape. The general manager of the business, Janie White, helped investigating police officers from the Little Rock Police Department retrieve the videotape. The videotape depicted Stobaugh and a second person accosting him in the laundromat. It did not show the actual murder.

Detective Joe Oberle, a homicide detective with the Little Rock Police Department, took possession of the videotape and had still photographs made from the frames that included the victim and the suspect. Detective Oberle used several private firms in Little Rock to enhance the tape in order to obtain the clearest still picture possible — Color Masters, Camera Mart, and Jones Productions. In four of the enhanced photographs, the victim’s face was “mosaicked out” at the request of his family and one of those photographs was given to the news media to assist in the investigation. Rick Adcock with the Little Rock Police Department Crime Scene Search Unit also made still photographs from the videotape.

Ron Andrejack, the firearms examiner for the State Crime Laboratory, examined the bullets and shell casings found at the crime scene and determined that five of the seven bullets were fired by the same firearm. The other two bullets were too damaged for any conclusion to be reached. He further determined that all seven shell casings were fired from the same gun. By examining the various marks on the bullets and shell casings, he ultimately concluded that the characteristics on the bullets and shell casings were consistent with a .22 long rifle Ruger semiautomatic pistol.

In a matter of days, the police investigation centered on Nooner due in large part to statements given to Detective Oberle by Antonia “Toni” Kennedy, a friend of Nooner’s. Antonia Kennedy is the sister of Jazmar Kennedy, who identified Nooner in the surveillance photographs at trial, and the sister of Terri Kennedy, who was Nooner’s girlfriend at the time of the trial and who testified as a defense witness. Antonia Kennedy implicated Nooner in the FunWash shooting and subsequently testified at trial that on the morning after the shooting Nooner told her that he had murdered Scot Stobaugh after demanding money from him. She added that she had seen Nooner with a .22 Ruger pistol that day and had kept the gun for Nooner for a brief period of time. Nooner was arrested on April 23, 1993, and charged with capital murder, aggravated robbery, and theft of property.

On September 20, 1993, a seven-day trial commenced. Nooner was convicted of capital felony murder with aggravated robbery and theft of property as the underlying felonies. After the penalty phase of the trial, the jury found two aggravating circumstances: (1) that Nooner had previously committed another felony, an element of which was the use or threat of violence; and (2) that the murder was committed for pecuniary gain. The jury found no mitigating circumstances and returned a verdict of death by lethal injection.

I. JUROR DISMISSED FOR CAUSE

Nooner first contends that the trial court erred in removing a juror for cause based on her attitude toward the death penalty. Citing Witherspoon v. Illinois, 391 U.S. 510 (1968), Nooner urges that this juror was struck due to her conscientious scruples against the death penalty rather than her total opposition to it, which violated his right to due process.

During the voir dire examination, juror Elizabeth Miller was questioned by counsel and by the circuit court. Her responses to the State’s questions on voir dire were as follows:

PROSECUTOR: Is the fact that the death penalty is sitting out here if you find him guilty going to cause you to make me have to do more than that? Have to prove beyond all shadow of a doubt or all imaginary doubt that he’s guilty?
JUROR: Yes.
PROSECUTOR: It is?
JUROR: Uh huh (Meaning yes).
PROSECUTOR: So, in other words, you would hold us to that higher standard?
JUROR: Yes.
PROSECUTOR: In a case like this there are two possible sentences. If you, the jury, would render a guilty verdict, there are only two sentences. One is life imprisonment without parole. That’s one option, and the other is the death penalty. Do you feel that if you have those two choices before you, that you would be inclined to lean toward life imprisonment?
JUROR: Yes.
PROSECUTOR: If you had those choices before you, would you automatically feel that the life imprisonment without parole would be your choice?
JUROR: Yes, Ido.
PROSECUTOR: So, in other words, regardless of the evidence that we presented to you that might suggest that the death penalty is appropriate, it’s your belief that you would — If you were a juror, you would vote for life imprisonment without parole?
JUROR: Yes, uh-huh (Meaning yes).

Ms. Miller’s responses to the defense counsel’s questions were as follows:

DEFENSE COUNSEL: If you determine that they’re guilty, then you consider punishment. The Court will instruct you that in order to consider the death penalty, the State has to prove certain aggravating circumstances and prove that those aggravating circumstances outweigh any mitigating circumstances that may exist beyond a reasonable doubt.
JUROR: I understand.
DEFENSE COUNSEL: If the Judge instructed you that that was the law, and those were the instructions you were supposed to follow, could you follow those instructions?
JUROR: I think so.
DEFENSE COUNSEL: And you can follow his instructions and consider everything that you should consider in making your determination which punishment is possible or which punishment is appropriate?
JUROR: Yes.
DEFENSE COUNSEL: If the Judge instructs you that the State has the burden of proving each and every element of the charges against Terrick beyond a reasonable doubt, and he further instructs you that a reasonable doubt isn’t any possible or imaginary doubt. It’s a doubt that would cause a reasonable person to pause or hesitate in one of the grave transactions of life. And, further, that a juror is convinced beyond a reasonable doubt when they have an abiding conviction of the truth of the matter. Could you follow that instruction?
JUROR: I think so.
On requestioning by the State, the juror answered:
PROSECUTOR: You really don’t want to have to ever be the person who would have to vote on whether or not you could sentence somebody to death. Is that correct?
JUROR: That’s right.
PROSECUTOR: Would it be really difficult for you? Do you think you could actually sign your name to a verdict form?
JUROR: No, I don’t think so.
Upon questioning by the circuit court, the juror stated:
CIRCUIT COURT: Can you conceive of any circumstances where you had a choice between life without parole and the death penalty where you would choose the death penalty?
JUROR: I don’t know.

The circuit court then issued its ruling:

After viewing this juror, she said several things that were a bit inconsistent. Taking an overall view of all of her questions, I’m convinced that if this lady is part of this jury, that the State would be foreclosed from a verdict before we start. I believe this lady is irrevocably locked into voting for life without parole, and because of that would not follow the evidence, and so, I’m going to grant the State’s motion for cause as to this juror.

The decision to excuse a juror for cause rests within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). We have said that the standard for determining if a prospective juror should be excused for cause is no longer whether that person makes it unmistakably clear that he or she would automatically vote against the death penalty. Pickens v. State, 301 Ark. 244, 250, 783 S.W.2d 341, cert. denied 497 U.S. 1010, cert. denied 500 U.S. 929 (1990). The standard now is whether a juror’s views about the death penalty would prevent, or substantially impair, the performance of the juror’s duties in accordance with the instructions and the oath taken. Pickens v. State, supra. Hence, the circuit court must decide if the juror’s views would prevent or substantially impair performance of his or her duty as a juror, and we give great deference to the circuit court that sees and hears the potential jurors. Wainright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).

Here, it is true that juror Miller testified that she would follow the court’s instructions. However, she also stated that she would have to be “totally convinced” of the defendant’s guilt before she could consider the death penalty and that regardless of the State’s evidence she would vote for life imprisonment. She further responded that she could not actually sign her name to a verdict form in which the death penalty was imposed. A reasonable conclusion from these answers is that her views on the death penalty would in fact have either impaired or prevented the performance of her duties as a juror. We bestow great deference on the circuit court in such matters, and we find no basis for a decision that the court abused its discretion.

II. EVIDENCE OF ROBBERY

For his next point, Nooner contends that there was insufficient evidence of robbery as the predicate felony for capital murder. He argues that the victim’s car was not taken and that the body was found with personal jewelry still intact.

The evidence of the robbery in this case is circumstantial, but circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Trimble v. State, supra; Sheridan v. State, supra; Bennett v. State, supra. In assessing whether evidence is substantial, we view the facts in the light most favorable to the appellee. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995); Trimble v. State, supra.

We disagree that the proof of robbery was insufficient. Items on the floor beside the body, including the keys and Carmex, are some proof that the victim’s pockets had been rifled. More importantly, Toni Kennedy testified that on the morning after the shooting she had seen a checkbook with the name Scot Stobaugh in Nooner’s possession. Added to this proof was the fact that Nooner told Toni Kennedy that he demanded money from the victim at FunWash. Finally, the videotape in the laundromat which was reviewed by the jury shows the victim raising his hands, as the suspect walked behind him. The victim was later found shot to death. The State’s proof meets the test of substantial evidence.

III. DISCOVERY DEFICIENCIES

Nooner next contends that he was denied due process of law because the prosecuting attorney was impermissibly dilatory in providing the names and addresses of state witnesses, the opinion of the expert witness regarding the type of gun involved, autopsy photographs, and a diagram of the laundromat by a crime scene specialist.

Rule 17.l(a)(i) of the Arkansas Rules of Criminal Procedure requires the prosecution to give the names and addresses of witnesses it intends to call at trial, and Rule 19.2 imposes a continuing duty to disclose this information. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). The trial court has four options under Rule 19.7 to remedy a violation of the rules: permit discovery, exclude the undisclosed evidence, grant a continuance, or enter an order as the court deems appropriate under the circumstances. Id. In some instances, a recess to interview the witness is sufficient. Lewis v. State, supra; Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978).

On Friday, September 17, 1993, before the trial began on Monday, September 20, 1993, the prosecutor provided this information to the defense attorneys:

• Johnny Martin would testify as to the identity of Nooner in the videotape and photographs.
• Two employees who worked at the Markham Liquor Store next to Fun Wash would testify that Russell Patton, who had been involved in a March 5, 1994 burglary at Fun Wash, was not the man in the videotape or photographs.
• Ron Andrejack would testify that the weapon used was consistent with a .22 Ruger semi-automatic pistol.
• Still photos taken from the videotape of the March 5, 1994 Fun Wash burglary would be introduced.

A diagram of the crime scene by crime scene specialist, Lisa Sakevicious, was not provided to the defense in advance of trial; nor were autopsy photographs.

The circuit court offered opportunities for interviews of witnesses whose names were provided on the Friday before trial commenced and allowed the same opportunity for reports and documentary evidence. The defense interviewed Johnny Martin during the trial before its cross-examination. The court also noted the fact that the defense had had Martin’s name from the prosecutor’s file for several months. With regard to the Markham Liquor Store employees, the circuit court observed that an objection to their testimony was not made until the Thursday after trial commenced —some six days after the defense was apprised of their identity and that they would testify. The circuit court ruled that was sufficient prior notice.

Though Ron Andrejack’s additional conclusion about the .22 Ruger semi-automatic gun was not provided until the Friday before trial, the circuit court stated that the defense had known Andrejack would be a witness for some time and had not interviewed him. In addition, the prosecutor had turned over Andre-jack’s opinion as soon as the prosecutor received it. The court also stated that the autopsy photographs were reasonably anticipated as part of the State Medical Examiner’s testimony, which the defense knew would be forthcoming at trial, and that the crime scene diagram was an instructional aid to the jury.

This court is well aware of the fact that the last minute exchange of evidence before trial is sometimes inevitable as trial preparation is brought to a head and comes to a close. The issue, however, is whether last minute preparation was abused in this matter and used as a ploy or subterfuge to gain advantage over the opposing party. See Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993). Stated another way, was there an attempt to conceal discoverable evidence from the defense? We have endowed the trial courts with great discretion over such matters, and the circuit court in this case assessed each assertion of a Rule 17.1(a)(i) violation carefully before making its decisions. The circuit court was reasonable in its resolution of these matters, and we cannot say that it abused its discretion. Moreover, this court does not recognize the doctrine of cumulative error when there is no error to accumulate. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).

IV IDENTIFICATION TESTIMONY

Two State witnesses — Johnny Martin and Jazmar Kennedy — testified that it was Nooner in the videotape and photographs. Martin testified that he saw Nooner several hours before the murder and that he was wearing a green jacket and a black-and-orange Miami baseball hat. Jazmar Kennedy testified that she recognized Nooner in the videotape and photographs wearing her sister Terri Kennedy’s green jacket along with his Miami baseball hat. She also knew it was Nooner by his physical appearance, how he stood, and his mouth.

Nooner contended at trial and now on appeal that this testimony invaded the province of the jury, was not helpful to the jury, and was a matter ultimately for the jury to decide. He further urges that this testimony violates the silent witness theory that the videotape speaks for itself. Both this court and the Arkansas Court of Appeals have considered appeals where an identification of the defendant or accomplice was made by a witness from photographs, but neither court has resolved the precise issues raised by Nooner in this appeal. See Young v. State, 308 Ark. 643, 826 S.W.2d 281 (1992); Hicks v. State, 271 Ark. 132, 607 S.W.2d 388 (1988)(bench trial); Washington v. State, 31 Ark. App. 62, 787 S.W.2d 254 (1990).

This issue turns to a large extent on Rule 701 of the Arkansas Rules of Evidence which limits lay witness opinion testimony to testimony which is rationally based on the perception of the witness and helpful to the determination of a fact issue and an understanding of the testimony. Such opinion testimony is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact. Ark. R. Evid. 704. Whether to admit relevant evidence rests in the sound discretion of the trial court, and the standard of review is abuse of discretion. See Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991); Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992).

In this case, the jury had before it the videotape and photographs taken the night of the murder, mug shots of Nooner taken within weeks after the murder, and the presence of Nooner in the courtroom at trial some six months after the murder. At trial, Nooner’s appearance differed from that in the mug shots. He wore glasses, his hair was longer, and he had a moustache.

Nooner argues that neither Martin nor Jazmar Kennedy had adequate knowledge of him so as to be able to make an identification in the videotape and photographs and, thus, satisfy the conditions of Rule 701. We disagree. Jazmar Kennedy had known Nooner for about three years and had seen him regularly. She had even lived in the same apartment with him for a period of time. Martin testified that he had seen Nooner on five or six occasions and had seen him just a few hours before the murder. Both witnesses recognized the jacket and cap in the videotape and photographs and associated the clothing with Nooner. These were special facts otherwise unknown to the jury. The two witnesses then positively identified Nooner as the man with Scot Stobaugh. We hold that these witnesses had ample contact with Nooner to develop opinions based on their perceptions and that the trial court did not abuse its discretion in permitting them to relay their opinions to the jury. See People v. Mixon, 180 Cal. R. 772, 129 Cal. App. 3d 118 (1982).

We next turn to the argument of whether this testimony was helpful to the jury. We believe that it was. The videotape and surveillance photographs are not crystal clear for identification purposes but are somewhat blurred and indistinct. Hence, any testimony from people who had a special familiarity with the suspect would qualify as an aid to the jury. See People v. Mixon, supra; Hardie v. Florida, 513 So.2d 791 (Fla. App. 1987).

In sum, we conclude that the clothing testimony and identification by Martin and Jazmar Kennedy were properly formed opinions based on a reasonable association with Nooner. This conclusion is abetted by the fact that Nooner’s appearance had changed at trial, with the glasses, longer hair, and moustache. As legitimate opinion testimony, the identification by the two witnesses did not violate Rule 704. Finally, we do not view this holding as running contrary to the silent witness theory, as Nooner urges. See Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571 (1982) (discussion of the theory). An identification of a person in a surveillance videotape, based upon the viewer’s special familiarity with the person and ample opportunity to observe him, does not vitiate this theory which permits the introduction of surveillance videotape based on context and without a sponsoring witness.

V. ENHANCED PHOTOGRAPHS

Nooner contends that it was error for the circuit court to allow into evidence photographs that had been “manipulated.” He further maintains that because the photographs were “altered,” the silent witness theory should not apply. The State counters that the photographs were not “altered” but were merely “enhanced” by giving more brightness and improving the contrast for better definition, as one does when adjusting a television picture.

We first emphasize that there is nothing before us that indicates that the still photographs of the suspect ultimately introduced into evidence were changed to include a face, features, or physique of someone not present in the original videotape. Indeed, the jury and the circuit court watched a slowed version of the original videotape and then saw the “enhanced” still photographs. Thus, the viewers of the tape had the opportunity to identify any distortion in the photographs of the depicted suspect.

In a pre-trial hearing regarding whether the photographs should be suppressed, state witnesses, including representatives of private firms, meticulously described their role in the enhancement process. Rupert Robertson, a video specialist for Arkansas Power & Light Company, testified that he slowed the original videotape down by making an exact duplicate of it in the Beta-cam format and then freezing each frame for several seconds. Tom Burney of Jones Productions testified that he took a still frame from the duplicate videotape, transferred it to his computer, and softened the pixels on the suspect’s face to remove the graininess. He did not add or subtract features from the original, except to “mosaic out” the victim. Carl Tillery of Color Masters testified that he took the computer disk prepared by Tom Burney and made still photographs. He multiplied the pixels per square inch to improve the contrast and adjusted the brightness in one of the still photographs. He also testified that he in no way altered the features in the photographs. Jeff Bishop from Camera Mart testified that he made still photographs from the original videotape. He only adjusted the brightness in the photographs.

Reliability must be the watchword in determining the admissibility of enhanced videotape and photographs, whether by computer or otherwise. We turn to the treatise cited by the Arkansas Court of Appeals in Fisher v. State, supra:

Relevant computer-enhanced still prints made from videotape recordings are admissible in evidence when they are verified as reliable representations of images recorded on master videotapes.... The master videotape used in producing the computer enhancement should also be admitted in evidence to help determine the reliability of the still picture.

3 C. Scott, Photographic Evidence § 1295 (2d ed. 1969 & Supp. 1994). In the case before us, the original videotape was introduced into evidence and viewed by the circuit court and jury, and the reliability of the enhanced photographs was attested to by multiple witnesses. There was no evidence of distortion to any photograph of the suspect. The circuit court properly ruled in a pre-trial hearing that so long as the process leading to the duplicate videotape and enhanced photographs was explained to the jury, it would allow their introduction. This was done during trial. There was no abuse of discretion under the facts of this case.

VI. MISCELLANEOUS ISSUES

Nooner advances myriad additional points for reversal, none of which has merit.

1. Arbitrary and Discriminatory

He urges that the death penalty was applied arbitrarily and capriciously and in a racially discriminatory fashion in his case. He cites us to a law review article in support of this contention and alludes to the fact that Nooner is black and the victim was white. See “Patterns of Deaths: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization,” 37 Stan. L. Rev. 27 (1984). The United States Supreme Court, however, has held that a discriminatory purpose must be proved on the part of the decision-maker in the defendant’s particular case. McClesky v. Kemp, 481 U.S. 279 (1987). Here, Nooner’s allegations were broad brushed, and no proof was offered to show how Nooner’s due process or equal protection rights were violated by a biased or arbitrary judge or jury. The motion was appropriately denied due to lack of proof.

2. Burden of Proof

Nooner contends that the burden of proof must be higher in death cases than the standard of beyond a reasonable doubt in order to meet the requirements of the U.S. Constitution and specifically the requirements of the Sixth, Eighth, and Fourteenth Amendments. State law, however, fixes the burden of proof for all criminal offenses as proof beyond a reasonable doubt. See Ark. Code Ann. § 5-1-111 (Repl. 1993). Nooner adduces no caselaw or other authority in contravention of this statute. The circuit court properly denied Nooner’s motion in this regard.

3. Overlapping

Nooner raises the spectre of unconstitutional overlapping between our capital murder statute and first degree murder statute in that the two statues blur and proscribe the same conduct. According to his theory, the statutes do not give proper notice of the criminal offenses and are void for vagueness. This court has discounted this argument on numerous occasions. See, e.g., Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991).

Nooner also contends that aggravated robbery is not enumerated as a predicate felony for capital murder in the governing statute, only robbery is. See Ark. Code Ann. § 5-10-101 (Repl. 1993). We adopt again the reasoning in McClendon v. State, 295 Ark. 303, 306, 748 S.W.2d 641, 642-643 (1988):

In support of this the appellant asserts that the underlying felony, aggravated robbery, is not one of the seven felonies that can support a charge of capital felony murder. This argument has been raised before. In Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981), we held the General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not. Aggravated robbery is still robbery.

Though § 5-10-101(a)(l) has been amended since the McClendon case, the quoted rationale continues to be convincing. The circuit court correctly denied this motion.

4. Mandatory Review

Nooner argues under two of his 15 points that Arkansas statutes dealing with capital murder (Ark. Code Ann. § 5-4-601, etseq. (Repl. 1993)) must be deemed unconstitutional for failure to provide for mandatory appeals of all death cases. Nooner has no standing to make this argument because he has exercised his right to appeal. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992) cert. denied, 112 S.Ct. 3043 (1992). What another defendant sentenced to death might do relative to appeal is immaterial. Id. The circuit court did not err in denying this motion.

5. Mandatory Death Sentence

Nooner maintains that our sentencing statutes demand a death sentence and eliminate consideration of mercy by the jury. See Ark. Code Ann. § 5-4-603 (Repl. 1993). We have previously held that this is not the case. See Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993); Johnson v. State, supra. We have underscored that our statute provides that a jury is free to sentence to life without parole if it finds the aggravating circumstances do not “justify” death. See Ark. Code Ann. § 5-4-603(b)(3) (Repl. 1993). There was no error on this point.

6. Narrowing of Death Crimes

Nooner argues that the definition of capital murder does not sufficiently narrow the crime for which the death penalty can be imposed. He specifically alludes to overlap between definitions of capital murder and first degree murder, which we have already discussed. The United States Supreme Court has held that the required narrowing of crimes susceptible to the death penalty may occur at the penalty phase of the trial. Lowenfield v. Phelps, 484 U.S. 231 (1988). This court has previously held that our statutes pass the narrowing requirement by limiting the death penalty to crimes involving sufficient aggravating circumstances. See Sheridan v. State, supra. There is no merit to Noon-er’s contention.

7. Victim’s Checking Account

Nooner argues that the circuit court erred in failing to exclude evidence of the victim’s checking account. He makes a Rule 403 argument in this regard that the relevance of the checking account and checks was outweighed by its prejudice to him. See Ark. R. Evid. 403. This is a matter of trial court discretion. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). Aggravated robbery was the underlying felony for the State’s charge of capital murder. It was essential that robbery be proved by the State. Antonia Kennedy testified to seeing the victim’s checkbook with his name on the checks in the possession of Nooner. She described the color of the checks as beige or tan. Her credibility was challenged by the defense as to the existence of the checking account and the color of the checkbook. A bank employee laid the foundation for a check which had the victim’s name and signature. Kennedy then testified that these checks looked like those she saw in the car with Nooner. As the evidence of the checks was part and parcel of the State’s evidence establishing robbery, we find no abuse of discretion in the court’s receiving this evidence.

8. Aggravating Circumstances

Nooner contends that evidence of a prior robbery conviction should not have been received as an aggravating circumstance because it resulted from a guilty plea under the First Offenders Act and the sentence imposed under that Act was inappropriate. The legitimacy of the conviction or sentence, however, is not what the statute requires; rather, it provides that an aggravating circumstance is one where a person has previously committed a second felony involving the use or threat of violence to another. Ark. Code Ann. § 5-4-604(3) (Repl. 1993). We note that Nooner does not contest the fact that he entered a guilty plea to robbery. We hold that the proof of a prior felony involving violence was sufficient.

Nooner further contends that there was no proof that the murder was perpetrated for pecuniary gain, another aggravating circumstance. See Ark. Code Ann. § 5-4-604(6) (Repl. 1993). He references a ring left on the victim’s finger, a necklace around his neck, and the Beretta in the parking lot as evidence of no theft or robbery. Other proof contravenes this assertion. There was proof that Stobaugh’s checkbook was taken, items from his pocket were on the laundromat floor, his hands were raised in the videotape, and Antonia Kennedy testified that Nooner told her that he demanded money from the victim. The evidence of pecuniary gain was clearly sufficient.

9. Victim Impact Testimony

For his final point, Nooner urges that the admissibility of victim impact testimony — specifically, the testimony of the victim’s mother, Paula Stobaugh — was irrelevant and prejudicial. He further maintains that the statute providing for victim impact testimony is vague. See Act 1089 of 1993, now codified at Ark. Code Ann. § 5-4-602(4) (Repl. 1993). We disagree.

The United States Supreme Court permits the States to authorize victim impact testimony. Payne v. Tennessee, 501 U.S. 808 (1991). The Court referred specifically to who might qualify as being impacted by a victim’s death and to the State’s legitimate interest in counteracting the defendant’s mitigating evidence and in reminding the jury that the victim was a person “whose death represents a unique loss to society and in particular to his family.” 501 U.S. at 825. Thus, the testimony may range from the victim’s family to those close to that person who were profoundly impacted by his death. In the case before us, only Mrs. Stobaugh gave impact testimony. We decline to hold Act 1089 of 1993 to be impermissibly vague.

We further decline to limit the applicability of Act 1089 to crimes committed after its effective date on April 13, 1993. What evidence is offered during the penalty phase of the trial and after a finding of guilt is more a matter of procedure. Legislative Acts respecting procedure may be applied to crimes which occurred prior to the Act’s effective date. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994). The Court in Payne v. Tennessee, supra, referred to victim impact evidence in the penalty phase as a procedural matter for the states to consider and remedy, if they saw fit:

The States remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.

501 U.S. 824-825. It is true that Act 1089 does permit other matters relevant to punishment, including, but not limited to, victim impact evidence. But by expanding the scope of permissible evidence during the penalty phase, the General Assembly has not expanded the scope of punishment or added a new aggravating circumstance. We hold that permitting this testimony under Act 1089 did not constitute an ex post facto law. See Mitchell v. Oklahoma, 884 P.2d 1186 (Okla. Crim. App. 1994).

VII. RULE 4-3(h)

The record has been reviewed pursuant to Supreme Court Rule 4-3(h) for reversible error, and none has been found. We do feel constrained to discuss an objection made by the defense which related to a statement made by the prosecuting attorney in closing argument during the penalty phase. This colloquy occurred before the jury:

What is this case about? It’s about a person who committed a robbery in 1987, and who you heard from his own father, from Mr. Nooner (sic), that 10 days after he got out of confinement, he committed another robbery, another theft and another murder.
MRS. O’KELLEY: Your Honor, I’m going to object. There’s not been any evidence that he ever committed a murder.
THE COURT: That will be sustained.

The jury retired to consider its verdict, and the defense moved for a mistrial on grounds that there was no evidence that Nooner had committed any other murder. The circuit court termed the comment a “slip of the tongue” and denied the mistrial motion. Defense counsel requested an instruction that arguments of counsel are not evidence. The court stated that it had already given that instruction but agreed to send another instruction into the jury room reiterating that arguments of counsel are not evidence. This was done.

While we have some question about the timeliness of the mistrial motion, we find no reversible error in what transpired in any case. The defense counsel’s objection was immediately sustained, and the jury was appropriately instructed a second time that counsel’s arguments were just that, argument, and not proof.

VIII. CONCLUSION

The jury found unanimously that two aggravating circumstances existed and no mitigating circumstances were involved. As already stated, we discern no error in these findings. We have recently reiterated that a weighing of aggravating and mitigating circumstances provides a check on arbitrariness. Porter v. State, 321 Ark. 555, 905 S.W.2d 835 (1995); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995).

Affirmed.

       The record indicates that the personal jewelry evidence was elicited during the penalty phase of the trial and not during the guilt phase. Its relevance is limited, therefore, to whether the murder was perpetrated for pecuniary gain — an aggravating circumstance.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BOSWELL, TUCKER & BREWSTER v. The Honorable Phillip SHIRRON
    95-964
    906 S.W.2d 315
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Boswell, Tucker & Brewster, by: John T. Holleman, for petitioner.
    No Response.
   Per Curiam.

Petitioner Boswell, Tucker & Brewster requests that a Writ of Prohibition be entered against the Honorable Phillip Shirron, a circuit judge who sits in the Seventh Judicial District of Arkansas. The petition alleges that Judge Shirron presided in a case styled Berry v. St. Paul Fire and Marine Insurance Company, which was concluded on May 19, 1995; that the senior member of the petitioning law firm met with Judge Shirron after the trial to discuss “concerns of specific improprieties” regarding the conduct of Judge Shirron during that trial; that following that meeting and on May 25, 1995, Judge Shirron entered a Uniform Order to transfer “all cases” in which the petitioner law firm represented any party to the other divisions of the Seventh Judicial District; that on June 1, 1995, petitioner law firm filed a motion for a new trial in the Berry case; that on June 2, 1995, Judge Shirron set aside his May 25, 1995 Uniform Order by means of a second Uniform Order. Petitioner now contends that once Judge Shirron recused from all Boswell Firm litigation, he lost jurisdiction over the firm cases and could no longer preside over those cases in his judicial capacity.

We direct that the parties brief this issue and in doing so provide this court with a full record and recitation of the material facts. We have only scant information before us today. For example, the alleged improprieties against Judge Shirron and the status of the Berry trial and the judge who presided over that trial are not part of the record filed with this court. Moreover, the Attorney General has not responded to the prohibition petition on behalf of Judge Shirron.

The Clerk of this court will set the briefing schedule.


text:
    Douglas COTHRINE v. STATE of Arkansas
    CR 95-447
    907 S.W.2d 134
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant pleaded guilty to two counts of delivery of a controlled substance on March 3, 1994. He was sentenced to a total of twenty-two and one-half years imprisonment. The sentence was imposed on March 3, 1994. Almost a year later, on February 22, 1995, the appellant filed a petition to correct an illegal sentence pursuant to Ark. Code Ann. § 16-90-111. The petition was denied and the appellant brings this appeal.

The trial court’s denial of relief is affirmed because the appellant’s petition was untimely. Criminal Procedure Rule 37.2(b) provides in pertinent part that all grounds for post-conviction relief, including claims that a sentence is illegal or illegally imposed, must be raised in a petition under Rule 37. See Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994). Arkansas Code Annotated § 16-90-111 (Supp. 1991), which permits the trial court to correct a sentence imposed in an illegal manner within one-hundred-twenty days after the receipt of the affirming mandate of the appellate court and which permits an illegal sentence to be corrected at any time is in conflict with Criminal Procedure Rule 37. Criminal Procedure Rule 37.2(c) provides that if the conviction was obtained on a plea of guilty, a petition is untimely if not filed within ninety days of the date of entry of judgment. Since the petition was not filed until nearly a year after the judgment, it was untimely. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Therefore, the appellant was not entitled to relief in circuit court.

This court has recognized a distinction between a petition for writ of habeas corpus and a petition for post-conviction relief under Rule 37. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993); Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). A state writ of habeas corpus cannot be substituted for post-conviction relief. The writ of habeas corpus will be issued only when the commitment is invalid on its face or the committing court lacked jurisdiction. Mackey v. Lockhart, supra; Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). This court in Waddle v. Sargent, supra, held that a defendant had the right to petition the trial court for a writ of habeas corpus based on the trial court’s alleged lack of jurisdiction even though his petition for a writ of habeas corpus was untimely filed.

Affirmed.


text:
    Eric WEST v. STATE of Arkansas
    CR 95-786
    907 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Kearney Law Offices, by: Jeffrey H. Kearney, for appellant.
    No response.
   Per Curiam.

Appellant, Eric West, through his attorney, Jeffery H. Kearney, asks this court to grant a writ of certiorari to complete the record in this case, or alternatively, to grant a new trial. We grant the writ to complete the record and deny the request for a new trial.

By petition, appellant states he was convicted by a death-qualified Chicot County Circuit Court jury of capital felony murder and sentenced to life imprisonment without possibility of parole. The partial transcript filed with the petition indicates appellant was also found guilty of two counts of attempted capital murder and sentenced to thirty years on each of those counts.

The judgment of conviction was filed on either December 2 or 5, 1994; the file stamp is illegible. The notice of appeal was filed on December 22, 1994, and the transcript was requested from the court reporter on that date by copy of the notice of appeal. On March 2, 1995, appellant’s counsel moved the trial court for a full seven-month extension due to counsel’s briefing schedule and the reporter’s transcription commitments. The trial court entered an order granting the full extension on the same date, March 2, 1995. The motion for extension does not indicate notice was given to opposing counsel as required by Ark. R. App. P. 5(b). There is no indication that the requisite hearing was held to determine the necessity of the extension. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995) (per curiam) (citing Harper v. Pearson, 262 Ark. 294, 556 S.W.2d 142 (1977)). The extension was therefore granted in violation of our rules of appellate procedure.

Appellant’s counsel filed this petition on September 11, 1995. Attached to the petition is a letter dated July 3, 1995, to appellant’s counsel from the court reporter, Val Dixon-Sims, stating that her storage room was vandalized on January 17, 1995. The letter indicated that, with respect to appellant’s case, the stenographic notes and exhibits were totally destroyed and the tapes were partially destroyed. Ms. Dixon-Sims stated in the letter that the record could not be transcribed.

Despite the aforementioned letter, there is no showing that the trial court has conducted any type of proceeding to determine whether it is possible for a record to be transcribed by any method. Moreover, we are not aware of any attempt to reconstruct the record in accordance with Ark. R. App. P. 6(d). Appellant’s counsel states in the petition that “it seems highly infeasible” to reconstruct the record because the prosecuting attorney has since become a circuit judge. Nevertheless, we remain unaware of any reason that would prevent the trial court, court clerk, court reporter, and counsel for both sides from attempting to reconstruct the record in this case. The fact remains that no attempt to do so has been made.

We therefore grant the writ of certiorari to complete the record in this case and direct the trial court, circuit clerk, court reporter, and counsel for the prosecution and defense to attempt to settle the record in this case. The alternative request for a new trial is denied.


author: Bradley D. Jesson, Chief Justice.

text:
    David PERRODIN v. Oley E. ROOKER
    94-1091
    908 S.W.2d 85
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      John Wesley Hall, Jr., for appellant.

      Charles A. Brown, P.A., for appellee.
   Bradley D. Jesson, Chief Justice.

Perrodin filed suit against Rooker alleging that Rooker had committed the torts of malicious prosecution and outrage. The trial court dismissed the action. We affirm the trial court’s decision.

This case arises out of an altercation which took place between the parties on February 1, 1991, on a Little Rock parking lot. The complaint which is the subject of this appeal is silent as to the facts giving rise to the incident. However, the pleading does reveal that, at some point after the altercation took place, Rooker swore out an affidavit at the prosecutor’s office which resulted in Perrodin being charged with aggravated assault and second degree battery. Perrodin was arrested, appeared in municipal court, and was bound over to circuit court. The case was submitted to a circuit court jury and Perrodin was acquitted of the charges.

Two lawsuits followed. The first was a negligence action filed by Rooker in Pulaski County Circuit Court, Seventh Division. Rooker alleged that he suffered injuries which were proximately caused by Perrodin’s negligence. The second lawsuit was filed by Perrodin in Pulaski County Circuit Court, Fifth Division, and attempted to set forth causes of action for malicious prosecution and the tort of outrage. Rooker moved to dismiss on three grounds: 1) the case should have been pursued as a counterclaim in the negligence action; 2) the complaint failed to state facts upon which relief could be granted; and 3) Rooker had probable cause as a matter of law to swear out the warrant against Perrodin. To support his argument on the third point, Rooker attached a municipal court certificate regarding a finding of probable cause, and two pages of testimony which, according to Rooker, was given by an officer “at the probable cause hearing.”

The cases were eventually consolidated, with Perrodin’s case being treated as a counterclaim. Once consolidated, the motion to dismiss was granted. The trial judge gave two alternative reasons for his ruling. He stated that dismissal of the complaint was proper under ARCP Rule 12, or that partial summary judgment could be granted pursuant to ARCP Rule 56. In reviewing the judge’s order, we note that he considered materials outside the pleadings to reach his finding that probable cause existed as a matter of law, thereby providing a basis for partial summary judgment. Alternatively, he found that a motion to dismiss both counts was proper in that the complaint failed to state sufficient facts to support a cause of action for either malicious prosecution or outrage. Because we agree with the trial judge’s conclusion that Perrodin’s pleading failed to state facts upon which relief could be granted, we will treat this case as a review of the ruling on the motion to dismiss and will not reach that part of the court’s order dealing with partial summary judgment. We also note that the negligence action was subsequently dismissed with prejudice, so the rights of all parties to the case have been concluded.

Perrodin’s first amended complaint, which was later converted to a counterclaim, reads, in pertinent part, as follows:

The Defendant filed an affidavit with the Pulaski County Prosecutor’s office claiming he had been assaulted and battered by the Plaintiff. The charges of the Plaintiff were false and the defendant failed to provide fair and accurate information to the prosecutor resulting in the charges being filed. Had the Defendant provided proper information to the prosecutor a finding of probable cause would not have been made.
The charge was made with malice and intent to harm the Plaintiff.
The Plaintiff was acquitted of the charges brought against him as a result of the affidavit filed by the Defendant. However, the stress of the trial caused Plaintiff to suffer chest pains requiring medical treatment.
The Plaintiff was damaged by the conduct of the Plaintiff [sic] in that he had to hire an attorney and pay legal fees and cost to defend himself, for his medical damages resulting in the stress and chest pains which were the direct result of the stress of the pending trial and mental anguish.
The actions of the Defendant in pursuing this course of action against the Plaintiff went beyond the scope of conduct considered reasonable by society at large to such an extent it should be considered outrageous.
The Plaintiff suffered mental anguish and pain beyond what a reasonable person could be expected to endure as a result of the conduct of the Defendant.

Arkansas is a state which requires fact pleading. ARCP Rule 8(a)(1). The pleader must set forth more than mere conclusions. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). A pleading is subject to dismissal if it fails to state facts upon which relief can be granted. ARCP Rule 12(b)(6). A pleading is also deficient if it fails to set forth facts pertaining to an essential element of the cause of action. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). When we review an order granting a motion to dismiss, we treat the allegations in the pleading as true and view them in a light most favorable to the party who filed the pleading. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994).

Two of the essential elements of malicious prosecution are malice and absence of probable cause for the proceedings instituted against the plaintiff. Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995); Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). Perrodin’s pleading fails to set forth any facts showing either of these elements. A mere statement that the defendant’s conduct was malicious is not sufficient. The mere statement that Perrodin was acquitted does not equate to a lack of probable cause. Further, the pleading sets forth no facts pertaining to the lack of probable cause or the alleged falsity of the information given to the prosecutor. See Hollingsworth v. First Nat’l. Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993).

Likewise, Perrodin failed to state sufficient facts to support his cause of action for outrage. In the case of Cordes v. Outdoor Living Ctr., 301 Ark. 26, 781 S.W.2d 31 (1989), we set out the elements of this tort: 1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; 2) the conduct was extreme and outrageous and utterly intolerable in a civilized community; 3) the conduct was the cause of the plaintiff’s distress; and 4) the plaintiff’s emotional distress was so severe in nature that no reasonable person could be expected to endure it. See also Hollingsworth, supra.

Although Perrodin’s pleading touches on these elements, it fails to set forth the facts which gave rise to these elements. It merely concludes that Rooker’s conduct was outrageous. In particular, there are no facts which show that Rooker intended to inflict emotional distress on Perrodin, or should have known that his actions would likely cause emotional distress.

Based upon the foregoing, we uphold the trial court’s decision to grant the motion to dismiss. As in Hollingsworth, since the dismissal was without mention of prejudice and Perrodin elected to appeal rather than to plead further, his complaint is considered dismissed with prejudice.

Affirmed.


author: Bradley D. Jesson, Chief Justice. Tom Glaze, Justice,

text:
    Ray TOWNSEND v. ARKANSAS STATE HIGHWAY COMMISSION
    95-300
    907 S.W.2d 726
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      T. David Carruth, for appellant.

      Robert L. Wilson, Chief Counsel, William L. Wharton, Charles Johnson, and Calvin R. Gibson, for appellee.
   Bradley D. Jesson, Chief Justice.

This is the third appeal in this case. It originated as an action by the Arkansas State Highway Commission to enjoin the appellant from maintaining a gate, a fence and cabins on a Commission right-of-way. Injunctive relief was denied, and the Commission brought a successful appeal. See Arkansas State Highway Comm’n v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993) (Townsend I). Our disposition of Townsend I, both in the written opinion and in the mandate, reflected that the case was reversed and dismissed.

After the mandate was issued on July 26, 1993, the Commission demanded that Townsend remove the structures. He refused to do so, and the Commission returned to the chancery court for relief. Under the same case number as the original action, the Commission filed a Petition to Enforce the Supreme Court Opinion and Mandate and for a Contempt Citation. The chancellor entered a decree on November 2, 1993, in which she ordered Townsend to remove the structures within twenty days. However, when Townsend asked that the decree be set aside, the chancellor did so. Upon reflection, she determined that she was powerless to act because the mandate provided the case was reversed and dismissed, rather than remanded.

That ruling gave rise to the second appeal. In Arkansas State Highway Comm’n v. Townsend, 317 Ark. 581, 879 S.W.2d 447 (1994) (Townsend II), we held that Townsend was wrong in contending that our use of the language “reversed and dismissed” deprived the chancellor of the power to enforce our holding in Townsend I. We stated the following:

In Townsend I, after reviewing this case de novo, we held that the chancery court was wrong in denying the Commission an injunction to force Townsend to remove his structures from the right-of-way — indeed, this language was very clear. Townsend claims that the phrase ‘reversed and dismissed’ should control over the opinion’s language, which, therefore, would deny the chancery court jurisdiction.
Granted, our signals to the trial court were not crystal clear in Townsend I as we reversed and dismissed the decree of the chancery court when we should have reversed and remanded the matter. However, the body of the opinion was quite clear in its intended result, despite our stated disposition.

Arkansas State Highway Comm’n v. Townsend, 317 Ark. at 584-85; 879 S.W.2d at 449.

We concluded our Townsend II opinion by directing that the chancellor’s first decree be reinstated. In response to that direction, the chancellor re-entered her decree on September 6, 1994. The decree gave Townsend twenty days to remove the structures from the right-of-way and also ordered Townsend to pay $487.00 in costs awarded by our Townsend II mandate. No appeal was taken from that decree.

Twenty days passed with no action by Townsend. The Commission filed a petition seeking a contempt citation, and Townsend was ordered to appear at a show cause hearing on November 1, 1994. At the hearing, Townsend argued that Townsend II was “bad law” and that any proceedings after Townsend I were barred by res judicata and law of the case. The chancellor gave no credence to that argument, saying that she specifically had been directed by this court to re-enter the decree ordering Townsend to remove the structures.

Townsend was held in contempt of the September 6 decree, with the proviso that he could purge himself of the contempt by removing the structures and paying the $487.00 within ten days of the hearing. Failing that, he would be sentenced to thirty days in the county jail. When Townsend still did not comply, the chancellor issued a pick-up order, directing the sheriff to arrest Townsend. Townsend brings his appeal from the contempt order and the pick-up order.

On appeal, Townsend argues that our mandate in Townsend /, which declared that the case was reversed and dismissed, is law of the case and no further proceedings may be had in light of the dismissal. We addressed that very argument in Townsend II, where we were asked to consider the effect of our inadvertent dismissal following the first appeal. We held unequivocally that the content of the opinion was clear in awarding relief to the Commission and that the mistaken language in our disposition did not deprive the chancellor of the power to enforce our holding.

In short, the argument that Townsend makes in this appeal was addressed in Townsend II. We recognized that the case should have been remanded rather than dismissed, but we did not waiver from our Townsend I holding. Any questions regarding our mistaken dismissal were answered in Townsend II. This being a chancery case, we had the power to award relief de novo. We did so, and directed the chancellor to re-enter her November 2nd decree. Upon remand, she had no choice but to follow our direction. See Carroll Electric Coop. Corp. v. Benson, 319 Ark. 68, 889 S.W.2d 756 (1994), where we said the following:

upon remand, a chancery court has no power to enter any decree except that directed by the Supreme Court, and it has no power to change or extend the mandate of the Supreme Court. The directions of the Supreme Court upon reversal and remand in an equity case are the law of the case and the guide for the lower court in entering the decree, (citations omitted)

Id.., at 71, 889 S.W.2d at 758.

Townsend’s argument in this appeal is simply an invitation to us to reconsider and overrule Townsend II. We decline to do so.

Affirmed.

Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting.

There is something terribly unjust about the majority court’s opinion. This court affirms the trial court’s finding Ray Townsend in contempt of court and Townsend now must serve thirty days in jail as punishment. Such punishment is a direct result of this court’s error in the Arkansas Highway Commission’s first appeal. See Arkansas State Highway Comm’n v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993) (Townsend I).

In Townsend I, this court erroneously reversed and dismissed the appeal instead of remanding the case for further proceedings. The Arkansas Highway Commission failed to ask this court to correct its mandate. Instead, the Commission filed a new petition seeking injunctive relief from the same chancellor who held she was powerless to act since our court had previously dismissed the Commission’s action. In the Commission’s second appeal, this court fell short of acknowledging its error, but conceded its “signals” had not been “crystal clear.” Arkansas State Highway Comm’n v. Townsend, 317 Ark. 581, 879 S.W.2d 447 (1994) (Townsend II). Then, in an attempt to correct its “error” or “lack of clarity,” this court concluded it would treat the Commission’s new petition “as a new case,” and it “assumed jurisdiction of the case independently of this court’s earlier mandate.” This court then remanded the Commission’s “new case” directing the chancellor to re-enter its first order in Townsend I. I disagreed with our court’s decision, opining that this court should have acknowledged the mistake in its Townsend I mandate and forthrightly corrected it. See Glaze, J., dissents, 317 Ark. at 585, 879 S.W.2d at 450.

After this court remanded Townsend II, the chancellor reinstated her first order under which she gave Townsend twenty days to remove structures located in the Commission’s right-of-way. When Townsend failed to remove them, the chancellor ultimately ordered Townsend to serve thirty days in jail, from which Townsend brought this appeal.

First, I believe Townsend’s argument is valid when asserting Townsend I, not Townsend II, is the law of this case. If that is true, all pleadings filed after this court’s initial mandate in Townsend I should have been dismissed. See Arkansas Baptist College v. Dodge, 189 Ark. 592, 74 S.W.2d 645 (1934); Watkins v. Acker, 195 Ark. 203, 111 S.W.2d 458 (1937). Second, I agree with Townsend that Townsend II is “bad law” and assuredly should be overruled.

The foregoing legal points aside, the chancellor, Townsend and the Commission have voiced puzzlement concerning the directions given by this court in Townsend I and II. I think it is unfair to send someone to jail because our court’s clear error later triggered confusion as to how the parties should proceed. At the least, Townsend’s punishment should be mitigated, considering the circumstances in this case. In this respect, I would suspend Townsend’s jail punishment. See Jones v. Jones, 287 Ark. 72, 696 S.W.2d 727 (1985); Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984); see also Folsom v. State, 216 Ark. 31, 224 S.W.2d 44 (1949). No one, including the Commission, can be harmed by such a ruling, particularly since the Commission conceded in oral argument that it could otherwise enforce its right to have the structures removed from its right-of-way.

For the reasons above, I respectfully dissent.

Corbin, J., joins this dissent.


author: Robert H. Dudley, Justice.

text:
    Durrell CHILDRESS v. STATE of Arkansas
    CR 94-1222
    907 S.W.2d 718
    Supreme Court of Arkansas
    Opinion delivered October 16, 1995

      William R. Simpson, Jr., Public Defender, by: Llewellyn J. Marczuk, Deputy Public Defender.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Robert H. Dudley, Justice.

Appellant Durrell Childress and Everett Foreman decided to rob Henry Callanen, an off-duty policeman, while he was transporting money to a bank. Foreman, who formerly worked at the McDonald’s Restaurant on West Roosevelt in Little Rock, knew that the restaurant closed at midnight on Fridays, knew that it was customary for the restaurant manager to hand Officer Callanen deposit bags containing the day’s receipts, knew that the off-duty policeman would then take the bags to his car and drive to the bank. Appellant possessed a pistol.

Just before midnight on a Friday night, appellant and Foreman got in Foreman’s car, drove to the area of the restaurant, parked away from the restaurant, got out, skulked close to the restaurant, hid behind a menu board and some shrubs that are located in a drive-through area adjoining the parking lot, and waited for the off-duty officer to take the deposit bags to his car. Three people in a nearby house saw them and sensed what was about to happen. One phoned the restaurant to give warning. As the phone rang, Anthony Brown, the assistant manager of the restaurant, was handing the deposit bags containing $2,700 to Officer Henry Callanen and setting the alarm system for closing.

Carla Jackson was in a car on the parking lot and saw Officer Callanen come out of the restaurant with the bags and walk toward his car. She saw someone in the drive-through area and heard a shot just as Callanen was approaching his car. She looked up again, saw a person standing close to Officer Callanen, and heard someone say “drop it.” She heard two more shots.

Appellant told his friend Tenora Riles that he and Foreman went to the restaurant to commit the robbery and told the officer to “drop the money,” but instead the officer fired his pistol. He said that he then started running and threw away his pistol.

Later that night appellant gave his girlfriend Lottie Sims a jacket that had the word “Raiders” emblazoned on it. It was identical to a jacket that witnesses said was worn by one of the robbers. Sims said that appellant told her he wanted money to buy a car and to support his new child.

Appellant gave three additional incriminating statements; the first was non-custodial, and the next two were custodial. In the third of these statements, he admitted all the details of the crime. Appellant and Foreman were jointly charged, but tried separately. In this case, appellant was found guilty of capital murder and aggravated robbery and was sentenced to life imprisonment without parole for the capital murder. We affirm the judgment of conviction.

The evidence of guilt was overwhelming, and appellant does not question the sufficiency of the evidence. Rather, he raises eight points of appeal involving both pre-trial and trial rulings. We categorize the points into five parts.

I.

Appellant’s first point of appeal involves the police transcription of his first in-custodial statement. In Callaway v. State, 258 Ark. 352, 524 S.W.2d 617 (1975), we said the issue of undue emphasis in transcriptions had never before been presented to us, but the issue was procedurally barred in that case. Two years later, in Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977), we decided the issue. We cited the cases that reflected a division among courts, and held that a police transcription of a recorded statement was admissible (1) when it was shown to be accurate and (2) when it would have been necessary to replay the recording for the jurors several times had the transcription not been used. We did not hold that those two occasions were the only times a police transcription might be admissible. They may be admissible on other occasions, such as when the recording includes inadmissible materials and it would be best to delete the inadmissible materials from a written transcript rather than from the recording. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), we held that an accused must be supplied a copy of a police transcription of a confession and the original tape so that they could be compared. In Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993), we held that a trial court had discretion to determine if a transcription was accurate and we would not reverse a finding of accuracy absent an abuse of discretion.

In Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987), the taped statement was inaudible in part and the police transcription so provided. We upheld its admission because the trial judge gave a cautionary instruction that the police transcription was to be used only as an aid in understanding the recording.

Here, appellant did not object to the use of police transcriptions of the two incriminating statements. Rather, he only objected to the use of certain parts of the transcript of the first statement. His objection was that, in places, the transcript reflects that at the time Officer Callanen came out of the restaurant, appellant said to Foreman, “Now man, now.” Appellant contended the transcript should reflect that he said, “Naw man, naw,” and he proffered a transcript so stating. He also proffered a transcript reflecting that part of the statement was “unintelligible.” Two detectives testified that the tape and the transcript were both accurate. Appellant testified that the transcript was in error and the officers misunderstood him. The trial court listened to the recording, concluded that the police transcription was correct, and allowed the jurors to use it as a guide while they heard the recording of the actual statement. The trial court stated that appellant could argue to the jury that the transcript was in error.

The issue is one of authenticity. Rule 901 of the Arkansas Rules of Evidence governs authenticity and provides that authenticity may be determined by a trial court by comparing an authenticated item with a copy. The trial judge heard the testimony and compared the transcript with the taped statement and made his finding. Appellant offers nothing on appeal other than his testimony and the tape to show that the trial court abused its discretion in admitting the transcript. We cannot say that the trial court abused its discretion in weighing the evidence presented.

In Harvey, 292 Ark. at 271, 729 S.W.2d at 408, we said that we have reservations about admitting police transcripts into evidence. We still have that concern, and in that vein we note that Rule 901 provides for proof when, as here, there are characteristics of speech or dialect that might be misunderstood. Here the trial court had nothing but the testimony of the detectives, the testimony of appellant, and the tape. There is no proof indicating whether a characteristic of ethnic speech or the dialectic pronunciation of a word might show that the detectives and the transcript were in error.

In addition to comparing the tape to the transcript, the trial court gave the following cautionary instruction to the jury:

I need to instruct you, ladies and gentlemen — we’re about to play an audio tape, as you well know. I’m instructing you that in the case of any variation that you might perceive between the audio tape and the typed transcript that we’re going to let you read, you’re to be guided by the tapes themselves, you understand, of what you hear and not by the transcript that you’re going to be handed to read.

Moreover, appellant argued to the jury that the transcript was in error. Under these conditions, even if the trial court’s ruling had been in error, it is doubtful that appellant would have been able to show prejudice. See Leavy, 314 Ark. at 235, 862 S.W.2d at 833.

II.

Detective Joe Oberle of the Little Rock Police Department testified that he went to appellant’s mother’s home to search for the weapon that was used to kill Officer Callanen. In the presence of Oberle, Ms. Childress phoned appellant, who was in the Living Hope Institute, a division of Doctors Hospital in Little Rock, and asked what he had done. Detective Oberle testified that Ms. Childress said, “Why didn’t you tell me?” and then instructed appellant to get on the phone and tell Oberle what he needed to know. Oberle took the phone, identified himself as a policeman, and asked, “What’s up?” Appellant told him that Foreman shot Callanen. Oberle asked about the pistol, and appellant responded that he did not know where it was. This conversation took place about 1:00, and appellant’s first custodial statement took place at about 3:00 that same afternoon.

Appellant argues on appeal that the two subsequent custodial statements should have been suppressed because Detective Oberle did not give him a Miranda warning on the phone, and the two custodial statements were the result of his telephone statement to Detective Oberle; thus, they were “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471 (1963).

The State did not attempt to introduce the voluntary non-custodial, but unwarned, incriminating statement by appellant, and on that we make no comment. We address only the point argued.

In Oregon v. Elstad, 470 U.S. 298 (1985), the Court addressed this issue, and we paraphrase the opinion as it applies to the case before us. The “fruit of the poisonous tree” doctrine assumes the existence of a constitutional violation. Violations of the Fourth Amendment’s prohibition against unreasonable search or seizure are constitutional violations. Thus, when there is a Fourth Amendment violation, and a subsequent confession, it should be excluded unless intervening events break the causal connection between the Fourth Amendment violation and the confession so that the confession is “sufficiently an act of free will to purge the primary taint.” Taylor v. Alabama, 457 U.S. 687, 690 (1982) (quoting Brown v. Illinois, 422 U.S. 590, 602 (1975)).

In the case before us there is no allegation of a Fourth Amendment violation. Rather, the allegation is that appellant was not given a Miranda warning before he gave the initial non-custodial statement and that this tainted the two later custodial statements. The Self-Incrimination Clause of the Fifth Amendment does not proscribe voluntary confessions. “Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. . . . Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” United-States v. Washington, 431 U.S. 181, 187 (1977). In Miranda, the Court presumed that interrogation in custodial circumstances is inherently coercive and statements made under those circumstances are inadmissible unless the suspect is told of his Miranda rights and intelligently decides to forego those rights. New York v. Quarles, 467 U.S. 649, 654 (1984); see also Miranda v. Arizona, 384 U.S. 436 (1966). However, the Miranda rights are “not themselves rights protected by the Constitution but instead measures to insure that the right against compulsory self-incrimination [is] protected.” Michigan v. Tucker, 417 U.S. 433, 444 (1974). Thus, a procedural Miranda violation is not necessarily a violation of the Constitution, and the “fruits” doctrine may not be applicable. Based on the foregoing, the Court in Oregon v. Elstad held that the Self-Incrimination Clause of the Fifth Amendment does not require the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary, but unwarned, admission from the suspect. The same reasoning is fully applicable to the case at bar.

III.

Appellant’s third point of appeal involves a ruling the trial court made during the direct testimony of Ronnie Smith, one of the officers who took appellant’s two custodial statements. On direct examination in the State’s case-in-chief, a deputy prosecutor asked Smith the reason the detectives took a second statement from appellant. Smith replied that after taking the first custodial statement they took the statement of appellant’s co-defendant, Foreman, and they came to the conclusion that appellant had been less than forthright in his first statement. Appellant objected and moved for a mistrial as follows: “Here’s now the inference that there’s other evidence that’s being held from this jury because we cannot play Mr. Foreman’s statement to this jury. I’ll move for a mistrial.” The trial court denied the motion for a mistrial. Shortly afterwards, appellant moved for “some type of admonishment to the jury.” The trial court denied the motion.

On appeal, appellant contends that the trial court’s evidentiary ruling was in error because the comment about the co-defendant’s statement denied his Sixth Amendment right to confront the co-defendant, and the testimony that appellant was not forthright constituted an impermissible comment on the evidence. The arguments are procedurally barred. Appellant’s objection was to the “inference” that evidence was being withheld from the jury. An objection that there was an “inference” that evidence was being withheld neither raised nor embraced a denial of confrontation or the Sixth Amendment argument. The trial court was never apprised of the Sixth Amendment argument or a comment on the evidence argument, and we will not consider alleged errors that were not brought to the attention of the trial court. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).

IV.

Later, during the presentation of appellant’s case, a bench conference was held. The State objected to the proposed testimony of some of appellant’s witnesses. The trial court apparently realized that extensive argument was to be made and stated to the jury: “We’ve got to take a recess here while we discuss some evidence that may or may not be coming in the case, so we’re going to take a short recess.” Appellant objected and contended that the statement constituted a comment on the evidence. On appeal, he again contends that the statement constituted a comment on the credibility of the witnesses.

The only way to determine the real meaning or true import of any isolated remark is to consider the place in the trial and the context in which it was made. Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981). Here, the remark was made after a bench conference and the trial court realized the arguments would be more fittingly heard in chambers. The context of the remark informed the jurors that they could take a short recess, the reason they could have the recess, and did not specifically refer to any testimony or intimate that any witness was credible or not credible. It was not a comment upon the evidence.

The cases cited by appellant are factually distinguishable. In McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944), the trial judge said that to grant the appellant’s motion to question a witness “would be just silly.” In West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973), the trial judge asked witnesses how much they had been paid to come up with some information. In both cases this court held that these remarks could only have the effect of prejudicing the appellants in front of the jury. Here there is no such showing.

V.

Appellant’s next four points of appeal involve evidentiary rulings.

A.

One of these four points concerns a ruling during cross-examination of appellant about a red bandanna and gang activity. Prior to trial, appellant filed a motion asking that there be no mention at trial of the fact that he was a member of a gang. The deputy prosecutor replied that the confession contained a reference to appellant’s gang activity and the statement was admissible. The trial court agreed, but cautioned the deputy prosecutor not to mention such activity “unless there’s some reason that involves the trial.”

Testimony in the State’s case-in-chief established that a red bandanna was found near the crime scene. After the State rested appellant took the witness stand and, on direct examination, stated that Foreman had a red bandanna tied around his neck at the time Foreman shot the officer. His counsel asked him to explain the red bandanna, and appellant replied, “Well, you know, like I said before, I used to be a ‘Blood’ [gang member]. You know, he had his bandanna [gang symbol] on.” On cross-examination, a deputy prosecutor questioned appellant about the red bandanna found at the crime scene and asked appellant if he was a “Blood.” Appellant’s objection to relevance was overruled. Appellant replied that he formerly was a member of the “Bloods.” The deputy prosecutor then asked appellant if he carried a red bandanna in his pocket. Appellant’s objection to relevancy was overruled.

Appellant testified on direct that the red bandanna found at the crime scene was not his, but rather belonged to Everett Foreman. He raised the issue of the red bandanna’s ownership; thus, he could not complain about the prosecutor’s cross-examination of him on that issue. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986). A party cannot complain about that for which he is responsible. Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990).

As a subpoint of this assignment, appellant additionally argues that the State was attempting to impeach him with prior criminal acts, see A.R.E. Rule 404(b). However, this argument was not made to the trial court, as his objection was to “this mentioning of gangs.” It is well settled that a party cannot change argument on appeal. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Even in cases such as this where the sentence is life without parole, our duty is only to examine the record for error on objections decided adversely to appellant, not to address arguments that might have been made. See Ark. Sup. Ct. Rule 4-3(h).

B.

Appellant’s next point involving an evidentiary ruling came about as follows. Titonia Butler testified that she knew Officer Callanen, lived near the McDonald’s restaurant, saw the robbers hiding, sensed what was about to happen, saw the robbery, heard the shots, called an ambulance, went to the restaurant, and saw Officer Callanen lying on the parking lot. She gave a statement to the police soon after they arrived. At trial, on cross-examination, she admitted that her testimony was inconsistent with part of her statement given the night of the murder. On redirect, she attempted to explain the inconsistencies by testifying that she was in shock after witnessing the murder. The deputy prosecutor asked how she felt seeing Officer Callanen, someone she knew and liked, lying on the ground. Appellant objected on the basis of relevance. The trial court overruled the objection.

The basic function of redirect examination is to enable the witness to explain and clarify any relevant matters that have been weakened, confused, or obscured by cross-examination, and to rebut the discrediting effect of any damaging statements or admissions or to correct any wrong impression that may have been created. Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991). A trial judge may exercise discretion in allowing the party to evoke on redirect examination some matter which is relevant to his case or defense and which through oversight he has failed to elicit on direct. Easter, 306 Ark. at 455, 815 S.W.2d at 926; see also John William Strong, McCormick on Evidence § 32 at 108 (4th ed. 1991). A skillful re-examiner, then, may “draw out the sting of lethal cross-examination” by eliciting a reply on direct which explains matters of impeachment of the cross-examiner. Strong, supra, at 108-09. Here, prosecutor’s question on redirect was designed to give the witness the opportunity to explain the reason she was upset and under stress when she gave her initial statement. The testimony was relevant to an assessment of her credibility as a witness. Credibility is a fact of consequence to the determination of an action under A.R.E. Rule 401.

C.

Tracy Brooks, co-defendant Everett Foreman’s girlfriend, gave a statement to police in which she said that appellant planned the robbery and Foreman shot Officer Callanen. She said that she heard appellant talk about robbing McDonald’s on several occasions.

Ms. Brooks later avoided service of a subpoena and was so evasive that the trial court found it necessary to cite her for contempt. Ultimately she was brought into court on a forthwith subpoena. She unsuccessfully sought to invoke the Fifth Amendment. Subsequently the State granted her immunity, but still she refused to testify.

Judy Rudd, an attorney who independently contracts with the State of Arkansas to handle civil commitments for the Public Defender’s office, privately represented Ms. Brooks and advised her to take the Fifth Amendment. Appellant contends there was an inherent conflict of interest in allowing Ms. Rudd to represent Ms. Brooks, because his attorney was employed by the same Public Defender’s office.

In Burger v. Kemp, 483 U.S. 776 (1987), the Supreme Court acknowledged there is a possibility that prejudice will result when partners represent co-defendants, and the risk is increased when the two lawyers cooperate with one another in the planning and conduct of trial strategy, although this does not justify an inflexible rule that presumes prejudice in all cases. Id. at 783. The test for prejudice is whether the attorneys “actively represented conflicting interests.” Id. In Burger, the Court said that it had in the past “assumed without deciding” that two law partners were considered one attorney. Id.; see also Holloway v. Arkansas, 435 Ark. 475, 482 (1978).

Here, Ms. Rudd and appellant’s attorney actively represented conflicting interests. Therefore, the question is whether Ms. Rudd and appellant’s attorney should be considered to have a relationship comparable to being “partners.” The trial court held an extensive hearing on the issue and made a finding of fact that they were not in such a relationship.

A helpful definition of the word law “firm” is contained in the comment to Model Rules of Professional Conduct 1.10. This rule deals with imputed disqualification of lawyers in the same firm who represent adverse interests. The comment provides that the term “firm” includes a legal services organization such as the one involved in this case. However, it goes on to say:

Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other should depend on . . . the specific facts of the situation.

Comment to Model Rules of Professional Conduct 1.10.

Here, there was testimony that Ms. Rudd and appellant’s attorney were employed in different units of the Public Defender’s office. Ms. Rudd handles civil commitment cases, and she testified that she did not have access to any of the other files or to any other information about the criminal cases. Her supervisor, Bill Simpson, testified that she was not involved in criminal cases, but that she was employed only to handle civil commitments. Ms. Rudd’s representation of Ms. Brooks was in her private practice, and she was not paid by the Public Defender’s office to represent Ms. Brooks. Given these specific facts, we cannot say the trial court’s finding of fact was clearly erroneous.

D.

Appellant next contends that the trial court erred in refusing to grant a mistrial because of the trial court’s cumulative error. We have stated that we will “entertain an argument of cumulative error in rare and egregious cases.” Vick v. State, 314 Ark. 618, 617, 863 S.W.2d 820 (1993). We have reversed only when the cumulative effect of the errors committed denied the defendant a fair trial. See Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993) (finding that net effect of “overly zealous” comments by prosecutor, unsupported by evidence, combined to taint jury’s decision); Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986) (reversing when there were twenty-eight objections by appellant to leading questions, appellee was repeatedly admonished by trial judge and objections sustained but appellee’s conduct not stopped); Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978) (reversing when cumulative errors, omissions, and deficiencies in warrant were sufficient to undermine court’s confidence in it). There was no combination of errors in this case that deprived appellant of a fair trial.

An examination of the transcript has been made in compliance with Rule 4-3(h) of the Rules of the Supreme Court, ánd there is no reversible error on any other ruling adverse to appellant.

Affirmed.