author: Donald L. Corbin, Justice.

text:
    Anthony Russell McGAUGHY v. STATE of Arkansas
    94-1224
    906 S.W.2d 671
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Matthews, Campbell & Rhoads, P.A., by: David R. Matthews and Edwin N. McClure, for appellant.

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

Appellant, Anthony Russell McGaughy, appeals the order of the Benton County Circuit Court denying his motion to transfer the charges against him to juvenile court. This interlocutory appeal is permitted by statute, Ark. Code Ann. § 9-27-318 (Repl. 1993), and jurisdiction is properly in this court. Ark. Sup. Ct. R. l-2(a)(12). We find no error in the circuit court’s order denying the transfer and affirm.

Appellant was charged in circuit court by information with some fourteen or fifteen crimes ranging from misdemeanor theft to felony aggravated robbery. The information alleged appellant and two juvenile accomplices engaged in a crime spree beginning on December 10, 1993, and continuing until January 4, 1994, in the course of which they armed themselves with a knife or pellet gun resembling an automatic pistol, approached victims in their vehicles, and stole their purses, money, and other personal property. Appellant and his accomplices ended their crime spree by fleeing from law enforcement officers and engaging in a high-speed vehicle chase followed by a foot chase. Thereafter, appellant turned himself in to law enforcement authorities. Appellant was born on March 21, 1976. He was therefore aged seventeen years when the alleged crimes occurred.

In its order, the trial court found that appellant was charged with fourteen crimes, many of which involved the use of violence or intrusion into the sanctity of the home or appurtenances thereto. The order further stated that appellant had no history of adjudicated offenses and that rehabilitation in the juvenile system was improbable given appellant’s degree of mental maturity and his then-current age of eighteen years, which prevented him from being committed to the youth services center. See Bright v. State, 307 Ark. 250, 819 S.W.2d 7 (1991).

The first of appellant’s two arguments for reversal is that the trial court did not consider all of the factors enumerated in section 9-27-318(e) in reaching its decision to retain jurisdiction of his case. Specifically, appellant contends the trial court erroneously concluded the crimes charged, although serious offenses, involved the use of violence and failed to consider the remaining statutory factors. To support this contention, appellant relies on Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992), and Bright, 307 Ark. 250, 819 S.W.2d 7, for the proposition that aggravated robbery may be committed without the use of actual violence.

Initially, we note that appellant’s reliance on Johnson and Bright is misplaced. Johnson merely acknowledged, after comparing aggravated robbery to murder, that the crime of aggravated robbery could possibly be committed without the actual use of violence. As discussed below, however, the actual use of violence was present in the instant robberies and aggravated robberies. Bright did not involve aggravated robbery; rather, it involved burglary and felony theft of property, crimes which this court stated involved the use of violence against property, though not against persons. Both Johnson and Bright were cases in which the circuit courts denied transfers to juvenile courts and we affirmed both decisions.

In deciding whether to transfer a case to juvenile court, the factors to be considered by the circuit court are “the seriousness of the alleged offense, whether violence was involved, and whether the alleged offense is part of a pattern of adjudicated offenses, along with the prior history, character traits, mental maturity, and any other factors that reflect upon the juvenile’s prospects for rehabilitation.” Myers v. State, 317 Ark. 70, 72, 876 S.W.2d 246, 248 (1994) (citing section 9-27-318(e)). A trial court is not required to give equal weight to each factor, nor is proof required to be presented with regard to each factor. Pen nington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). We will not reverse a decision on a motion to transfer unless it is clearly erroneous. Myers, 317 Ark. 70, 876 S.W.2d 246.

According to the criminal information, appellant was an accomplice to two aggravated robberies and two burglaries, all involving situations where appellant’s accomplices wore ski masks, were armed with deadly weapons or weapons that appeared to be deadly, and demanded money from victims while in their vehicles, at least one of which was inside a garage. The information also alleged that appellant acted as principal in four additional felonies, one of which was a robbery whereby appellant wore a ski mask and attempted to take the victim’s purse by force. While the testimony indicated appellant may not have obtained the purse, this court has held that a criminal information may provide a sufficient basis for a trial court’s decision on a transfer motion. Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992) (citing Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991)). Again, we note that the trial court need not give equal weight to each statutory factor. Pennington, 305 Ark. 312, 807 S.W.2d 660.

In this case, the trial court did not err in concluding the aggravated robberies were serious offenses involving the use of violence. It is obvious that violence is used when one wears a ski mask and takes money by force from a victim. Nor did the trial court fail to consider the other statutory factors. The order clearly recognized that appellant had no history of adjudicated offenses. The order also clearly stated that appellant’s prospects for rehabilitation were improbable given his age and the corresponding lack of a juvenile court’s ability to enforce any punishment. This court has considered a defendant’s age and corresponding lack of ability to be committed under juvenile jurisdiction an important factor supporting the denial of a transfer to juvenile court. Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). Although there was countervailing evidence of appellant’s prospects for rehabilitation from numerous witnesses, including appellant’s probation officer, his high school principal and superintendent, the mother of one of his friends, his pastor, and his mother, we cannot say the circuit court was clearly erroneous in retaining jurisdiction since it is not required to give equal weight to each factor.

As his second argument for reversal, appellant contends the trial court erred in considering factors other than those enumerated in section 9-27-318(e). Appellant contends the trial court erred in considering appellant’s demeanor in the courtroom during the hearing on the motion to transfer. Appellant makes no convincing argument that a defendant’s demeanor at the transfer hearing is not within the factors enumerated in section 9-27-318(e). To the contrary, we conclude a defendant’s demeanor at the transfer hearing is relevant to the factor of character traits indicating a juvenile’s prospects for rehabilitation. See section 9-27-318(e)(3). We cannot say the trial court was clearly erroneous in observing appellant’s demeanor in the courtroom during the transfer hearing.

We find no error in the order denying the transfer and affirm.


source: Caselaw Access Project

license: Public Domain

text:
    John Floyd YOUNG v. STATE of Arkansas
    CR 95-209
    906 S.W.2d 280
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      David E. Smith, for appellant.

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

Appellant, John Floyd Young, appeals the judgment of the Saline County Circuit Court convicting him for the second time of the capital murder of Raymond Jacobs and sentencing him to life in prison without parole. Appellant’s previous conviction of the same crime was reversed for two errors at the first trial relating to the admission of luminol test results and the admission of testimony acquired pursuant to appellant’s grant of immunity. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994). The sole point of error raised in this appeal is the denial of appellant’s motion for directed verdict. We find no error and affirm the judgment.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). When reviewing the sufficiency of the evidence on appeal, the appellate court does not weigh the evidence but simply determines whether the evidence in support of the verdict is substantial. Young, 316 Ark. 225, 871 S.W.2d 373. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id. In determining whether there is substantial evidence, the appellate court reviews the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Id.

In the present case, appellant’s motion was made on the ground that there was not sufficient evidence to show appellant participated in the murder of Raymond Jacobs. Our review of the evidence presented at the trial reveals that the victim, Raymond Jacobs, bred and sold hunting dogs. His wife, Joann Jacobs, testified she last saw her husband on the day of his murder, Friday, May 8, 1992, when she left for work at approximately 7:23 a.m. Mrs. Jacobs was unable to reach her husband by telephone throughout the day, a fact which she described as unusual. Mrs. Jacobs testified she was surprised that she did not see her husband when she returned home from work that day at 6:50 p.m.

On the evening of May 8, 1992, Mr. and Mrs. Jacobs’s son, Keith, spoke to his mother on the telephone, then went to his father’s barn and discovered his father’s body lying face down on top of a pitchfork with the back of his head caved in. Keith Jacobs testified that, after grieving for his father, he took a look around the barn and kennels and noticed the following items were missing: a raincoat, a hammer, a shipping crate for a dog, and four of five dogs that he had observed his father purchase from appellant on April 29, 1992. Keith Jacobs testified that he went to Missouri after his father’s death and there found the four missing dogs — one dog at the home of Jerry Haley, one dog at the home of Ray Markus, and two dogs at the home of Kenneth Davis.

Jerry Haley, of Springfield, Missouri, testified that he had given a dog to appellant for sale on consignment around the end of April 1992 and that Tom Trimble returned the dog to him on May 8, 1992. Ray Markus, of Weaubleau, Missouri, testified that sometime near the end of April 1992, he gave a dog to appellant for the purpose of having the dog bred. Candy Markus, wife of Ray Markus, testified their dog was returned by Tom Trimble on May 8, 1992.

Gracie Byrd testified she was employed at the Best Western Inn in Benton, Arkansas, and went on duty at 11:00 p.m on May 7, 1992. She identified Tom Trimble as the man who rented a room sometime after 12:00 a.m. on May 8, 1992, using the name of Tom Johns and registering a Ford truck licensed in Illinois.

At the trial, Kenneth Thomas Trimble refused to answer any questions about his involvement with appellant in the death of Raymond Jacobs. Trimble asserted his Fifth Amendment privilege against self-incrimination, even though he had been granted use immunity by the prosecution. Consequently, the trial court declared Trimble unavailable and allowed his testimony at appellant’s first trial to be read into evidence.

At the first trial Trimble testified he had worked for appellant for two years, driving for him and delivering dogs. He testified he and appellant drove to Benton on May 7, 1992, stayed the night at the Best Western, and went to Raymond Jacobs’s house on the morning of May 8, 1992, somewhere between 7:20 a.m. and 8:00 a.m. Trimble testified their purpose in visiting Jacobs was to retrieve the dogs appellant had sold Jacobs on April 29. Trimble testified that he was repairing a box in appellant’s truck while appellant and Jacobs went inside Jacobs’s barn to get a dog crate and to look at a horse. According to Trimble, appellant exited the barn with blood all over his overalls, shirt, collar, hands and arms and was carrying a paper bag and a dirty raincoat with something in it. Thereafter, Trimble testified, appellant loaded the four dogs from Jacobs’s kennels, with three dogs coming from one set of kennels and the fourth dog coming from the other set of kennels. Trimble did not recall seeing Jacobs after appellant exited the barn.

Trimble testified that, during the return trip to Missouri, appellant discussed what had occurred while he was in the barn and explained that Jacobs would not sell the dogs. Trimble testified that he and appellant stopped along the road and disposed of the raincoat, a hammer, a paper bag, and a dirty towel. According to Trimble, they stopped again to purchase new clothing and shoes and to dispose of the clothing and shoes they wore while at Jacobs’s barn and kennels. Trimble testified that, upon their return to appellant’s home, he followed appellant’s instructions to return the dogs to their owners, Jerry Haley, Ray Markus, and Kenneth Davis.

Appellant gave a statement to Saline County law enforcement officers on May 10, 1992, that was read into evidence at trial. In the statement, appellant admitted selling Jacobs the four dogs. He also stated that, in addition to those four dogs, he left another three or four dogs with Jacobs. Appellant also admitted he was at Jacobs’s house and bam on the morning of May 8, 1992. Appellant explained that either the dogs or the money from their sale were due back to their owners on May 8, 1992, so he and Trimble drove to Jacobs’s kennels to retrieve the dogs. Appellant stated he and Trimble stayed at the Best Western in Benton on the evening of May 7, 1992, and then went to Jacobs’s kennels on the following morning. Appellant stated he stayed at Jacobs’s place for about an hour and retrieved four dogs from Jacobs’s kennels, explaining that three dogs came from the kennels on the left side of the barn and one from the kennels on the right side. Appellant stated he instructed Trimble to return the dogs to their owners, Jerry Haley, Ray Markus, and Kenneth Davis, upon their return to Missouri that same day, May 8. Appellant also admitted to borrowing an air crate from Jacobs that day.

Dr. William Q. Stumer, Chief Medical Examiner, performed the autopsy on the victim. He testified the victim died from trauma and injuries to the skull and brain. He testified the victim had a total of sixty-six injuries, some of which could have been caused by a hammer, others by a pitchfork.

Appellant’s argument on appeal is that no murder weapon was found and no physical evidence or witnesses, other than co-defendant Trimble, link him with this crime. Appellant also argues that Trimble’s testimony is not credible.

These arguments are wholly without merit. First, although the hammer was not admitted into evidence at this trial, the pitchfork on which the victim was found lying was admitted. Second, the credibility of Trimble’s testimony was a matter for the jury to resolve, and the jury was so instructed. The jury was also instructed that if they found Trimble to be an accomplice, his testimony must be corroborated by other evidence tending to connect appellant with the commission of the crime. Third, there is substantial evidence to support the guilty verdict. Appellant aomitted to selling Jacobs the four dogs and to later retrieving the dogs from the victim on May 8, 1992. Appellant also admitted that Trimble returned the dogs to their owners on May 8, 1992. Keith Jacobs testified the four dogs we¡ * missing from his father’s kennels when he found his father’s body and that he later found the same four dogs had been returned to their owners in Missouri. Though the foregoing may be circumstantial evidence, it is nonetheless evidence connecting appellant with the murder of Raymond Jacobs and it is well-settled that circumstantial evidence may constitute substantial evidence to support a verdict. Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence, which is a matter for the jury to determine. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

Since substantial evidence exists to support the verdict, we find no error in the trial court’s denial of appellant’s motion for directed verdict and affirm the judgment of conviction. The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and there were no rulings adverse to the appellant which constituted prejudicial error.


author: Robert L. Brown, Justice.

text:
    Raymond MACK v. STATE of Arkansas
    CR 95-282
    905 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Raymond Mack, appeals from a judgment of conviction for capital murder committed in the course of an aggravated robbery and a judgment of conviction for first degree battery. He was sentenced to life imprisonment without parole for the capital murder and to five years imprisonment for the battery conviction. He now appeals and asserts that he was denied his right to a speedy trial owing to a biased mental evaluation which necessitated a second examination and, thus, delayed his trial until almost two years following his arrest. We affirm the judgments of conviction.

The murder and battery occurred at about 11:00 p.m. on September 21, 1992, in the vicinity of Ninth and Kirspel Streets in Little Rock. The victim, Shawn Bobb, was driving in the area and had stopped his car. Anthony Salley got in the car and was sitting in the passenger seat at time of the shooting. Da’Shwaunall “Swan” Johnson was sitting in the back seat. Raymond Mack approached the car and, according to Johnson, told Bobb to give Mack his money. Bobb refused, and Mack began shooting. According to a second witness, Yolanda Armstrong, Mack fired several shots into the car. Shawn Bobb was hit once in the chest and killed. Anthony Salley was struck in both of his legs by a second bullet. The murder weapon was found and identified as a Mossberg .22 caliber carbine with a sawed off stock.

Mack was charged with capital murder and first degree battery. The State initially asked for the death penalty, but prior to the two-day trial on August 30, 1994, the State waived that option. Following the jury trial, the jury returned guilty verdicts, and Mack was sentenced accordingly.

The chronology of events pertaining to the speedy trial issue follows. The offense occurred on September 21, 1992, and Mack turned himself in four days later on September 25, 1992. He was incarcerated from that point forward. At the resulting plea and arraignment, he pled not guilty.

On January 8, 1993, Mack changed his plea to not guilty by reason of mental disease or defect and requested a mental evaluation. At the hearing on January 8, the trial court voiced its concern about the time involved for an evaluation. Counsel for Mack stated: “All the time is tolled from today until the evaluation is done so it won’t [a]ffect speedy trial.” Mack was then committed to the State Hospital for a mental evaluation.

On July 6, 1993, Dr. Michael Simon, a psychologist with the State Hospital, signed a letter to the trial court in which he opined that Mack was capable of assisting in his defense at trial and that Mack appreciated the criminality of his conduct at the time of the murder. Dr. Simon’s accompanying report described Mack’s contention that “bubbles” had told him to commit the murder at issue. Dr. Simon concluded that the asserted hallucinations were not credible, that Mack was malingering, that he was not psychotic, and that he suffered from an antisocial personality disorder.

On August 12, 1993, a hearing was conducted regarding Dr. Simon’s report. At the hearing, it developed that Mack had been gang raped at age eight — a fact which Dr. Simon did not allude to in his report. Dr. Simon had also discounted two prior suicide attempts by Mack. Tests further showed Mack’s I.Q. to be 74, or in the borderline intelligence range. Because of the low I.Q. and the request for the death penalty, the State joined in a request for a second mental evaluation. The trial court then commented from the bench: “I’m of the opinion that Dr. Simon did not testify as an objective professional, but he seemed to have been an advocate, he seems to have taken sides and for whatever reason had lost his objectivity.” At the close of the hearing, the State raised the speedy trial issue and requested that time continue to be tolled during the evaluation period. The trial court replied: “Right. While we’re within the context of determining competency all of the time is tolled until that is resolved.” No objection to this ruling was raised by Mack’s attorney. On August 25, 1993, the second mental evaluation was ordered by the trial court.

On March 17, 1994, a second competency report relating to Mack was completed by Dr. Jerry Henderson, a psychologist with Professional Counseling Associates, a firm in Little Rock. Dr. Henderson also concluded in his report that Mack was not hallucinating or psychotic, that he was malingering, and that he suffered from an antisocial personality disorder. In Dr. Henderson’s judgment, Mack was able to assist in his defense at trial and to appreciate criminality at the time of the murder.

On June 24, 1994, Mack moved to dismiss the charges against him on speedy trial grounds. On August 11, 1994, an omnibus hearing was held, and the speedy trial motion was heard and denied by the trial court. The court noted that Mack’s counsel desired a second mental evaluation and failed to object to a second evaluation on speedy trial grounds or to the court’s statement that the speedy trial time would be tolled. According to the court, Mack’s counsel should have recognized the implications of a second evaluation.

The sole issue on appeal is whether Mack’s speedy trial rights were violated. His precise argument is that Dr. Simon’s report was “biased,” and as a consequence, the time attributable to the preparation of the report — from January 11, 1993, to August 12, 1993 — should not be excluded under Ark. R. Crim. P. 28.3(a) in determining whether the twelve-month period had run. Alternatively, he argues that the time needed for the second mental evaluation — from August 12, 1993, to March 17, 1994 — should not be excluded for the same reason.

Rule 28.3(a) of the Arkansas Rules of Criminal Procedure states that the period of delay resulting from a competency examination and hearing shall be excluded for speedy trial purposes. The court has previously determined that “[t]he literal language of Rule 28.3(a) states simply that the period required for a competency examination is excluded.” Hufford v. State, 314 Ark. 181, 184, 861 S.W.2d 108, 109 (1993), quoting Brawley v. State, 306 Ark. 609, 613, 816 S.W.2d 598, 601 (1991). We discern no reason to retreat from this conclusion that Rule 28.3(a) is clear, simple, and straightforward in providing for the exclusion of time caused by mental examinations.

Moreover, it is obvious from the record that counsel for Mack desired both mental examinations and voiced no objection to the tolling of the speedy trial time limitation when the evaluations were discussed. At the first hearing on January 8, 1993, Mack’s counsel left no doubt that the time would be tolled pending the evaluation. At the second hearing, on August 12, 1993, the trial court ruled that the time was tolled while Mack’s competency was being determined. Mack’s counsel did not contest this ruling in any form or fashion. That was the time to raise the issue, and the trial court was entirely correct in alluding to this lapse when it denied the motion to dismiss at the subsequent omnibus hearing.

As a final point, we note in Mack’s argument where he concludes that the State Hospital is part of the state’s criminal justice system and, hence, the State should be saddled with any delay caused by a deficiency in the State Hospital’s evaluation. That is not correct. We have previously taken pains to underscore that the State Hospital is independent of the judiciary and the prosecuting attorney’s office and, thus, “delays caused by its operations would not be subject to the same level of scrutiny as delays caused by the criminal justice system itself.” Collins v. State, 304 Ark. 587, 590, 804 S.W.2d 680, 681 (1991).

The trial court did not err in denying Mack’s motion to dismiss on speedy trial grounds.

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

Affirmed.

       The victim is also identified at times in the record as “Shawn Bob.”


author: Andree Layton Roaf, Justice.

text:
    Cleveland JENKINS v. STATE of Arkansas
    CR 95-418
    905 S.W.2d 845
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Bynum & Kizer, P.A., by: Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Cleveland Jenkins was convicted of capital murder and sentenced to life imprisonment without parole for the shooting death of Charles “Chuckie” Lyons. He raises two points on appeal. The first, that there was insufficient evidence of premeditation and deliberation to sustain the verdict, has no merit. The second, that it was error to admit the recording of a 911 emergency call made after the shooting, is procedurally barred.

We affirm.

Mr. Jenkins came to the home of Blanche Murray late on the evening of the shooting. Mrs. Murray’s grandson answered the door and said that the caller wished to speak to “Chuckie,” a visitor who was asleep in a back bedroom, and went to rouse him. Mrs. Murray was concerned about the lateness of the visit and asked Chuckie if he knew the caller. He responded that he did and went to the door. Mrs. Murray, who had approached the door and looked out, testified that as Chuckie opened the door, she stepped back, and immediately heard gunshots. She called to her daughter, Sonya, who discovered Chuckie lying shot on the front porch, and called 911. Jenkins and another person were identified by name and their car was described during the 911 call. Police officers spotted the car shortly after the report. The car was stopped and Jenkins apprehended after a high speed chase. Officers recovered a nine millimeter semi-automatic pistol which had been thrown from the car during the chase. The crime lab identified the gun as having fired the bullets that killed Lyons.

Lyons was found dead on Mrs. Murray’s porch with five “through and through” gunshot wounds, three in his chest and one each in his wrist and cheek. The medical examiner testified that the wrist wound was consistent with the victim attempting to shield his face, and two of the other wounds were consistent with the victim lying flat on his back when shot. He further testified that one of the bullets severed Lyons’ spinal cord, which would have caused him to immediately collapse. Three bullet hulls found on the porch were shown to have been ejected from the weapon recovered during the chase, and a bullet was found embedded in the wall of the house in the area of the porch. Gun powder residue was found on the outer and inner layers of the victim's ciothing; results of a gunshot residue test conducted on his hands were negative, and no gun was found at the scene.

After his arrest, Jenkins gave a statement to the police in which he claimed to have shot Lyons in self defense. He first claimed that Lyons pulled a gun, then stated that he did not see a gun but that Lyons reached behind his back. At trial, he testified that he came to the house, not to see Lyons, but to sell a gun to Mrs. Murray’s grandson, Johnny. He stated that when Johnny went back into the house to get money for the gun, Lyons came to the door and began cursing and threatening him. He testified that he shot Lyons while they were both in tht yard, shooting at each other and dodging, and that he fled the scene because he panicked.

Mr. Jenkins first argues the evidence of premeditation and deliberation is insufficient to sustain the verdict of capital murder. At the close of the State’s case, Jenkins’ counsel moved for a directed verdict stating, “Specifically, we state that there has been no evidence that the defendant with premeditation and deliberate purpose caused the death of this individual.” The prosecution responded, “Mrs. Murray testified that he no more than got out of the door when they started nailing him. They specifically asked for him. They called him outside.” At the close of Jenkins’ testimony his counsel stated that he renewed the motion “on the same grounds that I made after the State’s case.”

We find Jenkins’ motion at the close of the state’s case was sufficiently specific to apprise the trial court of the ground asserted. Indeed, the prosecutor’s response indicates that he also knew the objection went specifically to the element of premeditation and deliberation. See Jones v. State, 318 Ark. 703, 809 S.W.2d 706 (1994); Daffron V. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 187, 803 S.W.2d 831 (1994).

Jenkins’ general renewal on the same grounds at the close of all the evidence was also sufficient to preserve this issue on appeal. See Durham v. State, 320 Ark. 689, 889 S.W.2d 470 (1995).

As to the merits of Jenkins’ argument, it certainly cannot be said that there was a lack of evidence in this case. In fact, the jury had ample circumstantial evidence to support a finding of premeditation and deliberation, including the testimony of the Murrays, the forensic evidence presented, and the conflicting statements given to the police by Jenkins. See Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995).

Jenkins also argues that the trial court erred in admitting into evidence the recording of the 911 emergency call made from the Murray home immediately after the shooting. At trial, he asked that the tape be excluded as hearsay. The trial court admitted the tape as an excited utterance exception to the hearsay rule under Ark. R. Evid. 803(2). However, on appeal Jenkins argues for the first time that the tape should not have been admitted because it was not properly authenticated by the State pursuant to Ark. R. Evid. 901(b)(5), because the voices on the tape were not identified. Since Jenkins has changed the basis of his objection and now makes a different argument from that made at trial, we do not address this point. See Woodruff v. State, 317 Ark. 585, 856 S.W.2d 299 (1993); Myers v. State, 317 Ark. 70, 876 S.W.2d 246 (1994).

The entire record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h) for other reversible errors and we have found none.

Affirmed.


text:
    Calvin PORTER v. STATE of Arkansas
    CR 94-838
    905 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995
    [Rehearing denied October 23, 1995.]

      Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Calvin Porter appeals from his conviction of capital murder and sentence of death by lethal injection. He raises eight points on appeal. We find no error on these points, nor any other reversible error and affirm.

Porter, aged 19, and a 13-year-old boy approached Tommy’s Restaurant in Pine Bluff at about 10:00 p.m. on June 7, 1993. They encountered an employee of the restaurant, Michael Now-den, on the parking lot, and Porter asked if a “Mr. Jake” worked there. Nowden responded he did not, and reentered the restaurant. Porter indicated to his companion that he wanted to do a “lick” or robbery. They then entered the back door of the restaurant, holding newspapers provided by Porter to conceal their faces. Porter carried a gun. They said, “This is a robbery,” and Porter ordered the restaurant owner and two employees, including Now-den, to lie on the floor. The three complied, and Porter’s companion testified that while he was taking money from the cash register, he heard a gunshot. The two assailants also robbed the three victims and then fled. After his arrest, the 13-year-old initially stated to police that after leaving the restaurant Porter said, “I shot him.” At trial, he testified that Porter told him he shot the man who had been “outside with us” because he had attempted to grab the gun. Nowden died as a result of a contact gunshot wound to the back of the head.

Porter was apprehended one week later by police officers who also recovered a pistol which Porter discarded while he was being pursued on foot by the officers. The state crime lab established that the bullet which killed Nowucn was fired from the recovered pistol, and at trial Porter was convicted of capital murder for causing the death of Nowden under circumstances manifesting extreme indifference to the value of human life, during the course of and in furtherance of the commission of robbery. In sentencing Porter to death the jury unanimously found no mitigating circumstances and two aggravating circumstances: the capital murder was committed for pecuniary gain and for the purpose of avoiding or preventing an arrest or effecting an escape from custody.

Of the eight arguments made on appeal, five are procedurally barred. Although these issues were raised in various pretrial motions filed by Porter, the trial court did not rule on these motions and the issues were not otherwise raised during the trial. Porter first argues that the submission of pecuniary gain to the jury as an aggravating circumstance in the penalty phase was an unconstitutional double counting and violative of the eighth amendment, because an essential element of the offense of capital murder is that the murder was committed in the course of and in furtherance of robbery. The trial court did not rule on this pretrial motion and the issue was not raised during the trial. In any event, this issue has been addressed and the statute upheld. See Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert. denied 112 S.Ct. 3043 (1992).

Porter next argues that the trial court erred in allowing into evidence a photograph of the victim’s face, because the picture did not show the head wound, and was therefore irrelevant and unduly prejudicial. The trial court did not rule on this motion and again, the issue was not raised at trial. In fact, when the State sought to introduce the photograph, Porter’s counsel stated, “No objection.”

Porter also argues, as he did in another pretrial motion, that the sentencing provisions of the death penalty statute, Ark. Code Ann. § 5-4-603 (Repl. 1993), are unconstitutional because the statute does not allow the jury to show mercy and thus results in a mandatory death sentence. Once again he did not obtain a ruling on his motion. This issue was also decided adversely to the appellant in Johnson, supra.

Porter moved pretrial to prevent “victim impact” evidence during the penally phase of the trial; the motion was not ruled on and Porter now argues that “victim impact” evidence was erroneously admitted during the guilt phase of the trial. He also did not object tc the testimony when offered by the other two victims of the robbery concerning Nowden’s good personal traits and character.

In his final unpreserved argument, Porter asserts that the aggravating circumstances under the death penalty statute have been construed in such a broad, vague and varying manner so as to render the statute violative of the eighth and fourteenth amendments. Once again he did not obtain a ruling from the trial court and did not further raise this issue at trial.

Porter may not now rely on these unresolved questions and objections on appeal. See Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). Nor do the errors asserted by Porter present any of the exceptions we have made in allowing consideration of errors raised for the first time on appeal in death penalty cases. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988).

Porter’s three remaining arguments for reversal have no merit. Before trial, Porter filed a Motion in Limine seeking to prohibit the State from introducing evidence that he pointed a gun at a police officer during the chase which resulted in his capture and arrest. The trial court denied this motion. Porter argues the pointing of the gun constitutes evidence of another crime, aggravated assault, which had no relevance or probative value to his prosecution for capital murder, and had the prejudicial effect of showing he was a person of bad character.

We cannot say it was an abuse of discretion for the trial court to admit the evidence of the circumstances of Porter’s capture, including the testimony concerning the gun. Porter had been identified as a suspect in this case and was spotted by police a week after the robbery and murder of Nowden. He was pursued on foot by the officers, and during the chase he was observed to look back and bring his right arm around toward his pursuer. It was at this point that the officer observed that he held a pistol. A second officer took up the pursuit and saw Porter throw the weapon down and continue running. The gun was recovered and shown to have fired the bullet which killed Nowden. The testimony of the officers is clearly relevant in establishing that Porter was in possession of the murder weapon which he attempted to discard during the pursuit.

We also do not find error in the submission of the second aggravating circumstance, that Porter committed capital murder for the purpose of avoiding or preventing an arrest or effecting an escape from custody. Although Porter’s motion to prohibit submission of “any aggravating circumstance completely unsupported by the evidence” was granted by the trial court, he failed to assert at trial that the aggravating circumstance of “avoiding or preventing an arrest” was unsupported by the evidence.

In any event, this court has held that killing to eliminate a potential witness is the same as avoiding or preventing lawful arrest. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). Certainly the jury could have found beyond a reasonable doubt that Porter killed Nowden to avoid being arrested for robbery, because of the nature of Nowden’s head wound and the fact that he had spoken to Porter outside the restaurant and could have identified him as one of the robbers. See Sheridan v. State, supra; Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied, 112 S.Ct. 102 (1991); Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied, 499 U.S. 913 (1990).

Finally, Porter argues that certain remarks made by the prosecuting attorney during closing arguments constituted an impermissible “golden rule” argument. See King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). He concedes that he did not object to the remarks at trial; however, he relies upon Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981), for the proposition that the trial court should have stepped in and stopped the argument.

The remarks complained of went to Porter’s propensity to escape:

Calvin Porter runs every time he gets a chance. Put him in prison and they put him out there in a field and he gets to working and what is he going to do when he gets the chance? He’s going to run. They’ll be chasing him all over the place.

The prosecuting attorney clearly did not suggest that jurors place themselves in the position of a victim as in a “golden rule” argument. He simply argued that there was a possibility Porter would attempt to escape, and the words in this instance are not so flagrant as to constitute a basis to reverse for failure to control the closing remarks of the prosecutor. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

We note that the State, in its brief, has set forth a comparative analysis of Porter’s death sentence. However, in Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995), we found that the recently enacted sentencing procedures provide a statutory check on arbitrariness by requiring a bifurcated proceeding where the jury is provided with information on aggravating and mitigating circumstances and standards for the use of that information. On appeal, we thus limit our review to the aggravating and mitigating circumstances presented to the jury and no longer conduct a proportionality review. Here, the jury unanimously found two aggravating circumstances and no mitigating circumstances. We conclude there was no erroneous finding of any aggravating circumstance. See Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).

The entire record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h) for other reversible errors and we have found none.

Verdict and sentence affirmed.


author: Per Curiam.

text:
    Frederick JACOBS v. STATE of Arkansas
    CR 95-808
    906 S.W.2d 670
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Robert P. Remet, for appellant.
    No response.
   Per Curiam.

Appellant asks this court to grant a writ of certiorari to complete the record in his case. We deny the writ.

Appellant was corvicted of capital murder and sentenced to life without parole. The judgment of conviction was entered on December 15, 1994, and the notice of appeal was filed on January 10, 1995. Appellant should have immediately ordered the reporter’s transcript. Perry v. Perry, 257 Ark. 237, 515 S.W.2d 640 (1974). The partial record filed does not show that this was done. The complete record should have been filed within ninety days from the filing of the notice of appeal. Ark. R. App. P. 5(a). If the reporter could not complete the transcript within the ninety days, appellant should have moved for an extension, and the trial court should have conducted a hearing on the necessity of the extension. Harper v. Pearson, 262 Ark. 294, 556 S.W.2d 142 (1977). This was not done. Instead, on January 10, 1995, just below the notice of appeal, appellant asked for a seven-month extension to file the transcript because of “his current commitments.” The trial court immediately granted the full seven months without a hearing and without proof that the transcript had been ordered. The trial court’s ruling was in violation of the Rules of Appellate Procedure.

We have made it abundantly clear that the purpose of the rule is to eliminate unnecessary delay in the docketing of appeals and that we expect compliance with this rule so that appeals will proceed as expeditiously as possible. Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982). The fact that an attorney had “current commitments” was not relevant to whether a record was ordered and whether the court reporter could timely transcribe that record. The trial court’s order was not in compliance with either the letter or spirit of the rule. We have even said that we expect trial courts to follow the spirit of the rule. Perry v. Perry, 257 Ark. 237, 515 S.W.2d 640 (1974). We fully intend to prevent unnecessary delays in appeals.

On July 6, 1995, appellant filed his motion for a writ of certiorari to complete the record. The only ground stated for granting the motion is: “No indication has been received from the reporter (to whom a copy of this order was sent by counsel o/a February 2, 1995) that the reporter has prepared the transcript or is in the process of preparation thereof.” There still has been no showing that the record has been ordered or that the delay is necessary; consequently, we deny the motion.

Unfortunately compounding the progress of this appeal, we note that there is a letter in the file from the court reporter stating: “I am sorry to report that a transcript of this trial cannot be reproduced.” Even so, there is nothing to show 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, and we are unaware of any effort to construct a record. See Ark. R. App. P. 6(d). As a result, it seems likely that it would be a vain and useless act for us to grant certiorari directed to the court reporter. That would only cause more delay.

We do not know whether the record in this case can in fact be transcribed, and while we do not intend to indicate fault on the part of the court reporter, we note that the trial judge appoints the court reporter. Ark. Code Ann. §§ 16-13-502, -503(a) (1987). It is the duty of a trial judge to see that the person he or she appoints performs satisfactorily. In this case the defendant has been in the penitentiary since December 1994, and the transcript for his appeal is not completed. Perhaps worse, it has not even been started.

Writ denied.


text:
    Eric KENNEDY v. STATE of Arkansas
    CR 95-897
    905 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      John Henry, for appellant.
    No response.
   Per Curiam.

Appellant, Eric Kennedy, by his attorney, has filed for a rule on the clerk.

His attorney, John Henry, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Donald L. McPEEK and Mary Louise Heroman McPeek v. WHITE RIVER LODGE ENTERPRISES, Mr. and Mrs. James B. Flowers, Mr. and Mrs. Timothy G. Mancuso, and Mr. and Mrs. Lewis C. Moore
    93-1267
    905 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Kenneth H. Castleberry, for appellants.

      David R. Matthews, for appellees.
   Per Curiam.

Appellants timely appealed from the Carroll County Chancery Court’s judgment, and on appeal, the appellants’ brief was scheduled due on July 23, 1995. While this appeal was pending, appellants apparently caused a writ of execution to be issued below, seeking satisfaction of the trial court’s judgment, and as a result, appellees assert the appellants’ judgment has been satisfied in full. Appellees now move to dismiss appellants’ appeal, stating the appellants have accepted the benefits of their judgment. Appellants respond, asserting among other things that their having accepted benefits of a judgment alleged to be inadequate is not a waiver of their right to appeal. Appellants also move to stay the briefing schedule in this appeal, so a corrected or supplemental record can be filed.

First, we grant appellants’ motion to stay and remand this cause to the trial court to settle the record under Ark. R. App. P. 6(e). Second, we direct the parties to include along with the other points on appeal the issue raised in appellees’ motion to dismiss appeal. Appellants shall have thirty days from the date of this per curiam to file a supplemental record and their brief shall be due thirty days thereafter.


text:
    Troy MAYO v. STATE of Arkansas
    CR 95-802
    906 S.W.2d 285
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Roy C. Lewellen, for appellant.
    No response.
   Per Curiam.

Troy Mayo has filed this Motion for Rule on the Clerk through his attorney, Roy C. Lewellen. His attorney does not admit fault, but states that the court reporter was involved in an accident which caused a delay in preparation of the transcript.

The chronology of this appeal is as follows:

Judgment and Commitment Order Entered 12/8/94
Notice of Appeal and Designation of Record 1/6/95
Order for Extension of Time to prepare transcript to July 6, 1995 4/6/95
Transcript completed and given to Circuit Clerk 7/7/95
Transcript tendered 7/10/95

Mr. Mayo attached a letter from the circuit clerk which stated that the court reporter was unable to complete the transcript until July 7, 1995 because she was involved in a car accident. However, this letter is dated July 14, 1995, and is not stamped as received by the attorney until July 17, 1995. Thus, although the transcript may have been late because of the court reporter’s misfortune, it appears that this letter was obtained after the tendered record was rejected by the Clerk’s office.

It is an attorney’s duty to file the record on time. In this case the record was late because an order of extension was not entered before the period for filing the record had expired. See Ark. R. App. P. 5. At a minimum, Mr. Mayo’s attorney should have filed a partial record by the July 6 due date when it became apparent that the transcript would not be completed on time.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).

Motion denied.


text:
    Troy Lee PERRY v. STATE of Arkansas
    CR 95-752
    906 S.W.2d 285
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Robert P. Remet, for appellant.
    No response.
   Per Curiam.

Appellant asks this court to issue a writ of certiorari to complete the record. We deny the writ.

On December 13, 1994, appellant was convicted of two felonies and sentenced to sixteen years imprisonment. On January 10, 1995, he gave notice of appeal. On the same page as the notice of appeal, and immediately below the notice, appellant’s counsel filed a motion for a seven-month extension to prepare the record because of counsel’s “current commitments.” The trial court erroneously granted the extension. See Jacobs v. State, Per Curiam this same date.

A letter from the court reporter, which is on file in this case, states that the court reporter was not given notice of the appeal until June 24, 1995, or long after the original ninety days for filing the transcript had passed. In fact, it was only two weeks before the full seven-month period expired. We are fully aware that there has been no finding of fact by the trial court that the court reporter’s letter is accurate, but clearly appellant has not stated a valid ground for us to grant certiorari directed to the court reporter.

Writ denied.


text:
    Kenneth K. WATANABE and Jessica Watanabe v. Ed H. WEBB and Ellinor Webb; Dixon Realty; John H. Williams; Guaranty Title Company; and Gene Weston
    95-3
    905 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995
    No response.

      Charles R. Padgham, for appellees.
   .

Per Curiam.

On May 1, 1995, we granted appellees’ motion to dismiss Kenneth K. and Jessica Watanabes’ appeal from the April 13, 1994 foreclosure decree, but we declined appellees’ request to dismiss the Watanabes’ appeal from the June 2, 1994 confirmation order. On May 1, 1995, the supreme court clerk mailed an amended briefing schedule to the respective parties, but no briefs have been filed. On July 27, 1995, appellees Ed H. and Ellinor Webb moved to dismiss the remaining part of this appeal for lack of prosecution, and they served the motion on the Watanabes and all counsel of record. No response has been filed to the Webbs’ motion. Accordingly, we grant appellees’ motion dismissing this appeal pursuant to Ark. Sup. Ct. R. 4-5.


author: Bradley D. Jesson, Chief Justice.

text:
    Toriono MITCHELL v. STATE of Arkansas
    CR 95-232
    906 S.W.2d 307
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      William R. Simpson, Jr., Public Defender, by: Timothy A. Boozer, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant was convicted of simultaneous possession of drugs and firearms, Ark. Code Ann. § 5-74-106 (Repl. 1993), for which he received a forty-year sentence. Three issues are presented on appeal. We find no error and affirm.

On November 27, 1993, a gang-related shootout.occurred at a fast-food restaurant in Little Rock. Little Rock Police Detective Ronnie Smith and Patrolman Rodney Lewis arrived at the scene shortly after the incident. Both observed the appellant lying on the ground with gunshot wounds. Rescue units were called, and the appellant and another man were transported to the hospital. At that point, appellant was not considered a suspect, but a victim.

Crime scene specialists Barbara Polite and Roger Swope arrived at the scene. They were requested by Detective Smith to go to the hospital and collect the clothing of the shooting victims. They did so, and returned with the clothing to the crime scene unit. While conducting a routine inventory, they found a plastic bag in the pocket of the appellant’s jeans. The bag contained a “white, rock-like substance” which was forwarded to the narcotics division. Upon analysis, it turned out to be cocaine.

The appellant eventually became a suspect in the shooting. He was arrested and charged with one count of battery, nine counts of aggravated assault, and one count of simultaneous possession of drugs and firearms. The jury was unable to reach a verdict on the battery and aggravated assault counts, but did convict the appellant on the simultaneous possession of drugs and firearms charge. The first issue we address is whether the evidence was sufficient to support that conviction.

Ark. Code Ann. § 5-74-106(a)(l) (Repl. 1993) provides that a person who commits a felony violation of § 5-64-401 (controlled substances) while in possession of a firearm is guilty of a Class Y felony. The appellant argues that there was no evidence which showed him to be in simultaneous possession of the drugs and the gun.

When the sufficiency of the evidence is challenged, we must determine if there is substantial evidence to support the verdict. The evidence is viewed in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 738 S.W.2d 58 (1990). Circumstantial evidence is considered substantial evidence and may support a conviction. Summers v. State, 300 Ark. 525, 780 S.W.2d 541 (1989). It is true that in this case, no witness could say that the appellant was in simultaneous possession of the gun and the cocaine. However, several witnesses at trial testified that the appellant brandished a handgun during the course of the shootout. Additionally, a test of the appellant’s hands for gunshot residue was positive. Within minutes after the appellant was seen with the gun, he was discovered lying wounded on the ground. He was immediately transported to the hospital where his clothes were bagged and turned over to the police. The controlled substance was found in these clothes. The state’s drug chemist determined that the total weight of the substance was 1.64 grams of which 86.2% was cocaine, a net of 1.42 grams.

We hold there was substantial evidence to support the conviction. Based upon the facts, the appellant could only have avoided simultaneous possession of these items if the contents of his clothing changed between the time of the shooting and the time the clothes were retrieved from the hospital. This is so implausible that the jury was justified in reaching the more logical conclusion: that the cocaine was in the appellant’s pocket at the time he was seen in possession of the gun.

Before we leave this issue, one clarification is needed. The record does not show conclusively whether the appellant’s drug violation was a felony or a misdemeanor. A felony controlled substance violation is required to satisfy the first prong of § 5-74-106. The appellant makes no argument on this point and limits his sufficiency of the evidence challenge to the “simultaneous” aspect of the offense. However, we caution that this opinion should not be read to hold that any possession of a controlled substance is sufficient for a conviction under § 5-74-106. We do note that the amount of cocaine recovered in this case is sufficient to raise the presumption of possession with intent to deliver, a felony. Ark. Code Ann. § 5-64-401(d) (Repl. 1993).

We turn now to the evidentiary issues raised by the appellant. He claims first that the cocaine found in his clothing was the result of an illegal, warrantless seizure and, therefore, should have been suppressed.

At the suppression hearing and at trial, the officers who were at the scene of the shooting testified that they initially considered the appellant a victim, not a suspect. They testified that his clothes were to be obtained as evidence. The crime scene specialists testified that it is customary to inventory the contents of clothing for two reasons: one, the police are responsible for the contents and, two, if the clothes are bloody (as these were) they need to be hung to dry, making it necessary to empty the contents. The specialists also testified that, when the plastic bag was pulled from the jeans, it appeared to contain a controlled substance, based upon their experience.

To gain admission of the evidence, the state relied on Ark. R. Crim. P. 10.2. This rule sets out “Permissible Objects of Seizure,” among them “evidence . . . concerning the commission of a criminal offense.” The appellant argued that the state cannot seize property without a warrant merely because it is termed “evidence.” The trial judge, without elaboration, denied the motion to suppress.

On appeal of a trial court’s ruling on a motion to suppress, this court will make an independent determination of the admissibility of the evidence based on the totality of the circumstances. The trial court’s finding will not be set aside unless it is clearly erroneous. State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990).

The appellant argues on appeal that Rule 10.2 is unconstitutionally broad because it allows the seizure of items under the all-encompassing category of “evidence.” He offers no convincing authority to support this proposition. But, in any event, we find that there was no infirmity in the application of Rule 10.2 in this case. The totality of the circumstances herein includes the fact that the appellant was thought to be a victim. The clothing of a gunshot victim is evidence of the commission of a crime. These circumstances have convinced other courts to decide that such a seizure was reasonable. Chavis v. Wainwright, 488 F.2d 1077 (5th Cir. 1973); Floyd v. State, 24 Md. App. 363, 330 A.2d 677 (1975); State v. Adams, 224 N.J. Super. 669, 541 A.2d 262 (1988).

The appellant refers in his brief to the case of Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992). In that case, the police searched the vehicle of a man who was taken to the hospital after a car accident. The court held the search unreasonable, noting that no testimony was presented regarding standard procedures for inventory of seized items. By contrast, crime scene specialists testified in this case that, as a matter of procedure, they routinely inventory the contents of all victims’ clothing. The United States Supreme Court has recognized that such inventory procedures serve the dual purpose of protecting the owner’s property and protecting the police from disputes over lost or stolen property. Florida v. Wells, 495 U.S. 1 (1990); South Dakota v. Opperman, 428 U.S. 364 (1976). See also Ark. R. Crim. P. 15.1 which provides that an officer who seizes property must provide for its safekeeping.

The totality of the circumstances in this case convinces us that the application of Rule 10.2 allowing the seizure of the clothing was reasonable.

The appellant’s final argument concerns chain of custody. The appellant was brought into the hospital on a stretcher. A nurse on duty in the trauma room saw him and observed that some of his clothing had been cut away from his body. She recalled at trial that the clothing was underneath the appellant’s back, on the stretcher. When shown the clothing at trial she testified, although not with absolute confidence, that they fit her memory of how the appellant’s clothes looked when he was brought in. She further testified that it was customary hospital procedure for someone on the nursing team to bag the clothing of all trauma victims, put a sticker on the bag bearing the victim’s name ana date of birth, then tape the bag shut. The bag would then stay with the patient in the trauma room.

A second nurse confirmed that when a trauma victim is brought into the trauma room, his clothes have sometimes been cut away and are lying beneath him. When the victim is rolled over for examination, the clothes are customarily removed and placed in a bag marked with the victim’s name. The victim is then kept in a partitioned area of the trauma room, and his personal belongings are kept with him. The nurse further testified that, in this instance, she signed out the bag bearing the appellant’s name to officers Swope and Polite. Swope and Polite testified that they received the bag and took it to the crime scene unit, where they performed an inventory of its contents.

At trial, the appellant argued that the state did not establish a proper chain of custody. The trial court, after a careful review of the testimony, disagreed and allowed admission of the evidence. The trial court was correct.

The purpose of the chain of custody requirement is to satisfy the court that the evidence being presented is, in all reasonable probability, authentic and has not been tampered with. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). The testimony of the nurses regarding their own observations and established hospital procedures presents a reliable chain of custody. Absent evidence of tampering, the trial judge’s ruling will not be disturbed unless it was a clear abuse of discretion. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). We find no abuse of discretion in this case.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Steven Tyrone HARDAWAY v. STATE of Arkansas
    CR 95-100
    906 S.W.2d 288
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      Denny Hyslip, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged in the Washington County Circuit Court with kidnapping two teenaged girls and committing the crime of rape against both of them. The proof showed that he kidnapped the girls in Washington County, committed rape against both of them in Washington County, committed rape against one of them in another county, and took them across the state line into Memphis. A parallel prosecution was commenced in Federal District Court because of the interstate aspect of the crimes. Appellant was convicted on each of the four counts charged in circuit court. We affirm.

Appellant’s first assignment is the trial court erred in refusing to order an additional psychiatric examination. The facts giving rise to the argument are as follows. On October 27, 1993, shortly after appellant was arrested, the trial court ordered that a psychological evaluation of appellant be conducted at the Ozark Guidance Center. On November 4, 1993, Dr. Edwin C. Jones of the Ozark Guidance Center reported that he attempted to conduct the evaluation, but appellant would not participate; therefore, he was unable to complete the evaluation.

Appellant’s attorney requested a further evaluation. On December 10, 1993, at a hearing on the attorney’s request, the attorney stated that he made the request because appellant refused to talk to him. Appellant’s attorney said that he discussed the problem with the attorney who represented appellant in the parallel federal case, and learned that appellant would talk to that attorney. The trial judge attempted to question appellant, but appellant would not respond with any kind of statement. He would answer only “yes or no” to questions. Responding in this way to questioning, appellant informed the court that he did not intend to rely on the defense of mental disease or defect and that he did not want an evaluation at the Arkansas State Hospital. The trial court noted that appellant had communicated with the court on other occasions, but was choosing not to do so at the time, and denied the request for further evaluation. Appellant’s attorney disclosed to the trial court that appellant said that he had been evaluated elsewhere and that one of the attorney’s partners represented appellant in the past and they did not have a communication problem. The trial judge concluded the hearing by asking appellant whether there was anything he needed to tell the judge about his situation, to which appellant answered, “nope.”

The trial court set the case for trial. After voir dire, but before opening statements, appellant’s attorney renewed the motion to have appellant evaluated because appellant would not speak to him. The trial judge reiterated his prior ruling and asked if an evaluation had been conducted in the parallel federal case. The State offered the psychological examination from the federal court. It was admitted without objection.

That report stated that appellant was observed from April 22, 1994 to May 23, 1994, that the medical staff obtained a medical history from appellant, and that the medical staff completed a routine physical examination of appellant. The evaluation also took into consideration the federal indictment and order of evaluation, Memphis Police Department investigative materials, F.B.I. investigative materials, medical records from the Arkansas State Prison, log reports from the Washington County Sheriff’s Department, the transcript of a court hearing on March 14, 1994, and a Pretrial Service Report dated July 23, 1993. The evaluation included a personal history, accounts of the alleged offense according to the prosecution and the defendant, an account of appellant’s behavior since the time of his arrest, a summary of behavioral observation during the evaluation, a statement that appellant refused to complete any psychological tests, a summary of medical issues, a summary of appellant’s previous diagnosis of psychotic disorder and the reason that diagnosis was suspect, and a diagnosis of malingering, antisocial personality disorder, and possible sickle cell trait. The report included an opinion by the psychologist that appellant’s behavior reflected willful misconduct and there was no reason to believe he was incompetent to plead guilty or to participate in a trial. It was the psychologist’s opinion that appellant was aware of the nature and potential consequences of the charges against him and was able to assist his attorney. The report stated that appellant was aware of the wrongfulness of his conduct at the time of the crime. After considering the extensive report, the trial court ordered the cases to proceed without an additional evaluation.

Appellant’s first assignment is that the trial court erred in ordering the case to trial without additional psychiatric evaluation. Appellant filed neither a notice that he intended to rely on the defense of mental disease or defect nor a notice that he would put his fitness to proceed into issue. See Ark. Code Ann. § 5-2-305(a)(l) - (2) (Repl. 1993). When neither of these notices is given to the trial court, we will affirm an order setting a case for trial without a psychiatric examination unless the trial court had reason to believe that mental disease or fitness might become an issue. Hudson v. State, 303 Ark. 640-A, 801 S.W.2d 48 (1991) (supplemental opinion denying rehearing); see also Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990). We apply the “clearly erroneous” standard in reviewing the trial court’s determination of this issue. Hudson, 303 Ark. at 640-B, 801 S.W.2d at 48.

The trial court’s ruling was not clearly erroneous. Appellant refused to talk to counsel, but he communicated previously with the trial court and communicated with his attorney in federal district court. Thus, he apparently was capable of talking when he chose to so do. He responded negatively when asked by the trial court if he wished to be examined or if he wished to rely on the defense of mental defect or disease. The exhaustive psychiatric report prepared for the federal district court, and reviewed by the trial court before ordering the case to proceed to trial, concluded that appellant’s behavior against the two victims reflected willful misbehavior and there was no reason to believe he was incompetent to participate in a trial. In sum, the trial court did not have reason to believe that mental disease or fitness to proceed were at issue and did not err in denying the request for further psychiatric evaluation.

Appellant next contends that the trial court committed prejudicial error in allowing one of the victims to testify that, on route to Memphis and outside the jurisdiction of the Washington County Circuit Court, appellant committed a second rape. We cannot reach the full argument because appellant failed to abstract the allegedly prejudicial testimony concerning the second rape. Ark. Sup. Ct. R. 4-2(a)(6); Coney v. State, 319 Ark. 709, 894 S.W.2d 583 (1995). We reach only that part of the argument involving the initial evidentiary ruling. The testimony of the victim was relevant in determining whether appellant kidnapped the victims “for the purpose of terrorizing them and for engaging in sexual intercourse with them” as charged in the information. See Ark. Code Ann.,§ 5-ll-102(a)(4) - (5). Further, the trial court did not abuse its sound discretion in ruling that the probative value of the relevant evidence outweighed any danger of “unfair” prejudice. See A.R.E. Rule 403.

Affirmed.


text:
    Earl E. SMITH v. STATE of Arkansas
    CR 95-241
    906 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      Wallace, Hamner, & Adams, by: Dale E. Adams, for appellant.

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

Appellant was charged with capital murder after he confessed to killing Tommie Wilbarger. He moved to suppress his confession, but the trial court denied the motion. The State subsequently agreed to reduce the charge to first degree murder upon appellant’s conditional plea of guilty. Appellant entered a conditional plea of guilty to first degree murder, and the trial court sentenced him to life imprisonment. He appeals from the trial court’s denial of his motion to suppress. See A.R.Cr.P. Rule 24.3(b). We affirm the trial court’s ruling.

The facts surrounding the confession are as follows. At 2:40 p.m. on February 21, 1994, Tommie Wilbarger, an employee of the Little Rock School District, was reported missing from the school where she worked. Her family gave appellant’s name to the Little Rock police as a person who might have some information about her disappearance. Ms. Wilbarger and appellant had lived together in the past.

In his first statement to the police, appellant stated that Tommie Wilbarger’s sister called his mother’s home in Fordyce on the morning of the 22nd and told him that Ms. Wilbarger was missing. He said that he immediately called the Little Rock Police Department from his mother’s house and spoke with Detective Leslie. The record is not clear as to whether a policeman asked Ms. Wilbarger’s sister, or anyone else, to have appellant call the police department. However, there was substantial evidence from which the trial court could find that appellant was in Fordyce and called the Little Rock Police Department of his own volition. The police so testified, and, in appellant’s first statement, the following question and answer appear:

Det. Oberle: Did you call down here to the police department this morning?
Appellant: Yeah. Soon as, she gave me the number, my sister gave me the number, I called right then.

Detective Joe Leslie testified that at 7:00 a.m. on February 22, or the morning after the missing person report was received, appellant called the police department and said that he understood that some detectives were looking for him to ask about Tommie Wilbarger’s disappearance. Detective Leslie was not aware of the missing person report. He looked in the police files and found a report stating that Tommie Wilbarger was missing and her family thought that appellant might be involved in some way. After reading the written report, Detective Leslie asked appellant to come to the Little Rock Police Department and talk with the detectives assigned to the case since they were trying to get some information on Ms. Wilbarger’s disappearance. In his first statement, appellant said that after calling the Little Rock Police Department he drove from Fordyce to Little Rock and went to the police station. Detective Joe Oberle, who was assigned to the missing person case on the morning of the 22nd, testified that appellant arrived at 11:45 that morning. Detective Oberle testified that he was not in the station when appellant arrived, but he returned to the station immediately after being informed that appellant was there. Detective Oberle and Detective Nicholas, the other detective assigned to the missing person case, interviewed appellant in Sergeant Steelman’s office. Entrance from the street into Sgt. Steelman’s office is controlled by an electronic device that must be activated before entry, but to leave one only has to push a button and the doors open. Appellant was never taken to one of the interrogation rooms back in the police department.

Detectives Oberle and Nicholas testified that they did not know a crime had been committed when appellant came in to talk to them, and obviously they did not consider appellant to be a suspect in a murder. Neither detective told appellant that he was there voluntarily or that he was free to leave. Detective Oberle testified that appellant phoned the police station from Fordyce and said he would drive to Little Rock to talk about his missing ex-girlfriend, and there did not seem to be any reason to stop the conversation and say, “By the way, Earl, you know you have the right to leave." The detectives stated that appellant was free to leave at any time.

Starting at 12:09 a.m. and concluding at 12:39 a.m., appellant gave a detailed exculpatory statement in which he said that Ms. Wilbarger was with him in his car on the morning of the 21st, he took her back to the school, and that was the last he had seen of her. The detectives asked appellant if he had driven the same car to the police department. He answered affirmatively. The detectives asked if they could search the car. Appellant again answered affirmatively and signed a consent-to-search form.

The detectives testified that they smelled a strong odor of soap or cleaning fluid emanating from the car and they saw blood splattered on the door. They found an empty holster under one car seat and a hole in the passenger seat with an object imbedded in it, which they thought was a projectile from a bullet. They discovered blood on the passenger seat. The detectives testified that at that point they concluded that a homicide likely had been committed and appellant was the primary suspect.

The detectives testified that after searching the car they returned to the station and informed appellant of his Miranda rights. Appellant, who had a twelfth-grade education and was about forty years old, stated that he understood his rights and signed a waiver of rights form at 1:10 p.m. that same day. After appellant executed the form, .the detectives took a second taped statement.

In the second statement, appellant said that he had driven from Fordyce to Little Rock to tell them that he had killed Ms. Wilbarger and they could search his car and find the evidence, but “it took a while.” That part of the statement is as follows:

Appellant: Well, the reason I came up to Little Rock today, I, I knew I was going to tell you what happened. But it just took a while. That’s why I gave you the consent to go and look in the car, ’cause I wanted you to find for yourself.
Det. Oberle: You wanted to tell me you killed her?
Appellant: Yeah, but I wanted you to, that’s why I gave you the consent, that’s why I drove the car up here.

At the end of the taped statement, appellant said:

Appellant: Yeah. I just didn’t know how to go about it. I wanted to tell y’all exactly the truth. Just didn’t know how to go about it.
Oberle: Okay.
Appellant: I want to help any way I can.

Appellant told the detectives where the gun was located and where he had disposed of the body.

Appellant’s argument is that he was “seized” without probable cause, and the subsequent consent to search and confession were fruits of the illegal seizure. On appeal from a trial court’s ruling on a motion to suppress evidence, this court makes an independent determination based on the totality of the circumstances and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. Hudson v. State, 316 Ark. 360, 364, 872 S.W.2d 68, 71 (1994).

In the first part of his argument appellant contends that he was illegally seized under the provisions of A.R.Cr.P. Rules 2.2 and 2.3. Rule 2.2 provides that a law enforcement officer may request a person to give him information and cooperate in an investigation, but the law enforcement officer cannot indicate to the person that he must comply with the request. Rule 2.3 provides:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

Appellant argues that Detective Leslie was acting under the authority of A.R.Cr.P. Rule 2.2 when he asked him to come to the Little Rock Police Department and give information, and that Detectives Oberle and Nicholas were acting under the authority of the same rule when they questioned him. He then contends that each detective admitted he did not inform appellant he was there on a voluntary basis or that he was free to go; consequently, they violated Rule 2.3, and there was an illegal seizure of appellant. See Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993). The argument is without merit.

There was substantial testimony from which the trial court could have found that appellant did not go to the Little Rock Police Department as a result of a request by a member of that department, but rather that he went there on his own volition, or at the request of his sister. Thus, there was substantial evidence that the interview did not come within the ambit of Rules 2.2 and 2.3 and there was no illegal seizure of appellant under the applicable Arkansas Rules of Criminal Procedure.

Appellant additionally contends that he was seized within the meaning of the Fourth Amendment. In United States v. Mendenhall, 446 U.S. 544, reh’g denied, 448 U.S. 908 (1980), the Supreme Court set forth guidelines for determining whether a person has been seized:

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Id. at 554 (citations omitted). In Mendenhall, the defendant was stopped in an airport by two federal agents and asked to show them her identification and ticket. After returning the identification and ticket, the agents asked the defendant if she would go with them to their office. The defendant consented. The Court held that neither the questioning on the concourse nor the request to accompany the agents to the office and the ensuing questioning constituted a seizure. As to the interlude on the concourse, the Court stated:

In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents’ initial approach to her was not a seizure.
Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed.

Id. at 555 (citation omitted).

In holding that the request to go to the office was not a seizure, the Court stated:

The District Court specifically found that the respondent accompanied the agents to the office ‘“voluntarily in a spirit of apparent cooperation.’” Notwithstanding this determination by the trial court, the Court of Appeals evidently concluded that the agents’ request that the respondent accompany them converted the situation into an arrest requiring probable cause in order to be found lawful. But because the trial court’s finding was sustained by the record, the Court of Appeals was mistaken in substituting for that finding its view of the evidence.
The question whether the respondent’s consent to accompany the agents was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the totality of the circumstances, and is a matter which the Government has the burden of proving.

Id. at 557 (citations omitted). See also Dees v. State, 30 Ark. App. 124, 783 S.W.2d 372 (1990), in which the court of appeals held that the defendant voluntarily accompanied the officers to the police station to make a statement as a witness, not a suspect, even though she was not told that she did not have to go.

In the case before us, there was no threat in a request for appellant to come to the police station. There was no evidence that either detective displayed weapons after appellant arrived at the station. There was no evidence of a physical touching, language, or a tone of voice, indicating that appellant was compelled to be there. Appellant was never taken to an interrogation room. The detectives did not even know that a crime had been committed when they interviewed him. There was no meaningful delay between the time of the interview, the consent to search, and the confession. Thus, there was substantial evidence from which the trial court could have found that appellant was acting “voluntarily in a spirit of apparent cooperation.” Mendenhall, 446 U.S. at 557. The trial court correctly ruled that appellant was not seized under either the Arkansas Rules of Criminal Procedure or the Fourth Amendment. Because of this holding, we need not reach appellant’s other arguments.

The sentence in this case is life imprisonment. Consequently, we would ordinarily examine the record to determine whether there were other rulings adverse to appellant which constituted prejudicial error. Ark. Sup. Ct. R. 4-3 (h). However, in this case there was a conditional plea of guilty, and upon an appeal from such a plea we review only the adverse determination of the pretrial motion to suppress evidence. A.R.Cr.P. Rule 24.3(b). We have held that the new sentencing procedures have created another exception, but that exception is not applicable to this case. See Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

Affirmed.