author:
Robert L. Brown, Justice.
      Tom Glaze, Justice,

text:
    Ray RENFRO v. STATE of Arkansas
    CR 97-547
    962 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998

      William L. Howard, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Ray Renfro was charged with the illegal disposal of waste under Ark. Code Ann. § 8-6-205 (Supp. 1995), after he was observed with other men dumping rotten potatoes at a site near connecting waterways in Craighead County. After a jury trial, Renfro was found guilty and fined $2,000.00. He brings this appeal, asserting three points for reversal. We hold that one point raised has merit, and we reverse and remand for a new trial.

In its criminal information, the State specifically charged that on June 19, 1996, Renfro illegally disposed of solid waste on property owned by another person without the written permission of the owner or occupant of the property. The State’s charge tracked the language set out in § 8-6-205 (a) (4).

The operative criminal statute for the illegal disposal of waste can be violated in alternative ways in addition to that specified under subsection (a)(4). It is a violation of the statute, for example, to dispose of solid waste at a site for which a permit has not been issued by the Arkansas Department of Pollution Control and Ecology. Ark. Code Ann. § 8-6-205(a)(3) (Supp. 1995). The criminal statute can also be violated if the disposal of solid waste creates a public nuisance or health hazard or constitutes water or air pollution. Ark. Code Ann. § 8-6-205(a)(5) (Supp. 1995).

Renfro was not charged with the illegal conduct set out under subsections (a)(3) or (a)(5), although the State submitted an instruction that included alternative violations under subsections (a)(3), (a)(4), and (a)(5). Renfro objected to the inclusion of subsections (a)(3) and (a)(5) in the instruction but the trial court overruled the objection on the basis that the alternative violations were not separate offenses but alternative means of committing one offense. The jury was then instructed that if it found Renfro guilty of conduct under any one of the three subsections, it could find him guilty of the crime of illegal disposal of waste.

We conclude that this was error. The jury was so instructed by the trial court even though the prosecutor never amended the criminal information to include other prohibited conduct under § 8-6-205. The jury returned a verdict of guilty without specifying which category of conduct amounted to a violation. Thus, we have no way of knowing whether the jury found Renfro guilty of disposal of waste on another’s property [(a)(4)], or disposal without a permit [(a)(3)], or creating a public nuisance, hazard, or polluted condition [(a)(5)].

In Williams v. State, 302 Ark. 234, 788 S.W.2d 241 (1990), this court emphasized that a criminal information must contain the elements of the crime so that a defendant can adequately prepare the case against him or her. We held, as a result, that the language of the information in that case limited the State to proof of those specific elements set out in the information and that proof of other elements constituting separate crimes constituted a fatal variance. The facts in Williams are somewhat different from the facts in the instant case in that no proof of the charged offense under subsection (a)(4) was forthcoming in that case, while in the instant case proof of the charged offense was presented by the State. Nevertheless, the Williams decision relied in part on Stirone v. United States, 361 U.S. 212 (1960), and that case has facts analogous to the facts in the instant case.

In Stirone, the defendant was indicted for interference with interstate commerce and extortion related to a contract to supply sand for ready-mixed concrete. The district court allowed evidence to come in relating to extortion and contracts to supply steel, conduct for which the defendant was not indicted. The district court then charged the jury that either the conduct relating to the sand or the steel might constitute a violation, and the defendant was convicted without specification of which activity resulted in the guilty verdict. The Supreme Court reversed the conviction and first underscored the fact that it was the grand jury and not the district court that could change the charge. The Court went on to say that the district court impermissibly allowed the defendant to be tried on charges not brought in the indictment against him. The Court stated:

And it cannot be said with certainty that with a new basis for conviction added, Stirone (the defendant) was convicted solely on the charge made in the indictment the grand jury returned. Although the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same.

Stirone, 361 U.S. at 217. The Court added that the defendant was deprived of a basic right to be tried only on charges presented against him and that the matter was “too serious” to be treated as nothing more than harmless error. Id.

The Court concluded:

Yet because of the court’s admission of evidence and under its charge this (the conduct relating to steel) might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This is fatal error.

Id. at 219 (citations omitted). See also State v. Elliott, 585 A.2d 304 (N.H. 1991) (reversible error for jury instruction to alter the criminal indictment by instructing on a separate crime —that the defendant caused the death of the victim as opposed to the charged offense of shooting the victim); State v. Blankenship, 480 S.E.2d 178 (W. Va. 1996) (reversible error for trial court to change the charge by instructing the jury on a charge not covered in indictment).

The instant case is comparable to Stirone. The trial court instructed the jury that violation of subsections (a)(3) and (a)(5) constituted illegal disposal of solid waste even though Renfro had not been charged with that conduct. In doing so, the trial court altered the criminal information, and the jury may well have returned a guilty verdict for activity that was not the subject of the criminal information filed against Renfro. Hence, as we noted in Williams v. State, supra, Renfro had no opportunity to prepare a defense to those separate charges.

We are aware that in this case Renfro did not object to the testimony of George Turner, an inspector with the Arkansas Department of Pollution Control and Ecology, that the dumping of solid waste was occurring without a permit [subsection (a)(3)]. There apparently was no opportunity to object to evidence that the dumping constituted a public nuisance [subsection (a)(5)], since no one specifically testified to that fact. In Stirone v. United States, supra, an objection to the evidence relating to the transportation of steel and extortion in connection therewith was made. Be that as it may, there was no indication from the court that the objection in Stirone was a prerequisite to appellate review of the jury instruction that constituted the fatal variance. Moreover, the presence or absence of an evidentiary objection was not even broached in State v. Elliott, supra, State v. Blankenship, supra, or this court’s decision in William v. State, supra. We do not view the failure to object in this case as the pivotal point. It was, rather, the instruction by the trial court on uncharged crimes that was the fatal error, and in the Stirone case and the instant case objections were mounted by the defendants at the instruction stage. And, again, with regard to the instruction of dumping as a public nuisance [subsection (a)(5)], there was no specific evidence introduced on this point.

Furthermore, we can easily see how Renfro might have concluded that the evidence of no permit was introduced against him in connection with the crime charged of dumping solid waste on another’s property, and not as a separate offense. The only witness to testify to this point was George Turner, who described the condition of the area. He failed, though, to use the term “public nuisance” in his testimony and mentioned only once the requirement that a person obtain a permit to operate a dump site. This testimony, in our judgment, was not sufficient to alert Renfro to the fact that the jury would be instructed on two additional offenses.

Finally, the State urges that Renfro should have proffered the correct instruction and that he waived his objection by failing to do so. The State cites us to Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997), and Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996), as authority. Neither case, however, is apposite. In Dixon v. State, supra, the defendant wanted an instruction that contained an omitted element of the offense “continuing criminal activity and/or gang related activity” — and failed to proffer one. In Wallace v. State, supra, the defendant wanted the jury instructed on the lesser-included offense of robbery but, likewise, failed to proffer the desired instruction. Here, Renfro did not want an additional instruction or an instruction with certain elements. Thus, there was no need for him to proffer an instruction. He objected only because he wanted the jury instructed on the crime charged and not on separate offenses. This did not warrant the proffer of a separate instruction.

We have made it clear that it is the prosecutors who can bring or amend a criminal charge and not the trial courts. See, e.g., State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 451 (1997); State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994); State v. Pulaski County Circuit Court, 316 Ark. 514, 872 S.W.2d 414 (1994) (per curiam); State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992); State v. Hill, 306 Ark. 375, 811 S.W.2d 323 (1991) (per curiam). The prosecutor in this case made no attempt to amend the criminal information. It was the trial court that did so, in effect, by means of its instruction to the jury on offenses not charged. We agree with the Stirone reasoning that this cannot be harmless error but is fatal to the conviction. We, therefore, reverse and remand for a new trial.

There is one other point raised on appeal that may reoccur in a new trial on remand. Renfro contends that the State failed to show that he did not have permission to dump the waste and that the permission element was one that the State had to prove. We disagree. Whether Renfro had received written permission under Ark. Code Ann. § 8-6-205(a)(4) (Supp. 1995), to dump waste is a defense which was Renfro’s burden to prove. In this respect, a defense is defined as any matter involving an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to introduce supporting evidence. Ark. Code Ann. § 5-1-111 (c)(3) (Repl. 1993). The “written permission” required in § 8-6-205 (a) (4) creates a defense under § 5-l-lll(c)(3), because such a matter was peculiarly within Renfro’s knowledge. See Fendley v. State, 314 Ark. 435, 863 S.W.2d 284 (1993) (court held “authorization” clause in Ark. Code Ann. § 5-73-103 (Supp. 1991), which permits a felon to possess a firearm if authorized by the Governor or the Treasury Department, created a defense as defined by § 5-1-111 (c)(3) for which the defendant was obliged to present evidence).

Reversed and remanded.

Arnold, C.J., Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. Because the majority opinion fails to reveal that any error, much less prejudicial error, occurred to support reversing this case, I must dissent.

Here, the State charged Ray Renfro with violating Ark. Code Ann. § 8-6-205 (1987), thereby committing the offense of Illegal Disposal of Waste. Under § 8-6-205, a person can commit the one offense in three different ways. See § 8-6-205(a)(3), (4), and (5). The State’s information cited the entire statute, but specifically set out prohibited conduct tracking the 205(a)(4) provision, stating that, on June 19, 1996, Renfro illegally disposed of solid waste upon property owned by another person without the written permission of the owner or occupant of the property.

At trial, undisputed proof was shown that, on June 19, 1996, three law enforcement officers on separate occasions saw Renfro and other men dumping rotten potatoes on property at a location near Twin Bridges in Craighead County. One officer said the property was owned by a drainage district, and, the burden clearly being Renfro’s, Renfro failed to show he had any permission, written or otherwise, to dump waste at the site. See Ark. Code Ann. § 5-1-111(c)(3) (1987) and Fendley v. State, 314 Ark. 435, 863 S.W.2d 284 (1993). Based on the foregoing proof given the jury, the State clearly showed Renfro committed the. offense of illegal disposal of waste as defined by § 8-6-205 (a) (4).

Even though Renfro’s guilty verdict is supported by undisputed evidence at trial, the majority opinion says the trial judge erred because, in addition to instructing the jury on illegal disposal of waste under 205(a)(4), he further instructed it on the offense as defined in 205(a)(3) and (5), as well. The State presented evidence, without objection, that supported these additional ways Renfro committed the offense.

To support its holding, the majority relies on Williams v. State, 302 Ark. 234, 788 S.W.2d 241 (1990), which is simply not applicable. There the State charged Williams with falsifying business records in violation of Ark. Code Ann. § 5-37-202(a)(1) — one of four means by which the crime could be shown. Id., see § 5-37-202(a)(1)-(4). At trial, however, the State failed to prove Williams committed the crime under 202(a)(1), and on appeal, Williams claimed the trial court should have directed a verdict. In response, the State contended it was not limited to proving the crime under 202(a)(1), but instead the State could show Williams’s guilt by showing his prohibited conduct violated any of the statute’s four subsections. Williams, 302 Ark. at 237, 788 S.W.2d at 243. The Williams court reversed, holding that the language of the information limited the State’s proof to those specific elements set forth in the information, and to attempt to prove any of the other three subsections would constitute a fatal variance between the information and the proof. Id.

Obviously, the Williams case is far different from Renfro’s situation because, in Williams, the State never proved its case as pled in its information; here the State unquestionably charged and proved that Renfro had violated § 8-6-205(4). Thus, no variance whatever existed between the information and the proof.

The majority opinion also attempts to justify its reversal by citing Stirone v. United States, 361 U.S. 212 (1960)—another case which has no application to the facts and situation before us. There, Stirone was indicted with interfering with interstate commerce by extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. The only interstate commerce mentioned in the grand jury indictment involved importing sand into Pennsylvania to be used in building a steel plant there. Id. However, at trial, the judge, over Stirone’s objection, allowed the State to introduce evidence to show interference of interstate commerce by exporting steel from Pennsylvania to other states. Stirone, 361 U.S. at 214. In doing so, the judge also instructed the jury it could base a conviction upon interference with either the importation of sand or the exportation of steel. Id.

The Supreme Court in Stirone held the district judge had erred because (1) no court could know if the grand jury would have been willing to indict Stirone for his conduct based on the new charge involving the exportation of steel, and (2) it could not be said with certainty that, with the adding of the exportation charge at trial, the jury convicted Stirone solely on the indictment returned by the grand jury. The Court based its holding on the fact that the very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Stirone v. United States, supra. (Emphasis added.)

Excuse my reference to an old adage, but the majority opinion’s reliance on Stirone is like comparing apples to oranges. Here, the prosecutor, not a grand jury, brought the illegal disposal of waste charge against Renfro, and no question arises in the present case whether a group of fellow citizens would have indicted Renfro under the other subsections of statute § 8-6-205. But, most important, I point out, once again, that the prosecutor proved beyond any doubt that Renfro violated § 8-6-205 (a) (4) in the exact manner alleged in the information. Therefore, Renfro suffered no harm by the prosecutor having proved that Renfro also committed the same offense in the two other ways defined in § 8-6-205 (a) (3) and (5).

Finally, I underscore that the prosecutor, without objection by Renfro, introduced the testimony of George Turner, an employee with the Arkansas Department of Pollution Control and Ecology. That testimony bore on Renfro’s conduct and how that conduct violated the other two subsections set out in the illegal-disposal-of-waste statute. Again, since the State’s evidence already clearly showed Renfro had committed the offense under § 8-6-205 (a) (4), the question is what harm could Rerfro have suffered merely by the State’s offering other evidence of his guilt of the same offense. None. Again, no variance existed between the information and the State’s proof showing Renfro’s culpability under § 8-6-205(a)(4).

In addition, it is worthy to repeat that the State, without objection, presented evidence bearing on the two other ways Renfro violated § 8-6-205. The information filed against Renfro set out § 8-6-205, and Renfro cannot claim surprise of its content. Arkansas law is settled that a party is entitled to a jury instruction if there is some evidence to support it. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). The trial court was correct by instructing the jury on the law contained in § 8-6-205(a)(3) and (5), as well as (a)(4).

Because Renfro suffered no prejudicial harm, this case should not be reversed. Renfro violated the law, and it is a waste of judicial time to require the State to prove the same case against Renfro again. In fact, if the majority was correct in its analysis (it is not), the matter should be reversed and dismissed, not remanded. I would affirm.

Arnold, C.J., and Corbin, J., join this dissent.

       Though Renfro’s counsel objected generally to the alternative theories for guilt contained in the instruction, he specifically objected only to the alternative theory of dumping solid waste without a permit.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Jackie Lee WILLIAMS v. STATE of Arkansas
    CR 97-1089
    962 S.W.2d 329
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998

      Jack R. Kearney, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Jackie Lee Williams, was convicted of the rape of Venita Campbell and sentenced to life in prison. He appeals on two issues: (1) that the evidence failed to establish commission of the crime charged; and (2) that the trial court erred in failing to dismiss the charge against Williams because the State’s proof materially varied from the charging information on when the rape occurred. We hold that Williams’s points are without merit, and we affirm.

Williams was initially charged with raping Venita Campbell sometime between August 1, 1994, and December 1, 1994. He subsequently moved the circuit court to require the State to file a bill of particulars revealing the date, time of day, and location where the alleged rape took place. The State responded by amending its information to charge that the crime took place sometime in May 1994. The State also filed an amended bill of particulars which disclosed that the State would prove that the crime took place approximately in May 1994 at an abandoned house at the intersection of Twenty-second and Martin Streets in Little Rock. The State then filed a second amended information charging Williams as a habitual offender with four or more prior felonies.

Williams was convicted of the rape, but the jury deadlocked on the appropriate punishment. The trial court sentenced Williams to life imprisonment, and judgment was entered.

I. Sufficiency of the Evidence

Williams first contends that the evidence of rape was insufficient. Our oft-stated standard of review for sufficiency of the evidence is as follows:

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997).

At trial, the victim, Venita Campbell, was the sole witness called by the State. Campbell testified that she met Williams through an acquaintance named Steve Giggers, who told her that Williams was his cousin. She admitted that before the incident in question, she had consensual sexual intercourse with Williams at Giggers’s home in exchange for money. She testified that later, in May 1994, she was walking down the street when Williams approached her on a bicycle and said: “Well, you want to do something, and I’ll pay you[,]” to which she agreed. She testified, however, that she wanted to go to Giggers’s house, while Williams wanted to take her to a house on Martin Street where his sister, Daphne Williams, used to reside.

She explained that once she arrived at the now abandoned house on Martin Street, she became suspicious, stood by the door, and demanded the $10 in payment before entering. At that time, Williams, who was already inside the house, became impatient and grabbed her from behind. He put his hand over her mouth, forced her into a bedroom, and threw her down on a mattress on the floor. She testified that Williams began to choke her, started to take off her clothes, and shoved either her underwear or a sock down her throat. She explained that Williams removed a shoestring from one of her tennis shoes and tied her hands behind her back. He then rolled her over, engaged in sexual intercourse against her will, and ejaculated on her stomach and chest.

When he finished, Campbell testified that Williams told her: “Bitch, I’m going to have to kill you ‘cause you gonna tell.” At that point, Williams turned her over on her stomach, took the shoestring from her other tennis shoe, wrapped it around her neck, and began choking her to the point that she believed she would die. Campbell testified that she began kicking her legs and that he choked her so hard that she urinated on herself. She told the jury that he stopped choking her and said he would not kill her but warned: “Well, bitch, if you tell anybody, I’m going to kill you. I swear I’ll kill you.”

She testified that after the event, she told a female friend about the rape, and the friend promised not to tell anyone. Campbell believed that the incident occurred in May 1994 because of the weather and the fact she was wearing a pink sweatshirt and blue jeans, although she could not pinpoint a date. She admitted that she initially told police officers that the incident took place in the fall of 1994.

On cross-examination, Campbell admitted that at the time of the alleged rape, she used drugs. The question of when the incident occurred was broached by defense counsel numerous times on cross-examination, and Campbell explained that it occurred “approximately” in May 1994 based on the weather, even though she initially told law enforcement that it occurred in the fall of 1994. She later admitted that it could have been spring or fall. She explained: “All I know is the weather was fairly cool, and it was cool enough for that sweat shirt I had on.”

After her testimony, Williams moved for a directed verdict on the basis that Campbell was unclear on the date the rape occurred and other “key elements” of the charge. The trial court denied Williams’s motion. Daphne Williams, appellant’s sister, then testified for the defense that in May 1994, she resided at 2305 Martin Street, which was the abandoned house in which Ms. Campbell alleged the rape occurred. She testified that during May 1994, she received Medicaid and Food Stamps and produced a computer printout from the Department of Human Services that reflected her address as 2305 Martin Street and contained the dates May 2, 1994; May 12, 1994; and May 30, 1994, for receipt of benefits. Steve Giggers also testified that Daphne Williams lived at 2305 Martin Street in May 1994.

Turning to the law on this point, the State charged Williams with engaging in sexual intercourse with Campbell by forcible compulsion, and the jury was instructed accordingly. See Ark. Code Ann. § 5-14-103(a)(l) (Repl. 1993). This court has stated on numerous occasions that the uncorroborated testimony of a rape victim is sufficient to support a conviction, if the testimony satisfies the statutory elements. See, e.g., Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997); Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997); Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997). Inconsistencies in the testimony of a rape victim are matters of credibility for the jury to resolve. Rains v. State, supra; Puckett v. State, 324 Ark. 81, 718 S.W.2d 707 (1996). It is within the province of the jury to accept or reject testimony as it sees fit. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994); Smith v. State, 314 Ark. 448, 863 S.W.2d 563 (1993); Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993).

To counter Campbell’s testimony, Williams asserts the following: her testimony was inconsistent and contradictory; she could not relate the month during which the event occurred; she admitted to drug usage; she could not point to any visible scars or bruises as a result of the attack; she could point to no other evidence to corroborate her story; and the house was not abandoned in May 1994.

However, viewing only the evidence favorable to the State as we must, and acknowledging that matters of credibility are for the jury to resolve, the evidence easily suffices to support the jury verdict.

II. Material Variance

Williams next claims that a material variance occurred between the criminal information and the State’s proof which was unduly prejudicial to his defense. We initially look to what constitutes a sufficient criminal information. On that point, this court recently stated:

An information or other charging instrument is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). An information is sufficient if the act or the omission charged as the offense is stated with a degree of certainty that enables the court to pronounce judgment on conviction. Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996). A variance between the wording of an indictment or information and the proof at trial does not warrant reversal unless the variance prejudices the substantial rights of the defendant. Id.

McElhanon v. State, 329 Ark. 261, 264, 948 S.W.2d 89, 91. This court has found material variances which violated the substantial rights of the defendant only in limited circumstances. See, e.g., Williams v. State, 302 Ark. 234, 788 S.W.2d 241 (1990) (material variance where the State attempted to prove the crime of falsifying business records through elements of the crime not contained within the information); Von Tonglin v. State, 200 Ark. 1142, 143 S.W.2d 185 (1940) (material variance where the offense proved was the theft of a cow belonging to Mrs. F.S. Randolph when the offense charged was the theft of a cow belonging to Joe Randolph); Clemons v. State, 150 Ark. 425, 234 S.W. 475 (1921) (material variance where the State proved the theft of a steer when the offense charged was the theft of two cows).

Williams contends that a material variance existed because the State did not prove that the rape occurred between May 1, 1994, and May 31, 1994, as set out in the amended information. As a result, he contends that he was hamstrung in his efforts to focus his defense on a given period of time. Williams appears, however, to concede that this court has held the precise time is not an essential element of the crime of rape. See Rains v. State, supra; Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).

Nevertheless, we dispose of this point based on Williams’s failure to preserve this issue for our review. We have scoured the record for a motion to dismiss based on material variance. The only time the issue of an unproved date was raised at trial was in Williams’s motion for directed verdict and the renewal of that same motion, and this issue was in the context of insufficient evidence presented by the State. We will not address arguments, even constitutional arguments, mounted for the first time on appeal. Davis v. State, supra; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997); McGehee v. State, supra.

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

Affirmed.


author: Per Curiam.

text:
    Michael CATLETT v. STATE of Arkansas
    CR 96-787
    962 S.W.2d 313
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998

      Craig Lambert, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Michael Catlett, was convicted of capital murder and was sentenced to life without parole. We affirmed the conviction and sentence in Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995). Catlett subsequently sought postconviction relief pursuant to A.R.Cr.P. Rule 37. The Trial Court denied relief. We affirm.

Catlett was charged with capital murder for the shooting death of his former girlfriend, Stephanie Jungkind, on October 1, 1993. To support its theory that the murder was premeditated, the State introduced several witnesses during the trial whose testimony indicated that Catlett harassed Ms. Jungkind during the summer prior to the murder, that he made travel arrangements immediately before the murder, and that he purchased the murder weapon at a local pawn shop. Additionally, the State also used these witnesses, some of whom also testified concerning Catlett’s apparently normal behavior during the summer of 1993, to contradict Catlett’s insanity defense.

Page Jungkind Oldnettle, Ms. Jungkind’s sister, testified that Catlett and her sister had a tumultuous relationship. She stated that after the couple ended their relationship in June of 1993, Stephanie came to live with her and that shortly thereafter, they started to receive several phone calls late at night. Mrs. Oldnettle testified that the caller would ffequendy hang up, but that sometimes it would be Catlett asking to speak to Stephanie. Mrs. Oldnetde also stated that she called the police on June 16, 1993, when Catlett came to the house, banged on the door, and demanded to see Stephanie.

Mrs. Oldnettle’s neighbor, Lisa Cunningham, also testified that on several evenings during the summer of 1993, she would see Catlett’s car, a red Honda CRX, driving slowly up and down the street. Ms. Cunningham stated that on these occasions, the CRX would make at least two or three trips.

Kevin King, the manager of a temporary employment agency in Little Rock, testified that Stephanie Jungkind began working for him on July 23, 1993. He testified that shortly thereafter, his agency began to receive several phone calls from Catlett. Mr. King also testified that he met Catlett when he came to the agency to apply for employment. Mr. King stated that Catlett was dressed in a coat and tie, and that he came prepared with a professional resume.

Victoria Santos was a legal secretary with the law firm where Stephanie Jungkind was placed in August of 1993. Ms. Santos testified that Ms. Jungkind trained at the law firm for one week in the beginning of August, and then returned for an extended period of employment at the end of the month. Ms. Santos stated that after Ms. Jungkind began working at the firm, they started to receive five to ten hang up phone calls a day. Ms. Santos also testified that in the third week of September, 1993, threatening graffiti was drawn in the parking place that was adjacent to the spot where Ms. Jungkind usually parked her car. Ms. Santos stated the graffiti read “Lucifer wants your soul, Stephanie Jungkind bitch.” Photographs depicting the graffiti were also introduced during Ms. Santos’s testimony.

Michelle McElroy, a deputy prosecuting attorney in Pulaski County, was contacted by the law firm in connection with the graffiti in the parking lot. Ms. McElroy testified that she met with Ms. Jungkind, who told her of the problems she’d been having with Catlett. Ms. McElroy recommended that Ms. Jungkind seek a protective order. Ms. McElroy, for her own part, sent a warning letter to Mr. Catlett. She also testified that she had two telephone conversations with Cadett in which she discussed the harassment, the restitution that must be made to the law firm for the graffiti, and the protective order. Ms. McElroy stated that Catlett seemed “professional” during these conversations.

Tracy Keith, a friend and neighbor of Paige Oldnetde, testified that on a morning shortly before the murder, she saw graffiti on two places on the street. According to Ms. Keith, the graffiti read, in part, “Lucifer is coming for you,” and “death takes all souls, Stephanie bitch Jungkind.” Steve Keith, Tracy Keith’s husband, testified that, in addition to the graffiti that was on their street, he saw similar graffiti in Murray Park.

Other witnesses testified about Catlett’s effort to obtain the murder weapon, a Lorcin .380 automatic pistol, approximately two weeks before the murder. Suraj Wagh, one of Catlett’s former co-workers, testified that he saw Catlett on September 23, 1993, at a local pawn shop. Mr. Wagh stated that Catlett explained that he was living downtown and wanted to buy a pistol for protection. Mr. Wagh also testified that Catlett appeared tired, but that he seemed “all right, normal.”

Dave Niggel is the manager of the pawn shop where Mr. Wagh saw Catlett on September 23, 1993. Mr. Niggel testified that after a long discussion about guns, Catlett decided to purchase a Lorcin .380. Mr. Niggel also testified that Catlett “didn’t act fidgety or nervous,” and that “he just seemed like a man who wanted to buy a gun.” The sale was not completed, however, because Mr. Niggel discovered that Catlett lied on the portion of the federal firearms form that inquired as to whether he had a prior commitment to a mental institution.

Gary Aldrich is the owner of another local pawn shop where Catlett sought to purchase a gun. Mr. Aldrich testified that Catlett “seemed like a nice-looking young man,” and that he seemed appropriately oriented to time and place. Mr. Aldrich also testified that Catlett selected a Lorcin .380 automatic handgun, and that the sale was completed after Catlett completed the federal firearms form.

Rita Hawkins testified that she rode with Catlett to a travel agency approximately two weeks prior to the shooting. She stated that Catlett went into the agency for a few minutes and then came back out with an envelope in his hands. Ms. Hawkins testified that she did not see the contents of the envelope.

Christine Rogers testified that she met Catlett on September 14, 1993, and that they dated for two and a half weeks afterward. Ms. Rogers stated that Catlett talked about Ms. Jungkind often, and that he was angry and resentful towards her. Ms. Rogers also testified that she saw the handgun in the glove compartment of Catlett’s car. On one of their dates, Catlett told Ms. Rogers that he was manic-depressive and that “someone who is manic-depressive could kill someone and get off on insanity.”

Kevin Carpenter, a college friend of Catlett’s, testified that he saw Catlett before the shooting, and that Catlett said that he was going to kill Ms. Jungkind. Mr. Carpenter stated that he also saw Catlett on the day of the shooting, and that he did not talk that much, and that he “was in a strange state.”

John Dahlstrom testified that on the day of the murder, he and Ms. Jungkind were sitting at the bar at Pizza D’Action in Little Rock when Catlett arrived at the restaurant. It was approximately six-thirty in the evening. According to Mr. Dahlstrom, Catlett sat across from them at the bar and stared at them, and then left. Soon afterward, Mr. Dahlstrom walked Ms. Jungkind to her car. Catlett was still in the parking lot. Mr. Dahlstrom testified that he was the first to leave.

The testimony of several eyewitnesses indicated that Catlett followed Ms. Jungkind to the intersection of Rodney Parham and Mississippi in Little Rock. According to these witnesses, Catlett’s car was next to Ms. Jungkind’s vehicle at the intersection. Catlett began firing into Ms. Jungkind’s vehicle. After the first shot, the pistol jammed. Catlett apparently unjammed the pistol and fired again. The shots struck and killed Ms. Jungkind. After firing the shots, Catlett fled the scene at a high rate of speed and was eventually apprehended by the police.

Detective Joe Leslie of the Little Rock Police Department discussed the incident with Catlett. Detective Leslie testified that Catlett stated that he shot Ms. Jungkind because he was mad at her because she had sued him. Catlett admitted to Detective Leslie that Ms. Jungkind was justified in her actions because he had harassed and stalked her. Cadett also admitted to painting satanic symbols to scare Ms. Jungkind. Detective Leslie added that Catlett was very cool and calm during their conversation, and consequently, the fact that he was a mental patient “struck me like a bolt out of the blue.”

At the trial, the facts surrounding the murder were undisputed. Catlett’s defense, however, was that his mental illness rendered him incapable of forming the intent required for murder and, in addition, asserted the affirmative defense of not guilty by reason of mental disease or defect.

The first witness called by the defense was Dr. Irving Kuo, the supervising psychiatrist for Catlett during several commitments at the State Hospital. Dr. Kuo testified concerning Catlett’s history of treatment for mental health problems. In 1985, Catlett was hospitalized at Tulane Medical Center for overdosing on antidepressant medication. In the Spring of 1991, Catlett was hospitalized at Bridgeway in North Little Rock because he attempted suicide by trying to cut his wrists and by taking an overdose of Tagamet. The discharge diagnosis at that time was alcohol dependence and depression. In the Fall of 1991, Catlett was treated at Baptist Medical Center for overdosing on over-the-counter sleeping pills.

In 1992, Catlett was involuntarily committed to the State Hospital because he was exhibiting very erratic behavior. According to Dr. Kuo, Catlett was grandiose, delusional, and was also hearing voices. The discharge diagnosis from the State Hospital was bipolar disorder, or manic depression, and alcohol dependence. Dr. Kuo characterized Catlett as being “a very disturbed young man” during his stay.

Catlett was again involuntarily committed to the State Hospital in June of 1993. Dr. Kuo stated that Catlett was once again grandiose and delusional, but that he was also violent and “concerned about a recent breakup with his girlfriend.” According to Dr. Kuo, Catlett “eloped,” or left the hospital, three times during this commitment. Catlett did not return to the hospital after the third elopement. Once again, the final diagnosis was that Catlett was in the manic phase of bipolar disorder, and that he was alcohol dependent.

Walter Catlett, Catlett’s older brother, also testified for the defense. Walter testified, as did Dr. Kuo, that Catlett attempted to commit suicide as a freshman at Tulane University in 1987.

Walter, a Marine, stated that duty prevented him from having much contact with his brother until 1991, when he was assigned as a recruiter in Little Rock. Walter testified that at that time, his brother had just graduated from college and was having difficulty finding a job. Walter stated that his brother’s difficulty in finding a position was due to grandiosity, or his belief that he should be hired as the Chief Executive Officer with a six-figure salary.

Walter testified that Catlett was living in Dallas by the Spring of 1992, when Walter paid him a visit. Walter stated that at the time of his visit, Catlett was in an excited state, with accelerated behavior, and that it appeared as though he was spending many hours awake. Walter was later summoned to Dallas by one of Catlett’s friends after Catlett was arrested for attempting to steal a Cadillac. Catlett told his brother that he tried to take the Cadillac because he believed it was a gift from Ross Perot. According to Walter, Catlett believed himself to be Mr. Perot’s campaign manager. Walter brought his brother back with him to Little Rock and had him committed to the State Hospital for treatment.

Walter testified that Cadett was committed again in 1993. Prior to this commitment, Catlett was seen wearing dirty clothes and carrying a suitcase full of plagiarized poetry that he claimed he authored. Walter also stated that in the Summer of 1993, Catlett would frequently travel to Memphis and that he was “very grandiose.”

Chris Stowers, a friend of Catlett’s for over ten years, also testified. Mr. Stowers stated that he lived in Memphis during the Summer of 1993, and that Catlett would visit him during his elopements from the State Hospital. Stowers described Catlett as having sporadic thoughts, and Stowers stated that Cadett “was not making much sense. He wasn’t Mike.” Stowers testified that Catlett, at one point, told him he “could not cope.” Stowers, consequently, drove Cadett back to Little Rock and saw him to the State Hospital.

When Stowers returned Catlett’s car to him in Little Rock a week later, he found Catlett at his downtown apartment in a disheveled state. Stowers stated that Cadett “was not clean, shaven, or showered,” and that “he seemed worse than when I had seen him a week earlier.” Catlett was also worried about living downtown, Stowers testified, and that he was contemplating buying a gun for protection.

Stowers testified that two weeks after that encounter with Catlett, Catlett returned to Memphis and stayed with him for ten days. Stowers described Catlett as looking “like he had been on the streets in Memphis.” He also stated that Catlett was unable to maintain a coherent conversation, and that “he wouldn’t give me any direct answers.”

Ellen Nixon, who was the mother of one of Catlett’s close friends, also testified. Ms. Nixon stated that she knew Catlett for approximately ten years, and that there was a “definite change” in his behavior during the Summer of 1993. She characterized his behavior as “extreme paranoia.” Ms. Nixon testified that Catlett thought planes or helicopters were following him. She also stated that during that summer, Catlett believed he was working for an underground newspaper that was run by someone who was also manic depressive.

The next witness to testify for the defense was Dr. Brad Diner, a psychiatrist from North Little Rock who was hired by the defense to conduct a psychiatric evaluation of Catlett. Dr. Diner testified that he performed the evaluation through three visits in jail with Catlett and a review of his medical records. He also interviewed Walter Catlett and his mother. The first visit with Catlett was in February of 1994. Dr. Diner characterized Catlett’s behavior during these visits as “very manic,” and “extremely paranoid, pressured and driven.” Dr. Diner also testified that he reached the same conclusion as Dr. Kuo when Catlett was previously discharged from the State Hospital — that he could not “function in a manner where he could take care of himself.”

Dr. Diner also characterized bi-polar disorder in the following manner:

Either depressed or manic phases can actually progress to where we have frank psychotic symptoms. That is, symptoms when you’re out of touch with reality. That’s probably more common in manic states. Manic individuals will elaborate that preoccupation with brilliance, and power and identity into frank, oftentimes bizarre delusions, that is, false beliefs about themselves that are very grandiose. They also become very paranoid.

Dr. Diner added that he believed that Catlett also had a narcisstic personality disorder. The doctor characterized narcisstic individuals as “grandiose,” and he stated that such people have greatly inflated self-esteem and are easily hurt and humiliated.

The doctor, at the conclusion of his testimony on direct examination, offered the following opinion: “I believe Michael Catlett was seriously emotionally disturbed the Summer of 1993, up to the time of the shooting on October the first. I believe he was seriously impaired.”

On cross-examination, however, Dr. Diner could not say with certainty whether Catlett’s behavior met both tests for legal insanity. He stated that at the time Catlett shot Ms. Jungkind, he appreciated the wrongfulness of his conduct, but that it was “difficult to say” whether or not Catlett could actually conform his conduct to the requirements of the law. Significantly, the doctor stated:

When Michael Catlett shot Michelle Jungkind, he appreciated the wrongfulness of what he did. I believe that he was purposely shooting Michelle Jungkind. It’s important to point out that because of his emotional state at that time, he lacked the internal restraints that most of us would have. Because of his impaired state, he could not adequately control himself from or keep himself at that moment from shooting her.
I don’t think, without any information otherwise, that how Michael Cadett is in February of 1994 (the date of the first interview) can with any predictive validity determine how he was on October 1, 1993. However, if you see someone who is manic, you can predict that they’ll be manic again at some point in their life. We know the possibility of the cycle reoccurring certainly exits, but given time, I don’t know and can’t predict what it’ll be. Whether he’ll be up, whether he’ll be down, or whether he’ll be normal in that functioning range.
I don’t think there is any predictive validity based on the fact that we know that he was having episodes on these previous admissions, ‘91, ‘92, ‘93, how he was on October 1, 1993. I will say that untreated, in Michael’s case, in June, he’s likely to still be sick in October or December.
I think Michael knew what he was doing was wrong. I think it’s real hard to say where he was at that moment with respect to the second prong the jury must consider.

On redirect examination, however, Dr. Diner added:

Narcisstic individuals can be overwhelmed and react with rage to the humiliation when they feel rejected. I believe that Michael Catlett, being manic on top of that, had elaborated those otherwise narcissistic qualities into frank grandiose delusions with paranoia, and I believe that that only served to escalate his anger more. Because his judgment was so impaired and his impulse control so impaired, he was an accident waiting to happen.

Dr. James Moneypenny, a psychologist, also testified for the defense. Like the other experts, Dr. Moneypenny was of the opinion that Catlett suffered from bipolar disorder, manic type. He testified that individuals in the manic phase of the disorder are delusional, grandiose, and paranoid. Dr. Moneypenny, like Dr. Diner, formed his opinion from interviews with Catlett and a review of his medical records.

Dr. Moneypenny also testified that individuals in Catlett’s condition would have impaired judgment and impaired impulse control. He also stated that these impairments “are not an all or none sort of thing. You don’t lose all of your judgment all the time, and different patients have different degrees of impairment.” Dr. Moneypenny also stated that the symptoms of mental illness, such as depression and anxiety, “in the case of. . . bipolar disorder, and in Michael Catlett’s case in particular, . . . are particularly severe.” At the conclusion of his testimony on direct examination, Dr. Moneypenny declared, “Michael Catlett was an extremely emotionally disturbed young man in the Summer of 1993, and my opinion is that it continued up until the shooting on October 1, 1993.”

On cross-examination, however, Dr. Moneypenny could not offer a definite opinion on whether Catlett’s behavior met the legal test for insanity. He testified that he did not interview Catlett until February of 1994, and that neither the interviews or a review of the medical records enabled him to determine Catlett’s condition on the day of the murder “with any predictive validity.” As to whether Catlett could appreciate the criminality of his conduct, the doctor testified, “You cannot say for sure exactly what Michael Catlett knew at any given time. . . .My opinion is it could be either way.” Dr. Moneypenny did say, however, that it was “an easier case for Michael being unable to conform.”

In rebuttal, the State offered the testimony of two witnesses, a psychologist and a psychiatrist. Both testified that Catlett was legally sane at the time of the murder.

In his petition for postconviction relief that was filed in the Trial Court, Catlett made several allegations of ineffective assistance of counsel. Among them was his claim that his counsel was ineffective for fading to have a defense expert examine him at a time that was in closer proximity to the date of the murder. The timeliness of such an examination was important because of the cyclic nature of bipolar disorder. According to Catlett, an examination close in time to the date of the murder would have allowed the experts to determine if he was in a manic phase, and therefore legally insane, at the time of the murder. Catlett contended that as a result of the delay, Drs. Diner and Moneypenny were unable to testify with certainty about whether Catlett met the test for legal insanity. The Trial Court, finding that there was an abundance of evidence concerning Catlett’s mental health surrounding the time of the murder, and the fact that Catlett had not shown that an examination closer to that date would have yielded different results, denied the claim. Catlett assigns error to this ruling.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984). We will not reverse a trial court’s ruling on an ineffective assistance of counsel claim unless it was clearly erroneous. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

We cannot say that the Trial Court was clearly erroneous for denying relief on Catlett’s claim that his counsel was ineffective for failing to have his client examined by defense expert at a time closer in proximity to the date of the murder. During the postconviction hearing, during which Dr. Diner was the only expert to testify, the doctor stated that while he would have preferred to have the opportunity to examine Catlett closer in time to the date of the murder, he was unsure of whether such an examination would have yielded a more definite opinion. The doctor stated:

I’m not sure if the four or five month lapse of time played a factor in my inability to reach a firm opinion on that second prong of the test for insanity. I think that it could have helped, although I don’t know whether or not it would have made a difference. ... I don’t know if my testimony would have been different had I seen Michael a week later, or two weeks later, or three weeks later.

Catlett has not shown that an examination closer in time to the date of the murder would have caused Dr. Diner to testify with any more certainty. Accordingly, he has not shown prejudice under Strickland standard.

Furthermore, we note that although both Dr. Diner and Dr. Moneypenny did testify, on cross-examination, that they were unable to determine Catlett’s mental state on the day of the murder with certainty, they did testify that he was an extremely disturbed young man during the previous summer, and that persons in his condition, and Catlett in particular, suffer from a loss of impulse control. The testimony of these doctors indicated that an individual in the manic phase of bipolar disorder is typically grandiose, paranoid, and delusional. The doctors’ description of these symptoms coincided with the testimony of other defense witnesses who observed Catlett’s behavior in the previous summer. Dr. Kuo also testified that Catlett was hospitalized in June of 1993, at which time he was diagnosed as being in a manic phase of bipolar disorder. As can be seen, defense counsel introduced more than enough evidence from which the jury could conclude that Catlett was in a manic phase at the time of the murder, and therefore, legally insane.

Cadett next argues that his counsel was ineffective for failing to introduce the testimony of several lay witnesses who observed his behavior both before and immediately after the shooting. Catlett contends that if this testimony had been available to the jury, they would more than likely have found that he had diminished capacity at the time of the murder. The Trial Court, finding that both the expert and lay testimony presented at trial was adequate to establish that Catlett was behaving abnormally prior to the murder, concluded that there was not a reasonable probability that additional lay testimony would have resulted in a different verdict.

Once again, we cannot say that the Trial Court was clearly erroneous. In his brief, Catlett identifies several lay witnesses that he claims his defense counsel should have put on the stand. We note that defense counsel, during his own testimony, admitted that he did not interview some of these witnesses. For the witnesses he did interview, he articulated the reasons why he chose not to call them during the trial. We have previously held that the decision of whether or not to call a witness is a matter of trial strategy that is outside the purview of Rule 37. Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Accordingly, we must concern ourselves with only those witnesses that counsel admitted he did not interview.

Counsel did not interview the following potential witnesses, all of which Catlett claims could have helped his case: Father George Tribou, Sheila Nixon, and Chanda Calloway. One additional witness, Herb Wright, a local attorney, was never considered a potential witness by defense counsel. At the postconviction hearing, Father Tribou testified that he had four contacts with Catlett in the six months prior to the shooting. He stated that during one of his meetings with Catlett, he was asked to read and critique Catlett’s poetry. Father Tribou testified that the poetry was incomprehensible, and as a consequence, he suggested Catlett see a doctor. Father Tribou also stated that he saw Catlett in jail after the murder, and that it appeared that Catlett did not appreciate the gravity of his situation.

Sheila Nixon, Ellen Nixon’s daughter-in-law, also testified during the postconviction hearing. Mrs. Nixon stated that she saw Catlett on the weekend prior to the murder, when he came to her home to help paint. She testified that he “looked like a homeless person,” and that he was “like a hyperactive child.” Mrs. Nixon also testified that Catlett saw faces in swirls of paint on the walls. Lastly, Mrs. Nixon testified that Catlett called her during the week prior to the murder and that his conversation was erratic and unresponsive.

Herb Wright was a friend and local attorney that Catlett called to the jail on the night of the murder. Mr. Wright testified that Catlett would call him during his commitments in the State Hospital and tell him about his painting and poetry writing. Catlett also told him that he was Ross Perot’s campaign manager. Mr. Wright also testified that on the night of his visit to the jail, Catlett appeared to not understand of the gravity of his situation, and that he appeared uncharacteristically “flat,” or unemotional.

Chanda Calloway testified that she and Catlett had been friends a long time, and that they dated briefly in high school. Ms. Calloway stated that in the spring and summer prior to the shooting, Catlett exhibited unusual behavior — that he dressed oddly, talked erratically, and seemed paranoid. He told her that he was Ross Perot’s campaign manager.

We conclude that counsel did not perform deficiently by failing to interview these witnesses and introduce their testimony during the trial. As can be seen, their testimony is cumulative of the testimony of the defense experts and the other lay witnesses. Accordingly, there is not a reasonable probability that their testimony would have changed the outcome of the trial.

Catlett next argues that his counsel was ineffective for failing to call Wag Woodward, a friend and local landlord, to testify during the trial. According to Catlett, Woodward would have testified that on the day of the shooting, Catlett met with him and discussed renting an apartment. Cadett contends that such testimony would have rebutted the State’s evidence that he intended to flee, thereby undermining the theory that the murder was committed with premeditation and deliberation. He argues that he was prejudiced by the failure to call Mr. Woodward as a witness because the rebuttal of the evidence of premeditation and deliberation would have led to at least a conviction on a lesser degree of murder.

At the postconviction hearing, Mr. Woodward testified that he has known Catlett since 1979. Mr. Woodward stated that he is the landlord for property that his parents own in the Quapaw area of Little Rock. Catlett called one of his property managers the day before the shooting to arrange to look at an apartment. Mr. Woodward met him personally at noon on the day of the shooting.

Mr. Woodward testified that he visited with Catlett for about an hour, and that Catlett decided to rent the apartment, and indicated that he wanted to move in that weekend. Mr. Woodward testified that Catlett’s demeanor was “in between normal and out of the ordinary. He seemed like the Michael Catlett I’ve always known.” Mr. Woodward added that he did not recall ever being contacted by Jack Lassiter or any member of his staff.

Defense counsel testified that he did not personally interview Mr. Woodward. He also stated that while there were notes in his file indicating that Mr. Woodward had been interviewed, he did not know their source. He then conceded that he could not make a tactical decision not to use a particular witness unless he interviewed the witness. Defense counsel added, however, the following:

Yes, I felt that if I had continued to call additional lay witnesses, I may have incurred liability. I wouldn’t throw somebody up there, for example, that’d seen him two hours earher when he was functioning normally and talking to him about renting an apartment, talking about going to school up at the university, and talking about his .380 semiautomatic. I wasn’t going to put that person up there, ’cause he’s not acting cra2y. He’s acting normally. The notes in my file indicate that (Woodward) would testify to that.
Yes, any decision to call somebody such as Woodward would have been at least uneventful as far as I’m concerned from a defense perspective, and potentially counterproductive based on the notes I had in my file.

In its findings of fact and conclusions of law, the Trial Court noted that defense counsel did not interview Mr. Woodward. The Trial Court denied relief on the ineffective assistance of counsel claim, however, because the effectiveness of Mr. Woodward’s testimony in rebuttal of the State’s theory of premeditation was “purely speculative, particularly in light of his testimony at the evidentiary hearing that only hours before the shooting, the defendant ‘seemed just like the Michael Catlett I’ve always known.’” The Trial Court found that the testimony “would likely have been far more damaging than helpful, and the failure to call Woodward at the trial cannot be said to be professionally unreasonable.”

The Trial Court’s ruling is not clearly erroneous. While it is arguable that Mr. Woodward’s testimony could have been used to rebut the State’s evidence that he was preparing to flee the area, it is equally likely that such evidence could have undermined the insanity defense. Moreover, the evidence that Catlett may have been planning to flee the area was but one part of the State’s proof that the murder was premeditated. The State also introduced evidence of Catlett’s efforts to obtain a handgun as well as his statements to his friends, who testified that he said he was going to kill Miss Jungkind and that “someone who is manic depressive could kill someone and get off on insanity.” Accordingly, Catlett has not shown that there is a reasonable probability that the outcome of his trial would have been different.

Catlett next argues that defense counsel was ineffective for exercising a peremptory challenge against a juror who stated that he had experience with the mentally ill. Catlett claims that he was prejudiced because the presence of a juror who was sympathetic toward the mentally ill would have led to an acquittal or a hung jury.

During the postconviction hearing, defense counsel testified that he exercised a peremptory challenge against the juror because in addition to having experience with the mentally ill, the juror was also a pastor. Defense counsel then stated:

I generally don’t put pastors on juries in criminal cases because I’m not sure what kind of effect they might have on the other jurors or how other jurors might respond to them. In all due respect to their occupation, they quite often tend to be judgmental people, and I’m sure that played into our decision. . . Coupled with his experience in this area, I’m sure, led us to believe that we’d have a potentially dangerous expert in the box.

The Trial Court concluded that Catlett’s claim presumes that the juror would have been sympathetic to his case, and that he has not shown that the jury that was selected was biased. Therefore, the Trial Court found that Catlett did not prove he was prejudiced by the exclusion of the juror. We agree. We note, furthermore, that the exclusion of this juror was a matter of trial strategy. See generally Irons v. State, 272 Ark. 493, 615 S.W.2d 374 (1981) (noting, in dicta, that the seating of a juror may be a matter of trial strategy).

Catlett next argues that his counsel was ineffective for failing to preserve for appeal an argument that assigned error to the Trial Court’s decision to allow Rita Hawkins to testify. During the trial, when the State was seeking to introduce Ms. Hawkins’s testimony, the prosecutor told the Trial Court that Ms. Hawkins “will testify that she drove with Michael Catlett to that travel agency on the date of the murder,” and that Catlett, who went into the agency alone, came out with an unidentified packet of materials. The prosecutor stated that Ms. Hawkins’s testimony would help to prove the element of premeditation and deliberation. Although the prosecutor later said that Catlett and Ms. Hawkins went to the travel agency the day before the murder, rather than the actual date of the shooting, the Trial Court allowed the testimony on the following basis:

Showing that he went into a travel agency on that day and came out with information about a trip, that of course, will be admissible.
I don’t see any unfair prejudice that would come from it. I don’t know what other reasonable inferences can be drawn from it, other than when a person normally goes to a travel agency and comes out with material. It is close enough in time to this offense I think that would have relevance, counsel. So, that testimony, of course, will be allowed.

During the trial, however, Rita Hawkins did not testify that she accompanied Catlett to the travel agency on either the day of the shooting or the day before. Rather, she stated “I don’t know exactly when it was; it was maybe two weeks relative to Michelle’s shooting.” Defense counsel did not lodge a relevancy objection after the time frame of Ms. Hawkins’s testimony changed. Consequently, we declined to reach the issue in the direct appeal. Catlett v. State, supra.

Catlett now contends that we would have reversed his conviction on this evidentiary question, and therefore, he was prejudiced by his attorney’s failure to preserve the argument for appeal. Catlett also suggests that a proper objection would have prompted the Trial Court to exclude the testimony. There is no merit to these assertions. As indicated above, the State introduced other testimony that indicated that the murder was premeditated and deliberated. Consequently, it is unlikely that the exclusion of this testimony would have had changed the outcome of the trial. Furthermore, Ms. Hawkins’s inability to recall the exact date of their visit to the travel agency does not render her testimony inadmissible. We have long held that the Trial Court has wide discretion when ruling about whether the probative value of testimony is outweighed by potential for prejudice. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997). Ms. Hawkins’s ability to recall the date of the trip to the travel agency, whether one day before the murder or two weeks, goes more to the weight of her testimony, rather than its admissibility. Therefore, we would not have reversed on this issue.

Catlett also argues that his trial counsel was ineffective for not preserving for appellate review an argument concerning the inadequacy of certain jury instructions. During the trial, the jury received instructions directly from The Arkansas Model Jury Instructions — Criminal. In the direct appeal, Catlett apparently attempted to argue that two of those instructions were improper. Specifically, he contended that the phrase “mental disease or defect,” as it appears in AMCI 2d 609, should have been defined for the jury. Catlett also argued that AMCI 2d 105, which instructs the jury to disregard unreasonable expert opinion testimony, was “likely to be applied in a manner that prevents the consideration of constitutionally relevant evidence.” Lastly, Catlett argued that these instructions, “which set out different standards for lay and expert testimony and allowing standardless rejection of expert testimony,” were “erroneously given and created a real danger of arbitrary rejection of the evidence in support of Catlett’s defense.” We declined to reach these arguments because trial counsel “neither objected to the instructions given nor did he offer his own instructions.” Catlett v. State, supra.

In this appeal, Catlett contends that he was prejudiced by his attorney’s failure to lodge an objection or proffer alternate instructions. Specifically, he argues that if his attorney had properly objected to the instructions, it is likely the Trial Court would have sustained the objection or, in the alternative, we would have reversed his conviction. We note at the outset that each of the AMCI instructions of which Catlett complains is a proper statement of the law, and for that reason, neither an objection during the trial or the argument on appeal would have prevailed. Furthermore, Catlett has not offered a definition of “mental disease or defect,” nor has he offered alternative instructions regarding opinion testimony. Accordingly, there is no merit to this argument.

Catlett next argues that his attorney was ineffective because he did not communicate an offer of a negotiated plea. He alleges that the State offered to allow him to plead guilty to a reduced charge of first degree murder, but that he did not learn of the offer until after his conviction. Catlett contends that if he had been aware of the offer, he would have accepted it.

A plea agreement is an agreement between the accused and the prosecutor, not an agreement between counsel and the prosecutor. Rassmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983). As such, counsel has the duty to advise his client of an offer of a negotiated plea. Elmore v. State, 285 Ark. 42, 684 S.W.2d 263 (1985).

The Trial Court found that counsel was not ineffective because no firm offer was ever extended, and consequently, there “was no offer to communicate.” Indeed, both defense counsel and the prosecutor testified that while a plea offer was discussed, no offer was ever made. The Trial Court was correct to deny relief on this issue.

Catlett next argues that his defense counsel was ineffective for not objecting to the introduction of the testimony and photographs describing the threatening graffiti that was found in certain areas of Little Rock. Catlett contends that defense counsel should have objected to the evidence on the basis that the State did not establish that he was indeed the author of the graffiti. He argues that he was prejudiced because the jury could attribute the graffiti to him without adequate foundation. Catlett suggests that “the outcome of the trial would have been different” had the jury not been able to consider that evidence.

Counsel was not ineffective for failing to object to the introduction of the evidence because the graffiti was sufficiently linked to Catlett. It was undisputed that Catlett and Ms. Jungkind were well-acquainted. In each instance, the graffiti either specifically mentioned Ms. Jungkind or was drawn in a place where she was almost guaranteed to see it. Victoria Santos, Ms. Jungkind’s co-worker, described the graffiti in the law firm’s parking lot as being red and black in color, and as reading “Lucifer wants your soul, Stephanie Jungkind. . . .” Tracy Keith, a neighbor of Ms. Jungkind and her sister, testified that the graffiti on their street read “Lucifer is coming for you. . .bitch, slut, whore.” Steve Keith testified that the graffiti he saw in Murray Park contained Ms. Jungkind’s name. Lastly, in his statement to Detective Leslie of the Little Rock Police, Cadett admitted that he painted Satanic messages to scare Ms. Jungkind. Accordingly, there is no merit to this argument.

For his final argument in this appeal, Catlett contends that his counsel was ineffective because he had a conflict of interest. Specifically, he alleges that defense counsel went to high school with the victim’s father, and that he has remained “good friends” with her father and uncle ever since. The Trial Court noted that defense counsel testified that he has not seen Ms. Jungkind’s father since he left high school, which was approximately thirty years before the date of the hearing. The Trial Court also observed that defense counsel could not remember ever knowing Ms. Jungkind’s uncle. Consequently, the Trial Court ruled that there was no conflict of interest.

Prejudice will be presumed from a conflict of counsel’s interest only when the defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected his lawyer’s performance. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). A petitioner has the burden of proving a conflict of interest and showing its adverse effects. Id. A petitioner is not entitled to relief unless he satisfies both prongs of the test. Id. The prejudice must be real and have a demonstrable detrimental effect and not merely have some abstract or theoretical effect. Id.

The Trial Court’s finding of no conflict of interest is not clearly erroneous. We cannot imagine how the victim’s relationship to one of defense counsel’s high school classmates, whom he has not seen for thirty years, would create a conflict of interest that would compromise counsel’s ability to effectively assist Catlett’s defense. No such analysis needs to be applied in the case of the victim’s uncle, whom defense counsel did not recall knowing at all.

Affirmed.


text:
    STATE of Arkansas v. Murray ARMSTRONG
    97-1565
    960 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered January 29, 1998

      Winston Bryant, Att’y Gen., by: O. Milton Fine II, Asst. Att’y Gen., for appellant.

      Sam Heuer, for appellee.
   Per Curiam.

The State has filed a motion for clarification inquiring about the presiding trial judge in a petition for writ of habeas corpus, Case No. LCIV 97-98-3, filed by appellee Murray Armstrong in Lincoln County Circuit Court on October 8, 1997.

Appellee had been previously charged by felony information in Lincoln County Circuit Court with multiple counts of theft of property in Case Nos. LCR 96-6-1, LCR 96-17-1, and LCR 96-18-1. After all of the circuit judges in the Eleventh Judicial District recused from these cases, the Chief Justice, pursuant to Ark. Code Ann. § 16-10-101 (b) (1987), assigned the Hon. John Cole of the Seventh Judicial Circuit to hear the cases. The assignment order, No. 97-035, was entered on January 31, 1997.

When appellee filed the petition for writ of habeas corpus at issue, the case was assigned to the Third Division of Lincoln County Circuit Court. This case, No. LCIV 97-98-3, was then merely forwarded to Judge Cole pursuant to Assignment Order No. 97-035.

The State now asks us to clarify whether Assignment Order 97-035 covers the adjudication of appellee’s habeas corpus petition. If the there is a recusal by all of the circuit judges in the Eleventh Judicial District, we will follow the procedure as set forth in Ark. Code Ann. § 16-10-101 (b) (1987), whereby the Chief Justice will assign a special judge to hear LCIV 97-98-3.

Motion granted.


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

text:
    James A. McCLISH v. STATE of Arkansas
    CR 97-506
    962 S.W.2d 332
    Supreme Court of Arkansas
    Opinion delivered February 5, 1998

      Ben Beland, for appellant.

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

This case is an appeal from the Sebastian County Circuit Court. The appellant, James A. McClish, raises one point on appeal. Specifically, McClish contends that the trial court erred by denying his motion in limine and allowing the State to introduce, during the sentencing phase of McClish’s aggravated-robbery trial, evidence of his prior Oklahoma deferred sentence and plea of nolo contendere to the offense of rape in the first degree. We find that the trial court did not abuse its discretion by permitting the introduction of the prior Oklahoma plea for sentencing purposes, and we affirm.

On December 17, 1996, a jury found McClish guilty of robbery. McChsh was sentenced, pursuant to the Habitual Offender Act, Ark. Code Ann. §§ 5-4-501 to -506 (Repl. 1997), to the maximum permissible penalty of thirty years’ imprisonment in the Arkansas Department of Correction. McClish’s criminal record revealed two prior Arkansas felonies, namely, (i) a judgment, dated October 28, 1985, resulting from a guilty plea to the offense of breaking and entering, and (ii) a judgment and commitment order, dated September 15, 1992, resulting from a guilty plea to the offense of carnal abuse in the first degree.

Additionally, during the sentencing phase, the State introduced an imposition judgment and deferred sentence from the State of Oklahoma, dated July 31, 1989, resulting from McClish’s plea of nolo contendere to the offense of rape in the first degree. As a result of his nolo contendere plea, the Oklahoma court deferred the imposition of a judgment and placed McClish on probation for two years. In Oklahoma, upon successful completion of probation, a defendant is discharged without a court judgment of guilt, the plea is expunged from the record, and the charge is dismissed with prejudice to any further action. See Okla. Stat. Ann. tit. 22 § 991c (1986 & Supp. 1998).

Discharge and expungement are automatic in Oklahoma, and a defendant need not take any affirmative action to have his record expunged. United States v. Johnson, 941 F.2d 1102 (10th Cir. 1991). Notably, the record is silent as to whether McClish satisfied his probation, triggering expungement, and no argument is advanced that McClish was ultimately pardoned on the ground of innocence. Assuming, arguendo, that McClish satisfied the terms of his probation and that his plea was expunged, we are left with the instant appeal challenging the use of that plea in Arkansas during the sentencing phase of his aggravated-robbery trial.

In the absence of prejudice, Arkansas law permits the introduction of “additional evidence relevant to sentencing.” Ark. Code Ann. § 16-97-101(2) (Supp. 1995); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). Moreover, a trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion. Hill, 318 Ark. at 415; Cupit v. State, 324 Ark. 438, 920 S.W.2d 852 (1996). Evidence relevant to sentencing may include, but is not limited to, prior convictions. Ark. Code Ann. § 16-97-103(2) (Supp. 1995). In the instant case, we must point out that, regardless of whether the trial court erred by admitting the Oklahoma plea, McClish failed to demonstrate that the introduction of the plea had a prejudicial effect that outweighed its probative value. See Neal v. State, 320 Ark. 489, 494, 898 S.W.2d 440 (1995).

McClish suggests that he was prejudiced by the introduction of the Oklahoma plea because he received the maximum sentence for his offense. However, the trial court instructed the jury that McClish was an habitual offender because of his two prior Arkansas felonies and omitted any reference to the prior Oklahoma plea. Moreover, this Court has noted its unwillingness to review the imposition of a sentence simply where the defendant maintains that his sentence is excessive, when the sentence is within the range prescribed by statute for the offense in question. Hill, 318 Ark. at 414. Putting the Oklahoma prior conviction aside, McClish still qualified for habitual-offender treatment, and the jury had sufficient evidence with the two prior Arkansas felonies to support its verdict affixing McClish’s sentence to thirty years, a sentence within the statutory range. Accordingly, the trial court did not abuse its discretion by sentencing McClish in accord with the jury’s verdict.

We now turn to the merits of appellant’s argument that his Oklahoma plea should not be admitted as evidence of a prior conviction relevant to sentencing. Significantly, although a pardoned conviction cannot be used to enhance a later sentence, Arkansas law permits expunged convictions to enhance a defendant’s sentence as an habitual offender. Neal, 320 Ark. at 496. Notably, even felony convictions completely expunged under the Youthful Offender Alternative Service Act of 1975 may be used to enhance a sentence as an habitual offender. Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984); Walters v. State, 286 Ark. 166, 690 S.W.2d 122 (1985). In fact, this Court candidly stated in Gosnell, “We think it clear that an expungement does not exempt a youthful offender from responsibility for that offense under the habitual criminal laws.” Gosnell, 284 Ark. at 300.

In support of its holding in Gosnell, this Court explained that while expunged convictions shall not affect a defendant’s civil rights or liberties, and that he may state under certain circumstances that he has not been convicted of an offense, “it does not state that he is free to commit more felonies without accountability as an habitual criminal.” Gosnell, 284 Ark. at 301. The public policy of expungement is intended to promote the offender’s progress toward rehabilitation, to encourage him to apply for a job and to assert his civil rights, by registering to vote or running for office, but it is not intended to encourage him to commit another crime. Id. Such a conclusion, as that advanced by the appellant, prohibiting the use of an expunged plea during the sentencing phase of a later offense, is contrary to Arkansas law and to the overall legislative intent underlying expungement and sentencing. See id.

McClish also relies on the authority of English v. State, 274 Ark. 304, 626 S.W. 2d 191 (1981), to support his contention that his Oklahoma plea and probation did not amount to a prior conviction for purposes of habitual-offender sentence enhancement. Although English held that a “court probation” proceeding did not qualify as a prior conviction for habitual-offender purposes, the facts underlying the English decision are distinguishable from the instant case. In English the trial court refused to accept the defendant’s guilty plea, while McClish’s plea of nolo contendere was accepted by the Oklahoma court.

Moreover, in a compelling case discussing English, the Arkansas Court of Appeals held that a “court probation” was a previous conviction for purposes of the Habitual Offender Act, where the defendant was placed on five years’ statutory probation for each offense, docket sheets evidenced entry of the defendant’s nolo contendere pleas, and there was no indication that the court refused to accept the pleas. Stevens v. State, 38 Ark. App. 209, 832 S.W.2d 275 (1992). The defendant in Stevens, like McClish, relied on the authority of English. The evidence in Stevens demonstrated that the defendant’s pleas of nolo contendere were accepted, and there was no indication that the trial court refused to accept the pleas, informally or otherwise. Here, the July 31, 1989, judgment of the District Court for Leflore County, Oklahoma, evidences that McClish’s plea of nolo contendere was accepted by that court and that McClish was placed on two years’ probation. Applying the reasoning in Stevens, McClish’s plea likewise qualifies as a previous conviction for purposes of the Habitual Offender Act even though McClish’s plea was not offered for habitual-offender purposes in this case.

Additionally, McClish argues that the Oklahoma plea should not be admissible in an Arkansas court for sentence enhancement because Oklahoma law would prohibit the use of that plea for sentence enhancement in its own courts. See Belle v. State, 516 P.2d 551 (Okla. Crim. App. 1973). McClish’s argument fails on two grounds. First, McClish cites inapposite Oklahoma and federal case law that turned on the introduction of prior convictions during the guilt phase of a trial rather than the sentencing phase. This line of reasoning ignores the significance of Arkansas’s bifurcated proceedings and the balancing of interests unique to each distinct phase. Second, the State of Arkansas is undeniably free to independently legislate its own sentencing policy and procedures, which may be contrary to the law of foreign states. In that endeavor, the Arkansas legislature clearly addressed Arkansas’s policy by enacting a specific statutory provision for admitting prior foreign convictions for sentence-enhancement purposes. See Ark. Code Ann. § 5-4-503 (Repl. 1997).

The American Law Institute Model Penal Code and Commentaries provides persuasive authority supporting Arkansas’s policy of balancing the benefits of expungement with the goals of sentencing. Particularly, the Model Penal Code favors harmonizing (i) the desire to allow a trial judge wide discretion to reduce sentences or to mandate probation in appropriate cases, even with serious felony offenses, with (ii) the desire to appropriately punish repeat offenders. Comments to the Model Penal Code suggest that the suspension of a sentence, or of the execution of a sentence, may be appropriate even if the defendant has been convicted of a serious crime and that a court “should be free to make that determination without foreclosing later application of an habitual offender law.” See Model Penal Code § 7.05 cmt. 1, 2 (1962). Further, the Comments advise that prior convictions should be given consideration in sentencing, except where a pardon is granted on the ground of innocence. Id. Arkansas law honors the Oklahoma trial court’s right to place McClish on probation for his Oklahoma rape charge, while still holding him accountable for that offense at the sentencing phase of his Arkansas aggravated-robbery trial.

Finding no merit in appellant’s arguments that the trial court erred by admitting evidence of appellant’s Oklahoma deferred sentence and plea of nolo contendere and, in any event, finding an absence of prejudice resulting from the admission of that evidence, the trial court’s ruling is affirmed.