text:
    Walter Ray MacKINTRUSH v. STATE of Arkansas
    CR 98-19
    978 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered October 1, 1998

      McCullough Law Firm, by: R.S. McCullough, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

On December 22, 1997, the Arkansas Court of Appeals affirmed the judgment of conviction of appellant Walter MacKintrush. MacKintrush v. State, 60 Ark. App. 42, 959 S.W.2d 404 (1997). On February 12, 1998, this court granted MacKintrush’s petition to review the court of appeals decision to address any confusion surrounding this court’s decisions in the aftermath of Batson v. Kentucky, 476 U.S. 79 (1986). When we grant a petition of review, we review the judgment and proceedings before the trial court as if the appeal had been originally filed in this court. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998).

On December 21, 1994, MacKintrush was charged with the murder of his wife, Ogretta MacKintrush. He was convicted of second-degree murder on July 30, 1996, and sentenced to twenty years. He raises five assignments of error on appeal. We find no merit in any of the points raised, and we affirm the judgment of conviction.

I. Batson Procedures

In MacKintrush v. State, supra, members of the court of appeals voiced multiple opinions about the soundness of this court’s decisions in Batson cases. Three judges held that once a trial court decides that the explanations offered by the striking party are race neutral, there is no requirement for a sensitive inquiry. Two judges concurred with this result based on this court’s precedent but asserted that this court’s cases on the subject are in conflict or confused. One judge dissented because in his judgment a sensitive inquiry is required in every instance where a Batson challenge is made.

In Batson, a majority of the United States Supreme Court held as follows in the concluding paragraph of the decision:

If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed.

Batson, 476 U.S. at 100 (citations omitted). The term “sensitive inquiry” is not used in the Batson holding though reference is made to a “sensitive inquiry” in the body of the opinion when the Court discusses purposeful discrimination and the burden of persuasion in the case of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). The Court left it up to the states to develop specific procedures for implementing Batson.

Initially, this court interpreted the Batson decision to require that the trial court undertake a “sensitive inquiry” in every instance into the direct and circumstantial evidence available to decide if the State had made an adequate explanation for the strike. See Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). See also Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). This court later modified its interpretation of Batson with respect to the sensitive-inquiry requirement in Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). In Colbert, we said:

We now believe that our previous interpretations of the Batson holding were misdirected only to the extent that we have said that Batson requires a ‘sensitive inquiry’ by the trial court in every instance, notwithstanding the validity of the state’s explanation for its peremptory challenges.
We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.

Id. at 254-255, 801 S.W.2d at 646.

This court somewhat modified its holding in Colbert in Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993):

First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.

Id. at 338, 863 S.W.2d at 273.

The Franklin holding also eliminated a trial court’s obligation to conduct a sensitive inquiry every time a Batson objection is made and has been followed consistently by this court as well as by the Court of Appeals since 1993. See, e.g., Cooper v. State, 324 Ark 135, 919 S.W.2d 205 (1996); Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994); Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). However, both appellate courts, at times, have also continued to use the language from Colbert in their decisions as well. See, e.g., Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1998); Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997); Hugh Chalmers Chevrolet v. Lang, 55 Ark App. 26, 928 S.W.2d 808 (1996); Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997).

In 1995, the United States Supreme Court clarified its holding in Batson with its decision in Purkett v. Elem, 514 U.S. 765 (1995) (per curiam). In Purkett, the Court outlined the proper steps for a trial court to follow when a Batson claim is made: (1) the opponent of a peremptory challenge must make a prima facie case of racial discrimination; (2) the proponent of the strike must come forward with a race-neutral explanation; and (3) the trial court must decide whether the opponent has proven purposeful racial discrimination. Purkett, 514 U.S. at 767. The Court, in Purkett, expressed its concern that trial courts were combining steps two and three in the Batson inquiry by “requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive. ... It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden.” Id. at 768. This opinion leaves no doubt that a trial court must proceed to the third step of the Batson analysis, when a prima facie case is made and a racially neutral response is given, and then determine whether the opponent of the strike has proven intentional racial discrimination. At no point in the Purkett decision is the term “sensitive inquiry” used.

In light of the Purkett decision, we have reassessed the proper procedures for the trial courts to follow in Batson cases and take this opportunity to set forth those procedures. Manifesdy, there is a three-step process that must be used when the opponent of the strike makes a prima facie case. Furthermore, it is clear that the burden of persuasion establishing purposeful discrimination never leaves the opponent of the strike. And, finally, the Batson process must occur outside of the hearing of the venire.

Step One. Prima facie case.

The strike’s opponent must present facts, at this initial step, to raise an inference of purposeful discrimination. According to the Batson decision, that is done by showing (1) that the strike’s opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. In deciding whether a prima facie case has been made, the trial court should consider all relevant circumstances. Should the trial court determine that a prima facie case has been made, the inquiry proceeds to Step Two. However, if the determination by the trial court is to the contrary, that ends the inquiry.

Step Two. Racially neutral explanation.

Assuming the strike’s opponent has made a prima facie case, the burden of producing a racially neutral explanation shifts to the proponent of the strike. (But, again, the burden of persuading the trial court that a Batson violation of purposeful discrimination has occurred never leaves the strike’s opponent.) This explanation, according to Batson, must be more than a mere denial of discrimination or an assertion that a shared race would render the challenged juror partial to the one opposing the challenge. Under Purkett, this explanation need not be persuasive or even plausible. Indeed, it may be silly or superstitious. The reason will be deemed race neutral “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation.” Purkett, 514 U.S. at 768. But, according to Purkett, a trial court must not end the Batson inquiry at this stage, and, indeed, it is error to do so.

Step Three. Trial court decision on purposeful discrimination.

If a race-neutral explanation is given, the trial court must then decide whether the strike’s opponent has proven purposeful discrimination. Purkett v. Elem, supra. Though the United States Supreme Court has not elucidated precisely what is required at this step, clearly the strike’s opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, is the product of discriminatory intent. This may be in the form of mere argument or other proof that is relevant to the inquiry. But it is crucial that the trial court weigh and assess what has been presented to it to decide whether in light of all the circumstances, the proponent’s explanation is or is not pretextual. If the strike’s opponent chooses to present no additional argument or proof but simply to rely on the prima facie case presented, then the trial court has no alternative but to make its decision based on what has been presented to it, including an assessment of credibility. We emphasize that following step two, it is incumbent upon the strike’s opponent to present additional evidence or argument, if the matter is to proceed further.

On the point of whether a sensitive inquiry is required in every instance when a Batson objection is made, we must confess to some confusion over what the term means in the Batson context. Does it refer to the entire three-step procedure or merely to an inquiry that takes place at the third stage? And to what extent is the trial court, on its own, required to direct a further inquiry into the matter? Again, the term “sensitive inquiry” is not used by the majority in Purkett. Justice Stevens, in his dissent in Purkett, said: “A trial court must accept that neutral explanation unless a separate ‘step three’ inquiry leads to the conclusion that the peremptory challenge was racially motivated.” Purkett, 514 U.S. at 775 (Stevens, J. dissenting). This suggests a separate inquiry. Nevertheless, we conclude that it is still the responsibility of the strike’s opponent to move the matter forward at this stage to meet the burden of persuasion, not the trial court. The trial court can only inquire into evidence as may be available. See Batson v. Kentucky, supra, Arlington Heights v. Metropolitan Housing Development Corp., supra. If the strike’s opponent does not present more evidence, no additional inquiry by the trial court is required. However, if the strike’s opponent presents additional relevant evidence and circumstances to the trial court for its consideration, then the trial court must consider what has been presented, make whatever inquiry is warranted, and reach a conclusion.

We turn then to the facts of the case before us. During voir dire, the prosecutor exercised three of her peremptory strikes, striking first a black male, then a white female and, next another black male. After the third strike, MacKintrush, who is African-American, objected that the strike violated Batson dictates. The trial .court excused the jury and allowed both parties to state their positions.

Defense counsel argued initially that the prosecutor had used fifty percent of her strikes against minorities and that the third male, Mr. Stephen Orji, had given no response which indicated that he would not be a properjuror. The prosecutor responded by noting that there were already two black females seated on the jury and that MacKintrush had not made a prima facie case of discrimination. The prosecutor went on to explain her reasons for striking the black jurors. She contended that she struck Mr. Orji because he was nonresponsive and not frank during questioning and further because a prosecutor in another case had struck Mr. Orji from a jury panel for giving inappropriate answers about sitting in judgment on a person and on the issue of self-defense. Defense counsel responded that these reasons were not satisfactory under Batson and that the prosecutor never gave Mr. Orji a chance to answer questions in this selection process on the point of sitting in judgment or self defense.

The trial court listened to both sides and then made its ruling:

Counsel, in looking at it and for the purposes of the record, at this time, without those two jurors that were just struck by the State, we would have nine jurors selected. Of those, two are apparently of African descent. That would be Mr. Mooney and Mrs. Versie. The State at this time having exercised three of six pre-emptory (sic) challenges, one of those being against Mrs. Ahne, who is Caucasian. And one against Mr. Ogi, who is of African descent and Mr. West, who is African descent. Noting that there is still another African-American to be called as a possible juror remaining in the panel, and noting the State’s response, which is a racially neutral reason, I’m going to deny your motion at this time, counsel. We, of course, keep these in mind during the rest of the jury selection.

On appeal, MacKintrush argues that the reasons offered by the prosecutor for using a peremptory strike were lukewarm and seemingly benign reasons that could always be used, if permitted, in almost any case to discriminate. We note, however, that defense counsel argued against the genuineness of the prosecutor’s race-neutral explanation but presented no additional relevant proof to vitiate the strike. It was defense counsel’s obligation to do so, if he wanted the matter to proceed further. The trial court, in its assessment of the circumstances presented to it, found no discriminatory intent but rather that the explanation given was race neutral and that two African-Americans were already seated on the jury and a third African-American remained as part of the venire.

We affirm the trial court’s decision in this regard. To the extent that our previous decisions regarding Batson procedures and a required sensitive inquiry are inconsistent with this opinion, we overrule them.

II. Failure to Provide Witness Information

MacKintrush has been tried twice on this murder charge. The first trial ended in a mistrial when the jury deadlocked. A second trial was continued, when a witness failed to appear. A third trial was held on July 30, 1996. Before MacKintrush’s first trial, he filed a motion for discovery under Rule 17.1 of the Arkansas Rules of Criminal Procedure. The prosecutor responded by allowing inspection of the case file under the office’s “open file” policy.

During the trial which is at issue in this appeal, the prosecutor called Cynthia Marks to the stand. Defense counsel objected and argued that the prosecutor had not disclosed her as a witness. The prosecutor responded that defense counsel had been told about this witness before this trial as well as prior to the previous trial, where she had been introduced to the jury but had not testified.

The following day, the trial court held a hearing on the objection to Cynthia Marks’s being called as a witness. The prosecutor admitted that Ms. Marks’s name had not been in the original file made available to defense counsel, but it had been on a witness list provided to defense counsel. Further, the prosecutor offered to the trial court that it was office policy to call defense counsel any time a new witness was added. Defense counsel countered that the prosecutor had not called him about Ms. Marks and that her name had not been on any list supplied to him.

The prosecutor then produced a copy of a fax to defense counsel dated June 18, 1995, summarizing Ms. Marks’s statement. The trial court asked defense counsel if he had reviewed the prosecutor’s file after June 19, 1995. Defense counsel responded that his investigator reviewed the file after that date, but that the information about Ms. Marks was added at a later date, and that, in any event, it would be too much of a burden for defense counsel to go through the prosecutor’s file repeatedly to look for new information. The trial court ruled that it would allow Ms. Marks to testify, because it found that the information about her testimony was in the file on June 19, 1995. Despite the ruling, the prosecutor withdrew Ms. Marks as a witness, and she did not testify at trial.

The standard of review for imposing sanctions for discovery violations is whether there has been an abuse of discretion. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). When there has been a failure to comply with discovery procedures, a trial court is not required to suppress evidence unless prejudice will result. Id. at 542-543, 915 S.W.2d at 292. Here, the trial court ruled that the State had complied with discovery procedures and that MacKintrush did have prior knowledge of this witness. Also, the State did not call her. It is difficult for us to see how any prejudice resulted under these circumstances, and we affirm the trial court’s ruling.

Defense counsel also objected to the prosecutor’s calling Jewel Williams as a witness for the same reasons he objected to Cynthia Marks. The prosecutor responded by producing a fax cover sheet and a copy of Ms. William’s statement that had been faxed to defense counsel on March 5, 1996. Ms. William’s statement included information that on a Friday before her death, Ogretta MacKintrush came to work with marks inside her mouth, a cut lip, and scratch marks. Defense counsel argued that this information was exculpatory since the jury could infer that someone else, perhaps a boyfriend of Mrs. MacKintrush’s, had committed the crime. The trial court found that defense counsel had gotten the statement before trial and denied the multiple motions for a mistrial, dismissal of the charges, and continuance.

Under Rule 17.1 of the Arkansas Rules of Criminal Procedure, the State is required to disclose to the defense any material or information within its knowledge, possession, or control which tends to negate the guilt of the defendant. Failure, however, to disclose such evidence will not warrant reversal absent a showing of prejudice. Smith v. State, 326 Ark. 520, 932 S.W.2d 753 (1996). Also, “[w]hen the State fails to provide the information, the burden then falls on the appellant to show that the omission was sufficient to undermine confidence in the outcome of the trial. Furthermore, we have not deemed a failure of the State to provide information to be prejudicial when the defendant already had access to it.” Id. at 523, 932 S.W.2d at 754.

Here, the trial court weighed the circumstances and information before it and found that defense counsel did have the information before the trial. We are not convinced that this finding of fact was clearly erroneous so as to warrant reversal.

III. Mandamus Against the Sheriff

Prior to trial, defense counsel requested that the Pulaski County Sheriff s office serve a subpoena on one of his witnesses. The witness lived in Garland County, and the Pulaski County Sheriffs Office, citing a lack of jurisdiction, refused to serve the subpoena. Defense counsel next filed a writ of mandamus, praying that the court order the sheriff s office to serve the subpoena. The trial court dismissed the petition for mandamus.

Pursuant to Ark. Code Ann. § 16-43-208 (Repl. 1994), a circuit clerk has a duty to issue subpoenas for witnesses upon the request of either party. The statute is silent, however, about the duty of the sheriff to serve those subpoenas once they have been issued. From the facts before us, it does not appear that MacKintrush ever established a legal right which the court would be required to enforce. We note that service of the subpoena could have been accomplished by mail, by the Garland County Sheriff, or by one authorized to serve process in Garland County. Our standard of review for denial of a writ of mandamus is abuse of discretion by the trial court, and we hold that there was no abuse in this case. See Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993).

IV. Medical Examiner’s Opinion

The prosecutor called Dr. Charles Kokes, the medical examiner who performed the autopsy on the victim, to testify. The trial court as well as defense counsel accepted him as an expert in the field of forensic pathology. During Dr. Kokes’s testimony, defense counsel made a motion in limine requesting that the witness be barred from testifying that Ogretta MacKintrush’s death was caused by strangulation. Defense counsel argued that while the witness could testify that the manner of death was asphyxiation, he should not be allowed to testify about the ultimate cause of death, because he was not an expert in reconstruction. The trial court allowed the testimony but instructed the prosecutor to keep it within the bounds of the witness’s field of expertise. The trial court also allowed Dr. Kokes to testify about cause of death.

Under Rule 702 of the Arkansas Rules of Evidence, a witness qualified as an expert may give his or her opinion based on scientific, technical, or other specialized knowledge to assist the trier of fact to understand the evidence or to determine a fact in issue. Here, Dr. Kokes based his opinion on his observation of the presence of petechial hemorrhages on the surfaces of the eyes and in the surfaces of the eyelids and the presence of hemorrhages in the criciod thyroid muscle and behind both horns of the thyroid. He went on to state that these particular types of hemorrhages are caused by pressure that is applied from outside the neck. He also stated that some of the external injuries were indicative of a struggle. Finally, he testified that in his opinion the cause of Ogretta MacKintrush’s death was strangulation.

This type of testimony was clearly proper under Rule 702, and the trial court did not abuse its discretion in allowing it. See Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995). There was no reversible error on this point.

V. Racially Disproportionate Panel

During jury selection, MacKintrush moved for a mistrial on the basis that the jury panel was racially out of kilter in that it did not reflect the racial make-up of Pulaski County. He noted, for example, that out of thirty-two possible jurors called, only five were African-Americans. In support of his argument, he observed that while statistics show Pulaski County has a population of about twenty-three percent African-Americans, only fifteen percent of the jury panel called in this case was African-American.

Under Ark. Code Ann. § 16-32-103 (Repl. 1994), the jury venire is chosen at random by computer selection from voter registration lists. This court has frequently upheld this process and has stated that it guarantees that there can be no purposeful exclusion of African-Americans. See, e.g., Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997). We have also noted that “[w]hile it is clear that juror selection may not be the result of discrimination against groups defined by race, color, creed, or sex, the Supreme Court has made it equally clear that this does not mean that each jury must have on it persons representative of each distinctive group in the population from which it is chosen.” Mitchell v. State, 299 Ark. 566, 568, 776 S.W.2d 332, 333 (1989).

We find no merit to this argument.

Affirmed.

Corbin, J., not participating.

        Batson principles have been extended to purposeful discrimination based on gender. See J.E.B. v. Alabama, 511 U.S. 127 (1994). Moreover, we recognize that since Batson, the Court has held that the opponent of the strike need not share the same race with the struck juror to mount a Batson objection premised on wrongful discrimination. See Powers v. Ohio, 499 U.S. 400 (1991).


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    Willie E. JACKSON, Jr. v. STATE of Arkansas
    CR 98-190
    976 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered October 1, 1998

      William R. Simpson, Jr., Public Defender, by: S. Wade Parker and Alex Petty, Deputy Public Defenders, for appellant. .

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Willie E. Jackson, Jr., challenges the trial court’s denial of his motion to dismiss the charges pending against him due to an alleged speedy-trial violation. We hold that the time for speedy trial had not run as of February 18, 1998, the date the trial court denied Mr. Jackson’s motion to dismiss. Thus, we deny Mr. Jackson’s petition for a writ of prohibition.

On October 30, 1996, the Little Rock Municipal Court issued an arrest warrant for Mr. Jackson on a charge of Medicaid fraud under Ark. Code Ann. § 5-55-111. The Attorney General’s Office sent a certified copy of the arrest warrant to the Arkansas Department of Corrections where Mr. Jackson was serving a five-year sentence on an unrelated conviction of possession of a controlled substance. On December 18, 1996, the Department gave a copy of the warrant to Mr. Jackson, but no return of service was made on the warrant. On this date, the Department also issued a “detainer action letter” to the Pulaski County Sheriffs Office. On May 13, 1997, Mr. Jackson was released on parole from the Department of Corrections on the drug conviction. It is unclear from the record how long Mr. Jackson was actually detained on the Medicaid fraud charge. Nor is it clear why the Pulaski County Sheriffs Office failed to take Mr. Jackson into custody pursuant to the detainer. On June 25, 1997, Detective Washington arrested Mr. Jackson on the Medicaid fraud warrant, and the felony information on that charge was filed by the Prosecutor’s Office on November 6, 1997.

On January 23, 1998, Mr. Jackson filed a motion to dismiss the Medicaid fraud charge for the following reasons: 1) the State violated his right to a speedy trial pursuant to Ark. R. Crim. P. 28; 2) the State violated his federal right to due process of law by delaying the trial for the sole purpose of obtaining a tactical advantage; and 3) the State violated its duty under Ark. R. Crim. P. 29.1(a) to promptly seek his presence for trial. The trial court denied Mr. Jackson’s motion because it concluded that the speedy-trial period commenced on June 25, 1997, the day Mr. Jackson was arrested by Detective Washington for Medicaid fraud. The court, however, did not enter a ruling on Mr. Jackson’s due process and Rule 29.1(a) arguments. Hence, the sole issue presented by this case is when the speedy-trial period commenced pursuant to Ark. R. Crim. P. 28.2.

Before reaching the merits of this issue, we must first determine whether Mr. Jackson has filed an appeal or a petition for a writ of prohibition. Mr. Jackson has treated this action as an appeal by labeling the parties “appellant” and “appellee,” naming the State and not the trial court as the defending party, and asking us to “reverse the ruling of the trial court, and dismiss the charges against the appellant for failure to prosecute within the speedy-trial limitations.” On the other hand, Mr. Jackson filed a “Notice of Petition for Writ of Prohibition” before the trial court, and a “Petition for a Writ of Prohibition” before us. Although we denied Mr. Jackson’s motion to stay the trial court proceedings, there is nothing in the record indicating that Mr. Jackson has already been tried on the Medicaid fraud charge. Under these circumstances, we shall treat the action before us as a petition for a writ of prohibition, which we have jurisdiction to hear pursuant to Ark. Sup. Ct. R. 1-2(a)(3) and Ark. R. Crim. P. 28.1(d).

I. Speedy Trial

First, Mr. Jackson contends that the trial court erred when it denied his speedy-trial motion. Arkansas Rule of Criminal Procedure 28.1(b) provides that:

Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Here, it is undisputed that Mr. Jackson was in prison on an unrelated and prior drug conviction at the time the arrest warrant was issued on the charge of Medicaid fraud. Thus, it is clear that Ark. R. Crim. P. 28.1(b) applies to this case.

There is, however, a question in this case as to when the speedy-trial period commenced. Arkansas Rule of Criminal Procedure 28.2(a) provides, in .relevant part, that the twelvemonth period shall commence running without demand by the defendant:

from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.

(Emphasis added.) In Archer v. Benton County Circuit Court, 316 Ark. 477, 872 S.W.2d 397 (1994), we clarified that the phrase “date the charge is filed” as used in Rule 28.2(a) means the day the felony information is filed in the circuit court. We have also explained that pursuant to Rule 28.2(a) the twelve-month period begins on the date the information is filed or the date of arrest, whichever occurs first. Lively v. State, 326 Ark. 398, 930 S.W.2d 339 (1996) (per curiam); Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994).

Here, it is uncontested that the felony information on the Medicaid fraud charge was filed on November 6, 1997, which is several months after June 25, 1997, the date Detective Washington arrested Mr.' Jackson and returned service on the warrant to the circuit court. Hence, according to Ark. R. Crim. P. 28.2(a) and our well-established case law, the speedy-trial period commenced in this case on June 25, 1997. Absent any periods which are excludable under Ark. R. Crim. P. 28.3, the time to try Mr. Jackson on the Medicaid fraud charge would have expired on June 25, 1998. The trial court so held when it denied Mr. Jackson’s motion to dismiss on February 18, 1998.

Mr. Jackson attempts to defeat this result by arguing that the speedy-trial period began to run on December 18, 1996, the day the detainer letter was issued. Although we have never considered this argument, the Court of Appeals rejected a similar argument in Washinton v. State, 31 Ark. App. 62, 787 S.W.2d 254 (1990). In Washington, the defendant was arrested on December 21, 1987, for forgeries he committed in Pine Bluff. On that same day, a Little Rock detective “requested that the Jefferson County authorities notify him when the Pine Bluff charges were disposed of, and that the [defendant] be turned over to him at that time.” Id. After the defendant was convicted of the Pine Bluff forgeries on August 22, 1988, he was immediately arrested by the Little Rock authorities for the forgeries that he committed in their jurisdiction. Id. As in this case, the defendant in Washington argued that the speedy-trial period began to run on December 21, 1987, when the Little Rock authorities placed a detainer on him. Id. The Court of Appeals rejected this argument because Ark. R. Crim. P. 28.2 only refers to an arrest or the filing of a charge, and not to the issuance of a detainer. Specifically, the court said:

We find no merit in the appellant’s contention that the time began to run when he was arrested in Pine Bluff on December 21, 1987, because that arrest arose out of a separate criminal episode. Although Detective Ebinger did request that he be notified when the Pine Bluff charges were disposed of, there is nothing in the record which indicates that the appellant was being held in Pine Bluff solely because Little Rock authorities requested it. The appellant was clearly being held in Pine Bluff pursuant to the charges in Pine Bluff, and the time period could not begin to run on the Litde Rock charges until he was either charged with them or arrested for them. See Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984), and Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983) (incarcerated appellant’s time began to run from date charged).

Id. Accordingly, the Court of Appeals held that the speedy-trial period began on August 22, 1988, the day the defendant was arrested by the Little Rock authorities.

We realize that Washington may be distinguishable from the facts at hand because the detective in Washington only “requested” that the Pine Bluff authorities detain the defendant instead of issuing a formal letter of detainer as was done in this case. We, however, find the reasoning of Washington to be sound.

Specifically, as acknowledged by the Court of Appeals, Ark. R. Crim. P. 28.2(a) provides that the speedy-trial period begins on the day the “charges are filed” or on the day of “arrest.” The Rule does not fist the mere issuance of a detainer as an event triggering the speedy-trial period. Moreover, on December 18, 1996, Mr. Jackson was being held by the State on his drug conviction, which was not in any way related to the Medicaid fraud charge. Accordingly, we hold that the issuance of a detainer to an inmate who is serving time on an unrelated charge does not trigger the speedy-trial period under Ark. R. Crim. P. 28.2(a).

Next, Mr. Jackson argues that a detainer is analogous to an “arrest” as used in Rule 28.2(a) because his liberty was significantly compromised. We refuse to address this issue at this time because Mr. Jackson has repeatedly argued that the speedy-trial period began on December 18, 1996, the day that the detainer letter was issued, and not in May of 1997 when he was allegedly detained on the Medicaid fraud charge. Moreover, even if the speedy-trial period began to run in May of 1997, the twelvemonth period would not have expired before the trial court denied Mr. Jackson’s speedy-trial motion on February 18, 1998. Thus, we render no ruling in this case as to whether the actual detainment of an inmate, as opposed to the mere issuance of a letter of detainer, may trigger the speedy-trial period under Ark. R. Crim. P. 28.2(a).

For these reasons, we find no error with the trial court’s ruling that the speedy-trial period began in this case on June 25, 1997, the day Mr. Jackson was arrested on the charge of Medicaid fraud, and that there was no speedy-trial violation as of February 18, 1998. Accordingly, we deny Mr. Jackson’s petition for a writ of prohibition.

II. Federal Due Process and Ark. R. Crim. P. 29.1

In his motion to dismiss, Mr. Jackson also argued that the State’s delay in bringing him to trial was a violation of his federal right to due process of law, and a violation of Ark. R. Crim. P. 29.1. Mr. Jackson, however, did not obtain a ruling on either issue, and he faded to adequately develop either argument in his petition. We have repeatedly said that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). Accordingly, we do not address the merits of either argument.

Petition for writ of prohibition denied.

       Both parties agree that the Interstate Agreement on Detainers Act, Ark. Code Ann. §§ 16-95-101 to 107 (1987), as mentioned in Ark. R. Crim. R 28.1(g), does not apply in this case because Mr. Jackson was not held by another state or the federal government, and he did not demand a final disposition of the indictment.


author: Ray Thornton, Justice.

text:
    Cleotis WILLIS v. STATE of Arkansas
    CR 95-1218
    977 S.W.2d 890
    Supreme Court of Arkansas
    Opinion delivered October 1, 1998
    [Petition for rehearing denied October 29, 1998.]

      Charles M. Kester, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

This case presents multiple challenges to our standards concerning preservation of claimed trial errors. After a jury trial, appellant Cleotis Willis was' convicted of battery in the first degree and sentenced to thirty-two years’ imprisonment. Appellant raises six points on appeal. Appellant does not controvert evidence that he cut the throat of the victim, Greg Williams, and kicked him, but he asserts that he acted in self-defense and that the State failed to prove the necessary mens rea of purposely inflicting injury to the victim. Appellant also seeks to raise numerous issues on appeal that were not presented to the trial court for decision, many of which have not been preserved for our review. Among those issues, appellant contends that we should expand the exceptions to the contemporaneous-objection rule articulated in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), and grant a Rule 37 review on ineffective assistance of counsel even though that claim was not raised during trial nor addressed in appellant’s motion for a new trial. We find no reversible error and affirm.

Appellant encountered the victim in a parking lot in El Dorado. The victim testified that appellant demanded money. The victim told appellant to “take the money” and attempted to flee. Appellant asserted at trial that he acted in self-defense because the victim had a knife; however, no other witness testified to seeing the victim with a knife, no knife was found, and the victim testified that he did not have a knife. It is not disputed that appellant cut the victim’s throat from the left ear to the right ear with a four-and-a-half-inch knife, severing muscles and blood vessels and injuring his trachea. After the victim fell to the ground, appellant kicked him. Badly injured, the victim managed to escape to a nearby restaurant, where prompt attention followed by emergency medical care saved his life.

We first address the question of sufficiency of the evidence. Appellant admits that he cut the victim and kicked him, but he contends that these actions do not demonstrate the required mens rea to sustain a conviction for first-degree battery and that instructions should have been given for second-degree battery. We save until later the issue whether such instruction should have been given with respect to lesser-included offenses.

With regard to the sufficiency of the evidence to support a conviction for first-degree battery, it would appear that appellant’s own concessions would resolve the issue in favor of the State had it been properly preserved for our review. However, appellant failed to renew his motion for a directed verdict at the close of all the testimony. After the jury had been instructed, appellant requested permission from the trial court to renew his motion for a directed verdict. Although appellant stated that he had not been afforded an opportunity to make the motion earlier, the abstract is silent as to when such a request had been previously made. The trial court allowed appellant to renew his motion for a directed verdict, and it considered and denied the motion. Closing arguments followed.

Our rule provides that when there has been a trial by jury, a renewal of a previous motion for a directed verdict at the close of all the evidence preserves the issue of insufficient evidence for appeal. Ark. R. Crim. P. 33.1; see also Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). We have previously stated that this renewal is more than a matter of mere form: it goes to the substance of the evidence arrayed against the criminal defendant. Thomas v. State, 315 Ark. 504, 508, 868 S.W.2d 483, 485-86 (1994). However, after the jury has been charged, it is too late to consider a motion to direct a verdict. Rankin v. State, 329 Ark. 379, 386, 948 S.W.2d 397, 401 (1997). We have held that a trial court’s decision to consider and then deny a motion for a directed verdict made after the jury had been instructed, but before closing arguments, did not comply with the rule requiring that the motion be renewed at the close of the case and was therefore “too late.” Claiborne v. State, 319 Ark. 602, 603, 892 S.W.2d 511, 512 (1995). Appellant’s motion was similarly untimely, and the issue is not preserved for our review.

Second, appellant argues that the trial court erred by fading to instruct the jury on the lesser-included offenses of second-degree battery and failed self-defense. At trial, the court instructed the jury on first-degree battery and justification. No instruction was proffered regarding second-degree battery or a lesser offense, or regarding “failed self-defense.” Furthermore, appellant did not object to the instructions. On appeal, appellant argues that the case falls within our narrowly crafted exceptions to the contemporaneous-objection rule and that we should therefore reach the merits of this point.

We do not consider this argument because appellant failed to object to the lack of the instruction and failed to proffer the instructions that he now argues it was error not to give. We have been constant in our requirement that counsel object and proffer an instruction in order to later appeal, and we have been hesitant to allow exceptions to this requirement. See, e.g., Brown v. State, 320 Ark. 201, 895 S.W.2d 909 (1995) (refusing to consider argument that the trial court failed to give an instruction on a lesser offense because the appellant failed to proffer the instruction to the trial court). Further, the failure to bring the alleged error to the trial court’s attention does not fall within any of our extremely narrow and strictly guarded exceptions to the contemporaneous-objection rule. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)(recognizing only four exceptions to the objection requirement: [1] death-penalty cases involving an error in a matter essential to the jury’s consideration of the death penalty itself; [2] cases where the trial judge made an error of which the appellant had no knowledge; [3] cases where the trial judge neglected his or her duty to intervene; and [4] cases involving evidentiary errors that afFected the appellant’s substantial rights).

Appellant next contends that if the points he argues on appeal were not properly preserved for review, then the question of ineffective assistance of counsel should be considered during this appeal. It is well established that claims of ineffective assistance of counsel may not be raised on direct appeal unless the issue was considered by the trial court, as on motion for a new trial. Reed v. State, 323 Ark. 28, 29, 912 S.W.2d 929, 930 (1996). Additionally, the facts surrounding the claim must be fully developed, either during the trial or during other hearings conducted by the trial court. Dodson v. State, 326 Ark. 637, 642, 934 S.W.2d 198, 200 (1996). The reason for this rule is that an evidentiary hearing and finding as to the competency of appellant’s counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation. Reed, 323 Ark. at 29, 912 S.W.2d at 930.

Appellant concedes in his brief that he never raised an ineffective-assistance-of-counsel claim during trial, nor was this issue addressed in his motion for a new trial. Appellant contends on appeal that this court should “in the interest of judicial economy review this issue now.” However, we have previously held that we will “in the interest of judicial economy” review claims of counsel’s ineffectiveness on direct appeal provided that the allegation is raised before the trial court and that the facts and circumstances surrounding the claim have been fully developed. Dodson, 326 Ark. at 642, 934 S.W.2d at 200. Because the trial court did not consider the ineffectiveness of counsel during the trial or fully develop any findings on this point for this court to review, the issue should not be considered directly on appeal.

For his fourth point on appeal, appellant urges that because he had to use two of his peremptory challenges to strike venirepersons who should have been excluded for cause, he was forced to allow an objectionable juror to be seated. Appellant asserts error in the trial court’s denial of his motion to strike for cause, and in its failure to strike the seated juror for cause. We find no error and affirm.

During voir dire, potential juror Karen Howard made several statements that indicated that circumstances might sway her into determining that appellant was guilty and she described him to other venirepersons as “menacing.” Appellant’s counsel moved at that point for Ms. Howard to be excused for cause, and the trial court denied the motion after attempting to rehabilitate her. Finally, appellant’s counsel exercised a peremptory strike to excuse Ms. Howard. Appellant’s counsel also used a peremptory strike to excuse venireperson Betty Wooley, who was not excused for cause after, among other things, agreeing with the statement that because appellant had been charged, she believed that he was guilty.

We do not address this claim of error because it pertains to venirepersons that appellant excused through the use of his peremptory challenges. It is well settled that the loss of peremptory challenges cannot be reviewed on appeal. See, e.g., Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1990). The focus should not be on a venireperson who was peremptorily challenged, but on the persons who actually sat on the jury. Pickens v. State, 301 Ark. 244, 251, 783 S.W.2d 341, 345 (1990) (citing Ross v.. Oklahoma, 487 U.S. 81 (1988)). Because Ms. Howard and Ms. Wooley were not seated on the jury, we need not consider whether they should have been struck for cause.

Appellant then argues that because he was forced to exercise two peremptory challenges on Ms. Howard and Ms. Wooley and exhausted his challenges, he had no challenges available to use to strike juror Nancy Beene, who had stated that she would have a problem with affording appellant the presumption of innocence. We have said that in order to challenge a juror’s presence on appeal, the appellant must have exhausted his peremptory-challenges and must show that he was forced to accept a juror who should have been excused for cause. Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 569, 944 S.W.2d 838, 846 (1997). Appellant must have asked the court to remove the juror for cause, and the court must have improperly denied the request.

With respect to Ms. Beene, during the initial stages of voir dire, appellant argued that Ms. Beene was not qualified to serve as a juror, on this case or any other, because she indicated that “the defendant has something to prove.” The trial court did not disqualify Ms. Beene at this point, stating that it would explore her alleged bias if she was selected on the venire panel. The court then proceeded to call potential jurors in groups of three. After asking the three-member panel a series of questions, each attorney was allowed to request a strike for cause or to use a peremptory challenge. Not only did appellant not ask the court to strike Ms. Beene for cause, but when Ms. Beene was called, appellant’s counsel explicidy responded, “Defense has no challenges.” Because appellant did not seek to strike Ms. Beene for cause, he cannot prevail in his argument that he was prejudiced because he was forced to accept her after exhausting his peremptory challenges.

For appellant’s fifth assignment of error, he argues that during the State’ case-in-chief and case-in-rebuttal, the State asked questions that required a witness to improperly comment on appellant’s decision to exercise his constitutional right to remain silent, in violation of the United States Supreme Court’s ruling in Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, a defendant chose to remain silent after the officers read him his Miranda rights. At trial, the defendant took the stand and offered, an exculpatory explanation for his actions. Id. On cross-examination, the prosecutor asked Doyle why he did not come forward with his explanation at the time of his arrest. On appeal, the Supreme Court held that implicit in the Miranda warnings is the promise that a defendant’s decision to remain silent will not be used against him at the time of trial: “[I]t would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. at 611. However, the Doyle rationale does not apply to the circumstances of this case, for the reasons outlined below.

Here, what appellant did or did not tell the officers at the time of his arrest was discussed four times at trial. First, during the State’s case-in-chief, the State asked Officer Hill what appellant said at the time of his arrest. Hill answered that appellant claimed that he had not robbed anyone and that he got into an argument with the victim. The State then asked whether appellant had made any statement about having been attacked. The defense made a Doyle objection, and after a bench conference, the State withdrew the question and continued with a different line of questioning.

We have stated that where no further mention was made at that time of the appellant’s silence and the appellant requested neither an admonition nor a mistrial, no reversible error occurred. Vick v. State, 299 Ark. 25, 26, 770 S.W.2d 653, 654 (1989). Because the State withdrew this question, we conclude that the questioning did not violate the Court’s decision in Doyle.

Later, appellant took the stand and claimed that he cut the victim in self-defense. During direct examination, appellant said that he told an officer who transported him to the crime scene that the victim had a knife. The State did not object to this line of questioning, and it appears that the defense opened the door as to what appellant did or did not tell the police at the time of his arrest. See United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975).

During cross-examination, appellant said that at the time of his arrest he told another officer that the victim had a knife. Appellant, however, did not tell this unnamed officer that the victim attacked him first or that he cut the victim in self-defense. Appellant then testified that while he was in custody, he told Officer Hill that he did not rob anyone and that the victim had a knife. Because appellant did not object to this line of questioning, this claimed error has not been preserved for our review.

Finally, after the defense rested, the State called Officer Hill as its rebuttal witness. The State asked Officer Hill about his conversation with appellant while he was in police custody. Officer Hill testified that appellant told him that he did not rob anyone and that he had an argument with the victim. Officer Hill then testified that appellant did not say anything about the victim having a knife, the victim attacking him, or smoking crack cocaine with the victim prior to the attack. Appellant made a Doyle objection, which the court overruled. Appellant had opened the door to this fine of questioning by his own testimony on direct examination concerning what he had and had not told the officers investigating the crime. See Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986). Appellant suffered no prejudicial error because he opened the door to this line of questioning and because the same or similar evidence was introduced at trial without objection.

For his final argument on appeal, appellant contends that “the preceding errors were compounded by the evidentiary and other errors by the Court which permeated the entire trial and sentencing.” This appears to be a cumulative-error argument. We have previously held that an appellant asserting a cumulative-error argument must show that there were objections to the alleged errors individually and that the cumulative-error objection was made to the trial court and a ruling obtained. Munson v. State, 331 Ark. 41, 45, 959 S.W.2d 391, 392 (1998). As appellant’s abstract does not demonstrate that he made a cumulative-error objection or motion, this issue has not been properly preserved for appeal.

Furthermore, the alleged errors considered individually do not warrant reversal. Appellant first argues that the trial court erred in denying his motion for a mistrial, which followed a statement by the trial court that appellant asserts was an incorrect statement of the law. During voir dire, appellant asked potential jurors if they would use his prior convictions as evidence of guilt. The State objected, and the trial court sustained the objection, stating in front of the jury that its “understanding of the law is that every juror can take into account every fact that is established to that juror’s satisfaction.” Appellant moved for a mistrial based on his assertion that this amounted to an incorrect statement of the law.

We have said that a mistrial is an extreme remedy that should only be used when the error is beyond repair and cannot be corrected by any curative relief. Turner v. State, 325 Ark. 237, 245, 926 S.W.2d 843, 848 (1996). A trial court’s decision to grant or deny a mistrial will not be disturbed absent a showing of an abuse of discretion. White v. State, 330 Ark. 813, 826, 958 S.W.2d 519, 525 (1997).

Pursuant to Ark. R. Evid. 609, once an accused takes the stand, his credibility may be impeached with prior felony convictions; however, the convictions may not be used as proof of guilt. See McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). Accordingly, the trial court’s first statement, made in response to the State’s objection to appellant’s question, was incomplete and possibly misleading.

Even if the trial court made an incorrect statement of the law during voir dire, the court cured any error by instructing the jury fully and correctly on the applicable law at the close of the trial, including what evidence could be used for which purposes, as follows: “Evidence that a witness, including the defendant, Cleotis Willis, has been previously convicted of a crime or crimes may be considered by you for the purpose of judging the credibility of the witness, but not as evidence of the guilt of the defendant.” Because the court instructed the jury on the proper use of appellant’s prior convictions before it reached its guilty verdict, we conclude that the trial court did not abuse its discretion in denying the motion for a mistrial.

Appellant also asks this court to find reversible error in the court’s denial of appellant’s motion for a mistrial when the venire applauded the answer of one potential juror. The court denied the motion but admonished the venire. We affirm the trial court’s denial of the mistrial because any error inflicted by the applause was cured by the trial judge’s admonition. Cf. Bradshaw v. State, 206 Ark. 635, 176 S.W.2d 912 (1944) (concluding that any error that resulted from audience’s applause during trial was corrected by trial court’s curative instruction).

Appellant next contends that the State committed reversible error when it asked potential jurors if they could impose the maximum sentence in the case. Appellant did not object to this question, thus failing to preserve this issue for appeal. See, e.g., Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997) (requiring a contemporaneous objection to preserve the issue whether previous convictions should have been considered in the sentencing phase at a bench trial); Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). The same is true for appellant’s argument that the trial court’s holding a hearing concerning the number of appellant’s prior convictions in the presence of the jury was error. Because appellant failed to object to this hearing below, the issue is not preserved for our review.

Lastly, appellant argues that the trial court erred in refusing to allow a defense witness to testify that the victim had told him that he was going to smoke crack cocaine with appellant. Appellant asserts that the testimony was admissible to prove that the victim had acted in conformity with his stated intentions. However, the record reflects that the witness testified as follows without objection: “I guess they were going to smoke crack cocaine. I know that’s what they were going to do.”

We have consistently held that no prejudicial error has resulted where the same or similar evidence was otherwise properly introduced. See, e.g., Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998); Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Under the circumstances, even if the exclusion was error, it was harmless because the testimony was ultimately admitted. We conclude that the trial court did not abuse its discretion in excluding the evidence, and we affirm on this point.

Affirmed.


author: Per Curiam.

text:
    Gary BLY v. STATE of Arkansas
    CR 98-595
    975 S.W.2d 97
    Supreme Court of Arkansas
    Opinion delivered October 1, 1998

      Richard Lippard, for petitioner.
    No response.
   Per Curiam.

The procedural background in this case is set forth in our per curiam opinion delivered on September 17, 1998. Attorney Richard Lippard, counsel for petitioner Gary Bly, was ordered to appear before this court on September 24, 1998, to show cause why he should not be held in contempt for his failure to protect Mr. Bly’s right to appeal the judgment and for his representation of Mr. Bly while he was not an attorney in good standing due to his failure to pay bar dues. Mr. Lippard appeared on September 24, 1998, and entered a plea of guilty to the contempt citation. In mitigation, he told the court that he had drafted an affidavit in response to a request to do so regarding his representation of Mr. Bly but did not know whether it had been sent or received. He also stated that his failure to timely pay his 1997 and 1998 bar dues was simply an error on his part.

Based on the foregoing, we hold that Mr. Lippard is in contempt of court for failing to protect Mr. Bly’s appeal and for representing him when Mr. Lippard was not an attorney in good standing. We assess a fine of $250.00. A copy of this order will be forwarded to the Committee on Professional Conduct.


text:
    Eric DAVIS v. STATE of Arkansas
    CR 98-1135
    975 S.W.2d 97
    Supreme Court of Arkansas
    Opinion delivered October 1, 1998
    C. Richard Lippard, for appellant.
    No response.
   Per Curiam.

Eric Davis, by his attorney, C. Richard Lippard, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the Appellant.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. See Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, Appellant’s motion must be denied.

Appellant’s attorney, C. Richard Lippard, 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.

The present motion for rule on the clerk is denied.


text:
    Brent STANDRIDGE v. Sharon PRIEST, Secretary of State
    98-1115
    975 S.W.2d 439
    Supreme Court of Arkansas
    Opinion delivered October 1, 1998

      Appellant, pro se.
    No response.
   Per Curiam.

Appellant, Brent Standridge, has moved for expedited consideration of his appeal from a circuit court order denying his,petition for writ of mandamus and declaratory judgment, seeking that the appellee, Sharon Priest, Secretary of State, be directed to place Standridge’s name on the ballots for the 1998 elections as a candidate for one of the Arkansas Court of Appeals’ judicial positions created by Act 15 of 1995 (1st Ex. Sess.). Additionally, Standridge has filed a motion to supplement the record. The appellee has not filed a response to either motion. We grant the motion for expedited consideration of this appeal, and we grant appellant’s motion to supplement the record. The appellant filed his brief on September 17, 1998. The appellee’s brief shall be filed by Monday, October 5, 1998. The appellant’s reply brief shall be filed by Wednesday, October 7, 1998.


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

text:
    STATE of Arkansas v. Carlos Exavier DONAHUE
    CR 98-196
    978 S.W.2d 748
    Supreme Court of Arkansas
    Opinion delivered October 8, 1998

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellant.

      Stephen E. Morley, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

On September 24, 1996, the appellant, Carlos Exavier Donahue, was charged with (1) possession of a controlled substance with intent to deliver marijuana; (2) possession of a controlled substance with intent to deliver cocaine; (3) possession with intent to use drug paraphernalia; and (4) simultaneous possession of a firearm and a controlled substance, cocaine. After hearing arguments at a bench trial on September 26, 1997, Judge Marion Humphrey convicted Donahue of the first three charges and sentenced him to forty-eight months’ probation. However, Judge Humphrey “dismissed” the simultaneous-possession charge, finding that Donahue could avail himself of Ark. Code Ann. § 5-73-120(c)(4) (Repl. 1997), which provides a defense to carrying a weapon when upon a journey. From this judgment, the State brings the instant appeal. Although originally filed in the Court of Appeals, this case was reassigned to this court to address an issue of first impression and statutory interpretation, specifically, whether the journey defense is applicable in the context of a simultaneous-possession charge under Ark. Code Ann. § 5-74-106 (Repl. 1997).

Our jurisdiction is authorized pursuant to Ark. R. App. P.—Crim. 3 (1998) and Ark. Sup. Ct. R. 1-2(b)(1), (6) (1998). The sole point urged by the State on appeal is that the trial court erred as a matter of law in its interpretation of section 5-73-120(c)(4) and its application to section 5-74-106. In addressing an appeal by the State, we first must determine whether the correct and uniform administration of the criminal law requires our review. Ark. R. Crim. P. 36.10(c); see also State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). For example, if the Pulaski County circuit courts interpret these statutes in one manner and other counties’ circuit courts are in conflict with that interpretation, uniformity throughout the state is lacking.

However, although we have jurisdiction to consider this appeal, the appellee correctly contends that our review of the State’s point on appeal is procedurally barred. We have long held that a contemporaneous objection must be made to the trial court before we will review an alleged error on appeal. Mackey v. State, 329 Ark. 229, 231, 947 S.W.2d 359 (1997). We noted in State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994), also an appeal from a bench-trial ruling, that the purpose of the contemporaneous-objection rule is to give the trial court an opportunity to know the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. Id., 318 Ark. at 222. A contemporaneous objection is a prerequisite to our review, except in very limited circumstances that do not apply in the instant case. See Withers v. State, 308 Ark. 507, 510, 825 S.W.2d 819 (1992) (citing Smart v. State, 297 Ark. 324, 761 S.W.2d 915 (1988); Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)).

Moreover, arguments not raised at trial will not be addressed for the first time on appeal, and parties are bound on appeal by the scope and nature of the objections and arguments they presented at trial. Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997) (citing Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995)). Here, the State failed to make the specific argument, via a timely objection to the trial court, that the journey defense is inapphcable to a simultaneous-possession charge. The State objected to the journey defense only after the trial court found Donahue not guilty on the simultaneous-possession charge and, as a result, failed to preserve the issue for appellate review. Given the foregoing, we hold that the appellant is procedurally barred from appealing this issue, and we affirm the trial court.


text:
    Linda STREET v. STATE of Arkansas
    CR 98-74
    975 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered October 8, 1998
    [Petition for rehearing denied November 12, 1998.]

      Alvin Schay, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellant, Linda Street, entered a plea of nolo contendere in Jackson County, Arkansas, Circuit Court to the following charges: possession of methamphetamine with intent to deliver (a Class Y felony, carrying a possible sentence of ten years to forty years or life in the Arkansas Department of Correction and a fine of up to $25,000); possession of marijuana with intent to deliver (a Class C felony, carrying a possible sentence of four years to ten years in the Arkansas Department of Correction, or a fine of up to $25,000, or both); and possession of drug paraphernalia (a Class C felony, carrying a possible sentence of three years to ten years in the Arkansas Department of Correction, or a fine of up to $10,000, or both). See Ark. Code Ann. §§ 5-4-401 (a)(4), 5-64-401(a)(l)(I), (iv), and 5-64-403(c)(1) (Repl. 1998). The trial court sentenced appellant to thirty years, five years, and five years, respectively on each count, for a total of forty years in the Arkansas Department of Correction. Appellant contends for her only point on appeal that the trial court committed reversible error by not disqualifying itself because of “agitation” with defense counsel’s actions, resulting in an excessive sentence for appellant.

Rule 1(a) of the Arkansas Rules of Appellate Procedure— Criminal provides that

[a]ny person convicted of a misdemeanor or a felony by virtue of trial in any circuit court of this state has the right to appeal to the Arkansas Court of Appeals or to the Supreme Court of Arkansas. An appeal may be taken jointly by codefendants or by any defendant jointly charged and convicted with another defendant, and only one (1) appeal need be taken where a defendant has been found guilty of one (1) or more charges at a single trial. Except as provided by ARCrP 24.3(b) there shall be no appeal from a plea of guilty or nolo contendere. [Emphasis added.]

The only exception to Rule 1 of the Arkansas Rules of Appellate Procedure is found in Arkansas Rule of Criminal Procedure 24.3(b), which provides that

[w]ith the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

That exception does not apply in this case.

Appeal dismissed.


author: Tom Glaze, Justice.

text:
    LaJarrette BOOKER v. STATE of Arkansas
    CR 98-111
    976 S.W.2d 918
    Supreme Court of Arkansas
    Opinion delivered October 8, 1998

      John H. Bradley, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Lajarrette Booker, Jr., brings this appeal from convictions of aggravated robbery and rape for which he received respectively the sentences of forty years and life imprisonment. Booker does not question the sufficiency of the State’s evidence in this appeal, but instead argues the trial court erred in excluding certain evidence he proffered for the purpose of impeaching the testimony of the alleged victim, Sabrina Dean.

The facts may be stated briefly. Dean was driving her car when she was stopped at an intersection in Blytheville. Booker approached Dean’s car, pointed a gun at her, and instructed her to move to the passenger’s seat as he entered the driver’s seat. Booker drove the car out of town, onto a dirt road and into a rural area, where he raped Dean. Booker then drove back to town, and told Dean that he would kill her and her family if she told anyone of the rape. Before departing the car, Booker took Dean’s gold chain which Dean said she had purchased for $1,200.00. This entire episode lasted about one hour.

Dean subsequently went home, called her male friend’s home, told his wife that she had been robbed, but did not mention the rape. About twenty-five minutes later, Dean reported the rape to the police, who subsequently picked her up and took her to the hospital, where a sexual-assault kit was performed. A forensic examiner with the FBI laboratory later determined the semen found on the vaginal swabs taken from Dean matched Booker’s DNA.

On the day of the rape and robbery, the police took Dean from the hospital to the police station where she looked at about 500 photographs. Dean later testified at trial that, while she did not pick Booker as the perpetrator, she “kept getting stuck on his picture. I knew it looked like him. ... He looked a little darker in life.” Dean said that one or two days after she viewed the photographs, she recognized Booker’s picture in a yearbook. She then returned to the police station and picked Booker’s picture out of a six-person photographic lineup. Dean later made a positive in-court identification of Booker.

Booker’s first point for reversal arises from his pretrial motion wherein he sought to offer proof that, about four years prior to filing her rape charge against Booker, Dean had filed a police report against another man she knew, but withdrew the allegations the day after having filed the report. Booker cited the case of West v. State, 290 Ark. 329, 340-A, 722 S.W.2d 284 (1987) (supplemental opinion denying rehearing), to the trial court, and argued that the West decision allowed a defendant to impeach his alleged rape victim with evidence that the victim had made a prior rape accusation against another person, but later related the allegation was false or it was proved to be false. Booker argued below and now on appeal that Dean’s withdrawal of such a prior accusation amounted to an admission the accusation was false and serves as proof that the victim will make false rape allegations. The prosecutor countered Booker’s argument, stating that Arkansas’s rape-shield statute precluded evidence such as that proffered by Booker and is intended to prevent a victim’s irrelevant prior sexual conduct from being presented to the jury.

After listening to Booker’s and the prosecutor’s arguments, the trial court stated that, while it disagreed with the West decision and believed the rape-shield statute prohibited the introduction of a victim’s prior allegation of sexual conduct like that offered by Booker, that decision appeared to allow such evidence if the allegations were false. Nonetheless, the trial court excluded Booker’s proffer bearing on Dean’s earlier rape allegation because there was no proof presented to show her allegation was false. In short, the trial court utilized A.R.E. Rules 401 and 403 and found that, although Booker’s proposed evidence might have some slight relevance, the probative value of such evidence was outweighed by its prejudicial value and therefore should be excluded. As a part of its ruling, the court added that Booker’s proffer would confuse and mislead the jury.

Although the trial court initially relied on the West decision to conclude that the rape-shield statute does not exclude a victim’s prior false allegations of sexual conduct, we note that the rape-shield statute before the West court has since been amended by Act 934 of 1993. Thus, we make that Act a part of our analysis in this appeal. We first point out that, in interpreting the rape-shield statute as it read prior to 1993, this court twice decided that, if a victim’s previous sexual allegations were false, evidence of them is not evidence of “prior sexual conduct” that is excluded by the rape-shield statute, but instead is evidence of prior misconduct of the alleged victim, which has a direct bearing upon the alleged victim’s credibility. See State v. Mills, 311 Ark. 363, 844 S.W.2d 324 (1992); West, 290 Ark. at 340-A, 722 S.W.2d at 284 (1987). Our court in Mills invited the General Assembly to change the wording of the rape-shield statute to provide that a victim’s prior false allegations of sex offenses should be excludable as “prior sexual conduct” if that was the General Assembly’s intention.

As previously mentioned, the 1993 General Assembly enacted Act 943 [compiled as Ark. Code Ann. § 16-42-101 (b)], which now reads as follows:

(b) In any criminal prosecution under §§ 5-14-101 et seq. or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. (Emphasis added.)

The 1993 act inserted the language emphasized and set out in the foregoing provision, and by doing so, the General Assembly specifically broadened Arkansas’s rape-shield law to exclude both (1) evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, and (2) evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations. At a pretrial hearing in the instant case, no evidence was presented to show that Dean’s prior allegation of rape was true; nor was there evidence provided that she denied having made the prior allegation. Consequently, the rape-shield statute as amended does not apply to the present situation. In addition, neither did Booker under the rationale of West and Mills demonstrate or prove that Dean’s prior allegation had been false and was therefore admissible. Given these circumstances, we hold the trial court did not abuse its discretion when it ruled that if Booker’s proffer was admitted, it would be unfairly prejudicial and misleading.

We next turn to Booker’s contention that the trial court erred in deciding he could not introduce into evidence Dean’s prior suicide attempt. On March 28, 1995, almost a full year before the allegation in this case, Dean ingested several kinds of pills. When she began to get sick, her boyfriend drove her to the hospital, where her stomach was pumped.

Booker argues that he should have been allowed to introduce evidence of this incident because it demonstrates emotional or mental instability and thus challenges her credibility. The State argues that the trial court was correct in determining the suicide attempt had no relevance to the issues in this case and that the only purpose of introducing this evidence would be to attempt to disparage the victim.

The trial court ruled that the evidence was not relevant, and that even if it were, the probative value was substantially outweighed by the danger of unfair prejudice. The trial court has discretion when ruling on relevancy, and a trial court’s decision will not be reversed unless the supreme court finds there has been an abuse of discretion. Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994). In Cook, the defendant argued the attempted suicide was relevant to show the victim was attempting to get attention with both the suicide and the allegations made in that case, and to show motive to fabricate her story. Cook, 316 Ark. at 387. This court, however, affirmed the trial court’s ruling that the victim’s suicide attempt just three months before the alleged rape in that case was not relevant and was therefore inadmissible.

In this case, we find no error in the trial court’s ruling. Dean’s suicide attempt was almost one year previous to the incident currently at issue, and any emotional or mental instability she may have had at that time would not necessarily still be present one year later. In addition, the suicide attempt was apparently the direct result of an argument with her mother, whereas the rape was in no way precipitated by the actions of Dean, her family, or those close to her. In sum, we hold that the trial court did not abuse its discretion when ruling that the previous suicide attempt had no relevance. Even if some relevance could be assigned to Dean’s suicide attempt, we cannot say the trial court abused its discretion in ruling its probative value was substantially outweighed by the danger of unfair prejudice.

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court rules, the record has been reviewed for adverse rulings objected to by appellant but not argued on appeal. There were no reversible errors.


text:
    STATE of Arkansas v. Maurice CLEMMONS
    CR 98-296
    976 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered October 8, 1998

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellant.
    No brief filed.
   Tom Glaze, Justice.

Appellant Maurice Clemmons acquired four felony convictions and a revocation of probation during a period from September 1989 to mid-February 1990, and all five of those proceedings became the subject matter of Clemmons’s application for writ of habeas corpus in the U.S. District Court, Eastern District, in 1996. See Clemmons v. Norris, PB-C-96-19 slip op. (F.3d March 26, 1996). In the federal proceeding, the district court, relying largely on Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), held Clemmons’s right to counsel was violated in each of the five state convictions, and directed that a writ of habeas corpus should issue unless Clemmons was allowed to pursue postconviction proceedings in state court. Id. The Pulaski County Circuit Court, First Division, duly afforded Clemmons postconviction proceedings relating to his prior five convictions and denied him relief in all but one. The case in which the trial court granted a new trial was his February 23, 1990 conviction for burglary and theft of property which had been affirmed on direct appeal in Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990). The circuit court found that Clemmons was denied the right to effective assistance of counsel because his trial attorney in the burglary and theft case failed to request the trial judge’s recusal. The State brings this appeal from the circuit court’s granting of postconviction relief. See State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998); State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998).

In Slocum, we discussed Strickland v. Washington, 466 U.S. 668 (1984), and its required two-part standard for evaluating claims of ineffective assistance of counsel: (1) the defendant must show that counsel’s representation fell below an objective standard of reasonableness; and (2) counsel’s deficient performance prejudiced the defense. 332 Ark. at 210, 964 S.W.2d at 390. Here, Clemmons failed to meet either prong of the Strickland test.

In this appeal, this court will only reverse a circuit court’s granting of postconviction relief if that court’s decision is clearly erroneous. Slocum, 332 Ark. at 211, 964 S.W.2d at 390. Thus, we initially examine the lower court’s order to review why that court granted Clemmons a new trial. That order reads as follows:

This court believes that there is merit to [Clemmons’s] claim that counsel should have asked the presiding judge to recuse, since prior to the beginning of the trial, the trial judge indicated in the record that he believed he had been threatened by [Clemmons], Even though the jury would decide issues of guilt or innocence, and further would decide on the length of punishment, because the judge had sole discretion on whether a sentence would be run concurrently or consecutively, and because a judge would make evidentiary rulings throughout the trial and decide on jury instructions, the importance of an unbiased judge is axiomatic. The fact that the trial judge stated that the petitioner had threatened him was enough to raise questions of bias and prejudice. The failure of counsel to seek the judge’s recusal constitutes ineffective assistance of counsel in violation of [Clemmons’s] Sixth Amendment right to counsel. (Emphasis added.)

The circuit court made its foregoing findings and decision to grant postconviction relief based on pretrial events that occurred at Clemmons’s burglary and theft trial held before Judge Floyd Lofton. Clemmons’s defense counsel, Llewellyn J. Marczuk, testifying at the postconviction hearing, related that, at the earlier trial, a security guard had reported to Judge Lofton that Clemmons had taken a hinge from one of the courtroom doors, hid it in his sock, and intended to use it as a weapon. The hinge was found and taken from him before he harmed anyone. In another incident, Clemmons extracted a lock from a holding cell, and he later threw the lock which hit his mother. During this second episode, Clemmons purportedly threatened Judge Lofton. In a third incident, Clemmons reportedly reached for a guard’s pistol during his transportation to the courtroom. Based on these occurrences, Judge Lofton placed Clemmons in leg irons and seated a uniformed officer near him during trial. This court upheld Judge Lofton’s remedial actions in Clemmons. 303 Ark. at 267-269, 795 S.W.2d at 928-929.

Marczuk, when testifying why he decided not to request Judge Lofton to recuse after Clemmons threatened the judge, said that he believed the judge would treat Clemmons fairly and opined Judge Lofton was not biased against Clemmons. In fact, Marczuk expressed that, while he did not always agree with what Judge Lofton did, Lofton was consistent and treated everyone the same. In this context, Marczuk further related that Judge Lofton told Clemmons that if he was not guilty, he should go to trial, but if he was guilty and entered a plea, the judge would not hurt him. Marczuk said that the judge’s remarks meant Lofton would run Clemmons’s sentences concurrently, not consecutively.

Under Strickland, our review of defense counsel’s performance must be highly deferential, and a fair assessment of his performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from the counsel’s perspective at the time. See Slocum, 332 Ark. at 212, 964 S.W.2d at 390. In addition, the standard of the reviewing court is to indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. We have also held on many occasions that a lawyer’s choice of trial strategy that proved ineffective is not a basis for meeting the Strickland test. 332 Ark. at 213, 964 S.W.2d at 391.

Here, Marczuk was quite familiar with how Judge Lofton conducted his court, and he expressed confidence the judge would be fair to Clemmons even though Clemmons’s actions during trial evoked placing him in leg irons. Moreover, Marczuk was confident that, if Clemmons chose to plead guilty at any stage of the trial, Judge Lofton would treat Clemmons favorably by running his sentences concurrently instead of consecutively. While Marczuk’s trial tactics proved ineffective, his choice of strategy in no way showed his representation fell below the objective standard of reasonableness prescribed by Strickland.

Even if defense counsel Marczuk’s performance could have been in some way deficient, the circuit court failed to state how that purported deficiency prejudiced Clemmons. As we held in Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1997), unless there is an objective showing of bias, there must be a communication of bias in order to require the recusal for implied bias. No such showing was made here. As previously noted, the circuit court merely concluded that the fact Clemmons threatened Judge Lofton was enough to “raise questions of bias and prejudice.” Such reasoning, if adopted, would mean a defendant, by misbehaving in court or confronting the judge, could force the judge’s recusal. We have held that it is impermissible for a party or counsel to create an infirmity for purposes of requiring a judge’s recusal. See Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998).

For the foregoing reasons, we hold that the circuit court was clearly erroneous in granting Clemmons a new trial because no showing was made that defense counsel’s performance was deficient as required under Strickland, or that Clemmons was prejudiced by counsel’s deficient representation. Therefore, the trial court is reversed.


author: Donald L. Corbin, Justice.

text:
    James McNEESE v. STATE of Arkansas
    CR 98-323
    976 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered October 8, 1998

      Young & Finley, by: Richard H. Young, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant James McNeese appeals the judgment of the Conway County Circuit Court convicting him of three counts of residential burglary and four counts of theft of property, and sentencing him to eleven years in the Arkansas Department of Correction. On appeal, Appellant asserts that the trial court erred in denying his motion to dismiss the first six counts of the information on the ground that the State had failed to include a contra pacem clause (“Against the peace and dignity of the State of Arkansas”) following each of those counts, as required by Article 7, § 49, of the Arkansas Constitution of 1874. This case was certified to us from the court of appeals; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(d). We find no error and affirm.

The record reflects that Appellant’s jury trial began on the morning of January 6, 1998. After conducting voir dire most of the morning, the jury was selected and sworn in by the clerk. Thereafter, around 11:30 a.m., the trial court recessed the trial and sent the jurors to lunch. During the recess, Appellant made a motion to dismiss counts one through six of the information on the ground that the State had failed to include a contra pacem clause after each of those six counts. The trial court denied the motion and permitted the prosecutor to orally amend the information to cure the alleged defect. Additionally, the trial court observed that it was clear from the way the information was written that the contra pacem clause was intended to apply to all seven counts.

Appellant argues on appeal that the trial court erred in denying his motion to dismiss and in permitting the prosecutor to amend the information after the jury had been sworn. We do not reach the merits of the appeal because he failed to raise the issue below in a timely manner. The proper time to object to the sufficiency of an information or indictment is prior to trial. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991), cert. denied, 114 S. Ct. 1857 (1994), (citing Ark. Code Ann. § 16-85-705 (1987)); Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986)). The issue of the inclusion of a contra pacem clause goes to the sufficiency of the charging instrument; thus, it must be raised prior to trial to be preserved for appellate review. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

Here, Appellant never challenged the sufficiency of the information until the day of trial, after the jury had been chosen and sworn to hear the case. We agree with the State that because jeopardy attaches to the accused once the jury is sworn, see Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992), it logically follows that the trial has already begun at that time. Hence, because Appellant failed to raise this argument prior to trial, it is not preserved for our review on appeal.

Affirmed.


author: Robert L. Brown, Justice.

text:
    STATE of Arkansas v. Salena Rae BOWERS
    CR 98-555
    976 S.W.2d 379
    Supreme Court of Arkansas
    Opinion delivered October 8, 1998

      Winston Bryant, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellant.

      Charles Duett, Public Defender, for appellee.
   Robert L. Brown, Justice.

The appellant in this case is the State of Arkansas, which appeals the trial court’s suppression order regarding marijuana and methamphetamine found in connection with the appellee, Salena Rae Bowers. We hold that we have jurisdiction to hear this appeal under Ark. R. App. P.—Crim. 3, and we affirm the suppression of evidence.

The facts are these. Salena Bowers was a passenger in a car driven by Russell Plumley on July 18, 1997. Police Officer Andrew Harrison of the Rogers Police Department stopped Plumley’s car shortly after midnight because it was traveling 10-15 m.p.h. below the speed limit, the car’s right turn signal failed to deactivate, and the occupants of the car were watching him in the side-view mirrors. Officer Harrison is a member of the crime suppression unit in the Police Department, which is primarily responsible for drug interdiction. Once stopped, Plumley got out of the car quickly, and Officer Harrison ordered him back in the car. The police officer described Plumley as acting jittery and “sweating profusely.”

After calling for backup assistance, Officer Harrison asked for identification from Plumley and Bowers. At that time, he smelled alcohol on Plumley’s breath, and he asked him about his alcohol consumption. Plumley admitted that he had drunk a beer earlier in the evening. When neither Bowers nor Plumley could produce a driver’s license, Officer Harrison tried to run their names through the ACIC computer system, but it was out of service. Patrolman Jarod Mason arrived, and Officer Harrison conducted a field-sobriety test on Plumley (the horizontal gaze nystagmus test), which showed that he had consumed more than one beer.

Officer Harrison then asked Plumley if he had any guns in the car, and he told him there was one in a bag in the backseat. At this point, Officer Harrison asked Bowers to get out of the car while he retrieved the gun. He found a Taurus 9mm handgun in the car in a small overnight bag, exactly where Plumley said it would be. Corporal David Spain of the Rogers Police Department arrived to assist, and Officer Harrison searched the vehicle. He found a fully loaded 9mm magazine in the car’s console, a wooden club in the passenger side doorjamb, and a small black vinyl bag shoved halfway under the passenger.seat. Officer Harrison felt the bag, which was hard, opened it, and found 182 grams of marijuana. The police officers arrested Plumley and Bowers. Plumley attempted to flee but was soon apprehended.

After searching the car further, the police officers found 5.5 grams of methamphetamine. Plumley and Bowers were charged with simultaneous possession of drugs and firearms, possession of a controlled substance (methamphetamine) and possession of a controlled substance with the intent to deliver (marijuana). Plumley and Bowers both moved to suppress the drugs seized because of the illegal stop. The trial court granted the motion as to Plumley but denied it for Bowers due to lack of standing. When Bowers’s defense counsel filed a motion to reconsider, the trial court changed its ruling and also suppressed the evidence as to her. The State now appeals from that suppression order. Neither party contests the fact that the initial stop was illegal.

The State’s argument on appeal is that Bowers cannot challenge the search of the car and seizure of the drugs following the illegal stop because she did not have a reasonable expectation of privacy in the car. The State further maintains that just because a passenger possesses standing to challenge an illegal stop does not mean the subsequent discovery of contraband is the fruit of the passenger’s unlawful detention. Bowers, on the other hand, contends that a passenger may challenge an illegal stop of a vehicle, which is independent of a search, even if he or she has no possessory or ownership interest in the car, and that the remedy for an unconstitutional search is suppression of the evidence.

This court has said that an appellant must have standing to assert Fourth Amendment rights because those rights are personal in nature. See Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Furthermore, this court has been constant in its holdings that a passenger in a vehicle must have an expectation of privacy in the searched vehicle in order to have standing to contest the search on Fourth Amendment grounds. See Stanley v. State, 330 Ark. 642, 956 S.W.2d 170 (1997); McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996); Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995); Littlepage v. State, supra. This expectation of privacy must derive from a possessory interest in the passenger which was conferred by the vehicle’s owner or someone with the authority to grant possession to the passenger. See Stanley v. State, supra; McCoy v. State, supra.

Here, though, the issue presented to the court is not the same because an illegal stop is involved and the search for and seizure of the drugs directly followed the stop. We recognized by way of dictum in Dixon v. State, supra, that a search on the heels of an illegal stop presents a different issue with respect to occupants of the vehicle. We said: “Similarly, the occupants of a vehicle have standing to assert their own Fourth Amendment rights, independent of the owner’s, such as in a challenge to the initial stop, or the seizure of their person.” Dixon, 327 Ark. at 111, 937 S.W.2d at 646 (citing John Wesley Hall, Jr., Search and Seizure § 6:10 (2d ed. 1991)).

The great weight of authority is in accord with the dictum set forth in the Dixon decision. See, e.g., United States v. Brown, 102 F.3d 1390 (5th Cir. 1996); United States v. Kimball, 25 F.3d 1 (1st Cir. 1994); United States v. Roberson, 6 F.3d 1088 (5th Cir. 1993); United States v. Rusher, 966 F.2d 868 (4th Cir. 1991); United States v. Erwin, 875 F.2d 268 (10th Cir. 1989); United States v. Durant, 730 F.2d 1180 (8th Cir. 1984); United States v. Lawson, 782 F.Supp. 1546 (S.D. Fla. 1992); United States v. Daniel, 804 F. Supp. 1330 (D. Nev. 1992); Jarvis v. State, 600 A.2d 38 (Del. 1991); McKnight v. State, 612 N.E.2d 586 (Ind. Ct. App. 1993); State v. Epperson, 703 P.2d 761 (Kan. 1985); Ott v. State, 600 A.2d 111 (Md. 1992); Scott v. State, 877 P.2d 503 (Nev. 1994); State v. Carter, 630 N.E.2d 355 (Ohio 1994); Howard v. State, 888 S.W.2d 166 (Tex. Ct. App. 1994).

The case of United States v. Kimball, supra, is illustrative of the reasoning employed in holding that a passenger in a car has standing to contest a search after an illegal stop. In Kimball, the First Circuit noted that a police officer’s act of stopping a vehicle and detaining its occupants constitutes a seizure under the Fourth Amendment, which affects an occupant’s right to freedom from random, unauthorized, investigatory stops and from the anxiety that accompanies such stops. See Kimball, supra, (citing Delaware v. Prouse, 440 U.S. 648 (1979)). The Kimball court said:

The fact that a defendant is a passenger in a vehicle as opposed to the driver is a distinction of no consequence in this context. The interest in freedom of movement and the interest in being free from fear and surprise are personal to all occupants of the vehicle, and an individual’s interest is not diminished simply because he is a passenger as opposed to the driver when the stop occurred.

Kimball, 25 F.3d at 5.

The State counters with the case of United States v. Carter, 14 F.3d 1150 (6th Cir. 1994), which declined to exclude evidence against a passenger which was obtained as a result of an illegal stop. In Carter, a van was pulled over in Memphis, based on nothing more than its North Carolina tag. This was an illegal stop, and the police officers searched the van and detained its occupants. They discovered marijuana, and the passenger argued that this evidence should be suppressed as the fruit of an illegal stop. The Sixth Circuit held that just because the stop was illegal, it did not follow that “the discovery and seizure of the marijuana represented ‘fruit’ of Mr. Carter’s unlawful detention.” Carter, 14 F.3d at 1154.

We conclude that the majority view presents the better reasoning on this point. Surely, Bowers’s freedom was curtailed by the illegal stop to the same extent as Plumley’s. She was similarly asked to produce a driver’s license and told to get out of the vehicle which was then searched. There is no doubt that the search which resulted in finding marijuana and methamphetamine was the direct result of the illegal stop. Under these circumstances, we hold that the search was tainted, and we affirm the trial court’s ruling that the drugs seized must be suppressed.

Affirmed.

       According to the probable-cause affidavit completed by Corporal Allen Harte of the Rogers Police Department, the stop was at “0006 hours.” It is also somewhat unclear as to whether the stop after midnight actually occurred on July 19, 1997.