author: PER CURIAM.

text:
    Phillip Todd CHENOWITH v. STATE of Arkansas
    CR 98-1475
    19 S.W.3d 612
    Supreme Court of Arkansas
    Opinion delivered June 22, 2000
    [Petition for rehearing denied September 21, 2000.]

      Morris W. Thompson, Judge;

      Sexton & Fields, PLLC, by: Sam Sexton III, for appellant.

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Phillip Todd Chenowith was convicted of multiple counts of kidnapping and rape, and one count of aggravated robbery in connection with criminal episodes involving prostitutes that occurred on March 15, 1993, and March 30, 1993. He received Ufe sentences for the rape convictions and terms of years for the other offenses. This court affirmed his conviction and sentence in Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995). Chenowith subsequently filed a timely petition for postconviction relief in which he alleged that his trial counsel was ineffective for fading to move for a dismissal because of a violation of the speedy-trial rule, and for fading to introduce the testimony of Chenowith and several alibi witnesses. The circuit court denied relief, and Chenowith now appeals that order. We find no error and affirm.

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

The following dates and periods of time are relevant to the speedy-trial issue:

March 30, 1993 — Date of arrest

August 30, 1993-September 24, 1993 — First period found excludable by the circuit court as a continuance that was granted to Chenowith.

September 25, 1993-January 18, 1994 — Second period found excludable by the court as a continuance granted to the State to obtain material evidence.

January 18, 1994-May 4,1994 — Third period found by the circuit court to be excludable because of congestion of the trial docket.

August 17, 1994 — Date Chenowith was tried.

The speedy-trial period began on the date of Chenowith’s arrest. Ark. R. Cr. P. 28.2(2)(a). The number of days that passed between the date of his arrest and the date of his trial totaled 505 days. Accordingly, if Chenowith’s counsel had moved for a dismissal, he would have made a prima facie showing of a violation of the rule, and the burden would have shifted to the State to show good cause for the delay. Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). Whether or not counsel was ineffective, therefore, would depend on whether the State would have been able to prove there would have been excluded periods sufficient to bring Chenowith’s trial within the speedy-trial period. In making this determination, we must apply the version of Rules 28.1 through 28.3 that was in effect at the time of Chenowith’s trial.

August 30, 1993-September 24, 1993 (25 days)

The circuit court first concluded that the period from August 30, 1993, to September 24, 1993, could be excluded pursuant to Rule 28.3(c), which provides that “the period of delay resulting from a continuance granted at the request of defendant or his counsel...” shall be excluded in computing the time for trial. The court found that a continuance was granted until October 6, 1993, but that the period chargeable to Chenowith was limited to September 24, 1993, because on that date, the State sought a continuance in order to allow for DNA testing.

There is no indication in the criminal docket that Chenowith was granted a continuance on August 30. While this is contrary to Rule 28.3(i), which requires that “(a)ll excluded periods shall be set forth by the court in a written order or docket entry,” this court has also held that it will uphold excluded periods without a written order or docket entry when the record itself demonstrates the delays were attributable to the accused and where the reasons were memorialized in the proceedings at the time of the occurrence. Goston v. State, 326 Ark. 106, 930 S.W.2d (1996).

The State argues that other documents in the record support the circuit court’s finding that Chenowith requested a continuance. The first of these is a trial notice that indicates that the trial has been “reset by attorney” to October 6, 1993. The other document is a computer printout that indicates the trial was “reset at the request of the defendant.” The computer printout also indicates that on August 30, 1993, the cases against Chenowith and his co-defendant, David Harder, were severed for trial. Chenowith subsequently received a trial notice for October 6, 1993. Under these circumstances, it appears that Chenowith requested the continuance until that date. The circuit court correctly concluded that this period could be excluded pursuant to Rule 28.3(c).

September 25, 1993-January 18, 1994 (116 days)

The next period excluded by the circuit court was September 25-January 18, 1994, when the State sought a continuance in order to obtain DNA testing. The circuit court concluded that this period could be excluded pursuant to Rule 28.3(d)(1), which provides that a continuance granted at the request of the prosecuting attorney shall be excluded in computing the time for trial if the “continuance is granted because of the unavailability of evidence material to the state’s case, when due diligence has been exercised to obtain such evidence and there is reasonable grounds to believe that such evidence will be available at a later date.”

The continuance was granted during a hearing that took place on September 24, 1993. At that time, the State alleged that DNA testing was necessary only as to one of Chenowith’s alleged victims. Although there was a discussion about whether the prosecutor and defense counsel would jointly move for the continuance, Chenowith’s attorney, at the conclusion of the hearing, stated unequivocally that it was not a joint motion. After it was clear that it was not a joint motion, the prosecutor then stated, “(T)his is on the State’s motion and therefore speedy trial will not be tolled on it.” The events that occurred during the hearing were described by the trial court in the following docket entry:

9/24/93 ■ — ■ D appd u>/ atty. State’s motion to do DNA testing granted.

The next hearing regarding the DNA evidence occurred on December 20, 1993. At that time, the prosecutor informed the court that her office learned from the FBI that “testing was still in progress.” The prosecutor then requested more time in order for the DNA tests to be completed. The trial court granted the State’s request. The docket entry that pertains to this hearing reads:

12/20/93 — D app’d w/atty. report reset.

The last hearing that involved the DNA evidence occurred on January 18, 1994. During that hearing, the prosecutor informed the court that the FBI could not complete the DNA tests because “there was not enough DNA submitted to complete a full DNA analysis.” The State then requested that the case be set for trial. The case was then set to begin on May 4, 1994. The events of this hearing were recorded in the following docket entry:

1/18/94 D app’d w/atty. FBI unable to do DNA testing.

In his brief, Chenowith contends that the circuit court was clearly erroneous when it excluded the time period between September 24, 1993, and January 18, 1994. First, he points to the prosecutor’s statement at the close of the hearing on September 24, when she declared that the period should not be excluded, and the' trial court’s apparent agreement with that statement. Chenowith also suggests that the fact that the DNA tests were never completed indicates a lack of due diligence on the part of the State.

The ability of the State to use this period to overcome a motion for dismissal does not depend on the statements of the prosecutor at the close of the hearing, but rather, on its ability to prove the criteria in Rule 28.3(d)(1): (1) the evidence sought is material to the State’s case; (2) the State has exercised due diligence to obtain the evidence; and (3) there are reasonable grounds to believe that such evidence will be available at a later date. The tests were no doubt sought by the State in order to establish a genetic link between Chenowith and the samples that were collected in the rape kit that was performed on one of the victims. The materiality of that evidence is demonstrated by the fact that once it was established that the tests could not be performed, the charges involving the victim were dismissed. Further, the fact that the DNA tests could not be completed does not necessarily indicate a lack of due diligence on the part of the State, as the tests needed to first be attempted before it could be determined that the samples were insufficient. Accordingly, the State would have met the criteria for the application of Rule 28.3(d)(1), and the 116 days from September 24, 1993-January 18, 1994, could have been excluded under the rule.

In its order, the circuit court also found that the period between January 18, 1994, and May 4, 1994, could be excluded due to congestion of the trial docket. We need not discuss this ruling, however, as it is clear that the two excluded periods that occurred between September 24, 1993, and January 18, 1994, were sufficient to bring Chenowith’s trial within the time period provided by the rule.

In summary, if Chenowith’s attorney had filed a motion to dismiss pursuant to the speedy-trial rule, the State would have been able to prove that the 25-day period between August 30, 1993, and September 24, 1993, and the 116-day period between September 24, 1993, and January 18, 1994, would have been properly excluded under Rule 28.3. When these periods are subtracted from the 505 days that passed between Chenowith’s arrest and trial, the result is 364 days. For speedy-trial purposes, Chenowith was tried within a year of his arrest, and his attorney did not perform deficiently when he did not move for a dismissal of the charges.

Chenowith next argues that his attorney was ineffective for failing to put forth an adequate defense. Specifically, Chenowith argues that his counsel was ineffective for (1) misrepresenting, during his opening statement, that he would call three witnesses; (2) for failing to introduce the testimony of alibi witnesses; and (3) for refusing to allow Chenowith to testify in his own behalf. Chenowith further alleges that the prejudice from counsel’s failure is indicated in the result of his co-defendant’s trial, in which the alleged witnesses testified and an acquittal was obtained.

During the postconviction hearing, Chenowith testified that he informed his attorney of alibi witnesses who could have established that on March 15, 1993, the first date that the offenses allegedly occurred, he was at his home in Leslie, Arkansas. Chenowith also stated that his attorney knew of his desire to testify and told him that he would introduce his testimony. Chenowith further testified that during his opening statement, his attorney told the jury that he was going to call three witnesses. Chenowith testified that he did not know of counsel’s decision not to introduce his testimony, or the testimony of the two alibi witnesses, until he rested the defense case without calling a single witness.

Chenowith’s attorney testified that while he interviewed the alibi witnesses and had them present and ready to testify during the trial, he had concerns about the accuracy of their testimony. He also testified that he did not offer an alibi defense because he thought it would be inconsistent with his cross-examination of the victims, in which he sought to establish that their encounters with Chenowith were consensual. Consent, according to counsel, was the defense that Chenowith himself had claimed prior to trial. Counsel further stated that he filed a motion in limine to prevent the State from impeaching Chenowith with any one of his ten prior convictions, but when that motion was unsuccessful, he advised Chenowith not to testify. Regarding the representations he made about the witnesses he planned to introduce for the defense, counsel testified that he could not remember the contents of his opening statement.

Chenowith first argues that his counsel performed deficiendy when he told the jury, during his opening statement, that he was going to call three witnesses. According to Chenowith, when counsel failed to follow through with this plan, it suggested to the jury that the defense “had something to hide.” He then cites United States v. Johnson, 531 F.2d 169 (3rd Cir. ); cert. denied, 425 U.S. 997 (1976) for the proposition that such a misrepresentation satisfies the first prong of the Strickland analysis.

We first note that the only indication we have that counsel made such a statement during his opening remarks is Chenowith’s testimony during the postconviction hearing. The opening statements were apparently never transcribed for the direct appeal. Accordingly, we have no record of the alleged misrepresentation.

Even so, we conclude that this argument has no merit. Chenowith’s reliance on United States v. Johnson is not persuasive. In that case, the defense attorney told the jury during his opening remarks that he would present alibi evidence when in fact he knew, at the time he made those representations to the jury, that the testimony could not be introduced. The court stated, “(u)nder the facts of this case, we agree that a lawyer of normal competence would have recognized the danger of such a promise knowing that no alibi witness would be available and the petitioner would not testify.” The court concluded, however, that Johnson was not prejudiced because the remark was isolated and because the jury was instructed that they could not draw any adverse inferences from Johnson’s decision not to testify. In this case, Chenowith contends that his trial counsel made a similar misrepresentation to the jury, and that it was neither isolated nor cured by an appropriate jury instruction.

Johnson would not support a finding of deficient performance in this case. While the Court of Appeals for the Third Circuit concluded that counsel’s opening remarks would constitute deficient performance, a footnote in the opinion stated the following caveat:

We do not intimate, however, that a lawyer of normal competence could not promise to produce evidence in his opening statement and then change his mind during the course of the trial and not produce the promised evidence. By trial counsel’s own admission, this did not occur in this case.

Johnson, 531 F.2d at 176. During the postconviction hearing, Chenowith’s counsel testified about his assessment of the evidence at the close of the State’s case:

The Defense strategy that we had used was that these girls consented to these acts. And I felt like on cross examination we had brought out a lot of things in that favor, that they voluntarily got in the car, that they discussed price, that all this kind of thing. That whatever they gave them a ride home. I thought all of that really the jury would consider it should have at least reduced the charges substantially....But I didn’t put on any more witnesses because I didn’t think it got any better and it could only get worse.

Other evidence introduced during the postconviction hearing indicated that the alibi witnesses were present and ready to testify. Accordingly, this case differs from Johnson in that it is apparent that Chenowith’s attorney was ready, if necessary, to proceed with a defense. The fact that he decided, after reflecting on the State’s case, to not go forward with a defense does not render his performance constitutionally deficient. Rather, it is an example of a strategic decision by counsel, and we have consistently held that matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel. State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993).

Chenowith’s next argument, that counsel was ineffective for fading to introduce alibi witnesses, overlaps with the first. It can be resolved in a similar manner. The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). When assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Johnson 325 Ark. 44, 924 S.W.2d 233. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. State v. Dillard, supra.

Chenowith offered the testimony of only one of the alibi witnesses during the postconviction hearing. Lisa Garrison, Chenowith’s girlfriend, could have testified that Chenowith was with her in Leslie, Arkansas on the morning of March 15, 1993. She stated that Chenowith watched their daughter as she ran errands, and she produced a check that she wrote that morning. The other alleged alibi witnesses, Jessie and Colleen Hightower, did not testify at the postconviction hearing.

We affirm the circuit court’s denial of this claim as a matter of trial strategy. Chenowith did not introduce the testimony of all of the alibi witnesses he claims should have been called during his trial, and therefore, he has not sustained his burden of proving that his attorney’s strategic decision to refrain from calling those witnesses and rely on the consent defense was professionally unreasonable. Furthermore, Ms. Garrison and the Hightowers could have only established an alibi for March 15, 1993, only one of the dates that Chenowith was accused of engaging in criminal activities. As for the check that Ms. Garrison wrote as she ran errands on the morning of March 15, it could only prove that she was in Leslie, Arkansas that morning.

In his last argument, Chenowith contends that his trial counsel was ineffective for refusing to allow Chenowith to testify in his own behalf. According to Chenowith, he did not know that his attorney would not introduce his testimony until he rested the defense. Chenowith contends that he had a constitutional right to decide whether or not to testify, and that his counsel interfered with that right when he refused to put his client on the stand. Chenowith’s attorney testified that he did not “refuse” to put Chenowith on the stand, but that he advised Chenowith not to testify because of his record of ten prior felony convictions.

The accused has the right to choose whether to testify in his own behalf. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988). Counsel may only advise the accused in making the decision. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). The decision to testify is purely one of strategy. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).

The testimony is conflicting on the issue of whether Chenowith made the decision, pursuant to counsel’s advice, to refrain from testifying or whether counsel misled Chenowith into believing he would testify and then refused to introduce his testimony at the appropriate point of the trial. The circuit court, in concluding that this was an issue of trial strategy, apparently resolved the conflict and found that Chenowith’s attorney advised him not to testify. We are bound by this finding because the resolution of credibility issues is within the province of the trial court. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

Under the circumstances of this case, counsel’s advice was not professionally unreasonable. After the trial court denied counsel’s motion in limine the State could have impeached Chenowith’s alibi testimony with his ten prior felony convictions.

Affirmed.

       Counsel’s representation during opening remarks was not isolated because at the close of the State’s case, when the trial court asked him the number of witnesses he intended to call, he stated “three.


source: Caselaw Access Project

author: PER Curiam.

license: Public Domain

text:
    HAROLD IVES TRUCKING, CO. v. PRO TRANSPORTATION, INC., Larry Cole, Michelle Loggins, Angel Caratachea, Carl Veteto, Edna Morris, and Jeff Esry
    00-623
    19 S.W.3d 600
    Supreme Court of Arkansas
    Opinion delivered June 22, 2000

      Nolan Law Firm, by: C.D. Nolan, Jr., for appellant.

      Janan, Arnold, Davis, Perroni & James, by: Samuel A. Perroni and Patrick R. James, for appellees.
   PER Curiam.

Arguing that there is no timely notice of appeal m. this case, appellees, Pro Transportation, Inc. and Jeff Esry, have filed a Motion to Dismiss Appeal. For the reasons stated below, we grant appellees’ motion with regard to the May 12, 2000, notice of appeal from the order awarding attorney’s fees. However, we deny appellees’ motion with regard to the March 16, 2000, notice of appeal from the order granting summary judgment.

On February 24, 2000, the Pulaski County Circuit Court granted summary judgment in favor of the appellees in this matter, dismissing all of appellant’s claims against the appellees and ordering the appellees to submit an affidavit of attorney’s fees. Appellant filed its notice of appeal from this order on March 16, 2000, challenging the award of summary judgment and other procedural orders. The trial court then entered an order granting attorney’s fees to the appellees on April 5, 2000. Appellant filed its amended notice of appeal on May 12, 2000, adding the order granting attorney’s fees to the orders from which appeal is taken.

The appellees argue that this appeal must be dismissed for failure to file a timely appeal from a final order of the trial court. Essentially, the appellees argue that appellant’s March 16 notice of appeal did not arise from a final order because the trial court reserved the issue of attorney’s fees in its order granting summary judgment. Therefore, according to appellees, the May 12 amended notice of appeal is controlling but untimely, because it was filed more than thirty days following the entry of the trial court’s final order on April 5 and the appeal must be dismissed. We disagree.

On March 16, 2000, appellant filed a notice of appeal from the trial court’s order granting summary judgment to the appellees. The order granting summary judgment awarded attorney’s fees to the appellees but did not set an amount. Rather, the trial court ordered the appellees to submit an affidavit of attorney’s fees along with a proposed precedent on the issue of attorney’s fees to the court within seven days. The appellees now argue that because of this provision, the order granting summary judgment was not final.

Appeal may be taken from a final judgment or decree entered by the trial court. Ark. R. App. P. — Civ. 2. For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy; thus, the order must put the trial court’s directive into execution, ending the litigation, or a separable branch of it. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). Where the order appealed from reflects that further proceedings are pending, which do not involve merely collateral matters, the order is not final. Id. The finality of an order is a jurisdictional issue which this court has a duty to address. Id.

Matters which are collateral or supplemental to the trial court’s judgment are left within the trial court’s jurisdiction even though an appeal has been docketed. Alexander v. First Nat’l Bank of Fort Smith, 278 Ark. 406, 646 S.W.2d 684 (1983). We have consistently held that the award of attorney’s fees is a collateral matter. Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997); Marsh & McLennan of Ark. v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995); Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991). The February 24 order concluded the rights of the parties to the subject matter at issue. The only issue which remained pending was the amount of the attorney’s fees to be awarded to the appellees. Consequently, the February 24 order was final for purposes of appeal, even though the amount of the attorney’s fees had not yet been set. Because the February 24 order was final, the notice of appeal from that order filed on March 16, 2000, was timely.

The appellees next argue that the amended notice of appeal filed on May 12, 2000, from the April 5 order granting attorney’s fees was not timely filed, and, therefore, appellant’s appeal from that order must be dismissed pursuant to Arkansas R. App. P. 4(a), which provides in pertinent part that “. . .a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. ...” The failure to file a timely notice of appeal deprives the appellate court of jurisdiction. Hawkins v. State Farm Fire & Cas. Co., 302 Ark. 582, 792 S.W.2d 307 (1990). Clearly, appellant’s amended notice of appeal was filed more than thirty days from entry of the trial court’s order on attorney’s fees. However, on June 2, 2000, appellant filed a motion to extend time for filing notice of appeal pursuant to Ark. R. App. P. — Civ. 4(b)(3):

Upon a showing of failure to receive notice of the judgment, decree or order from which appeal is sought and a determination that no party would be prejudiced, the trial court may, upon motion filed within 180 days of entry of the judgment, decree, or order, extend the time for filing the notice of appeal for a period of fourteen (14) days from the date of entry of the extension order.

Appellant alleged within its motion that it had no knowledge that the trial court had entered an order until the time for filing a notice of appeal had run. Although the trial court retains jurisdiction to rule on the supplemental matter of appellant’s motion for an extension of time to file a notice of appeal from the order awarding attorney’s fees, the record in this case does not reflect whether the trial court has ruled on the motion. See Marsh & McLennan of Ark. v. Herget, supra; Alexander v. First Nat’l Bank of Fort Smith, supra; Sunbelt Exploration v. Stephens Production, 320 Ark. 298, 896 S.W.2d 867 (1995). Thus, based upon the record now before us, we are unable to conclude whether appellant has filed a timely notice of appeal from the April 5 order awarding attorney’s fees. Accordingly, this court lacks jurisdiction over appellant’s purported appeal from the trial court’s order awarding attorney’s fees.

In conclusion, we hold that appellant filed a timely notice of appeal from a final order on March 16, 2000. We therefore decline to dismiss this appeal from the February 24 summary judgment order. However, we grant the motion to dismiss appeal from the April 5 attorney’s fees order.


text:
    Sheri Lynn LANGSTON v. STATE of Arkansas
    CR 00-401
    19 S.W.3d 619
    Supreme Court of Arkansas
    Opinion delivered June 22, 2000

      Appellant, pro se.
    No response.
   PER Curiam.

On November 10, 1998, judgment was iam. reflecting that Sheri Lynn Langston, who was also known as Sheri Lynn Smith, had been found guilty by a jury of negligent homicide and leaving the scene of an accident with a fatality. The judgment also reflected that her probation for two earlier felony offenses had been revoked. An aggregate term of 252 months’ imprisonment was imposed. Langston was represented at trial by her retained attorney, Robert Depper. No appeal was taken, and Langston now seeks to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure — Criminal, which permits a belated appeal in a criminal case in some instances.

Petitioner Langston contends that she informed Mr. Depper on the day the judgment was entered that she desired to appeal and was informed that he would not appeal the judgment because she was unable “to meet the price quoted.” It is the practice of this court when a pro se motion for belated appeal is filed and the record does not contain an order relieving trial counsel to request an affidavit from the trial attorney in response to the allegations in the motion. There is no order relieving Depper in the partial record filed with the motion in this case. This affidavit is requested because Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appeEate court to withdraw in the interest of justice or for other sufficient cause. We have held, however, that a defendant may waive the right to appeal by his or her failure to inform counsel of the desire to appeal within the thirty days aEowed for filing a timely notice of appeal under Rule 4 (a) of the Rules of AppeEate Procedure. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997); Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).

The United States Supreme Court has recently held that an attorney’s performance is deficient under the Sixth Amendment to the Constitution if counsel faEs to consult with his or her client about the advantages and disadvantages of an appeal and does not make a reasonable effort to discover the convicted defendant’s wishes if there is reason to think either (1) that a rational defendant would want to appeal, or (2) that the particular defendant in question has demonstrated to counsel that he or she is interested in appealing. Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000). There is a presumption of prejudice arising from the faEure of counsel to perfect an appeal if counsel’s deficient performance led to the forfeiture of the convicted defendant’s right to pursue a direct appeal. The defendant has the burden of demonstrating that, but for counsel’s deficient performance, he would have timely appealed. Roe, supra, citing Strickland v. Washington, 466 U. S. 668 (1984), and Hill v. Lockhart, 474 U. S. 52 (1985). The question of whether a defendant has made the requisite showing wiE turn on the facts of the particular case. Evidence that there were nonfrivolous grounds for appeal or that the defendant promptly expressed a desire to appeal are relevant in making the determination. The mere fact, however, that the defendant cannot show nonfrivolous grounds does not foreclose the possibility that he can show that he would have appealed had counsel consulted with him. Roe, supra.

Mr. Depper did not respond to the letter requesting that he submit an affidavit. As a result, we will accept petitioner’s assertion that she expressed her desire to appeal on the day the judgment was entered, and find that Depper was obligated to perfect the appeal. Parker v. State, 303 Ark. 185, 792 S.W.2d 619 (1990). See also Davis v. State, 293 Ark. 203, 736 S.W.2d 281 (1987). If petitioner was unable to pay the cost of the appeal, Depper was obligated to lodge a partial record in the appellate court to preserve the appeal. Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997). Upon lodging the partial record, counsel would then have been in a position to file a motion in the appellate court for his client to proceed as an indigent and to be appointed himself or to have other counsel appointed; or, if Langston was not in fact indigent at that time, to file a motion to be relieved as counsel. Under no circumstances may an attorney who has not been relieved by the trial court abandon an appeal where he is aware within the thirty days allowed to file a notice of appeal that the convicted defendant desires to appeal simply because defendant cannot pay for the appeal. A convicted criminal defendant is entitled to effective assistance of counsel on appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his or her first appeal when counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985). To extinguish a defendant’s right to appeal because of his or her attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987).

Langston has appended to the motion for belated appeal an affidavit asserting her indigency. The State has not contested that assertion, and she will be permitted to proceed in forma pauperis on appeal. Mr. Depper remains attorney-of-record and is appointed to represent the appellant. Our clerk will lodge the partial record; counsel is directed to file within thirty days a petition for writ of certiorari to bring up the record, or that portion of it, necessary for the appeal.

A copy of this opinion shall be forwarded to the Arkansas Supreme Court Committee on Professional Conduct.

Motions granted.


text:
    Johnny J. PEMBERTON v. STATE of Arkansas
    CR 00-639
    19 S.W.3d 36
    Supreme Court of Arkansas
    Opinion delivered June 22, 2000

      The Harper Law Office, P.L.L.C., by: Greg Fallon, for appellant.
    No response.
   PER CURIAM.

Appellant Johnny J. Pemberton filed a notice M. appeal from his criminal conviction on December 14, 1999. Rule 5(a) of the Arkansas Rules of Appellate Procedure provides that a record must be filed within ninety days of the filing of the first notice of appeal unless the time is extended by the trial court. Subsection (b) of the Rule provides that the trial court may extend the time for filing the record with this court if the order of extension is entered before the expiration of the original filing period. On March 9, 2000, Appellant, by his attorney, Greg Fallon, filed a motion for extension of time to file the record. The trial court did not grant Appellant’s motion until March 16, 2000, after expiration of the original filing period.

Mr. Fallon admits in the instant motion that the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)). Accordingly, the motion for rule on the clerk is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


text:
    Danny Lee RAGSDALE v. STATE of Arkansas
    CR 00-704
    19 S.W.3d 622
    Supreme Court of Arkansas
    Opinion delivered June 22, 2000

      Petitioner, pro se.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for respondent.
   PER Curiam.

On May 14, 1997, Danny Lee Ragsdale was am. guilty by a jury in the Circuit Court of Greene County of terroristic threatening in the second degree and sentenced to a term of seventy-two months’ imprisonment. An appeal bond in the amount of $25,000 was set. Ragsdale’s retained attorney, Richard Grasby, filed a notice of appeal on May 28, 1997. An appeal was not perfected, and Ragsdale now seeks to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure — Criminal, which permits a belated appeal in a criminal case in some instances.

Our Administrative Order No. 8, § III, provides that upon conviction and sentencing of the defendant the prosecuting attorney shall be responsible for completion of the judgment and commitment order. Administrative Order No. 8, § III, further provides that the judgment and commitment order shall be submitted to the circuit judge for signature and filed with the clerk. For some reason not disclosed by the partial record lodged with the motion for belated appeal, the judgment and commitment order in this case was not entered-of-record with the circuit clerk until October 7, 1999, approximately twenty-nine months after sentence was pronounced. We take judicial notice that Ragsdale was not committed to the Arkansas Department of Correction to begin serving his sentence until February 8, 2000, which suggests that he remained free on bond until that time.

Although Rule 2 provides that a motion for belated appeal must be filed within eighteen months of the date sentence was pronounced in those cases where the judgment was not entered within ten days of the pronouncement of sentence, we will consider Ragsdale’s motion for belated appeal because his attorney had filed a notice of appeal and an appeal bond had been set. Under these circumstances, Ragsdale may well have believed that the appeal was ongoing.

At the time Ragsdale was convicted, Ark. R. App. P.— Crim. 2(b) provided that a notice of appeal was invalid if filed before the judgment was entered. Nevertheless, it is clear from the filing of the notice of appeal and the setting of an appeal bond that Grasby knew his client desired to appeal. See Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986). Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

Under no circumstances may an attorney who has not been relieved by the trial court abandon an appeal where he is aware that the convicted defendant desires to appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his first appeal when counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985). To extinguish a defendant’s right to appeal because of his attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987). It cannot be determined from the partial record whether Mr. Grasby took any steps to learn whether the notice of appeal he filed was timely or whether the record was being prepared by the court reporter. Indeed, it appears from the partial record before us that once Ragsdale was convicted and released on appeal bond, neither Grasby nor the prosecutor did anything further with respect to the matter until October 7, 1999, when the prosecutor apparently filed the judgment with the clerk.

Because the proper disposition of the motion for belated appeal in this case requires findings of fact which must be made in the trial court, we remand this matter to the circuit court for an evidentiary hearing on the issues of why the judgment and commitment order was not promptly filed with the clerk, whether Mr. Grasby abandoned the appeal, and whether Ragsdale knew that the appeal was not being pursued.

Furthermore, because Ragsdale has appended to the motion for belated appeal an affidavit of indigency and seeks to proceed in forma pauperis if he is allowed to proceed with an appeal, the trial court is also directed to take testimony on whether Ragsdale is now indigent. The burden of estabhshing indigency is on the defendant claiming indigent status. In considering whether an appellant is indigent, which is a mixed question of fact and law, some of the factors to be considered are: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for an appeal if counsel’s fee has not already been paid. Hill v. State, 305 Ark. 193, 805 S.W.2d 651 (1991). Able-bodiedness, the level of education of the appellant, and whether the appellant is incarcerated are also to be considered. An appellant need not be destitute to qualify as an indigent. Hill, supra.

The trial court is directed to enter Findings of Fact and Conclusions of Law within sixty days and submit the findings and conclusions to this court with the transcript of the evidentiary hearing.

Remanded.

       Oil June 24, 1999, the rule was amended by per curiam order to provide that a notice of appeal filed after the verdict but before judgment is entered is timely.


author: Per Curiam.

text:
    Carroll Eugene SPILLERS v. STATE of Arkansas
    CR 00-616
    19 S.W.3d 35
    Supreme Court of Arkansas
    Opinion delivered June 22, 2000

      The Jesse Law Firm, P.L.C., by: Mark Alan Jesse, for appellant.
    No response.
   Per Curiam.

The appellant, Carroll Eugene Spillers, by am. counsel, moves the court for permission to file a belated appeal. He shows this court that he was represented by retained counsel, Steven Risher, at trial on felony drug charges and was convicted. The judgment and commitment order was entered on March 20, 2000. Spillers asserts that he demanded an appeal from his trial counsel, and his trial counsel failed to file a notice of appeal. This, he contends, represents good cause for a belated appeal.

Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

As the record does not reflect that Mr. Risher was relieved as counsel, he was obligated to perfect the appeal, unless movant Spillers waived his right to appeal by not informing him that he desired an appeal within the thirty days allowed to file a timely notice of appeal under Rule 4(a) of the Rules of Appellate Procedure. Parker v. State, 303 Ark. 185, 792 S.W.2d 619 (1990). See also Davis v. State, 293 Ark. 203, 736 S.W.2d 281 (1987). If counsel knew that Spillers wanted to appeal, even if he believed the appeal to be meritless, it was his obligation to lodge the record in the appellate court and ask to be relieved in accordance with Ark. Sup. Ct. R. 4-3 (j).

Spillers maintains he asked for an appeal. The record is silent on whether Mr. Risher agrees or disagrees with this assertion. Because the proper disposition of the motion for belated appeal in this case requires findings of fact which must be made in the trial court, we remand this matter to the circuit court for an evidentiary hearing on the issue of whether former counsel, Mr. Risher, was aware within the time period allowed for filing a notice of appeal that Spillers desired to appeal.

The trial court is directed to enter findings of fact and conclusions of law within ninety days and to submit the findings and conclusions to this court with the transcript of the evidentiary hearing.

Remanded.


author: W.H. “DUB” Arnold, Chief Justice. TOM GLAZE, Justice,

text:
    Randy DAVIS v. OLD DOMINION FREIGHT LINE, INC.
    00-193
    20 S.W.3d 326
    Supreme Court of Arkansas
    Opinion delivered June 29, 2000

      The James Law Firm, by: William O. “Bill” James Jr. and Steven R. McNeely for appellant.

      Kirkpatrick, Aud & Williams, L.L.P., by: Michael E. Aud, for appellees.

      Chisenhall, Nestrud & Julian, P.A., by: Jim L. Julian and Mark W. Hodge, for amicus curiae Arkansas Self-Insurers Association, Inc.
   W.H. “DUB” Arnold, Chief Justice.

Appellant, Randy ustice. challenging a decision of the Workers’ Compensation Commission denying his claim for medical expenses and additional temporary total-disability benefits. In a published opinion dated January 26, 2000, the Court of Appeals reversed and remanded the Commission’s decision. See Davis v. Old Dominion Freight Line, Inc., 69 Ark. App. 74, 13 S.W.3d 171 (2000). Pursuant to Ark. Sup. Ct. R. 2-4 (2000), we granted review of the appellate court’s decision. We affirm the Court of Appeals, and we reverse and remand the Commission’s decision because it fails to display a substantial basis for the denial of relief.

Background

The parties agree that on April 4, 1996, Davis sustained a compensable right-ankle injury while working for appellee, Old Dominion Freight Line, Inc. On September 11, 1996, Dr. Jay Lipke performed a surgical repair of a partial dislocation of Davis’s peroneal tendons. Subsequently, Dr. Lipke diagnosed Davis with a blood clot, which required hospitalization and anticoagulant medication. As of November 1, 1996, Dr. Lipke’s notes indicated that Davis’s wound was well-healed, his ankle demonstrated a good range of motion, and there was no evidence of subluxation of the tendon. Dr. Lipke also remarked that he anticipated that Davis would be released to return to work when the blood-clot condition stabilized.

Unfortunately, on approximately November 13, 1996, Davis aggravated the surgical repair when he stepped awkwardly on his ankle to avoid stepping on his two-year-old niece. At the time of the incident, Davis heard a loud pop. He returned to Dr. Lipke, who treated the new injury as a sprain. However, Dr. Lipke noted on December 2, 1996, and December 9, 1996, that the incident disrupted the prior surgical repair because Davis’s healing process was incomplete.

As a result of the November injury, Davis sought additional workers’ compensation benefits. In response, Old Dominion asserted that the November 1996, incident constituted an independent intervening cause, barring an award of additional benefits. Following a hearing, the Administrative Law Judge agreed with Old Dominion and concluded that Davis had failed to prove entitlement to additional benefits. Davis appealed the ALJ’s decision to the Workers’ Compensation Commission, which affirmed and adopted the ALJ’s findings.

Following the Commission’s decision affirming the ALJ’s denial, Davis appealed to the Arkansas Court of Appeals. The appellate court reversed and remanded the case, reasoning that the Commission had no substantial basis to deny compensability because it had applied the wrong legal standard to determine whether the November 1996 incident constituted an independent intervening cause. Significantly, the appellate court concluded that although the legislature expressed an intent, via Act 796 of 1993, to overrule “all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision of this act,” that (1) that declaration was not a blanket repeal of all prior decisions on the subject of independent intervening causes, and (2) preexisting case law regarding independent intervening causes remains in force for new act cases.

In support of its decision reversing the Commission, the Court of Appeals cited with approval its prior decisions in Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998) (holding that new act has not changed the relevant analysis of independent-intervening-cause cases), and Guidry v. J. & R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984) (decision under prior act finding that claimant’s activity triggering subsequent complication must be “unreasonable under the circumstances” to be an independent intervening cause).

From the appellate court’s decision reversing and remanding the Commission, comes the instant appeal. In their petition for review from the Court of Appeals’ decision, appellees and the Arkansas Self Insurers Association, as amicus curiae, argue that (1) Act 796 unambiguously declared the legislature’s intent to repeal all prior opinions, decisions, and case law in conflict with the new act, (2) the appellate court’s reliance on Carter and Guidry was misplaced, and (3) Ark. Code Ann. section 11 — 9—102(5)(F) (iii) (Repl. 1996), specifically controls the proper disposition of the instant case and dictates denial of additional benefits. In response, Davis argues that the. legislature merely intended to repeal all prior inconsistent case law.

I. Substantial evidence

Appellant’s first point on appeal challenges the sufficiency of the evidence supporting the Commission’s decision denying him additional benefits on the basis that his November 1996 accident was an independent intervening cause. Notably, when we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)). Moreover, on appeal, this court will view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Ester v. National Home Ctrs., Inc., 335 Ark. 356, 361, 981 S.W.2d 91 (1998) (citing Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)).

Substantial evidence exists if reasonable minds could reach the same conclusion. Id. We will not reverse the Commission’s decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Where, as here, the Commission denies benefits because it determines that the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997).

Here, the parties agree that Davis sustained a compensable ankle injury in April of 1996. Following his surgery in September of 1996 and treatment for a blood clot in November of 1996, Davis testified that his doctor informed him that once the blood-clot treatment stabilized, he could return to work within approximately two to four weeks from November 1. Consistent with that testimony, Dr. Lipke’s November 1, 1996, report states that Davis’s wound was “well healed” and that Davis demonstrated “good range of motion” with “no evidence of subluxation of the tendon.” Dr. Lipke’s report also confirmed that although Davis would remain temporarily totally disabled until his next scheduled appointment in one month, once his blood-clot anticoagulant therapy was well stabilized, Davis could probably return to work, “in the next two to four weeks.” According to Davis, Old Dominion continued to pay him workers’ compensation benefits for four weeks following the November 1 doctor’s appointment, representing the projected healing period as indicated by Dr. Lipke.

Davis also admitted that he sustained a nonwork-related injury to the same anide a few days before November 13, 1996. Davis then sought treatment from Dr. Lipke. According to his November 13, 1996, report, Dr. Lipke remarked that Davis “was doing well until the other day when his two-year-old niece snuck behind him and twisted his right ankle. There was a loud pop evident. He’s had significant swelling since that time.” Given that Davis acknowledged that the subsequent injury was nonwork related, we must decide whether the Commission applied the correct legal standard to determine whether that injury constituted an independent intervening cause. Therefore, we address the merits of appellant’s second point on appeal in order to resolve the first.

II. Section H-9-I02(5)(F)(iii)

The heart of the instant appeal concerns the interpretation of the legal standard of review set forth in Ark. Code Ann. section 11 — 9—102(5)(F)(iii) (Repl. 1996), now codified as section 11-9-102(4)(F)(iii) (Supp. 1999). Section U-9-102(5)(F)(iii) states that:

Under this subdivision (5)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.

(Emphasis added.) Significantly, when the construction of a statute is at issue, we will presume that the General Assembly, in enacting it, possessed the full knowledge of the constitutional scope of its powers, full knowledge of prior legislation on the same subject, and full knowledge of judicial decisions under preexisting law. McLeod, Comm’r of Revenues v. Santa Fe Trail Transp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943). We must also give effect to the legislature’s intent, making use of common sense and giving words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993).

Although the parties agree that the November 1996 injury was caused by a nonwork-related event, they disagree as to whether the incident was an independent intervening cause. In support of the Commission’s decision, appellees refer to the history of the independent-intervening-cause doctrine. In 1984, the Court of Appeals adopted the principle that if there is a causal connection between a primary compensable injury and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity of the claimant that is “unreasonable under the circumstances.” Guidry v. J. & R. Eads Constr. Co., 11 Ark. App. 219, 223, 669 S.W.2d 483, 485 (1984) (citations omitted).

Subsequently, the legislature enacted Act 796 of 1993, with the purpose of annulling pre-1993 Commission and court decisions interpreting and applying the pre-1993 act. Appellees also note that prior to Act 796 of 1993, the workers’ compensation laws did not address the term “independent intervening cause.” Therefore, according to appellees, Act 796 was an unambiguous rejection of all prior case law, including Guidry. Since Davis’s injuries occurred after the effective date of Act 796, appellees assert that the Commission applied the correct legal standard.

In response, Davis argues that this interpretation of section 11-9-102(5)(F)(iii) makes any analysis illusory because all nonworkrelated incidents that prolong disability or need for treatment would automatically be deemed independent intervening causes as a matter oflaw. Further, Davis contends that section 11-9-102(5) (F)(iii) is actually a codification of preexisting case law and, specifically, the Guidry test. We agree. In Guidry, the appellate court held that:

... — not only can there be an independent intervening cause without negligence or recklessness on the claimant’s part, but unreasonable conduct on a claimant’s part may create an independent intervening cause which would otherwise not exist.

(Emphasis added.) Guidry, 11 Ark. App. at 224, 669 S.W.2d at 486. Similarly, the legislature expressed in section 11-9-102(5) (F) (iii) that:

... a nonwork-related independent intervening cause does not require negligence or recklessness on the part of the claimant.

The statutory language at issue tracks the language in Guidry but leaves the standard of unreasonableness intact.

Moreover, we must assume that the legislature was aware of Guidry when it enacted section 11-9-102(5) (F) (iii), and of Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), when it recently enacted amendments to the Workers’ Compensation Act in 1999. The legislature simply elected not to change existing law regarding independent intervening causes. In the absence of a statutory definition of independent intervening cause, we conclude that the legislature adopted the legal standard established and applied in prior Commission decisions and case law.

In conclusion, we hold that the Commission’s decision failed to display a substantial basis for the denial of relief because it failed to apply the correct legal standard to determine whether appellant’s November 1996 accident constituted an independent intervening cause. Accordingly, we reverse the Commission’s decision and remand for further action consistent with this opinion.

Glaze and Smith, JJ., dissenting.

TOM GLAZE, Justice,

dissenting. The majority opinion is seriously tice, holding that Ark. Code Ann. § 11 — 9— 102(5) (F) (iii) (Supp. 1999) merely codifies preexisting case law found in Guidry v. J. & R. Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). That statutory provision clearly changed the law announced in Guidry. In Guidry, the court adhered to the following principles:

When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct. (Emphasis added.)
[T]he question is whether there is a causal connection between the primary injury and the subsequent disability and if there is such a connection, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. (Emphasis added.)

The above principles clearly provide that an independent intervening cause or connection is shown when the claimant’s own negligence, misconduct, or unreasonable activity results in a subsequent or second injury. Section 11 -9-102(5) (F) (iii), on the other hand, provides the claimant’s negligence or recklessness is unnecessary to show a nonwork-related independent intervening cause. Section 11 -9-102 (5) (F) (iii), adopted by Act 796 of 1993 after the Guidry decision, further states that workers’ compensation benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment.

Here, claimant’s Randy Davis’s second injury to his ankle was clearly nonwork-related, since it occurred at his sister’s house. Randy’s own conduct caused his second injury when, to avoid contact, he stepped over his two-year-old niece and came down awkwardly on the right ankle he had previously injured at work. There is no substantial evidence to show Davis’s second injury was due to his own nonwork-related independent activity. Because the plain language in § 11 — 9—102(5)(F)(iii) clearly excludes benefits ion these circumstances, I must respectfully dissent.

Smith, J., joins this dissent.


author: TOM GLAZE, Justice.

text:
    James C. FUDGE v. STATE of Arkansas
    CR 99-1102
    20 S.W.3d 315
    Supreme Court of Arkansas
    Opinion delivered June 29, 2000

      Marion Humphrey, Judge;

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   TOM GLAZE, Justice.

Appellant James Fudge was charged ticapital ce. in the death of his wife, Kimberly Fudge. Following a jury trial, he was convicted as charged and sentenced to death. Fie now brings this appeal in which he raises five points for reversal. We find no merit in any of his arguments, and we affirm.

For his first point on appeal, Fudge argues that the evidence was insufficient to sustain the verdict of capital murder. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Notably, the evidence may be either direct or circumstantial. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id.

Whether the evidence excludes every hypothesis is left to the jury to determine. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000) (citing Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999)). Upon review, this court determines whether the jury resorted to speculation and conjecture in reaching its verdict. Gregory, 340 Ark. at 247-48 (citing Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984)). Two equally reasonable conclusions as to what occurred merely gives rise to a suspicion of guilt. Id. We will set aside a judgment based upon evidence that did not meet the required standards, and thus left the fact finder only to speculation and conjecture. Id. We now review the evidence presented in this case.

On Wednesday, December 24, 1997, Kimberly Fudge attended a Christmas Eve party at the apartment of her upstairs neighbor, Deborah Wilson. During the party, James Fudge came to Deborah’s apartment, and told Kimberly that it was time for her to go home. Sometime after that, Deborah went to the Fudges’ apartment to ask if she was coming back to the party; she found Kimberly “sitting on the couch, balled up.” Kimberly did say, however, that she would be coming back up to the party.

Later that same evening, Kimberly came running to Deborah’s apartment, acting nervous and scared and repeating “We’ve got to go, we’ve got to go.” She would not immediately tell Deborah what was wrong. The two women picked up Kimberly’s children and a friend, Donald Wilson, and went to the house of another friend. While there, Deborah noticed that Kimberly had a cut on her face and bruises on her neck. When she asked what happened, Kimberly told her that Fudge had cut her lip, choked her, and forced her to have sex that night.

On Friday, December 26, Kimberly was again at Deborah’s apartment. James came to the door and asked for Kimberly, and Deborah told him he was “wrong for what [he] did” to Kim. James replied, “You know I didn’t mean to do that to her.” Kimberly left with her husband that night. Later that evening, Deborah went to their apartment and knocked at the door, but received no answer. She went in the apartment, and saw that the lights were off and the TV was on. She also noticed that Kimberly’s car, a black 1987 Chevrolet Celebrity, was gone. That evening was the last time Deborah saw Kimberly or James.

On Saturday, December 27, Kimberly was expected at her mother’s house. When she failed to show up, her twelve-year-old daughter, Krystal Wade, called Kimberly’s apartment looking for her. James answered the phone, and when Krystal asked for her mother, James told her, “If you are looking for her, you will never find her.”

During that weekend, James went to the home of Robert Williams in Hensley and told Williams that he had “cut a dude” in the East End and was going to Redfield to wash the blood off of his car. On Sunday the 28th, he also went to the Pilot Travel Center, a truck stop in Galloway, and told a friend named Jerome Jones that he was looking for a ride to Dallas. On Monday, December 29, James returned to the travel center, driving a black 1987 Chevrolet Celebrity. He told Jerome that his wife had kicked him out and that he was still looking for a ride to Dallas. James offered Jerome the car, saying that he was about four months behind on the payments. Jerome agreed to take the car, and James gave him the keys and left.

Jones called his brother, Carl Jones, who came to the truck stop to pick up the Chevrolet. When Carl got the vehicle home, he found a pair of sandals under the passenger seat, as well as bleach and washing powder in the trunk. He also noticed that the floor mat was in the passenger seat, which was wet. When he removed the mat, he saw a reddish stain on the passenger seat. On Tuesday, December 30, Carl loaned the car to a friend named Larry Tyler for a few days. While Tyler was driving the car, he was pulled over by a North Little Rock police officer, who had noticed the tags were registered to Kimberly Fudge, who had been reported missing by her mother on Monday, December 29. Tyler returned the car to Carl on Thursday, January 1, 1998.

On January 5, Robert Addey was walking through the woods near Woodson in an area of south Pulaski County less than three-quarters of a mile from Robert Williams’s house. Addey noticed a hole in the dirt; as he kicked at the dirt, a foot appeared. He immediately contacted the police, who arrived along with the coroner and uncovered Kimberly’s body. She had been stabbed repeatedly and buried face-down in a shallow grave, her hands tied behind her back with the sleeves of her jacket.

An arrest warrant was issued for James on January 7, 1998, and he was eventually located in Portland, Oregon, where he was arrested on January 26. Police detectives questioned him there, and he denied any involvement with Kimberly’s murder. According to the story James gave at that time, he and his wife had had consensual sex on Christmas Eve, and afterwards, Kimberly left to go to a party at a friend’s apartment. However, James said he was under a restraining order not to stay with his wife in her residence, and she had thrown him out of her apartment on Christmas day, 1997. He said that this was the last time he had seen his wife, and that he left town a day or two later. He denied having any kind of violent altercation with her.

A felony information was filed on February 26, 1998, charging James with capital murder. At James’s trial, the prosecution put James’s aunt, Lucy Taylor, on the stand, who testified that James owned a white car, but that after Christmas of 1997, she had seen him driving a black car that she thought belonged to Kimberly. Dr. Steven Erickson, Associate Medical Examiner at the State Crime Lab, testified as to the manner and cause of death. He stated that Kimberly had been stabbed repeatedly and suffered some blunt force trauma to the back of the head. She had received three stab wounds to her heart, as well as two that pierced her left lung. She also had two other wounds to her lower chest, one to her stomach and liver, another shallow wound to the mid-abdomen, and three wounds to her right leg. There were also small cuts on her hands, a cut on her chin, a large bruise on the back of her head, and some swelling around her bottom lip and right eye. Although he was unable to pin down an exact time or date of death, Erickson stated that, given the cool weather conditions and the fact that Kimberly had been buried in watery mud, that would be consistent with her having been killed sometime between December 27 or 28, 1997, and a day or two before she was found on January 5, 1998.

Lisa Channell, a forensic serologist for the State Crime Lab, testified that she recovered blood samples from the interior of the car, and that the blood spatter pattern indicated that the blood had originated from the front passenger seat. She also noted that the blood had been smeared, as though someone had attempted to clean the interior of the vehicle. Philip Raines, a forensic biologist, testified that a DNA analysis of the blood taken from the car matched Kimberly’s (the chances of it being someone else’s blood were 17 trillion to one).

At the close of the State’s case, James moved for a directed verdict, which the trial court denied. James then put on only a few witnesses: the police officer who pulled Larry Taylor and Joe Norris over in Kimberly’s car; Ann Hoff, a trace evidence analyst from the Crime Lab, who testified that she obtained some soil and vegetation samples from the car; and Lisa Sakevicius, chief criminalist at the Crime Lab, who stated that she was unable to determine with specificity where the soil and hair samples taken from the car had come from. At that point, James renewed his motion for directed verdict, which the court again denied. The jury then convicted him of capital murder, and, after deliberating on sentencing, it found one aggravating factor, which outweighed the one mitigating circumstance and justified beyond a reasonable doubt a sentence of death.

From the foregoing, it can be seen that the evidence does not admit of any other reasonable conclusion than the appellant’s guilt. Certainly, it does not give rise to a “theory that one other than the defendant has committed the crime,” Gregory, 341 Ark. at 248. Presented with this evidence, the jury did not have to resort to speculation and conjecture to conclude that James was indeed responsible for Kimberly’s death; thus, the judge did not err in denying James’s motion for directed verdict.

James’s second argument is that the trial court erred in refusing to instruct the jury on second-degree murder. At the close of his case, James asked the court to give AMCI 2d 1103, which would have instructed the jurors that they could convict him of second-degree murder if the State proved that he knowingly caused the death of Kimberly under circumstances manifesting extreme indifference to the value of human life. The court refused this instruction and instructed the jury only on capital and first-degree murder. The jury then convicted James of capital murder, finding that he had killed Kimberly with a premeditated and deliberated purpose.

While it is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence, Spann v. State, 328 Ark. 509, 513, 944 S.W.2d 537 (1997), it is not error for the court to refuse or fail to instruct on the lesser offense where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995). See also Ark. Code Ann. § 5-l-110(c) (Repl. 1997); Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986) (holding that a lesser included offense instruction need not be given unless there is a rational basis for doing so).

As demonstrated above, the evidence clearly showed that James was guilty of the greater offense, capital murder. In addition to the facts set out above which show that James committed the murder, the element of premeditation and deliberation could be inferred from circumstantial evidence such as the type and character of the weapon used; the manner in which the weapon was used; and the nature, extent, and location of the wounds inflicted. Lever v State, 333 Ark. 377, 971 S.W.2d 762 (1998). Kimberly was stabbed at least a dozen times, three times directly in the heart and twice in the left lung. Certainly, a jury could infer the premeditation and deliberation necessary for a conviction of capital murder from the nature and extent of these wounds alone. Thus, the trial court’s refusal to give the requested instruction was not error.

James also asserts that the so-called “skip rule” should not apply. This rule provides that when a lesser included offense has been given, and the jury convicts of the greater offense, error resulting from the failure to give an instruction on another still lesser included offense is cured. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999); Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). James contends that this rule is inapplicable because there is no meaningful distinction between capital and first-degree murder, and as such, the jury may well have chosen to convict him only of second-degree murder had they only been given the option. We reject this argument because we have held repeatedly that capital murder and first-degree murder are distinct crimes. See Lever, 333 Ark. at 380.

In addition, James argues that there was a rational basis for the jury to determine that this murder, although perhaps intentional, was not premeditated or purposeful “but rather was done by one who did not care, at the time, whether Kimberly lived or died, that is, under circumstances manifesting extreme indifference to the value of human life.” Flowever, the evidence presented at trial simply does not support this contention. As just discussed, there was certainly sufficient evidence from which the jury could have found premeditation and deliberation. The act of stabbing someone a dozen times indicates some degree of intent beyond not caring whether that person fives or dies; it shows a kind or level of purpose that rises to premeditation and deliberation. Thus, there is no merit to this argument.

For his third point on appeal, Fudge argues that the trial court erred when it permitted the prosecution to adduce testimony from witnesses Deborah Wilson and Donald Brinkley about statements Kimberly had made to them on Christmas Eve about violence committed against her by James. Both witnesses were allowed to testify that Kimberly told them that James had beaten her, choked her, and forced her to have sex. The court allowed these statements under the excited utterance exception to the hearsay rule, specifically relying on Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994).

Decisions by a trial court with respect to evidentiary rulings are entirely within the court’s discretion, and will not be reversed absent an abuse of that discretion. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997). The excited utterance exception is found at Ark. R. Evid. 803(2); that rule provides that a statement will not be excluded as hearsay if it “relat[es] to a starding event or condition made while the declarant was under the stress of excitement caused by the event or condition.” In United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), the federal court of appeals fisted several factors to consider when determining if a statement falls under this exception: the lapse of time (which is relevant, but not dispositive), the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. In addition, “[i]n order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.” Iron Shell, 633 F.2d at 85-86.

This court adopted these factors in Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994), where we also said that, “[J]or the . . . exception to apply, there must be an event which excites the declarant. Also, the statements must be uttered during the period of excitement and must express the declarant’s reaction to the event.” Moore, 317 Ark. at 633. We added that it is within the trial court’s discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect. Id. at 634 (citing Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987)).

In the instant case, although there was some lapse of time (anywhere from one to several hours) between the events in Kimberly’s apartment and her relating those events to Deborah Wilson and Donald Brinkley, that lapse of time alone is not determinative. See Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994) (general rule is that an utterance following an exciting event must be made soon enough thereafter that it can reasonably be considered a product of the stress of the excitement, rather than of intervening reflection or deliberation). See also Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991); Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990) (general rifle is that an utterance following an exciting event must be made soon enough thereafter that it can reasonably be considered a product of the stress of the excitement rather than of intervening reflection or deliberation; the trend is toward expansion of the time interval after an exciting event). Deborah testified both at trial and at a pre-trial suppression hearing that Kimberly appeared nervous and scared from the time she ran upstairs to Deborah’s apartment until the moment when she told Deborah and Donald what had happened to her.

In addition, although James argues that Kimberly’s statements were made after some deliberation and in response to questioning from Deborah, Deborah only asked her what happened to her lip. Kimberly’s response that James had beaten, choked, and raped her were clearly not in response to a question about her lip. Given the court’s position to view Deborah’s testimony about Kimberly’s demeanor when she made the statement, it cannot be said that the court abused its discretion in allowing the testimony.

The fourth point on appeal is James’s contention that the trial court erred in admitting victim impact evidence on the grounds that such evidence is irrelevant under Arkansas’s capital sentencing procedure. This precise argument was recently discussed in Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). In that case, we specifically noted that the General Assembly has unequivocally declared that victim-impact evidence is relevant to a jury’s determination of the appropriateness of the death penalty. Engram, 341 Ark. at 209. See also Ark. Code Ann. § 5-4-602(4) (Repl. 1997); Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Because this issue was discussed at length in that recent opinion, we will not repeat it here. Suffice it to say, James has provided no reason why we should hold differently at this time; consequently, we reject this point.

The final point that James raises for reversal is that Ark. Code Ann. § 5 — 10—101 (a)(4) (Repl. 1997), the capital murder statute, is unconstitutional as void for vagueness and because of its overlap with Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). However, he recognizes that this court has repeatedly rejected this contention, citing Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), and Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). Nonetheless, he asks us to reconsider our previous rulings.

In Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), we stated simply that “[w]e have decided this issue adversely to Lee’s position on many occasions, and adhere to these previous holdings.” Lee, 327 Ark. at 702. Similarly, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we stated that we have “discounted this argument on numerous occasions.” See, e.g., Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). Nooner, 322 Ark. at 105-06. Similarly, on this occasion, we adhere to our previous decisions, and we reject this argument.

In accordance with Ark. Sup. Ct. R. 4-3 (h) (1998), the record has been reviewed for adverse rulings objected to by appellant James Fudge but not argued on appeal, and no reversible error was found.

Affirmed.