text:
    Stephanie Diane NEELY v. STATE of Arkansas
    CR 94-64
    877 S.W.2d 589
    Supreme Court of Arkansas
    Opinion delivered June 13, 1994

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

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Stephanie Diane Neely was convicted of aggravated robbery, theft of property, and kidnapping. She contends the Trial Court erred by allowing the State to amend its information at the close of her trial, finding sufficient evidence to convict her of kidnapping, and failing to consider the minimum sentences provided in Ark. Code Ann. § 5-4-501, as amended by Act 550 of 1993, for habitual offenders. Our holding is that Ms. Neely was not prejudiced by the amendment of the information. We hold the evidence of kidnapping was sufficient, and as the crime was committed before Act 550 became effective, Ms. Neely was properly sentenced pursuant to the law in effect when the crime was committed. The convictions are affirmed.

There was evidence from which the jury could have concluded that on January 12, 1993, Ms. Neely and an accomplice entered Sally’s Beauty Supply in North Little Rock as the store was closing. The pair approached the cash register and pointed a gun at the two employees in the store. They demanded the money in the cash register and questioned the employees about the store safe. The employees were then ordered into a back room and bound with duct tape.

One of the employees, Gabrielle Lassiter, was bound to a chair, while the other employee, Ramona Tucker, was placed on the floor, bound about her arms and torso. The employees were told not to attempt to seek help for at least ten minutes after Ms. Neely and her accomplice had fled.

Ms. Neely was arrested and tried for one count each of aggravated robbery, theft of property, and kidnapping. The kidnapping count listed both Ms. Tucker and Ms. Lassiter as victims. At the close of the trial, the State was allowed to amend its information to delete the name of Ramona Tucker as a victim from the kidnapping count.

The jury convicted Ms. Neely of all charges and sentenced her, as an habitual offender, to fifty years for the charge of aggravated robbery, thirty years for theft of property, and forty years for kidnapping. The Trial Court ordered the kidnapping sentence to run consecutively with the theft of property and robbery sentences.

7. Amended information

Amendment of an indictment, or by implication an information, may be made with leave of court unless the amendment changes the nature of the crime charged or the degree of the crime charged. Ark. Code Ann. § 16-85-407 (1987). That holds true even after the jury has been sworn unless the amendment creates an unfair surprise. See Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994).

Ms. Neely contends the amendment altered the degree of the charge against her. While Ark. Code Ann. § 5-11-102(b) (Repl. 1993) defines kidnapping as a Class Y felony, it also provides that if a defendant proves by a preponderance of the evidence that she released her victim alive and in a safe place prior to trial it is a Class B felony which carries a lesser sentence. Ms. Neely contends that had the jury considered her kidnapping charge with respect to both victims it would have been more inclined to find that they had been released.

The evidence was that, after the robbery, Ms. Tucker was able to get to her feet and go to the front of the store where she met her fiance who arrived to pick her up. Although the jury might possibly have thought Ms. Tucker not to have been sufficiently restrained to be the victim of kidnapping, or possibly that she was “released” when the culprits left the store, that speculation does not affect the evidence that Ms. Lassiter remained bound to a chair, clearly “unreleased.” The conviction was for one count of kidnapping. We will not reverse a conviction in the absence of a showing of prejudice, Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993), and we find none here.

2. Evidence of kidnapping

Ms. Neely next argues there was insufficient evidence to convict her of kidnapping. Arkansas Code Ann. § 5-11-102 defines kidnapping as follows:

(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
* * *
(3) facilitating the commission of any felony or flight thereafter, ....

* * *

This case is very similar to Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). Frensley was convicted of aggravated robbery and kidnapping which occurred at a restaurant. Frensley entered the restaurant, pointed a revolver at employees, and used duct tape to bind their hands behind them as they were forced to lie on the floor. We stated that when the restraint of a victim exceeds that which necessarily accompanies the crime of aggravated robbery, the defendant is subject to prosecution for kidnapping.

Given the evidence now before us, we find it sufficient to support the charge that Ms. Lassiter was kidnapped when she was forced to the rear of the store and bound to a chair. The evidence was somewhat stronger than that we considered in the Frensley case.

3. The sentence

Ms. Neely had been convicted of four prior felonies. She contends the Trial Court erred by sentencing her in accordance with § 5-4-501 as it appeared prior to its amendment by Act 550 of 1993. She claims she was entitled to the benefit of Act 550 which lowered the minimum sentences for habitual offenders. Act 550 came into effect after the crime was committed but before Ms. Neely was sentenced. It states:

Arkansas Code Annotated 5-4-501 is amended efective [sic] July 1, 1993, to read as follows:
5-4-501. Habitual offenders — Sentencing for felony.
(a) . . . .
(b) A defendant who is convicted of a felony committed after June 30, 1983, and who has previously been convicted of four (4) or more felonies or who has been found guilty of four or more felonies, may be sentenced to an extended term of imprisonment as follows:
* * *

In State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993), we stated the general rule that sentencing “shall not be other than in accordance with the statute in effect at the time of the commission of the crime. . . . We have also held that, in the absence of a provision stating that an act will apply retroactively, the act will apply prospectively only.” The issue is whether the language of that Act indicates intent on the part of the General Assembly that it be applied retroactively.

Section 7 of the Act states it is applicable to all felonies committed “after June 30, 1983,” yet the introductory sentence of section 7 states it is to be effective July 1, 1993.

The remainder of Act 550 creates Arkansas’s new sentencing guidelines and the Arkansas Sentencing Commission, effective January 1, 1994. After the introductory sentence of section 7 containing the July 1, 1993, date it then recites the former § 5-4-501, unedited except for the reduction of the minimum sentence in the guidelines for sentencing an habitual offender.

The former § 5-4-501, as copied in section 7, provided it was applicable to a “felony committed after June 30, 1983.” The origin of this date is Act 409 of 1983, which established the previous sentencing ranges for habitual offenders. Act 409 contained an emergency clause which made it effective July 1, 1983.

We can find nothing in Act 550 suggesting a reason the General Assembly stated section 7 would be effective July 1, 1993, and apply to any act committed after June 30, 1983. It is apparent that section 7 was intended to become effective July 1, 1993, and apply to acts committed after June 30, 1993, just as Act 409 was intended to become effective July 1, 1983.

We are very hesitant to interpret a legislative act in a manner contrary to its express language; however, we must do so when it is clear that a drafting error or omission circumvents legislative intent. In Johnson v. United States Gypsum Co., 217 Ark. 264, 229 S.W.2d 671 (1950), we quoted State ex rel Atty. Gen. v. Chicago Mill & Lbr. Co., 184 Ark. 1011, 45 S.W.2d 26 (1931), and held “When a word in a statute is omitted or misused it is the duty of the courts to disregard the error if the context plainly indicates the legislative intent.” See also Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Murphy v. Cook, 202 Ark. 1069, 155 S.W.2d 330 (1941).

The intent of the General Assembly was to apply section 7 of Act 550 to crimes committed by habitual offenders after June 30, 1993, thus coinciding with its effective date of July 1, 1993. To hold otherwise would risk disproportionate sentences being imposed on habitual offenders who committed crimes between 1983 and 1993, yet were sentenced pursuant to different versions of § 5-4-501 dependent upon the date of trial. Clearly such a result was not intended. The Trial Court was correct in refusing to apply Act 550.

Affirmed.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Elva WOOD v. George TYLER
    94-159
    877 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered June 13, 1994

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles and Roy Gene Sanders, for appellant.

      Ted Thomas, for appellee.
   Robert L. Brown, Justice.

This case originated as a tort action. Appellee George Tyler sued appellant Elva Wood for injuries and resulting damages suffered in an automobile accident in Pine Bluff on November 7, 1991. The jury awarded Tyler $10,000, and Tyler moved to tax “costs” against Wood. His attorney attached an affidavit to the motion, listing the following as litigation expenses:

1. Pre-trial prep., Harry Ehrenberg $ 255.00
2. Court appearance, Harry Ehrenberg 765.00
3. Deposition fee, Dr. Armstrong 250.00
4. Video Deposition, Foreman Reporting 396.45
5. Narrative report, Dr. Armstrong 106.00
6. Medical records, Dr. Courtney 45.00
7. Medical records, Dr. Armstrong 38.75
8. Filing fee 84.75
9. Service fee for 3 subpoenas 75.00
Total $ 2,015.95

Wood objected to the assessment of any litigation expenses except required costs such as the filing fee and service fees for the subpoenas.

The trial court granted Tyler’s motion in part and taxed all requested costs to Wood with the exception of the expense of the expert’s narrative report and the medical records. The total costs assessed against Wood were $1,826.20. As authority for its order, the trial court cited Truck Center of Tulsa, Inc. v. Autrey, 310 Ark. 260, 836 S.W.2d 359 (1992).

Wood now raises one point on appeal. She urges that the trial court erred in assessing costs against her for expert witness fees and for reporter fees in connection with depositions. We agree that the trial court erred in this regard.

The operable rule concerning allowable court costs is Ark. R. Civ. P. 54(d):

(d) Costs. Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.

The Reporter’s Notes to Rule 54 state in part: “Unless otherwise ordered by the trial judge, costs are taxed against the losing party as was the case under superseded Ark. Stat. Ann. 27-2308, 27-2310, and 27-2312 (Repl. 1962).” Rule 54(d), therefore, controls the taxing of costs, and the commentary to Rule 54(d) refers to costs allowed under prior law.

Our case law before the adoption of Rule 54(d) in 1978 was clear that costs would not be taxed against the losing party unless those costs were specifically authorized by rule or by statute. Lewallen v. Bethune, 267 Ark. 976, 593 S.W.2d 64 (1980); Long v. Henderson, 249 Ark. 367, 459 S.W.2d 542 (1970); Grayson v. Arrington, 225 Ark. 922, 286 S.W.2d 501 (1956); Arkansas Game & Fish Comm’n v. Kizer, 222 Ark. 673, 262 S.W.2d 265 (1953). As we said in Kizer: “We have often held that the allowance of costs is purely statutory, since at common law neither party was entitled to recover his costs (citations omitted).” 222 Ark. at 677, 262 S.W.2d at 267.

Since 1978, we have specifically held that expert witness fees are not recoverable costs against the losing party because the allowance of costs is purely statutory, and Arkansas has no statute which provides for the recovery of expert fees. Sutton v. Ryder Truck Rental, Inc., 305 Ark. 231, 807 S.W.2d 905 (1991), citing Arkansas State Highway Comm’n v. Union Planters Nat’l Bank, 231 Ark. 907, 333 S.W.2d 904 (1960).

In 1991, we considered .whether other fees and litigation expenses were allowable costs. See Truck Center of Tulsa, Inc. v. Autrey, supra. There, we cited Rule 54(d) and referred to the principle that costs are allowed to the prevailing party unless the court otherwise directs. We then went on to award witness fees to the prevailing party because Ark. R. Civ. P. 45(d) specifically provided for those fees. Nothing was said in Autrey about allowing costs to be taxed which were not authorized by statute or by rule. Also in Autrey, we disallowed certain deposition expenses as taxable costs because they were not substantiated. Wood now suggests that we insinuated in that decision that a substantiated deposition expense would have been an allowable cost. We do not agree. The mere fact that we did not cite the absence of statutory authority as a second reason for denying the deposition expenses in Autrey does not translate into an argument in Wood’s favor.

Rule 54(d) does permit the court to “otherwise direct” payment of costs, but this authority relates to the ability of the court to disallow costs authorized by rule or statute. It does not authorize the court to assess costs outside the ambit of costs expressly contemplated by rule or by statute. Accordingly, we repudiate today any suggestion that our case law or Rule 54(d) has deviated from the principle that taxable costs must be recognized by rule or by statute. On this point, contrary to Wood’s assertion, federal case law offers no guidance. The federal rule (Fed. R. Civ. P. 54(d)) differs from our own, and there are federal statutes which specifically authorize taxing certain costs. See, e.g., 78 U.S.C. § 1920.

In Arkansas, filing fees and service fees for subpoenas are authorized by statute, and the trial court was exactly correct in assessing these costs against Wood. See Ark. Code Ann. § 21-6-403 (Supp. 1993); Ark. R. Civ. P. 45. Expert witness fees and deposition expenses are not authorized by statute or by rule, and the trial court erred in ruling otherwise.

Affirmed in part; reversed in part.


author: Per Curiam.

text:
    Roy E. DAVIS v. STATE of Arkansas
    CR 94-521
    877 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered June 13, 1994
    No response.

      Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for appellee.
   Per Curiam.

The State asks that Roy E. Davis be permitted to file a belated appeal pursuant to an order rendered by United States District Judge Henry Woods, stating that he would issue a writ of habeas corpus on Davis’ behalf unless the State of Arkansas grants Davis’ motion for belated appeal.

Davis was charged in the Pulaski County Circuit Court with first degree murder and found guilty. He was represented by retained counsel, Ralph Cloar. As a result, the trial Judge, Floyd Lofton, made the following docket entries on his Register of Actions:

2/28/88 Jury returned at 5:15 p.m. and assessed punishment at life in Dept, of Correction — Passed to 4/28/88 for notice of intent to appeal. Def. is indigent.
3/28/88 No notice of intent to appeal — Cloar did not appear — Df. is in A.D.C. — case closed.

The record is silent as to other proceedings at trial level other than a notation in the register dated August 28, 1990, that: “order denying post conviction relief mailed.” The record does not reflect a formal judgment by the trial court, nor does it reflect a notice of appeal or an order relieving Mr. Cloar as counsel.

Thereafter, Davis filed an application for writ of habeas corpus in the United States District Court. The U.S. Magistrate found that Davis had not received effective assistance of counsel in connection with his undisputed wish to appeal, and that, Mr. Cloar, as Davis’ unrelieved counsel, remained responsible for representing Davis or ensuring that the public defender did so. Pursuant to these findings, the Magistrate Judge concluded that a writ of habeas corpus issue unless the State of Arkansas grants Davis’ motion for belated appeal. The United States District Judge adopted the Magistrate Judge’s proposed findings and disposition in an order entered April 13, 1994.

We concur in the view that, under the circumstances, attorney Cloar’s failure to file a notice of appeal should not deprive Davis of his right to appeal and that Davis is entitled to a belated appeal and that the failure to perfect the appeal is attributable to Mr. Cloar, Davis’ attorney of record, since he had not been relieved as Davis’ counsel. Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:

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.

For these reasons, we grant Davis’ motion for a belated appeal and send a copy of this order to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Ronald KETELSON v. STATE of Arkansas
    CR 93-1382
    877 S.W.2d 910
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994

      John Wesley Hall, Jr., P.C., by: Craig Lambert, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Ronald Ketelson appeals his conviction of capital murder on the grounds that the evidence was insufficient to support the State’s charge that he contracted with another person to cause the death of Jeffrey Rhoades and that the trial judge erred in admitting into evidence photos of the deceased’s burned body that were prejudicial. We hold that the trial court erred in denying Ketelson’s motion for a directed verdict as the evidence was insufficient to sustain his conviction, and, for this reason, it is necessary we reverse and dismiss this case.

On April 3, 1989, Jeffrey Rhoades was murdered by Frank Pilcher. Pilcher was convicted of capital felony murder and sentenced to life imprisonment. We affirmed his conviction. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). The State subsequently charged Ketelson with the capital murder of Mr. Rhoades, pursuant to Ark. Code Ann. § 5-110-101(a)(8), alleging Ketelson caused the death of Jeffrey Rhoades by “entering into an agreement” with Pilcher to cause Rhoades’ death “in return for anything of value.”

At the conclusion of trial, Ketelson made a motion for directed verdict which was denied by the trial court. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994). On appeal, we review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). 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. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990).

Reviewing the evidence in the light most favorable to the State, we still must hold that the evidence was not sufficient to sustain the State’s charge. At best, the State established that Ketelson was agitated because Rhoades apparently owed him money. However, there was absolutely no proof that an agreement existed between Ketelson and Pilcher to murder Rhoades.

The State presented the testimony of six witnesses in support of its theory. Its primary witness, Marissa Bragg Sharp, testified at length about her involvement with Pilcher in the murder. She told the jury that prior to Rhoades’ death, she had become indebted to Ketelson in the amount of $500 for drugs she had obtained through Rhoades. According to Sharp, she knew that Rhoades owed Ketelson money. She described an incident in which some unidentified male who owed Ketelson money had been beat up and had called and left a message on Ketelson’s answering machine, asking Ketelson to “get them off him.” Sharp said Ketelson responded, “This is what happens when people owe me money and I think this is what is going to happen to Jeff [Rhoades],” and that Jeff needed to be “taken care of.”

Sharp also described the night of Rhoades’ murder. She and Pilcher went to Rhoades to buy cocaine, and although Rhoades refused to sell any to her because of her debt, he agreed to sell to Pilcher. The three left Rhoades’ apartment, and Rhoades followed Sharp and Pilcher to get Pilcher’s money, although Sharp admitted that she and Pilcher intended to get away from Rhoades without paying him. The trio went to the Tull Bridge, and Pilcher left on Rhoades’ motorcycle while Rhoades and Sharp waited in Sharp’s truck. Pilcher returned, ostensibly with money for payment, and Rhoades remarked, “Man, this is just $25.00.” Sharp heard a gun shot, and Pilcher left on the motorcycle. Pilcher later returned, shot Rhoades again, and he and Sharp drove around with the body in the bed of the truck. Ultimately, they took Rhoades’ body to a dump where Pilcher set it on fire.

The State’s other witnesses also failed to provide any evidence of a murder-for-hire agreement between Pilcher and Ketelson. Saline County Sheriff Larry Davis and Medical Examiner Fahmy Malak testified about the crime scene and the cause of Rhoades’ death. Joey Gibson testified that he knew Rhoades and that he and Rhoades had gone to Ketelson’s house to purchase drugs.

Claude Bennett, an acquaintance of Rhoades and Ketelson, stated that Rhoades owed Ketelson about $5,000 for drugs and for damage Rhoades did to Ketelson’s truck. Bennett did not present any testimony of threats made by Ketelson against Rhoades. Rhoades’ girlfriend, Sherry Carter, stated that Rhoades owed Ketelson money, but she did not testify regarding any threats Ketelson made against the victim.

Although the State contends that, taken together, the testimony of these witnesses provides circumstantial evidence as to the existence of an agreement between Pilcher and Ketelson — to cause the death of Rhoades — we cannot agree.

Granted, circumstantial evidence alone may be sufficient to support a conviction. Smith v. State, 314 Ark. 448, 863 S.W.2d 563 (1993). However, such evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994). Although there was ample testimony to support the fact that Rhoades may have owed Ketelson money and that Ketelson was interested in having him “taken care of,” this evidence does not provide proof of an agreement between Pilcher and Ketelson or that Pilcher was to receive anything of value from Ketelson in exchange for Rhoades’ death, which is an essential element of the State’s charge against Ketelson.

As a result, we reverse and dismiss this case on the insufficiency of the evidence. It is unnecessary that we address Ketelson’s argument regarding the admission of certain photographs into evidence under the circumstances.

Reversed and dismissed.


text:
    Raymond C. SANDERS v. STATE of Arkansas
    CR 92-1145
    878 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994
    [Rehearing denied September 12, 1994.]

      Tona M. Demers, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This is a death penalty case. The appellant, Raymond C. Sanders, has brought three previous criminal appeals before this court. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991) (Sanders I); Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992) (Sanders II); Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992) (Sanders III). One of the appeals {Sanders II) arose from his convictions of the capital murders involved in the present appeal, while the other two {Sanders I and III) concerned an unrelated capital murder. In the current appeal, only the resentencing proceedings, mandated by this court’s partial reversal and remand in Sanders II, supra, are under consideration.

Sanders raises eight points for reversal, none of which has merit. He contends that the trial court erred in (1) determining that the Grant County Circuit Court was the proper venue for the trial or the resentencing proceedings; (2) permitting the State to use a murder committed after the murders at issue as proof of an aggravating circumstance; (3) allowing inflammatory photographs to be shown to the jury during the resentencing proceedings; (4) refusing to grant a continuance; (5) failing to disqualify the prosecuting attorney; (6) denying the defense’s motion for a mistrial on the basis of the presiding judge’s alleged conversation with the jury foreman; (7) denying the defense’s motion to dismiss the capital felony murder charge on the basis that the statutory definition of capital felony murder unconstitutionally overlaps with the statutory definition of first-degree felony murder; (8) denying the defense’s motion to dismiss the capital felony murder charge on the basis that the statutory definition of capital murder does not narrow the categories for which the death penalty may be imposed.

It should be noted, at the outset, that Sanders’s abstract fails to comply with Ark. Sup. Ct. R. 4-2(a)(6), which requires that “[n]ot more than two pages of the record shall in any instance be abstracted without a page reference to the record.” Those portions of the appellant’s abstract in which the testimony at various hearings is condensed comprise fifty-two pages of the appellant’s seventy-three-page abstract, yet only three single-page references appear. Within the eight points comprising Sanders’s argument, there are no references whatsoever to pages in the abstract; only transcript citations are supplied. In addition, as will be discussed later, the portion of the record on which Sanders’s sixth point for reversal is based is not abstracted, though the State includes the relevant testimony in its brief. Although this court has, from time to time, required rebriefing in such circumstances under Sup. Ct. R. 4-2(b)(2), the fact that this is a second appeal of an ongoing capital case (with a factual background fully developed in the previous appeal) enables us to resolve the issues raised on the basis of the briefs as presented.

Facts

The facts in the present matter were set forth in Sanders II, 308 Ark. at 181-182, 824 S.W.2d at 355-356. As the present appeal consists exclusively of a review of the resentencing phase, an extended narrative recapitulation is unnecessary other than to note that on or about November 21, 1989, Sanders shot and killed Charles and Nancy Brannon, ransacked their house, and removed rings from Mrs. Brannon’s fingers.

The original trial was held before a jury in February 1991 in the Grant County Circuit Court. Sanders was found guilty on both charges of capital murder and was sentenced to death on each count. On appeal to this court, the capital murder convictions were affirmed, but the death sentences were reversed and remanded for resentencing. Sanders II, supra.

At the resentencing trial, held before a new jury in the Grant County Circuit Court on August 28 and 31, 1992, Sanders again received the death penalty on both counts for the capital murders of the Brannons. He again appeals.

I. Venue

In his first argument for reversal, Sanders asserts that the trial court erred in determining that the Grant County Circuit Court was the proper venue for both the original trial and the resentencing proceedings. He contends that he was denied his constitutional right to be tried in the county in which the crimes occurred — in this instance, Hot Spring County — and claims, without offering supporting evidence, that he was “purposely tried in a county more likely to give him the death penalty.”

Article 2, section 10, of the Arkansas Constitution provides that a criminal defendant has the “right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed.” Venue, however, “may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused.” See also Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994); Waddle v. Sargeant, 313 Ark. 539, 855 S.W.2d 919 (1993).

Sanders’s own counsel had, prior to the February 1991 trial, made a motion for change of venue. Although no record of an application for or granting of a change of venue in compliance with Ark. Code Ann. § 16-88-204 (1987) appears in the record, the original defense attorney, Bill Murphy, testified on August 10, 1992, at a pretrial evidentiary hearing in the resentencing proceedings, that the trial court had granted the motion and had given Sanders the choice to move venue for the initial trial to either Saline or Grant County. Mr. Murphy stated that, “[ajfter discussing it with my client, we decided together on Grant County.” Sanders, testifying at the pretrial hearing, insisted that he had not agreed to the change of venue, but the trial judge found that Mr. Murphy’s account corresponded to his own recollection of the matter and that “there was no objection to the motion.”

Conflicts in testimony are for the trial court to resolve, and the court is not obliged to believe any witness’s testimony — particularly that of the accused, the person most interested in the outcome of the proceedings. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). Venue in Grant County was proper.

II. Previous conviction for subsequent crime

For his second point on appeal, Sanders argues that the trial court erred in permitting the State to prove the aggravating circumstance of the commission of another felony involving the use of violence by introducing his conviction for a murder that occurred after the killings in the present case. Under Ark. Code Ann. § 5-4-604(3) (Repl. 1993), one of the aggravating circumstances that may be considered in death-penalty cases is that

The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person. . . .

The murder of Frederick LaSalle, for which Sanders was convicted and sentenced to life imprisonment without parole, occurred on December 31, 1989, whereas the Brannon killings occurred on or about November 21, 1989. Therefore, Sanders maintains, it cannot be considered a “previously committed” violent felony under the statute.

We reversed Sanders’s original conviction in the LaSalle murder and remanded the matter for a new trial in Sanders I. The second conviction and life sentence were affirmed in Sanders III, handed down on October 5, 1992. In the previous appeal in the present case, Sanders II, involving the murder of the Brannons, we held that, where the prosecutor had introduced the conviction judgment in the LaSalle killing to establish an aggravating circumstance and that judgment was subsequently reversed, the use of the conviction was prejudicial, and Sanders was entitled to be resentenced. See Johnson v. Mississippi, 486 U.S. 578 (1988). In Sanders II, we noted that, “because we must declare error on this point, we need not address the appellant’s argument that the capital murder was not previously committed to the present crimes as is required under § 5-4-604(3).” 308 Ark. at 184, 824 S.W.2d at 357.

The State, in the present appeal, contends that, by virtue of the requirement of Ark. Sup. Ct. R. 4-3(h) that the Supreme Court of Arkansas review all prejudicial errors in a death case, this court has decided the issue against Sanders, and the doctrine of the law of the case applies. See Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). In Sanders II, however, we were merely declining to consider a single facet of a larger issue which had already been resolved in Sanders’s favor, thus rendering consideration of the subpoint unnecessary. Thus, it is necessary to focus upon the merits of the question as law of the case does not apply.

It should be noted that this court has never addressed precisely this issue — that is, whether a violent felony committed after a crime that warrants imposition of the death penalty may be considered as an aggravating circumstance in the sentencing phase when the conviction for the violent felony was entered prior to the sentencing trial. Other jurisdictions, however, have dealt with the question, and their holdings have been collected in Thomas M. Fleming, Annotation, Sufficiency of Evidence, for Purposes of Death Penalty, to Establish Statutory Aggravating Circumstance that Defendant was Previously Convicted of or Committed Other Violent Offense, had History of Violent Conduct, Posed Continuing Threat to Society, and the Like Post Gregg Cases, 65 A.L.R.4th 838, 919-925 (1988).

In Daugherty v. State, 419 So.2d 1067 (Fla. 1982), the appellant, who had been sentenced to death for the murder of a hitchhiker, challenged the admission of various prior murder, assault, and robbery convictions as an aggravating circumstance because, except for one murder, all of the crimes occurred after the killing for which he received the death sentence. The Florida Supreme Court, citing its earlier decision in Elledge v. State, 346 So.2d 998 (Fla. 1977), emphasized that the operative statutory language referred to “previous convictions” rather than “previous crimes.” However, the Florida court, quoting from King v. State, 390 So.2d 315, 320 (Fla. 1980), cert. denied, 450 U.S. 989 (1981), pointed out that “[t]he legislative intent is clear that any violent crime for which there was a conviction at the time of sentencing should be considered as an aggravating circumstance.” 419 So.2d at 1069.

An Alabama death penalty case raised the question whether the trial court had erred in admitting evidence of the appellant’s prior convictions in Georgia when those offenses occurred after the crime for which he was sentenced to death in Alabama. The Alabama Code employed the Model Penal Code term “previously

convicted,” and the Alabama Supreme Court upheld the determination by the Court of Criminal Appeals that the language referred to “a time prior to sentence instead of prior to the date of the commission of the capital offense.” Ex Parte Coulter, 438 So.2d 352 (Ala. 1983); see also Coulter v. State, 438 So.2d 336 (Ala. Cr. App. 1982).

The Arizona Supreme Court, in State v. Steelman, 612 P.2d 475 (Ariz. 1980), rejected the appellant’s contention that nine murder convictions and five robbery convictions from California should not have been considered as an aggravating circumstance in his Arizona sentencing because they were committed after the murders for which he was sentenced to death. The court discussed the enhancement statutes in the Arizona Criminal Code, which required that the prior conviction be based on an offense committed before the offense for which the defendant is sentenced in order to serve simultaneously as a warning and encouragement to first offenders. But the Arizona death penalty statute, said the court, “makes no reference to when the acts underlying those convictions must have been committed.” 612 P.2d at 481. The court, noting that the “purpose of an aggravation/mitigation hearing is to determine the character and propensities of the defendant,” observed that the “[r]evelation of subsequent lawless acts of violence would help to attain the objectives of the sentencing statute.” Id. See also State v. Tison, 633 P.2d 335 (Ariz. 1981).

A “prior murder convictions special circumstances statute” was at issue in People v. Hendricks, 737 P.2d 1350 (Cal. 1987), a California death penalty case. There, the California Supreme Court stated that the statutory language setting forth the special circumstance that “[t]he defendant was previously convicted of murder in the first or second degree” was unambiguous in its simple and unequivocal reference to previous convictions. “The order of the commission of the homicides,” declared the court, “is immaterial.” 737 P.2d at 1357.

Each of the cases just cited contains a distinction that is critical in the present matter. The relevant statute in each instance speaks in terms of previous convictions. Within that framework, a murder or violent act might occur before or after the commission of the homicide under current consideration.

Under Ark. Code Ann. § 5-4-604(3), however, the language clearly states that “[aggravating circumstances shall be limited to,” among other enumerated examples, a situation in which “[t]he person previously committed another felony’’ This phraseology is superficially similar to the Florida Supreme Court’s disapproved term “previous crimes” in Daugherty v. State, supra. Implicit in the Arkansas statute’s phrase “previously committed another felony,” which itself is supported by the statutory elaboration of the element of “the use of threat of violence” and “the creation of a substantial risk of death or serious physical injury,” is at least the contemplation of a conviction. Indeed, proof of a conviction serves to establish the aggravating circumstance of a previous violent felony. And, it should be recalled, the Florida court stressed in Daugherty that the purpose of the statute was to ensure that “any violent crime for which there was a conviction at the time of the sentencing should be considered as an aggravating circumstance.” 419 So.2d at 1069.

The fundamental thrust of the Arkansas aggravating-circumstances statute is prospective. As we held in Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988), a case concerning the introduction of a twenty-three-year-old violent felony conviction:

Ark. Code Ann. § 5-4-604 ... is not concerned with the defendant’s character at the time of trial, for the jury already knows the defendant has just recently committed a murder. Instead, this statute is concerned with disclosing whether the defendant’s history establishes such a propensity for violence that it will reoccur. Once the jury knows about a defendant’s past propensity for violence, it can weigh that against any mitigating circumstances. In striking this balance the jury determines if the defendant has such a marked propensity for violence that it would likely manifest itself again in the future. If the jury determines beyond a reasonable doubt that the defendant will strike again, it may sentence him to death.

296 Ark. at 316, 756 S.W.2d at 894. Naturally, a violent felony that was committed after the killing in question (but which resulted in a conviction prior to the sentencing hearing) would have considerable bearing on a convicted murderer’s propensity to “strike again.”

For these reasons, we have no hesitancy in saying that the trial court did not err in allowing the State to introduce evidence of Sanders’s conviction for the murder of Frederick LaSalle.

III. Admission of photographs of victims

Sanders asserts, in his third point for reversal, that the trial court erred in permitting the State to introduce into evidence crime-scene photographs showing the bodies of Mr. and Mrs. Brannon, contending that they were used for no other purpose than to inflame and prejudice the jury.

This court has long held that the admissibility of photographs is a matter within the sound discretion of the trial court, and the trial court’s ruling will not be reversed absent an abuse of discretion. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990). Even gruesome photographs are admissible if they assist the jury in any of the following ways: (1) by shedding light on some issue; (2) by proving a necessary element of the case; (3) by enabling a witness to testify more effectively; (4) by corroborating testimony; or (5) by enabling jurors better to understand the testimony. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994); see also Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). The mere fact that a photograph is inflammatory is not, in and of itself, a sufficient reason for its exclusion. Weger v. State, supra.

As stated previously, a new jury had been empaneled for the resentencing proceedings. The trial court admitted three photographs of the body of Charles Brannon, two photographs of Nancy Brannon’s body, and one photograph of their house. The trial court refused to admit nine other photographs. The photographs enabled the jurors, who were unacquainted with the details of the case, to understand better the testimony of witnesses regarding the manner of death and the discovery of the bodies. The probative value outweighed the prejudicial impact, and the trial court did not abuse its discretion.

IV. Motion for continuance

As the fourth point for reversal raised by Sanders is that the trial court erred in refusing to grant the defense motion for a continuance, it is necessary to review some related antecedent matters. Sanders had filed motions for discovery and to compel in April and May 1992. A hearing was held on the motions on June 15, 1992. The State argued that it had provided its case file to the attorney who had represented Sanders in the previous trial and that it was under no obligation to provide the current counsel with the same material that could be obtained from the previous defense attorney or checked out from the Supreme Court Clerk’s Office. The trial court issued an order requiring the previous defense attorney to provide the current counsel with all the information on the case in his possession. Additionally, the prosecuting attorney reported that he had spoken with another former defense lawyer, Bill Murphy, who agreed to furnish the current counsel with everything, he had available on the case. At a subsequent hearing on August 3, 1992, the current counsel confirmed that Mr. Murphy had given her his complete file from the original trial.

Just prior to the resentencing proceeding, Sanders’s present attorney moved for a continuance on the basis that the State had neither informed her of the nature of the anticipated testimony nor disclosed to her the aggravating circumstances — other than the prior violent felony conviction — that would be advanced by the State. Counsel also moved for a continuance on the basis that Sanders’s appeal in the LaSalle murder case had not been decided at that point. The trial court denied the motion for a continuance, and did so again when, after the State’s case-in-chief and the jury’s verdict, the defense renewed its motion.

The burden is on the movant to show good cause for a continuance. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993). A motion for a continuance is addressed to the discretion of the trial judge and will not be reversed absent an abuse of discretion. Verdict v. State, 315 Ark. 436, 868 S.W.2d 443 (1993). The burden of proving an abuse of discretion due to prejudice resulting from the denial of a continuance is upon the appellant. Henderson v. State, 310 Ark. 287, 835 S.W.2d 865 (1992). Prejudice is not presumed in this context; instead, an appellant must demonstrate prejudice before this court will consider a trial court’s denial of a continuance to be an abuse of discretion. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993).

Here, apart from an assertion in his brief of hardship imposed by the State having provided, seventeen days prior to trial, a witness list bearing more than thirty names, no allegation of prejudice has been made nor a showing of a particular need. Nothing specific is offered to support Sanders’s contention that seventeen days is “hardly enough notice.” As the prosecutor indicated in the hearing on June 15 and August 3, 1992, Sanders had access to the record of the first trial in this matter. The current counsel also acknowledged that she had received the case file from the original trial from attorney Murphy. Moreover, counsel had available this court’s opinion in Sanders II, which contains a substantial account of testimony offered at the first trial in the Bran-non murder case.

As for.Sanders’s complaint that the State failed to discover to the current counsel the anticipated testimony of the witnesses for the prosecution, we have held that the State has no obligation to discover to defense counsel the substance of the anticipated testimony by State’s witnesses. See Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994).

Sanders has failed to sustain his burden of establishing prejudice amounting to an abuse of discretion on the part of the trial court in denying the motion for continuance.

V Motion to disqualify prosecutor

In his fifth argument for reversal, Sanders urges that the trial court erred in denying a defense motion to disqualify the prosecuting attorney individually and the prosecuting attorney’s office as a whole. The motion was grounded on the fact that, in the LaSalle murder case, prosecutor Dan Harmon had represented Byron Hopes, Sanders’s co-defendant, as well as on the fact that Ed Scrimshire, a deputy prosecuting attorney, had been appointed to represent Sanders when he was initially charged with the murders of Mr. and Mrs. Brannon and then went to work for the prosecutor and assisted the State in the original trial in this matter.

Simply put, Sanders has failed to demonstrate prejudice resulting from the prosecuting attorney’s participation in the Brannon murder case. This court will not reverse in the absence of such a showing. See Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Although the defense counsel asserted, in connection with her motion to disqualify, that Byron Hopes would testify for the State to offer substantiation of an aggravating circumstance, Hopes did not testify at all during the resentencing proceedings. The trial court gave the State the option to prove a previous violent felony by the introduction of either extrinsic evidence or a judgment of conviction. The State provided the judgment of conviction in the LaSalle murder case to establish an aggravating circumstance. Clearly, no prejudice ensued under the circumstances.

Regarding deputy prosecutor Scrimshire’s position, Sanders is barred from obtaining relief due to the operation of the doctrine of the law of the case. See Bennett v. State, supra. Sanders was obligated to raise the issue at the time of his first trial in this matter and to pursue the question in his earlier appeal.

The trial court did not err in denying the motion to disqualify the prosecuting attorney and the prosecutor’s office.

VI. Motion for mistrial

For his sixth point for reversal, Sanders contends that the trial court erred in refusing to grant a mistrial after the judge allegedly engaged in an improper conversation with at least the jury foreman. Nothing pertaining to the motion for mistrial has been abstracted, and we would not be in a position to review the issue were it not for the State’s inclusion in its brief of the relevant statements by defense counsel and the trial judge.

When the jury returned to the courtroom with its verdicts, it became apparent that the jurors had misunderstood their instructions on completing the verdict forms. Two of the four forms had not been filled out, and the trial court explained the contents of Forms 2 and 3. The jury then retired to the jury room to continue its deliberations, and the trial court offered the following summary for the record:

The foreman just gave this back to me and asked for an explanation. I just said let me have both forms and now I’m going to talk to you two. I can see what his problem is. This form is misprinted. This should be if you check A, B, and C then sentence Raymond C. Sanders to death by lethal injection. It says here life imprisonment without parole. So, we’re going to correct those and give them Form 3 back.

After the amended form was delivered to the jury, Sanders’s attorney addressed the trial court as follows:

Your Honor, at this time I would like to move for a mistrial. The concerns to the jury regarding these forms were not done on the record. We don’t know who has been discussing what with the jury. We have all these concerns about what’s going on and I would like to move for a mistrial at this time.

The motion was denied.

Sanders’s motion was evidently based on Ark. Code Ann. § 16-89-125(e) (1987), which provides:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.

The procedure set forth above is mandatory and must be strictly followed. Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993). If the procedure is not followed by the trial court, the State bears the burden of proving that no prejudice resulted. See Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). The provisions of § 16-89-125(e) are mandatory, in part, to ensure that the jury is not misinformed regarding the law as a consequence of the trial court’s explaining the law to only one member of the jury. Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971).

In the present case, the trial court promptly reported to counsel that the jury foreman had sought an explanation of the forms. The judge took the forms from the foreman and detected a misprint, which he ordered corrected and then resubmitted to the jury. No “part of the evidence” or “point of law” was discussed. No misinformation was communicated to the jury. Rather, a corrected verdict form was supplied. Under the circumstances, we hold that the trial court did not- err in refusing to sanction the drastic remedy of a mistrial.

VII. Capital-felony murder/first-degree murder overlap

Sanders asserts, in his seventh point for reversal, that the statutory definition of capital-felony murder found in Ark. Code Ann. § 5-10-101 (a)(1),(2) (Repl. 1993) is unconstitutionally vague because it overlaps with the statutory definition of first-degree murder found in Ark. Code Ann. § 5-10-102(a)(l). This is a well-worn argument we have rejected on numerous occasions, holding that the statutes are not constitutionally infirm because there is no impermissible uncertainty in the definitions of the capital-murder offenses. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990); Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989).

VIII. Narrowing of categories in capital-murder statute

The final point raised for reversal by Sanders is that the capital-murder statute violates the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment. He contends that Ark. Code Ann. § 5-10- 101(a)(4) (Repl. 1993), which defines capital murder, in part, as the killing of a person “[w]ith the premeditated and deliberated purpose of causing the death of another person,” fails adequately to “narrow the death penalty cases from the non-death cases.”

This issue has been considered and rejected in the past by this court. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993) (class of offenses narrowed by aggravating circumstance); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert. denied, 112 S. Ct. 3043 (1992) (narrowing primarily occurs at penalty phase).

IX.Comparative review

This court conducts, on a case-by-case basis, a comparative review of each death penalty case on appeal. Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441 (1983). In conducting this comparative review, the Supreme Court considers the following factors: (1) whether the death sentence at issue was the result of passion, prejudice, or any arbitrary factors; (2) whether the evidence supports the jury’s finding of any statutory aggravating circumstance; (3) whether the evidence supports the jury’s findings with regard to whether the aggravating circumstances outweigh the mitigating circumstances; and (4) whether a death sentence is excessive. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).

- [22] The record shows that Sanders committed two capital murders in the furtherance of his theft of cash and jewelry from the Brannons. This court has found murders committed in the course of a robbery in order to facilitate the theft of property from the victims to be proportional in warranting the imposition of the death penalty. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993); Whitmore v. State, supra.

The jury in the resentencing hearing found two aggravating circumstances: (1) the capital murder was committed for the purpose of avoiding or preventing an arrest; and (2) Sanders had previously committed a violent felony. The State introduced supporting evidence on the first finding from which the jury could have inferred that Sanders shot Mr. and Mrs. Brannon in order to prevent them from informing the police that he either had ransacked or intended to ransack their house for the purpose of stealing a large sum of cash that Mr. Brannon was reputed to have kept there. In support of the second finding, the State introduced the judgment of conviction in the February 1992 LaSalle murder case. These factors outweighed the evidence, offered in mitigation, of Sanders’s military service, Bible study, and junior- and senior-high track-meet ribbons.

X. Rule 4-3(h)

The State has done an especially commendable job in complying with Ark. Sup. Ct. R. 4-3(h), by reviewing the entire record, making certain that all rulings to Sanders, together with those parts of the record necessary for an understanding of each adverse ruling, have been abstracted, and by amply supplementing the appellant’s abstract where other deficiencies existed. We agree with the State’s Rule 4-3(h) analysis in all .of its particulars.

Affirmed.

       Sanders also makes an unsupported collateral argument concerning the “suspect” character of the second LaSalle murder trial. That matter, of course, was settled in Sanders III.


author: Robert H. Dudley, Justice.

text:
    Daniel Lee BILLETT v. STATE of Arkansas
    CR 94-107
    877 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994

      William L. Howard, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Daniel Lee Billett was convicted of first degree murder and sentenced to life imprisonment. His single assignment is that the trial court erred in ruling that he could not cross-examine the State’s principal witness about having been pregnant and having had three abortions. The trial court’s evidentiary ruling did not constitute an abuse of discretion, and we affirm the judgment of conviction.

We do not recite all of the facts proved at trial because appellant does not question the sufficiency of the evidence. The facts involving the argument made, viewed in the light most favorable to appellee, as we must do, are as follows. Appellant was living with the State’s main witness at the time he committed the murder. Shortly after committing the murder, he told the witness how, when, and where he killed the victim. The police questioned the witness, but she maintained that she knew nothing about the murder. In February 1992, seven months after the murder, the witness returned home one morning, and appellant handcuffed her to the bed. He threatened to kill her because, at an earlier date while she was drinking, she had called him a murderer and he suspected she might tell someone. Later, after she persuaded him to let her go, she found a pistol and gloves belonging to appellant and inferred that he planned to use them in killing her. She moved out and, because she was so afraid of appellant, went to extreme lengths to conceal her new residence. She testified that two weeks after he moved out appellant gave her a letter in which “he called me everything from a Jezebel to — but, you know, still I love you in it — I threw it away.” She tried to get her belongings, but appellant had removed them from storage and claimed they had been stolen. In sum, it was clearly established that appellant and the witness ended their relationship acrimoniously. It was without question that the proof showed that the witness had reason to be biased in her testimony against appellant and had a motive to be untruthful.

In addition to the foregoing, appellant sought to show that the witness had three abortions, one being a result of her relationship with appellant, and that he had written a letter telling her she would “burn in hell” for having the abortions. The State moved in limine to exclude the evidence of the abortions. The trial court granted the motion and stated that neither the pregnancy nor the abortions were relevant to any issue in the case because they did not go to the credibility, believability, truthfulness, or veracity of the witness, see A.R.E. Rules 401 and 608; that abortion is not a crime, see A.R.E. Rule 609; and, in addition, even if relevant, the prejudicial impact would outweigh any probative value because of the controversial nature of abortion, see A.R.E. Rule 403.

On appeal, the Attorney General responds to appelr lant’s assignment of error by contending that the point was not preserved because appellant did not make a proffer of the witness’s testimony. See A.R.E. Rule 103(a)(2). However, a proffer is not necessary when the substance of the offer is apparent. See Rule 103(a)(2); Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Here, the prosecuting attorney filed a motion in limine to exclude examination of the witness about being pregnant and having three abortions. The testimony to be barred was set out by the prosecutor and clearly understood by the trial judge, who ruled that she could not be examined about the pregnancy and abortions. There was no question about the testimony. Since the substance of the testimony is clearly apparent, we reach the issue. A.R.E. Rule 103(a)(2).

Appellant contends that the ruling prevented him from exercising his right of confrontation. Certainly, an accused’s right to cross-examine an adverse witness to determine bias cannot be minimized, as the “denial of cross-examination to show the possible bias or prejudice of a witness may constitute Constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation.” Henderson, 279 Ark. at 438, 652 S.W.2d at 18 (citing Davis v. Alaska, 415 U.S. 308 (1974)). The right of an accused to show the bias of a witness does not lie within the trial court’s discretion. See Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). It is generally permissible for an accused to show by cross-examination anything bearing on the bias of the testimony of a material witness. See Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). However, once the main circumstances showing bias have been admitted, the trial judge does have the discretion to determine how far the examiner may delve into the details. See Smith v. State, 291 Ark. 163, 722 S.W.2d 853 (1987). When the evidence reaches this posture, the trial court may impose reasonable limits on cross-examination based upon concerns about harassment, prejudice, waste of time, unnecessary duplication of testimony, confusion of issues, or interrogation that is repetitive or only marginally relevant. See Bowden v. State, 310 Ark. 303, 783 S.W.2d 842 (1990). The trial court’s discretion to limit these details will not be reversed absent a showing of abuse. Smith, 291 Ark. at 171, 722 S.W.2d at 858. This case reached the posture that appellant showed, without any real question, that the witness had reason to be biased or had a motive to give false testimony against him. The proof was clear that their relationship had become most acrimonious. Because the bias was already established, the trial court did not abuse its discretion in refusing to allow appellant’s cross-examination of the witness about a pregnancy and abortions even if it were relevant.

Further, the abortions and the witness’s alleged reaction to appellant’s alleged statement of religious belief that her soul would be condemned as a result of having an abortion was, at most, marginally relevant and had very little, if any, probative value. The trial court conducted a balancing of probative value against unfair prejudice pursuant to Rule 403 of the Arkansas Rules of Evidence and concluded that any probative value was clearly outweighed by the danger of unfair prejudice. An appellate court will not reverse a trial court’s weighing of probative value against unfair prejudice under Rule 403 unless there has been a manifest abuse of discretion. Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366 (1992). The trial court did not manifestly abuse its discretion in this case.

The sentence in this case is life imprisonment. As a result, the record has been examined for any other rulings adverse to appellant that might constitute reversible error. See Ark. Sup. Ct. R. 4-3(h). No other adverse rulings constitute reversible error. The judgment of conviction is affirmed.

Hays, J., concurs.


text:
    Jack Gordon GREENE v. STATE of Arkansas
    CR 93-523
    878 S.W.2d 384
    Supreme Court of Arkansas .
    Opinion delivered June 20, 1994

      J.M. Holman, Public Defender, and Vannoy, Colvard, Triplett & McLean, by: Gary Vannoy, for appellant.

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

Jack Gordon Greene, appellant, was found guilty of capital murder and sentenced to death by lethal injection. We affirm the conviction for capital murder, but hold there was prejudicial error in the sentencing phase of the bifurcated trial. We set aside the sentence of death and remand the case to the trial court for resentencing. See Ark. Code Ann. § 5-4-616 (Repl. 1993).

Appellant makes nine ássignments of error. Two of the assignments involve asserted trial error in the guilt phase of the proceeding. We first address those two arguments. In the first of these, appellant contends that the trial court erred in admitting a number of photographs into evidence. The photographs comprise two groups. One group shows the victim at the scene of the crime. The abstract does not reflect that there was an objection to any of the photographs in this group. Issues not raised in the trial court will not be considered for the first time on appeal. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). The other group contains photographs taken by a forensic pathologist, Dr. Fahmy Malak, the former state medical examiner. These photographs were introduced through the video deposition of Dr. Malak. While taking the video deposition, appellant’s counsel objected to State’s deposition exhibits numbers 1, 2, and 4 because they were “inflammatory and repetitive.” It does not appear from the abstract that the objection made during the videotaping was subsequently brought to the attention of the trial court, and, as a result, the objection was waived. A matter not brought to the attention of the trial court cannot be considered on appeal. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). Further, the record to be considered on appeal is confined to that which has been abstracted. Bennett v. State, 302 Ark. 179, 789 S.W.2d 436, cert. denied, 498 U.S. 851 (1990).

The other assignment of trial error in the guilt phase of the trial involves an evidentiary ruling admitting a tee-shirt into evidence. The proof involved in the ruling showed that while on patrol at 7:15 on the morning of July 26, 1991, Toby Taylor, a city policeman in Norman, Oklahoma, saw appellant and thought he was an escapee from a local mental institution. Taylor stopped appellant to see if he should be returned to the hospital. Appellant had on a pair of parachute pants and thongs, but did not have on a shirt. He was carrying a trash bag in one hand and a black, sleeveless tee-shirt in the other. Appellant identified himself with an Arkansas driver’s license and a social security card. The officer did not detain appellant, but instead ran a check on him by police radio through the National Crime Information Center’s computer system. Shortly afterward, Officer Taylor learned that appellant was wanted in Arkansas for murder. He went back to the area where he had seen appellant, found him, and arrested him. Appellant had a loaded .25 caliber pistol with a full clip of ammunition in his pocket and had more ammunition in his possession. At trial, appellant did not object to any of officer Taylor’s testimony, but did object to the admission of the black tee-shirt. The tee-shirt bears the following message: “If you love someone, set them free. If they don’t come back, hunt them down and shoot them.” Appellant objected to the admission of the tee-shirt on the grounds that it was not relevant to the murder and was unduly prejudicial.

There was no proof about how, when, or where appellant came into possession of the shirt. No proof indicated that he possessed it at the time of the murder. The proof was solely that he had it in his hand on July 26th, three days after the murder. There was no evidence that appellant had at any time loved the victim, or had set the victim free in any way, and there was no proof that appellant subscribed to the statement emblazoned on the shirt. In offering the shirt, the State contended that it was relevant to prove appellant’s state of mind at the time of the murder. The trial court questioned the relevancy because of the lapse of time, but ultimately overruled appellant’s objection. The prosecuting attorney argued extensively about the shirt in closing argument.

In the context of this case, “relevant” means evidence that had any tendency to make the existence of appellant’s premeditation and deliberation any more or less probable. See A.R.E. Rule 401 & Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1993). While evidence may be relevant even though it is somewhat remote in time from the occurrence of the crime, see Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991), the tee-shirt had only a minimal tendency, at most, to prove appellant’s state of mind at the time the victim was killed. Even though evidence might be relevant, it should be excluded when, upon objection, its probative value is substantially outweighed by the danger of unfair prejudice. See A.R.E. Rule 403; Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980). Here, appellant’s objection asked for a balancing of probative value against unfair prejudice under Rule 403 of the Arkansas Rules of Evidence. The standard of review of a trial court’s weighing of probative value against unfair prejudice is whether the trial court abused its discretion. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993); Hubbard, 306 Ark. at 161, 812 S.W.2d at 112. Even assuming that the emblazoned statement on the shirt had some marginal relevance, its effect was clearly prejudicial, and the trial court abused its discretion in allowing the shirt into evidence. In a comparable case, an Illinois appellate court ruled that it was error to admit a photograph of a defendant wearing a shirt with “Enjoy Cocaine” printed on it when the prosecution introduced the shirt to prove the defendant was a drug dealer. The court stated that even assuming such evidence was relevant, “[T]he prejudicial effect of the challenged evidence far outweighed whatever probative value, if any, that such evidence may have had.” People v. Kannapes, 567 N.E.2d 377, 380 (Ill. App. Ct. 1990). In sum, we hold that the trial court erred in admitting the tee-shirt in evidence.

The question then is whether we should reverse the guilt phase of the proceeding because of the erroneous evidentiary ruling made during that phase. When the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987). We apply this standard of review to an evidentiary ruling in the guilt phase of capital cases. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert. denied, 112 S. Ct. 3043 (1992). After a detailed review of the evidence, we hold that the evidence of guilt of capital murder was overwhelming, and, in view of that evidence, the error was slight. The overwhelming evidence of guilt is as follows.

Edna Burnett testified that she and her husband, Sidney Jethro Burnett, the victim, helped needy families and needy people. They operated through an association named Ministries Aflame. In 1987, appellant and his wife, who apparently were out-of-state at the time, learned of Ministries Aflame through a radio broadcast. They called the Burnetts and asked for assistance. The Burnetts provided work and a home for appellant and his wife and also provided funds that allowed appellant to have needed surgery. Three months later appellant’s wife separated from him and went back to her original home in North Carolina. Appellant appeared distraught over his wife’s leaving. He stayed in Arkansas until shortly after Christmas of 1987, when he left to also return to North Carolina.

Edna Burnett further testified that appellant returned to the Burnetts’ home about one week before the July 23, 1991, murder of Sidney Burnett. At the time, appellant had a hitchhiker with him. He left abruptly, and Edna Burnett did not see appellant again until after the murder.

Sheriff Eddie King testified that after appellant’s arrest, he went to Norman to bring appellant back to stand trial. While still in Norman, appellant told the Sheriff that the Burnetts had earlier accused him of burning one of their buildings and that Edna Burnett had talked his wife into leaving him. Appellant told the sheriff, “I’m your man” and “No one else was involved.” He also said, “I’m tired of being treated like shit. I was going to take out people that fucked with me. It’s like chaining up a dog and treating it like shit. Sooner or later he goes crazy.” Other testimony revealed that the victim’s pickup truck was recovered in Oklahoma with appellant’s palm print on it.

A few days after being returned to Arkansas, while appellant was in jail, he said he had killed his brother in North Carolina and then had come to Arkansas. He said he wished he could have attended his brother’s funeral “so he could piss on his grave.”

The physical evidence was as follows. Two .25 caliber shell casings were found at the crime scene. A firearms-toolmark examiner testified that the .25 caliber pistol taken from appellant in Norman was the same pistol that imparted the markings on the casings found at the crime scene. Even more important, two bullet fragments were taken out of the victim, and the one fired into the victim’s left back and the one fired into the victim’s head were both fired from the pistol recovered from appellant. A dented can of hominy with blood on it was found at the crime scene. Four hundred and sixty dollars remained in the victim’s billfold that was found under a chair by the corpse, and two hundred dollars in cash was found in a nearby bedroom.

When the sheriff first arrived at the Burnett home, he found Sidney Burnett’s corpse with the head and shoulders propped up against a chair. His legs were on the floor. His hands were bound behind his back. He had handcuffs on his right arm, and his feet were bound together. Cloth was wrapped around his mouth. He had braises on the right side of his forehead and on his back. He had been stabbed in the back. He had been shot in the chest and just above the right ear. The former state medical examiner testified that when he received the corpse the hands were restrained behind the back with fiber filament tape and there were imprints from the restraint of the hands and legs.' There was bleeding around the edges of the compression marks, and this indicated that the victim was alive while being restrained. The appellant’s forehead was cut, probably when appellant struck the victim with the can of hominy, and a bruise in the back was consistent with the heel of a stomping shoe. The medical examiner testified that the victim was alive at the time these blows were struck because the areas bled and swelled. A stab wound in the’ left back was strong enough to go through the lung a distance of about four inches and to pierce the whole thickness of the muscles of the left mid back. The right side of the victim’s face had been cut from the mouth to the ear, and the cut was so deep that it severed the entire thickness of the facial muscles. The medical examiner testified that Sidney Burnett was alive when this was committed because he inhaled blood from the facial cut into his lungs, and blood was circulating when the stab into the back was made. The victim was shot with appellant’s .25 caliber pistol in the right chest and the right crown of the head. The high degree of bleeding indicated that Sidney Burnett was alive when shot.

The facts show that appellant knew the Burnetts and was familiar with their home. He went to their home with handcuffs, a .25 caliber pistol, and filament tape. He bound Sidney Burnett’s hands, feet, and mouth. Over a period of time, appellant beat Burnett in the head, probably with a can of hominy; bruised his back, probably by stomping him with his heel; brutally stabbed him in the back; committed even more horrible torture when he cut the victim from mouth to ear; and ultimately shot him in the chest and in the head. Even though this description of butchery and torture sounds horrible, it does not fully describe the effect of macabre horror shown in the photographs of the crime scene. Appellant said, “I’m tired of being treated like shit. I was going to take out people that fucked with me. It’s like chaining up a dog and treating it like shit. Sooner or later he goes crazy.”

The evidence of a premeditated and deliberated murder is overwhelming, and, under such circumstances, the trial error was harmless. Consequently, we affirm the conviction for capital murder reached in the first phase of the trial.

We now address the assignments of error involving the penalty phase of the trial. In the first of these, appellant contends that the trial court erred in refusing to allow mitigating testimony by his jailer. The prosecutor objected to the testimony, stating that it concerned appellant’s conduct after the commission of the crime and therefore was not a relevant mitigating circumstance. The trial court sustained the prosecutor’s objection. The Attorney General correctly concedes the trial court’s ruling was in error. The testimony should have been admitted. Skipper v. South Carolina, 476 U.S. 1 (1986); Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied, 484 U.S. 917 (1987).

Another assignment of error in the penalty phase involves the State’s proof that appellant had committed a “prior violent felony” as defined by Ark. Code Ann. § 5-4-604(3) (Repl. 1993). The State introduced proof that appellant had been convicted in North Carolina of the murder of his brother. In January of this year, the North Carolina Supreme Court reversed appellant’s first degree murder conviction for that crime. The Attorney General again correctly concedes error on this issue. A death sentence that is predicated upon proof of the defendant’s conviction of an unrelated prior violent felony must be vacated if the prior violent felony is, subsequent to the imposition of the death penalty, reversed. Johnson v. Mississippi, 486 U.S. 578 (1988); Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992). This court can perform the statutory harmless error analysis in the penalty phase only if “the jury found no mitigating circumstances.” Ark. Code Ann. § 5-4-603(d) (Repl. 1993). In the present case, the jury unanimously found four mitigating circumstances.

The above two trial errors mandate that we vacate the sentence of death and remand for resentencing. Upon retrial, the trial court should not allow the prosecutor to mention the tee-shirt. In the remainder of the opinion we address those matters that were preserved for appeal even though one of them was not assigned as error in this appeal. See Ark. Sup. Ct. R. 4-3(h).

The trial court, over appellant’s objection, allowed a North Carolina policeman who had investigated the North Carolina case and who had witnessed the trial in North Carolina to testify about facts he found in his investigation and to repeat the testimony of witnesses from the North Carolina trial. The prosecutor commented that “it’s not hearsay if he’s testifying to sworn testimony that he heard at a trial.” The trial court allowed the testimony. The ruling was erroneous. The declarant’s testimony about the testimony in North Carolina trial was hearsay. A.R.E. Rule 801. In the penalty phase of a capital murder case, the defendant is not bound by the rules of evidence in showing mitigating circumstances, but the State is bound by the rules of evidence in proving aggravating circumstances. Ark. Code Ann. § 5-4-602(4) (Repl. 1993). Upon retrial, the prosecuting attorney should not be allowed to introduce hearsay evidence over appellant’s objection.

We do not address three of appellant’s assignments of error because either they were not preserved or they are not likely to arise again upon retrial. In the first of these arguments, appellant contends that the trial court erred in instructing the jury before the reception of the evidence at the penalty phase of the trial and by not repeating the instructions at the end of the evidence. The argument was not preserved with an objection or request for the trial court to repeat the instruction at the end of the trial. Further, the trial court is not likely to repeat the procedure. Second, appellant argues the trial court erred in admitting a report from the State Hospital because it contained hearsay, but the issue was not preserved with an objection. Third, appellant contends that the trial judge erred in answering questions by the jury, but there was no contemporaneous objection. In fact, from the abstract it appears that appellant agreed with the procedure used. An appellant cannot agree to the trial court’s disposition of an issue and then on appeal argue that the trial court erred in doing what he' agreed the trial court could do. See Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992).

The final two assignments involve alleged errors in rulings on law. In the first of these appellant asserts that the capital murder statute is unconstitutional under the Eighth and Fourteenth Amendments because it fails to adequately narrow the class of persons eligible for the death penalty and permits arbitrary prosecutions. He contends that the section of the statute that defines capital murder as “causing the death of a person with the premeditated and deliberate purpose of so doing,” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1993), is unconstitutional because it overlaps with the definition of first degree murder in Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). We have previously rejected this argument. Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). We decline to overrule our cases.

In the second of these assignments appellant asserts that the “especially cruel or depraved” statutory aggravating circumstance is unconstitutionally vague or overbroad and is unconstitutional as applied in this case. Appellant made a pre-trial motion in which he argued that this statutory aggravating circumstance was violative of the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment. When this issue came up at trial, the trial judge stated that appellant had not notified the Attorney General’s office of his constitutional challenge to the statute. We make no holding on that statement. Appellant’s counsel then withdrew the facial challenge to the statute and asserted that the State should be prohibited from using the “especially cruel or depraved” circumstance. The court allowed submission of this circumstance to the jury. It is one of the two aggravating circumstances which the jury found to be proved beyond a reasonable doubt. The other was that appellant had previously committed another felony involving violence. See Ark. Code Ann. § 5-4-604(3)&(8) (Repl. 1993).

When appellant withdrew the objection regarding the facial challenge to the statute, it was as if no objection had ever been made. Nichols v. State, 306 Ark. 417, 420-21, 815 S.W.2d 382, 384-85 (1991). Thus, appellant’s argument is limited to whether the statute as applied to him was unconstitutional.

The previous statutory “especially heinous, atrocious, or cruel” aggravating circumstance was declared unconstitutional by this court because it was so vague that it violated the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment. See Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988). The legislature rewrote the aggravating circumstance in 1991 and based the statutory definitions of “especially cruel manner” and “especially depraved manner” on the Arizona Supreme Court’s limiting interpretation of its “especially heinous, cruel or depraved” aggravating circumstance that had been found by the United States Supreme.Court to pass constitutional muster. See Walton v. Arizona, 110 S. Ct. 3047 (1990).

In the present case, appellant’s conduct in murdering Sidney Burnett falls within the statutory definition of in an “especially cruel manner.” For the murder to have been committed in an especially cruel manner, the defendant must have intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, and mental anguish, physical abuse, or torture must have been inflicted. Ark. Code Ann. § 5-4-604(8)(B) (Repl. 1993). The manner in which the murder was committed qualifies as in an especially cruel manner based on either the serious physical abuse circumstance or the mental anguish circumstance. The statute defines “mental anguish” as “the victim’s uncertainty as to his ultimate fate.” “Serious physical abuse” is “physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.”

The evidence presented established that appellant intended to inflict serious physical abuse on Sidney Burnett and did so for a considerable period of time before killing him. The evidence also establishes that appellant intended to inflict mental anguish on the victim and did so prior to killing him. The statutory aggravating circumstance thus applies to appellant’s conduct and was properly presented to the jury.

The conviction for capital murder is affirmed. The sentence of death is set aside, and the case is remanded to the trial court for resentencing in compliance with Ark. Code Ann. § 5-4-616 (Repl. 1993).


author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

text:
    Rodney HEWITT v. STATE of Arkansas
    CR 93-1393
    877 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994
    [Rehearing denied September 12, 1994.]

      James F. Lane, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.

       Brown, J., would grant rehearing.

   Robert H. Dudley, Justice.

Appellant was convicted of second degree murder and sentenced to twenty years imprisonment. This court took appellate jurisdiction because appellant’s arguments in his brief draw into question the interpretation of an act of the General Assembly, the Constitution of Arkansas, and the United States Constitution. See Ark. Sup. Ct. R. l-2(a)(l) & (3). However, the constitutional and statutory issues were not raised below and therefore are not preserved for appeal.

Appellant was charged and convicted in the Circuit Court of Faulkner County which is a part of the Twelfth Judicial Circuit. The Honorable Andre McNeil is a duly elected chancery and probate judge of the Twentieth Judicial District and presided over appellant’s jury trial in circuit court pursuant to a statute that allows circuit and chancery judges within the same geographically defined circuit or district to temporarily exchange circuits and districts. See Ark. Code Ann. § 16-13-403 (Repl. 1994); see also Survey of Legislation: 1991 Arkansas General Assembly, 14 U. Ark. Little Rock L.J. 727, 829-30 (1992).

At trial, appellant objected to Judge McNeil’s “status as the trial judge,” arguing that only a “person whose status is that of a duly elected circuit judge” can properly preside over a felony criminal trial. The trial judge overruled the objection by stating that a 1992 Act removed any doubt about the validity of his presiding over the trial. Appellant did not argue to the trial court that the 1992 Act, or any other act, constituted an unconstitutional delegation of legislative authority. He did not assert that there was a conflict between sections 16-13-403 and -2803 of the Arkansas Code Annotated of 1987. He did not apprise the trial judge that he was contending the voters might have been misled when they elected chancellors and probate judges. Yet those are the arguments he seeks to raise in this appeal. His objection was as follows:

lam... objecting to your status as the trial judge, the circuit judge, in this action. And, specifically, I’m wanting to raise and make the objection that the attorney failed to make in Simpson v. State, 310 Ark. 493 (1992), not to the jurisdiction of the circuit court which has jurisdiction, but to your status because you are the duly elected, serving, and acting chancellor and probate judge and not a circuit judge. And on behalf of my client, I ask that the trial of this matter be transferred to the jurisdiction of a duly elected circuit judge, or to a person whose status is that of a duly elected circuit judge.

The trial court denied the motion, stating that the “problem in State of Arkansas versus Simpson” was cured by the Legislature during its 1992 special session and that the question presented in Simpson was no longer an issue. Appellant made no argument that the 1992 Act was invalid.

A brief background will assist the reader in understanding both the nature of the objection that was made and the trial judge’s ruling. In Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992), the case cited by appellant in his objection, Simpson argued on appeal that the chancellor that presided over his criminal trial lacked “subject matter jurisdiction to do so.” Id. at 499, 837 S.W.2d at 478. He did not make an argument challenging the chancellor’s authority to hear his case. We held that his challenge to the authority of the sitting judge was not preserved for appeal, as such an argument is not a question of subject matter jurisdiction and, consequently, must be raised before the trial court to be properly preserved. Id. In another decision earlier that'year, Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992), we considered a challenge to the authority of a chancellor to try a criminal case under an exchange agreement and held that there was no legislative authority for chancellors and circuit judges within the same district to hold court for each other. On those grounds, we granted a request for a writ of mandamus to direct the judge to refrain from that action. Id. at 119, 823 S.W.2d at 840. In response to the “substantial doubt [which had arisen regarding] the legality” of such exchanges, the General Assembly at its 1992 Extraordinary Session passed Act 51, which amended section 16-13-403 of the Arkansas Code Annotated of 1987 to expressly provide for chancellors and circuit judges within the same districts and circuits to enter into temporary exchange agreements. See Acts of 1992, No. 51 § 7 (emergency clause); see also Survey, supra at 829-30. The narrow question of legislative authority which we considered in Lee was thus rendered moot.

The question appellant presented to. the trial court is the same as the one presented in Lee, but after Lee, the General Assembly enacted Act 51 of the Extraordinary Session of 1992. However, for the first time on appeal appellant attempts to dispute the validity of the 1992 Act. First, he asserts that section 16-13-403 of the Arkansas Code Annotated of 1987 is an unconstitutionally improper delegation of lawmaking authority to a judicial branch. Second, he argues that this section was superseded by Act 131 of 1993 (codified at Ark. Code Ann. § 16-13-2803 (Repl. 1994)). Effective January 1, 1997, Act 131 will change the position that Judge McNeil currently holds into a circuit-chancery judgeship having jurisdiction in law, equity, and probate. See Ark. Code Ann. § 16-13-2803(d). Appellant contends that, through the passage of Act 131, the General Assembly intended to void the exchange agreements authorized by section 16-13-403; thus, Judge McNeil cannot legally preside over criminal actions until 1997. Finally, he argues that section 16-13-403 permits chancellors to discharge particular judicial duties which they were not elected to perform. These arguments were not presented to the trial court and were not preserved for appeal.

The requirement that a defendant in a criminal case make a specific objection at trial in order to preserve his argument on appeal is well established. See Terry v. State, 309 Ark. 64, 826 S.W.2d 812 (1992); Swanson v. State, 308 Ark. 28, 823 S.W.2d 812, (1992); Brooks v. State, 256 Ark. 1059, 511 S.W.2d 654 (1974). A specific objection is one which apprises the court of the particular error to which the party complains so that the trial court can have the opportunity to correct the error. Brooks, 256 Ark. at 1063, 511 S.W.2d at 656. It is also well settled that a party cannot change the basis of argument on appeal. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993); Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). Appellant’s argument at trial did not apprise the trial court of the arguments he now makes on appeal. Thus, we do not reach the arguments and, accordingly, affirm the judgment of conviction.

Affirmed.

Newbern and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. This is an important case in that it holds that an objection by defense counsel urging that a chancellor not sit as the judge in a criminal trial was not specific enough to preserve the issue for our review. With this decision, this court has become overly technical with its requirements on objections, and for that reason I dissent.

What the defense counsel did, as the majority correctly relates, is object to Chancellor McNeil’s presiding at this criminal trial on July 20, 1993, on the grounds that he was elected as a chancery judge and not as a trial judge for criminal matters. The judge overruled the objection and referred to a recent legislative act as having cured any problem relating to his authority to hear criminal cases. The colloquy between the chancellor and defense counsel is worth repeating:

DEFENSE COUNSEL: Ready to proceed, Your Honor, but on behalf of defendant Rodney Hewitt, I did want to make one motion in chambers with respect to your sitting as the circuit judge in this action, on Rodney’s behalf. And as I indicated previously — earlier, I was going to make this objection. I am filing — objecting to your status as the trial judge, the circuit judge, in this action. And, specifically, I’m wanting to raise and make the objection that the attorney failed to make in Simpson versus State 310 Ark. 493 1992, not to the jurisdiction of the circuit court which has jurisdiction, but to your status because you are duly elected, serving and acting chancellor and probate judge and not a circuit judge. And on behalf of my client, I ask that the trial of this matter be transferred to the jurisdiction of a duly elected circuit judge, or to a person whose status is that of a duly elected circuit judge.
PROSECUTOR: Obviously, we oppose the motion and a transfer, and we rely upon the — rely upon the exchange agreement that was prepared after proper research in the legislation and other court rulings as prepared by the members of the bench in the Twentieth Judicial District. An, uh, I feel that that, uh — if the three sitting judges think it’s a good agreement, I think it’s a good agreement, and 1 think that it’s proper for you to hear this case.
THE COURT: Mr. Lane, as I understand it, the Legislature has cured the problem in the State of Arkansas versus Simpson during the 1992 emergency session or special session of legislature, and that the problem that would be encountered in Simpson ver— State versus Simpson is no longer an issue.

Your motion is denied.

On appeal, the appellant asserts that the chancellor’s reliance on the 1992 Act (Act 51) was error and cites three reasons:

1. Article 7, section 22 of the Arkansas Constitution does not authorize intradistrict exchanges among circuit judges and chancellors; that is a matter for the General Assembly.
2. Act 131 of 1993 establishes a circuit-chancery judge position in the 20th judicial district to be effective January 1, 1997, which complies with Article 7 of the Arkansas Constitution.
3. The voters of the 20th judicial district did not elect Chancellor McNeil to serve as a criminal judge.

The majority concludes that the appellant did not apprise the chancellor of these precise arguments and, thus, the chancellor had no opportunity to consider them. I do not agree. Point 3 was expressly raised, although the majority opinion mistakenly concludes that it was not. Points 1 and 2 are merely supporting arguments to the objection made.

For the defense counsel to have expounded on his objection any more than he did would have been akin to telling Noah about the flood. The chancellor involved in this case was well apprised of the issues involved. Indeed, Chancellor McNeil was the chancellor in the two significant cases handed down by this court which pertain to this issue: Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992) and Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). Moreover, the effort in the 20th Judicial District to enter into exchange agreements whereby chancellors and circuit judges could exchange courts no doubt was the catalyst for the passage of Act 51 of 1992 and, later on, Act 131 of 1993. In sum, there is little reason to believe that the chancellor was in any way surprised by the arguments made on appeal.

The majority holds that not only must the defense counsel make a specific objection, but counsel must cite all legal authority in favor of that objection at the time it is made. This goes too far. Surely, Chancellor McNeil was fully aware of Article 7, Section 22 of the Arkansas Constitution which was at issue in Lee v. McNeil, supra. The invalidity of Act 51 of 1992, the appellant contends, is further acknowledged and evidenced by the fact that the General Assembly subsequently enacted Act 131 of 1993, which specifically relates to the 20th Judicial District and which specifically directs that the chancery judgeship shall become a circuit-chancery judgeship with jurisdiction over law and equity cases, effective January 1, 1997. Ark. Code Ann. § 16-13-2803 (Repl. 1994). In other words, Act 131 complied with the Arkansas Constitution where Act 51 did not. That is a supporting argument which is legitimately made on appeal. Is the majority seriously contending that if authority for one’s position is found after trial, it cannot be used on appeal?

The oft-stated policy behind specificity in objections is to let the trial judge know the basis of the objection. That was done here. Had defense counsel made a general objection to the chancellor’s judging the case, the majority’s position might be more valid, but here he asserted that the chancellor had no authority to preside over a criminal trial and alluded to a case in point — Simpson v. State, supra — which involved the same chancellor. In Simpson, we refused to review the issue of the chancellor’s ability to sit on a criminal case because an objection had not been made. In this case, defense counsel said that he was making the objection which counsel failed to make in the Simpson case regarding the same chancellor’s status. Now, having made that objection, this court holds that he still had to go further and cite his supporting arguments, chapter and verse. No doubt defense counsel is now pondering whether it is all but impossible to have this issue reviewed.

The matter of the appellant’s objection is not a close question in my opinion. But assuming it was, our predisposition should be to hear the case on the merits rather than to rush to embrace a reason which has the effect of avoiding the issue. This is a pressing matter that needs resolution. At the very least we should address the appellant’s argument that the chancellor was not elected to preside over a criminal jury trial, which was expressly raised at trial. The State does not argue the merits of this case but only lack of a specific objection. I would ask for rebriefing of the jurisdictional issue by the State and consider the merits.

Newbern, J., joins.