text:
    Johnny LAWHON, JR. v. STATE of Arkansas
    CR 95-1276
    940 S.W.2d 475
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      Dale Eugene Adams, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   Per Curiam.

The appellant, Johnny Lawhon, Jr., was convicted of theft by receiving, possession of a controlled substance with intent to deliver, and criminal use of a prohibited weapon. He was sentenced to five years, ten years, and five years, respectively. The record of Lawhon’s sentencing in open court is silent as to whether the trial judge specified whether the sentences would be served concurrently or consecutively. The judgment and commitment order, however, indicated that the sentences would be served consecutively. The Court of Appeals affirmed Lawhon’s conviction and sentence in Lawhon v. State, CACR 92-1297, (November 17, 1993). Lawhon subsequently filed a petition for postconviction relief in the Jefferson County Circuit Court. Among other grounds for relief alleged in the petition, Lawhon argued that he was not present when the trial judge pronounced that his sentences should run consecutively and further, that the trial judge improperly ordered that the sentences be served consecutively.

The Jefferson County Circuit Court, with a different judge than the judge who sentenced Lawhon, conducted two hearings on Lawhon’s claims. The first hearing took place on February 16, 1995. At the conclusion of that hearing, the circuit judge denied relief on all grounds but the sentencing issue. With regard to the sentencing issue, two of the State’s witnesses testified that Lawhon was present when the judge pronounced that the sentences would be served consecutively. One of the witnesses testified that the judge stated that the sentences would run consecutively because “he believed that it was the jury’s intention that they run consecutively.” Lawhon testified that he left the courtroom before there was any discussion about how the sentences would be served. The circuit court concluded that while there was conflicting testimony on whether Lawhon was present, the transcript indicated that the proceedings adjourned prior to the court’s pronouncement. Accordingly, the circuit court granted Lawhon leave to request that he be resentenced in open court.

Lawhon requested resentencing, and he moved to serve the sentences concurrently. The circuit court resentenced him to the same prison term for each of his convictions, and it ordered that the sentences be served consecutively. The circuit court set forth the following rationale for his decision:

Not having presided over the trial of this case, I am really in the dark about what to do. . . .Normally, the judge who presides over the trial makes this decision based on what he heard about the facts of the case at trial. I do not have the benefit of any of that. I did not preside at this trial. I have not reviewed the transcript that was used on appeal or the abstract of that transcript. . . .
In the absence of any overwhelming reason to the contrary, I think I must ratify the trial court’s decision, who was in a much better position to have made that determination. For those reasons, I deny the request to change the sentences from consecutive to concurrent.

Lawhon appeals the circuit court’s order which denies his request for concurrent sentences. In the appeal, he argues that the circuit court did not exercise any discretion when he decided to run the sentences consecutively. The State, in response, argues that Lawhon’s argument should have been raised in his direct appeal, and for that reason, is not a cognizable argument under Rule 37. Lawhon’s argument is well-taken, and we reverse and remand the case for resentencing.

Ark. Code Ann. § 5-4-403 (Repl. 1993) provides that when multiple sentences of imprisonment are imposed for a defendant convicted of more than one offense, the sentences shall run concurrently unless the court orders the sentences to run consecutively. We have previously held that the decision of whether to run the sentences consecutively or concurrently is a matter that lies solely in within the province of the trial court. Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995). In sentencing, however, there must be an exercise of judgment by the trial judge, and not a mechanical imposition of the sentence suggested by the jury in every case. Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980). For example, we have disapproved of the practice of ordering that sentences be served consecutively because the trial judge perceived such an order to be consistent with the intention of the jury. Acklin, supra.

In this case, the circuit judge who resentenced Lawhon clearly did not exercise any discretion in his decision to run the sentences consecutively. Rather, he ratified the decision of the trial judge, whose own exercise of discretion, in light of the absence of any transcript of the pronouncement of consecutive sentences, is somewhat in doubt. The circuit court undertook the matter of resentencing, and for that reason, was bound to exercise discretion in his decision concerning how the sentences would be served.

While the State is correct that Lawhon’s argument should have been raised on direct appeal, we find that he did not have the opportunity to do so. The transcript of the trial indicates that the proceedings adjourned prior to the court’s pronouncement that the sentences would run consecutively. With no indication to the contrary, Lawhon was correct to assume that the sentences would be served concurrently. He did not have the opportunity, therefore, to object to the consecutive sentences until he received the judgment and commitment order. We have often held that an issue not raised at trial cannot be argued on direct appeal. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992). Consequently, Lawhon’s first opportunity to raise the issue was in his petition for postconviction relief.

Reversed and remanded for resentencing.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Gloria Jean POLLETTA v. STATE of Arkansas
    CR 97-218
    939 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      Constance G. Grayson, for appellant.
    No response.
   Per Curiam.

Appellant, Gloria Jean Polletta, by her attorney, Constance G. Grayson, has filed a motion for a rule on the clerk. Appellant filed a timely notice of appeal from the denial of her petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. Her attorney admits by motion that the record was tendered late due to a mistake on her part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is therefore granted. McCready v. State, 325 Ark. 418, 924 S.W.2d 813 (1996) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Damond SANFORD v. STATE of Arkansas
    CR 96-908
    939 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      Willaim M. Howard, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Damond Sanford was convicted by a jury of capital murder and was sentenced to death by lethal injection. On September 4, 1996, Sanford’s attorney, William M. Howard, Jr., was granted an extension until October 14, 1996, to file his brief on appeal. On October 15, 1996, Howard was granted a second extension to file his brief by November .13, 1996. On November 14, 1996, Howard was granted a third extension to file his brief by December 13, 1996. Again, on December 17, 1996, Howard was granted a fourth and final extension to file a brief by January 12, 1997. On February 21, 1997, Sanford filed a motion for belated appeal, asking that he be allowed to file a belated brief. No brief was tendered with the motion, and Howard has not accepted responsibility for failing to timely file a brief on behalf of his client.

The motion for belated appeal is denied. William M. Howard, Jr., is hereby ordered to appear before this court on March 31, 1997, at 9:00 a.m. to show cause why he should not be held in contempt for his failure to file Sanford’s brief.


author: Per Curiam. Robert L. Brown, Justice,

text:
    Kenneth Monroe STRAWBRIDGE v. STATE of Arkansas
    CR 96-1237
    940 S.W.2d 477
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      Petitioner, pro se.

    No response.
   Per Curiam.

On March 8, 1996, Kenneth Monroe Straw-bridge was found guilty by a jury in the Circuit Court of Faulkner County of two felony offenses and three misdemeanors. Defendant Strawbridge was sentenced as a habitual offender to an aggregate se'ntence of 432 months’ imprisonment, i.e., thirty-six years. The judgment was entered of record on March 13, 1996. A notice of appeal was not filed within the thirty-day period for filing a notice provided by Rule 2(a)(1) of the Rules of Appellate Procedure — Criminal, and Mr. Strawbridge now seeks by pro se motion to proceed with a belated appeal of the judgment. He further seeks to have the record brought up for the purposes of the appeal.

Petitioner Strawbridge contends that Frank Shaw, the appointed attorney who represented him at trial, told him that he (Shaw) could not go further with the case and that Strawbridge should write the clerk of the supreme court for forms to perfect an appeal and to request appointment of counsel. When he did so, he was informed that this court does not provide forms to perfect an appeal. He then wrote to the circuit clerk who also declined to assist him. He urges that this court grant a belated appeal because his efforts clearly demonstrate that he desired to appeal.

On March 8, 1996, on the day petitioner was convicted and five days before the judgment was entered, an order was entered in the trial court relieving Mr. Shaw as counsel. The order bears petitioner’s signature, indicating that he was aware that Shaw was no longer representing him. Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel is not obligated to continue to represent a convicted defendant on appeal if permitted by the trial court to withdraw.

As Shaw had been relieved and had no obligation to perfect the appeal, the question is whether petitioner’s lack of familiarity with legal procedure excuses his failure to file a timely notice of appeal. We conclude that it does not. As we said in Gamer v. State, 293 Ark. 309, 737 S.W.2d 637 (1987),

. . .a lack of knowledge of the rules in itself does not constitute good cause for failure to file a timely notice of appeal. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); Grain v. State, 280 Ark, 161, 655 S.W.2d 425 (1983). . . .if merely declaring ignorance of the rules of procedure were enough to excuse lack of compliance, it would be just as well to have no rules since an appellant could simply bypass the rules by claiming a lack of knowledge.

We have consistently held that appellants, even those proceeding without counsel, are responsible for following procedural rules in perfecting an appeal. Merely declaring or manifesting a lack of familiarity with procedural rules does not remove the need to comply with appellate procedure and is not good cause to grant a belated appeal. See Hill v. State, 293 Ark. 310 (1987).

Motions denied.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. I would remand this matter to the trial court for a determination of whether Strawbridge was misled by his appointed counsel. Strawbridge contends that he was told by counsel that he could write the Supreme Court Clerk for forms to perfect his appeal. When he was told that the Supreme Court Clerk’s office did not have those forms, he wrote to the Faulkner County Circuit Clerk’s office. Again, he found that forms were not available. By that time, his appeal was either untimely or the deadline was fast approaching.

This is a credibility issue. If Strawbridge was misled by appointed counsel, that is good cause for a belated appeal in my judgment. If not, the motion should be denied. The situation is comparable to cases where the issue is whether a defendant requested counsel to file a notice of appeal. Typically, we remand those cases for a finding of fact by the trial court as to whether the request was made. I would do the same in the case at hand and remand the matter for a factual determination.

       The judgment was later amended to correct a clerical error with respect to the name of the attorney who represented the defendant.


text:
    O.C. WILLINGHAM v. STATE of Arkansas
    CR 96-1222
    939 S.W.2d 311
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      Charles L. Honey, for appellant.
    No response.
   Per Curiam.

Appellant, O.C. Willingham, by his attorney, Charles L. Honey, has filed an amended motion for rule on the clerk. His attorney admits that the record was tendered late due to an error on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Dan Chris IVY v. STATE of Arkansas
    CA CR 95-135
    939 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered March 19, 1997

      Job Serebrov, for appellant;

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

On March 17, 1997, we issued a per curiam order concerning Dan Chris Ivy’s motion to unseal a brief, motion to submit a petition under seal, and motion to strike the State’s response. We erroneously referred to the motions as if they concerned a petition to be submitted to this Court. The following is substituted in place of the order we handed down on March 17, 1997:

Dan Chris Ivy was convicted of third-degree battery. The conviction was affirmed by the Arkansas Court of Appeals. Certain medical records concerning the victim were maintained under seal by the Court of Appeals. Mr. Ivy moves to unseal those records so that his attorney may have access to them for the purpose of preparing a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. As an alternative, Mr. Ivy suggests that he be allowed access to the records but maintain their confidentiality by submitting his Rule 37 petition under seal.

The State has responded with an objection to unsealing the records, but it has no objection to allowing the petition to be submitted under seal. Mr. Ivy has moved to strike the State’s response because it was untimely. We decline to strike the State’s response.

We take no position whatever on whether Mr. Ivy should have had access to the records for his trial or appeal. Nor do we take any position on whether they should have been placed under seal. We note only that Mr. Ivy has suggested a means of accomplishing his purpose of getting the information before the Court which will hear his Rule 37 petition, and the State has agreed to it. We deny the motion to unseal the records in question. We grant permission to refer to the records in a Rule 37 petition and order that the records and any references to them not be released to anyone other than the Court, the parties to the Rule 37 petition, and the parties’ attorneys.


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

text:
    IN the MATTER of the ADOPTION of Baby Boy MARTINDALE
    96-1258
    940 S.W.2d 491
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      Wright, Lindsey & Jennings, by: Edgar J. Tyler, for appellants.

      Thurman, Lawrence and Heuer, by: Sam Heuer, for appellee.
   W.H.“Dub” Arnold, Chief Justice.

This case raises the issue of whether the Arkansas Rules of Civil Procedure Rule 41(a) voluntary nonsuit provision is applicable to adoption proceedings. Jurisdiction is proper pursuant to Rule l-2(a) (3) as an interpretation of the Arkansas Revised Uniform Adoption Act, Ark. Code Ann. § 9-9-201 et seq. (1993 & Supp. 1995), and the Arkansas Rules of Civil Procedure.

Appellee is the biological mother of Baby Boy Martindale who was born on March 22, 1995. Prior to her child’s birth, appellee contacted an adoption agency, Adoption Services, Inc., to make arrangements to place the child for adoption. On March 23, 1995, appellee signed a relinquishment of parental rights and a consent of adoption; both of these documents contained an acknowledgment signed by appellee that she understood she had ten (10) days to withdraw her consent. Appellee also signed an affidavit of paternity at that time; in the affidavit, she swore that she did not know the identity of the child’s father because her pregnancy was the result of a rape by an unknown assailant.

The ten-day withdrawal period passed without appellee withdrawing her consent. After the ten-day period, the child was placed in the custody of the appellants, and an adoption decree was entered.

On September 15, 1995, approximately six months after she had given her consent to the adoption, appellee filed a petition with the probate court to set aside the adoption. In her petition, appellee claimed the information in the sworn affidavit of paternity was false because she knew the identity of the father and that the circumstances she provided regarding her pregnancy were fraudulent. She also claimed that she had contacted the social workers at Adoption Services, Inc., during the ten-day withdrawal period to inform them that she was having second thoughts, but they intimidated her and instructed that she should not pursue her right to withdraw consent.

The appellants responded to the petition, denying the allegations of intimidation and claiming that the consent was valid. A hearing was scheduled to begin on July 17, 1996.

On June 12, 1996, the attorney of record for the appellee filed a motion with the probate court requesting to be relieved as appellee’s attorney. He claimed that the appellee had not responded to his communications, would not participate in the preparations for the proceeding, and had not complied with the arrangement for costs and fees. Appellants filed a response to the motion in which they did not object to the attorney’s withdrawal; however, in the response, appellants stated they would object to any motion for continuance.

The probate court held a hearing on the attorney’s motion on July 9, 1996. Appellee did not attend the hearing although her attorney gave a sworn statement that she had been given notice of the hearing. The probate court granted the attorney’s motion to withdraw.

On July 18, 1996, the originally scheduled hearing on the petition to set aside the adoption was held. Appellee’s former counsel made a special appearance on behalf of appellee, who had faded to obtain new counsel. Appellee offered a motion for a continuance; appellants objected. The probate court denied the motion ruling that it was appellee’s fault that she was not prepared for trial. Appellee then moved for a dismissal without prejudice pursuant to Rule 41(a). Appellants objected on the grounds that such procedure was not permissible because the adoption proceeding was a special proceeding and moved that the petition be dismissed with prejudice. The probate court granted the appellee’s motion to dismiss without prejudice, thus giving the appellee a year from the date of the order to refile her petition.

Appellants filed this appeal challenging the probate judge’s order dismissing the petition without prejudice. Appellants claim that the probate court erred in ruling that Rule 41(a) of the Arkansas Rules of Civil Procedure is applicable to adoption proceedings. Appellee claims that the right of voluntary dismissal is absolute and must apply to adoption proceedings.

This is a case of first impression, which requires interpretation of the Arkansas Revised Uniform Adoption Act, Ark. Code Ann. § 9-9-201 etseq. (1993 & Supp. 1995), and the Arkansas Rules of Civil Procedure. In matters of first impression requiring the interpretation or construction of an act of the General Assembly or a judicially created rule, it is this court’s responsibility to determine the meaning of the statute or rule in question. See, Arkansas DOH v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995); Peters v. State, 321 Ark. 276, 902 S.W.2d 757 (1995); Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993).

Rule 1 of the Arkansas Rules of Civil Procedure provides that the Rules of Civil Procedure “govern the procedure. . .in all suits or actions of a civil nature with the exceptions stated in Rule 81.” (Emphasis supplied.) Rule 81(a) excludes the application of the Rules “in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.” In Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556 (Ark. 1995), we found that the Rule 81(a) exception “is limited to special proceedings created exclusively by statute where a special procedure is appropriate and warranted.”

We have addressed the distinction between an “action” and a “special proceeding.” In Coleman v. Coleman, 257 Ark. 404, 407, 520 S.W.2d 239 (1974), we defined an action as “an ordinary proceeding in a court of justice by one party against another for the enforcement or protection of a private right or the redress or prevention of a private wrong.” All proceedings which are not ordinary proceedings are “special proceedings” created exclusively by statute.

In Poe v. Case, 263 Ark. 488, 490, 565 S.W.2d 612, 613 (1978), we determined that adoptions are “special proceedings” without utilizing the label “special proceeding.” In Poe, we found that “[t]here is no mention of adoption, child custody or visitation rights in the Arkansas Constitution. Jurisdiction of adoption proceedings has been vested in the probate court by statute. Adoption proceedings were unknown to the common law, so they are governed entirely by statute.”

Although we have not addressed the specific issue of whether the Rules of Civil Procedure apply to adoption proceedings, we have determined that the Rules do not apply to other special proceedings. In Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981), a will contestant appealed from a probate court order dismissing her contest with prejudice on the contention that the contest should have been dismissed without prejudice. We upheld the probate court order and determined that a dismissal without prejudice pursuant to Rule 41 (a) is not an appropriate procedure in a will contest. We noted that will contests are special proceedings to which the rules of civil procedure do not apply. We stated:

“It [the will contest] does not constitute a civil action within ARCP, Rules 2 and 3. A will contestant cannot take a nonsuit under Rule 41, because such a contest is not an independent proceeding in itself. It would seriously disrupt the administration and distribution of estates if a will contest could be dismissed voluntarily or without prejudice, and refiled at some indefinite later date.”

Id. at 169-70. See, Garret v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987) (elections are special proceedings to which the Arkansas Rules of Civil Procedure do not apply).

As we found in Poe, adoption was not known in common law and it was created entirely by statute, so it is a “special proceeding.” We now specifically follow the Screeton decision in holding that the Rules of Civil Procedure are not applicable to adoption proceedings because they are special proceedings.

The Arkansas Revised Uniform Adoption Act contains a one year statute of limitations for challenging adoption decrees. Ark. Code Ann. § 9-9-216(b)(l) (1993 & Supp. 1995). Specifically, the statute provides:

“Subject to the disposition of an appeal, upon the expiration of one (1) year after the adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter . . . .”

(Emphasis supplied.)

We have held that the legislature’s one-year rule must be applied strictly in order to “ensure adoption decrees obtained under the law possess that necessary and required finality so that an adoptive parent is not freed of the parental obligations he or she has willingly undertaken.” Martin v. Martin, 873 S.W.2d 819 (Ark. 1994). In quoting commentary from the Uniform Revised Adoption Act which discusses the importance of the one year limit, the Martin opinion further states, “the policy of stability in a family relationship. . . outweighs the possible loss to a person [the natural parent] whose rights are cut off [even in instances of] fraud and ignorance.” Id, at 822.

Clearly, adoption is a special proceeding with appropriate and necessary special procedures enacted to protect significant public policy concerns such as the rights of adoptive parents and minor children to establish a stable and secure family relationship. The Arkansas Revised Uniform Adoption Act’s one-year statute of limitations provides a special procedure which cannot be annulled by Rule 41(a) and the savings statute that allows an action dismissed without prejudice to be refiled within one year of the dismissal. Ark. Code Ann. § 16-56-126 (1987).

The probate court was without authority to grant Appellee’s motion for dismissal without prejudice and to find that Appellee could refile her claim at a later date. Allowing such a challenge after the appellants have had custody of Baby Boy Martindale for nearly two years would effectively ignore the legislative intent and nullify the plain meaning of Ark. Code Ann. § 9-9-216(b) by allowing the petition to be filed after the statute of limitations has expired.

Accordingly, the order of the probate court granting dismissal without prejudice was without authority; the dismissal should have been with prejudice. Because appellee does not have the right to refile the petition to set aside the adoption decree, we reverse and dismiss.

Reversed and dismissed.

Imber, J., not participating.


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

text:
    Ledell LEE v. STATE of Arkansas
    CR 96-553
    942 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997
    [Petition for rehearing denied May 5, 1997.]

      Montgomery, Adams & Wyatt, P.L.C., by; Dale E. Adams, for appellant.

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

Twenty-six year-old Debra Reese was found brutally murdered in her home at 212 Cherry Street in Jacksonville on February 9, 1993. She had been beaten some thirty-six times with a tire thumper, a tool resembling a baseball bat that her husband Billy, a truck driver, had given to her for protection while he was away. Bruises on Debra’s face and neck indicated that she had also been strangled. The appellant, Ledell Lee, was arrested and charged with Reese’s murder. Following a jury trial, he was convicted of capital murder and sentenced to death by lethal injection. He raises seven points on appeal. We find no merit to any of his arguments and affirm the conviction and sentence.

Lee does not challenge the sufficiency of the evidence, so we need not recite the facts in great detail. The State’s theory at trial was that Lee committed the murder for pecuniary gain, and that he had searched the victim’s neighborhood until he found the perfect target for his crime.

William McCullough Jr. lived near the victim’s house and had been home on the morning in question. Sometime between 10:00 a.m. and 11:00 a.m., he heard a knock at his door. McCullough went to the door and was met by a man who asked to borrow some tools. McCullough gave the man a driver ratchet and a socket, which he promised to return. The man did not return the tools.

At approximately 10:50 a.m. on the morning of the murder, Katherine Williams, the victim’s mother, received a phone call from her daughter, who lived some four or five houses away. A man had just knocked on the victim’s door, asked if her husband was home, and inquired about borrowing some tools. When the victim replied that she had no tools, the man left. According to Katherine, her daughter told her that she was scared and “did not trust this guy.” The victim promised her mother that she would be at her house as soon as she finished curling her hair. Her daughter never arrived.

Andy Gomez lived across the street from the victim, and was also home on the morning in question. While looking out his front window, he saw a man standing at the front door of the victim’s residence. He watched the man grab the screen door and “make a B-line inside just real fast.” Approximately twenty minutes later, the man exited Debra’s residence. According to Gomez, the man made rapid head movements, as if he was checking to see if he was being watched. Suspicious, Gomez got in his car to follow the man. He caught up with him on a nearby street, where he observed the man talking to a female with spirals or braids in her hair.

Glenda Pruitt lived at 128 Galloway Circle on the date in question. A man she had seen four or five times and knew as “Skip” walked up her street. Glenda, who wore her hair in long braids, had a short conversation with Skip as he passed by her house. McCullough, Gomez, and Pruitt identified Lee in a photographic lineup as the man they had seen in the victim’s neighborhood on the morning of her murder.

Debra’s body was discovered in her bedroom at approximately 1:38 p.m. that same date. Three one hundred dollar bills that Debra’s father, Stephen Williams, had given to her were missing from her wallet. This money had been part of a larger stack of crisp new bills Williams received in sequential order from the Arkansas Federal Credit Union. At Lee’s trial, the State offered evidence that, at 1:53 p.m. on the day of the murder, Lee paid a debt at the Rent-A-Center with a one-hundred dollar bill. Of the three one-hundred dollar bills that the Rent-A-Center received on February 9, one of the bills bore a serial number that was two bills away from one of the bills that the victim’s father had turned over to police.

I. Selection of jury panel

For his first allegation of error, Lee asserts that the use of voter registration records to select the jury panel in his case denied him a jury comprised of a true cross-section of the community. At the end of voir dire, Lee, who is African-American, observed that only ten of the seventy-five venirepersons assembled were African-American. Lee claims that the State failed to rebut his statistical evidence of systematic exclusion of African-Americans from the jury panel in his case.

Selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996). It is axiomatic that the State may not deliberately or systematically deny to members of a defendant’s race the right to participate, as jurors, in the administration of justice. Davis v. State, supra; Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). In order to establish a prima facie case of deliberate or systematic exclusion, a defendant must prove that: (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357 (1979).

In this case, the first prong of the Duren test is clearly met, as African-Americans represent a distinctive group in the community. Regarding the second prong, Lee offered statistical evidence compiled from the 1990 census that Pulaski County has a population of 349,660, of which 58,280 are African-American citizens over age eighteen. Of the 349,600, the county has 200,297 registered voters. Lee also proffered the testimony of a mathematics professor that there was a two-percent chance that the jury panel in Lee’s case could have been randomly selected from the population of Pulaski County.

Lee did not meet his burden of proof by merely showing that the jury venire called in his case was not racially representative of the community. Davis v. State, supra; Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). The second prong of the Duren test requires a fair and reasonable representation of the distinctive group in every venire from which juries are selected, not just the particular venire summoned at his trial. See Danzie, 326 Ark. at 43, citing Duren, 439 U.S. at 364-66. Lee has not provided us with any evidence as to the number of African-Americans on every jury venire in Pulaski County.

In order to satisfy the final prong in Duren, Lee must produce evidence that demonstrates that the alleged misrepresentation of African-Americans is due to a systematic exclusion in the jury-selection system itself. Lee acknowledges in his brief our previous holdings that, where the venire is chosen by computer, using the random-selection process maintained by Ark. Code Ann. § 16-32-103 (Repl. 1994), there is no possibility of a purposeful exclusion of African-Americans. Because Lee failed to satisfy the second and third elements of the Duren test, the trial court did not err in denying his motion to prohibit the use of voter registration records to select the jury panel in his case.

II. Destruction of blood evidence

Lee’s second point on appeal is that the capital murder charge should have been dismissed due to the destruction of possibly exculpatory evidence. When Lee was arrested and taken into custody on the day of the murder, among the items police seized from him was a pair of Converse tennis shoes he was wearing. Kermitt Channel!, a serologist with the State Crime Lab, examined the shoes and observed what he believed to be a small spot of blood on the sole of the left shoe, and another spot on the tongue of the right shoe. Channell performed what he termed a “Takayama test” on the shoes, which confirmed the presence of blood, but consumed the entire sample, thus removing the opportunity for independent analysis by the defense. Lee presented the testimony of Robert Reis, a professor of biochemistry and molecular biology, who testified that, while Channell had done his job “quite thoroughly,” the State Crime Lab’s guidelines needed reevaluation since the advent of more sensitive methods of DNA analysis. According to Reis, other tests could have been performed on the shoes without destroying the sample.

Lee claims that his counsel should have been notified that the blood evidence on the shoes was about to be destroyed. He further asserts that the State breached its duty under Brady v. Maryland, 373 U.S. 83 (1963), to preserve potentially exculpatory evidence. According to Lee, the State’s failure to preserve enough of the sample on the shoes so that he could conduct his own tests deprived him of due process guaranteed by the federal and state constitutions.

We addressed a similar claim in Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991). In Wenzel, a rape case, the defendant argued that his due process rights were violated when FBI technicians consumed all of the semen samples found on the victims’ vaginal swabs. We emphasized that the State’s duty to preserve evidence is- limited to that which “might be expected to play a significant role in the suspect’s defense,” and that the “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Wenzel, 306 Ark. at 532-3, quoting California v. Trombetta, 476 U.S. 479, 488-9 (1988). We further explained that, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Wenzel, 306 Ark. at 533, quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

In this case, Lee makes the broad-brushed assertion in his brief that “the potential value of the evidence to the defense was so obvious that the decision to allow it destroyed suggests bad faith.” This bare contention, without supporting facts, does not demonstrate that the State acted in bad faith in destroying the evidence. To the contrary, Channell testified that he performed the test in accordance with established laboratory guidelines, and that he did not contact the prosecutor or defense counsel to inform them that the sample on the shoes could be consumed, as it was not standard operating procedure to do so. While Lee was free to argue to the jury that alternative testing might have preserved the sample, “the police do not have a constitutional duty to perform any particular tests.” Youngblood, 488 U.S. at 59. Because Lee has made no showing that the blood evidence on the shoes possessed any exculpatory value before it was.destroyed, or that the State in bad faith failed to preserve the sample, Lee’s due process claim was properly rejected by the trial court.

Alternatively, Lee argues that he was entitled to an order suppressing the use of the shoes as evidence for the State. However, he neither cites authority nor makes a convincing argument for suppression. We have been careful not to consider arguments where an appellant offers no citation of authority or convincing argument and where it is not apparent without further research that the argument is well taken. Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997).

III. Uncharged misconduct evidence

During the State’s case-in-chief, Glenda Pruitt testified that she saw Lee shortly after the murder when he passed in front of her house, which was located near the victim’s residence. According to Pruitt, she asked Lee, “Where’s the fire?” to which he responded, “Well, you are always asking me for weed.” Without objection, Pruitt testified that Lee responded that he did not use marijuana, but used cocaine.

During cross-examination, Lee’s counsel questioned Pruitt regarding her beliefs and practices as a Rastafarian, particularly with regard to the use of marijuana. He attacked her recollection of her conversation with Lee and whether that recollection was impaired by her use of marijuana. During redirect examination, over Lee’s objection, the trial court permitted the State to present the entire conversation between Pruitt and Lee. According to Pruitt, she asked Lee whether he had cocaine “running all through [his] veins,” to which he responded, “Yes. It is running all through me.” Pruitt then stated, “Don’t you know it (cocaine) is poison?” to which Lee responded, “I’m going to get some now.”

Lee claims that Pruitt’s testimony during redirect was erroneously permitted in violation of A.R.E. 404(b). However, under this rule, evidence of other crimes, wrongs, or acts may be admissible to prove motive. We have said that, when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). The State is entitled to produce evidence showing circumstances which explain the act, show a motive for killing, or illustrate the accused’s state of mind. Echols v. State, supra; Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). The State’s théory at trial was that Lee murdered the victim for pecuniary gain, which was supported by evidence that money was missing from the victim’s wallet. The State was able to produce evidence tying only one of the three missing one hundred dollar bills to Lee. Thus, the State’s evidence that Lee was on his way to obtain drugs shortly after the time of the murder was relevant to explain a possible motive for the killing — that he planned to use part of the money he took from the victim to purchase drugs — and to illustrate his state of mind. As we afford great deference to a trial court’s ruling on relevancy and prejudicial impact, we cannot say that the trial court in this case abused its discretion in allowing the State to elicit evidence regarding Pruitt’s conversation with Lee.

IV. Overlap of offenses

Lee next argues that the overlap between the capital murder and first-degree murder statutes violates the Eighth and Fourteenth Amendments. Particularly, he claims that these statutes overlap in their elements, are void for vagueness, fail to narrow the class of offenders, and grant unbridled discretion to the prosecutor. We have decided this issue adversely to Lee’s position on many occasions, and adhere to these previous holdings. See Echols v. State, supra; Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, 116 S.Ct. 1436 (1995).

V. Victim-impact evidence

Lee challenges Arkansas’s victim-impact statute, Ark. Code Ann. § 5-4-602(4) (Repl. 1993), as violative of due process. He claims that, by enacting the statute, the legislature has improperly created a new aggravating circumstance. He further complains that there is no place in the statutory weighing process for the jury to consider victim-impact evidence. In making his argument, Lee asks us to reconsider our decisions in Kemp v. State, supra', and Nooner v. State, supra. We decline to do so. In Kemp, we explained that the jury could consider victim-impact evidence at the same time it considers the mitigating evidence introduced by the defendant. Kemp, 324 Ark. at 204-205, citing Payne v. Tennessee, 501 U.S. 808, 826 (1991). Recognizing that there are virtually no limits placed on the relevant mitigating evidence that a defendant may introduce on his behalf, we noted that the State could legitimately conclude that the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether to recommend that the death sentence be imposed. Kemp, 324 Ark. at 205, citing Payne, 501 U.S. at 827. We further recognized that the jury need not be instructed how to weigh any particular fact in the capital-sentencing decision, as a contrary rule would require a mandatory sentencing scheme. Kemp, 324 Ark. at 205, citing Tuilaepa v. California, 114 S.Ct. 2630, 2639 (1994).

We recognized in Kemp that, when evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. Kemp, 324 Ark. at 205. In this case, Lisa Buchan, the victim’s sister, was the State’s only victim-impact witness. She testified that her sister and mother spent most of every day together. Her parents were on antidepressants after the incident, and her mother was under psychiatric care. Prior to her death, the victim lived with her husband of seven months and her seven-year-old son from a previous marriage, and was trying to have another child. Lisa, who was pregnant during the trial, stated that she would name her child after her sister. She also related the painful experience of selecting her sister’s wig for her funeral. We cannot agree that Lisa’s testimony was so unduly prejudicial that it rendered Lee’s trial fundamentally unfair.

VI. Arbitrary and discriminatory

Lee filed a written motion to prohibit the State from seeking the death penalty in his case because, according to him, the death penalty has been historically applied arbitrarily and capriciously and in a racially discriminatory fashion. In support of his argument, he cites a law review article and references the fact that he is black and the victim was white. See “Patterns of Deaths: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization,” 37 Stan. L. Rev. 27 (1984). We considered this argument and law review article in Nooner v. State, supra. In Nooner, we emphasized the United States Supreme Court’s requirement that a discriminatory purpose must be proved on the part of the decision-maker in the defendant’s particular ' case. McClesky v. Kemp, 481 U.S. 279 (1987). As in Nooner, Lee’s allegations are very general. He has offered no proof to show how his due process or equal protection rights were violated by a biased or arbitrary judge or jury. Thus, due to absence of proof of discriminatory purpose, we cannot say that the trial court erred in denying Lee’s motion.

VII. Severance

Finally, Lee presents the argument that the trial court erred in denying his motion for severance of the crimes relied on by the State as aggravating circumstances. He claims that the failure to sever these offenses violated Rules 21 and 22 of the Arkansas Rules of Criminal Procedure.

During the penalty phase, the State offered evidence that Lee had previously committed three other felonies, elements of which included the use or threat of violence to another person or the creation of a substantial risk of death or serious injury to another person. See Ark. Code Ann. § 5-4-604(3) (Repl. 1993). The State offered the testimony of three witnesses, all of whom testified that Lee had raped them. The fourth aggravating circumstance alleged was that Lee committed the murder for pecuniary gain. The jury unanimously found that all four aggravating circumstances existed beyond a reasonable doubt at the time of the murder. They also found that there was evidence that Lee’s father abandoned him from birth, that he had no real father, and that he came from a dysfunctional family. However, the jury unanimously found that this evidence did not constitute a mitigating circumstance. The jury concluded that the aggravating circumstances'justified beyond a reasonable doubt a sentence of death.

Rules 21 and 22 of the Arkansas Rules of Criminal Procedure pertain to the joinder and severance of offenses and defendants. Particularly, Rule 22.2 provides that, whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, and the offenses are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses. In this case, Lee was charged by felony information with a single count of capital murder. In this charging instrument, Lee was accused of the premeditated and deliberate killing of Debra Reese. The three offenses relied on by the State as aggravating circumstances during the penalty phase were not included in the felony information, and were not joined at Lee’s trial with the capital murder charge. Quite simply, the rules regarding severance do not apply, as there were no charges to sever from the capital murder charge.

Lee further claims that the admission of this evidence violated his due process rights and subjected him to cruel and unusual punishment in violation of the federal and state constitutions. However, he cites no convincing authority or facts in support of his bare assertion of error. Again, we will not consider such unsupported arguments on appeal. Matthews v. State, supra.

Additionally, Lee claims that the trial court should have viewed the evidence of the three previous felonies in camera before the evidence was presented to the jury during the penalty phase. In support of his argument, Lee cites Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). In that case, the State failed to prove beyond a reasonable doubt that Miller had previously committed a crime involving violence. To the contrary, in this case, the State offered proof that Lee had been convicted of one of the rapes. Regarding the other two offenses, the State offered testimony of the two victims as well as testimony from an FBI agent who testified that the probability of the rapist being someone other than Lee was one in one billion in one of the cases, and one in eighty billion in the other. In light of this evidence, the State proved beyond a reasonable doubt that Lee had committed these offenses. As such, Lee cannot demonstrate that he was prejudiced by the absence of an in camera hearing.

VIII. Other errors

The transcript of the record in this case has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), which requires, in cases in which there is a sentence of life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a) (1987). None have been found.

Affirmed.

Newbern, J., concurs.

David Newbern, Justice, concurring.

We often refer to the “safeguards” and “protections” that we say preclude the arbitrary imposition of the death penalty. See, e.g., Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983). We reject constitutional challenges to our death-penalty statutes and boast that the statutes are carefully drawn and that they comply with the mandates of the United States Supreme Court by curtailing the jury’s discretion in meting out “this unique penalty,” Gregg v. Georgia, 428 U.S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), quoting Furman v. Georgia, 408 U.S. 238, 310 (1972)(Stewart, J., concurring), and by permitting “the sentencer to make a principled distinction between those who deserve the death penalty and those who do not.” Lewis v. Jeffers, 497 U.S. 764, 776 (1990).

The majority opinion in the case at bar may well sap some of the pride we have taken in our laws promoting the orderly narrowing of the class of persons eligible for the death penalty. Today we sanction, as we have done before, the admission of victim-impact evidence in the sentencing phase of a death-penalty case. Although I concur in the affirmance of Mr. Lee’s conviction and sentence, I write separately to express my reservations about the use of victim-impact evidence in capital cases because it may frustrate the statutory scheme designed to provide, as it must, “adequate safeguards against the capricious and freakish imposition of the death penalty.” Collins v. State, 261 Ark. 195, 202, 548 S.W.2d 106, 110 (1977).

The death-penalty sentencing procedures that we so often have sustained are as follows. The jury in a capital-murder case is required to impose the death penalty if it unanimously returns written findings that:

(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.

Ark. Code Ann. § 5-4-603 (a) (Repl. 1993).

As we have held, this statute means that “[a] jury cannot impose a sentence of death until it specifically finds that all three parts of the statute apply.” Hill v. State, 289 Ark. at 397, 713 S.W.2d at 238. Even if the jury finds beyond a reasonable doubt that aggravating circumstances exist and outweigh any mitigating circumstances, “it is still free to return a verdict of fife without parole, simply by finding that the aggravating circumstances do not justify a sentence of death.” Id. quoting Clines v. State, supra. Thus, the imposition of the death penalty is not mandatory. Moreover, “the trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it,” id., and “[w]e have demonstrated our readiness to modify the death sentence where it is imposed capriciously ... or where death is unduly harsh under the circumstances.” Clines v. State, 280 Ark. at 84-85, 656 S.W.2d at 687 (citations omitted).

The aggravating circumstances that a jury may consider are strictly limited to the following nine:

(1) The capital murder was committed by a person imprisoned as a result of a felony conviction;
(2) The capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction;
(3) 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;
(4) The person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim or caused the death of more than one (1) person in the same criminal episode;
(5) The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;
(6) The capital murder was committed for pecuniary gain;
(7) The capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any government or political function;
(8) (A) The capital murder was committed in an especially cruel or depraved manner.
(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as 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. “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder; or
(9) The capital murder was committed by means of a destructive device, bomb, explosive, or similar device which the person planted, hid, or concealed in any place, area, dwelling, building, or structure, or mailed or delivered, or caused to be planted, hidden, concealed, mailed, or delivered, and the person knew that his act or acts would create a great risk- of death to human life.

§ 5-4-604 (Supp. 1995).

Although “the jury’s consideration of aggravating circumstances is limited to those enumerated,” the jury’s “consideration of mitigating circumstances is not necessarily so restricted.” Giles v. State, 261 Ark. 413, 420, 549 S.W.2d 479, 483 (1977). The General Assembly has provided that

[mjitigating circumstances shall include, but are not limited to, the following:
(1) The capital murder was committed while the defendant was under extreme mental or emotional disturbance;
(2) The capital murder was committed while the defendant was acting under unusual pressures or influences or under the domination of another person;
(3) The capital murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse;
(4) The youth of the defendant at the time of the commission of the capital murder;
(5) The capital murder was committed by another person and the defendant was an accomplice and his participation relatively minor;
(6) The defendant has no significant history of prior criminal activity.

Ark. Code Ann. § 5-4-605 (Repl. 1993). See Sheridan v. State, 313 Ark. 23, 38, 852 S.W.2d 772, 779 (1993) (stating “the defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense”)(citations omitted)(emphasis added).

The statutory provisions are quoted at length to demonstrate exactly what the jury is permitted to consider in determining whether to impose the death sentence. The statutes prescribe a tidy formula. In determining whether the death penalty is justified, the jury must consider only whether the evidence has demonstrated beyond a reasonable doubt that (1) one or more of the enumerated aggravating circumstances exist in the case at hand; (2) the aggravating circumstances outweigh any mitigating circumstances; and (3) the aggravating circumstances justify the imposition of the death penalty.

When the jury is requested to impose the death penalty in a capital case, its sole task during the penalty phase is to evaluate the evidence of aggravating and mitigating circumstances and make certain findings with respect to that evidence. Nothing more, and nothing less, may figure into the equation according to § 5-4-603(a). Therefore, as our cases have intimated, the Trial Court should allow into evidence during the sentencing phase of a death-penalty case only that which is relevant to the aggravating and mitigating circumstances alleged by the parties. See Hendrickson v. State, 285 Ark. 462, 466, 688 S.W.2d 295, 298 (1985)(stat-ing “the evidence offered must be probative of some issue to be properly considered in the penalty phase”). Where the State seeks the death penalty, the only issue that is “properly considered” by the sentencing-phase jury is whether aggravating circumstances exist, whether they justify the imposition of the death penalty, and whether they outweigh the mitigating circumstances. Thus, the evidence presented to the jury during the sentencing phase of a death-penalty case should be relevant to these issues.

This is the regime that we have found to be constitutionally sound. As we have held, a sentencing structure — such as the one created by Ark. Code Ann. §§ 5-4-603 (a) to 5-4-605 and their predecessors — that permits the jury to impose the death penalty after considering evidence of aggravating and mitigating circumstances and making certain findings with respect to that evidence “provides adequate guidelines, so limiting and directing the exercise of the jury’s discretion that an arbitrary, capricious, wanton or freakish exercise of that discretion is improbable.” Collins v. State, 261 Ark. at 203, 548 S.W.2d at 111. This particular procedure, we have found, passes constitutional muster because it “genuinely narrow[s] the class of persons eligible for the death penalty and . . . reasonably justifies] the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Lowenfield v. Phelps, 484 U.S. 231, 244 (1988), quoting Zant v. Stephens, 462 U.S. 862, 877 (1983). According to our cases, it is entirely appropriate for the jury to perform the function of narrowing the class of death-eligible defendants at the penalty phase of a bifurcated trial. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992).

My concern is that the admission of victim-impact evidence in capital sentencing proceedings pursuant to Ark. Code Ann. § 5-4-602(4) (Repl. 1993) may, without appropriate limitations, make undesirable and unintended changes in the accepted method by which juries in Arkansas have determined whether the “unique penalty” of death is justified in a given case.

As noted, § 5-4-603 (a) mandates that the jury’s decision to impose the death penalty rest solely upon a careful evaluation of the evidence, if any, establishing aggravating and mitigating circumstances as they are defined by §§ 5-4-604 and 5-4-605. The evidence that a jury receives should be relevant to the existence, or non-existence, of aggravating or mitigating circumstances. Despite the logic of this position, and despite the clear mandate of § 5-4-603(a), § 5-4-602(4) permits, without restriction, the admission of victim-impact evidence in the sentencing phase of a death-penalty case. Section 5-4-602(4) provides as follows:

In determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in § 5-4-604, any mitigating circumstances, or any other matter relevant to punishment, including, but not limited to, victim impact evidence, provided that the defendant and the state are accorded an opportunity to rebut such evidence. Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but mitigation evidence must be relevant to the issue of punishment, including, but not limited to, the nature and circumstances of the crime, and the defendant’s character, background, history, and mental and physical condition as set forth in § 5-4-605. The admissibility of evidence relevant to the aggravating circumstances set forth in § 5-4-604 shall be governed by the rules governing the admission of evidence in trials of criminal matters. Any evidence admitted at the trial relevant to punishment may be considered by the jury without the necessity of reintroducing it at the sentencing proceeding. The state and the defendant or his counsel shall be permitted to present argument respecting sentencing. The state shall open the argument. The defendant shall be permitted to reply. The state shall then be permitted to reply in rebuttal.

Ark. Code Ann. § 5-4-602(4) (Repl. 19,93) (emphasis added).

The jury’s ability to perform its duty under § 5-4-603 (a) could be undermined by the admission of victim-impact evidence pursuant to § 5-4-602(4). Section 5-4-603(a) requires the jury to consider only evidence of aggravating and mitigating circumstances in deciding whether to impose the death penalty. In the sentencing phase of a death-penalty case, therefore, the jury, in performing the “narrowing function” described above, should be allowed to consider only that evidence that tends to establish the existence, or nonexistence, of aggravating and mitigating circumstances.

Instead, the jury in the penalty phase is permitted by § 602(4) to consider as well any victim-impact evidence that is merely “relevant to punishment.” The danger posed by this language is that it coüld be construed as permitting the introduction of victim-impact evidence that, while “relevant to punishment” in the abstract, has absolutely no bearing on the only question that the jury is supposed to consider in a death-penalty case — that is, whether imposition of the death penalty is justified under § 5-4-603(a) in light of the evidence concerning aggravating and mitigating circumstances.

If victim-impact evidence is irrelevant to this determination, then its admission in the sentencing phase would unquestionably interfere with the jury’s ability to perform its narrowing function under § 603(a). The jury clearly should not be permitted to receive evidence that has no tendency to make the existence of aggravating or mitigating circumstances “more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401. Moreover, there is no question that §§ 603(a), 604, and 605 do not permit the jury to rely on victim-impact evidence in determining whether aggravating circumstances exist, whether they justify the imposition of the death penalty, and whether they outweigh any mitigating circumstances. Furthermore, § 602(4), in providing for the admission of victim-impact evidence, did not create a “new” aggravating circumstance that could justify imposition of the death penalty under § 603(a). We said as much in Nooner v. State, 322 Ark. 87, 109, 907 S.W.2d 677, 689 (1995), and it is also evident that the fact that a murder had a certain “impact” on the victim or the victim’s survivors could not, under the U.S. Supreme Court’s death-penalty jurisprudence, constitute a valid aggravating circumstance because it would not “genuinely narrow the class of persons eligible for the death penalty” or “reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, supra. Every murder results in a deleterious impact on the victim or the victim’s survivors, and thus evidence establishing such an impact could not permit the jury to perform its narrowing function.

To be admissible in a capital sentencing procedure, victim-impact evidence must be direcdy relevant to an aggravating or mitigating circumstance. Although § 5-4-602(4) provides that victim-impact evidence may be presented if it is “relevant to punishment,” that language, at least in the context of a death-penalty case, should be read in conjunction with § 5-4-603(a), which requires the jury to consider only evidence bearing on aggravating and mitigating circumstances in determining whether to impose the death penalty. A relevancy-based limitation on the use of victim-impact evidence is not prohibited by the language of § 5-4-602(4). In fact, unless these statutes are interpreted as imposing this limitation, the statutes will have the absurd result of permitting the admission of evidence that can have no effect on the jury’s decision to impose the death penalty. In a death-penalty case, victim-impact evidence should not be admitted if it will distract the jury from completing the task assigned to it by § 603(a). Evidence that is irrelevant to an aggravating or mitigating circumstance would do just that.

The U.S. Supreme Court held in Payne v. Tennessee, 501 U.S. 808 (1991), that the Eighth Amendment to the U.S. Constitution imposes no per se bar to the introduction of victim-impact evidence in a capital sentencing proceeding. In the Payne case the Court held

that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

Payne v. Tennessee, 501 U.S. at 827. The Court reasoned that victim-impact evidence “is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities,” and that such evidence could reasonably assist the jury in “assessing] meaningfully the defendant’s moral culpability and blameworthiness.” Id. at 825. See generally K. Elizabeth Whitehead, Mourning Becomes Electric: Payne v. Tennessee’s Allowance of Victim Impact Statements During Capital Sentencing Proceedings, 45 Arjec. L. Rev. 531 (1992).

Although it is difficult to think of victim-impact evidence that might add to any of the statutory mitigating factors, perhaps such evidence could relate to one of the statutory aggravating factors, although it is hard to imagine how unless it would be admissible regardless as direct evidence of one of the statutory aggravating factors. Given the manner in which we have attempted to satisfy the constitutional requirement of narrowing the class of persons eligible for the death penalty, however, we should not allow victim-impact evidence in a capital sentencing proceeding unless it is directly relevant to the elements of mitigation and aggravation specified in the statutes. See, e.g., Lambert v. State, 1996 WL 744864 (to be reported at 675 N.E.2d 1060,_ (Ind. 1996)) (holding that, “in death penalty cases, the only admissible victim impact testimony is that testimony which is relevant to a statutory aggravating or mitigating circumstance”). See also Bivins v. State, 642 N.E.2d 928 (Ind. 1994).

In the case at bar, I have serious doubts whether the victim-impact evidence presented to the jury was relevant to any of the aggravating and mitigating circumstances raised by the parties. Mr. Lee did not, however, seek to exclude that evidence on the basis of relevancy. Likewise, on appeal, Mr. Lee raises no relevancy-based argument. He simply argues that the victim-impact statute violates due process and that we should reconsider our previous holdings affirming the validity of § 5-4-602(4). I agree that suppression of the victim-impact evidence in this case was not required on the basis of the arguments presented to the Trial Court and to this Court on appeal, and I therefore concur in the result reached by the majority.


author: David Newbern, Justice.

text:
    Lynda ALBRIGHT v. SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY
    95-1142
    940 S.W.2d 488
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      Neil V. Pennick and D. Scott Hickam, for appellant.

      Friday, Eldredge & Clark, by: Fran C. Hickman, for appellee.
   David Newbern, Justice.

This is an appeal from a summary judgment in favor of Southern Farm Bureau Life Insurance Company (SFB). The appellant, Lynda Albright, sued SFB for the proceeds of a policy which insured the life of her husband, Jerry Albright. On the ground that a monthly premium payment had not been made in the month prior to Mr. Albright’s death, SFB refused Ms. Albright’s demand for payment after the death of Mr. Albright. She alleged SFB was negligent in failure to submit a draft upon Mr. Albright’s bank account at a time, alleged to be specified in the insurance agreement, when funds sufficient to pay the premium would have been present. She also alleged that SFB thereby breached the insurance contract. In awarding summary judgment to SFB, the Trial Court rejected the contract claim, although it was not directly addressed. The Court also found “no proof” of negligence on the part of SFB. We hold there was sufficient evidence to present a genuine remaining issue of material fact as to negligence and as to breach of contract and thus that summary judgment should not have been granted. Ark. R. Civ. P. 56(c).

On March 5, 1985, Mr. Albright purchased a life insurance policy from SFB in the amount of $200,000. In accordance with the terms of the policy, Mr. Albright chose to make his premium payments on a monthly basis. The named beneficiary was Lynda Albright.

Mr. Albright executed a document giving First National Bank of Hot Springs authority to honor checks drawn on his account by SFB to pay the policy as if he had personally drawn them. The authorization allowed Southern to draft the premium payment from Mr. Albright’s account electronically.

As will be explained more fully below, the policy provided that the premium payments of $126.76 were to be made in advance of the anniversary date of the policy. In the case of monthly payments, that meant the payments were to be on the day of the month corresponding to the day of the month on which the policy was issued. According to testimony of an SFB official, Mr. Albright could have chosen a different day of the month to have his account charged, but he did not do so; therefore, the premium payments were due on the fifth day of each month for the ten-year period provided in the policy.

August 5, 1990, fell on a Sunday. The August 1990 draft apparently was prepared by SFB on Monday, August 6, but it was not submitted to the Bank until Tuesday, August 7, 1990. The draft was returned due to insufficient funds. Funds sufficient to make the premium payment were in the account through Monday, August 6, 1990. On Tuesday, August 7, however, the Bank debited Mr. Albright’s account $25.32 for payment of an order for printed checks, thus reducing the balance below the amount needed to cover the monthly SFB draft. The Bank, which was made a defendant but later dismissed from the litigation, allegedly chose to honor its draft rather than the one from SFB. The SFB draft was presented for payment again on August 10, 1990, but was again returned due to insufficient funds.

On August 16, 1990, SFB issued a letter to Mr. Albright informing him that the check for his premium was returned due to insufficient funds and granting him fifteen days to make the payment. The letter also provided that, in the event the monthly premium was not paid within fifteen days, Mr. Albright would be required to pay the full annual premium. On September 4, 1990, an annual premium notice was prepared requesting payment of the annual premium. The premium was not paid. On September 4, 1990, Mr. Albright was admitted to a hospital where he remained until his death on September 9, 1990.

A party moving for summary judgment must show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56(c). Pleadings, discovery responses, admissions, and affidavits, if any, are to be considered in the light most favorable to the non-moving party. Keller v. Safeco, 317 Ark. 308, 877 S.W.2d 90 (1994); Green v. National Health Laboratories, Inc., 316 Ark. 5, 870 S.W.2d 707 (1994).

The Trial Court had before it the insurance policy, discovery responses, and responses to requests for admissions. Subsection 1.1 of the Definitions section of the policy states that the home office of SFB is at Jackson, Mississippi. Subsection 1.2 provides that the date of issue, stated on the schedule page is the date from which premium due dates will be measured. The schedule page states the date of issue as March 5, 1985. Subsection 3.1 of the Premiums and Reinstatement section of the policy provides, in relevant part, that “All payments are due and payable in advance at the Company’s home office. [Emphasis supplied.]” Mr. Albright’s monthly premium payment was, therefore, due on or before August 5, 1990.

By letter dated September 4, 1990, the date Mr. Albright entered the hospital, SFB informed Mr. Albright that the entire annual premium had become due as a result of his failure to make the monthly payment on time. SFB claims that the policy, according to its terms, lapsed on August 5, 1990, due to Mr. Albright’s failure to make the payment within a thirty-one-day grace period beginning that date.

In his deposition, SFB’s senior counsel, Randy L. Dean, stated that SFB had an obligation to draft Mr. Albright’s account in a manner “to keep the policy in effect,” and he explained that the date for submitting the drafts was selected by Mr. Albright, referring to the anniversary date of the policy. Also, in response to a request for admission, SFB admitted it had “requested to draw a draft on Mr. Albright’s bank account on or about August 7, 1990.”

With respect to its argument in favor of upholding the summary judgment on the negligence or tort claim, SFB relies on L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). In that case, the plaintiff alleged intentional acts on the part of the defendant, claiming that they constituted “tortious breach of contract.” In the course of the opinion, we said, “Generally, a breach of contract is not treated as a tort if it consists merely of a failure to act (nonfeasance) as distinguished from an affirmatively wrongful act (misfeasance).” We then characterized the action as one in contract, thus holding that punitive damages were improperly awarded to the plaintiff.

In at least two cases decided subsequent to the Cole decision we have upheld tort claims arising out of contractual relationships where the conduct of the defendants was of the sort that could be characterized as nonfeasance. Westark Specialties, Inc. v. Stouffer Family Ltd. Partnership, 310 Ark. 225, 836 S.W.2d 354 (1992) (lessor’s failure to maintain a sprinkler system on rental property resulting in damage to lessee’s property); Terminix Int’l Co. v. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996) (failure of exterminator to repair substructure and inspect building resulting in damage). In each of those cases, the breach of contract allegation was removed from the action before the case was decided, but the duty of the defendant to act could be said in each case to have arisen from the terms of the contract.

We have no doubt that, although a plaintiff may not recover for the same act in both contract and tort and must ultimately choose among remedies sought, it is not wrong for concurrent allegations to be pursued. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985).

It is clear to us that there is at least a question whether the contract in this case required SFB to present its draft for the monthly premium in advance of August 5, 1990. If there is ambiguity in the contract, a question not addressed in the Trial Court’s order, then there is a factual issue remaining as to the parties’ intent. Keller v. Safeco Ins. Co., supra; Minerva Enter., Inc. v. Bituminous Cas. Corp., 312 Ark. 128, 851 S.W.2d 403 (1993).

Nor do we agree with the Trial Court’s statement that there was “no proof” of negligence on the part of SFB. It may be that the action should be limited to contract in view of the fact that SFB’s action or lack of it may have been nonfeasance as opposed to misfeasance. That was not the Trial Court’s ruling, nor can we say that issue was raised before the Trial Court. We are unwilling to make such a ruling in an appeal from a summary judgment, especially in view of the Westark and Terminix cases cited above.

Reversed and remanded.

Arnold, C.J., dissents.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Tod HALL v. Doug FREEMAN
    96-179
    942 S.W.2d 230
    Supreme Court of Arkansas Supplemental Opinion on Denial of Rehearing delivered March 24, 1997

      Melinda R. Gilbert, for appellant.

      Randell Templeton, for appellee.
   David Newbern, Justice.

Doug Freeman, the appellee, claims our opinion erred in stating that he did not cross-appeal from the Chancellors’ ruling that he was barred by res judicata from denying his paternity of Stuart Freeman. Mr. Freeman did file a notice of appeal, but he presented no cross-appeal to this Court.

Mr. Freeman contends the issue of res judicata was argued “fully and completely” in Point II. of Tod Hall’s original appellant’s brief and in Point II. of his (Doug Freeman’s) appellee’s brief. Point II. of Mr. Hall’s brief argued the Chancellor erred in fading to apply res judicata so as to bind the child, Stuart Freeman, by the original divorce decree. Mr. Hall’s contention was that Stuart was in privity with the parties and thus bound by that decree. Mr. Freeman’s Point II. was stated as follows: “The Trial Court Did Not Err In Determining Paternity Based Upon the Doctrines, Res Adjudicata and Collateral Estoppel.” His argument was that Tod Hall was not a party to the divorce proceeding and thus he had no standing to assert res judicata with respect to any of the parties to the divorce proceeding or to the child. He then added this sentence: “The Appellee, Doug Freeman, contends that he is likewise not bound in asserting that Tod Hall is the putative father of the minor child.” All of the remainder of the argument is devoted to showing that the child, Stuart Freeman, was not bound by the divorce decree and that the Chancellor did not err in her ruling to that effect. Perhaps it could be said that both parties fully and completely argued the issue of res judicata in their appellate briefs, but the argument was not about whether Doug Freeman was bound. Doug Freeman’s point of appeal and his argument, again, were that the Chancellor had not erred. No cross-appeal was presented.

Our Rule 4-4(b) governs the briefs of appellees and cross appellants. After general provisions concerning appellees’ briefs, it states, “This Rule shall apply to cross-appellants. If the cross-appellant is also the appellee, the two separate arguments may he contained in one brief, but each argument is limited to 25 pages. [Emphasis added.]” The Rule obviously contemplates the arguments of appellee and cross-appellant as “separate arguments.” There is no authority to support the contention that a cross-appellant is relieved of presenting his argument as required by Rule 4-4(b) on the ground that he may have made a similar appellee’s argument. While the Rule would have allowed Mr. Freeman to place his two separate arguments in the same brief, it does not relieve him of the burden of making those arguments.

Petition denied.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. At one point in his original brief on appeal, Doug Freeman wrote:

The Appellee, Doug Freeman, contends that he is likewise not bound in asserting that Tod Hall is the putative father of the minor child.

Hence, it cannot be maintained that Doug Freeman abandoned this argument. Neither party would agree that that was the case.

Why is the issue important? The chancellor concluded that Doug Freeman was bound by the language in his divorce decree that the parties have one minor child. That undoubtedly is the issue on which he cross-appealed. If Doug Freeman is not barred by res judicata, this is additional reason to hold that he had standing to advance the paternity argument. Of course, I concluded in my dissent to the original decision in this case that Freeman had standing to raise the paternity issue irrespective of the res judicata defense. See Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997). (Brown, J., dissenting). But the bottom line is that Freeman (1) did cross-appeal, and (2) did argue that he was not bound by res judicata to this court, albeit briefly. He deserves to have the issue addressed and decided.

I would also grant rehearing on the merits. When a putative father, the natural mother, and the guardian for the child all agree that paternity should be determined, the requirements of Ark. Code Ann. § 9-10-104 (Repl. 1993), have been met. For these reasons, I respectfully dissent.


author: Tom Glaze, Justice.

text:
    F. Gordon DARR, Jr., as Administrator of the Estate of Tamara Bankston Darr v. David L. BANKSTON
    96-1417
    940 S.W.2d 481
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      McNutt Law Firm, by: Mona J. McNutt, for appellant.

      Jack, Lyon & Jones, P.A., by: Gary D. Jiles, for appellee.
   Tom Glaze, Justice.

Tamara and David Bankston were divorced on December 27, 1985, and the couple’s two minor daughters were awarded to Tamara. David was ordered to pay Tamara $220 per month child support, plus two-thirds of the health insurance premiums for the children, and reimbursement of one-half of the dental and non-covered medical expenses incurred on the children’s behalf. Over the years, David failed to make payments and accrued arrearages. In October of 1995, Tamara died intestate and Gordon Darr, Jr., was appointed administrator of her estate; in that capacity, Darr brought suit against David to recover the arrears David owed in child support, insurance premiums, and medical expenses. At the time of suit, David had custody of the children.

David filed a responsive motion to dismiss Darr’s complaint, alleging Darr had no standing. The chancellor agreed and dismissed Darr’s suit. In reaching his decision, the chancellor relied on Ark. Code Ann. § 9-14-236 (Supp. 1995), which defines a “moving party” who brings suit for child-support arrearages to mean (1) the custodial parent, (2) any person or agency to whom custody of a minor child has been given or relinquished, (3) the minor child through his guardian or next friend, (4) a person for whose benefit the support was ordered, within five years of his or her obtaining majority, or (5) the Child Support Enforcement Office under prescribed circumstances. Because Darr failed to fall within any of these five categories, the chancellor held Darr had no standing. He specifically mentioned that Darr, as administrator of Tamara’s estate “does not equate” with being the children’s guardian under § 9-14-236, and therefore could not enforce any child-support arrearages. The chancellor is mistaken, and accordingly we reverse and remand.

Darr correctly submits that, as administrator, he can recover a monetary judgment after the death of one entitled to the judgment. He cites Ark. Code Ann. § 16-65-502 (1987), which provides in pertinent part as follows:

(a)(1) If one (1) or more plaintiffs in a judgment or decree dies before the judgment or decree is satisfied or carried into effect, the judgment or decree, if for money or concerning personal property, shall survive to the executors or administrators of the deceased party, and, if concerning real estate, to his heirs or devisees.
(2) In each of the preceding cases, execution may be sued out in the name of the surviving plaintiff, for the benefit of himself and legal representatives of the deceased party, or the judgment or decree may be revived in the name of the legal representatives and the surviving plaintiff, and execution may be sued out joindy.

This court has recognized the custodial parent’s right to unpaid installments of child support in prior decisions. See Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 938 (1988); Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978).- In addition, the General Assembly has also provided that a decree, containing a provision for child-support payments, shall be a final judgment as to any accrued payment until the time either party moves to set aside, alter, or modify the decree. See Ark. Code Ann. § 9-14-234(b) (Supp. 1995).

Under applicable Probate Code provisions, Darr, as appointed representative of Tamara’s estate, was entitled to take possession of all Tamara’s personal property, Ark. Code Ann. § 28-49-101 (a) (1987), and to enforce her estate’s entidement to any existing money or personal property judgment or decree. § 16-65-502.

David’s defense rings hollow in suggesting that § 9-14-236 precludes Darr from enforcing any surviving child-support debts David owed Tamara because § 19-14-236 does not specifically fist an administrator as one who can enforce such indebtedness. In support of his argument, David cites only general authority that an unambiguous statute should be applied simply as it is written, and that specific rules in one statute (§ 9-14-236) are given over the general rules in another statute (§ 16-65-502). See Valley Nat’l Bank of Arizona v. Stroud, 289 Ark. 284, 711 S.W.2d 785 (1986).

Arkansas law is well settled that it is this court’s duty, if possible, to reconcile our state’s statutes to make them consistent, harmonious, and sensible. See Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984). In the instant case, David offers no citation of authority or convincing argument specifying why § 9-14-236 cannot be read as being harmonious with Arkansas’s applicable probate provisions. Instead, David offers a construction of § 9-14-236 which inexplicably denudes the plain language and purpose of Arkansas’s survival-of-judgment statute, § 16-65-502, and strips an administrator from satisfying a deceased party’s decree where it involves an arrearage in child-support payments. In fact, if we were to accept David’s argument, no one in this case could presently enforce Tamara’s right to accrued child-support payments except David, himself, since, as guardian, he is the only one authorized under § 9-14-236 to collect child-support arrearages. Obviously, such an interpretation would result in an absurdity and completely ignores the compatible purpose served by Arkansas’s survival provisions.

For the above reasons, we reverse and remand the cause for further proceedings.