author: Annabelle Clinton Imber, Justice. W.H. “Dub” Arnold, Justice,

text:
    STATE of Arkansas v. Jose Luis VASQUEZ-AERREOLA
    CR 96-1277
    940 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997
    [Petition for rehearing denied April 21, 1997.]

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen. and Vada Berger, Asst. Att’y Gen., for appellant.

      Stutte, Mason & Freeman, PLC, by: Charles L. Stutte and G. Chadd Mason, for appellee.
   Annabelle Clinton Imber, Justice.

The trial court accepted the appellant’s guilty plea to four charges over the State’s objection, and dismissed the fifth charge contained in the information for lack of a factual basis. We reverse and remand, finding that the trial court lacked the authority to take this course of action.

On May 15, 1996, the Washington County prosecuting attorney filed a five-count felony information against the appellant, Jose Luis Vasquez-Aerreola. Counts one through four accused Vasquez-Aerreola of delivery of methamphetamine. These charges involved differing quantities of methamphetamine delivered on four different dates from February to April 1996. Count five accused Vasquez-Aerreola of engaging in a continuing criminal gang, organization, or enterprise in the first degree between January 1, 1996, and April 5, 1996. At his arraignment on May 17, Vasquez-Aerreola pled not guilty to all of the counts. The case was set for trial on August 14.

Subsequently, Vasquez-Aerreola filed a number of discovery motions. Among other things, he requested that the State furnish him with the recorded surveillance of the alleged drug transactions along with the names and addresses of the confidential informants that the State intended to call as witnesses. Vasquez-Aerreola also filed a bill of particulars requesting that the State identify with whom Vasquez-Aerreola occupied a supervisory position with respect to count five. On August 12, 1996, the trial court resolved most of the discovery issues during an in-chambers, off-the-record meeting with the parties. However, the parties went on the record for a hearing regarding the bill of particulars. The State’s position was that it had already provided Vasquez-Aerreola with the identity of the parties with whom he acted as a supervisor for purposes of a continuing criminal enterprise. According to the State, three individuals were named in case number 96-178, what it referred to as the “companion case to [Vasquez-Aerreola’s case] but not actually co-defendants.” Additionally, the State identified two other individuals, Estephan Salas and Ignatio Valazquez aka “Nacho.” The State also explained its open file policy with respect to discovery.

The trial court found that the State had fully complied with Vasquez-Aerreola’s discovery requests with respect to count five. Additionally, it ordered that the State disclose all of its reports concerning the undisclosed investigations of “Nacho’s” activities by 4:00 p.m. that day. According to the judge, “assuming this information is in fact in any way useful in defending this case, [it] will provide an adequate time to review the information to be produced to the defendant.” The trial court thus denied VasquezAerreola’s motion for a continuance.

On August 13, Vasquez-Aerreola filed a motion to dismiss the third and fourth counts. In count three, Vasquez-Aerreola was accused of delivering, at two separate times on April 8, a total of twenty-eight grams of methamphetamine. According to VasquezAerreola’s motion to dismiss, reports from the state crime laboratory indicated that the quantity of methamphetamine was only 23.724 grams. In count four, Vasquez-Aerreola was accused of delivery of over 400 grams of methamphetamine on April 15. According to Vasquez-Aerreola, the lab report showed that the actual quantity of methamphetamine was 377.3875 grams. Vasquez-Aerreola maintained that the quantities of methamphetamine involved in counts three and four were insufficient to trigger the statutory penalty enhancement, and thus should be dismissed.

On August 14, the day of trial, Vasquez-Aerreola decided to change his plea to guilty. The State objected to the guilty plea, and asserted that it had the right to a jury trial. The trial court proceeded to take testimony from Vasquez-Aerreola. He testified that he accepted methamphetamine from Jose Navarro and sold it to others on the dates charged. The trial court then asked defense counsel to summarize what went on in the four transactions.

Defense counsel explained that an individual known as “Gordo” had approached the Fayetteville Police Department and had offered to help them locate people who were selling drugs in exchange for money. According to defense counsel, Gordo arranged for Vasquez-Aerreola to sell the drugs to an undercover police officer. He also asserted that Vasquez-Aerreola actually received very little money for his part in the four transactions.

The trial court announced that it would accept Vasquez-Aerreola’s plea to the four delivery counts. The State then renewed a motion it had made in chambers to amend the information to one count of delivery, combining all of the quantities of methamphetamine. The trial court denied this motion and dismissed count five for lack of a factual basis. The trial court then proceeded to sentence Vasquez-Aerreola to thirty years on each delivery count with fifteen years suspended on each one. The judgment and commitment order reflected that Vasquez-Aerreola had entered a plea “directly to the court.”

On September 5, 1996, the State filed a notice of appeal. The trial court subsequently scheduled a hearing in the matter on September 10. At the September 10 hearing, the trial court informed the parties that it was treating the notice of appeal as a “motion to reconsider.” The trial court then proceeded to recite the history of the case. The judge made a reference to the in-chambers hearing held on August 12. According to the trial court, Bruce Rhoades, the chief deputy prosecuting attorney, had engaged in a childish temper tantrum, and acted “in a wholly inappropriate fashion which certainly amounted to unprofessional conduct.” The trial court then recollected that it had ruled, “in retrospect probably improperly,” that the State had complied with its discovery obligations on count five. The trial court also recalled that the State had moved to amend the information to one count on the morning of trial when it learned that a smaller quantity of methamphetamine was involved.

The trial court then explained why it had dismissed count five. While conceding the prosecutor’s “sole authority” to dismiss charges against defendants, the court nonetheless maintained that it was apparent there was no factual basis for the charge. The judge emphasized that he had heard the statements of VasquezAerreola and defense counsel, and “other information” gathered from in-chambers conferences, and had concluded that there was no factual basis for the count. The court also understood that the State had abandoned count five when it had attempted to amend down its information, and that the State had not been “entirely forthcoming” in its discovery in retrospect. For all of these reasons, the trial court dismissed count five.

With regard to the jury trial issue, the trial court understood that the State had no statutory or constitutional right to a jury trial. The judge interpreted Ark. R. Crim. P. 31.1 to only apply in situations where there is “going to be a trial.” The judge fhrther noted that even if the State had a right to a jury trial, it had waived it through Rhoades’s inappropriate conduct. In the trial court’s opinion, the State had intentionally obfuscated critical information in the case.

As an example, the court referred to Rhoades’s representation on August 12 that the State did not have the crime lab reports. Apparently, the trial court had independently contacted the crime lab and determined that the State had the reports by August 5. The court thus concluded that the State had intentionally committed discovery violations and had therefore waived any right to a jury trial it might have had. The court conceded that “some of this was not on the record and it should have been,” but that it was important that this court “understand[ ] some of the history of this case.”

On September 11, 1996, the State filed its second notice of appeal. The State argues that the trial court lacked the authority to accept Vasquez-Aerreola’s plea over objection, and that it erred in dismissing count five.

Í. Jurisdiction

The State brings its appeal pursuant to Ark. R. App. P.-Crim 3(b) (formerly codified at Ark. R. Crim. P. 36.10). Rule 3(c) requires the attorney general to inspect the trial record and certify that the correct and uniform administration of the criminal law requires review by this court. Pursuant to the rule, this court accepts appeals by the State when our holding will set a precedent that is important to the correct and uniform administration of Arkansas criminal law. See, e.g., State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). We find that the issues presented in this case sufficiently implicate the correct and uniform administration of the criminal law so as to give this court jurisdiction under Rule 3.

Vasquez-Aerreola nonetheless challenges the State’s ability to appeal from his guilty plea. He relies on State v. Pylant, 319 Ark. 34, 891 S.W.2d 28 (1994), where the State argued that it had an absolute right to a trial by jury in criminal cases. This court refused to reach the merits of this question, holding that the appeal was procedurally flawed.

In Pylant the appellant pled guilty to three counts of delivery of a controlled substance over the State’s objection. The trial court denied the State’s motion for jury trial. The State then appealed from the denial of this motion, even though the defendant had not yet been sentenced.

The Pylant court refused to reach the merits of the State’s right to a jury trial, first disposing of the appeal on finality grounds. Because the trial court’s order denying the State’s motion for jury trial did not dismiss the parties from court or conclude the controversy, the order was not a final judgment. In particular, the court noted that since sentencing had not yet been announced, the defendant could conceivably withdraw the guilty plea under Ark. R. Crim. P. 26.1.

However, the Pylant court did not end its analysis there, but continued to state that “aside from issues of finality, the law is well-established that, in general, there is no right to an appeal from a plea of guilty where the appeal constitutes a review of the merits of the plea itself, as in the instant case.” Id. (citing Hill v. State, 318 Ark. 408, 887 S.W.2d 275, (1994)).

The State maintains that this language in Pylant is mere dictum. We agree. Pylant was decided on finality grounds, thereby making the quoted language obiter dictum.

2. Trial Court’s Authority to Accept Guilty Plea Over State’s Objection

For this point, the State argues that the trial court lacked the authority to accept Vasquez-Aerreola’s guilty plea over the State’s objection. The State primarily relies on Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), where a capital murder defendant attempted to plead guilty to the trial court prior to a jury trial. The prosecutor did not assent, and the trial court refused to accept the plea. The jury ultimately convicted the defendant and sentenced him to death.

On appeal, the appellant argued that the trial court had discretion to accept the guilty plea, without assent from the prosecutor. This court characterized this premise as fallacious, because a “felony defendant is not entitled to a trial to the court without the assent of the prosecutor.” Id. The Fretwell court relied on Ark. R. Crim. P. 31.1 to find that in criminal cases which require a trial by jury, they must be so tried unless: 1) waived by the defendant; 2) assented to by the prosector; and 3) approved by the court. Id. The first two requirements are mandatory before the trial- court can exercise discretion in the matter. Id. Because the State had not assented to the plea, the trial court had no discretion to accept the plea.

Additionally, the Fretwell court acknowledged that some jurisdictions afforded criminal defendants the absolute right to waive a jury trial. Indeed, the requirement of prosecutorial assent to jury trial waivers has been criticized. See generally, Fred Anthony DeCicco, Waiver of Jury Trials in Federal Criminal Cases: A Reassessment of the “Prosecutorial Veto”, 51 Fordham L. Rev. 1091 (1983) (criticizing prosecutorial “veto” under Fed. R. Crim. P. 23(a)). Nonetheless, we reasoned that our position was the better rule.

This court revisited the issue in Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987), where the appellant had attempted to plead guilty to one of three burglary counts, but the State objected. The appellant was convicted in a jury trial, and argued on appeal that he had a right to plead guilty.

The Numan court rejected the contention that the appellant had a constitutional right to a have a guilty plea accepted. Id. (citing Lynch v. Overholser, 369 U.S. 705 (1962)). While the right may be conferred by statute or rule, this court held that Arkansas had no such statute or rule giving a criminal defendant the right to have his guilty plea accepted. Numan v. State, supra.

This court restated the Fretwell rule again in Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). In Calnan the court reversed the appellant’s misdemeanor convictions because of a violation of her right to jury trial. The court essentially held that her right to jury trial was violated because there was no express waiver of the right. In so reasoning, the Calnan court quoted Fretwell v. State, supra, for the proposition that both the defendant’s waiver, and the prosecutor’s assent, are necessary before the trial court has discretion on the issue of waiver.

The facts in the present case are essentially indistinguishable from those in Fretwell v. State. There, as here, on the eve of trial, the defendant attempted to plead guilty over the objection of the State. Under Ark. R. Crim. P. 31.1, criminal cases which require a trial by jury must be so tried unless:

(1) waived by the defendant;
(2) assented to by the prosecutor; and
(3) approved by the court.

Fretwell v. State, supra. The first two requirements are mandatory before the trial court has any discretion in the matter. Fretwell v. State, supra. In the present case, there was no assent by the State, and thus the trial court had no authority to accept the plea.

Vasquez-Aerreola argues for a construction of Rule 31.1 where the State’s assent is only required “where a trial is contemplated.” This position is also reflected in the trial court’s contention that Rule 31.1 would apply if “the case was in a posture where the defendant was wanting a bench trial and the State was wanting a jury trial.” However, Fretwell does not frame the issue in this manner. The appellants in both Fretwell and Numan simply wanted to plead guilty instead of proceeding to a jury trial. Neither opinion provides any discussion or places any emphasis on the defendant’s desire to go forward with a bench trial. Instead, the relevant inquiry is whether the defendant has a right to have his guilty plea accepted. See Fretwell v. State, supra; Numan v. State, supra.

Vasquez-Aerreola also relies on Ark. R. Crim. P. 24.3, which contains no express requirement that the State assent to a guilty plea, except in cases of conditional pleas of guilty or nolo contendere. However, Rule 24.3(d) does require that the trial court give the prosecutor the “opportunity to be heard” before accepting a guilty plea. Thus, there is no inherent conflict between Rules 31.1 and 24.3, and both can be read in a harmonious manner.

We find that the trial court erred in accepting VasquezAerreola’s guilty plea without the State’s assent. In cases that require a trial by jury, Ark. R. Crim. P. 31.1 requires both a defendant’s waiver and prosecutorial assent before the trial court can exercise discretion in accepting a guilty plea. Fretwell v. State, supra. Therefore, we vacate Vasquez-Aerreola’s guilty pleas to the four delivery charges, and remand the case for further proceedings.

As an alternative basis for its acceptance of the guilty plea, the trial court suggested that the State waived its right to a jury trial through its intentional noncompliance with discovery obligations. The standard of review on imposing sanctions for discovery violations is whether there has been an abuse of discretion. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996).

The trial court’s alternative basis for its acceptance of the guilty plea is problematic, given that the trial court had expressly found that the State was in full compliance with its discovery obligations. Additionally, matters such as Rhoades’s tantrum and the crime lab reports cannot be found in the record. The trial court conceded that “some of this was not on the record and it should have been.” See Administrative Order No. 4. Ultimately, given that the trial court had no discretion to accept the guilty plea, see Fretwell v. State, supra, we conclude that the trial court abused its discretion, even when its action is viewed as a Rule 19.7 discovery sanction.

3. Trial Court’s Authority to Dismiss Charge Over State’s Objection

For this point, the State argues that the trial court lacked the authority to sua sponte dismiss count five against Vasquez-Aerreola. Amendment 21, section 1, of the state constitution reserves the duty of charging an accused to the prosecutor or grand jury. This court has held that a trial court violates the separation of powers when it amends an information over the State’s objection. State v. Hill, 306 Ark. 375, 811 S.W.2d 323 (1991). In State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993), this court stated that “[t]he choice of which charges to file against an accused is a matter entirely within the prosecutor’s discretion (citations omitted), and a duty which the trial court should never perform (citations omitted).”

In State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994), the defendant entered a guilty plea to possession of methamphetamine with intent to deliver. The trial court then proceeded to conduct a sentencing hearing. After hearing the testimony, the trial court agreed to give the defendant a “break” and sentenced him to ten years supervised probation along with a mandatory one-year in-house treatment for drug addiction. The State objected, arguing that a sentencing judge did not have authority to waive the mandatory ten-year penalty for a Class Y felony. The trial court then reduced the charge to the lesser of mere possession and sentenced the defendant to ten years.

The State appealed and this court reversed, holding that the trial court impermissibly amended the charge in violation of separation of powers. The defendant alternatively argued that the judge did not amend the charge, but rather found that there was an insufficient factual basis for the guilty plea. The Knight court rejected this argument, noting that there was a clear factual basis for the charge. The court further found that “even had the judge in this case rejected the guilty plea for lack of a factual basis after he accepted it, he did not follow the correct procedure.” Id. The court cited Ark. R. Crim. P. 25.3(b), and its requirement that the trial court call upon the defendant to affirm or withdraw the plea if there is no factual basis for a charge. Because the judge did not call upon the defendant to do this, he was not in compliance with the rule. Moreover, the court emphasized that:

[Ark. R. Crim. P. 25.3(b)] does not authorize a circuit judge to reduce the charge to a lesser included offense; nor does it permit pleading to another charge that the judge believes to be appropriate.

Id.

Based upon the reasoning articulated in State v. Knight, we conclude that the trial court erroneously dismissed count five in the present case. If the trial court found that there was no factual basis for the plea as to the fifth charge, Ark. R. Crim. P. 25.3(b) mandates that the trial court call upon the defendant in open court to either affirm or withdraw the plea. This procedure was not followed. Moreover, by extension of the reasoning in State v. Knight, supra, if a trial court lacks the authority to amend or reduce a charge under Rule 25.3, then it logically follows that a judge lacks the authority to dismiss a charge under the rule. Thus, we would find that the dismissal of the charge violated the separation of powers, and that count five should be reinstated on remand of the case.

The trial court also suggested two alternative bases for its dismissal of count five; that the State had abandoned the charge by moving to amend the four delivery counts down to one, and that the dismissal was appropriate as a discovery sanction. With respect to the abandonment theory, the trial court denied the State’s motion to amend the information. Subsequently, the trial court dismissed count five over the State’s objection. We find no authority to suggest that the mere fact that the State made a motion to amend the information, which was denied, was somehow an “abandonment” of the charges in the information.

We also summarily dispose of the discovery sanction theory. For the reasons stated above, the dismissal of the charge as a discovery sanction under Rule 19.7 violated the separation of powers. State v. Murphy, supra.

Reversed and remanded.

Arnold, C.J., and Thornton, J., concur.

W.H. “Dub” Arnold, Justice,

concurring. I agree with the majority opinion that, in accordance with Ark. R. Crim. P. 31.1, the trial court erred in accepting Vasquez-Aerreola’s guilty plea without the prosecutor’s assent. I write separately only to suggest that the present rule should be changed.

As pointed out in the majority opinion, the requirement of prosecutorial assent to a defendant’s waiver of his right to a jury trial has been criticized. See generally, Fred Anthony DeCicco, Waiver of Jury Trials in Federal Criminal Cases: A Reassessment of the “Prosecutorial Veto”, 51 Fordham L. Rev. 1091 (1983) (criticizing prosecutorial “veto” under Fed. R. Crim. P. 23(a)). Our state constitution grants to the accused the right to trial by jury. Ark. Const, art. 2, § 7. As this right is granted to the accused so that he may be tried by a jury of his peers, then it should follow that the accused should be able to waive this right, in non-capital cases, without assent by the prosecutor. Under the present Rule 31.1, a prosecutor could demand that a defendant accept the plea bargain offered, or force him to be tried by a jury. While I agree that input on the part of the prosecutor is crucial in the ultimate sentencing decision, I do not agree that the prosecutor should have the power to veto a defendant’s waiver of his right to a jury trial. In my view, a better rule would be to allow the accused to enter a plea of guilty to the court, while permitting recommendations from the prosecutor regarding sentence. Such a rule would allow an accused to plead guilty and dispense with a trial, thus avoiding delay in the judicial process and crowding of the trial dockets, while allowing input from the State in the sentencing decision. For these reasons, I respectfully concur.

Thor-NTON, J., joins.


source: Caselaw Access Project

author: Ray Thornton, Justice. W.H. “Dub” Arnold, Justice, David Newbern, Justice,

license: Public Domain

text:
    Rafael CAMARGO v. STATE of Arkansas
    CR 96-780
    940 S.W.2d 464
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997
    [Petition for rehearing denied April 21, 1997.]

      Robert C. Marquette, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.

       Arnold, C.J., and Glaze, J., would grant.

   Ray Thornton, Justice.

Appellant Rafael Camargo was convicted of two counts of capital murder and sentenced to death. On October 31, 1994, he killed his former girlfriend, Deanna Petree, and her fifteen-month-old son, Jonathan. The crimes took place in the home Deanna and Jonathan shared with her mother and three brothers. Her mother and two of the brothers testified that they saw appellant shoot Deanna. Robert, the oldest brother, testified that appellant also pointed the shotgun at him and pulled the trigger; but the gun failed to fire. All the survivors took refuge outside the house and heard additional shots being fired. They saw appellant flee from the house before the police arrived. When the police arrived, they found Deanna and Jonathan shot to death in the house. Appellant does not challenge sufficiency of the evidence against him, but we have reviewed the record and find substantial evidence to support the convictions of capital murder. Ark. Sup. Ct. R. 4-3(h).

On appellant’s motion, he was committed to the state hospital, found competent to stand trial, and found to be sane at the time the crimes were committed, although he was assessed as having limited intellectual capacity. His language skills are in Spanish, and he has little ability to understand or speak English. On appeal, he relies on six points for reversal. We find no error in the guilt phase of the proceedings but find error in the sentencing phase. Therefore, we affirm his convictions for capital murder, but reverse and remand his two sentences of death.

Appellant’s assignments of error in the guilt phase include a constitutional challenge to Arkansas’s capital murder laws and allegations of error in admitting a videotape and photographs. He argues that the court erred during the sentencing phase in refusing to submit a modified form of jury instructions focusing attention upon the mitigating circumstance of his mental retardation, and that the jury erred in not considering such a mitigating circumstance.

Appellant also contends that the death sentences are invalid because the jury did not complete written findings “[t]hat the aggravating circumstances justify beyond a reasonable doubt a sentence of death” as required by law and the verdict form number three.

Guilt Phase

Prior to trial, appellant filed a motion to quash the information on the grounds that the Arkansas death penalty laws are unconstitutional. His argument is that Ark. Code Ann. § 5-10-102 (Repl. 1993), is unconstitutional because it fails to adequately narrow the class of persons eligible for the death penalty. He argues that the statute does not enable the State to administer the death penalty “in a way that can rationally distinguish between those individuals for whom death is appropriate and those for whom it is not.” Further, he contends that the definition of “premeditation and deliberation,” which this court has held can be formed instantaneously, is unconstitutionally vague. We have discussed these arguments in previous decisions, and we adhere to our prior holdings.

On numerous occasions, we have held that there is no constitutional infirmity in the overlapping of the “premeditated and deliberated” mens rea in the capital murder statute and the “purposeful” mens rea in the first-degree murder statute. White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989). See also, e.g., Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Greene v. State, 317 Ark. 360, 878 S.W.2d 384 (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Van Pelt v. State, 306 Ark. 634, 816 S.W.2d 607 (1991); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). The court has explained that it is impossible to avoid the use of general language in the definition of offenses, and that one or the other offense may be established depending on the testimony of witnesses. White, 298 Ark. at 59, 764 S.W.2d at 616. While the language in the first-degree murder statute might have been chosen to lighten the possible punishment that might be imposed for conduct falling within the strict definition of capital murder, id., the Supreme Court has held that narrowing of the class of persons eligible for the death penalty does not have to take place at the “definition stage” of the proceedings. Lowenfield v. Phelps, 484 U.S. 231 (1988).

The legislature may narrow the definition of capital murder in the statute, or it may more broadly define capital murder and provide for narrowing of the death-eligible class at the penalty phase of the trial. Id. Lowenfield was applied in Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992), in which this court held that Ark. Code Ann. § 5-4-603(a) (1987 & Repl. 1993) provides the required narrowing by providing that the jury should impose a death sentence only if it unanimously returns written findings that: (1) aggravating circumstances exist beyond a reasonable doubt; (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. Johnson, 308 Ark. at 17, 823 S.W.2d at 800-01. Based upon the statutory narrowing of the death penalty during the sentencing phase, appellant’s argument that the statute is unconstitutional has no merit.

We next consider appellant’s claim that the admission into evidence of a video tape and photographs of the crime scene, was error. The video tape and photographs are gruesome in their depiction of a crime scene of great violence and brutality. Appellant urges that these exhibits were both cumulative and inflammatory. In connection with our review of this issue, we also consider whether it was error to admit two autopsy photographs into evidence over appellant’s objection. Ark. Sup. Ct. R. 4-3(h).

We have often stated that the admission and relevancy of photographs is a matter within the sound discretion of the trial court. Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). Although highly deferential to the trial court’s discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. Berry v. State, 290 Ark 223, 227, 718 S.W.2d 447, 450 (1986). We have cautioned against “promoting a general rule of admissibility that essentially allows automatic acceptance of all photographs of the victim and crime scene the prosecution can offer.” Id. at 228, 781 S.W.2d at 450. This court rejects the admission of inflammatory pictures where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature. Id. at 228-29, 781 S.W.2d at 450. We require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Beed v. State, 217 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.

Even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Other acceptable purposes are to show the condition of the victim’s bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). Of course, if a photograph serves no valid purpose and could only be used to inflame the jury’s passions, it should be excluded. Berry v. State, 290 Ark 223, 718 S.W.2d 447 (1986). The same guidelines that apply to photographs also apply to videotapes. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

An essential element of these crimes was the degree of intent; to secure a conviction for capital murder, the State had to prove that appellant caused the victims’ deaths “with [a] premeditated and deliberated purpose.” Ark. Code Ann. § 5-10-101(1)(4). We have held that the nature and extent of a victim’s wounds is relevant to a showing of intent, which may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wounds. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Dansby v. State, 319 Ark. at 515, 893 S.W.2d at 336. In Dansby, we pointed out that upon considering evidence of multiple wounds, the “jury could have easily inferred that appellant fired multiple shots into both victims in a premeditated and deliberated manner.” Id.

After showing the video to the jury over appellant’s objection, the State advised the court that it had two sets of photographs of the crime scene. It had a set of eight to ten photos that it had shown to the defense and planned to introduce. It asked that the second set, consisting of fifteen to twenty photographs, be made an exhibit to the court but not to the jury. The State wanted to show that the photographs had been examined, and that the least inflammatory ones had been chosen for publication to the jury.

The State originally proposed ten photographs for viewing by the jury. There were four photographs of Jonathan, of which appellant asked that the State select Exhibit Four to show one angle and Exhibit Six to show another, and eliminate the other two. The State agreed to eliminate one. The remaining six photographs were of Deanna’s body at the crime scene. Appellant made a continuing objection as the State introduced these as Exhibits Four through Ten, which were all admitted.

The three pictures of Deanna are all of different angles. Exhibit Eight shows Deanna’s body from a back angle lying in the hall with a shotgun casing directly under her. Exhibit Nine shows her body from the front angle. Officer Flurst testified that Exhibit Eight showed a different shotgun casing than the one in the previous exhibit. Exhibit Nine shows an angle not visible in Exhibit Eight, and Exhibit Ten depicts a close-up view of the head wound that is not presented by any of the other pictures. During the state medical examiner’s testimony, appellant objected to a close-up autopsy picture of Deanna’s head and shoulders that depicted her chest wounds and part of her head wound. He also objected to a close-up autopsy shot of Jonathan from the waist up that clearly shows that part of his head is missing. Appellant objected to these as cumulative, and the court overruled, stating that Dr. Sturner, the state medical examiner, had indicated that they would be helpful in explaining the location of the wounds and the stippling.

The videotape, which runs about four minutes, begins in the living room. It shows Jonathan lying on the couch with a massive head wound, and it shows the location of where the blood and the shots went. It continues down the hall, showing Deanna’s body lying in a pool of blood and where the blood and shots went around her. There are brief shots of the other rooms in the house. The videotape is somewhat dark and does not show details as clearly as the still shots. However, it provides the viewer a dimensional perspective of the crime scene and the size of the house that the still shots do not give.

The pictures helped the jury to understand the testimony about where and in what condition the body and the shotgun shells were found. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). They are more clearly visible than the video, which was admissible to aid the jury’s perception of the crime scene. Comparing the pictures to the ones that were not used, and which would have been cumulative, we have concluded that the trial court carefully compared the two sets of pictures, made a well-reasoned determination, and did not abuse its discretion in admitting the pictures with the videotape. See Weger, 315 Ark. at 560-61, 869 S.W.2d at 691. Further, evidence of close-range shootings is indicative of premeditation and deliberation.

Finally, the trial court did not abuse its discretion in admitting the autopsy pictures. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). These pictures clearly assisted Dr. Sturner in describing the location of the victims’ wounds and the close-range nature of the gunshots; again, matters that were clearly relevant in establishing premeditation and deliberation, among other things.

Sentencing Phase

Appellant challenges the validity of his death sentences because the jury did not specify in writing “that the aggravating circumstances justify beyond a reasonable doubt a sentence of death.” The State contends that review of this challenge is procedurally barred because appellant failed to object when given the opportunity to do so.

The State is correct that in numerous cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate and timely objection. However, in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we recognized the following four extremely narrow and strictly guarded exceptions to the objection requirement: (1) death penalty cases involving an error in a matter essential to the jury’s consideration of the death penalty itself; (2) cases where the trial judge made an error of which the appellant had no knowledge; (3) cases where the trial judge neglected his or her duty to intervene; and (4) cases involving evidentiary errors which affected the appellant’s substantial rights. Id. at 785, 606 S.W.2d at 369.

It is the first exception for death penalty cases involving a matter essential to the jury’s consideration of the death penalty that is applicable to the facts at hand. Again, as with the other three exceptions, this is a narrow exception which this court has rarely applied. In Wells v. State, 193 Ark. 1092, 104 S.W.2d 451 (1937), we allowed an exception to the objection requirement where the court failed to require the jury to designate the degree of murder, as required by the statute, so that the jury might have imposed the death penalty for homicide below first-degree murder. Likewise, in Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943), we did not require an objection where the court failed to tell the jury that it had the option of imposing a sentence of life instead of the death penalty. Both cases involved an error that was “essential to the jury’s imposition of the death penalty itself,” and thus we did not require an objection.

Similarly, in Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), we recognized this exception to the “plain error” rule, and we expressly applied the holdings from Smith and Wells. We held that the consideration during the sentencing phase of a statutorily prescribed aggravating circumstance enacted following the crime required reversal, notwithstanding a failure to bring the issue to the attention of the trial court. Id. at 499, 911 S.W.2d at 562.

In this case, the trial court failed to require the jury to render a verdict form that indicated that the jury had made the three findings necessary for imposition of the death penalty as is required by Ark. Code Ann. § 5-4-603 (Repl. 1993). Thus, as in Wells, Smith, and Bowen, the error concerned a matter “essential to the jury’s imposition of the death penalty itself,” and we therefore do not require an objection to preserve the issue for appellate review.

In reaching this holding, we are not unmindful of our previous declaration in Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978), where we said:

In cases tried after this date [July 3, 1978], we will not consider an assertion of error in the verdict form, when the issue has not been raised in the trial court in any manner or some adequate reason for doing so is disclosed by the record.

Goodwin, however, was not a death penalty case, and thus, the verdict-form error was not regarding a matter essential to the imposition of the death penalty itself. Therefore, the Wicks exception was not applicable.

Hence, we have concluded that despite the failure to object, the appellant’s assertion of failure to comply with Ark. Code Ann. § 5-4-603 requirements for the unanimous return of written findings by the jury in a death case is an issue properly before this court for review.

Following the guilt phase of the trial, the sentencing phase of the trial is the means by which the capital murder statute is sufficiently narrowed to meet constitutional challenges for vagueness because of the overlap between degrees of murder. See Lowenfield v. Phelps, 484 U.S. 231 (1988). We have upheld the capital murder statute against charges that it does not sufficiently narrow the class of persons that can be executed because the required findings of aggravating and mitigating circumstances during the sentencing phase perform that function. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995); Dansby v. State, 319 Ark. at 529, 893 S.W.2d at 343; Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Johnson v. State, 308 Ark. at 17, 823 S.W.2d at 801-02.

The legislative intent is articulated in the portion of Ark. Code Ann. § 5-4-601 that reads as follows:

(a) It is the intention of the General Assembly of the State of Arkansas, in enacting this subchapter, to specify the procedures and standards pursuant to which a sentencing body must conform in making a determination as to whether a sentence of death is to be imposed upon a conviction of capital murder.

Id. § 5-4-601 (a).

The findings required for a death sentence are expressed in Ark. Code Ann. § 5-4-603, which provides as follows:

(a) The jury shall impose a sentence of death 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.

Id. § 5-4-603(a). Subsection (b) of § 5-4-603 provides that the jury shall impose a sentence of life imprisonment without parole if it finds that any one of the above findings does not exist. Subsection (c) provides the following:

(c) If the jury does not make all findings required by subsection
(a) of this section, the court shall impose a sentence of life imprisonment without parole.

Id. § 5-4-603 (c).

In this case, the jury, after finding two aggravating circumstances and one mitigating circumstance, recommended a death sentence for appellant. The aggravating circumstances were his prior felony, which involved physical violence, and the fact that during the commission of these offenses, he put another person in danger. The mitigating circumstance was that he adjusted well to confinement.

The standard “Conclusions” form was used for each victim. The form provides for the jury to indicate as follows:

(a) ( ) One or more aggravating circumstances did exist beyond a reasonable doubt, at the' time of the commission of the capital murder.
(b) ( ) The aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found by the jury to exist.
(c) ( ) The aggravating circumstances justify beyond a reasonable doubt a sentence of death.

In accordance with statutory requirements for written findings, the instructions on the form direct the jury that if it does not unanimously agree to (a), to skip (b) and (c) and sentence the defendant to life imprisonment without parole. If the jury checks (a) , but does not unanimously agree on (b), it is to skip (c) and enter a sentence of fife without parole. If the jury checks (a) and (b) , but skips (c), it is to enter a sentence of life without parole. Only if the jury checks (a), (b), and (c), may it recommend the death sentence. On the forms for both victims, only (b) is checked. Yet, the jury proceeded to choose the death penalty on the verdict form. When the court read the “Conclusions” form, it noted that the jury had marked (b) only. When asked by the court if there was any question, both attorneys replied, “No, your honor.” The court then polled the jury by asking, “Is this your verdict?” Each juror answered, “Yes.” The trial court then entered sentences of death.

In Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), we noted that when considering a challenge to the death penalty statute as a “mandatory death sentence,” that a “jury cannot impose a sentence of death until it specifically finds that all three parts of the statute apply.” Id. at 397, 713 S.W.2d at 238.

Before the enactment of the present statutes, we made it clear in a long line of cases that the jury had to comply with the requirements of statutes establishing degrees of murder for which death may be imposed. Soon after the time Arkansas began its existence as a state, on December 17, 1838, an act was passed reading as follows: “The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree . . .,” and further providing that in the event of a guilty plea, the degree of the crime shall be found by the jury. Pope’s Digest § 4041.

We have consistently held that the death sentence may not be imposed unless the jury makes the required statutory finding. In the case of Jones v. State, 204 Ark. 61, 161 S.W.2d 173 (1942), we stated:

If it be said that the imposition of the death penalty shows what was intended, it may be answered that a capital sentence may not be imposed by intendment .... However technical this may appear, it is nevertheless the requirement of the law.
We may not ignore the statute ... by saying that it is technical, or highly technical, nor may we ignore it in a particular case where we feel assured that the jury found the accused guilty of murder in the first degree, but did not reflect that finding in the verdict.

Id. at 64, 67, 161 S.W.2d at 174, 175-76.

In the case before us, the State urges that although the jury did not make the written findings required by the statute, the jurors indicated when they were polled that they had unanimously agreed upon the death sentence, and that this made it unnecessary to follow the statutory structure required by the legislature. We cannot agree with this argument. However technical the requirements of § 5-4-603 may appear, it is nevertheless the requirement of the law.

Similarly, in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), in response to the State’s contention that the appellant did not suffer any prejudice due to the fact that the jurors appeared and orally confirmed their death-sentence verdicts in open court, this court refused to apply a harmless-error analysis. While the court stated that it was inclined to conclude that the error was harmless, the United States Supreme Court’s rule that all errors relating to mitigating circumstances are prejudicial regardless of the standard prevented it from doing so. Id. at 628, 911 S.W.2d at 944-45 (citing Shipper v. South Carolina, 476 U.S. 1 (1986)).

We have decided that the failure of the jury to unanimously return a written finding that aggravating circumstances justify a sentence of death beyond a reasonable doubt is an error requiring reversal of the sentencing phase of the case imposing the death penalty, and we remand to the trial court for a new sentencing procedure. Ark. Code Ann. § 5-4-616.

Appellant’s remaining arguments regarding the sentencing phase are likely to arise upon retrial for sentencing; therefore, we address these points for guidance to the trial court. Appellant contends that the court erred in refusing to submit a modified instruction form concerning mitigating circumstances during the penalty phase. The proposed modification added mental retardation as a mitigating circumstance. The court refused to allow the instruction, noting that appellant could argue this mitigating circumstance to the jury, and if it so found, the jury could add it as a mitigating circumstance under “Other.” As discussed more fully below, appellant did present evidence and argue this factor to the jury.

Appellant relies upon a fine of United States Supreme Court cases that hold that any death sentence resulting from a deliberate exclusion of any mitigating circumstance is presumptively invalid. Penry v. Linaugh, 492 U.S. 302 (1989); Hitchcock v. Dugger, 481 U.S. 393 (1987); California v. Brown, 479 U.S. 538 (1987); Eddings v. Oklahoma, 455 U.S. 104 (1982); Roberts v. Louisiana, 421 U.S. 633 (1977); Gregg v. Georgia, 428 U.S. 153 (1976). We find no such deliberate exclusion, because appellant was permitted to make his argument to the jury. We rejected an identical argument in Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993), in which we held that when the defendant is allowed to present the possible mitigators and the jury is told it is not limited to the mitigators listed on the form, it is not error to submit the standard form to the jury in lieu of a form proposed by the defendant. Id. at 38, 852 S.W.2d at 779.

As a final point for reversal, appellant urges that the death sentences should be set aside because the jury ignored evidence of mitigating circumstances, the mental retardation of the defendant. Appellant argues that his death sentences should be set aside because the jurors failed to mark the instruction forms appropriately. In Form Two, the jury is required to mark under subsection A that it unanimously found any of the six mitigating circumstances. Under subsection B, the jury was required to mark whether some of the jurors believed any of those six factors existed, and under subsection C, the jury was required to mark whether it unanimously agreed that any of the same factors were not present. The format of this instruction is that the jury is required to mark in each category whether each factor was unanimously accepted or rejected or whether it was partially accepted. This was not done. Appellant argues that the jury erred because it was required to consider his mitigating proof of mental retardation and should have marked the forms appropriately, indicating whether that proof was either unanimously or partially accepted or rejected.

The State contends that this argument is not preserved for review because the verdict forms were read aloud and the court asked if there were any questions, but counsel responded, “No, Your Honor.” In short, the State submits that the issue is not preserved for appeal because appellant never lodged an objection to the verdict forms. In Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978), the court held that from the date of that decision onward, an assertion of error in the verdict form will not be considered when the issue has not been raised to the trial court in some manner. On the merits, the State points out that the proof of mental retardation was not absolute because appellant’s report noted that he was not impaired at the time of the offense. The report further opined that appellant was malingering. Thus, according to the State, there is no showing that the jury arbitrarily disregarded anything.

We have already expressed our decision that this case must be reversed and remanded for a new sentencing phase because of the jury’s failure to make written findings supporting the imposition of the death penalty. As a result of that decision, it is unnecessary for us to address the question whether appellant is barred from raising the issue concerning incomplete jury forms relating to mitigating factors in this appeal. When the matter is heard in the new sentencing phase, there will be an opportunity for the appellant to timely express any objections to procedure or incomplete forms. We want to express our concern that appellant be provided opportunity to understand the proceedings by means of assistance of persons having competent skills in interpreting language, and that the court make every effort to assure that mitigating circumstances are properly presented to, and considered by, the jury.

In accordance with Ark. Sup. Ct. R. 4-3(h), we have examined the record for all objections decided adversely to appellant, and we find no additional error. We affirm the capital murder conviction, but we reverse the death sentence and remand for new sentencing.

Arnold, C.J., and Glaze, J., concur in part and dissent in part.

Newbern, J., concurs.

W.H. “Dub” Arnold, Justice,

concurring. Because I would affirm both the conviction and sentence in this case, I must respectfully dissent from the portion of the majority opinion that reverses Camargo’s case for resentencing.

During the penalty phase, after being instructed by. the trial court, the jury first considered, with respect to each victim, Form One, which set forth two possible aggravating circumstances. The two aggravating circumstances listed were that Camargo had previously committed a felony involving violence, and that, during the commission of the murder, he knowingly created great risk of death to a person other than the victim. The jury unanimously found that both of these aggravating circumstances existed. The jury then proceeded to Form Two, which required them to determine whether mitigating circumstances were shown to exist. The jury unanimously found that the evidence showed the mitigating circumstance that Camargo adjusted well to confinement.

Next, the jury proceeded to Form Three, entitled “Conclusions.” This is the form in dispute. The form contains the following three sections:

(a) ( ) One or more aggravating circumstances did exist beyond a reasonable doubt, at the time of the commission of the capital murder.
(b) (X) The aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found by the jury to exist.
(c) ( ) The aggravating circumstances justify beyond a reasonable doubt a sentence of death.

As indicated in the majority opinion, the jury only marked (b) on Form Three. The majority concludes, however, that because the jury failed to mark (a) and (c) a reversal of the death sentence is mandated due to a failure to comply with Ark. Code Ann. § 5-4-603 (Repl. 1993). I strongly disagree.

I do not dispute that, pursuant to § 5-4-603, in order for the death penalty to be imposed, the jury must unanimously return written findings that (1) aggravating circumstances exist beyond a reasonable doubt; (2) aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and (3) aggravating justify a sentence of death beyond a reasonable doubt. Where I depart from the majority is that I do not agree that the statute mandates that the jury record all these written findings on Form Three. From my reading of the statute, it only requires that these written findings be made.

In this case, the jury made the first written finding on Form One, when it unanimously found that two aggravating circumstances existed beyond a reasonable doubt at the time of the murder. It is undisputed that, on Form Two, the jury made the second written finding that the aggravating circumstances outweighed beyond a reasonable doubt all mitigating circumstances found to exist. Finally, on Form Four, the verdict form, the jury made the written finding that, after careful deliberation, they determined that Camargo shall be sentenced to:

( ) Life imprisonment without parole.
(X) Death.

The form instructed the jury that, if they returned a verdict of death, each juror was required to sign the verdict. The jury was instructed that they were not to sign this form if they did not unanimously agree that the aggravating cirumstances justified a sentence of death beyond a reasonable doubt. The signature of each of the twelve jurors in the case appears on the form. In my view, by signing this form, the jury made the third required written finding that the aggravating circumstances justified a sentence of death beyond a reasonable doubt.

If there was any doubt regarding whether the jury unanimously decided that Camargo should be put to death for the two murders, it was resolved when the jury was individually polled as to whether this was their verdict, and each answered in the affirmative. Indeed, the most troubling aspect of this case is that when the trial court read Form Three and noted that the jury had marked (b) only, then specifically asked the attorneys if there was any question, both attorneys replied, “No, your honor.” The majority employs the Wicks exception to conclude that no objection was required. I disagree that this exception applies in this case. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 154 (1980), this court discussed this exception as follows:

In two cases in which the death penalty was imposed, we did not require an objection to the trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself. In the earlier case the court failed to require the jury to find the degree of the crime, as required by the statute, so that the jury might have imposed the death penalty for a homicide below first-degree murder. Wells v. State, 193 Ark. 1092, 104 S.W.2d 451 (1937), In the later case the trial court apparently failed to tell the jury that it had the option of imposing a life sentence. Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943).

270 Ark. at 785-786. In the present case, the failure of the jury to check (a) and (c) on Form Three was brought to the attention of the attorneys by the trial court — counsel for Camargo simply waived any objection to the incomplete form. This is not a case where the jury failed to determine the degree of the crime, and this is not a case where the jury was not informed that it had the option of imposing a sentence of life imprisonment without parole. This was a case where each of the twelve jurors signed a verdict form recommending that Camargo be sentenced to death, and where each juror orally confirmed that this was his or her verdict.

The unfortunate practical implication of the majority’s decision today is that, when jury forms are left incomplete in the future, a defendant similarly situated is encouraged to stay quiet, wait for a reversal of his death sentence, and hope that, on remand, the State will either offer a fife sentence or that another jury may show mercy. Because I cannot ignore this jury’s obvious decision to recommend a death sentence for Camargo, I respectfully dissent.

Glaze, J., joins.

David Newbern, Justice,

concurring. The majority opinion is correct in every respect, and I join in the opinion. I write separately only to point out my concern about the manner of Spanish-English translation displayed in the record. It is important that the testimony of a witness who does not speak English be taken as closely as possible to the way in which any other witness’s testimony would be taken. There should be questions and answers to and from the witness, not to and from the interpreter. The person asking the question should ask it of the witness. The interpreter should do no more than translate the question. In translating the witness’s answer, the interpreter should do no more than say what was spoken by the witness but say it in English; in other words, translate the testimony directly.

In this case, the record shows there were instances when the Court or other person asking questions of the witness would say something like, “Ask him . . . ,” the witness would speak, and then the interpreter would say, “He says . . . .” Obviously that turns the interpreter into a witness rather than a translator. An example of this sort of thing appears in Szklaruk v. Szklaruk, 251 Ark. 599, 473 S.W.2d 599 (1971). There, as here, no issue was made of the matter, but the objectionable practice of conversing with the interpreter, rather than conversing with the witness through the interpreter, is displayed.

In Kay v. State, 260 Ark. 681, 543 S.W.2d 479 (1976), we at least suggested, if we did not make it clear, that the job of an interpreter is simply to repeat the question asked of the witness in the language understood by the witness, and then to repeat the witness’s answer in English. The interpreter is not to make “remarks.”

Again, no issue has been raised in this case concerning the interpreter and the practice foEowed. From the record before us, however, I have a concern whether Mr. Camargo’s testimony was accurately stimulated by the questions asked of him and accurately recorded through the interpreter.

Another non-issue in this case I regard as one that could have been serious is whether Mr. Camargo knew what other witnesses and court personnel were saying to each other during the trial. An accused’s right to presence at the trial is of little value if he or she cannot understand the proceedings.

If a person with limited or nonexistent skiEs in the English langage is to have a fair trial, or a fair resentencing procedure, great care must be taken in the direct translation process.


author: Ray Thornton, Justice. Robert L. Brown, Justice, Annabellb Clinton Imber., Justice,

text:
    Randolph George HICKS v. STATE of Arkansas
    CR 96-482
    941 S.W.2d 387
    Supreme Court of Arkansas
    Opinion delivered March 18, 1997
    [Petition for rehearing denied April 14, 1997.]

      Chandler Law Firm, by: Edward Witt Chandler, and Wayne Emmons, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Randolph G. Hicks was convicted of one count of delivery of a controlled substance to Mark Lamm, a second count of delivery of a controlled substance to Rodney Silvers, one count of possession of a controlled substance with intent to deliver, and one count of possession of drug paraphernalia. He was sentenced to five years and fined $10,000 on the paraphernalia charge and sentenced to a term of thirty years on each of the other charges. The court ordered that the sentences run consecutively for a total of ninety-five years. Appellant appeals each of the convictions, asserting eleven grounds for reversal. We find one of those grounds to have merit with respect to his conviction for possession of drug paraphernalia; consequently, we reverse and remand that conviction. We find no error with respect to the other charges, and we affirm those convictions.

Sufficiency of the Evidence

We first address the sufficiency of the evidence to sustain the convictions. Our review of this question is required before we consider other claims of error. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).

On May 10, 1995, Lieutenant Lyle Scott, an officer in the Criminal Investigation Division of the Mountain Home Police Department was called to investigate circumstances where a small child was locked out of an apartment where her mother and Mark Lamm lived. Officer Scott testified that upon returning the child to the apartment, police officers found controlled substances in the kitchen and in the master bedroom. Officer Scott testified that Mark Lamm admitted possession of the methamphetamine, and stated that he had obtained it from appellant on that same day and that Rodney Silvers had also obtained drugs from appellant that day.

At trial, Lamm testified that he had given appellant $2,200.00 a week earlier for appellant’s use in going to California and purchasing two ounces of methamphetamine for return to Arkansas and delivery to him. He testified that when he went to appellant’s mobile home on May 10 to pick up the drugs, he saw Silvers leaving the mobile home with a coat draped over his arm. Lamm testified that appellant told him that Silvers had gotten four ounces of methamphetamine from him. Lamm stated that he watched appellant weigh the drugs on a triple-beam scale and that when he left Hicks’s mobile home, appellant still had a quantity of methamphetamine in his possession.

Based upon a substantially similar account to Officer Scott on the evening of May 10, a search warrant was obtained for both appellant’s and Silvers’s residences, and legal searches were made on May 11. Officer Scott testified that a search of appellant’s home revealed four eight-balls of suspected methamphetamine in the kitchen, nine suspected Valium tablets in appellant’s pants pockets, approximately one-fourth gram of suspected methamphetamine on a glass pane, residue on razor blades and on a straw, as well as a spoon with residue, a wooden pipe, and a straw in a bedroom that was then occupied by Debra Schatz. Officer Scott also testified that a jar containing Valium tablets and some papers were found in the bedroom of Charles Lee, who also resided in the appellant’s mobile home. Additional exhibits introduced at trial included airline tickets to and from California, credit card receipts for a hotel room in Lawndale, California, and a Western Union receipt, which were all found in the master bedroom then occupied by Ms. Schatz.

Ms. Schatz testified that she picked up Hicks at a residence in California and saw drugs divided, a portion of which appellant put in a leather zip-up bag that he took with him. She testified that she knew he was doing a drug transaction because he had done it before and that Hicks carried the same leather bag on the return trip to Mountain Home.

In addition to the approximately two ounces of methamphetamine picked up at Lamm’s apartment on the night of May 10, additional controlled substances were found when the search of Rodney Silvers’s residence was conducted on May 11. Mrs. Silvers testified that she had found methamphetamine under the vanity in the master bathroom of the Silverses’ home, and tried to flush it down the toilet as the police began the search of her home. She further testified that on the previous day she heard a telephone message from appellant informing her husband that he was back, and she testified that her husband went to see appellant that evening. Appellant admitted that Silvers came by his house but insisted that it was later than the 5:30 time suggested by Lamm. Officer Tommy Steen testified that he conducted the search of the Silverses’ home and found about 5.6 grams of methamphetamine and two ounces of marijuana as well as a triple-beam scale, a straw, and a razor blade.

In determining whether sufficient evidence was presented to sustain appellant’s convictions on the count of delivering a controlled substance to Silvers; on the count of delivering a controlled substance to Lamm; and on the count of possession of a controlled substance with intent to deliver, as well as the count of possession of drug paraphernalia, we view the evidence in the light most favorable to the State and affirm where there is substantial evidence to support the verdict. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991). This review necessarily includes evidence both properly and improperly admitted. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). If evidence is of enough force to compel a conclusion one way or the other, and goes beyond suspicion or conjecture, it is considered substantial. Bennett v. State, 307 Ark. at 402, 821 S.W.2d at 14. Our standard of review requires us to consider only the testimony that supports the verdict of guilt. Id. (citing Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988)).

We find there is an abundance of substantial evidence to support this jury verdict. The job of the jury is to judge the credibility of witnesses and they may chose to believe, as they did here, the State’s case. Jones v. State, 297 Ark. 499, 763 S.W.2d 655 (1989). “It is the jury’s province to judge the credibility of witnesses, and we will not disturb their judgment.” Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).

Drug Paraphernalia Charge

Although the evidence, including evidence erroneously admitted, Harris, supra, is sufficient to support the conviction for possession of drug paraphernalia, the trial court committed error by allowing into evidence certain items designated as drug paraphernalia that were not shown to be in appellant’s possession. Appellant’s seventh assignment of error that is the trial court abused its discretion in admitting a triple-beam scale, which was seized from the Silverses’ residence, and a jar of Valium tablets found in Charles Lee’s bedroom. Appellant contends that this evidence was irrelevant and that its probative value was substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 401, 402, and 403.

His point is well taken. We have not been referred to any authority that ajar of Valium tablets should be considered as drug paraphernalia, and our review of Ark. Code Ann. § 5-64-101 does not include this as an item to be considered as such. Triple-beam scales, on the other hand, are included within the definition of “drug paraphernalia” in Ark. Code Ann. § 5-64-101(v)(5) as follows: “Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances.” See Brown v. State, 55 Ark. App. 107, 929 S.W.2d 146 (1996).

Although scales are paraphernalia, no connection was established between appellant and the triple-beam balance scale confiscated from the Silverses’ home. Similarly, no connection was established with the Valium tablets seized from Charles Lee’s bedroom. When a residence is shared and joint control is established, proof of knowledge of the contraband is required under our cases. Pyle v. State, 314 Ark. 180, 862 S.W.2d 165 (1993). No such knowledge was established in this case. Appellant’s argument has merit because any connection linking him to these items was tenuous at best, and would not support a conviction for constructive possession of these items. The scale was seized from the Silverses’ residence, and there is no evidence by which a jury could infer that appellant had control, exclusive access, or dominion over this place. Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). Therefore, any conclusion connecting appellant to the scales could only be reached by speculation and conjecture and their admission into evidence was prejudicial to the charge of possession of drug paraphernalia.

We have concluded that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice to the jury’s consideration of the charge of possession of drug paraphernalia, and the trial court abused its discretion in allowing the admission of the evidence over appellant’s timely objection. Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). We reverse the conviction on the charge of possession of drug paraphernalia and remand for a new trial or other disposition of that charge.

Harmless Error

While the erroneous admission of drug paraphernalia requires reversal of the conviction on the charge of possession of drug paraphernalia, evidence of drug paraphernalia is not essential to convictions on charges of possession or delivery of a drug. The admission of the scale and the Valium tablets as “paraphernalia” was harmless error with respect to the other charges. There was an abundance of evidence to support convictions for delivery of controlled substances and for possession of controlled substances with intent to deliver. The erroneous admission of additional drug paraphernalia was not prejudicial to the determination of guilt on those charges. We have held that when evidence of guilt is overwhelming and the error is slight, we can declare that the error is harmless and affirm. Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996).

Other Arguments

None of appellant’s other points of appeal has merit. Appellant’s second, fifth, and eleventh points of appeal are not preserved for our review; thus we do not reach the merits of these arguments. For his second point, appellant asserts the trial court abused its discretion by ordering the sentences be served concurrendy when he was a first offender, he had been legitimately employed, and he was otherwise a solid citizen. He claims the consecutive sentences were entered erroneously, and that the trial judge should have rejected the jury’s recommendation of consecutive sentences. However, we cannot reach this question because nothing in the abstract shows that objection was made to the sentences during the proceedings, and no ruling was abstracted. We have repeatedly held that we will not address on appeal issues that have not been preserved at trial. Jones v. State, 327 Ark. 85, 937 S.W.2d 633 (1997).

In his fifth allegation of error, appellant alleges that the police used false information in an affidavit in order to secure a search warrant for his premises in violation of Franks v. Delaware, 462 U.S. 213 (1983). However, appellant failed to raise this issue to the trial court at any point during these proceedings, and thus he is procedurally barred from now raising it on appeal. Jones, 327 Ark. at 87, 937 S.W.2d at 634.

He also states that his counsel violated his Sixth Amendment right to effective assistance of counsel by neglecting to file a pretrial motion to suppress. This argument is barred from our review as well, because he did not raise this allegation in a motion for new trial. We will not consider an for ineffective assistance of counsel argument on direct appeal unless the issue was raised in a motion for new trial. Tapp v. State, 324 Ark. 76, 920 S.W.2d 483 (1996); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

For his eleventh point of appeal, appellant argues that it was a denial of due process for the State to adopt a theory of the case not supported by the evidence. He provides no supporting argument, case law, or references to either the trial record or his abstract. A review of his abstract shows this argument is not abstracted for this court’s consideration, and it does not appear from the record he addressed the issue at trial court level. It is incumbent upon an appellant to produce a record sufficient to demonstrate error. Mayo v. State, 322 Ark. 328, 920 S.W.2d 843 (1996). The record on appeal is confined to that which is abstracted. Grinning v. City of Pine Bluff, 322 Ark. 43, 907 S.W.2d 690 (1995). Furthermore, we do not address arguments that are not supported by authority or convincing argument. Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606 (1977).

Appellant’s third and fourth allegations of error are basically the same claim. He asserts that the prosecutor committed misconduct by knowingly using peijured testimony of witness Mark Lamm and that use of such testimony deprived him of due process of law. Specifically, he argues that Lamm, the “informant,” lied in his affidavit when he stated under oath Rodney Silvers was in Baxter County at appellant’s residence when “obviously” he was at work in Marion County. Appellant claims that Lamm lied under oath for the police officers to obtain a search warrant.

Appellant has failed to demonstrate that Lamm’s substantive testimony was false or that there was of misconduct on the part of the prosecutor. The jury heard the testimony of several persons who said Silvers was at work until approximately 6:30 or 7:30 and that Silvers went to appellant’s home sometime after 5:30. Mr. Lamm stated he thought he saw Mr. Silvers at appellant’s home between 3:30 and 5:30. It is an issue for the jury’s resolution whether Rodney Silvers was participating in a drug transaction in Baxter County or was at work in Marion County, or whether he went to work and then participated in a drug transaction. Regardless, the issue of credibility is within the sole province of the jury. Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996).

Appellant next claims that the trial court should have set aside his convictions after the trial because of “overwhelming” new evidence. The abstract contains an “Amendment to Motion for New Trial,” which attaches three affidavits all stating verbatim that Rodney Silvers was at work from 2:30 to 6:30. One of these is from Allen Algee who testified to this issue at trial. These affidavits are not “newly-discovered” evidence, but merely impeach the testimony of Mark Lamm who stated that he thought he saw Silvers at appellant’s home between 3:30 and 5:30. Both Algee and Scott Garrison testified that Silvers left work between 6:30 and 7:30.

We have previously stated that appellant failed to prove that there was any perjury or any knowing use of such testimony by the State. Therefore, the issue becomes one of credibility, and we cannot say that the trial court abused its discretion in refusing to consider this “newly discovered” evidence as requiring a new trial. We do not reverse the trial judge’s refusal to grant a new trial absent an abuse of discretion. Bennett v. State, 307 Ark. at 404, 821 S.W.2d at 15. We have long held that newly discovered evidence is one of the least favored grounds to justify a new trial. Id. (citing Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972)). Moreover, we do not grant a new trial based on perjury on immaterial or collateral issues if the false testimony can be “ehminated without depriving the verdict of sufficient evidentiary support.” Bennett, 307 Ark. at 404, 821 S.W.2d at 15 (citing Little v. State, 161 Ark. 245, 255 S.W. 892 (1923)). If newly discovered evidence tends only to impeach other testimony presented at trial, it is not necessarily grounds for a new trial. Williams v. State, 252 Ark. at 1292, 482 S.W.2d at 812. Therefore, absent a showing that there was any perjured testimony at all, or that the “new” evidence would serve any purpose other than to impeach other testimony, we cannot say that the trial court abused its discretion.

For his eighth point of appeal, appellant complains that the trial court erred in allowing hearsay statements of Officer Scott to the effect that Charles Lee was not identified by witnesses as being the person who went to California. He claims that the admission of this evidence is hearsay evidence and violated his Sixth Amendment right to confrontation.

The officer’s statement that during his investigation no one identified Charles Lee as having traveled to California was not presented as proof whether Mr. Lee had gone to California or not, but only that the witnesses did not identify him as making the trip. This court has said that such .statements are admissible “not to show the truth of [such] statements, but to show that they were made____” Hill v. State, 314 Ark. 275, 862 S.W.2d 275 (1993). Citing Weinstein’s Evidence, the Hill court went on to say that statements are not hearsay when “the words are offered, not for their truth, but merely to show the fact of an assertion.” Id.; see also 4 John Weinstein & Margaret Berger, Weinstein’s Evidence § 801(c)(01), at 801-93 (quoting Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 233 (1922)), and United States v. Cantu, 876 F.2d 1134, 1137 (1977). Based on the court’s analysis in Hill, we conclude that Officer Scott’s testimony was not hearsay.

In his brief, appellant asserts that “other witnesses” were never called to testify by the State. Appellant’s abstract contains only the testimony of the following State witnesses: Officer Scott, Mark Lamm, Debbie Schatz, Robin Silvers, and Officer Steen. His brief does not make clear and it cannot be garnered from the abstract whether appellant is referring to “other witnesses” not a part of the proceeding or “other witnesses” who would later testify. We must therefore conclude that he means those who would later testify.

At trial, Mark Lamm had stated he had never bought from the roommate and was not sure that he was involved with drugs. Ms. Schatz stated she had previously met the roommate one time in California, but he was in Arkansas during this trip while appellant was in California. Appellant’s attorney conducted an extensive cross-examination of both of these witnesses; therefore, he was afforded his opportunity to confront them.

For his ninth point on appeal, appellant claims that the trial court erred in allowing a police officer to testify on redirect examination as to the variations in drug purity levels within a certain quantity of methamphetamine, when the officer was not an expert in this field. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). Prior to this testimony, on cross-examination, appellant’s attorney had already asked Officer Scott about the drug purity and stated, “I’ll open the door, give us your opinion.” Officer Scott responded. A short time later, when inquiring about a difference between drug amounts recovered at Mr. Hicks’s home and the amount bought in California, appellant’s attorney said, “I’ll open the door again, can you explain that difference?” First, appellant cannot complain of error when he is the one who originally elicited the testimony. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). Second, we do not find that the trial court abused its discretion in allowing the officer to testify to what, in his experience, were very common-sense explanations for a batch of methamphetamine not being mixed thoroughly. Moore v. State, 323 Ark. at 549, 915 S.W.2d at 295.

For his tenth point of appeal, appellant asks that we reverse his sentence because it was the result of passion, prejudice, and caprice, “if not actual misconduct,” and because it violates his Eighth Amendment guarantee that punishment be proportional. Appellant received sentences for the convictions that were within the statutory range. We do not review the severity of a sentence which is within the statutory range except in very narrow exceptions, none of which apply in this case. Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995). We affirm on this point.

In summary, we affirm on all points the convictions for two counts of delivery of a controlled substance and one count of possession of a controlled substance with intent to deliver, and we affirm the sentences of thirty years for each of the three convictions to be served consecutively. However, we reverse the conviction for possession of drug paraphernalia and remand that conviction for further proceedings.

Glaze and Brown, JJ., concur in part and dissent in part.

Newbern, Corbin, and Imber, JJ., dissenting in part and concurring in part.

Robert L. Brown, Justice,

concurring in part and dissenting in part. While I concur in the majority opinion in so far as it affirms Hicks’s convictions relative to the possession and delivery charges, I must respectfully dissent from that portion of the opinion that reverses his conviction for possession of drug paraphernalia due to the admission of the jar of Valium tablets and the triple-beam scales. The admission of such evidence, although erroneous, was not prejudicial error.

I. Methamphetamine Sale to Rodney Silvers

Clearly, the majority is correct in affirming the three methamphetamine-related convictions due to the overwhelming evidence of guilt. For example, as to the transaction with Rodney Silvers, Mark Lamm testified that Hicks admitted he sold Silvers four ounces of methamphetamine on May 10, 1995, and Lamm stated under oath that he saw Silvers leaving Hicks’s mobile home that afternoon with a coat draped over his arm. This evidence was corroborated by a subsequent search of Silvers’s residence, which uncovered a significant amount of methamphetamine that Robin Silvers testified was not present until after her husband’s return from Hicks’s mobile home.

II. Methamphetamine Sale to Mark Lamm and Possession of Methamphetamine with Intent to Deliver

As to the second transaction, Lamm’s testimony that he purchased methamphetamine from Hicks suffices as substantial evidence, and when corroborated with the methamphetamine found in Hicks’s bedroom and the testimony of Ms. Debra Schatz that Hicks carried the product from California in the leather zip-up bag, the evidence is convincing that he possessed methamphetamine with intent to deliver. In sum, the majority correctly disposes of Hicks’s argument with respect to these convictions.

III. Drug Paraphernalia

The State’s information charged Hicks with possession of a water pipe, or “bong,” containing suspected marijuana residue. Officer Lyle Scott of the Mountain Home Police Department testified that the bong was found in the living room of Hicks’s mobile home. Two hemostats containing suspected marijuana residue and a marijuana joint were found in close proximity to the water pipe. Because the mobile home was the joint residence of Hicks and Charles Lee, the State had the burden of proving that Hicks knew the water pipe was contraband and that he exercised care, control, and management over it. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995). This burden was met. Ms. Schatz testified that she went to sleep in Hicks’s bedroom on May 10, 1995, as early as 8:30 or 9:00 p.m. and that Charles Lee had left the mobile home as early as 4:00 p.m. that afternoon. From Hicks’s own testimony, he was awake and entertaining Rodney Silvers as late as 2:00 a.m. on May 11, 1995. This was only hours before the police search of the mobile home. Given the location of the water pipe at the time it was discovered and the fact that Hicks was the last person awake and in the living room, as opposed to Lee or Ms. Schatz, at the time of the search, there was clear evidence that Hicks, as opposed to any other occupant, had possession of the water pipe.

IV. Valium Tablets and Scales

This court has made it clear that a conviction may be affirmed if the evidence of guilt is overwhelming and the error complained of is slight. See, e.g., Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996); Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). On these facts, the error regarding the Valium tablets was slight given the fact that the jury was explicitly apprised of the fact that the Valium tablets were taken from Lee’s bedroom in the jointly-occupied mobile home. Furthermore, Valium tablets were found on Hicks’s person.

As to the triple-beam scales, it was made clear to the court and to the jury that they were taken from Silvers’s residence. The court’s ruhng, however, is not without some support, as evidence of scales used for weighing methamphetamine found at the home of Hicks’s purchaser the day after the sale of a significant amount of methamphetamine is certainly probative of the occurrence of the sale itself. Furthermore, the question of the prejudice suffered by Hicks must be answered. Officer Tommy Steen of the Baxter County Sheriff’s Department testified on cross-examination that he could connect the scales to Sdvers’s residence, but not directly to Hicks. Also, Hicks puts forth the argument that the scales seized were dissimilar to those testified to by Lamm as having been at Hicks’s mobde home. In sum, given all the evidence before the jury on the scales, the impact of this error was manifestly slight.

As noted earlier, however, the erroneous introduction of evidence does not, by itself, entitle a criminal defendant to a reversal of his conviction. Other jurisdictions have applied a harmless error analysis when an irrelevant drug or item of irrelevant paraphernalia was introduced in a criminal prosecution involving controlled substances. See, e.g., United States v. Williams, 957 F.2d 1238 (5th Cir. 1992) (admission of marijuana found on defendant’s person was harmless error in prosecution for possession of cocaine with intent to distribute); People v. Romero, 546 N.E.2d 7 (Ill. App. 2 Dist. 1989)(testimony as to roach clips was harmless error in prosecution for possession of cocaine with intent to deliver); People v. Hollis, 373 N.E.2d 734 (Ill. App. 1 Dist. 1978) (admission of marijuana found at defendant’s residence was harmless error in prosecution for possession of cocaine and heroin); Rogers v. State, 862 S.W.2d 47 (Tex. App. 14th Dist. 1993)(admission of marijuana seized from defendant’s house was harmless error as to defendant’s guilt on charges of possession of methamphetamine and burglary).

Because of the overwhelming evidence of guilt supporting all four convictions, I would affirm the four judgments despite the erroneous admission of both the Valium tablets taken from Lee’s bedroom and the triple-beam scales taken from Silvers’s residence.

Glaze, J., joins.

Annabellb Clinton Imber., Justice,

dissenting in part and concurring in part. I concur with the majority in holding that the trial court abused its discretion in allowing a set of triple-beam scales to be admitted into evidence over appellant’s timely objection. No connection was established between appellant and the set of triple-beam scales confiscated from another person’s home. Tommy Steen, an investigator for the Baxter County Sheriffs office, admitted that the set of triple-beam scales offered into evidence as State’s Exhibit No. 24 was found in a bedroom closet at the Silvers’s residence. Steen further admitted that he could not connect those triple-beam scales to the alleged transactions at the Hicks’s residence. Thus, any conclusion connecting appellant with the triple-beam scales could only be reached by speculation and their admission into evidence was prejudicial error. The admission of the triple-beam scales might have been proper had Steen recovered them from Hicks’s residence. See e.g., Cox v. State, 36 Ark. App. 173, 820 S.W.2d 471 (1991) (upholding the admission of testimony by officer who personally observed triple-beam scales in the defendant’s bedroom).

The majority further concludes that the probative value of the evidence improperly admitted by the trial court was substantially outweighed by the danger of unfair prejudice to the jury’s consideration of only one charge, the charge of possession of drug paraphernalia. I disagree. The danger of unfair prejudice extended to all charges, especially those involving delivery of controlled subtances and possession of a controlled substance with intent to deliver.

Although the majority accurately characterizes triple-beam scales as paraphernalia under the definition of “drug paraphernalia” in Ark. Code Ann. § 5-64-101 (v)(5), the information filed against appellant does not include an allegation of possession of triple-beam scales in the drug paraphernalia charge. Rather, the drug paraphernalia charge refers only to possession of a pipe containing suspected marijuana residue and a water pipe containing suspected marijuana residue. When the State moved to admit the set of triple-beam scales into evidence, the State made no reference to its relevancy with respect to a particular charge. Rather, the State’s argument in favor of relevancy is reflected in the following colloquy between counsel and the trial court:

MR. CHANDLER: I don’t understand. These are the scales from the Silvers’s residence. Are you representing that these are the scales that were used in this case or are they just the scales from the Silvers’s residence?
MR. WEBB: All I know Mr. Chandler, is that you made reference earlier to some scales that were missing. We’re simply, as a part of this investigation and coincidentally found in close proximity, these scales were recovered from one of the participants.
MR. CHANDLER: These are the missing?
MR. WEBB: I’d submit that they are relevant evidence.
MR. CHANDLER: I’m going to object to that, Your Honor.
COURT: Objection will be overruled.

(Emphasis added.)

It is highly probable that the jury considered the triple-beam scales in connection with all of the charges, particularly the charges of possession of a controlled substance with intent to deliver and delivery of a controlled substance. The introduction into evidence of triple-beam scales would support an essential element of the State’s controlled substance charges: delivery and intent to deliver. See Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993) (finding items, including a set of triple-beam scales and large quantities of plastic bags seized from the appellant, to be sufficient evidence of operating a drug premises).

As to the two counts of delivery of a controlled substance and and the one count of possession of a controlled substance with intent to deliver, I certainly cannot say that the jury was not adversely influenced by the erroneous admission of the set of triple-beam scales. To the contrary, the imposition of a sentence of thirty years on each count with a recommendation that the sentences be served consecutively indicates that the error did have a prejudicial effect as to all charges. See Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977).

For these reasons, I concur with the majority to reverse the conviction for possession of drug paraphernalia and remand on that count; however, I dissent from the majority’s affirmance of the convictions for two counts of delivery of a controlled substance and for one count of possession of a controlled substance with intent to deliver. I would reverse and remand for a new trial on those counts as well.

Newbern and Corbin, JJ. join in this dissent.


author: Per Curiam.

text:
    Ronald R. DOUGAN v. STATE of Arkansas
    CR 97-189
    940 S.W.2d 478
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      S.Kyle Hunter, for appellant.
    No response.
   Per Curiam.

On March 8, 1996, Appellant Ronald R. Dougan was convicted of rape and sentenced by the St. Francis County Circuit Court to a term of forty years in the Arkansas Department of Correction. A judgment and commitment order was entered of record accordingly on March 18, 1996. On March 11, 1996, seven days before the judgment and commitment order was filed, Appellant filed a motion for new trial, which was denied by the circuit court on March 20, 1996.

Appellant was represented at trial by Timothy G. Tucker. Additionally, Mr. Tucker subsequently filed and argued Appellant’s motion for new trial and also filed a notice of appeal on Appellant’s behalf on April 18, 1996. It is apparent, however, that prior to his posttrial representation of Appellant, Mr. Tucker’s license to practice law had been suspended.

The transcript in this matter was tendered to the Supreme Court Clerk on October 17, 1996, within the time allotted pursuant to Rule 5 of the Arkansas Rules of Appellate Procedure— Civil, but the notice of appeal was not timely filed from the entry of the judgment and commitment order. Because the motion for new trial was filed prior to entry of the judgment and commitment order, this court’s clerk does not recognize the motion for new trial for purposes of calculating the deadline for filing the notice of appeal.

Appellant has since retained new counsel, S. Kyle Hunter, and on February 20, 1997, Mr. Hunter filed a motion for belated appeal on the ground that the error in filing the notice of appeal was not Appellant’s and that Appellant’s previous counsel has refused to accept responsibility for the error.

Generally, where counsel assumes responsibility such motions are granted routinely. This court has stated in Shuffield v. State, 292 Ark. 185, 729 S.W.2d 11 (1987), that where counsel fails to accept responsibility, but it is plain from the record where the fault lies, we will grant the requested relief upon a finding that counsel’s neglect was the occasion for the failure to tender the record in a timely manner. In this case it is evident that the failure to bring a timely appeal was the fault of Attorney Timothy G. Tucker. We therefore grant the motion for a belated appeal and direct that a copy of this order be sent to the Committee on Professional Conduct to be kept in its files for the Committee’s information if any complaint of any kind should later be filed against Mr. Tucker. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

Granted.


text:
    Timothy Leo HARRINGTON v. STATE of Arkansas
    CR 97-242
    938 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      Theresa S. Nazario, for appellant.
    No response.
   Per Curiam.

Timothy Leo Harrington, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Theresa S. Nazario, admits in her 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. A copy of this opinion will be forwarded to the Committee on Professional Conduct.