author: Donald L. Corbin, Justice.

text:
    Ronita Faith BELL v. STATE of Arkansas
    CR 97-1004
    973 S.W.2d 806
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Steve Kirk and Michael Allison, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Ronita Faith Bell appeals the judgment of the Conway County Circuit Court convicting her of three counts of capital murder and sentencing her to life imprisonment without the possibility of parole. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant raises five points for reversal: (1) the evidence was insufficient to support the jury’s verdict; (2) the Attorney General’s office improperly participated in the prosecution of the case; (3) the trial court should have declared a mistrial due to the State’s mention of Appellant’s post-arrest silence; (4) the trial court erred in allowing the State to present rebuttal testimony of two witnesses; and (5) the trial court erred in admitting into evidence a letter written by a codefendant. We affirm the judgment of conviction.

The record reflects that on the morning of July 26, 1996, at approximately 5:30 a.m., Albert Flakes, the nephew of Larry Flakes and the grandson of Dorothy Flakes, was driving by the Flakes’ residence on Highway 64 in Menifee when he saw what he thought was a body lying in the driveway. Albert recognized the body of his uncle’s girlfriend Debra Yancy, which he described as having a bullet hole in her head. When Albert went inside the house, he saw that everything had been torn up and that his grandmother was not moving. Albert then went to look for his uncle Larry at 111 Alexander Street, a rented house where Larry ran a gambling establishment. When Albert arrived, there was no one there. Albert later went back to the Alexander Street house a second time, but there was still no one there. Finally, upon returning a third time, Albert found Appellant and her boyfriend Gregory Allen Cook at the house. Appellant and Cook had been living at the Alexander Street house and were employed by Larry Flakes at that time. Appellant and Cook did not let Albert into the house. Cook told Albert that he had not seen Larry. Cook showed no reaction when Albert told him what had happened at his grandmother’s house.

Larry Flakes’s body was subsequently found outside an abandoned house approximately one-half mile from the Flakes’ residence on Highway 64. Larry Flakes died after being shot multiple times and stabbed in the neck. Both Dorothy Flakes and Debra Yancy died as the result of gunshot wounds. Yancy also had postmortem injuries on her body that were consistent with her having been run over with a car. Officers discovered Larry Flakes’s 1989 Chevrolet Blazer near Maumelle, on an old logging road behind a liquor store. The vehicle was completely burned.

Officers recovered multiple 9-mm bullets and shell casings in and around the Flakes’ residence on Highway 64. They also recovered the following items from the house on Alexander Street: one spent lead bullet found on the floor; one bullet lodged in the wooden floor; three bullet holes in the floor of the front room and one in the wall; two bloody footprints; and a dish towel, a pair of blue and white tennis shoes, a pair of white gloves, and a pair of boxer shorts with blood stains on them. Officers also recovered a sales receipt from the Price Cutter store in Conway; the date and time of the receipt were Friday July 26, 1996, at 3:54 a.m. The receipt showed that the following items were purchased: Pine Sol, 9-Lives cat food, 9-Lives dinner, sausage pizza, hamburger pizza, Tidy Cat 3 cat litter, and King Edward Imperial cigars.

Officers submitted the items of evidence to the Arkansas State Crime Laboratory for analysis. Tests performed at the crime lab revealed that six bullets and shell casings recovered from the two residences and two bullets taken from the body of Larry Flakes had been fired from the same firearm barrel, which had rifling characteristics consistent with a 9-mm Luger firearm. DNA comparisons revealed that blood samples taken from the blue and white tennis shoes found in the bedroom at the Aexander Street residence had the same types of chromosomes found in Larry Flakes’s blood. The DNA analysis revealed further that the estimated chance of finding those types of chromosomes in an unrelated person at random is approximately one in two million in the black population.

Akansas State Police Investigator W.B. Baskin performed a luminol test at the Aexander Street house, which revealed the presence of animal or human blood, not visible to the naked eye, that had apparently been cleaned from the floor of the front room. The test also revealed an apparent trail of blood, indicating to Baskin that a body had been laying in the house and had been dragged toward the back of the house and out the back door.

Appellant and Cook, along with Patrick Charles Walker and Christopher B. Johnson, were subsequently charged with three counts of capital felony murder, for having killed the victims in the course of and in furtherance of a robbery, under circumstances manifesting an extreme indifference to the value of human fife. Appellant was tried in June 1997 and was convicted of all three counts. The State had waived the death penalty against Appellant, and she was accordingly sentenced to fife imprisonment without the possibility of parole.

I. Sufficiency of the Evidence

Appellant’s first argument for reversal is that there is insufficient evidence to support the jury’s verdicts against her. Appellant contends that the proof at trial was insufficient to establish that she had acted with the requisite mental state of purposely acting to promote or facilitate the crimes. We disagree.

When a defendant challenges the sufficiency of the evidence convicting her, the evidence is viewed in the light most favorable to the state. Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We do not, however, weigh the evidence presented at trial, as that is a matter for the factfinder; nor will we weigh the credibility of the witnesses. Id. Only evidence supporting the verdict will be considered. Bailey, 334 Ark. 43, 972 S.W.2d 239.

Appellant and the three codefendants were charged as accomplices to the crimes. An accomplice is defined as:

one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces another person to commit the offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or, having a legal duty to prevent the offense, fails to make a proper effort to prevent the commission of the offense.

Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997) (citing Ark. Code Ann. § 5-2-403 (Repl. 1993)). A defendant’s presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Id. Relevant factors in determining the connection of an accomplice to a crime are: (1) the presence of the accused in proximity of a crime, (2) the opportunity to commit the crime, and (3) an association with a person involved in the crime in a manner suggestive of joint participation. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). In order to sustain a conviction of capital felony murder, it is not necessary that the defendant be shown to have taken an active part in the killing as long as he or she was an accomplice and had the requisite intent to commit the underlying felony. Id.

Appellant was arrested in November 1996 and gave two interviews to police at that time. Investigator Dewayne Luter of the Arkansas State Police testified that he interviewed Appellant on November 19, and that she made the following statements. Appellant and Cook had driven to Maumelle on July 25, 1996, to pick up Chris Johnson, whom she called “Chaos,” and a male known to her as “Mr. P,” later identified as Patrick Walker. The four of them drove back to the house on Alexander Street in Menifee. Appellant then telephoned Larry Flakes to ask him to come over, because Flakes was going to give some money to her, so that she and Cook could go to a funeral out of state. Appellant was in the bedroom when she heard a vehicle arrive and someone come into the house; she was still in the bedroom when she heard gunshots. About five minutes later, Appellant came out of the bedroom and saw Larry Flakes lying on the floor. Appellant saw Johnson use his foot to turn Larry over onto his back; Johnson then took money and some dope from Larry’s body. They then took a sheet off the couch and wrapped it over Larry and loaded the body into Larry’s Blazer. Appellant and Cook stayed at the house and cleaned up the blood while Johnson and Walker left in Larry’s Blazer. Johnson and Walker were gone for fifteen to twenty minutes, and when they came back, Johnson was very excited and “hyper” and told Appellant and Cook that he had shot a woman. Johnson told them that he made the girl wake up Larry’s mother and then shot her. Johnson and Walker left again in Larry’s Blazer and Appellant and Cook took their vehicle and met up with Johnson and Walker in Maumelle, on the side of an old country road. Johnson then proceeded to take some items from the Blazer, namely rifles, shotguns, and some clothes that Larry Flakes had been selling, and loaded them into the trunk of the car occupied by Appellant and Cook. They then poured some liquor on the Blazer, and Johnson set the vehicle on fire. Appellant and Cook took Walker and Johnson to their respective houses; Johnson took the clothes and guns with him. Afterwards, Appellant and Cook went to Cook’s grandmother’s house for a few minutes and then drove around Conway for awhile, where they were stopped by the police. Finally, Appellant and Cook returned to the house on Alexander Street. Investigator Luter stated that the following day, November 20, 1996, Appellant contacted him about her previous statement. He stated that during that interview, Appellant told him that Cook had not stayed at the residence with her, but had actually left with Johnson and Walker in Larry’s Blazer, while she stayed at the house alone and cleaned up the blood. He stated that Appellant also told him that Walker had a black-handled knife.

Conway County Sheriff Mark Flowers, who was present during the two interviews with Appellant, testified that during those interviews, Appellant appeared calm and never talked about being scared of anyone, or about needing any protection from anyone.

Cassandra Baskin, who lived at 10 Alexander Street in Menifee, testified about her relationship with Appellant. Baskin stated that Appellant had lived with her in 1994 and 1995 and had gone to school with Baskin’s children. For about two weeks in May 1996, Appellant and Cook moved in with Baskin. During that time, Baskin introduced Appellant to Larry Flakes at Flakes’s house on Highway 64. While the three of them were inside the house, Baskin concluded that Appellant and Flakes were engaged in sexual activity. The night before the bodies were discovered, around midnight, Baskin had been to a club owned by David Hood in Menifee. She saw Larry Flakes there talking with Hood. Approximately an hour or an hour and one-half later, Baskin saw Larry Flakes’s Blazer followed by Appellant and Cook’s vehicle traveling down Alexander Street toward Highway 64. Baskin watched as the two vehicles turned onto Interstate 40. Baskin stated that the last time she saw Larry Flakes alive was at the club.

Angela McGowan testified that she had shared a cell with Appellant in the Conway County Jail and that Appellant had talked to her about the homicides. Appellant told McGowan that they had obtained the gun from a man named “Fat Mack,” and that the gun had later been thrown in a field in Maumelle. On separate occasions, Appellant told McGowan that different people had shot the victims — one time Appellant stated that Chris Johnson did it, and another time she stated that Patrick Walker did it. Appellant told McGowan that they had shot Debra Yancy, Larry Flakes’s girlfriend, and that Yancy had tried to run, but they ran over her with the car. Appellant also told McGowan that they took Larry Flakes’s Blazer to Maumelle and burned it. When asked by the prosecutor if Appellant had told her about any money being recovered, McGowan stated that Appellant told her that there was a bag of money, but that they never did get it. McGowan stated that during the times that she talked with Appellant about the crimes, she formed the impression that Appellant was part of the plan. McGowan stated further that during their conversations, Appellant never told her that she was scared of anyone.

Scarlet Dehart testified that she, too, had shared a cell with Appellant in the Conway County Jail for about seven weeks. Dehart stated that Appellant first told her that she did not have anything to do with the murders, but later changed her position. Dehart stated that on the day that Appellant made her first court appearance, Appellant came back from court mad because she thought that she was going to get out of jail. Appellant told Dehart that the cops were stupid, that they did not know what they were doing, and that she did know something about the crimes. Dehart stated that about one week later, Appellant became really upset about an accusation, apparently made by her mother, that she had slept with Larry Flakes. Appellant told Dehart that she had been involved with Flakes, but that no one could prove it. Appellant also told her that she had only slept with Flakes on one occasion, after she had done two lines of cocaine. On another occasion, Appellant again told Dehart that the police officers were stupid, because they thought the gun used was a 9 mm, but that it was actually a Tec-9. On another date, while Appellant and Dehart were in court, Appellant commented that a defense attorney reminded her of “Fat Mack,” the man that had provided them the gun. Appellant later told Dehart that David Flood had hired them for $2,000 each to “take care of Larry,” because Larry had failed to turn over some drug money and also owed money to Hood for outstanding amounts of drugs.

Dehart stated that Appellant described her participation in the crimes as follows. The defendants went to the place where Larry Flakes was and they “busted in” on him. Greg Cook had the gun. Flakes said that he had not done anything to them and that he would give them whatever they wanted. Flakes then began talking to Cook about Appellant, calling her derogatory names and saying that she was not worth it. Appellant then went over to Cook and said, “Let me do it.” Cook handed her the gun. Appellant pointed the gun between Flakes’s eyes and said, “Now, talk shit.” Flakes then said, “No, don’t do this,” but Cook said, “Do it.” Cook shot Dorothy Flakes between the eyes while she was asleep; Chris Johnson shot the girl, Debra Yancy, in the back and then ran over her. They took Larry Flakes’s Blazer to Lake Maumelle and burned it, using liquor to ignite it, so that any remaining fingerprints would not be discovered. They also took about $50,000 from the Flakes home, but did not give the money to David Hood; instead, they kept the money for themselves, telling Hood that they did not find any money. Cook kept his and Appellant’s share of the money and later used it to hire his attorney. Dehart stated that Appellant was mad about that because she was not able to hire an attorney and, instead, had to have the public defender.

Dehart testified further that Appellant had talked to her about being in a gang and had explained to her the different levels of disciples in the gang. Appellant told Dehart that she was a Hoover Disciple and that Cook was a Black Disciple. Appellant told her that she shot Flakes in order to position herself in Cook’s gang as his “queen.” Appellant also told her that she did it to earn respect from Cook for standing up for her man and proving that she did not have anything to do with Larry Flakes. Dehart stated that while Appellant was telling her about the gang information, Appellant was boastful. Dehart stated further that Appellant bragged about the crimes, and that Appellant “didn’t have any remorse in what was done, that, you know, when the young woman’s head got run over, that was a game[.]”

Appellant took the stand in her defense and related the following information to the jury. She testified that she and Cook picked up Johnson and Walker in Maumelle and brought them back to Menifee because Johnson wanted to buy some drugs from Larry Flakes. She stated that she had seen Johnson with a gun while they were in Maumelle, but that she did not know that he brought it with him to Menifee. Contrary to what she told Investigator Luter about Flakes bringing her some money to go out of state, Appellant stated that the reason she called Flakes that night was so he could bring over some drugs to sell to Johnson. She stated that Johnson told her to clean up the blood and that she was afraid of him because he had a gun in his hand and because he had once threatened to break her cousin’s neck. She admitted, however, that she and Cook later met up with Johnson and Walker on a dirt road in Maumelle, and that they took Johnson and Walker home after Johnson had burned the Blazer. She stated that they put the stolen clothes and guns in the storage shed. She stated that when she was initially arrested she denied any involvement or knowledge of the shootings because she was scared of Johnson and what he might do to her mother or her little brother. She asserted that she only later admitted to being present when the murder occurred, because the police had assured her that Johnson was in jail and was not able to get to her mother.

On cross-examination, Appellant stated that she knew Larry Flakes carried large sums of money, and that she had sometimes counted the money for him. She again asserted that Johnson told her to clean up the blood and that he was holding the gun when he told her this. Appellant stated: “I was going to do what he said. . . . Even when he wasn’t there. . . . He’s got gang friends. They know where my mother stay [sic].” She then stated that although she knew gang members, she was not in a gang, but that Johnson was in a gang. When asked why her statement to police made no mention of her claim that she had called Larry Flakes over to the Alexander Street house to sell some drugs to Johnson, as opposed to calling him to borrow some money to go to an -out-of-state funeral, Appellant claimed that she had told the police, but they did not write it down.

On rebuttal, Stephanie Russell testified that she had shared a cell with Appellant at the Conway County Jail and that Appellant had asked her about different members of the Flakes family. Russell stated that Appellant told her that the Flakes family had better hope that she didn’t get out of jail, and that “if she did she was going to call some of her homies . . . and that she would have Menifee wiped off the map.”

Based on the foregoing evidence, we conclude that there was sufficient evidence presented at trial showing that Appellant had acted with the purpose of promoting or facilitating the robbery of Larry Flakes, and that she assisted or aided in the commission of the crimes for which she was convicted. There was sufficient evidence that Appellant was the one who telephoned Larry Flakes and lured him to the Alexander Street house, where he met his death. There was also evidence, including Appellant’s own testimony, that she cleaned up the blood after Larry Flakes was killed and then helped dispose of the evidence, including the destruction of the victim’s Blazer. Moreover, the jury heard testimony from Angela McGowan and Scarlet Dehart concerning Appellant’s willful participation in the crimes from beginning to end. The jury has the sole authority to evaluate the credibility of witnesses and to apportion the weight to be given to the evidence. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). It is for the jury to resolve any questions of conflicting testimony and inconsistent evidence, and the jury may choose to believe the State’s version of the facts over the defendant’s. Id.; Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).

II. Assistant Attorney General’s Participation in the Trial

Appellant’s second point for reversal is that the trial court erred in denying her motion to have Assistant Attorney General Kent Holt barred from participating in the prosecution of her case. In support of this argument, Appellant relies on Ark. Code Ann. § 16-21-2004(d) (Repl. 1994), which states that all deputy prosecutors for the Fifteenth Judicial District, of which Conway County is part, shall reside in the Fifteenth Judicial District.

The State argued below that because Mr. Holt was appointed by the prosecuting attorney and was administered the oath of office by the circuit court, he was entitled to participate in the trial as a special deputy prosecutor. Moreover, the State argued that because Mr. Holt was not being paid through the county’s quorum court, the residency requirement for deputy prosecutors did not preclude his participation in the case. The trial court ruled that, although Mr. Holt, as a special deputy prosecutor, may not have had the authority to bring charges against anyone for crimes committed within the Fifteenth Judicial District, his assistance in Appellant’s case was not precluded because the case was being pursued in the name of the prosecuting attorney for that district.

On appeal, the State contends that Mr. Holt was a defacto official, and as such, Appellant’s challenge to his authority to assist the prosecutor is barred because she failed to attack that authority in a direct proceeding. The State relies on the holdings in State v. Roberts, 255 Ark. 183, 499 S.W.2d 600 (1973), and Chronister v. State, 55 Ark. App. 93, 931 S.W.2d 444 (1996), to support its argument.

In Roberts, 255 Ark. 183, 499 S.W.2d 600, the defendant challenged the authority of the deputy prosecutor to try him on the ground that he had not been reappointed after the elected prosecutor, who had originally appointed the deputy prosecutor, began his second term. This court recognized that the deputy prosecutor was a defacto official and that, as such, the defendant was required to challenge his authority in a direct proceeding, rather than in the criminal proceeding against him. Relying on a decision from the Supreme Court of Tennessee, this court outlined what constitutes a collateral attack:

[There] can be gleaned several guidelines for determining whether a particular attack upon the title of a public official is “collateral.” By the very definition of the word if the attack is secondary, subsidiary, subordinate, i.e., related to the main matter under consideration but not strictly a part thereof, the attack is indirect and collateral. If the official’s title is questioned in a proceeding to which he is not a party or which was not instituted specifically to determine the validity of his tide the attack is collateral. If the tide of the officer is questioned in a proceeding in which he is a party merely because he is acting in his official capacity the attack is collateral. Lastly if the attack is made because it is necessary to show the officer’s want of tide to lay a basis for some other relief the attack is collateral. . . .

Id. at 186-87, 499 S.W.2d at 602 (quoting Smith v. Landsden, 370 S.W.2d 557 (Tenn. 1963)). This court ultimately held that the deputy prosecutor was, through the acquiescence of the circuit court, at least a defacto official; hence, the attack made upon his authority to act constituted a collateral attack and could not be made under the law.

In Chronister, 55 Ark. App. 93, 931 S.W.2d 444, the defendant challenged the authority of the city’s prosecuting attorney to prosecute him for a state criminal violation. He argued that the city attorney of a first-class city was authorized to perform only such duties as are assigned to him by city ordinance, and that Russellville City Ordinance No. 988 authorized the city attorney to prosecute municipal violations, but made no mention of state law violations. He argued further that Ordinance No. 1411 prohibited the city attorney from engaging in the practice of law except for his duties as city attorney. He contended that the prosecuting attorney’s written authorization, in compliance with Ark. Code Ann. § 16-21-115 (1987), authorizing the city attorney to prosecute misdemeanor violations of state law occurring within the city limits was without effect because the city had expressly limited the city attorney’s authority.

The court of appeals affirmed the trial court’s judgment on the ground that the city attorney was a defacto official, holding:

A defacto official is one who by some color of right is in possession of an office, and performs its duties with public acquiescence, though having no right in fact; the acts of defacto officials may not be questioned based upon of the lack of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or when the person himself attempts to build up some right, or claim some privilege by reason of being the official he claims to be; in all other cases, the acts of an officer defacto are as valid and effectual while he retains the office as if he were an officer by right, and the same legal consequences will flow from them for the protection of the public and third parties.

Id. at 95, 931 S.W.2d at 445 (citing Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279 (1918)). Relying on this court’s holding in Roberts, the court of appeals held that the attack on the city attorney’s authority constituted a collateral attack, as the prosecuting attorney had authorized the city attorney to prosecute misdemeanors in accordance with statute, the city attorney had acted under that authorization, and the circuit court had recognized the city attorney’s authority.

Here, the record reflects that the charges against Appellant were filed by the elected prosecutor for the district, Jerry Don Ramey, and that the investigation of the case was at the direction of the prosecutor’s office. Mr. Holt was appointed as a deputy prosecutor by Mr. Ramey for the purpose of assisting Ramey in the prosecution of these murders. Mr. Holt was administered the oath of office by the circuit court as a deputy prosecutor on May 19, 1997; hence, the circuit court recognized Mr. Holt’s authority to participate in the proceedings against Appellant. Based on the foregoing case law, Mr. Holt was at least a defacto official. As such, Appellant’s challenge to his authority made during her criminal trial was a collateral attack, and as such, cannot be maintained under the law.

Furthermore, Appellant has not demonstrated how she was prejudiced by Mr. Holt’s participation in her prosecution. At trial, Appellant argued that it would prejudice her case if the jury were told that an assistant attorney general was participating in her case, asserting that such information would lead the jury to believe that Appellant’s case was of more importance than any other criminal trial. This alleged prejudice never materialized, however, because the State agreed that it would only identify Mr. Holt as a deputy prosecutor, without mentioning his employment with the Attorney General’s office. This court has repeatedly stated that prejudice is not presumed, and we will not reverse absent a showing of prejudice. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996); Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996). Accordingly, we conclude that the trial court correctly denied the motion, even if for the wrong reason, and we affirm its decision. See Huggins v. State, 322 Ark. 70, 907 S.W.2d 697 (1995); Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993).

III. Testimony of Appellant’s Post-Arrest Silence

For her third point for reversal, Appellant argues that the trial court erred in refusing to declare a mistrial when Investigator Luter testified about Appellant’s initial decision not to give a statement, after she had been informed of her Miranda rights. She relies on the Supreme Court’s holding in Doyle v. Ohio, 426 U.S. 610 (1976), and asserts that the State deliberately brought her post-arrest silence to the jury’s attention. The State contends that the testimony elicited by the prosecutor is not violative of the holding in Doyle, as Appellant’s post-arrest silence was not used to impeach her testimony at trial.

The record reflects the following direct examination of Investigator Luter by the prosecutor:

By Mr. Ramey:
Q. [D]id you have occasion to sit in on a statement by Ms. Bell?
A. Yes, I did.
Q. Before this statement was given was Ms. Bell advised of her, what we call Miranda Rights?
A. Yes, she was.
Q. Could you describe to the ladies and gentlemen of the jury what the Miranda Rights are?
A. Ms. Bell was advised that she had the right to remain silent, she had the right to consult an attorney and have an attorney present if she — if she could not afford one, one would be appointed for her at no cost. And basically, her rights were explained to her.
Q. Did she voluntarily talk with you or did she decide to exercise her Miranda Rights?
A. The first time she didn’t want to make a statement.
By Mr. Kirk: Your Honor, may we approach?

At that point, the following colloquy occurred at the bench, out of the hearing of the jury:

By Mr. Kirk: I object to the bringing out of her post duress [sic] silence in front of the jury. We talked about this the other day and the State specifically agreed to tell their officers not to bring that up.
By Mr. Ramey: . . . agreed to any instruction by the Court to disallow any statement.
By Mr. Holt: Or disregard the last —
By Mr. Ramey: Or, disregard the last comment. And I’ll pass by all that, Your Honor.
By Mr. Kirk: Well, I’d move for a mistrial based on that statement.
By The Court: Which statement are you referring to?
By Mr. Kirk: That the first time she refused to give a statement to him the first time she was asked.
By The Court: Okay. Your motion for mistrial is denied. I will instruct the jury to disregard the witness’s last statement. Will that meet your objection?
By Mr. Kirk: All right. Thank you, Your Honor.

Following the conversation at the bench, the trial court instructed the jury to disregard the witness’s last statement. There was no further mention of Appellant’s post-arrest silence during the remainder of the trial. Appellant now contends that the trial court erred in refusing to grant her motion for mistrial. We disagree.

“A mistrial is a drastic remedy that should be granted only where the error is so prejudicial that justice cannot be served by continuing the trial or where the fundamental fairness of the trial itself has been manifestly affected.” Williams, 329 Ark. 8, 20, 946 S.W.2d 678, 684 (citing Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996)). The trial court is afforded broad discretion in ruling on a motion for mistrial, and a mistrial will not be declared when the prejudice can be removed by an admonition to the jury. Id.

In Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987), this court discussed the Supreme Court’s holding in Doyle that questioning a defendant about his or her silence during and after receiving Miranda warnings violated the due process clause of the Fourteenth Amendment. The Court held:

[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. [Footnote omitted.]

Id. at 24, 722 S.W.2d at 277 (quoting Doyle, 426 U.S. at 618) (emphasis added). Where, however, a comment on the defendant’s post-arrest silence is not an attempt to impeach the defendant, it is not the type of comment prohibited by the Court in Doyle, 426 U.S. 610. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996).

In Greer v. Miller, 483 U.S. 756 (1987), the Court held that there was no Doyle violation where a question was asked by the prosecutor that touched upon the defendant’s post-arrest silence, but was followed by an immediate objection sustained by the trial court and an admonishment to the jury that it should disregard any questions to which objections were sustained. In further distinguishing Doyle, the Court stated that the prosecutor was not allowed to impeach the defendant with the silence, nor was the prosecutor otherwise permitted to call attention to the defendant’s silence.

Here, the only reference to Appellant’s post-arrest silence was made by a witness in response to one question by the prosecutor. The silence was not used to impeach Appellant’s testimony, and there was no further reference made by the prosecutor, either during examination of the witnesses or during closing argument, concerning Appellant’s initial decision to invoke her Miranda rights. Moreover, once the objection was made, the trial court immediately instructed the jury to disregard the witness’s answer. As such, we conclude that there was no Doyle violation.

Moreover, Appellant’s counsel indicated below that the trial court’s decision to admonish the jury to disregard the statement satisfied the objection to the testimony. The record reflects that when the trial judge informed defense counsel that he would instruct the jury to disregard the officer’s last statement, he specifically asked counsel if that instruction would meet counsel’s objection. Defense counsel then stated, “All right. Thank you, Your Honor.” This court has repeatedly stated that it adheres to the familiar principle that a defendant may not agree with a ruling by the trial court and then attack that ruling on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996); Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996).

IV. Rebuttal Evidence

For her fourth point on appeal, Appellant argues that the trial court erred in allowing the State to present the rebuttal testimony of Arkansas State Police Officer Freddie Williams, concerning gang symbols used by Greg Cook and a tattoo worn by Cook, and the testimony of Stephanie Russell, concerning threats Appellant made to her directed at the victims’ families. Appellant asserts that such testimony was improper rebuttal evidence and that the State should have included such evidence in its case-in-chief. The State argues that the rebuttal testimony was presented in response to the testimony elicited during the defense’s case from both Cook and Appellant, and that it went to the issue of their credibility. The State contends that both witnesses denied any gang affiliation, and that Appellant claimed to have only participated in the events surrounding the murders due to her fear of Chris Johnson’s gang connection. The State contends further that Russell’s testimony, that Appellant threatened to get her “homies” to “have Menifee wiped off the map,” was proper to refute Appellant’s claim that she acted out of fear of Johnson and that she only gave statements to the police after Johnson was arrested.

Admissibility of rebuttal evidence lies within the discretion of the trial court, and we will not reverse absent a showing of abuse of that discretion. Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995). Genuine rebuttal is evidence that is offered in reply to new matters. Anthony v. State, 332 Ark. 595, 967 S.W.2d 552 (1998). The fact that the State could have presented the testimony in its case-in-chief does not preclude its introduction on rebuttal if it serves to refute evidence raised by the defense. Isbell v. State, 326 Ark. 17, 931 S.W.2d 7 (1996); Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 498 U.S. 1048 (1991); Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). Here, the rebuttal evidence was in response to testimony elicited by the defense during its case. Accordingly, the trial court did not abuse its discretion in allowing the State to present the testimony of Russell and Williams.

V. Letter Written by Greg Cook

For her last point on appeal, Appellant argues that the trial court erred in allowing the State to introduce into evidence a letter written by Greg Cook, intended for codefendant Patrick Walker, on the grounds that the letter was irrelevant and highly prejudicial. Specifically, Appellant takes issue with the following statements contained in the letter:

It’s fucked up that we shouldn’t be on trial because look at what they got on the other suspects. ... I believe the Judge is crooked himself. . . . You have to deny your statement and say they scared you into make [sic] that false statement all right? . . . Oh, yeah, Lil Psycho will tell you how weak those low ass niggers is [sic], . . . Flush this down the toilet because they [sic] looking for any reason to convict us.

The State asserts that the letter was properly admitted to impeach Cook’s credibility by showing that he had attempted to influence a potential witness’s testimony.

Appellant offers no citation to authority in support of this point, nor does she offer any convincing argument as to how the letter, written by another person, was prejudicial to her case. Moreover, we agree with the State that the admission of this letter went to the issue of Cook’s veracity and credibility. It is settled law that matters pertaining to the admission of evidence are within the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998); Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997).

IV. Rule 4-3(h)

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

       Section 16-21-2004(d) provides an exception to the residency requirement for the deputy prosecutor in Scott County.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    SEECO, INC., Arkansas Western Gas Company, and Southwestern Energy Company v. Allen HALES, Mary Nelle Hales, Robert G. Jeffers, David P. Taylor, and Taylor Family Limited Partnership “A”
    98-1038
    973 S.W.2d 818
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Everett & Mars, by: Thomas A. Mars and John C. Everett; and Inhofe, Jorgenson, & Batman, P.C., by: J. David Jorgenson, for appellants.

      Smith, Maurras, Cohen, & Red, PLC, by: Don A. Smith and S. Walton Maurras; Marilyn J. Eickenhorst; and Gable & Gotwals, by: James M. Sturdivant, M. Benjamin Singletary, and Oliver S. Howard, for appellees.
   Robert L. Brown, Justice.

Appellants Seeco, Inc., Arkansas Western Gas Company, and Southwestern Energy Company (Seeco) moved this court to stay the trial of this matter set for September 28, 1998, pending a decision in their interlocutory appeal or, in the alternative, to expedite consideration of the interlocutory appeal. Appellees Allen Hales, Mary Nelle Hales, Robert G. Jeffers, David P. Taylor, and Taylor Family Limited Partnership “A” (Hales) oppose the motion to stay the trial but join in Seeco’s request for an expedited appeal. We deny Seeco’s motion for a stay of the trial. We expedite consideration of Seeco’s appeal from the trial court’s orders of August 10, 1998, but only with respect to the sufficiency of the thirty-day notice to Subclass II royalty owners. And we affirm the notice order of the trial court regarding that point.

This is the third appeal we have had concerning this matter. We first affirmed the trial court’s certification of the class of royalty owners in Seeco, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997) (Seeco I). We next affirmed the disqualification of one of Seeco’s trial counsel in this matter in Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998) (Seeco II). Seeco now has raised the adequacy of Hales’s notification of class members both with respect to royalty owners who have an interest in wells operated by Seeco and those Subclass II royalty owners who have an interest in wells operated by third parties under leases which are pooled into a drilling unit.

On May 24, 1996, Hales filed his complaint in this matter on behalf of a class of royalty owners who were interested in wells located in Franklin, Johnson, Washington, Crawford, and Logan counties and claimed unpaid royalties due from Seeco under Contract 59. On September 30, 1996, the trial court entered an order certifying the class, and on November 4, 1996, the trial court approved notice to the class members by mail supplemented by notice in a newspaper of the largest circulation in each of the five counties where the wells were located. Seeco appealed only from the order certifying the class, and the matter was stayed pending that appeal. We affirmed the certification of the class in Seeco I on October 30, 1997.

On February 3, 1998, an amended order was entered establishing the procedure for notifying the class members. This order tracked the trial court’s order of November 4, 1996, regarding mail and the supplemental publication of notice in local newspapers. It also made reference to the fact, as did the November 4, 1996 order, that Hales would request the names and addresses of Subclass II royalty owners from the third-party operators. Those requests were subsequently made. The notice order was extended on April 7, 1998, and based on the information received, Hales states it sent individual notice by mail on May 5 and 6, 1998, to 4,300 members of Subclass I and 3,000 members of Subclass II. Seeco estimates the number of notices sent to be 6,388. Hales also published notice in the newspapers in the five counties where the wells were located on May 15, 1998. The royalty owners were given until June 22, 1998, to decide whether they wanted to participate in the class action or to opt out of the class. A total of 148 royalty owners chose to opt out of the class, according to Hales. Of the total notices sent, 813 were returned either as nondeliverable or because the royalty owner was deceased, according to Hales. Seeco contends the number of those opting out was more than 1,000 class members.

On July 10, 1998, Seeco moved to dismiss the class action because Hales had failed to identify and notify every class member, as required by Ark. R. Civ. P. 23. The gravamen of the motion was that Hales had failed to obtain the necessary information about particular Subclass II royalty owners from certain third-party operators. Hales, thereafter, subpoenaed the information from the recalcitrant third-party operators. A hearing was held on Seeco’s motion, and the orders were entered on August 10, 1998. The first order denied Seeco’s motion to dismiss, and the second order called for individual notice by mail to those Subclass II royalty owners who had not been previously notified. The order further stated that the individual notice should occur by August 28, 1998. It also required published notice to class members in the newspaper with the largest circulation in Sebastian County by August 15, 1998. The notice mailed to those Subclass II royalty owners fixed a September 25, 1998 deadline for class members to opt out of the class.

Hales sent out the individual notices by mail to 725 Subclass II royalty owners on August 26, 1998, citing the September 25, 1998 deadline for opting out of the class. Of those 725 persons, Hales asserts that 289 had previously been mailed notice on May 6, 1998, leaving 409 persons being notified for the first time.

In its notice of appeal from the two August 10, 1998 orders, Seeco cites two points on appeal: (1) the notice procedure does not constitute the “best notice practicable” under due process and Ark. R. Civ. P. 23, and (2) the notice did not give class members a meaningful opportunity to exercise their rights. In its brief, Seeco makes several arguments:

• The first notice mailed to royalty owners on May 5 and 6, 1998, was inadequate, as evidenced by the high number of letters returned, and that certified mail, return receipt requested, and publication in a national newspaper would have been the “best notice practicable under the circumstances” under Ark. R. Civ. P. 23(c).
• Hales should have subpoenaed data on the royalty owners from the third-party operators.
• A thirty-day notice period for opting out of the class under the notice to Subclass II royalty owners fails to meet the requirements of Rule 23 and due process.

Our jurisdiction over interlocutory appeals is established by Rule 2(a)9 of our Rules of Appellate Procedure — Civil, which provides that an appeal may be taken from an order granting a motion to certify a class. Furthermore, in Union National Bank v. Barnhart, 308 Ark. 190, 198-99, 823 S.W.2d 878, 882 (1992), we explained that in addition to the appealability of an order certifying a class action, “an order prescribing notice of the class action is ‘fundamental to the further conduct of the case’ and is appealable.” Thus, our jurisdiction in this interlocutory appeal is limited to those parts of the August 10, 1998 orders that prescribe notice of the class action.

Seeco mounts several arguments regarding the defective notice initially sent out to royalty owners on May 5 and 6, 1998, and published in the five local newspapers. It urges that the trial court erred in failing to dismiss the class action in the August 10, 1998 order because of these defects and the absence of compliance with Rule 23 and due process. The order denying Seeco’s motion to dismiss, however, does not prescribe notice and as a result is not a proper issue for appeal at this juncture under Union National Bank v. Barnhart, supra. But, in addition, the questions concerning regular mail versus certified mail and publication in a national newspaper supplemented by publication in a newspaper in the five counties either were resolved in the trial court’s order of November 4, 1996, or were not raised in connection with that order. No appeal was taken from that notice order, and it is now law of the case. See Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994).

With respect to Seeco’s subpoena point, we similarly note that that issue was not raised with respect to the November 4, 1996 order, and, in any event, Hales has now subpoenaed the necessary information from the third-party operators.

The sole issue that is properly before this court is the issue of the prescribed notice for those Subclass II royalty owners which was to occur between August 28, 1998, and September 25, 1998. Narrowed even further, the issue is whether a twenty-eight-day notice (in actuality, it was a thirty-day notice based on the fact that the notices were mailed on August 26, 1998), meets the requirements of Rule 23 and due process. We conclude that it does.

The mechanics of notice to class members is left to the discretion of the trial court and is subject only to the reasonableness standard of due process. See Grunin v. Int’l House of Pancakes, 513 F.2d 114, 121 (8th Cir. 1975), cert. denied, 423 U.S. 864 (1975). Arkansas Rule of Civil Procedure 23(c) provides in part that “the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” The United States Supreme Court has made reference to the fact that the “best notice practicable” under Federal Rule 23 is individual notice. Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). Notice by publication is used to supplement individual notice when class members cannot be identified by reasonable efforts. See Eisen v. Carlisle & Jacquelin, Id.

Using these standards, we turn to the facts of this case. According to Hales, 725 notices went out by regular mail on August 26, 1998, and of that number, 289 members had previously been notified of the class action on May 5 or 6, 1998. Granted, it would have been preferable to have provided more time, and Seeco makes much of the complexity of the lawsuit and the time constraints inherent in retaining counsel and reaching an informed and intelligent decision in thirty days about whether to participate or opt out of the class. But we do not view the time period as unreasonably abbreviated so as to deprive the royalty owners of due process of law or to violate Rule 23.

Seeco primarily relies on Greenfield v. Villager Indus., Inc., 483 F.2d 824 (3d Cir. 1973), in support of its position. In Greenfield, the issue was notice to shareholders of a proposed class action settlement. Notice of the proposed settlement was published in the Wall Street Journal and The Philadelphia Evening Bulletin once a week for two consecutive weeks. The shareholders had just over thirty days from the last published notice to file proofs of claim or requests for exclusion. Some members of the class had left their stock in the “street name” with their stockbrokers, and the Third Circuit Court of Appeals concluded:

A one-month period hardly seems sufficient time for brokerage firms to search their records, notify customers, probably by mail, for whom they held shares in street name, received (sic) instructions from these customers, again probably by mail, and file the proofs of claim or requests for exclusion.

483 F.2d at 834. The Third Circuit, accordingly, held that the notice was fatally defective.

We view the Greenfield case to be categorically different from the case at bar. Here, individual notices were mailed directly to the 725 Subclass II members, some of whom had been previously notified. We do not view the notice period to be per se unreasonable for making an informed decision on whether to stay in or opt out of the class. We note in an analogous situation that a thirty-one-day notice has passed muster as a reasonable time for class members to refuse a proposed settlement. See Torrisi v. Tucson Electric Power Co., 8 F.3d 1370 (9th Cir. 1993). Moreover, should one or more royalty owners consider the time frame to be unreasonably brief, that matter could be raised to the trial court by those aggrieved persons or entities. We have made reference to the fact that the trial court has continuing jurisdiction to correct any deficiencies in notice during the litigation. See Union National Bank v. Barnhart, supra.

Rule 23(c) does not specify when notice must be sent to class members but leaves the matter to the discretion of the trial court. See R & D Business Systems v. Xerox Corp. 150 F.R.D. 87, 91 (E.D. Tex. 1993) (interpreting Fed. R. Civ. P. 23(c)(2)); see also Reporter’s Notes 2, Ark. R. Civ. P. 23. We hold that the trial court did not abuse its discretion in prescribing the notice for those Subclass II royalty owners in its August 10, 1998 order.

Affirmed.

Thornton, J., not participating.


author: Per Curiam.

text:
    Joe Louis Dansby v. STATE of Arkansas
    CR 97-1415
    973 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered September 18, 1998

      Eugene D. Bramblett, for appellant.

      No response.
   Per Curiam.

Counsel for appellant Joe Louis Dansby, who is Eugene D. Bramblett, moves for an additional period of time in which to file appellant’s brief in a case where Williams received a sentence of death and where a final extension had previously been granted. In reviewing the history of this case, we note where we granted counsel’s motion for extensions of time to file appellant’s brief on January 20, 1998; April 22, 1998; and May 20, 1998. The last extension was described as a “final extension,” and the brief was due on July 19, 1998. The pending motion before this court is for an extension of time to August 18, 1998. Appellant tendered his brief to this court on that date.

We direct the clerk of this court to file appellant’s brief.

Because counsel has failed to meet the deadline under a final extension for filing appellant’s brief, he is ordered to appear before this court at 9:00 a.m. on October 1, 1998, and show cause why he should not be held in contempt.


text:
    FIRST COMMERCIAL BANK, N.A. v. Michael W. WALKER, Aearth Development, Inc., Aearth Preparation, Inc., and Coal Processors, A Joint Venture
    96-1495
    973 S.W.2d 823
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Barber, McCaskill, Jones & Hale, P.A., by: Glenn W. Jones, John S. Cherry, and Joseph F. Kolb; and Williams & Anderson, by: Philip S. Anderson, Leon Holmes, and Katharine R. Cloud, for appellant/ cross-appellee.

      The Burk Law Firm, A Professional Corporation, by: Michael G. Burk; Walker & Black, by: Kendall R. Black; and James E. Burk, for appellees/cross-appellants.
   Per Curiam.

Appellees Michael W. Walker, Aearth Development, Inc., Aearth Preparations, Inc., and Coal Processors, Inc., filed a motion to recall the mandate and to stay the recalled mandate, including appellant’s entitlement to collect appeal costs, pending the disposition of their petition for writ of certiorari and appeal, if certiorari is granted, to the United States Supreme Court.

We grant appellees’ motion to recall the mandate and to stay the mandate pending the disposition of appellees’ petition for writ of certiorari to the Supreme Court, or for ninety days from the date of this order, whichever is first. If the Supreme Court grants certiorari, we continue to recall and stay the mandate pending the disposition of the appeal.

Motion granted.

J.W. Green, Jr., Hani W. Hashem, and Mark Klappenbach, Sp. JJ., join. Glaze, Brown, and Imber, JJ., not participating.


text:
    Floyd H. FULKERSON v. The Honorable Morris W. THOMPSON, Circuit Judge, Fifth Division Pulaski County Circuit Court
    98-863
    974 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Hankins, Hicks, Madden, & Blagg, by: Stuart W. Hankins, for petitioner.

      Winston Bryant, Att’y Gen., by: Sherri L. Robinson, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner, Floyd H. Fulkerson, requests that this court issue a writ of certiorari and order Respondent, Pulaski County Circuit Court Judge Morris W. Thompson, to promptly comply with the mandate of the Arkansas Court of Appeals. Judge Thompson responds that Fulkerson is not entitled to a writ of certiorari because the order entered on July 9, 1998, is a matter of judicial discretion and the trial court did not abuse its discretion or act in excess of its jurisdiction.

This action commenced on May 5, 1995, when Fulkerson filed a complaint in Pulaski County Circuit Court against Sylvester Van Burn, individually and d/b/a The Progressive Church, Inc., and requested that the court eject the congregation from a church building and 4.5-acre parcel of land owned by Fulkerson since December 1949. The church filed a counterclaim and asserted that it owned the parcel of land by adverse possession. The case was tried before Judge Thompson in October 1996, and on November 12, 1996, a judgment was entered by the Pulaski County Circuit Court in favor of the Progressive Church, awarding the church title to the parcel of land based upon adverse possession. Fulkerson appealed the Pulaski County Circuit Court’s judgment to the Arkansas Court of Appeals, which rendered its decision on February 11, 1998, reversing and remanding the case to the trial court. Specifically, the Arkansas Court of Appeals concluded that the Progressive Church did not adversely possess the land, and the majority opinion issued the following directive to the Pulaski County Circuit Court:

For the reasons set forth above, we reverse the Pulaski County Circuit Court’s judgment in favor of appellee the Progressive Church, Inc., on its counterclaim for adverse possession, and remand to the circuit court for further proceedings not inconsistent with this opinion.

On March 18, 1998, a petition for rehearing filed by the Progressive Church was denied by the Arkansas Court of Appeals and the Supreme Court Clerk issued the mandate.

Upon remand to the Pulaski County Circuit Court, Fulkerson filed a motion for entry of an order to enforce the mandate, and the Pulaski County Circuit Court entered an order on May 1, 1998, which granted Fulkerson possession of the real property in question and ordered the Progressive Church to vacate the property within ten days of the date of the order. On May 29, 1998, the Progressive Church filed a motion to reconsider in which it asked for an additional six months to vacate the property (i.e., until November 29, 1998). Fulkerson responded to the church’s motion and requested that the motion be denied and that he be given immediate possession of his property without further delay. On July 9, 1998, the Pulaski County Circuit Court entered an order granting the Progressive Church an additional six months to vacate the property (i.e., until January 9, 1999).

Fulkerson contends that the Pulaski County Circuit Court lacked the jurisdictional power to enter the July 9 order because it is not consistent with the mandate of the Arkansas Court of Appeals, and because the Pulaski County Circuit Court has no power to change or extend that mandate. Judge Thompson responds that the July 9 order is a matter of judicial discretion and that Fulkerson may pursue an action for damages against the Progressive Church for the time the church remains in possession of Fulkerson’s property.

It is axiomatic that a writ of certiorari is an extraordinary writ and can only be granted when the petitioner is clearly entitled to the relief. Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985). We recognize that certiorari lies only when there is a lack of jurisdiction or there has been an excess of jurisdiction on the face of the record or the proceedings are erroneous on the face of the record, and there is no other adequate remedy at law. King v. Davis, 324 Ark. 253, 920 S.W.2d 488 (1996). Although certiorari does not lie to control judicial discretion, it is available to control “plain, manifest, clear, great or gross abuse of discretion ...” Simpson v. Pulaski County Circuit Court, 320 Ark. 468, 899 S.W.2d 50, 51 (1995).

It has also been well-established by this court early in its history that whatever is before the Supreme Court and disposed of in the exercise of its appellate jurisdiction must be considered setded and the lower court must carry that judgment into execution according to its mandate. Watkins v. Acker, 195 Ark. 203 (1937). See also, Carroll Elec. Coop. Corp. v. Benson, 319 Ark. 68, 889 S.W.2d 756 (1994) (trial court has no power to change or extend the mandate of the Supreme Court). This principle was recognized as early as 1843 by the Supreme Court in Fortenberry v. Frazier, 5 Ark. 200, 202 (1843):

Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate and settle such matters as have been remanded, not adjudicated by the Supreme Court. . . . The principles above stated are, we think, conclusively established by the authority of adjudged cases. And any further departure from them would inevitably mar the harmony of the whole judiciary system, bring its parts into conflict, and produce therein disorganization, disorder, and incalculable mischief and confusion. Besides, any rule allowing the inferior courts to disregard the adjudications of the Supreme Court, or to refuse or omit to carry them into execution would be repugnant to the principles established by the constitution, and therefore void.

In Arkansas Baptist College v. Dodge, 198 Ark. 592, 593, 74 S.W.2d 645, 646 (1934), the Arkansas Supreme Court issued a writ of prohibition forbidding the lower court from entering any decree except as mentioned in the mandate: “From the paragraph of the opinion quoted, it definitely appears that the cause was reversed with specific directions to enter a decree in accordance with the opinion, therefore there was nothing for the chancellor to do but enter a decree dismissing the complaint for want of equity.”

The Pulaski County Circuit Court’s July 9 order is not consistent with the mandate by the Arkansas Court of Appeals. Rather, the July 9 order extends the mandate issued by the Arkansas Court of Appeals by allowing the Progressive Church to remain on Fulkerson’s property for approximately eight months beyond the original order entered by the Pulaski County Circuit Court on May 1, 1998. Such an extension would effectively mean a delay of almost eleven months before implementation of the mandate issued on March 18, 1998. We conclude that the Pulaski County Circuit Court clearly abused its discretion when it entered the July 9 order and that Fulkerson has no adequate remedy at law to secure immediate possession of his property as mandated by the Arkansas Court of Appeals. We further conclude that Fulkerson is entitled to the entry of an order by the Pulaski County Circuit Court which is consistent with the mandate of the Arkansas Court of Appeals and which gives Fulkerson immediate possession of his property.

Writ of Certiorari granted.


text:
    Richard A. HUBBARD v. STATE of Arkansas
    CR 97-431
    973 S.W.2d 804
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Sharp & Sharp, P.A., by: J. Baxter Sharp III, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1990, a jury convicted Richard Hubbard of first-degree murder and sentenced him to fife in prison for the shooting death of his wife in the parking lot of a McDonald’s in Brinkley, Arkansas. We affirmed the conviction and sentence in Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991).

At the time of Hubbard’s conviction, Arkansas Criminal Procedure Rule 37 had been abolished and was replaced with Rule 36.4. Under Rule 36.4, a defendant who wished to raise a claim of ineffective assistance of counsel had to do so in a motion for a new trial within thirty days of the date of the judgment. Although it is unclear whether Hubbard filed such a motion, he subsequently pursued habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal court. On November 5, 1995, the United States District Court for the Eastern District of Arkansas ordered that a writ of habeas corpus would issue “unless, within ninety (90) days, petitioner is allowed to prosecute with the benefit of counsel, Rule 36.4 proceedings in Monroe County Circuit Court and an appeal if desired.”

Pursuant to the order of the federal court, the Monroe County Circuit Court appointed an attorney to represent Hubbard in the postconviction proceedings. The appointment was made on January 29, 1996. The postconviction hearing was held on August 12, 1996.

During the hearing, Hubbard made several allegations of ineffective assistance of counsel, including his attorney’s alleged failure to insure that Hubbard received a psychological evaluation from a neutral, unbiased professional, and that the evaluation focused on how his culpability was affected by his addiction to drugs and alcohol. Hubbard also claimed that his attorney did not discuss his case with him frequently enough prior to trial; and that he failed to adequately investigate witnesses for both the defense and the prosecution. Additionally, Hubbard also claimed that the State did not comply with the federal court’s order to allow him to prosecute his Rule 36.4 claims within ninety days, and he contended that the first-degree murder statute was vague and over-broad. The circuit court entered an order denying relief on December 31, 1996. Hubbard now appeals that order. We affirm.

For his first argument on appeal, Hubbard contends that the circuit court erred in denying relief on his claim that the State did not comply with the federal court’s order in a timely manner. Specifically, he contends that the intent of the order was to have the entire Rule 36.4 matter, including the appointment of counsel and the postconviction hearing, concluded within ninety days. In response, the State contends that this court is unable to interpret and enforce an order of the federal court. We agree.

The issue of whether or not the State complied with the ninety-day condition set forth in the federal court’s order is outside the scope of our review. Even if it can be said that the State did not comply with the District Court’s order, the enforcement of the order is in the jurisdiction of that court, and not here.

Hubbard also contends that the first-degree murder statute, as it was written at the time of his conviction, was unconstitutionally vague and overbroad. In 1989, Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1989) provided:

(a) A person commits murder in the first degree if:
(2) With a purpose of causing the death of another person, he causes the death of any person.

Hubbard contends that confusion arises from the use of “another person” and “any person” in the statute. Specifically, he argues that he did not receive fair notice of the crime because the relationship between these two phrases is not defined in the statute. We affirm the circuit court’s denial of relief on this claim because Hubbard has not met his burden of proving that the statute is unconstitutional. See Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).

In Vickers v. State, supra, we concluded that a later version of the statute, which substituted “another” for “any” in subsection (a)(2), was not void for vagueness. We reasoned that the subsection was merely broad enough to cover two situations in which a purposeful killing might occur. In other words, the statute covers the situation when the defendant actually kills the intended victim, as well as a “transferred intent” situation, when a third person, rather than the intended victim, is killed by the defendant’s action. Hubbard does not cite us to any convincing authority as to why the 1989 version of the statute should be interpreted any differently. We fail to see, moreover, how Hubbard can claim that he did not have fair warning that his conduct, which consisted of the purposeful shooting of his wife in a public parking lot, did not amount to first-degree murder.

For his last claim in this appeal, Hubbard contends that he should have been granted postconviction relief on his ineffective assistance of counsel claims. As indicated above, Hubbard alleged that his trial counsel was ineffective because he failed to ensure that Hubbard’s mental evaluations would include an inquiry into his drug and alcohol abuse, and because he failed to ensure that Hubbard was evaluated by a neutral, unbiased professional. Hubbard also alleged that his attorney failed to adequately prepare his client and investigate the State’s witnesses.

We cannot reach the merits of these claims because Hubbard has not included an abstract of the trial in his brief. An abstract of the trial is needed in order to evaluate Hubbard’s claims according to the “cause and prejudice” test in Strickland v. Washington, 466 U.S. 668 (1984). See Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994).

Affirmed.


text:
    Lonnie HULL v. The Honorable Richard E. GARDNER, Jr.; State of Arkansas, Office of Child Support Enforcement
    98-844
    974 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Young & Finley, by: Dale W. Finley, for petitioner.

      Kennedy, Phillips & Douthit, by: John C. Riedel, for respondent Richard E. Gardner, Jr.
   Per Curiam.

Petitioner Lonnie Hull petitions this court for a writ of certiorari and writ of mandamus to respondent Chancery Judge Richard E. Gardner, Jr., directing the judge to hold a hearing on Hull’s ability to pay past-due child support or, alternatively, for a writ of certiorari excusing Hull from payment of the child support.

Based on the scant record and pleadings which this court has before it, it appears that on March 4, 1998, Hull approved an Agreed Order on Contempt when he was committed to the Pope County Detention Center, with the commitment suspended on the condition that Hull pay $1,064 on or before March 19, 1998. Hull failed to make that payment, and on July 2, 1998, he was incarcerated for contempt. It appears from what we have before us that he has been continually jailed since that time.

Hull now argues to this court that the “undisputed testimony in the record demonstrates” that he has no ability to pay the child support and that the chancery judge has not examined the existing record to determine his ability to pay. Respondent State of Arkansas, Office of Child Support Enforcement responds that Hull has presented no evidence of his inability to pay and further emphasizes that the jailing is due to his failure to comply with the Agreed Order.

We cannot determine from the record before us whether the chancery judge considered Hull’s ability to pay prior to his incarceration for contempt. Nor can we tell whether the judge was asked by Hull to make such a determination. Our caselaw is clear that incarceration for contempt for fading to pay child support is not used unless the contemnor has the ability to pay. Gould v. Gould, 308 Ark. 213, 823 S.W.2d 890 (1992).

We remand this matter to the trial court and direct that the issue of Hull’s ability to pay be determined in a hearing forthwith. See Whitworth v. Whitworth, 331 Ark. 461, 961 S.W.2d 768 (1998). In the event that this issue has been previously considered and determined by the chancery judge, we direct that that determination be made part of the record.


text:
    Jamie Darnell LEE v. STATE of Arkansas
    CR 98-485
    975 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Mickey Buchanan, for appellant.
    No response.
   Per Curiam.

Appellant, Jamie Darnell Lee, by his attorney, Mickey Buchanan, has filed a motion for an extension of time in which to file his record and writ of certiorari to complete the record. On April 27, 1998, Lee, through his counsel, filed a motion to request an extension of time in which to file his record and writ of certiorari to complete the record. The court granted the motion until June 13, 1998. This extension was described as a “final extension.” On June 5, 1998, the supreme court clerk’s office received notice that because the court reporter’s husband had recently passed away, the record would not be completed by June 13, 1998. Lee then requested a second extension on June 11, 1998, and it was granted until July 13, 1998. Lee filed this third motion for an extension on July 10, 1998.

It is not the practice of this court to grant extensions as a matter of course after a final extension has been given. Bell v. State, 332 Ark. 432, 961 S.W.2d 36 (1998) (per curiam). However, we recognize that certain extenuating circumstances, such as are present in this case, are unavoidable, and the appellant should not be denied his right to an appeal based on those circumstances.

A final extension of thirty days is therefore granted.


text:
    Cecil POYNER v. ARKANSAS CONTRACTORS LICENSING BOARD
    98-952
    973 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Lyon, Emerson & Cone, by: Scott Emerson, for appellant.
    No response.
   Per Curiam.

Appellant Cecil Poyner, by his attorneys, Lyon, Emerson & Cone, has filed a petition for writ of certiorari to complete record.

Judgment was entered against appellant in the Circuit Court of Pulaski County, Arkansas, on January 6, 1998. Appellant filed a timely notice of appeal on January 22, 1998, and ordered a trial transcript from Lené Collins-Sontag, substitute court reporter for Circuit Judge John Ward. Because of her case load, Ms. Collins-Sontag, on April 8, 1998, requested that counsel for appellant obtain an extension of time to include the maximum seven-month period for her to complete the record. That extension was granted, making the transcript due on August 6, 1998. Despite efforts of counsel to obtain the transcript, the court reporter has' failed or refused to complete the record.

We hereby grant appellant’s petition for a writ of certiorari and order the court reporter, Lené Collins-Sontag, to complete and file the transcript in this case within thirty days from the date of this order.


text:
    Dennis SUBLETT v. STATE of Arkansas
    CR 97-49
    973 S.W.2d 823
    Supreme Court of Arkansas
    Opinion delivered September 18, 1998

      Kenneth G. Fuchs, for appellant.
    No response.
   Per Curiam.

The procedural background in this matter is set forth in our per curiam opinion delivered on July 16, 1998. Sublett v. State, 334 Ark. 226, 969 S.W.2d 666 (1998). Attorney Kenneth G. Fuchs, counsel for appellant Dennis Sublett, was ordered to appear before this court on September 10, 1998, to show cause why he should not be held in contempt for his failure to file Mr. Sublett’s brief in a timely manner. Mr. Fuchs appeared on that date, entered a plea of guilty to the contempt citation, and accepted full responsibility for fading to file the appellant’s brief.

Based on the foregoing, we hold that Mr. Fuchs is in contempt for failing to file Mr. Sublett’s brief in a timely manner, and we fine him $250.00. A copy of this order will be forwarded to the Committee on Professional Conduct.


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

text:
    Kevin Dewayne BAKER v. STATE of Arkansas
    CR 97-1050
    974 S.W.2d 474
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      Hatfield & Lassiter, by: Jack T. Lassiter, for appellant.

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

On July 24, 1997, a jury convicted the appellant, Kevin Dewayne Baker, of two counts of first-degree murder and sentenced him to life imprisonment in the Arkansas Department of Correction. Baker timely filed his notice of appeal to this court on August 4, 1997, and our jurisdiction is warranted pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (1998). The appellant raises three points on appeal. First, he argues that the trial court abused its discretion by admitting into evidence eight crime-scene photographs depicting the deceased victims. Second, Baker contends that the trial court abused its discretion by admitting a State witness’s “surprise” testimony, formerly unrevealed to either party. Third, Baker asserts that the trial court abused its discretion by admitting testimony concerning an oral statement, attributed to the appellant, that “it gets easier every time.” We conclude that the appellant’s arguments lack merit, and we hold that the trial court did not abuse its discretion. Accordingly, we affirm.

I. Facts

On March 14, 1996, a number of guests gathered at the appellant’s home, including the appellant, Greg Cureton (the appellant’s brother-in-law), David Davis, Greg Dufrene, and Clyde Dufrene. Witnesses testified that the Dufrene brothers taunted Cureton and told him that a named individual had taken out a “hit” on Cureton’s fife. According to the Dufrenes, a man named Paul Jones had been hired to kill Cureton. At approximately 9:00 or 9:30 p.m., the appellant and Cureton left the party en route to Paul Jones’s home.

At trial, Cureton testified that after he and the appellant arrived at Jones’s home, Jones came outside and they talked. According to Cureton, as he turned to return to the vehicle and leave, the appellant rushed past him, stabbed Jones and then stabbed Sheila Goodwin, Jones’s friend who was also on the scene. Next, Cureton reported that Baker handed him the knife and asked him to stab Jones and Goodwin. He acknowledged that he pretended to do so, and, then, he and the appellant dragged the bodies into Jones’s trailer. After leaving Jones’s trailer, they encountered David Davis and his wife on the road. Cureton informed the Davises that they should not go to Jones’s residence. Following this meeting, Cureton and the appellant disposed of the knife used to stab Jones and Goodwin. Subsequently, the police recovered a knife from a location identified by Cureton as the bridge where he and Baker had abandoned the knife. Finally, Cureton reported that he and the appellant traveled to the Davises’ home where they burned clothes and Baker cleaned up and asked for thread to stitch up a deep gash in his hand.

Paul Jones and Sheila Goodwin were found dead in Jones’s trailer early on the morning of March 15, 1996. According to the autopsy report, the cause of death for both victims was multiple stab wounds. The day after the incident, the appellant visited his sister’s home in Michigan where he was arrested and interviewed, also on the morning of March 15, 1996. In his defense, Baker contended that Cureton stabbed Jones and Goodwin and that he sustained the gash on his hand while he was attempting to stop Cureton.

II. Admission of photographs

Relying on Ark. R. Evid. 403, Baker first argues that the trial court erred by permitting the State to introduce eight crime-scene photographs of the victims’ bodies as they were found by the police. Rule 403 provides for the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although evidence is relevant, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Id.

Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs. Jones v. State, 329 Ark. 62, 65, 947 S.W.2d 339, cert. denied, 118 S. Ct. 574 (1997). Moreover, as to the admission of photographs, we have specifically discussed the guideposts for determining whether a trial court has abused its discretion. In Jones, we explained that although the relevancy and admission of photographs is a matter within the sound discretion of the trial court and that we are highly deferential to that discretion, we reject a carte blanche approach to the admission of photographs. Id. (citing Carmago v. State, 327 Ark. 631, 940 S.W.2d 631 (1997) (internal citations omitted)). In making the admission determination, we require a trial court to consider, first, whether the relevant evidence creates a danger of unfair prejudice, and, second, whether the danger of unfair prejudice substantially outweighs its probative value. Id. at 66.

Significantly, after applying the Rule 403 balancing test, we have held that

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 the testimony. 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. Of course, if a photograph serves no valid purpose and could only be used to inflame the jury’s passions, it should be excluded.

Id.

Here, the appellant argues that because the defense stipulated as to the cause of death, i.e., multiple stab wounds, that the photographs lost any relevance if admitted for the purpose of showing the cause of death. However, the State correctly points out that a defendant cannot prevent a photograph’s admission simply by conceding the facts of the crime. See Schalski v. State, 322 Ark. 63, 68, 907 S.W.2d 693 (1995) (citing Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991)).

The appellant was charged with murder in the first degree. A person commits murder in the first degree if, with a purpose of causing the death of another person, he causes the death of another person. Ark. Code Ann. § 5-10-102 (Repl. 1997). At trial, the State’s theory of the case was that Baker stabbed Jones and Goodwin outside Jones’s home and then dragged the bodies inside the home with the assistance of Greg Cureton. As to the admission of the challenged photographs, the State responds that duplicative photographs were removed and that the trial court utilized the Rule 403 balancing test when it struck State’s exhibit 10. According to the State, although the remaining photos were admittedly graphic and gruesome, they depicted locations and types of wounds, the location of the bodies, and evidence of a fire, that corroborated Greg Cureton’s testimony and tended to prove the appellant’s purposeful intent, an element of the crime.

For example, Investigator Lynn Benedict of the Arkansas State Police, testified that exhibit 8 depicted a deep cut on the left side of Goodwin’s face and perhaps hair that may have been burned on the right side. He also noted that exhibit 9 showed stab marks to Goodwin’s chest and nonpuncture scrapes, and that exhibit 11 depicted Goodwin’s blue jeans with blood stains and tears on the left side. In light of the acceptable purposes for admitting photographs, we cannot say that the trial court abused its discretion by admitting these photographs.

Investigator Benedict also testified regarding Exhibit 12, a photo showing Jones’s left arm lying on an artificial leg that was mostly consumed by fire. Benedict noted that the photo shows that Jones’s head was charred and reveals cut and slash wounds, burns on the left side of the body, and a slash mark across the throat. Next, Benedict identified exhibit 13 as a photo depicting Jones’s body and burned hair, a burned artificial limb, and a wood stove. Additionally, the photo revealed cut wounds on Goodwin’s arm. Exhibit 15 reflected Jones’s burned hair, deep cut wounds on Goodwin’s body, including slash marks across the throat, and drag marks leading from the front door to Jones’s body. Exhibit 16 showed an overview of both victims’ bodies and the drag marks. Finally, Exhibit 18 showed the artificial limb laying under Jones’s left arm, Goodwin’s right hand charred and burned, and blood stains underneath Jones’s body.

Appellant suggests that one photograph could have fairly and accurately depicted the number, location, and nature of the victims’ wounds. However, the State points out that Jones suffered twenty-one penetrating stab wounds to his body, back, chest, abdomen, left arm, left leg, and six wounds to his neck, not including defensive wounds. Goodwin suffered ten stab wounds to her body, neck, chest, and back, not including defensive wounds. Given the acceptable purposes for admitting photographs, we cannot say that the trial court abused its discretion by admitting these photographs.

III. Admission of David Davis’s “surprise” testimony

Second, Baker contends that the trial court abused its discretion by denying his motion to strike State witness David Davis’s “surprise” testimony that “Kevin [Baker] told me to tell if anybody had asked me what happened to his hand, he had cut himself filleting fish.” Immediately after this remark, the appellant objected and moved the trial court to strike the statement on the basis that the appellant had not been notified prior to trial that Davis would offer this evidence. However, both parties concede on appeal that neither party knew that Davis would make this statement, and the trial court noted that there was no evidence of intent by the State to elicit this specific testimony.

Unfortunately, both parties cite inapposite authority to support their positions. For example, the appellant’s reference to Ark. R. Crim. P. 17, which sets forth a prosecuting attorney’s disclosure obligations to a defendant, is irrelevant here because the prosecution acquired the information contemporaneously with the defense. Likewise, the appellant’s reliance on Scoggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993), is misplaced. Scoggins is distinguishable from the instant facts because it involved a prosecutor’s failure to disclose, which is not at issue here. This is simply not a case about a potential discovery violation.

The State also cites irrelevant authority in support of its argument that the trial court properly admitted the challenged statement. The State points to Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), a case involving a police officer who testified about an undisclosed statement made by the defendant. Like the instant case, the prosecution was unaware of the statement until it was revealed at trial. Specifically, the defendant in Henry contested the introduction of his statement, made at the time of his arrest, “don’t shoot — I give up.” The Henry court characterized the statement by explaining, “we cannot say with any degree of certainty that the statement was either inculpatory or damaging to the client’s defense.” We agree with the instant appellant that the nature of the statement in Henry is distinguishable from the statement challenged on appeal.

However, the material issue here is whether the trial judge erred in admitting the “surprise” testimony under a Rule 403 analysis. Accordingly, this court will not reverse the trial court’s decision, absent an abuse of discretion. See Parker v. State, 333 Ark. 137, 145, 968 S.W.2d 592 (1998) (citing Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 117 S. Ct. 246 (1996)). The appellant’s general assertion that he was prejudiced by the statement, which may tend to demonstrate a guilty state of mind, is not a compelling basis alone for reversing the trial court’s decision — for any evidence that tends to establish the guilt of the defendant is inherently prejudicial.

Pursuant to Rule 403, the trial court must consider whether the statement, although relevant, should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice. Applying the Rule 403 balancing test, we cannot say that the trial court abused its discretion in admitting the testimony. Even assuming, arguendo, that the statement was prejudicial, it constituted harmless error in fight of the other evidence and testimony offered at trial. In light of the foregoing, we hold that the trial court did not abuse its discretion in admitting the testimony and denying the appellant’s motion to strike the statement.

IV. Admission of Greg Cureton’s testimony

Third, Baker challenges the admission of Greg Cureton’s testimony that, following the homicides and while he and the appellant were still at Jones’s residence, the appellant told him, “It just gets easier every time.” Anticipating this testimony, the appellant objected to its introduction on the basis of Rule 403, which permits exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Again, we note that although evidence is relevant, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Id.

The appellant’s cellmate, Donnie Dollarhyde, also a witness for the State, testified that the appellant admitted to the homicides, said that he had not lost any sleep over it, that it was a “rush,” and, consistent with Cureton’s testimony, that “it just gets easier every time.” Significantly, the appellant did not object to Dollarhyde’s testimony regarding the statement “it just gets easier every time.” In support of barring our consideration of this point on appeal, the State cites Stephens v. State, 328 Ark. 81, 89, 941 S.W.2d 411 (1997), for the proposition that when a question previously objected to is repeated, and there is no second objection, the matter is waived on appeal. Moreover, even if the appellant makes a proper objection, he must preserve his argument by renewing that objection if the State subsequently attempts to introduce the same or similar evidence. See Mills v. State, 321 Ark. 621, 623, 906 S.W.2d 674 (1995). Given the subsequent admission of the statement through Dollarhyde, without objection, we hold that this issue was not preserved for our review on appeal, and we affirm the trial court.

V. Rule 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. Accordingly, the appellant’s judgment of conviction is affirmed.