author: ROBERT L. Brown, Justice.

text:
    Scott ARNOLD and Mary Arnold v. The Honorable Jim D. SPEARS, Judge, Division III Chancery Court of Sebastian County; Rhonda J. Reeves and Patrick Shane Reeves
    00-997
    36 S.W.3d 346
    Supreme Court of Arkansas.
    Opinion delivered February 1, 2001

      Bagby Law Firm, PA., by: Philip A. Bagby, for petitioner.

      Shannon Foster and Daniel A. Stewart; and Phillip J. Milligan, for respondents.
   ROBERT L. Brown, Justice.

Petitioners Scott Arnold and Mary Arnold contend in their petitions for writ of certiorari and prohibition that respondent Chancellor Jim Spears of the Chancery Court of Sebastian County, who had pending before him a divorce action in Sebastian County between respondents Shane Reeves and Rhonda Reeves, (1) lacked subject-matter jurisdiction to decide a landlord-tenant dispute regarding a building in Crawford County; (2) erred in attempting to exercise jurisdiction over the landlord-tenant dispute when venue lay in Crawford County; (3) erred in forcing the Arnolds to intervene in the divorce lawsuit against their will; and (4) violated the due process rights of the Arnolds by entering an ex parte order without notice which denies them the ability to gainfully rent their property. We find no merit in the two petitions and deny them both.

The facts derive from a rental agreement entered into on November 1, 1999, between Shane Reeves and Scott Arnold. Under that agreement, Arnold rented a retail business building in the city of Van Burén, Crawford County, to Reeves for the purpose of operating a business known as The Hope Chest. The monthly rent was $500. Crawford County is located in the Twenty-First Judicial District. Sebastian County is located in the Twelfth Judicial District.

In January 2000, Shane Reeves notified the Arnolds that he was having trouble paying the rent on the building due to marital problems. On January 11, 2000, Rhonda Reeves sued Shane Reeves for divorce in Sebastian County, Chancery Court, Fort Smith District, and asked that the marital property rights of the parties be adjudicated. Rhonda Reeves subsequently sought an emergency hearing from the chancellor regarding. the Crawford County building and the inventory of their retail goods which were part of their business, The Hope Chest. On March 23, 2000, the chancellor entered a Temporary Order in the divorce action and directed that an inventory of The Hope Chest be made. The chancellor found in that order that the Arnolds had taken possession of their building which housed The Hope Chest and ordered that the Reeveses be granted access to their business to inventory their property. He further ordered that no property on the premises should be sold or removed until further orders of the court and that Shane Reeves (defendant in the divorce action) should account for any property already sold.

On April 6, 2000, the Arnolds’ attorney wrote counsel for the two Reeveses and made these assertions:

• The property of the Reeveses to be inventoried was in storage.
• The property would be released upon the Reeveses paying $2,151.07 for back rent, utilities, repairs and clean-up costs, and legal fees.
• The Reeveses would be required to hold the Arnolds harmless from any additional liability.
• The Arnolds would then release the Reeveses.
• The chancellor’s Temporary Order is not binding on the Arnolds because they are not parties to the Sebastian County divorce action.
• The Arnolds have a right to the Reeveses’ property to pay past due rent under Ark. Code Ann. § 18-16-108 (Supp. 1999).

When the Arnolds’ attorney did not receive a reply from the Reeveses, he wrote that he assumed his offer had been rejected and that the Arnolds Would proceed to sell the business property at a public or private sale. Counsel for Shane Reeves then wrote that the value of the inventory in dispute was $20,000 and that if the Arnolds failed to cooperate in allowing an inventory to be performed, he would sue them for conversion of property. On May 10, 2000, Shane Reeves moved that the Arnolds be made parties to the divorce action in Sebastian County as intervenors and enjoined from selling any property of The Hope Chest. He asserted that the Arnolds had contacted local merchants about the sale of the Reeveses’ property and were offering the property at “garage-sale prices.” He further asserted that some of the Reeveses’ property had been purchased by other stores. The next day the chancellor entered an order entitled Order Allowing- Intervention and Injunction and found that the Arnolds had not supplied an inventory of the disputed property as ordered and instead had sold some of the property. The chancellor designated the Arnolds as intervenors in the Sebastian County divorce action and ordered them again to prepare a complete inventory of The Hope Chest property, including items sold and those still possessed. Remaining items and money received from sales were to be taken to the office of the Arnolds’ attorney and further sales were enjoined.

On June 21, 2000, summonses were issued for the two Arnolds and service of the summonses was accomplished the following July. The Arnolds moved to dismiss the intervention and vacate the chancellor’s intervention order. In their motion, they termed the order an ex parte order. No issue was raised in that motion regarding the inability to gainfully rent the Van Burén building. The motion was denied.

We turn then to the first argument raised by the Arnolds in support of their petitions for writs of certiorari and prohibition. The Arnolds contend that the chancellor lacks subject-matter jurisdiction to adjudicate the Crawford County landlord-tenant dispute which is unrelated to the Sebastian County divorce action. They seek a writ of certiorari as to the actions already taken by the chancellor in his Temporary Order and his Order Allowing Intervention and Injunction, and a writ of prohibition prohibiting any further action relating to the landlord-tenant dispute in Crawford County. The distinction drawn by the Arnolds between the applicability of the two writs is correct. See Oliver v. Pulaski County Cir. Ct., 340 Ark. 681, 13 S.W.3d 156 (2000).

This court will issue a writ of prohibition to prevent or prohibit a trial court from acting wholly without jurisdiction. See Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000) (citing Raines v. State, 335 Ark. 376, 980 S.W.2d 269 (1998)). Prohibition prevents an action from occurring. See id. (citation omitted). A writ of certiorari, on the other hand, is appropriate when it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion by the trial judge, and there is no other adequate remedy. See id. (citing Arkansas Pub. Defender Comm’n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000)).

As an initial matter, we take issue with how the Arnolds have framed this point. Under our Family Law Code, the chancellor in a divorce action distributes all marital property, one-half to each party, unless the chancellor finds that division to be inequitable. Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 1998). By necessity, the chancellor must first determine what comprises marital property in order to distribute it. Moreover, a determination- of what property is marital property does not end at the county line. To make an equitable distribution, chancellors must decide what qualifies as marital property regardless of whether the property is physically located within the county or judicial district where the divorce action was brought. Indeed, it is commonplace for chancellors to distribute property which is located outside of their counties or judicial districts. Cf. Champion v. Champion, 238 Ark. 87, 378 S.W.2d 648 (1964) (chancery court in Arkansas County ordered sale of properties in Arkansas and Monroe counties); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984) (chancery court in Clark County ruled that neither party was to have an interest in property the other owned before marriage, including appellee’s lake house in Garland County).

The Arnolds correctly point out that we have stated, as a general matter, that a chancellor has no authority to decide the validity of an obligation to a third party who is not a party to the divorce. See, e.g., Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996). But we do not view the chancellor’s actions in this case as an impermissible effort to decide the landlord-tenant disagreement over The Hope Chest property or the rights of the Arnolds to that property as landlords under Ark. Code Ann. § 18-16-108 (Supp. 1999). Rather, we view the chancellor’s efforts as totally geared toward identifying and determining what is marital property. Hence, we view this argument as no basis for issuing the requested writs.

The Arnolds next contend that the chancellor is attempting to assert jurisdiction over them in a divorce case when venue for the landlord-tenant matter properly lies in Crawford County under Ark. Code Ann. §§ 16-60-101 and 16-60-102 (1987). Again, we disagree with the Arnolds’ premise as we do not see the chancellor’s actions as an effort to exercise jurisdiction over the landlord-tenant dispute. Whether The Hope Chest property has been abandoned so as to make it susceptible to satisfying past due rent under § 18-16-108 or subject to a landlord’s lien under that same section could well be decided in separate litigation, and if that litigation was brought, venue would be proper in Crawford County. But that fact does not militate against the chancellor’s legitimate actions to identify marital property pursuant to § 9-12-315(a)(l)(A) for purposes of the Sebastian County divorce action, which includes taking into consideration the estate, liabilities, and needs of each party. Ark. Code Ann. § 9-12-315(a)(l)(A)(vii) (Repl. 1998).

For their next point, the Arnolds claim that the chancellor cannot force them to intervene in the divorce action against their will. The chancellor’s order in that regard has no basis in our Rules of Civil Procedure, according to the Arnolds. The proper procedure, they maintain, would have been for Shane Reeves to implead them under Ark. R. Civ. P. 14, and that was not done. Hence, they contend our issuance of a writ of certiorari is proper.

We disagree. Our Rules of Civil Procedure contemplate precisely what the chancellor did in this case. First, with regard to persons needed for just adjudication, Rule 19(a) of the Arkansas Rules of Civil Procedure reads:

Persons to Be Joined If Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or, (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff, but refuses to do so, he may be made a defendant; or, in a proper case, an involuntary plaintiff.

Without question, the Arnolds claim an interest in The Hope Chest inventory and complete relief for the Reeveses regarding marital property cannot be accomplished without their joinder. Furthermore, Rule 21 of the Arkansas Rules of Civil Procedure provides in part: “Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and upon such terms as are just.” That is precisely what was done in this case. This court has recently recognized the need for mandated joinder of indispensable and necessary parties by the trial court under appropriate circumstances. See, e.g., Arkansas State Med. Bd. v. Bolding, 324 Ark. 238, 920 S.W.2d 825 (1996). In this regard, we agree with the court of appeals which has held that third parties may be brought into divorce actions for the purpose of determining the rights of the spouses in specific properties. See Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981) (citing Lance v. Mason, 151 Ark. 114, 235 S.W.2d 394 (1921)).

We recognize that Rules 19(a) and 21 were not argued in the briefs before this court. Nevertheless, if the action taken by the chancellor is well grounded in our Rules of Procedure, we can affirm that action even though the chancellor’s order was couched in terms of intervention rather than joinder. See Van Camp v. Van Camp, 333 Ark. 320, 969 S.W.2d 184 (1998) (recognizing that where a chancellor reaches the right result even if based on the wrong reasons, Supreme Court will affirm). There is no basis for issuing a writ of certiorari on this point.

The Arnolds next urge that the chancellor’s Order for Intervention and Injunction was ex parte and, accordingly, they received no notice or opportunity to be heard. Along this same line, they contend that there was no emergency necessitating this order, and this, they claim, is proved by the fact that summonses for the Arnolds were served almost two months later and that there has been no compliance with Ark. R. Civ. P. 65 relating to injunctions. In their Motion to Dismiss Intervention and Vacate Order filed on July 19, 2000, they do refer to the chancellor’s ex parte order, but they make none of the arguments that they are now raising in their petitions. Hence, the issues advanced were never considered by the chancellor or ruled on by him. We have held that a petition for writ of certiorari cannot be used as a substitute for appeal. See, e.g., Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995). But that appears to be exacdy what the Arnolds are doing by raising these points relating to notice and opportunity to be heard in their petitions for extraordinary relief. We will not entertain these issues at this stage of the proceedings when they are raised in support of a petition for a writ of certiorari filed while a divorce action is pending. The same is true for the next issue raised by the Arnolds which relates to the denial of due process because they are unable to gainfully rent their property in Crawford County as a result of the inventory orders. We fail to see where the chancellor had the opportunity to address this issue in the divorce action.

Because there are no grounds for granting these petitions, we deny them.

       A writ of prohibition is directed to the jurisdiction of the court and not to an individual judge. We will treat the petition for a writ of prohibition as directed against the Sebastian County Chancery Court. See Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997) (citing Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992)).


source: Caselaw Access Project

author: ROBERT L. Brown, Justice. ROBERT L. Brown, Justice.

license: Public Domain

text:
    Jack Gordon GREENE v. STATE of Arkansas
    CR 96-362
    37 S.W.3d 579
    Supreme Court of Arkansas
    Opinion delivered February 1, 2001
    [Supplemental opinion on denial of rehearing delivered March 8, 2001. ]

      Arkansas Public Defender Commission, by: Dorcy K. Corbin, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.

       Corbin, J., not participating.

   ROBERT L. Brown, Justice.

This is the third appeal in this matter. In 1992, appellant Jack Gordon Greene was tried and convicted of the capital murder of Sidney Jethro Burnett and sentenced to death. On June 20, 1994, this court affirmed Greene’s conviction for capital murder, but we reversed his death sentence and remanded for resentencing. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994) (Greene I). We did so because the aggravating circumstance based on a judgment for a prior unrelated violent felony which had been relied on by the jury in sentencing Greene to death was reversed by the North Carolina Supreme Court. In 1996, Greene was again sentenced to death following a resentencing hearing. On November 5, 1998, this court considered Greene’s appeal from this second death sentence, and we again reversed the sentence and remanded for resentencing. See Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998) (Greene II). We did so because (1) the State had not offered proof that Greene’s bad act in North Carolina constituted a felony under North Carolina law, and (2) Greene was entitled to a hearing relating to his objections to his mental evaluation.

On remand, Greene was again sentenced to death at a resentencing hearing that took place on June 30 and July 1, 1999. He now appeals and raises seven points for reversal. We hold that none of the points raised has merit, and we affirm the death sentence.

The facts leading to Greene’s conviction for capital murder were fully described in Greene I. Suffice it to say that in 1991, Sidney Jethro Burnett and his wife, Edna, worked to help needy families through an organization named Ministries Aflame and befriended Greene and his wife. Burnett provided work for Greene and a home for the couple as well as funds for needed surgery. The Greenes had marital problems, and Donna Greene left her husband and moved to North Carolina. Greene followed her. Later, he returned to Arkansas and appeared to blame Edna Burnett for his wife’s leaving him.

On July 23, 1991, Edna Burnett found her husband dead in her home in Johnson County. His hands and feet were tied, his mouth was taped, there was blood on his chest, and he was propped up against a couch. It was subsequently determined by former medical examiner, Dr. Fahmy Malak, that he had been stabbed repeatedly, beaten on the head and back by a blunt instrument, shot in his chest and head, and his face was slashed from his ear to his mouth. Burnett had been shot by a .25 caliber pistol.

Three days later Greene was arrested in Oklahoma. He had a .25 caliber pistol in his possession. That pistol made the markings on the two shell casings found at the murder scene. Three days after his arrest, he was charged with capital murder for Burnett’s death. He told Johnson County Sheriff Eddie King, who had traveled to Oklahoma to bring Greene back to Arkansas: “I’m tired of being treated like shit. I was going to take out people that fucked with me. It’s like chaining up a dog and treating it like shit. Sooner or later it goes crazy.” The jury trials which resulted in the first two death sentences followed in 1992 and 1996.

After receiving his second death sentence in 1996, a series of motions from Greene dealing with his waiver of an appeal to this court and his mental competency to do so ensued. Greene v. State, 326 Ark. 179, 929 S.W.2d 157 (1996) (per curiam) (motion to waive appeal equivocal; denied); Greene v. State, 326 Ark. 822, 933 S.W.2d 392(1996) (per curiam) (following second motion to waive appeal, matter remanded for competency determination); Greene v. State, 327 Ark. 511, 939 S.W.2d 834 (1997) (per curiam) (remanded for. second competency hearing on basis first determination was insufficient); Greene v. State, 328 Ark. 218, 941 S.W.2d 428 (1997) (Greene’s motion to dismiss appeal denied because Greene refused to cooperate in his mental health evaluation); Greene v. State, 329 Ark. 491, 949 S.W.2d 894 (1997) (per curiam) (motion to withdraw appeal and for writ of habeas corpus denied). After his third resentencing hearing in 1999, where he again received a death sentence, this court affirmed the trial court’s determination that Greene was competent to waive appeal. State v. Greene, 338 Ark. 806, 1 S.W.3d 442 (1999) (per curiam).

We issued a writ of certiorari to the court reporter to prepare the record and the Arkansas Public Defender Commission petitioned as substitute counsel to present an appeal on Greene’s behalf pursuant to State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999).

I. Mitigating and Victim-Impact Evidence

For his first issue, Greene contends that the trial court erred in refusing to admit evidence offered by defense counsel as mitigating evidence or victim-impact evidence. The pertinent facts are that while on death row, Greene received a letter from Edna Burnett, the victim’s wife, expressing her forgiveness of Greene for the murder and her desire that he be given a life sentence rather than the death penalty. At the resentencing hearing in July 1999, defense counsel sought to introduce this testimony, either by actual letter or through the live testimony of Edna Burnett. The trial court ruled that the letter was inadmissible. The court also ruled that Mrs. Burnett could not testify in person that in her opinion Greene should be sentenced to life in prison or about her forgiveness of him for his crime.

a. Mitigating Evidence

Greene first urges that the State cannot prevent a jury from considering relevant mitigating evidence offered in support of a sentence less than death and cites us to Eddings v. Oklahoma, 455 U.S. 104 (1982), for that principle. He further argues that his right to present relevant evidence to the jury, which could cause the jury not to impose the death penalty, is constitutionally guaranteed. See McCleskey v. Kemp, 481 U.S. 279 (1987). He emphasizes that the venire persons were asked in voir dire if forgiveness by the family would make a difference to them in determining the appropriate punishment, and four members of the panel, including two who became jurors, said that the victim’s family’s forgiveness would either be important or might matter to them. Finally, Greene directs our attention to Ark. Code Ann. § 5-4-605 (Repl. 1997), for the proposition that the listed mitigating circumstances are not meant to be exclusive. He points us to our language in a recent case where we said there “are virtually no limits placed on the relevant mitigating evidence that a defendant may introduce.” Lee v. State, 327 Ark. 692, 703, 942 S.W.2d 231, 236 (1997).

We are not persuaded that Edna Burnett’s forgiveness and her opinion that life imprisonment is the appropriate penalty constitute relevant mitigating evidence. Lee v. State, supra. The apposite statute requires that “[MJitigation evidence must be relevant to the issue of punishment.” Ark. Code Ann. § 5-4-602(4) (Repl. 1997); see also Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999). This court has observed that Ark. Code Ann. § 5-4-602 does not “totally open the door to any and all matters simply because they might conceivably relate to mitigation [.]” McGehee v. State, 338 Ark. 152, 174, 992 S.W.2d 110, 123 (1999) (quoting Johnson v. State, 308 Ark. 7, 27, 823 S.W.2d 800, 811, cert denied, 505 U.S. 1225 (1992)).

This court has held that relevant mitigating evidence is limited to evidence that concerns the “character or history of the offender or the circumstances of the offense.” See Camargo v. State, 337 Ark. 105, 113, 987 S.W.2d 680, 685 (1999) (quoting Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); see also Ark. Code Ann. § 5-4-602(4) (Repl. 1997). More on point, the Tenth Circuit Court of Appeals has spoken precisely on the issue of personal opinions of the appropriate sentence. See Robison v. Maynard, 829 F.2d 1501 (10th Cir. 1987). In Robison, the court stated:

An individual’s personal opinion of how the sentencing jury should acquit its responsibility, even though supported by reasons, relates to neither the character or record of the defendant nor to the circumstances of the offense. Such testimony, at best, would be a gossamer veil which would blur the jury’s focus on the issue it must decide.
Moreover, allowing any person to opine whether the death penalty should be invoked would interfere with the jury’s performance of its duty to exercise the conscience of the community ....
In short, we cannot agree with Petitioner’s contention that any testimony a defendant believes would make the jury less likely to return a death verdict must be allowed to satisfy the dictates of federal due process. The broad range of facts admissible under the Eddings delineation of mitigating evidence must focus on the persona of the defendant or on the fabric of the crime of which he has been convicted.

829 F.2d 1505. (Emphasis added.)

In 1994, the Alabama Court of Criminal Appeals considered an issue very similar to the issue raised in the case at hand. See Barbour v. State, 673 So. 2d 461 (Ala. Crim. App. 1994). In Barbour, the victim’s brother wrote a letter to the trial court requesting that the defendant be sentenced to life in prison rather than death. The prosecutor argued that the holding by the United States Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1991), prohibited the admission of this letter. The trial court concluded that the prosecutor was essentially correct and stated that the Payne court did not address the issue of whether a request for leniency by the victim’s family can properly be considered as a mitigating circumstance. The trial court further noted that the United States Supreme Court in Eddings v. Oklahoma, supra, held that a jury in capital cases must be permitted to consider any relevant mitigating factor touching the defendant’s character and record. Barbour, 673 So.2d at 468. The trial court then adduced Robison v. Maynard, supra, and two other cases that hold that evidence of a victim’s family member’s opinion regarding an appropriate or desirable sentence is not admissible as relevant mitigating evidence. See Floyd v. State, 497 So. 2d 1211 (Fla. 1986) (court refused to allow testimony of murder victim’s daughter that she and the victim opposed capital punishment as mitigating evidence; the Florida Supreme Court affirmed); Ex Parte McWilliams, 640 So. 2d 1015 (Ala. 1993) (defendant’s Eighth Amendment rights were violated if trial court considered victim’s family members’ characterizations or opinions of the appropriate punishment). The Alabama Court of Criminal Appeals agreed with the trial court and cited with approval McWilliams v. State, 640 So.2d 1015, 1017 (Ala. 1993), which stated that victim impact statements do not include characterizations or opinions about a defendant.

We conclude that Robison v. Maynard, supra, and its progeny are persuasive. Opinions on the appropriate sentence from family members of the victim would be confusing to the jury and interfere with its role. There is, too, the danger that opinions from family members of the victim would be calculated to incite an arbitrary response from the jury. Furthermore, it would fail the test of evidence relating either to the character of the defendant or to the circumstances of the offense. See Ark. Code Ann. § 5-4-602(4) (Repl. 1997); Camargo v. State, supra. We affirm the trial court on this point.

b. Victim-Impact Evidence

Greene next contends that Edna Burnett’s forgiveness testimony and recommended sentence constitute victim-impact evidence under Payne v. Tennessee, supra, where the Court considered previous decisions on the admissibility of victim-impact evidence and concluded that this testimony was admissible. This court adopted the same view in Noel v. State,, 331 Ark. 79, 960 S.W.2d 439 (1998), where we held that the impact of a murder on the victim’s family is admissible. Greene emphasizes, however, that there is no language by this court or by the United States Supreme Court that limits victim impact to testimony that will increase the likely sentence. Because of this, he urges that he should be allowed to introduce evidence from a victim’s family member that may decrease a sentence as well.

Again, the issue comes down to whether the proffered evidence from Edna Burnett is relevant. We agree that the seminal case in the area of victim-impact evidence is Payne v. Tennessee, supra, where the United States Supreme Court overruled past precedent and held that the Eighth Amendment to the United States Constitution did not erect a per se bar against states providing for the admission of victim-impact evidence. Arkansas followed suit and enacted legislation permitting victim-impact evidence as relevant evidence. Ark. Code Ann. § 5-4-602(4) (Repl. 1997). This court has said that proposed victim-impact evidence passes the test of relevancy if it counteracts mitigating evidence and shows that the victim’s death represented a unique loss to society and exacted a human toll on the victim’s family. Noel v. State, supra (citing Payne v. Tennessee, supra). This court further explained in Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998), that the jury could consider victim-impact evidence at the same time it considers mitigating evidence introduced by the defendant during the sentencing phase of the trial. Id. at 141 (citing Payne v. Tennessee, supra). In recognizing that there were virtually no limits placed on relevant mitigating evidence that a defendant may introduce on his behalf, we noted that the State could legitimately conclude that the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether the death sentence should be imposed. Id. at 142, (citing Payne v. Tennessee, supra). Yet, this court has never sanctioned introduction of opinions from the victim’s family about their feelings or what the appropriate penalty should be as victim-impact evidence. And we are aware that other jurisdictions have not found such evidence to be admissible. See, e.g., United States v. McVeigh, 153 F.3d 1166, 1217 (10th Cir. 1998) (information concerning victim’s family member’s opinions about crime, defendant, and appropriate sentence inadmissible).

We conclude that penalty recommendations from family members of the victim are not relevant as victim-impact evidence. Certainly, the penalty recommendation from Edna Burnett that Greene proposes would not counteract mitigating evidence or show the human cost of the murder on the victim’s family. But in addition, if this court permitted forgiveness and penalty recommendations as victim-impact evidence, then it stands to reason that it must also allow any evidence of nonforgiveness by the victim’s family and any recommendation of a harsher sentence such as death. We cannot condone either brand of testimony as both would interfere with and be irrelevant to a jury’s decision on punishment. Indeed, such testimony would have the potential or reducing a trial to “a contest of irrelevant opinions.” See Robison v. Maynard, 829 F.2d at 1504. We affirm the trial court on this point.

II. Prosecutor’s Closing Argument

Greene’s next point involves the prosecutor’s closing argument where he said:

I’ll tell you and I’ve thought about this and I worry about this; but I’ll tell you why the aggravating circumstances in this case justify the death penalty and it’s because Mr. Burnett was a sixty-nine year old man doing no wrong, living out his life and he was a member of our community. He was a member

(Emphasis added). Greene’s counsel objected and argued that the victim’s station in life was not an aggravating circumstance. Fie then asked for a declaration of a mistrial. The trial court refused to declare a mistrial, but at defense counsel’s request, the trial court admonished the jury to disregard the prosecutor’s statement:

Ladies and Gentlemen, part of the argument this Court has sustained with respect to what [defense counsel] has objected to about Mr. Burnett being a sixty-nine year old man. .The argument needs to pertain to the aggravating circumstance, which is not age qualified and so you will disregard that comment of counsel. All right.

Greene now argues on appeal that this remark was calculated to inflame the jurors’ passions and deprive him of his right to a fair and impartial trial. Fie further, maintains that although the trial court gave the admonishment to the jury, it was insufficient to remove the prejudicial effect of the argument. Thus, he claims that a mistrial should have been granted.

Initially, we do not read the prosecutor’s argument as saying that Burnett’s age and character constituted an aggravating circumstance. We read the argument as saying that the victim was elderly and a member of the community and that the aggravating circumstance of an especially cruel or depraved murder should apply. See Ark. Code Ann. § 5-4-604(8)(A) (Repl. 1997). Of.course, the prosecutor’s argument was truncated by the objection. In any event, the trial court admonished the jury to disregard the comment and that cured, in our minds, any confusion on this point. See King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). Moreover, defense counsel requested the admonishment to the jury after his motion to declare a mistrial was denied. Counsel, accordingly, received the alternative relief requested.

Under these circumstances, we cannot say that the trial court abused its discretion in refusing to declare a mistrial and in admonishing the jury.

III. Use of Testimony From Previous Trials

Greene next argues that the use of Dr. Fahmy Malak’s videotaped deposition from the guilt phase of the first trial in 1992 and the transcribed testimony of Edna Burnett from the 1996 resentencing hearing violated Arkansas Rule of Evidence 804(b)(1). That subsection reads:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

There was no proof presented, according to Greene, that either Dr. Malak or Edna Burnett was unavailable for the resentencing hearing in 1999. He contends that the essential requirement of this rule of evidence was not met for these two witnesses.

The State responds that Ark. Code Ann. § 5-4-616(a)(4) (Repl. 1997), is directly on point:

(4) All exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing shall be admissible in the new sentencing proceeding; additional relevant evidence may be admitted including testimony of witnesses who testified at the previous trial[.]

Greene counters that there is a direct conflict between this court’s Rule of Evidence 804(b)(1) and § 5-4-616(a)(4), and that when such a conflict occurs, this court’s rules “remain supreme.” State v. Sypult, 304 Ark. 5, 7, 800 S.W.2d 402, 404 (1990).

We disagree with Greene that this case presents a Sypult issue. Section 5-4-616(a)(4) is limited specifically to resentencing in criminal trials whereas our rule of evidence applies to all proceedings whether civil or criminal. The General Assembly clearly viewed resentencing hearings, following reversal of the initial sentence and remand, to be special proceedings which warranted a more specialized standard for the admission of previous testimony transcribed at the prior trial. We do not view the primary purpose and effectiveness of Rule 804(b)(1) to be compromised by § 5-4-616(a)(4), and that is the test under State v. Sypult, supra.

Greene also asserts that notice to him that the former testimony of Dr. Malak and Edna Burnett would be used was untimely. Both transcriptions of prior testimony were not given to him until the morning of the trial which, he argues, denied him his right to a fair trial. Greene is not persuasive on this point. He should have known of the existence of § 5-4-616 (a) (4) regarding prior testimony. And, equally as important, he had the right under Ark. R. Crim. P. 17.1, after being advised that Dr. Malak and Edna Burnett would be witnesses in the Disclosure of Aggravating Circumstances, to inquire as to whether a videotaped deposition or previously transcribed testimony would be used pursuant to the statute. This he failed to do.

Finally, we give little credence to Greene’s contention that Dr. Malak’s deposition testimony in 1992 was used in the guilt phase of the trial rather than the penalty phase, and that this somehow makes a difference. Dr. Malak did testify about whether Burnett was alive when his hands and feet were tied, when he was struck by a blunt instrument, when he was knifed, and when he was shot in the chest. This testimony was of paramount importance for purposes of a resentencing hearing and for the aggravating circumstance of a murder committed in an especially cruel or depraved manner. Nor do we agree that Edna Burnett’s transcribed testimony from the 1996 resentencing hearing about finding her husband’s dead body had no relevancy to the aggravator of especially cruel or depraved murder as Greene maintains. We fail to see, however, where this precise issue was raised to the trial court at the 1999 hearing, and we will not address it.

There was no reversible error based on these issues raised by Greene.

IV Prejudicial Sentencing Comment

Greene next contests a comment made by the prosecuting attorney regarding the potential for Greene’s release should he be sentenced to life in prison without the possibility of parole. The sequence of events and the colloquy between the judge and counsel follows:

Defense-Counsel: He’s exhibited remorse for the death of Sydney Burnett. ... I think Mr. Wilson argued that, “Well, he’s in prison over this thing now.” Well, he’s in prison. He’s not getting out. He’s never getting out of Tucker Maximum Security Unit at Tucker, Arkansas.
Prosecutor: Judge, I’m going to object to that. That’s misleading to the Jury.
The COURT: The Jury has heard the evidence. If Counsel misquotes the evidence, they can disregard it.
Prosecutor: I’m talking about the situation about not getting out of the penitentiary. That’s not the law and it’s misleading.
The Court: Well, I’ll sustain that.
Prosecutor: Thank you, sir.
Defense Counsel: Well, I would submit then that the only way he would ever get out would be a Governor’s Pardon, if that helps Mr. Prosecutor Wilson.
PROSECUTOR: It doesn’t. The law is clear that he may be released pursuant to commutation, pardon or reprieve of the Governor.
The Court: That’s correct.
PROSECUTOR: Thank you, sir.

Greene’s counsel made no objection to this colloquy but now contests the prosecutor’s summary of the law for the first time on appeal. As authority, counsel cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), and directs our attention to the exception to our contemporaneous rule relating to a trial court’s duty to intervene and correct a serious error. Absent the trial court’s intervention, Greene claims that he was highly prejudiced.

We disagree that the trial court had a duty to step in under Wicks, because in our view no serious error was made. Indeed, the prosecutor correctly quoted the law. The apposite statute reads:

A person sentenced to life imprisonment without parole shall be remanded to the custody of the Department of Correction for imprisonment for the remainder of his life and shall not be released except pursuant to commutation, pardon, or reprieve of the Governor.

Ark. Code Ann. § 5-4-606 (Repl. 1997). This point has no merit,

V Insufficient Evidence of Aggravator

The sole aggravating circumstance submitted to the jury in the 1999 resentencing was that the murder was committed “in an especially cruel or depraved manner.” Ark. Code Ann. § 5-4-604(8)(A) (Repl. 1997). To establish this aggravator, the State had the burden to prove beyond a reasonable doubt the following:

(B) (i) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted.
(a) “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate.
(b) “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.
(c) “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder[.]

Ark. Code Ann. § 5-4-604(8) (B)(i) and (C) (Repl. 1997).

Greene contends that the record is devoid of any evidence that Burnett actually endured mental anguish, abuse or torture. He claims that the only evidence of such factors is the deposition testimony of Dr. Malak that appellant argues should not have been admitted. But even considering Dr. Malak s testimony, he urges that it is equally plausible that Burnett was immediately rendered unconscious by a blow to the back of the head and was never subject to mental anguish, serious physical abuse, or torture. Furthermore, Greene argues that there was no evidence of Greene’s state of mind to prove that the murder was committed “in an especially depraved manner.”

The State’s first rebuttal to this point is that this issue was decided in Greene I and that law of the case applies. See Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). However, the issue in Greene I was whether the “especially cruel or depraved” instruction was properly presented to the jury. If there is evidence of the aggravator, however slight, the matter should be submitted to the jury. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied 459 U.S. 1022 (1982). In this appeal, the issue raised by Greene is whether there is substantial evidence that the State proved the aggravator beyond a reasonable doubt. See Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998); see also, Ark. Code Ann. § 5-4-603 (Repl. 1997). The burden of proof required for an instruction and for sufficient proof of the aggravator is altogether different. We will not apply the doctrine of law of the case for a determination of this issue.

Nevertheless, we agree with the State that Dr. Malak’s testimony substantially proves a depraved intent on the part of Greene. We further agree that intent must usually be inferred from the circumstances surrounding the killing. See Willett v. State, supra; Russey v. State, 322 Ark. 786, 912 S.W.2d 420 (1995). Dr. Malak testified that Burnett was alive when his hands and feet were tied, when he was kicked and stabbed, when he was shot in the chest, and when his face was cut from mouth to ear. This easily qualifies as substantial evidence of the aggravating circumstance. See Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000); see also McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). We affirm the trial court on this point.

VI. Voir Dire on Death Penalty

For his final point, Greene contests the prosecutor’s question on voir dire of whether the prospective juror could “impose” the death penalty. The correct question, according to Greene, was whether the prospective juror could “consider” the death penalty after weighing all the facts. We fail to discern a significant distinction between questioning about imposition of the death penalty and consideration of the death penalty. To the extent Greene is objecting to a death-qualified jury, we have recently rejected that argument as has the United States Supreme Court. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); see also Lockhart v. McCree, 476 U.S. 162 1986).

In his reply brief, Greene is more precise in his argument and contends that a juror, Mrs. Dodge, was improperly excused for cause because she said she could not sign a verdict form assessing the death penalty. Greene cites us to the case of Witherspoon v. State, 391 U.S. 510 (1968). Ironically, though, he quotes from a footnote in that case that a prospective venire person cannot be “irrevocably committed against the death penalty regardless of the facts.” 391 U.S. at 523, n. 21. That is precisely what the trial court found to be the case with respect to Mrs. Dodge. There was no abuse of discretion by the trial court.

VII. Rule 4-3(h) Review

The record has been reviewed in accordance with Ark. Sup. Ct. R. 4-3 (h), and no reversible error has been found.

Affirmed.

CORBIN, J., not participating.

MARCH 8, 2001

37 S.W.3d 579

Arkansas Public Defender Commission, by: Dorcy K. Corbin, for appellant.

Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

ROBERT L. Brown, Justice.

Appellant petitions for rehearing on the issue of the proffered sentencing and forgiveness statements made by the victim’s spouse. This is a reargument, and we deny the petition.

Appellant Greene points out, in addition, that he rescinded his waiver of appeal in a communication with his trial attorney on December 2, 1999, and that, subsequently, he asked that the Arkansas Public Defender Commission be substituted as his counsel on appeal. We agree with appellant Greene on this matter and issue this supplemental opinion to acknowledge that the original opinion is in error when it states that the Arkansas Public Defender Commission is representing appellant Greene as part of mandatory review pursuant to State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999).

CORBIN, J., not participating.

       In Greene I, we referred to Burnett being propped up against a chair, but photographs of his corpse show that he was positioned against the couch.


text:
    Ricky Lee UPTON v. STATE of Arkansas
    CR 00-530
    36 S.W.3d 740
    Supreme Court of Arkansas
    Opinion delivered February 1, 2001

      Robert T. Rogers, II, Carroll County Public Defender, and Charles Scott Jackson, for appellant.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

Appellant Ricky Upton appeals from a judgment of conviction for first-degree murder and theft of property for which he received a sentence of life imprisonment plus sixty months, to run concurrently. He raises two issues on appeal: (1) his second statement given to law enforcement officers was made without Miranda warnings and, therefore, was involuntary and inadmissible; and (2) the photograph of the victim allowed into evidence by the trial court was more prejudicial than probative and, thus, was inadmissible. The points raised have no merit, and we affirm.

This appeal arises from events occurring in the late hours of June 3, 1998, near Beaver Lake in Carroll County. What transpired was described at trial in large part by Brian Conner and Captain J.R. Ashlock, chief investigator of the Carroll County Sheriffs Office. Earlier that day, Ricky Lee Upton, age 19, and his friend, Brian Conner, waited in Alpena to be picked up by the victim, Erik Shelton, who had a truck. Although the two expected Shelton to arrive sometime around 12:00 p.m., he failed to pick them up until around 1:30 p.m. Conner testified at trial for the State, and on cross-examination, he admitted that the victim’s tardiness angered Upton to the point that he commented to Conner that he was going to kill Shelton.

Shelton picked up Upton and Conner in Alpena, and the three drove to Eureka Springs. There, between 4:30 p.m. and 5:00 p.m., they bought some liquor and beer. Sometime around dusk, after telling several people of their “party,” the three drove to a Beaver Lake campsite area where they encountered other campers, whom they also invited to their party. Later in the evening, two of their friends, Eric Clanny and his girlfriend, Lindsey Post, arrived. The drinking continued. According to campers at a nearby campsite, the Upton group was noisy and “rowdy.” Eric Clanny and Lindsey Post went off to be alone together, leaving Upton, Shelton, and Conner at the campsite. Although the time sequence of the following events is somewhat unclear from the record, at some point, Shelton decided that he was tired and went to rest in his truck. While Shelton was sleeping, Upton again told Conner that he wanted to kill Shelton. Shelton emerged from the truck and said he wanted to leave. This resulted in an argument between Shelton and Upton. According to Conner, the three stood near the campfire. Upton grabbed a steel pipe that was in the back of Shelton’s truck and struck the victim in the back of his head, knocking him to the ground. While he lay there on his back, Upton struck him several more times in the face. He encouraged Conner to do the same, and Conner refused. Upton then asked Conner to help roll the victim’s body down to the lake, which he did.

Before rolling Shelton’s body into the lake, Upton took money from the victim’s wallet. Conner threw the steel pipe and the victim’s wallet into the lake. The two men then went back to the campsite, gathered their other two friends, and drove back to Eureka Springs in the victim’s truck. After dropping off Eric Clanny and Lindsey Post, Upton and Conner drove to Conner’s home and hid the truck under a tarpaulin. At about 5:30 a.m., Upton asked Conner’s father to drive the two men to Upton’s home, where he lived with his aunt and uncle. Conner’s father did so, and when they arrived, Upton and Conner went to sleep. After awaking around 11:00 or 11:30 a.m. on June 4, 1998, Conner and Upton took off their clothes which had blood on them and put them in a trash bag. At around 11:30 a.m. that same day, the victim’s body was found at Beaver Lake and the investigation into his death began.

That evening at approximately 8:30 p.m. or 9:00 p.m., Detective Leighton Ballard of the Carroll County Sheriff s Office went to the home of Upton’s uncle where the two men were and asked that Upton and Conner come to the Sheriffs office to answer some questions concerning their investigation into Shelton’s murder. At that time, according to Detective Ballard, Upton was not a suspect, and Ballard advised Upton that he was not in trouble. Upton, Conner, and Upton’s uncle (Ralph Suggs) said they would go to the Sheriffs office after they ate dinner. At about 10:00 p.m., they went to the Sheriffs office. While there, Captain Ashlock instructed Upton that he was-there voluntarily, that he was not under arrest, and that he was free to leave at any time. Upton was also given his Miranda warnings. Captain Ashlock then began alternating his questioning of Conner and Upton. Upton gave two statements. In the first, following the Miranda warnings,-he disavowed any knowledge of or complicity in the murder. However, after Captain Ashlock told Upton that Conner had placed him at Beaver Lake, Upton changed his story and confessed that-he killed Shelton by hitting him once with a steel pipe. The whole interview process lasted from approximately 10:55 p.m. until 1:00 a.m. the next morning. It culminated in the Sheriff s deputies’ obtaining consent from both Upton and Ralph Suggs to search their residence. Suggs testified at the later suppression hearing that he left the Sheriffs'office somewhere between 3:00 a.m. and 4:00 a.m., on the morning of June 5, 1998.

On June 10, 1998, Upton initiated a third interview with Captain Ashlock, and was again given his Miranda warnings. This time he acknowledged once more that he had killed Shelton.

As a result of his statements, Upton was charged with first-degree murder and theft of Shelton’s truck. Subsequently, he filed a motion to suppress his second statement. Following the denial of his motion to suppress this statement, Upton was tried in a three-day jury trial, convicted of both charges, and sentenced to life imprisonment plus five years.

I. Involuntary Statement

Upton argues for his first point that between his first and second statements, Captain Ashlock interviewed Brian Conner, learned of Upton’s complicity in the murder, and that changed Upton’s status from voluntary witness to that of suspect. He maintains that this change in status caused him to be “in custody,” because his liberty was now curtailed. He points out that the size of the room, approximately 6 1/2 feet by 14 feet, the fact that Captain Ashlock was blocking the only exit, and the tone of the interrogation made the second interview one that was much more “accusatory.” Because he had cause to believe that Conner had implicated him, Upton claims that a reasonable person in his shoes would have thought his freedom was curtailed. In short, he concludes that at the time of the second interview when his status had changed from voluntary, potential witness to in-custody suspect, he should have been read his Miranda rights again.

This Court reviews a trial judge’s ruling on a motion to suppress by making an “independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State.” Wright v. State, 335 Ark. 395, 403-04, 983 S.W.2d 397, 401 (1998) (citing Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998)). The trial court’s ruling will only be reversed, if it is clearly against the preponderance of the evidence. See id.

The initial question for us to resolve in our analysis is when was Upton taken into custody. In Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999), this Court quoted from a prior decision in which we discussed what constituted custodial interrogation:

It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984), citing California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). Stated another way, the Supreme Court defined custodial interrogation as meaning the questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 444 (196[6]); see also Stansbury v. California, 114 S. Ct. 1526 (U.S. 1994) (per curiam); and Oregon v. Mathiason, 429 U.S. 492 (1977) (per curiam). The Supreme Court further explicitly recognized that Miranda warnings are not required simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Beheler, 463 U.S. at 1125. In resolving the question of whether a suspect was “in custody” at a particular time, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated. Stansbury, 114 S. Ct. at 1529.

Riggs, 339 Ark. at 118, 3 S.W.3d at 309 (1999) (quoting State v. Spencer, 319 Ark. 454, 457, 892 S.W.2d 484, 485 (1995)).

We agree that Upton’s status did change between the first and second interviews for the reasons he stated. Indeed, Captain Ash-lock appeared to confirm that. Nevertheless, we do not view that fact as pivotal to our resolution of this issue. This court has not addressed the precise issue of the continued effectiveness of Miranda warnings to a voluntary witness whose status changes during the interview process to suspect. We have, however, held that a trial court was not clearly erroneous in finding a second statement made by an accused voluntary though there had been a hiatus of two days since the first Miranda warnings. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). See also Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988) (no Miranda violation when warnings given to a suspect at 3:00 a.m. and statement taken without fresh warnings two days later).

The Supreme Court of Connecticut, however, has decided the precise issue that confronts us today. See State v. Burge, 195 Conn. 232, 487 A.2d 532 (1985). In that case, Burge, who was not a suspect, was fully informed of his Miranda rights and executed a written waiver of those rights after he arrived at police headquarters voluntarily between 4:15 and 4:30 p.m. His status changed due to statements made in a subsequent interrogation and after a visit to the crime scene with police. When Burge returned to police headquarters at around 7:00 p.m., his Miranda warnings were repeated in part. He then provided police offices with a written statement, which was completed, read, and signed by 8:30 p.m. Burge argued on appeal that the Miranda warnings he received in the early afternoon were inadequate to validate the confessions he gave four hours later.

The Supreme Court of Connecticut disagreed and said:

The disclosure that Miranda requires must be made no later than the time when an accused is taken into custody. When the police are conducting a good faith precustodial investigation at police headquarters, they may have difficulty in determining the precise moment when questioning turns into custodial interrogation and Miranda warnings are required. Although the uncertain line between questioning and custodial interrogation does not excuse late warnings, it does provide a justification for the validity of good faith early warnings which are sufficiently proximate to formal custody to alert the person being questioned to the importance of these constitutional rights.
In this case, the defendant was continuously in the company of the police, was questioned on the same subject by the same officers throughout that time, and confessed within four hours of having been given the warnings. The defendant’s mental condition was not shown to have so affected his memory or faculties as to render the earlier warnings ineffective. In these circumstances, we conclude that the initial warnings performed their constitutionally mandated function even though they were issued prior to the time the defendant was in custody or had become a suspect.

Burge, 195 Conn, at 247-49, 487 A.2d at 543 (citations omitted).

In the case before us, Upton was in the company of Sheriffs investigators from approximately 10:00 p.m. until 3:00 or 4:00 a.m. He was questioned on the same subject by the same officer during the two-hour period that he was interviewed and confessed within two hours of being given his Miranda warnings. Nothing in the record demonstrates that his mental condition was such that he did not understand the warnings. As was the case in State v. Burge, supra, it is clear to us that the Miranda warnings Upton received and the waiver he executed were adequate and sufficient. There was no Fifth Amendment violation, and we affirm the trial court on this point.

II. Prejudicial Photograph

For his second point, Upton contends that the State introduced a photograph of the victim (State’s Exhibit 10) that was particularly gruesome. He further maintains that State’s Exhibit 10 inflamed the jury and that its probative value was substantially outweighed by prejudice to him. See Ark. R. Evid. 403. He asserts that the photograph does not in any way depict the position of Shelton’s body at the time of the blows to the head and that it sheds no light on whether Upton acted purposefully in causing the death of the victim. See Ark. Code Ann. § 5-10-102 (Repl. 1997). Hence, he concludes, State’s Exhibit 10 should have been excluded.

We do not agree. In Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999), this Court discussed the general principles surrounding the admission of photographs at trial:

Ark. R. Evid. 403 (1999) permits the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Accordingly, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ark. R. Evid. 403.
This court will not reverse a trial court for admitting photographs absent an abuse of discretion. Jones v. State, 329 Ark. 62, 65, 947 S.W.2d 339, cert. denied, 118 S. Ct. 574 (1997). In Jones, we discussed the guidelines for determining whether a trial court has abused its discretion by admitting photographs. For example, although we are highly deferential to a trial court’s discretion, we have rejected a carte blanche approach to the admission of photographs. Jones, 329 Ark. at 65, 947 S.W.2d at 340 (quoting Camargo v. State, 327 Ark. 631, 940 S.W.2d [464] (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. Jones, 329 Ark. at 66, 947 S.W.2d at 341 (quoting Camargo v. State, 327 Ark. 631, 940 S.W.2d [464] (1997) (internal citations omitted)).
Significandy, 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 body, the probable type or location of the injuries, and the position in which the body was discovered. Obviously, when a photograph serves no valid purpose and could only be used to inflame the jury’s passions, it should be excluded. Jones, 329 Ark. at 66, 947 S.W.2d at 341 (quoting Camargo v. State, 327 Ark. 631, 940 S.W.2d [464] (1997) (internal citations omitted)).

Stewart, 338 Ark. at 617-18, 999 S.W.2d at 690.

Here, State’s Exhibit 10 depicts the victim’s head and upper torso and the injuries he sustained in graphic detail. The trial court ruled that the photograph was helpful to the jury in determining the severity of the blows the victim received and whether one or more blows was administered in the murder. The number of blows and their severity, of course, are highly'relevant to the jury’s understanding of the crime. State’s Exhibit 10 is gruesome, but that does not decide the issue. The photograph was also probative and had value for the jury. We hold that the trial court did not abuse its discretion in admitting the photograph into evidence.

The record in this matter has been reviewed for other error in accordance with Ark. Sup. Ct. R. 4-3 (h), and no reversible error has been found.

Affirmed.

       Captain Ashlock has since left employment at the Carroll County Sheriffs Office.