author: Donald L. Corbin, Justice.

text:
    Jason McGEHEE v. STATE of Arkansas
    CR 98-510
    992 S.W.2d 110
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      Llewellyn J. Marczuk, Arkansas Public Defender Commission; for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Jason McGehee appeals the judgment of the Boone County Circuit Court convicting him of the capital murder of fifteen-year-old John Melbourne Jr. and sentencing him to death by lethal injection. Appellant was also convicted of kidnapping Melbourne and was sentenced to life imprisonment on that charge. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1—2(a)(2). For reversal, Appellant argues that (1) there was insufficient corroborating evidence to convict, him of the crimes; (2) the trial court erred in allowing into evidence testimony about prior bad acts and other crimes committed by Appellant; (3) there was insufficient evidence to support the aggravating circumstance that Appellant committed the murder to avoid arrest; and (4) the trial court erred in limiting his presentation of mitigating evidence during the penalty phase of the trial. We find no error and affirm.

The underlying facts of this criminal episode are set out in detail in McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). We see no need to repeat those facts in their entirety. Suffice it to say that on August 19, 1996, Appellant, Benjamin McFarland, Christopher Epps, Candace Campbell, and, to a lesser extent, Robert Diemert held John Melbourne Jr. against his will and severely beat him for “snitching” on them. The beating initially occurred at Appellant’s house in Harrison and later continued at Appellant’s uncle’s house in Omaha, Arkansas. After having beaten the boy for approximately two hours, Appellant, McFarland, and Epps took Melbourne out behind the house in Omaha, into a wooded area, and strangled him. Melbourne’s naked body was discovered by police over two weeks later, on September 3, 1996. Appellant, Epps, and McFarland were arrested and charged with capital murder and kidnapping, while Campbell and Diemert were charged with battery and kidnapping. McFarland and Epps were tried separately and convicted of both crimes; both men received life imprisonment without the possibility of parole. Appellant was the last codefendant tried; he, too, was convicted of both crimes, but was sentenced to die by lethal injection. This appeal followed.

I. Corroborating Evidence of Accomplice Testimony

For his first point for reversal, Appellant argues that the trial court erred in denying his motion for directed verdict on the ground that there was insufficient evidence to corroborate the testimony of accomplices Epps, Campbell, and Diemert. We treat motions for directed verdict as challenges to the sufficiency of the evidence. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Id.

Arkansas Code Annotated § 16-89-111 (e)(1) (1987) provides that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is “corroborated by other evidence tending to connect the defendant with the commission of the offense.” Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Id. The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Marta, 336 Ark. 67, 983 S.W.2d 924. Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id.

The record reflects that at the conclusion of all the evidence, the trial court instructed the jury that Epps was an accomplice to the capital murder as a matter of law; thus, there is no dispute that his testimony must be corroborated as to that charge. The trial court also instructed the jury that Epps, Campbell, and Diemert were accomplices to the kidnapping as a matter of law; hence, their testimony must be corroborated by other evidence of the kidnapping. The trial court did not, however, instruct the jury that Campbell and Diemert were accomplices to the capital murder, either as a matter of law or fact. It is not apparent from the record that Appellant ever requested that Campbell and Diemert be submitted as accomplices to the capital murder. At the conclusion of the State’s evidence, defense counsel made the following motion:

Your Honor, the defense moves for a directed verdict based upon the sufficiency of the evidence. First on the kidnapping charge, we argue that there’s no corroboration. All the testimony of the kidnapping came from Candace Campbell, Robert Diemert, and Chris Epps, who were all co-defendants and accomplices with Jason McGehee and, therefore, it is not sufficient merely to show that a crime was committed but that this defendant committed a crime and there’s no corroboration on that issue.
Similarly, on the capital murder charge, there’s no corroboration that he aided, abetted or solicited or participated in the murder other than being present which is not sufficient. And again, it’s not sufficient merely to show that a crime was committed, so we move for a directed verdict on those two issues. [Emphasis added.]

We do not view counsel’s statements as a request to have the jury decide the issue of Campbell’s and Diemert’s status as accomplices to the capital murder. Accordingly, we agree with the State that Appellant is now procedurally barred from arguing that they are accomplices to the murder.

The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). A defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). Where the witness was never found to be an accomplice, and that appellant failed to request that accomplice instructions be submitted to the jury for consideration, the issue is not preserved for our consideration. Lloyd, 332 Ark. 1, 962 S.W.2d 365; Rockett, 319 Ark. 335, 891 S.W.2d 366.

In the present case, Appellant did not request that Campbell and Diemert be declared to be accomplices to the capital murder as a matter of law, nor did he request that their status be submitted to the jury for determination. Rather, Campbell and Diemert were only declared to be accomplices on the charge of kidnapping. Thus, only Epps’s testimony must be corroborated on the murder charge.

A. Corroboration of Capital Murder

The record reflects that on August 19, 1996, John Melbourne Jr. and Anthony Page went to Cooper’s Shoe Store in Harrison to cash a stolen check. The store’s owner, Rick Harness, testified that the two young men found some shoes and attempted to pay for them with a payroll check made out to John Melbourne for about $125. Harness told them that he could not accept the check because it was not filled out completely. They left and returned thirty minutes later with the check filled out properly. Harness sold them the shoes and gave them cash for the difference. After they left the second time, Harness became suspicious and called the bank about the check. Upon being informed that the check was stolen, Harness called the police.

Officer Mark Rupp of the Harrison Police Department arrived at the shoe store to investigate the incident. While he was there, one of the employees noticed that the guy who passed the check was standing across the street wearing the shoes he had just purchased. Melbourne and Page were subsequently arrested and questioned. Officers seized the shoes and cash from Melbourne as evidence and gave him a property receipt for them. Melbourne told Officer Rupp about the circumstances surrounding the incident at the shoe store. He also told the officer where he got the check. Acting upon Melbourne’s information, Officer Rupp recovered stolen checks from an open basement area under Appellant’s house at 1123 North Spring Street in Harrison. The checks had the same name on them as the check cashed by Melbourne at the shoe store. Officers also recovered other stolen property from the house.

Candace Campbell testified that during the afternoon of August 19, 1996, Appellant told Melbourne to cash a stolen check at a local shoe store. The check had been made out by Appellant’s girlfriend, Mandy Trice. Campbell stated that Melbourne went to the store twice, and that he did not come back after the second visit. While he was gone, the police came to Appellant’s house. Appellant, McFarland, Epps, and Campbell hid in the back of the house where they could see the officers through a hole in the floor. They watched as the officers entered the open basement area and recovered some stolen property. After the officers left, the group surmised that Melbourne must have been caught attempting to pass the stolen check and had told the police what had happened. The group then decided that they should beat up Melbourne because he had “snitched” on them. McFarland and Epps left with the neighbor, Charla Bright, to look for Melbourne. They went with Bright because she was the only one who had a car. A short time after they returned, Melbourne also returned. Melbourne was greeted by Appellant, who asked him what had happened and what he had told the police. Melbourne admitted that he had been arrested, but he denied telling the police anything. Melbourne showed Appellant a piece of paper, presumably the property receipt that he received from the police when they seized the shoes. Epps suddenly came at Melbourne and began hitting and kicking him. When Epps stopped, Appellant started talking to Melbourne again. Eventually, Appellant began hitting Melbourne. Campbell stated that Appellant was mad that Melbourne had “snitched” on them for writing the checks and having the stolen property because he would have to go to prison. Appellant continued hitting Melbourne for about ten or fifteen minutes, after which Epps and McFarland joined in and began hitting and kicking him, too. Campbell admitted that she also hit Melbourne a couple of times.

According to Campbell, the group continued to beat Melbourne for over an hour. Afterwards, Appellant went over to a neighbor’s house where Diemert was visiting. Diemert came back with Appellant and they all left to go to Utah. It was Appellant’s idea to go to Utah, as he had relatives there. They left in Diemert’s car, with Melbourne sitting in the back seat between McFarland and Epps. Melbourne was tied up and weakened from the beating; he was swollen, and there were a lot of bruises and red marks on his body. It was Appellant’s idea to stop in Omaha, Arkansas, before they went to Utah. Appellant gave Diemert directions on how to get to his uncle’s house in Omaha. Campbell stated that at first, the plan was to drop off both Epps and Melbourne in Omaha. During the drive, however, she heard either McFarland or Epps ask Melbourne how it felt knowing that he was going to die. When they arrived at Appellant’s uncle’s house, the group again proceeded to beat Melbourne for approximately one hour. Appellant hit and kicked Melbourne and also threw a box fan at him, hitting him once in the chest and the second time in the head. Melbourne attempted to escape through the kitchen, but he was caught and thrown to the ground by Appellant, Epps, and McFarland.

Campbell stated that Appellant did most of the beating at Omaha. Appellant also asked Melbourne what it felt like knowing that he was going to die. At one point, Appellant, McFarland, Campbell, and Diemert went out on the front porch to smoke. While they were outside, Appellant suggested that they get rid of Melbourne. Appellant told Diemert and Campbell to wait in the car. Appellant, Epps, and McFarland then took Melbourne out behind the house. After they had been gone for ten or fifteen minutes, Campbell heard someone yell. She stated that they were gone for at least thirty minutes, and that when they returned, Melbourne was not with them. Appellant, Epps, and McFarland then went back inside the house to make sure that they had not left anything behind. The group then left for Utah, stopping first at a local gas station. While at the gas station, McFarland pulled Campbell aside and told her that they had taken Melbourne’s life. Part of the group eventually made it to Utah, where Appellant, McFarland, and Campbell broke into Appellant’s aunt’s house and stole her car, a checkbook, and some other items, and were later arrested by the Utah authorities. Shortly thereafter, Campbell told the Boone County authorities about the murder and where they could find the body.

Diemert testified that he had rented the house at 1123 Spring Street and that he let Appellant move in with him. Diemert moved out sometime in July 1996. On the night of August 19, 1996, Diemert was visiting a friend that lived on Spring Street. Appellant approached him that night about going to Utah. Diemert stated that Appellant had previously talked to him about moving to Utah and getting jobs, but that he had not planned to go to Utah that night until Appellant approached him about it. Diemert stated that it was Appellant’s decision to go to Omaha, where his uncle lived. On the way, Diemert heard Appellant ask Melbourne how it felt to know that he was going to die. Once they arrived at Appellant’s uncle’s house, the group began hitting Melbourne and asking him why he had snitched on them. According to Diemert, Appellant hit Melbourne with a box fan and struck him with a stick eight or nine times. Appellant, McFarland, and Epps also hit Melbourne in the head numerous times with a wooden ax handle. At one point, Appellant put a butcher’s knife to Melbourne’s throat. Diemert admitted that he hit Melbourne one time because Appellant told him to do so. At some point after they had beaten Melbourne, Diemert, Appellant, McFarland, and Campbell went outside to smoke and to discuss what they should do next. Appellant then told Diemert and Campbell to wait in the car. Diemert watched as Appellant, McFarland, and Epps took Melbourne down into the woods behind the house. Diemert saw that Melbourne was naked and his hands were tied. About thirty minutes later, Appellant, Epps, and McFarland came out of the woods without Melbourne. Diemert stated that the three of them were laughing. Appellant told Diemert not to worry about Melbourne because he was fine.

Charla Bright, Appellant’s neighbor, testified that on August 19, 1996, she took Epps and McFarland riding around with her to look for some drugs. They ran into Melbourne on Main Street. Epps and McFarland shouted to Melbourne to follow them. Bright then pulled into a parking lot where Epps and McFarland talked to Melbourne. After they finished talking, Epps and McFarland told Bright to take them back to Spring Street. Bright dropped them off and then went home. Later that evening, Bright, Epps, and McFarland went riding around again. This time they went looking for drugs on the town square, where they encountered Anthony Page. McFarland talked to Page, while Epps and Bright waited in the car. Afterwards, Bright dropped off McFarland and Epps at Appellant’s house.

At some point during the evening, Bright heard something hitting or thumping against the wall of Appellant’s house. She went over to see what was happening, but when she knocked on the door, they would not let her enter; instead, they opened the door slightly and told her that they would be out in a little bit. She then went home. Upon hearing more of the same noise, Bright went back to Appellant’s house. This time, when they opened the door, she stuck her foot between the door and the jam and used her hip to force open the door. From the doorway, she saw Melbourne in the front bedroom, standing up against the wall where McFarland and Epps were beating him. Appellant appeared to be in charge of Melbourne’s beating. Bright asked Campbell what was going on, and Campbell told her not to worry about it because she was just going to get herself into trouble. Appellant soon came over to Bright and told her not to worry about it, that Melbourne was his “homey” and that they were not going to hurt him. Appellant told her that Melbourne had “narked them out” about the stolen checks, and that if they were in a bigger city, Melbourne would be killed for what he had done. Appellant assured her that Melbourne was their friend and that they were just going to teach him a lesson. Later that night, Bright heard people at Appellant’s house slamming doors and yelling “let’s go,” and saying that they were in a hurry.

Anthony Page testified that on August 19, 1996, he went with Melbourne to the shoe store to cash the stolen check and was subsequently arrested with Melbourne. Page said he knew that the check was stolen because it was on the same account as a check that he had previously cashed for Appellant. On the night that he and Melbourne were arrested, Page was approached by McFarland on the town square. Page stated that McFarland told him that Melbourne had snitched on them, and that they had him at the house where “he was in the process of getting the worse [sic] ass beating of his life[.]”

Other corroborating evidence of Appellant’s participation in the capital murder included the following testimony. Charles McMahan testified that he owned the farm residence where Melbourne’s body was found. During August 1996, McMahan had rented the place to a man by the name of McGehee. Appellant stipulated that his uncle had lived in the house. Detective Marc Arnold, of the Harrison Police Department, testified that he had accompanied Carrie Myers, Appellant’s landlord, to the residence on Spring Street three days after the murder. While he was inside the house, Arnold found the property receipt that had been issued to Melbourne the day that he was arrested. A1 Rowland, from the Arkansas State Crime Laboratory, examined the receipt and found Appellant’s left thumb print on the document. Dr. Charles Kokes, an associate medical examiner at the State Crime Laboratory, performed an autopsy on Melbourne’s body, which was severely decomposed. Dr. Kokes testified that there was evidence of trauma to Melbourne’s skull. Particularly, he found numerous small fractures on the front of the cranium, around the nasal aperture, on the left cheekbone, and near the left orbit, the bony depression that houses the eyeball. Additionally, there were two traumatic indentations on the right side of the front of the skull. Dr. Kokes stated that the fractures were indicative of blunt force being used on the victim, and that the injuries he observed would be consistent with multiple beatings over a long period of time by persons using fists, feet, and various other devices. Dr. Kokes indicated that the manner of Melbourne’s death was homicide, and that the blunt-force injuries to the victim’s head played a part in his death.

The foregoing testimony is sufficient to independently establish that John Melbourne Jr. was murdered and that Appellant was connected to his murder. Appellant was motivated to harm Melbourne because he thought that Melbourne had “snitched” to police about his criminal activity. It was Appellant’s idea to flee to Utah and to stop at his uncle’s house in Omaha, where Melbourne’s body was later found partially hidden behind some bushes. The evidence supports the State’s theory that Appellant was the leader of this group of people, and that he orchestrated the events of August 19, 1996, that culminated in Melbourne’s murder. We thus conclude that there was sufficient corroborating evidence that Appellant committed the offense of capital murder. We turn now to the sufficiency of the evidence on the charge of kidnapping.

B. Kidnapping

A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty for the purpose of inflicting physical injury upon him or terrorizing him. Ark. Code Ann. § 5-11-102 (Repl. 1997). Epps, Campbell, and Diemert were declared to be accomplices as a matter of law on the charge of kidnapping Melbourne. The question then is whether, excluding their testimony, the other evidence independently establishes that Melbourne was kidnapped and tends to connect Appellant with the crime. We conclude that it does.

As discussed above, Anthony Page testified that after he and Melbourne were arrested and released, McFarland approached Page on the town square and inquired about whether Page knew that Melbourne had been arrested and whether he had snitched on them. Page denied knowing anything about it, as he was afraid of what might happen to him if they found out that he and Melbourne had “snitched.” Page said that McFarland then proceeded to tell him that Melbourne had snitched on them and that “they had him at the house and he was in the process of getting the worse [sic] ass beating of his life[.]” (Emphasis added) Similarly, Charla Bright testified that when she went over to Appellant’s house and let herself in the front door, she saw Melbourne up against the wall in the bedroom while McFarland and Epps were beating him. She also stated that Appellant was in charge of Melbourne’s beating. This testimony establishes that Melbourne was at Appellant’s house against his will and that he was being restrained by the group for the purpose of terrorizing him or inflicting physical injury upon him.

Additionally, there was testimony from Lisa Sakevisius, Chief Criminalist at the Arkansas State Crime Laboratory, that a hair found on the couch at Appellant’s uncle’s house in Omaha was similar in nature and could have a common origin with the hair found in Melbourne’s bedroom and the hair that came from the head of the victim’s body. We agree with the State that this evidence suggests that Melbourne was alive when he was brought to the house in Omaha, thus supporting the kidnapping charge. We thus affirm the trial court’s denial of the directed-verdict motion.

II. Evidence of Other Crimes and Prior Bad Acts

For his second point for reversal, Appellant argues that the trial court erred in allowing the State to present evidence of other crimes and prior bad acts in which he participated. Specifically, Appellant challenges the admission of (1) evidence of the forgeries and burglaries that occurred both prior to and after the murder, and (2) evidence of the beating of Clinton Spears.

Rule 404(b) of the Arkansas Rules of Evidence provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but such evidence is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998). Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id. The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and this court will not reverse absent a showing of manifest abuse. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997) . Correspondingly, the trial court has the discretion to determine whether prejudicial evidence substantially outweighs its probative value, and its judgment will be upheld absent a manifest abuse of discretion. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998) .

It was the State’s theory that Appellant was the leader of a forgery ring, giving stolen checks to the other members of the group and instructing them to cash the checks and bring back the money. The State contended that such evidence showed how Appellant manipulated the group to carry out his criminal objectives. The State contended further that it was necessary to discuss the forgeries to set the scene of the murder and the subsequent flight from authorities. Additionally, the State argued that evidence of the burglaries, during which the checks and property found at Appellant’s house were taken, specifically showed Appellant’s motive to kill Melbourne because only he and Melbourne knew where the property was hidden. Thus, when the police came to the house and recovered the stolen property, Appellant knew that Melbourne had talked to the police, as he was the only other person who knew about the property. This theory was supported by Epps’s testimony that Appellant said that “someone had to snitch and the only two people that knows where it was was me and John.”

The trial court, being familiar with the evidence from having already presided over McFarland’s and Epps’s trials, ruled:

I see no way of trying this case without the whole — all the events leading up [to] the murder of Mr. Melbourne starts out with a forgery and with these various individuals there in the house when the police come to look for and find stolen property in back of the house. The whole circumstances of the case is just unavoidable. To explain the circumstances leading up [to] the crime, I don’t see how else to deal with it.

We concur with the trial court’s assessment of the situation. “Our court has repeatedly held that all the circumstances surrounding a particular crime may be shown, even if those circumstances would constitute a separate criminal act or acts, when the criminal acts are intermingled and contemporaneous with one another.” Brown v. State, 305 Ark. 53, 54-55, 805 S.W.2d 73, 74 (1991) (citing Wilson v. State, 298 Ark. 608, 770 S.W.2d 123 (1989); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985)). Furthermore, this court has repeatedly held that when the purpose of the evidence is to show a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. See, e.g., Lee v. State, 327 Ark. 692, 942 S.W.2d 231, cert. denied, 118 S. Ct. 572 (1997); Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996). See also Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), cert. denied, 520 U.S. 1242 (1997) (holding that the relevance of circumstances that tie the perpetrator to the victim and raise a possible motive for the killing is patently obvious); Edgemon v. State, 275 Ark. 313, 630 S.W.2d 26 (1982) (upholding the trial court’s ruling that evidence showing the defendant’s involvement in a car-theft ring was relevant to the issue of whether he had reason to kill the victim).

Here, the evidence of Appellant’s participation in the uncharged acts of forgery and burglary was properly admitted as proof of his motive for killing Melbourne. The evidence of his flight to Utah and his subsequent arrest there was also properly admitted to show the circumstances surrounding the crime. Moreover, as discussed in the next section, that evidence supports the jury’s conclusion that the murder was committed for the purpose of avoiding or preventing arrest. We thus find no error with the trial court’s ruling.

Likewise, we find no error with the trial court’s decision to admit evidence of Appellant’s participation in the beating of Clinton Spears. Page testified that a week or two before the murder, he met Appellant, McFarland, Melbourne, and Spears at the Harrison town square. They asked Page if he would drive them down Cottonwood Road, a remote country road, so they could smoke some marijuana. Page agreed to do so. They drove down Cottonwood Road and stopped in a field somewhere off the road. It was dark. They all got out of the car, and Appellant and McFarland immediately started “whaling on” Spears, punching and kicking him. Appellant and McFarland were doing most of the hitting, but Melbourne also participated. Page testified that they were beating Spears because “he snitched on them for something.” Page stated further that during the beating, Appellant stated numerous times that he wanted to kill Spears. At that point, Page told everyone to get into the car and they left. Spears refused to go with them, so they left him there. Page stated that Appellant and McFarland were equally in charge of beating Spears, but that Appellant had suggested where to go and where to stop.

The State contended that evidence of Appellant’s participation in the beating of Spears for “snitching” on them was relevant to show his motive for kidnapping, beating, and killing Melbourne. We agree. Evidence of a defendant’s bad acts may be introduced if they tend to prove the defendant’s motive for committing the crime at hand. Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998). To be admissible, there must be a very high degree of similarity between the charged crime and the prior uncharged act. Johnson, 333 Ark. 673, 972 S.W.2d 935. However, the degree of similarity between the charged crime and the prior uncharged act is a determination that affords considerable leeway to the trial judge and may vary with the purpose for which the evidence is admitted. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).

Here, Appellant was accused of kidnapping and killing Melbourne because he had “snitched” to the police about Appellant’s participation in the forgeries and burglaries. Only a week or two earlier, Appellant had participated in the beating of Clinton Spears because he, too, had “snitched” on him. The similarities between the two incidents are sufficient for admission under Rule 404(b). Both instances involved the members of Appellant’s group finding someone to drive them and the victim to an isolated area where the victim was beaten and left behind. Both instances also involved threats made by Appellant to kill the victims. In both instances, Appellant directed the driver to the isolated area where the victim was to be taken. Moreover, in both instances the motivation for the attack was the group’s suspicion that the victims had told the police about their illegal activities. Furthermore, the prior crime was committed sufficiently close in time to the charged crimes so as to have particular bearing on Appellant’s motive and plan in committing the charged crimes.

We cannot say that the trial court abused its discretion in allowing the evidence of Appellant’s participation in the beating of Spears, as it was independently relevant to show his plan, motive, and intent to kidnap and murder Melbourne. The State is entitled to produce evidence showing circumstances that explain the act, show a motive for killing, or illustrate the defendant’s state of mind. Lee, 327 Ark. 692, 942 S.W.2d 231; Scott, 325 Ark. 267, 924 S.W.2d 248. The jury was properly instructed that such evidence was not to be considered to prove Appellant’s character or that he acted in conformity therewith, but was merely offered as evidence of motive, opportunity, intent, preparation, plan, and knowledge of the crimes with which he was charged. We thus affirm the trial court’s ruling on this issue.

III. Aggravating Circumstance of Preventing or Avoiding Arrest

For his third point for reversal, Appellant argues that there was insufficient evidence to support the jury’s finding that he committed the capital murder to avoid or prevent his arrest for the underlying felonies of forgery and burglary. He asserts that the evidence was just as suggestive that the murder was motivated purely by anger and retaliation, and that, therefore, there is not substantial evidence to support the aggravating circumstance. We disagree.

This court may affirm a jury’s finding that an aggravating circumstance exists beyond a reasonable doubt only if the State has presented substantial evidence in support of each element of the aggravating circumstance. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). Substantial evidence is evidence that is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. Id. We review the sufficiency of the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982 (1996).

Arkansas Code Annotated § 5-4-604(5) (Repl. 1997) provides for the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody. This aggravating circumstance is “apparently designed to deter deliberate murderous acts subversive of the criminal justice system in particular and social order in general, and to protect certain persons deemed especially important to the integrity of both, including law enforcement officers, prison guards, and actual or potential witnesses in judicial proceedings.” Id. at 200, 919 S.W.2d at 954 (emphasis added) (quoting Thomas M. Fleming, Annotation: Sufficiency of Evidence, for Purposes of Death Penalty, to Establish Statutory Aggravating Circumstance that Murder Was Committed to Avoid Arrest or Prosecution, to Effect Escape from Custody, to Hinder Governmental Function or Enforcement of Law, and the Like Post-Gregg Cases, 64 A.L.R.4th 755, 763 (1988 and Supp. 1995)(footnote omitted)). A common thread in many of this court’s prior decisions involving this aggravating circumstance is that the murder was committed to avoid arrest or to eliminate a witness to another offense committed in connection with the murder. Id. Indeed, this court has held that killing a victim to eliminate a witness is the same thing as avoiding or preventing arrest. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

The evidence in the present case supports the jury’s conclusion that Appellant committed the murder for the purpose of preventing his arrest on the other crimes. The primary motivation for kidnapping, beating, and killing Melbourne was that he had informed the police about the group’s criminal activities. There was testimony that only Appellant and Melbourne knew about the prior burglary that resulted in the stolen property kept at Appellant’s house and subsequently recovered by the police. Melbourne’s death thus eliminated the possibility that he would later testify against Appellant or the other members of the group. The jury’s conclusion is further supported by the group’s decision to avoid arrest by fleeing to Utah and the fact that they disposed of Melbourne before leaving the state. We thus affirm the trial court’s ruling on this issue.

IV. Mitigating Evidence

For his last point for reversal, Appellant argues that the trial court erred in limiting the mitigating evidence that he was allowed to present during the penalty phase of the trial. Particularly, Appellant urges three errors: (1) not allowing him to present the commitment orders of McFarland and Epps; (2) limiting the testimony of LaDonna McGehee, Appellant’s ex-wife, and Linda Christensen, Appellant’s aunt; and (3) restricting the time for Appellant’s closing argument.

Arkansas Code Annotated § 5-4-602(4) (Repl. 1997) provides in pertinent part:

Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but mitigation evidence must be relevant to the issue of punishment, including, but not limited to, the nature and circumstances of the crime, and the defendant’s character, background, history, and mental and physical condition as set forth in § 5-4-605. [Emphasis added.]

Although the rules of evidence are not applicable to the admissibility of mitigating evidence, this statute does not open the way for the admission of irrelevant evidence. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341, cert. denied, 497 U.S. 1011 (1990), 500 U.S. 929 (1991). Indeed, this court has previously held that in passing this statute, “the legislature did not intend to totally open the door to any and all matters simply because they might conceivably relate to mitigation[.]” Johnson v. State, 308 Ark. 7, 27, 823 S.W.2d 800, 811, cert. denied, 505 U.S. 1225 (1992) (citing Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981)). Thus, to be admissible, evidence of mitigating circumstances must be relevant to the issue of the defendant’s punishment.

Appellant first argues that the trial court erred in refusing to admit into evidence the commitment orders of his codefendants who had been sentenced to life imprisonment without the possibility of parole. Appellant’s theory was that because the codefendants were equally liable as accomplices to the capital murder, they should be equally punished. Appellant cites no authority or convincing argument in support of his theory, and we are not aware of any. We have stated on occasions too numerous to count that this court will not reverse where the appellant has offered no convincing argument or authority and it is not apparent without further research that the argument is well taken. See, e.g., Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998); Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). In any event, Appellant succeeded in getting part of this information to the jury when Epps stated on cross-examination that he was currently imprisoned at the Varner unit of the Arkansas Department of Correction and that he was not on death row.

Appellant next argues that the trial court erred in limiting the testimony of two defense witnesses. He first asserts that it was error to refuse to allow Appellant’s ex-wife LaDonna McGehee to ask the jury for leniency in sentencing Appellant. The record reflects that defense counsel asked Ms. McGehee “Is there any statement you want to make to the jury regarding his sentence?” The prosecutor objected to the question, and the trial court sustained the objection. Defense counsel did not make a proffer to the trial court as to what Ms. McGehee’s testimony would be. Rule 103 of the Arkansas Rules of Evidence requires a party to make a proffer of the testimony or evidence sought to be admitted unless it is clear from the context of the questions asked what the evidence would be. See, e.g., Echols, 326 Ark. 917, 936 S.W.2d 509; Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226 (1996); Jones v. State, 321 Ark. 649, 907 S.W.2d 672 (1995). Here, Appellant made no proffer of the witness’s testimony, and it is not clear from the context of the question what particular information Appellant sought to introduce. We thus decline to consider this argument, as it is not preserved for our review. See Jones, 321 Ark. 649, 907 S.W.2d 672.

Appellant also submits that it was error for the trial court to limit Linda Christensen’s testimony in two separate instances. In the first instance, Appellant asserts that she should have been allowed to testify as to what happened to Appellant’s dogs when he was a small child. The record reflects that Ms. Christensen was testifying about how Appellant’s mother had made him sleep outside with the dog and would not allow him into the house for seven to ten days. She stated that Appellant was living out there with his dog, in a dog run that had no cover on it. She then stated that her family was weird about how they handled their animals. Defense counsel then asked Ms. Christensen what happened to Appellant’s dogs when he was a small child. Ms. Christensen replied that “[w]hen he was a baby, he had a Doberman Pinscher [.]” The State objected on the ground that the testimony was irrelevant. The trial court sustained the objection. Defense counsel offered no explanation as to why that particular evidence was relevant, stating only that the jury needed to know the background of why Appellant did what he did. After the jury retired for deliberation, defense counsel proffered that Ms. Christensen would have testified that Appellant’s family blamed Appellant when the dogs’ throats had been slit, telling him that God had killed the animals because he wanted a new puppy.

We cannot say that the trial court’s decision to deny admission of the testimony was erroneous, given that, at the time the trial court made its ruling, it was not clear where defense counsel was going with the testimony. Moreover, we cannot say that the trial court erred in finding the evidence irrelevant to Appellant’s punishment, in light of the fact that the testimony merely described the family’s attitude about the death of their dogs, an event that occurred when Appellant was just a baby. A trial court has wide discretion in admitting evidence, including that presented during the penalty phase of the trial, and we will not reverse the trial court’s ruling absent an abuse of discretion. See McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998); Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).

In the second instance, Appellant asserts that Ms. Christensen should have been permitted to testify about Appellant’s stepfather’s abuse of Appellant’s sister. It is not clear from Appellant’s brief how this evidence would be relevant to the issue of his punishment. In any event, this argument is moot because the witness testified that Appellant’s stepfather beat up his sister and that family services were called in because the girl had big bruises on the back of her legs. Although the State objected to the testimony and the trial court sustained the objection, the jury was never admonished not to consider the evidence. Thus, for all intents and purposes, Appellant succeeded in presenting the testimony he sought to introduce.

Lastly, Appellant argues that the trial court erred in restricting his time for closing argument during the penalty phase. The record reflects that defense counsel requested forty-five minutes for closing argument, but stated that he could actually do it in about thirty minutes. The trial court rejected the request and gave fifteen minutes to each side. We find no error with the trial court’s ruling. The trial court has broad discretion in controlling closing arguments, and we will not reverse the trial court’s decisions in such matters absent a manifest or gross abuse of discretion. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). We cannot say that the trial court’s decision to restrict closing argument to fifteen minutes was a manifest abuse of its discretion. Moreover, when the trial court alerted defense counsel to the fact that he had gone over his time, and defense counsel requested one more minute, the trial court gave him the requested time. Appellant cannot now complain that the trial court unfairly restricted his argument when he received the relief requested. See Noel, 331 Ark. 79, 960 S.W.2d 439; Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996).

V. Rule 4-3(h) Compliance

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 such reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

       Dr. Kokes was not able to examine the body for evidence of strangulation, as the soft tissue around the neck had already completely decomposed.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Antonio WILLIAMS, Kendrick Gillum, and Demarco T. Wilson v. STATE of Arkansas
    CR 98-256
    992 S.W.2d 89
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      Donald A. Forrest, for appellants Williams and Gillum.

      Bart Ziegenhorn, for appellant Wilson.

      Winston Bryant, Att’y Gen., by; Vada Berger, and C. Joseph Cordi Jr., Ass’t Att’ys Gen., for appellee.
   Robert L. Brown, Justice.

This is the second time that the appeals of appellants Antonio Williams, Kendrick Gillum, and Demarco T. Wilson from capital-murder convictions have been submitted to this court for decision. On November 19, 1998, their appeals were submitted, and we halted consideration after Williams and Gillum filed a petition for error coram nobis. We granted the petition for all three appellants and reinvested the trial court with jurisdiction to hear the matter. See Williams v. State, 335 Ark. 453, 983 S.W.2d 407 (1998) (per curiam). The error coram nobis petition alleged that another person had confessed to the crime. On April 27, 1999, the trial court denied the petition for the writ.

We now consider the appellants’ original appeals from the judgments of conviction for capital murder and their sentences for life imprisonment without parole. Various points are raised on behalf of the three appellants, including insufficiency of the evidence. We conclude that the points do not merit reversal of the judgments, and we affirm.

On February 1, 1997, Frederick Ellis and Charles Newsome were driving in Newsome’s Cadillac automobile, and they stopped by his home at the Mayfair Apartments in West Memphis so that Newsome could shower and change clothes. Newsome and Ellis left the Mayfair Apartments in the Cadillac between 7:30 and 8:00 p.m. and turned onto McAuley Street. Before they could complete the turn, gunfire erupted, and Newsome was shot in the back and arm. Ellis grabbed the wheel, and the Cadillac struck another car parked on the street. Ellis managed to drive the car back to Newsome’s mother’s house and to telephone 911 for assistance. Newsome bled to death from his wounds. The three appellants were charged with capital murder, and a four-day trial ensued. Following the trial, all three appellants were found guilty, convicted, and sentenced.

I. Sufficiency of the Evidence

The three appellants now challenge the sufficiency of the evidence and the trial court’s denial of their motions for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). In considering a denial of a motion for directed verdict, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. See Freeman v. State, supra. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. See Freeman v. State, supra; Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” Esry v. Carden, 328 Ark. 153, 156, 942 S.W.2d 846, 847 (1997). In such situations, the weight and value of testimony is a matter within the exclusive province of the jury. See Union Pac. R.R. Co. v. Sharp, supra.

a. Demarco T. Wilson

We first review the evidence presented against Demarco T. Wilson. Frederick Ellis, the passenger in the car with Newsome, identified the three appellants at trial as the shooters. Ellis further testified that he had known the three appellants “pretty much” his entire life. Following the murder, he gave three different statements to police officers — a short one immediately after the shooting, a second one the same night but a few hours later, and a third one five days later. In the first statement, he said there were three or four young black males who were the shooters, but he did not give any names. In the second statement, he identified appellants Antonio Williams and Kendrick Gillum as two of the perpetrators. He added that he had seen Kevin Johnson and Darnell Troup, witnesses at trial, drive by immediately before the shooting and that their car was in front of the Cadillac at the time of the shooting. Ellis identified two more perpetrators in his third statement, one of whom was appellant Demarco T. Wilson.

At trial, Ellis testified that two of the three appellants he saw had handguns and that they were standing by the manager’s office of the Mayfair Apartments from where the shots were coming. He also changed his story and said that he had viewed the appellants out of the window on the driver’s side of the car and not the passenger’s side. To explain this contradiction, Ellis said that he was confused and distraught the night of the murder when he gave the second statement. He testified that as he and Newsome turned out of the parking lot onto McAuley Street, the appellants began shooting, and the shots came from behind the car.

Kevin Johnson, a witness who was riding with Darnell Troup in a car in front of Newsome and Ellis, testified that he knew the three appellants and saw them with another person he could not identify standing beside the Mayfair Apartments. He stated that one of them had a rifle on his shoulder and that he heard shots soon after his car passed the three men. Darnell Troup, who was driving the car, testified that he heard shots near the back of the apartments, which caused him to speed up and travel to his cousin’s house.

Michael Lewis also testified that he was just in front of the Cadillac and saw three black men walk from behind the manager’s office at the Mayfair Apartments, step onto the back porch, and begin shooting at Newsome’s Cadillac. He testified that one of the men raised a rifle and the other two brought out pistols and that the combined shots lasted a good fifteen seconds. Lewis also testified that the passenger in the Cadillac pushed Newsome over in the driver’s seat and sped away.

Mark Welch testified that he knew Demarco Wilson and that Wilson’s girlfriend lived at the Mayfair Apartments. Welch said that he heard the shots and came out of the building when the police officers arrived. He testified that “when they [police officers] took him [Wilson] out to the car, he acted like he was happy and stuff, smilin.” But when Charles Newsome’s sister arrived, he looked “spooked.” He stated that Wilson was trying to hide behind him and some others. He also testified that at least fifteen to sixteen shots had been fired.

The State further produced twenty-five shell casings found at the scene, photographs of the bullet marks on the Cadillac, and photographs of the bullet wounds on the victim as well as other witnesses’ testimony whose homes had been shot during the incident. Witnesses also testified to the multitude of bullets fired. The Medical Examiner, Dr. Frank Joseph Peretti, testified that Newsome died from two wounds — one in the back and a second in the forearm. He testified that there was no evidence of close-range firing or gunpowder residue on the skin surrounding the wounds.

Officer Regina Meek of the West Memphis Police Department testified that she recovered shell casings by the manager’s office of the Mayfair Apartments from both a semi-automatic weapon and a revolver. She also testified that there were bullet holes in the back window of Newsome’s Cadillac and damage to the right side of the car from gunfire. Detective Kent Mitchell of the West Memphis Police Department testified that there were five bullet holes in the Cadillac located at the driver’s side door, the rear glass, the back quarter panel, the left-hand side of the trunk, and the back bumper. Officer Bryn Ridge, also of the West Memphis Police Department, testified that he found three bullet holes located in the front seats and the armrest between the seats.

Viewing this evidence in toto and in the light most favorable to the State, we find substantial evidence of Wilson’s guilt. Wilson’s primary argument in opposition to this conclusion is an attack on the credibility of Frederick Ellis, who was the only witness who identified Wilson as a shooter. The attack is premised on the inconsistencies in Ellis’s testimony compared to his statements to the police and the testimony of other witnesses. The major inconsistencies that the defense points to are whether there were three or four perpetrators, whether Ellis saw the three appellants through the passenger’s or driver’s window, whether all three perpetrators had guns, and the fact that he did not name Wilson until he gave his third statement to police officers.

This court, though, does not attempt to weigh the evidence or assess the credibility of witnesses. That lies within the province of the trier of fact. See Harris v. State, 331 Ark. 353, 961 S.W.2d 737 (1998). Moreover, inconsistent testimony does not render proof insufficient as a matter of law, and one eyewitness’s testimony is sufficient to sustain a conviction. See id.; Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997). Wilson has presented us with no valid reason to disregard the jury’s assessment of Ellis’s credibility. We affirm the trial court’s denial of the directed-verdict motion. We hold that substantial evidence to support Wilson’s judgment of conviction does exist.

b. Antonio Williams and Kenneth Gillum

With respect to the State’s evidence amassed against Antonio Williams and Kenneth Gillum, it was the same evidence for the most part already discussed in relation to Demarco T. Wilson, which we held was substantial. The State, however, first contends that although Williams made a motion for directed verdict at the close of the State’s case and renewed it at the close of his case, he did not renew his motion at the close of Gillum’s and Wilson’s cases. Thus, according to the State, Williams’s claim is not preserved for our review. We disagree.

Arkansas Rule of Appellate Procedure—Criminal 33.1, provides in part:

When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. (Emphasis added.)

The issue, then, is what is the “close of the case,” as the phrase pertains to Williams. We believe that a reasonable interpretation is the close of the defendant’s own case. The policy behind the rule is certainly served by having a defendant renew his motion at the close of his case. This gives the trial court the opportunity to decide the motion based on all of the pertinent evidence relating to that particular defendant.

Turning then to the merits, Williams and Gillum both contend, as did Wilson, that the State’s case against them is riddled with inconsistencies. It is true that State witnesses gave contradictory testimony about which way Newsome’s car turned onto McAuley Street, whether the passenger door of the Cadillac was opened after the shooting, whether the car slowed or stopped, and whether Ellis went to the driver’s side to push Newsome aside in order to drive the car. There was further an issue about the finding of gun powder residue on Newsome’s jacket, which is only consistent with close-range shooting and which was inconsistent with the testimony of Dr. Peretti, who testified that there was no evidence of close-range firing around the wounds. Witnesses also were not completely in accord regarding what weapons were used: Frederick Ellis said there were two handguns, while Michael Lewis testified to two handguns and a rifle. And there was a conflict in testimony about which car was driving in front of the Cadillac: Michael Lewis’s or Kevin Johnson’s, the color of the Cadillac, and whether the handguns were brown or chrome.

Further, the two appellants emphasize that Frederick Ellis and Kevin Johnson were the only two witnesses who identified them, and they are both convicted felons. Furthermore, their statements were contradictory and also conflicted with other trial testimony. Added to this was the fact that Johnson did not give his statement until nine days after the shooting, which the defense claimed undercut his credibility because he may have talked to Ellis. Finally, Williams and Gillum refer to the testimony of Carla Nolan, who was Williams’s witness and who testified that she heard shots fired and looked out her window. She saw two cars coming from the Mayfair Apartments. She stated that the car traveling north had passengers shooting at the car traveling south. This testimony, of course, was at odds with the State’s witnesses who testified that the shooters were all on foot.

Regardless of the discrepancies, inconsistencies, and contradictory evidence, we reiterate that matters of credibility are for the jury to determine. See Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998).

We also note that there was additional evidence introduced against Gillum that supports a finding of guilt. First, Ellis testified to Gillum’s motive for the shooting, which was an argument between Gillum and Newsome at a barbeque place on Missouri Street a week prior to the shooting. There were, in addition, two statements made by Gillum and testified to by prisoners in the Crittenden County Jail. Prisoner Jeff Cayton testified that he was in jail with Gillum and that Gillum said, “I shot. . . [Newsome’s] car up,” that Ronald Davis had taken care of the gun, and that the shooting was gang-related. Prisoner Plugh Foster testified that Gillum was “talkin’ about how he had done shot one guy and was probably going to prison.” Foster added that Gillum told him when he got out of prison, “he was gonna shoot somebody else.”

As was rhe case with Wilson, we conclude that the evidence mounted against Antonio Williams and Kenneth Gillum was substantial and amply supports the judgments of conviction.

II. Severance

Demarco Wilson and Antonio Williams also contend that the trial court should have granted them a severance. Wilson’s specific argument is that Gillum’s two jailhouse confessions prejudiced him because there were references to a gang war involving Newsome and Gillum. Wilson claims that Gillum’s statements imputed guilt to him.

We disagree. A trial court has discretion to grant or deny a severance, and on appeal we will not disturb the ruling absent an abuse of discretion. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). Our joinder and severance rules are designed to promote an expeditious disposition of criminal cases while at the same time not prejudicing individual defendants. See Echols v. State, supra. Joinder of defendants is appropriate where a joint scheme or plan is involved. See Ark. R. Crim. P. 21.2. Severance is appropriate for trial when it is necessary for a fair determination of the guilt or innocence of a single defendant. See Ark. R. Crim. P. 22.3(b)(iii).

When making the decision regarding severance of trials for multiple defendants, the trial court should consider: (1) whether the defenses of the defendants are antagonistic; (2) whether it is difficult to segregate the evidence; (3) whether there is a lack of substantial evidence implicating one defendant except for the accusation of the other; (4) whether one defendant could have deprived the other of all peremptory challenges; (5) whether one defendant will be compelled to testify if the other does so; (6) whether one defendant has no prior criminal record and the other has; and (7) whether circumstantial evidence against one defendant appears stronger than against the other. See Echols v. State, supra. We held in Echok that if there is an evidentiary basis for the jury to decide each defendant’s case separately, there is no error in denying severance of trials just because of inconsistent strategies. We added that unless the conflicting strategies go to the essence of the defenses and are so great that both defenses cannot be accommodated by the jury, severance is not required. See id.

We initially observe that according to Arkansas Rule of Criminal Procedure 22.3(a), it is only when a statement “makes reference” to a codefendant that it is inadmissible against that codefendant. Here, Cayton’s recounting of Gillum’s jailhouse statement did not make reference to Wilson or Williams, but only to Gillum. Thus, severance was not warranted under this rule. Moreover, turning to the Echols factors, the only factors implicated in the instant case are the possible difficulty of segregating the evidence as it relates to individual appellants and the fact that the evidence appeared stronger against Gillum than against the other two appellants. Neither of these two factors suffice to mandate severance. The jury could have easily separated this testimony against Gillum from the other codefendants. And the trial court took appropriate precautions under the rule to foster a fair trial for Wilson and Williams. For example, the court redacted the reference to “three guns” in Gillum’s jailhouse statement, and then it gave a cautionary instruction to the jury that “a witness is about to be called that will give testimony that relates to the defendant Kendrick Gillum alone, and you should not and are instructed not to consider the evidence adduced from this witness in any regard to Antonio Williams or Demarco Wilson.”

Williams argues a separate point, however. He contends that the trial court should have granted him either a severance or mistrial because Sedric Harper, a witness called by Gillum, testified that when he heard about Newsome’s death, he telephoned Gillum at his home to warn him, and Williams answered the telephone. Williams’s counsel claims that this testimony placed Williams and Gillum together on the evening of the murder when the only other testimony that they were together came from suspect witnesses such as Frederick Ellis. Williams, like Wilson, further claims that he was prejudiced by the testimony because the evidence against Gillum was so much stronger, particularly in light of the evidence of Gillum’s jailhouse statements. In this regard, Williams notes that attorneys for Williams and Gillum had supposedly agreed that Sedric Harper would not mention the other two appellants.

The trial court denied Williams’s motion for several reasons. The court stated that it was obvious that defense counsel for Gillum and Williams had coordinated their strategies, which included the Sedric Harper testimony. The trial court further stated that it felt it had been “sandbagged” because defense counsel had never before intimated that there was any conflict or antagonistic defenses between Gillum and Williams until the fourth day of trial. The trial court also had doubts that the Harper testimony was harmful because no time frame for the Harper telephone call in relation to the time frame of the murder was given, and, if anything, the testimony established an alibi for Williams.

Because Williams’s motion was made on the fourth day of trial, the trial court stated that at this stage, a declaration’of a mistrial was the appropriate remedy. The court denied Williams’s motion for mistrial but gave the jury a cautionary instruction on Harper’s testimony, stating that it should only be considered against Gillum and not against Wilson and Williams. We note on this point that a mistrial is a drastic remedy and is proper only when an error is so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction. See Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). We conclude that any prejudice to Williams occasioned by the Harper testimony was cured by the instruction to the jury.

There is also the fact that Williams did not timely move for severance or object to the Harper testimony. During opening statement, Gillum’s attorney referred to the fact that Williams and Gillum were together after the murder, but this comment drew no objection from Williams’s counsel. A motion for severance must be made pretrial except that it may be made before or at the close of the evidence if it is based upon a ground not previously known. See Ark. R. Crim. P. 22.1. Severance is waived if it is not made at the appropriate time. See Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994). To preserve an issue for review, a party must object at the first opportunity in the trial court. See Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). Clearly, Williams did not do so in this instance.

IV. Rebuttal Witness

For his next point, Gillum contends that the trial court erred in refusing to allow him to call a rebuttal witness to testify to Jeff Cayton’s bias. Specifically, Gillum called Stanley Carter from the Crittenden County Jail to impeach the testimony of Jeff Cayton, who had testified about Gillum’s jailhouse statement. According to Gillum’s counsel, Carter would have testified that Cayton had a “beef” with Gillum and had said that he was going to get Gillum back because of it. The State objected to this testimony because Carter was not on Gillum’s witness list. Gillum’s counsel answered that he had not learned of the jailhouse confessions until eighteen days before trial because of personnel changes in the Prosecutor’s office. After he found out, he investigated and did not learn about Stanley Carter until the day before he called him as a witness. The trial court refused to allow Carter to testify and refused to continue the case so that the State could talk to Carter. The trial court’s grounds were (1) the witness was undisclosed, (2) Cayton never got the opportunity to admit or deny any alleged bias, and (3) Carter’s testimony would be hearsay.

The trial court’s ruling calls into play both the rules of criminal procedure and rules of evidence. Our criminal rules provide that, if requested by the prosecuting attorney, defense counsel shall inform the prosecution of the nature of any planned defense and the names and addresses of witnesses. See Ark. R. Crim. P. 18.3. Sanctions by the trial court for failure to adhere to discovery rules include granting a continuance, excluding the evidence, or ordering the discovery. See Ark. R. Crim. P. 19.7.

Additionally, our rules of evidence do not permit a witness’s impeachment by extrinsic evidence for purposes of attacking credibility. See Ark. R. Evid. 608(b). The general rule is that a witness may not be impeached with extrinsic evidence on a collateral matter. See Landrum v. State, 320 Ark. 81, 894 S.W.2d 933 (1995). This court has held, however, that a matter is not collateral if the evidence shows bias, knowledge, or interest of the witness. See Smith v. State, 328 Ark. 249, 943 S.W.2d 234 (1997); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). In other words, if a witness denies the facts claimed to show bias, the attacker has a right to prove those facts by extrinsic evidence. See id. Stated differently, the witness must first deny the bias before he or she can be impeached by extrinsic evidence. See Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978); see also Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982).

The State correctly points out that Gillum did not elicit testimony from prisoner Cayton while he was on the stand about his statements to Carter. Gillum’s counsel responds that he was not aware of Carter until the day before he called him and argues that he could not have asked Cayton about bias against Gillum or put Carter on his witness list because of this. Gillum’s counsel also makes the point that Carter was a rebuttal witness and therefore he was not required to be placed on the witness list.

In a case with similar facts except that the surprise witness was called by the State, this court held that the State is not required to give the defense the names of rebuttal witnesses until the defense case has been presented because until that time, the State cannot know of witnesses needed for rebuttal. See Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). In Isbell, the State learned about the witnesses only the night before they were called. The trial court allowed the rebuttal testimony, but first gave the defense a recess to confer with the witnesses. We held that the trial court did not abuse its discretion. The same rationale should apply to a rebuttal witness for the defense.

Despite this, there is still the problem with Gillum’s not asking Cayton about his bias toward Gillum prior to introducing Carter’s testimony about Cayton’s bias. Defense counsel for Gillum, of course, could have called Cayton as a hostile witness and posed the bias question to him. Also, there is some question about whether Gillum’s counsel in fact did know about Stanley Carter at the time he cross-examined Cayton. Cayton was cross-examined by defense counsel the afternoon of November 6, 1997, and defense counsel then tried to call Carter the next afternoon. At that time, defense counsel told the trial court that he had learned about Carter the day before, which would be on the same day that he cross-examined Cayton. We hold that the trial court did not abuse its discretion in refusing to allow Gillum to call Stanley Carter as a rebuttal witness.

As a second issue, Gillum maintains that the trial court erred in allowing prisoner Hugh Foster to testify that Gillum had said that he had shot one guy and was going to shoot another when he got out of prison. Gillum argues that the statement does not relate to the crime involved in this case, and the trial court improperly allowed it into evidence under Ark. R. Evid. 404(b).

Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove conformity therewith, but may be admissible for other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. A trial court’s decision to admit evidence under this rule is a discretionary one which will not be reversed absent an abuse of discretion. See Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). The Rule 404(b) exceptions go beyond a plan or scheme and include any independently relevant proof of motive, opportunity, intent, absence of mistake, and the like. Dillard v. State, 333 Ark. 418, 971 S.W.2d 764 (1998).

Foster’s testimony that Gillum said he had shot one guy and was probably going to prison was admissible under 404(b) to show his intent, knowledge, and absence of mistake regarding his shooting of Newsome. The remaining part of the statement — that he would probably shoot someone else when he got out of prison — is probative of his plan to eliminate a State witness once he was released, such as Frederick Ellis. We are not convinced of an abuse of discretion by the trial court in permitting this statement.

V. Alibi Witness

As a final point, the appellants complain that the trial court coerced them into not calling one of their alibi witnesses, Tasha LeFlore. The trial court stated that if she was called, the court would allow the State to impeach her with evidence of AK-47 rounds found at her home bearing the same lot number and year as those found at the Mayfair Apartments crime scene. This, the appellants maintain, precluded them from calling a key witness. The rounds had been found by investigating officers seven months after the killing and were not disclosed to the defense.

We conclude that this argument is without merit because this court is provided with nothing to review. Defense counsel did not call LeFlore as a witness or proffer what her testimony would be. Though there was conversation among trial counsel and the court about impeachment of LeFlore, it never came about. Matters left unresolved are waived and may not be raised on appeal. See Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994). This court will not speculate on what might have occurred, and because of this, we will not consider an issue that was not decided by the trial court. See Cordell v. Nadeau, 321 Ark. 300, 900 S.W.2d 556 (1995). To do otherwise would be to render an advisory opinion. See id.

The record has been reviewed for other reversible error pursuant to Ark. Sup. Ct. R. 4-3(h), and none has been found

Affirmed.


author: Annabelle Clinton Imber, Justice. Glaze, J.,

text:
    MANILA SCHOOL DISTRICT NUMBER FIFTEEN v. Robert R. WHITE
    99-30
    992 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      William C. Brazil and Amy Brazil, for appellants.

      Barrett & Deacon, by: D. P. Marshall Jr. and James F. Gramling Jr., for appellees.
   Annabelle Clinton Imber, Justice.

By petition for writ of mandamus filed in the Circuit Court of Mississippi County, Arkansas, Mr. Robert R. White sought to compel the Manila School District No. 15 and the members of the District’s Board of Education to renew his contract for the 1998-99 school year under the same terms and conditions as his 1997-98 contract. Specifically, Mr. White asserted that the contract offered by the District for the 1998-99 school year constituted a nonrenewal of his earlier contract and that the District’s failure to comply with the provisions of the Teacher Fair Dismissal Act of 1983 resulted in an automatic renewal of his contract. Ark. Code Ann. § 6-17-1501 et seq. (1993 Repl.). The trial court granted Mr. White’s petition for writ of mandamus and motion for summary judgment. In support of its argument on appeal that the trial court erroneously applied the Teacher Fair Dismissal Act, the District contends that its actions constituted a reassignment of duties under Ark. Code Ann. § 6-17-303 (Repl. 1993) rather than a nonrenewal under Ark. Code Ann. § 6-17-1501 et seq. We disagree and affirm the trial court.

The purpose of the writ of mandamus is to enforce an established right or to enforce the performance of a duty. Chandler v. Perry Casa Public Schools, 286 Ark. 170, 690 S.W.2d 349 (1985). By summary judgment, the trial court ruled that Mr. White had an established legal right to renewal of his employment contract for the 1998-99 year on the same terms as the 1997-98 contract. The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Stockton v. Sentry Ins., 337 Ark. 507, 989 S.W.2d 914 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997).

The material facts are not in dispute. Mr. White was employed by the Manila School District as a teacher and coach for thirteen years. His duties always included coaching and teaching classes in physical education. He never taught core curriculum subjects, such as English, science, math, geography, or social studies, although he occasionally instructed courses in driver’s education or supervised study hall. Mr. White had a successful record as a coach. Under his supervision, the Manila senior high basketball team won several district and conference championships. Likewise, Mr. White led Manila’s golf team to championships at the district and state level. He was also named coach of the year several times. During his thirteen years with the Manila School District, Mr. White never received anything but satisfactory formal evaluations of his work.

Mr. White’s contract with the District for the school year 1997-98 provided that he would perform “the duties that are generally performed by a teacher including but not limited to, the following specific duties: as assigned by the Superintendent.” The time period for the contract was August 14, 1997 to May 22, 1998, and the compensation to be paid was a base salary of $37, 567 ( revised in May 1998 to $38, 986). According to the last paragraph of the contract entitled “OTHER CONDITIONS OF EMPLOYMENT,” $4,000 of the base salary was “for a coaching supplement.” Although not reflected in the contract, Mr. White also had the opportunity to earn extra income by driving the basketball team bus to and from games and by running basketball camps for the District during the summer.

On April 8, 1998, the District’s Superintendent, Mr. Roland Wells, contacted an attorney, Mr. W. Paul Blume, about the feasibility of not renewing Mr. White’s coaching duties. On that same day, Mr. Blume advised Superintendent Wells in writing that, given Mr. White’s particular circumstances, it was extremely unlikely that a nonrenewal would be affirmed by a court. As an alternative, Mr. Blume recommended a lateral reassignment without a reduction in salary, specifically mentioning reassignment to the position of Director of the Alternative School. Prior to the meeting with Mr. Blume, Superintendent Wells had written Mr. White on March 5, 1998 and expressed the District’s concerns about Mr. White’s performance as a coach. The March 5, 1998 memorandum listed seven concerns and expected improvements, all involving Mr. White’s approach to coaching, and three other changes to be implemented as of March 16, 1998. On April 13, 1998, Mr. White responded to the memorandum, setting forth his disagreement with most of the District’s concerns.

Also on April 13, 1998, the Manila School Board voted to renew Mr. White’s contract for the 1998-99 school year and simultaneously voted to accept the Superintendent’s recommendation that Mr. White be reassigned to the position of Alternative School Director/Teacher. Based upon Mr. White’s education and experience, including his ability to impose strict discipline, the District believed that he would perform well as the Director/ Teacher of the Alternative School.

The 1998-99 contract offered to Mr. White provided that he would “serve as a teacher and other duties as assigned by the Superintendent,” followed by a specific designation of “Alternative School Director/Teacher.” The time period for the contract was August 17, 1998 to May 21, 1999, and the compensation to be paid would be the same base salary as the year before. However, the last paragraph of the 1998-99 contract entitled “OTHER CONDITIONS OF EMPLOYMENT,” provided that $4,000 of the base salary was for “Alternative School Director.”

By letter dated April 16, 1998, Superintendent Wells sent the proposed contract for 1998-99 to Mr. White. On May 5, 1998, Mr. White informed Superintendent Wells that he accepted employment for 1998-99 on the same terms as the 1997-98 contract. By memorandum dated May 7, 1998, Superintendent Wells advised Mr. White that the Board of Education had reassigned him to the position of Alternative School Director/Teacher at the same salary for the 1998-99 school year.

The District asserts as its first point on appeal that the trial court erred when it concluded that the District could not reassign Mr. White to the position of Alternative School Director/Teacher for the 1998-99 school year, and relies upon Ark. Code Ann. § 6-17-303, which provides that:

District school boards shall have the authority to assign and reassign or transfer all teachers in schools within their jurisdiction upon the recommendation of the superintendent.

However, the issue presented by this appeal is whether the District’s actions constituted a nonrenewal of Mr. White’s 1997-98 contract, as opposed to a mere reassignment, thereby triggering the provisions of the Teacher Fair Dismissal Act. The District’s second point on appeal asserts that its actions do not fall within the Act.

The Teacher Fair Dismissal Act provides in pertinent part:
(a) Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument, unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed or, unless during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors his or her resignation as a teacher, or unless such contract is superseded by another contract between the • parties.

Ark. Code Ann. § 6-17-1506. Strict compliance with the terms of the Act is required. See Ark. Code Ann. § 6-17-1503.

We agree with the trial court that this case is governed by our decision in Western Grove School District v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). In Terry, supra, the appellant was “reassigned” to secondary education, health and social studies, which he had previously taught, but was completely divested of his coaching responsibilities. Additionally, his compensation was reduced by $6000.00. Terry, supra. The school district argued that its action was not a nonrenewal, but merely a reassignment of duties, and thus that the Teacher Fair Dismissal Act did not apply. Id. We disagreed, stating:

The school district’s proposed 1993-94 Teacher contract for Terry was not on the same terms or for the same salary as the contract for the previous year. The salary was reduced by about 20 percent and the duties were curtailed. Because of this, the case differs markedly from Chandler v. Perry-Casa Publ Sch. Dist. No. 2, 236 Ark. 170, 690 S.W.2d 349 (1985). In that case, the teacher wanted an assignment as a secondary math teacher but was assigned as a computer instructor. No reduction in compensation was at issue. We noted that a teacher could not always be assigned to duties of that teacher’s preference and that the assignment by the school district appeared to be reasonable. In the case at bar, we agree with the circuit court that what took place was not a reassignment of duties but a nonrenewal of Terry’s contract.

The facts of this case correspond to those in Terry, supra, because Mr. White’s 1998-99 contract was not on the same terms as his contract for the previous year. The 1997-98 contract’s reference to the coaching supplement clearly indicated Mr. White’s position as a coach for the District. The removal of the coaching supplement language in the 1998-99 contract did not merely curtail Mr. White’s coaching duties. Rather, his coaching duties were completely eliminated and he was reassigned to the Alternative School. Furthermore, the 1998-99 contract specifically added the job designation of Alternative School Director/Teacher and provided that $4,000 of the base salary was “for Alternative School Director.” Such a position is administrative and falls outside of the teaching duties that were subject to assignment by the Superintendent under the 1997-98 contract. Accordingly, we hold that the District’s actions constituted a nonrenewal of Mr. White’s contract, and thus required compliance with the notice provisions of the Teacher Fair Dismissal Act.

The District argues that this case falls under our decision in Chandler, supra, instead of Terry, supra, because there was no reduction in Mr. White’s salary. This assertion misinterprets our decisions in those cases. In Chandler, supra, and Terry, supra, the court considered both the terms and compensation in determining the reasonableness of the reassignment. While the amount of Mr. White’s base salary did not change, his position as a coach was completely eliminated. Thus, as in Terry, supra, this case also “differs markedly” from the situation we addressed in Chandler, supra. It should also be noted that Chandler was decided prior to the adoption of Ark. Code Ann. § 6-17-1503 which requires strict compliance with the provisions of the Teacher Fair Dismissal Act. The reassignment here was not a reasonable one. The elimination of Mr. White’s coaching duties and his reassignment as Alternative School Director/Teacher was not a reassignment of duties but a nonrenewal of Mr. White’s contract.

The District concedes that it did not comply with the notice provisions of the Teacher Fair Dismissal Act. Where proper notification is not achieved before a decision is made not to renew a teacher’s contract, the contract is automatically renewed on the same terms as for the previous year. Ark. Code Ann. § 6-17-1506(a) (Repl. 1993). The trial court correcdy ruled that Mr. White was legally entitled to a contract for the 1998-99 school year on the same terms as the previous year, and the issuance of mandamus was appropriate.

Affirmed.

Glaze, J.,

concurs on the basis that notice was not provided appellee as required under the Teacher Fair Dismissal Act. Appellant failed to renew appellee’s contract. Whether the Appellant’s reassignment is reasonable or not is immaterial and not needed to decide this case.

       The following information which is not a part of the contract is contained in a boxed section at the top of the contract: “Grade or subject to be taught Secondary/Coach/ P.E.


author: Lavenski R. Smith, Justice.

text:
    Charles MAAS v. CITY of MOUNTAIN HOME
    98-1337
    992 S.W.2d 105
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      Nichols & Campbell, P.A., by: H. Gregory Campbell; and Richard S. Paden, for appellants.

      Johnson, Sanders & Morgan, by: Roger L. Morgan, for appellees.
   Lavenski R. Smith, Justice.

This is an illegal-exaction case. Appellants, Citizens of Mountain Home, Arkansas, contend Mountain Home (“The City”), appellees herein, violated Article 16, Section 11, of the Arkansas Constitution by using sales-tax proceeds contrary to exclusive uses contained in City Ordinance No. 646. We agree and reverse.

On April 9, 1981, the City passed Ordinance No. 646, which levied a one-cent sales tax. The following month, the City conducted a special election wherein the voters could approve or reject the proposed tax. Prior to the election, on April 23, 1981, the City published the full text of Ordinance 646 in the Baxter Bulletin, the newspaper of record for Baxter County. The ordinance contained the following title:

Ordinance 646
An ordinance levying a local sales (gross receipts) tax; calling of a special election on the question of levying such tax; designating a ballot title for use at such election; specifying the use of proceeds of such tax, providing for rebate; and for other purposes.

In addition to its prefatory clauses, the ordinance contained twelve numbered sections detailing its provisions. Sections two, five, and seven are the focus of this appeal. They provided as follows:

Section 2. Tax Imposed — Rate
There is hereby levied a local sales (gross receipts) and use tax at the rate of one (1%) percent of the receipt from the sale at retail within the City of all items which are subject to taxation under the Arkansas Gross Receipts Tax Act of 1941, Act 386 of the 1941 Acts of Arkansas, as said Act has been heretofore or may be hereinafter amended, and under the Arkansas Compensating Tax Act of 1949, Act 487 of the 1949 Acts of Arkansas, as said Act has been heretofore amended, and by Act 990 of 1975 as amended by Act 133 of 1981.
Section 5. Ballot Presentation and Ballot Form
The ballot presentation and title shall be in the following form:
“Shall there be levied a local sales (gross receipts) and use tax at the rate of one percent (1%) on the receipt from the sale at retail within the corporate limits of the City of Mountain Home of all items which are subject to taxation under the Arkansas Sales Tax Act; (Arkansas Gross Receipts Tax Act of 1941, Act 386 of the 1941 Acts of Arkansas), as said Act has been heretofore or may be hereinafter amended, and under the Arkansas Use Tax Act (Arkansas Compensating Tax Act of 1949, Act 487 of the 1949 Acts of Arkansas), and pursuant to Act 990 of 1975 as amended by Act 133 of 1981, as said Acts have been heretofore or may be hereinafter amended?”
“For adoption of a one percent (1%) local sales and use tax within the City. . . ( )”
“Against adoption of a one percent (1%) local sales and use tax within the City . . . . ( )”
Section 7. Designation of Receipts
Revenues received from the collection of such tax in the 1981 calendar year shall be used exclusively for streets.
Revenues received from the collection of such tax after January 1, 1982, shall be distributed as follows:
(I) 47.00% not to exceed THREE HUNDRED AND FIFTY THOUSAND DOLLARS per annum shah be deposited in a special fund to be used exclusively for water and sewer improvements; and
(II) 8.00% not to exceed SIXTY THOUSAND DOLLARS per annum shall be deposited in a special fund to be used exclusively for payment upon bonds to be issued for a new swimming pool; and
(III) 45.00% or the balance shall be deposited in a special fund to be used exclusively for streets and drainage.

The voters approved the tax on May 5, 1981. Following the election, the city council spent the tax proceeds in accordance with Section 7 in succeeding years until 1987. Beginning that year and each subsequent year, the council voted to amend section 7 of the ordinance and use the proceeds for purposes other than originally designated.

Appellants filed suit on January 10, 1996, contending the City had misapplied public funds in violation of Art. 16, § 13, of the Arkansas Constitution. The City answered on January 26, 1996, denying that any illegal exaction occurred. Following discovery, class certification, and various amended pleadings, the parties filed stipulations of fact on July 8, 1998. They mutually submitted the matter to the court for summary judgment on the issue of liability. The trial court granted appellee’s summary-judgment motion on August 3, 1998. In its order, the court found that the ballot title in the 1981 election contained no specified uses for funds collected by the tax. Thus, upon voter approval, the measure created a general sales and use tax which could be used for general purposes. The City’s subsequent use of revenue for purposes other than as specified in Section 7 were deemed permissible resulting in no illegal exaction.

Standard of Review

The trial court used summary judgment to resolve this case in that the parties filed with the court stipulated facts thereby leaving no issues of fact for trial. Motions for summary judgment are governed by Ark. R. Civ. P. 56, which provides that a party may move with or without supporting affidavits for a summary judgment upon all or any part of a claim. A summary judgment should be granted only when it is clear that there is no issue of fact to be litigated. Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998); Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992). There are no facts in dispute.

Illegal Exaction

The gravaman of appellant’s appeal is his contention that the City’s shifting of tax revenue to uses other than those specified in Section 7 of its levying ordinance constitutes an illegal exaction in violation of Article 16, § 11, of the Arkansas Constitution. Article 16, § 11, provides:

No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no monies arising from a tax levied for one purpose shall be used for any other purpose.

In support of this contention, Maas relies upon Ark. Code Ann. §§ 26-75-307 — 26-75-309 (1975), which requires voter approval for the implementation of a local sales and use tax. Appellant also relies upon our recent holding in Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998).

In Daniel, we dealt with a very similar argument with'respect to a county’s obligation to apply sales-tax proceeds consistent with the purposes stated on the election ballot voters used to approve the tax. We held that “the voters of White County were entitled to rely upon the information provided to them in the levying ordinance and the ballot when casting their votes; hence, any use of the revenues for purposes other than those provided constitutes an illegal exaction.” Id. at 500. The instant case differs from Daniel in that while the levying ordinance (646) contained specific restrictions on permissible uses, the ballot title contained none.

Appellee contends that the absence of specific restrictions in the ballot title made the sales tax a general-purpose tax that could be used for any legitimate government purpose regardless of the restrictions contained in the levying ordinance. Appellee cites language in Daniel and Arkansas-Missouri Power Corp. v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), to the effect that the ballot title is the final word of information and warning to which the electors had the right to look.

Additionally, appellees construe the case of Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997), to say that the ballot question alone controls the authorized purpose of the tax, and that only an unauthorized purpose is forbidden by the Constitution. They argue since the ballot itself contained no specific purpose the revenues generated by the tax were thus general-purpose revenues and susceptible to discretionary spending by the council. The trial court accepted appellee’s argument and ruled accordingly.

A careful review of Daniel, Oldner, the applicable statutes, and the constitution compel us to a contrary conclusion. We disagree with appellee’s characterization of our holdings in Oldner and Daniel. In Oldner, neither the ballot title nor the levying ordinance stated the purpose of the tax. This case differs significandy in that the levying ordinance in Section 7 contains very specific and exclusive purposes for the tax revenue.

Likewise, this case also differs from Daniel in that while specific restrictions were in the levying ordinance, none were on the ballot. In Daniel, the purposes were stated in both the ordinance and on the ballot. The instant case presents us with the new question of whether specific, exclusive purposes stated within the levying ordinance are sufficient to prohibit contrary uses in the absence of any specific limitation stated on the ballot. We hold, consistent with our rulings in Oldner and Daniel, that the voter is entitled to rely upon both the levying ordinance and the ballot title. Publication of the ordinance in its entirety informed the city’s electorate about each and every provision contained within it. In circumstances such as here, where the city’s citizens voted approving a levying ordinance containing specific, exclusive purposes, the absence of those exclusive purposes from the ballot did not transform the levying ordinance into a general-purpose sales tax. The ballot is the “final word” to the voters only in the sense that it is the last source of information, not in the sense that it is conclusive of the measure’s effects. It must be read in conjunction with the levying ordinance.

Appellees argue that only Section 2 of the ordinance levied the tax. They also argue that Section 3 of the ordinance, which called for the election, referenced only Section 2 and contained no use limitation; nor did the ballot presentation and ballot form found in Section 5 contain the limitations. However, appellee fails to read the ordinance as a whole, which would require it to read Section 7 and its exclusive-use provisions as an integral part of the levying ordinance.

Therefore, we hold the trial court erred in finding that the City’s use of sales-tax revenue for purposes other than those specified in Section 7 of the levying ordinance was not an illegal exaction. We reverse and remand for the trial court to address the issue of damages.

Reversed and remanded.