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

text:
    Robert D. STANDRIDGE v. STATE of Arkansas
    CR 96-1468
    951 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      John Joplin, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

Appellant was tried and found guilty of first-degree murder and sentenced to life imprisonment. Appellant raises four points for reversal in this appeal. We affirm.

On August 6, 1995, appellant met Rick Vaughan, Phillip Mitchell and Doug Gillespie at a bar in Fort Smith. The three men had spent most of the day drinking together at Glen Vaughn’s house, and they invited appellant to return there with them. The men drank at the house for approximately an hour and decided to go to a bar. After calling a cab, the men waited on the front porch for the cab to arrive. At some point, appellant and Doug Gillespie began arguing on the porch. Rich Vaughn and Phillip Mitchell witnessed Gillespie and appellant rush toward each other. When the two men separated, both Phillip Mitchell and Rick Vaughn noticed that Doug Gillespie had been stabbed. At that time, appellant and Phillip Mitchell left the house on foot and walked through an alley to a local convenience store.

The Fort Smith Police Department was called to investigate the stabbing. The victim, Doug Gillespie, had been taken to the hospital where he later died from the wound. Detective Jeff Barrows interviewed Rick Vaughn who informed him that appellant had stabbed Gillespie and had left the scene on foot along with Phillip Mitchell. Vaughn provided a description of appellant.

Officer Rodney Reed began patrolling the area and noticed two people walking, one of whom matched the description of the suspect. The officer stopped the two men and asked appellant if his name was Bobby Standridge. Appellant answered in the affirmative; the officer told the men to place their hands on the police car; immediately, appellant told the officer that his companion, Phillip Mitchell, “had nothing to do with it. . . .” The officer arrested both men for public intoxication; both men were then taken into custody and transported to the police department where they were separated. Officer Reed testified that, although it was evident that appellant had been drinking, he was functional, he could walk and talk without hesitation, he was aware of his surroundings, and there was no stammer in his voice when he talked.

Detective Barrows testified that he apprised appellant of his Miranda rights and that he presented appellant with a waiver form that contained a series of five questions regarding whether the recipient understood his rights. Appellant was asked each question and he answered affirmatively each time that he understood his rights. The detective wrote the answer “yes” following each question that appellant answered in the affirmative; appellant then signed his initials beside each “yes” answer. Appellant indicated that he had completed fourteen (14) years of schooling and was able to read and write. Appellant then was questioned about the incident. The interview was taped and made a part of the record. During the interview, appellant indicated both that he did stab the victim and that he did not stab the victim.

During one portion of the interview, the following exchange occurred:

Detective Barrows: Okay. Bobby, what I’d like you to do is I’d like to hear your side of the story. I’ve, I’ve interviewed two other people so far and have heard some incriminating things about you, and Bobby, as we’ve discussed before, there’s reasons to do everything and there’s reasons that, that uh things are done good and bad and I know what happened tonight. There was a reason behind that. What I want to know is what your involvement was there at. . . .
Appellant: I, I ain’t ready to talk.
Officer: . . .at 623 North 18th.
Appellant: It’s my fault, I ain’t got any reason.

Following this exchange, appellant continued answering questions. Several times, he indicated that he stabbed Gillespie. He described the knife to the detective and indicated that he stabbed Gillespie in the stomach. He then told the detective that he did not have a knife and that he did not stab Gillespie.

Appellant challenges the trial court’s admission of the statement based upon the contention that he had requested the questioning to stop and that his statement saying he wasn’t ready to talk invoked his Miranda rights. Additionally, he challenges the statement contending that it was involuntary due to his intoxication.

During the trial, Phillip Mitchell and Rick Vaughn testified that they had witnessed the altercation between appellant and Gillespie, hut neither actually saw appellant with a knife. During Phillip Mitchell’s testimony, he indicated that he left the scene with appellant because he was scared that appellant would stab him if he did not go with him. Appellant contends a question posed by the prosecutor to Mitchell presented the jury with impermissible character evidence that was prejudicial to him and warrants reversal.

Appellant proffered the expert testimony of Dr. Joe Alford of the Arkansas Department of Human Services, Division of Mental Health Services, who was to testify on the affects of alcohol on a person’s mental ability to reason and form intent. In a proceeding held in chambers out of the hearing of the jury, appellant argued that the expert testimony should be admitted because such evidence was necessary to show that he did not have the requisite intent for the charge of murder. The trial court did not allow such testimony, and appellant contends that the exclusion of this testimony violated his right to due process.

Appellant also challenges a jury instruction submitted that reads: “Voluntary intoxication is not a defense to any criminal offense in Arkansas.” Appellant contends that this jury instruction violates his right to due process and that by offering this instruction, the trial court improperly commented on the evidence in the case.

I. Custodial Statement

Appellant claims his statement “I ain’t ready to talk” effectively invoked his right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). During custodial questioning, an individual may cease all questions by indicating that he wishes to remain silent. We have held that custodial statements are presumed to be involuntary and the burden of proof is placed on the State to show that they are not. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). We independently review the “totality of the circumstances” to determine whether there was coercion and whether a statement was made in a knowing and intelligent manner. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994).

In this instance, we must examine whether appellant made a clear waiver of his rights or whether he invoked his right to remain silent by his statement that he wasn’t ready to talk. Does appellant’s statement amount to an invocation of his right to remain silent? Perhaps so, but we must also determine if any subsequent statements implied a waiver of those rights.

In Bowen v. State, 322 Ark 483, 911 S.W.2d 555 (1995) , we discussed Davis v. United States, 512 U.S. 452 (1994), in which the Supreme Court held that the invocation of the right to counsel must be made with specificity. In Bowen, we held that there was “no distinction between the right to counsel and the right to remain silent with respect to the manner in which it must be effected.” 322 Ark. at 504, 922 S.W.2d at 565. Following Bowen, the right to remain silent must be made unequivocally, and answering questions following a statement that attempts to invoke the right to remain silent may waive that right by implication. Id., see also Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).

Appellant acknowledged that he understood that he had the right to remain silent. The detective then began questioning him. He once interrupted the detective in the middle of a question with the statement that he wasn’t ready to talk. The detective completed his question, and appellant immediately answered it. Appellant continued answering questions for a lengthy period of time following that exchange. Never again did appellant indicate that he did not want to continue the interview, nor did he attempt to invoke his right to remain silent. Therefore, the statement by appellant that he wasn’t ready to talk did not constitute an unequivocal invocation of his right to remain silent. Instead, it implied that he would be ready to talk at some point. This distinction becomes less important when coupled with the fact that appellant continued to answer questions after making the statement. By continuing with the interview, appellant waived his right to remain silent.

Appellant secondly challenges the custodial statement on the ground that the statement was not voluntary because appellant was intoxicated. In Kemp v. State, 324 Ark. 178, 198, 919 S.W.2d 943, 953, cert. denied, 117 S.Ct. 436, 136 L.Ed.2d 334 (1996) , the appellant challenged the admissibility of a custodial statement based upon the contention that it could not have been voluntary because he was “so intoxicated that he did not knowingly, intelligently, and voluntarily waive his rights.” We held that “whether an accused had sufficient mental capacity to waive his constitutional rights, or was too incapacitated due to drugs or alcohol to make an intelligent waiver is a question of fact for the trial court to resolve.” Id. at 198, citing Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995). Additionally, in Kemp, we held that intoxication goes to the credibility of a statement, not its admissibility. Id.

In this case, appellant contends that he was so intoxicated that he could not knowingly and intelligently waive his right to remain silent. Following Kemp, appellant’s argument is merit-less. We affirm the trial court’s admission of the statement.

II. Jury Instruction

. Appellant contends that the trial court erred in submitting a jury instruction which reads: “Voluntary intoxication is not a defense to any criminal offense in Arkansas.” Appellant claims that this instruction denied him due process of law and that this instruction was an improper comment on the evidence.

In White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), we determined that the common-law rule allowing the use of voluntary intoxication as a defense no longer applies in Arkansas, thus voluntary intoxication is not a valid defense to any criminal charge in this state. First, appellant attempts to distinguish the fact that while voluntary intoxication is not a defense, it should be considered as a factor in the mental state of a defendant when a defendant is charged with a specific intent crime. Appellant argues that his due process rights were violated by the trial court’s instruction that voluntary intoxication is not a defense to the specific-intent crime, first-degree murder. In White, we discussed courts’ attempts to distinguish between “knowing” crimes and “purposeful” crimes in the application of the voluntary intoxication rule. We declared that voluntary intoxication is not a defense to any criminal prosecution and determined that the distinction between specific-intent crimes and other crimes was of “no consequence because th[e] defense is no longer available” 290 Ark. at 137.

Appellant’s attempt to distinguish specific-intent crimes from other crimes is analogous to the argument utilized by the appellant in Spohn v. State, 310 Ark. 500, 837 S.W.2d 873, 874 (1992). Spohn attempted to distinguish specific-intent crimes from purposeful-conduct crimes and contended that the White decision did not apply to specific-intent crimes. We held that the White decision applies to all crimes, regardless of the requisite intent, and that the defense of voluntary intoxication is not available. Spohn, id., at 874. The argument by appellant is clearly negated by the White and Spohn decisions, and we affirm the trial court.

Secondly, appellant contends that the jury instruction regarding voluntary intoxication was an impermissible comment on the evidence by the trial court. Appellant contends the trial court erred in submitting this instruction in reliance on the court of appeals decision in Gilkey v. State, 41 Ark. App. 100, 848 S.W.2d 439 (1993). Appellant further contends that the court of appeals erroneously applied White in Gilkey.

In Gilkey, appellant challenged the trial court’s instructing the jury that voluntary intoxication is not a defense to first-degree murder or battery claiming that such an instruction was an improper comment on the evidence. The court of appeals held that the jury instruction was proper and well within the boundaries established by the White decision. The court of appeals noted that there had been evidence about appellant’s drinking on the day of the shooting, and that under those circumstances, the “State was entitled to an instruction informing the jury of the law regarding evidence of intoxication so as to avoid any confusion.” Id. at 104. The court of appeals was correct in its application of White.

In the case before us, there was evidence relating to appellant’s drinking on the day of the stabbing. The trial court was correct in including an instruction to educate the jury on the rule of law regarding voluntary intoxication. The instruction was straightforward, and it properly stated the law. In no way did the trial court comment on whether the defendant actually was intoxicated, nor did the court comment on the mental capacity of the defendant. The trial court merely instructed the jury on the rule of Arkansas law that voluntary intoxication is not a defense. We find no error in the trial court’s jury instructions.

III. Expert testimony

Appellant contends that he was denied due process by the trial court’s excluding the testimony of Dr. Joe Alford regarding the effect alcohol can have on an individual’s ability to think clearly. Appellant claims this testimony was crucial to negate the existence of the requisite mental state.

In Spohn v. State, supra, we examined the admissibility of evidence relating to voluntary intoxication. The appellant in Spohn challenged the exclusion of testimony regarding blackouts resulting from his alcoholism because he contended that he could not form the intent to commit murder. We upheld the trial court’s exclusion of such testimony based upon the fact that evidence regarding voluntary intoxication is “irrelevant in light of our decision in White.” 310 Ark. at 502.

Following Spohn, the expert testimony proffered by appellant is clearly irrelevant, so there is no merit to the contention that the trial court abused its discretion in this ruling.

IV. Motion for a Mistrial

Appellant’s final argument is that the trial court erred in denying his motion for a mistrial. This motion was made based on the contention that prejudicial character evidence was offered during the testimony of Phillip Mitchell. Mitchell testified that he was present during the altercation between appellant and Gillespie; he stated that he noticed that the victim had been stabbed, although he did not see appellant holding a knife. He claimed that he left the scene with the defendant because he was scared of him. The prosecutor then asked if he had ever seen the defendant with a knife before.

Prior to the witness answering the question, defense counsel objected and a sidebar was conducted out of the hearing of the jury. The question was withdrawn, and the questioning of the witness continued. During the sidebar, defense counsel motioned for a mistrial, but did not request an admonishment to the jury regarding the question.

Appellant contends that a mistrial should have been declared because this question entered evidence of his character for the purpose of proving that he acted in conformity therewith in violation of Ark. R. Evid. 404(a). Appellant contends that this question resulted in manifest prejudice.

A trial court has wide discretion in granting or denying a mistrial. A ruling denying a mistrial will not be disturbed absent a showing of an abuse of discretion or manifest prejudice to the moving party. Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996); King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). In Banks v. State, 277 Ark. 28, 639 S.W.2d 509 (1982), a question was asked to which the defense counsel objected and moved for a mistrial. The question was not answered, and the trial court denied the motion for a mistrial based upon the fact that there was no inference to the jury since the question was not answered. We upheld the trial court’s ruling because “the jury received absolutely no prejudicial information.” Id. at 32.

This case is analogous to Banks. The question was asked which could have led to a prejudicial comment; however, it was never answered. There is no evidence that appellant has been prejudiced in any manner. In fact, the jury received no potentially prejudicial information. There is no evidence to suggest that the trial court abused its discretion by ruling on this motion.

Also, there is no evidence that the defense counsel requested an admonition to the jury to disregard the question. In Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) we held that a “mistrial is an extreme remedy which should only be granted when justice cannot be served by continuing the trial.” Id. at 659, citing Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995). In Owens, the defendant moved for a mistrial during the sentencing phase of a trial when the prosecutor mentioned that the defendant had been found guilty of possession of a controlled substance. The defense contended that the prosecution impermissibly brought up a prior conviction; however, the prosecution maintained that it was referring to the underlying offense being sentenced. The trial court denied the motion for a mistrial but instructed the prosecutor to clarify to the jury that he was referring to the conviction for the underlying offense.

Owens allows trial courts discretion to correct prejudicial statements in order to avoid the “extreme remedy” of a mistrial. In the case before us, the defense counsel did not request an admonition or clarification; the witness did not actually answer the question, thus there was no prejudicial information before the jury. There is no merit to the contention that the trial court abused its discretion in denying the motion for a mistrial.

In accordance with Ark. Sup. Ct. Rule 4-3(h), the record has been reviewed for adverse rulings objected to by appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

Affirmed.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Richard O. GOODEN, Jr. v. STATE of Arkansas
    CR 97-123
    950 S.W.2d 461
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997
    [Petition for rehearing denied October 16, 1997.]

      Kenneth G. Fuchs, for appellant.

      Marcus Vaden, Deputy Prosecuting Att’y, for appellee.
   Ray Thornton, Justice.

This case arises from an order of contempt out of Faulkner County. The Faulkner County Circuit Court denied appellant’s motion to recall and vacate an order that set aside a previously issued order holding Faulkner County in contempt of court. It is from that denial that appellant brings this appeal.

Appellant, Richard Gooden, seeks a review of the February 27, 1996, action of the Faulkner County circuit court in setting aside its order of February 26, 1996, which had imposed a penalty of $200.00 per day on Faulkner County to run from February 23, 1996, until such time as Faulkner County paid appellant the sum of $22, 309.35. The court had previously ordered that sum to be paid on or before February 23, 1996.

On June 19, 1996, 112 days later, appellant filed his motion to set aside the February 27 order. We have determined that the challenge to the February 27 order was not filed within the ninety-day limitation period of Ark. R. Civ. P. 60, and therefore was not timely.

Appellant alleges that Faulkner County perpetrated fraud on the court by representing itself as the State in several filed documents. It appears that the authority of the prosecuting attorney of Faulkner County was addressed to the court as Faulkner County, which is a political subdivision of the State of Arkansas. Appellant does not argue that the limitations period was tolled by fraudulent concealment; furthermore, there are no allegations of factual circumstances that could be interpreted as fraud. See, Ark. R. Civ. P. 60(c)(4). Under our rules, the trial court did not err in declining to set aside the February 27 judgment.

Appeal dismissed.

       While the earlier order is not before us for review, the record shows that the $22, 309.35 had not been paid on February 23, and that on that date a Faulkner County prosecuting attorney had filed a notice of appeal, and also requested a stay. These pleadings were brought to the attention of the trial court promptly after the entry of the February 26 order, and the trial court set aside the February 26 order on the next day, February 27. The record also indicates that the $22, 309.35 has been paid.


text:
    Brian John WHITE v. STATE of Arkansas
    CR 96-1232
    951 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997
    [Petition for rehearing denied October 16, 1997.]

      Sam Sexton III, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.

       Corbin, J., not participating.

   Ray Thornton, Justice.

Bryan John White, appellant, appeals from a January 25, 1996, judgment revoking his probation and sentencing him to serve six years concurrently on each of four felony charges to which he had pleaded guilty in February of 1993. He contends that the trial court erred in fading to dismiss the petitions for revocation pursuant to Ark. Code Ann. § 5-4-310 (Repl. 1993), that he received an illegal sentence, and that his constitutional right to a speedy trial under Ark. R. Crim. P. 28.1 was violated. The first two arguments are meritless, and the third is not preserved for our review. We affirm the judgment of the trial court.

We first address appellant’s argument regarding dismissal under Ark. Code Ann. § 5-4-310. The relevant facts surrounding the argument are as follows. The supervised probation imposed in February of 1993 was revoked on October 12, 1993, and punishment imposed for violations of probation. The probationary term was extended by one year, by order entered November 5, 1993.

On July 10, 1994, appellant was arrested and charged with the June 24, 1994, rape of a twelve-year-old girl. This felony charge resulted in a revocation petition, but the record does not disclose if or when appellant was arrested on the revocation petition. The record does show that he fled to Texas and California but was returned to Arkansas. Appellant was ultimately tried on the rape charge and the probation revocation on January 23, 1996. He argues that the trial court should have dismissed the probation revocation under Ark. Code Ann. § 5-4-310, which provides in pertinent part:

(b)(1) A suspension or probation shall not be revoked except after a revocation hearing.
(b)(2) The revocation hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time, not to exceed sixty (60) days, after the defendant’s arrest.

Id. § 5-4-310(b)(2).

The record reveals that at a hearing on October 17, 1994, the court asked appellant’s counsel if he wanted to go ahead with the revocations on that date or to reset them to track the substantive charge. It was agreed at this time that the revocations would track the substantive charge. Appellant changed attorneys before his trial. On January 23, 1996, the date that appellant was ultimately tried, appellant’s new counsel moved to dismiss the revocations under the sixty-day provision of the statute, because appellant had been continually incarcerated for more than sixty days prior to trial. The trial court denied the motion, noting that, “from almost the onset of this matter it was understood that the hearings on the probation violations would track the substantive charge.”

We agree with the trial court that appellant waived his argument for dismissal by asking that the revocation hearing track the substantive proceedings. When a defendant prefers that the revocation matter be deferred until disposition of an underlying charge, he cannot then turn around and complain of delay. Barnes v. State, 294 Ark. 369, 742 S.W.2d 369 (1988). Further, we note that at a hearing held on December 7, 1995, appellant’s new counsel, in seeking to separate the revocation matter from the underlying charge, stated to the court that he believed the January trial date to be within the sixty-day time frame.

Appellant’s illegal-sentence argument can be disposed of quickly. He contends that he was not sentenced according to the requirements of Ark. Code Ann. § 16-93-303 (Supp. 1995), which provides that the court enter a judgment and commitment order. However, the record shows that the trial court entered such an order on January 25, 1996, on the charges for which he had received probation. Appellant’s argument is meritless, as it lacks a factual basis.

His final argument is that his constitutional right to a speedy trial was violated due to the delay in hearing the revocation petition. He argues on appeal that the provisions of Ark. R. Crim. P. 28.1 apply to revocation hearings. However, we have no basis upon which to address this argument because he never received a ruling on the applicability of Ark. R. Crim. P. 28.1 to a revocation proceeding from the trial court. See Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994). We have repeatedly held that in order to have the argument addressed on appeal, it is incumbent upon a movant to obtain a ruling below. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). Appellant’s argument on this issue is procedurally barred from our review.

Affirmed.

Corbin, J., not participating.


author: Per Curiam.

text:
    Senaca Maurice BOGAN v. STATE of Arkansas
    CR 97-842
    949 S.W.2d 893
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      James P. Massie, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Per Curiam.

Senaca Maurice Bogan, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.


text:
    Jack Gordon GREENE v. STATE of Arkansas
    CR 96-362
    949 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      William M. Pearson, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

This is appellant’s fourth motion to withdraw his appeal from his death sentence. The first motion was denied because it was held to be equivocal. Greene v. State, 326 Ark. 179, 929 S.W.2d 157 (1996). The second motion was unequivocal and was remanded to the trial court for a determination of whether apellant Greene’s waiver was knowing and intelligent. Greene v. State, 326 Ark. 823, 933 S.W.2d 392 (1996). The matter was remanded a second time so that an evaluation could be conducted by State Hospital personnel and for further hearing to be held by the trial court. Greene v. State, 327 Ark. 511, 939 S.W.2d 834 (1997). The motion to withdraw the appeal was ultimately denied because appellant refused to cooperate in a competence examination and said that he would continue to refuse to do so. Greene v. State, 328 Ark. 218, 941 S.W.2d 428 (1997). A third motion to withdraw the appeal was denied by order entered June 17, 1997, and appellant’s counsel was directed to file the appellant’s brief by July 16, 1997.

On July 14, 1997, appellant filed the instant pro se motion again asking to withdraw the appeal and seeking a writ of habeas corpus. Counsel for appellant subsequently obtained an extension of time to file the brief and filed a motion requesting instruction on whether to file the brief in light of appellant’s pro se motion.

Appellant states that he is now willing to submit to the psychological examination which he refused before. The State urges this court to deny the pro se motion, asserting that appellant has forfeited his right to waive appeal by his failure to cooperate with this court’s past orders. The State also notes that the motion is pro se and argues that appellant is not entitled to be heard both pro se and by counsel.

We first deny that part of the motion seeking a writ of habeas corpus. Appellant offers no grounds for issuance of the writ.

The request to withdraw the appeal is also denied. The appellant’s brief is due for filing October 1, 1997.

Motion denied.


text:
    Melvin GRIFFIN v. STATE of Arkansas
    CR 97-843
    949 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      Claudell Woods, for appellant.
    No response.
   Per Curiam.

Melvin Griffin, by his attorney, has filed a motion for rule on the clerk. His attorney, Claudell Woods, admits in his’motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Vincent HOPES v. STATE of Arkansas
    CR 96-1263
    949 S.W.2d 895
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      The Clay Law Firm, by: Alvin Clay, for appellant.

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

On July 30, 1997, Alvin Clay, counsel for appellant Vincent Hopes moved to be relieved as counsel. In support of his motion, he sets out part of the history of this case but presents no grounds to warrant the relief requested.

On September 14, 1995, the federal district court issued an order stating that unless the appellant was allowed to prosecute A.R.Cr.P. Rule 36.4 proceedings in Pulaski County Circuit Court and a state appeal, if necessary, with benefit of counsel, a federal writ of habeas corpus would issue. An attorney other than Mr. Clay was appointed on October 26, 1995, by Circuit Judge Marion Humphrey. A hearing before the circuit court was had on the appellant’s Rule 36.4 motion for a new trial on April 10, 1996. Judge Humphrey denied the motion on April 18, 1996. On April 30, 1996, the appellant’s appointed counsel was relieved as counsel. The appellant then filed a notice of appeal pro se on May 3, 1996. The transcript in this matter was filed on October 17, 1996.

On February 7, 1997, Judge Humphrey appointed Mr. Clay to represent the appellant in his appeal from the denial of his Rule 36.4 motion. On May 29, 1997, Mr. Clay moved for a belated appeal which, we considered moot in light of the fact that appellant’s appeal was already pending. Counsel may, however, desire to file a belated brief.

There is no basis to reheve Mr. Clay as counsel. The motion is denied.


text:
    Dan Chris IVY v. STATE of Arkansas
    CR 97-835
    949 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997
    No response.

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

In granting the State’s motion to release the transcript, we refer to our per curiam order of March 19, 1997, in Ivy v. State, 327 Ark. 683, 939 S.W.2d 843 (1997), in which we denied Mr. Ivy’s request to unseal the records, but allowed references to be made to them in a Rule 37 petition that we required to be submitted under seal. The State is also bound by this procedure and should be allowed access to the transcript of the hearing for the purposes of preparing its brief, subject to the provision of our March 19 order that the records and references to them not be released to anyone other than the Court, the parties to this appeal, and the parties’ attorneys.


text:
    Edward G. PARTIN II v. STATE BOARD OF LAW EXAMINERS
    97-683
    950 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      Petitioner, pro se.

      Kaplan, Brewer & Maxey, by: Philip E. Kaplan, for respondent.
   Per Curiam.

Petitioner Edward G. Partin II has filed a petition for admission to the bar of Arkansas and a motion for consideration of previous record and briefs and request for oral argument.

Petitioner sought admission to the Bar of Arkansas in 1993. He had completed the necessary educational requirements and had passed the Arkansas bar examination. The Board of Law Examiners refused to recommend his admission on the ground that he was not morally qualified. The Board concluded that Petitioner’s efforts at rehabilitation were not complete in view of what members perceived as his lack of candor. On appeal, this court affirmed the Board’s decision. Partin v. Bar of Arkansas, 320 Ark. 37, 894 S.W.2d 906 (1994).

Petitioner again seeks admission to the bar of Arkansas and alleges that he has completed the necessary educational requirements and that he has passed the Arkansas Bar examination and the Multistate Professional Responsibility examination. Petitioner further alleges that he was admitted to the bar of Louisiana on April 25, 1995.

Rule XIII of the Rules Governing Admission to the Bar requires that any application for initial admission shall be submitted to the Executive Secretary of the Board and that the determination of eligibility shall be made by the Board in accordance with Rule XIII. In the event the Board denies eligibility, the applicant may appeal the Board’s decision to this court for review de novo upon the record.

The Board’s decision to deny Petitioner’s previous application for admission to the bar of Arkansas was affirmed by this court in 1995. Partin v. Bar of Arkansas, supra. Pursuant to Rule XIII of the Rules Governing Admission to the Bar, Petitioner must first submit any application for initial admission to the Board for determination of eligibility. This court does not have original jurisdiction of petitions for admission to the bar of Arkansas. Rather, this court’s jurisdiction in connection with applications for admission to the bar is solely for appellate review of the Board’s decisions. Rule XIII of the Rules Governing Admission to the Bar.

The petition for admission to the bar of Arkansas is, therefore, dismissed for lack of original jurisdiction. The motion for consideration of previous record and briefs and request for oral argument is, therefore, moot.

Brown, J., not participating.


text:
    Michael Sherman PHILLIPS v. STATE of Arkansas
    CR 97-814
    949 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      Joel O. Huggins, for appellant.
    No response.
   Per Curiam.

Michael S. Phillips, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Joel O. Huggins, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Basilio REYES and Rogelio Reyes v. STATE of Arkansas
    CR 96-1385
    954 S.W.2d 199
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      Thomas Travis, for appellants.

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

On July 14, 1997, Thomas Travis, counsel for appellants Basilio Reyes and Rogelio Reyes, moved this court to appoint him as counsel nunc pro tunc from November 31, 1995. He states in his motion that “he has not been compensated for his past or future representation in this case.” He further states that his clients refused to sign an affidavit of indigency, and he, accordingly, has attached his own affidavit to his motion attesting to his clients’ indigency. The appeal in the appellants’ case was submitted to this court for consideration on September 11, 1997.

The history of counsel’s representation of the Reyeses on appeal can be gathered from the Supreme Court file in this case. On January 21, 1997, the Reyeses, who are incarcerated, filed their motion for substitution of counsel and attached two affidavits of indigency showing no assets. On February 6, 1997, Thomas Travis moved to withdraw as their counsel and set out in his motion that he had been paid only $3,000 for trial representation and that $2,000 was still owed him plus $1,000 which he paid for the trial transcript. Both motions were denied by this court. Mr. Travis’s motion to be appointed as counsel due to his clients’ indigency was then filed on July 14, 1997.

Though we question the diligence of Mr. Travis in filing his appointment motion, our file in this matter does show that the Reyeses have filed the proper affidavits of indigency in connection with their own motion to substitute counsel. Because the clients’ affidavits establishing indigency have been filed in this appeal, we grant Mr. Travis’s request to be appointed, but only with respect to the appeal. His motion as it relates to appointment nunc pro tunc for representation at trial is denied. It is clear that Mr. Travis was retained for his trial work and compensated in part for that representation.


text:
    Robin K. SCHLESIER v. STATE of Arkansas
    CR 97-399
    949 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      Gruber Law Firm, by: Wayne A. Gruber, for appellant.
    No response.
   Per Curiam.

Appellant Robin K. Schlesier, by his attorney, Wayne A. Gruber, has filed a motion for extension of time, and for further instruction.

On May 27, 1997, Appellant filed a Petition for Writ of Certiorari to complete the record. By Per Curiam Order dated June 16, 1997, Appellant’s Petition for Writ of Certiorari was granted. The Writ of Certiorari was issued to the Monroe County Circuit Clerk and to the Court Reporter, Nila J. Keels, returnable on July 16, 1997.

On July 17, 1997, the Monroe County Circuit Clerk filed an affidavit in which she averred that the court reporter, Nila J. Keels, failed to file the record of testimony in her office as commanded in the Writ of Certiorari.

We find that the court reporter’s failure to comply with the Writ of Certiorari issued on June 16, 1997, is good cause to grant Appellant’s motion for extension of time to file the record of testimony.

The motion is, therefore, granted until such time as the court reporter complies with the Writ of Certiorari issued on June 16, 1997.

Nila J. Keels is also ordered to appear before this court on the 25th day of September, 1997, at 9:00 a.m. to show cause why she should not be held in contempt of this court for her failure to comply in a timely manner with the command of the Writ of Certiorari issued on June 16, 1997.


text:
    Sam STEWART v. STATE of Arkansas
    CR 97-942
    949 S.W.2d 893
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      Irwin Law Firm, by: Robert E. Irwin, for appellant.
    No response.
   Per Curiam.

The appellant, Sam Stewart, has filed a motion styled, “Motion to File Belated Appeal and for a Rule on the Clerk.” Mr. Stewart’s attorney, Robert E. Irwin, admits that the notice of appeal was untimely filed due to negligence on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to treat this motion as one for belated appeal and grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Wake WILLIAMS v. STATE of Arkansas
    CR 97-952
    949 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered September 11, 1997

      George J. Stone, for appellant.
    No response.
   Per Curiam.

Appellant, Wake Williams, by his attorney, George J. Stone, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to an error on his part.

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

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


text:
    Gregory Lamont CHILDRESS v. The Honorable Marion HUMPHREY, Circuit Judge, Pulaski County Circuit Court
    CR 97-1055
    950 S.W.2d 220
    Supreme Court of Arkansas
    Opinion delivered September 16, 1997

      Wallace & Hamner, by: H. C. Martin, for petitioner.

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

The petitioner, Gregory Lamont Childress, filed a motion for an expedited appeal to hear the issue presented in his Petition for a Writ of Mandamus. The State does not contest this motion, and accordingly it is granted.

The petitioner also filed a motion for a writ of mandamus asking us to compel Judge Marion A. Humphrey of the Pulaski County Circuit Court to set bail pending his trial on criminal charges. In Henley v. Taylor, 324 Ark. 114, 918 S.W.2d 713 (1996), we held that certiorari is the proper remedy to review a circuit court’s determination of the availability of bail. Thus, we will treat Childress’s petition for a writ of mandamus as a petition for a writ of certiorari.

The Arkansas Constitution declares that “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption is great.” Ark. Const., art. 2, § 8. Accordingly, we grant the Childress’s petition for a writ of certiorari, and direct Judge Humphrey to hold a hearing and to set a reasonable bond.

Motion for Expedited Appeal granted.

Petition for a Writ of Certiorari granted.

Corbin, would deny.


author: David Newbern, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Raymond L. FRISBY and Virginia H. Frisby
    96-1360
    951 SW.2d 305
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997

      Robert L. Wilson, Chief Counsel, and Barbara A. Griffin, Lawrence W. Jackson, and Maria L. Schenetzke, Staff Att’ys, for appellant.

      Compton, Prewett, Thomas & Hickey, P.A., by: William I. Prewett, for appellees.
   David Newbern, Justice.

This is an eminent domain case. For the purpose of widening U.S. Highway 167 from two to four lanes in Union County, the Arkansas State Highway Commission (“the Commission”) condemned the .97 acres constituting the highway frontage of a 6.3-acre tract of land belonging to Raymond L. and Virginia H. Frisby. With its condemnation complaint, the Commission deposited $57,550 into the registry of the Circuit Court as compensation. The Frisbys requested a jury trial to determine the value of the land. A judgment, based on a jury determination, awarded the Frisbys $86,050. The Commission has appealed, arguing that the Frisbys failed to update discovery responses with respect to the proposed testimony of their expert appraiser. We agree that the Commission was entitled to have an updated response and that the two-hour continuance granted by the Trial Court on the day of trial was inadequate to remedy the problem. We also agree that the testimony of Raymond L. Frisby should have been stricken and that the Frisbys’ expert gave improper evidence concerning comparable sales. The judgment is thus reversed and remanded.

1. Discovery violation

As we said in Arkansas State Highway Comm’n v. Barker, 326 Ark. 403, 405, 931 S.W.2d 138, 140 (1996), “There are three recognized formulas for measuring just compensation in partial-taking cases: (1) the value of the part taken; (2) the value of the part taken plus the damages to the remainder; (3) the before- and after-value rule. Young v. Arkansas State Highway Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967); see also Arkansas State Highway Comm’n v. Jones, 256 Ark. 40, 505 S.W.2d 210 (1974).”

The 6.3-acre tract owned by the Frisbys was the site of a truck stop composed of a service station, store, and restaurant. The Commission requested that it be supplied with information forming the basis of expert testimony to be presented by the Frisbys. In response, the Frisbys furnished a “preliminary report” compiled by Ron Robinson, the expert who was to testify. The Commission thereafter took Mr. Robinson’s deposition in which he was examined with respect to his preliminary-report conclusion, applying the before-and-after value rule, that the 6.3 acres was worth either $113,000 or $117,000 prior to the taking. One figure was based on the “cost” method, and the other on the “income capitalization” method of evaluating the before and after values.

At the trial, Mr. Robinson gave his pre-taking evaluation as $158,000 and the value of the property remaining as $32,000. During cross-examination of Mr. Robinson, counsel for the Commission noted that Mr. Robinson was testifying from a document labeled “final report” containing facts and figures which had not been furnished to the Commission. Mr. Robinson discussed comparable sales, of which Commission counsel were unaware, in the process of establishing his opinion as to the value of the Frisbys’ land before and after the taking.

Counsel for the Commission informed the Trial Court that, in view of the fact that the report as to which Mr. Robinson had been deposed was labeled “preliminary,” she had, by letter, asked the Frisbys’ counsel to supply any additional reports to be made. She also informed the Trial Court that the Frisbys’ counsel had responded in a letter stating that there would be no further reports and that the deposition testimony would be sufficient. The Frisbys’ counsel did not contest those remarks by the Commission’s counsel.

Although there was a reference to a mistrial, counsel for the Commission moved, in lieu thereof, for a continuance sufficient to allow investigation of the new information. Counsel for the Frisbys said that he was not introducing Mr. Robinson’s final report, which he too had received the day of the trial, into evidence and that it should be sufficient to allow counsel for the Commission to cross-examine Mr. Robinson with respect to his testimony.

The Trial Court granted a two-hour continuance, which amounted to an extended lunch break, to allow Commission counsel to examine Mr. Robinson’s final report.

According to Ark. R. Civ. P. 26(e)(1), a party is under a duty to supplement a discovery response, “in the case of expert witnesses, [with] the subject matter on which he is expected to testify, and the substance of his testimony.” When a party complains about failure to update discovery, the matter lies within the discretion of the trial court. See Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993). In this instance, there was an obvious violation of Rule 26(e)(1) to the prejudice of the Commission. The two-hour continuance was hardly sufficient to allow examination and investigation of new facts and figures contained in Mr. Robinson’s final report; thus we hold that the Trial Court’s response amounted to an abuse of discretion sufficient to cause reversal and remand of the case.

2. Owner’s testimony

Another point of appeal has to do with the testimony of Raymond L. Frisby who was allowed, after he had described improvements on the property, to express his opinion that the pre-taking value was $250,000. No doubt an owner of property is allowed that privilege, but the testimony must be grounded in evidence of market value. Arkansas State Highway Comm’n v. Highfill, 248 Ark. 541, 452 S.W.2d 846 (1970). During cross-examination, Mr. Frisby said he had not established a per acre value and that his $250,000 figure was based solely on his “feeling” or what he would have asked for the land and not on any facts or figures in Mr. Robinson’s report. The Commission’s motion to strike Mr. Frisby’s testimony should have been granted.

3. Business profits

The Highfill decision is also relevant to the Commission’s point, which is well taken, that Mr. Robinson’s testimony should have been stricken because, with respect to comparable sales of business properties he used to establish the value of the Frisbys’ property, he could not say that he had discounted “good will” and profit potential elements of the sales prices. Although it is appropriate to ascertain the highest and best use of the land, whether considering the property condemned or comparable properties that have been sold, it is important to separate “business value,” such as profit potential from a particular business, from the market value of the property. See Arkansas State Highway Comm’n v. Wallace, 247 Ark. 157, 444 S.W.2d 685 (1969); Hot Spring County v. Bowman, 229 Ark. 790, 318 S.W.2d 603 (1958).

In conclusion, the Commission has argued that the verdict and judgment are not supported by substantial evidence. This is not a case in which the Commission’s liability for compensation is in issue; rather, the issue is the amount. We need not consider the sufficiency argument in view of our decision to reverse and remand on the other points mentioned.

Reversed and remanded.


text:
    Michael WATSON v. STATE of Arkansas
    CR 97-204
    951 S.W.2d 304
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997

      Alvin Schay, for appellant/cross-appellee.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee/cross-appellant.
   David Newbern, Justice.

Michael Watson was convicted of two counts of first-degree battery, one count of felon in possession of a firearm, and one count of terroristic threatening. The evidence showed that Mr. Watson shot and injured Kenyon Coleman and Jonathan Young and pointed his pistol at Tremmel Prudhomme outside a fraternity house in Arkadelphia while a party was in progress. He was sentenced to 102 years in prison. Mr. Watson’s sole point of appeal relates to the battery convictions. He contends the Trial Court erred in refusing to instruct the jury on the lesser-included offense of second-degree battery. We affirm because no such instructions were proffered to the Trial Court.

On numerous occasions, most recently in Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997), and Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996), we have restated the rule that an appellant who seeks reversal based on the failure to instruct the jury as requested by the appellant must present a record showing a proffer of the requested instruction. The record in this case does not contain any such proffer; thus, we must affirm on the point without further consideration.

The State has cross-appealed from a directed verdict or dismissal granted in Mr. Watson’s favor with respect to a charge of terroristic act. Ark. Code Ann. § 5-13-310(a)(2) (Repl. 1993). The statute prohibits shooting “with the purpose to cause injury to persons or property at an occupiable structure.” As abstracted by Mr. Watson, it appears that the Trial Court granted a directed-verdict motion but in the course of doing so said the charge was “dismissed” because Mr. Watson was shooting at a person rather than at an occupiable structure.

Whether the charge was dismissed due to a technical defect or resulted in no conviction because of insufficiency of the evidence, it is apparent that the language of the allegation is significant. We have no idea what the allegation was because neither Mr. Watson nor the State has abstracted an information or amended information charging Mr. Watson with a terroristic act. It is an appellant’s, in this case a cross-appellant’s, duty to present a record to the Court sufficient to permit review of the error it asserts. Failure to abstract a critical document precludes this Court from considering issues concerning it. Jackson v. State, 316 Ark. 509, 872 S.W.2d 400 (1994); Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991).

Affirmed on appeal and affirmed on cross-appeal.

Arnold, C.J., not participating.


author: Tom Glaze, Justice.

text:
    Belynda Faye GOFF v. STATE of Arkansas
    CR 97-135
    953 S.W.2d 38
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997
    [Petition for rehearing denied October 23, 1997.]

      Vowell & Atchley, P.A., by: Stevan E. Vowell and Hatfield & Lassiter, by: Jack T. Lassiter, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Belynda Faye Goff was convicted of first-degree murder of her husband and sentenced to life in prison. She raises four points for reversal.

Ms. Goff first argues the trial court erred in denying her motion for directed verdict because the State failed to prove she purposely caused the death of her husband Stephen. The State’s case was premised on circumstantial evidence, but as this court has previously and consistently held, evidence, whether direct or circumstantial, is sufficient to support a conviction if the evidence is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). In determining the sufficiency of the evidence, we need only ascertain that evidence most favorable to the appellee; it is permissible to consider only that testimony which supports the verdict of guilty. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).

In reviewing the record, it is clear the Goffs had had marital problems for some time prior to as well as at the time of Mr. Goff’s death. Ms. Goff related that her husband had been unfaithful to her, and had affairs with at least two women. Anita Bellefeuille, a friend of Ms. Goff, testified that, about one year before Mr. Goffs murder, Ms. Goff said next time her husband was unfaithful she would “bash his head in.” In December of 1993, Ms. Goff used an empty apartment in the complex where the Goffs lived so she could spy on Mr. Goff. In fact, at the time Mr. Goff was killed, Ms. Goff suspected he was having another affair because, when the telephone would ring, the caller would hang up when Ms. Goff answered, but when Mr. Goff answered, he would talk with the caller. On the evening of June 11, 1994, only hours before Mr. Goff s murder, he had received a call and left the apartment. He told Goff that he was going for a pack of cigarettes, even though the store was closed and he had already purchased cigarettes that day.

Ms. Goff testified she went to bed between 10:00 and 10:30 p.m. on June 11 after Mr. Goff left, and claimed she heard no noises except a door shutting some time during the night. However, the Goffs’ upstairs neighbor testified that, around 2:00 a.m. on June 12, she had heard three knocks on the Goffs’ door and the door open. The neighbor further said that one to two minutes later she heard five or six loud “bangings,” as if someone was banging a broomstick on the ceiling. She added that the banging was so loud she was afraid that it would awaken her six-month-old daughter. Dr. Charles Kokes, who performed the autopsy on Mr. Goff, testified that everything regarding the condition of Mr. Goff s body at the time he was found was consistent with a time of death around 2:00 a.m.

Ms. Goff testified that she slept through the night, got up about nine minutes after the alarm went off at 4:30 a.m., and found her husband’s body shortly thereafter. However, Jay Thomas, a paramedic for North Arkansas Medical Center, testified that, when he first arrived at the scene, Ms. Goff was fairly calm, and all the lights were off, both of which he found very strange. He also testified Ms. Goff was dressed in nightclothes which consisted of a camisole and tight blue pants, that she did not appear groggy or sleepy, and that her hair was not “messed up,” as would be consistent with someone who had just awakened. Mr. Thomas further testified that when he got there he could only open the door about six inches because Mr. Goff s body was lying against the door. Ms. Goff and her son were only able to get out of the apartment after the door was forcibly opened about eight inches. ■ Mark Forsee, who answered the emergency call Ms. Goff made when she allegedly discovered Mr. Goffs body, testified that during the nine-minute conversation he had with Ms. Goffbefore the ambulance arrived, she told him there was blood everywhere and that it was her husband’s; yet, she did not exhibit any concern or fear that the police might need to be there or that anybody else might be in the apartment.

Lt. Archie Rousey, who investigated the murder scene, testified that, when he arrived at the scene, Mr. GofFs body was lying directly behind the door, fully clothed, with his head slightly elevated in the corner against the door where it hinges and a wall that extends at a right angle. He testified that there were massive amounts of blood under Mr. GofFs head. Lt. Rousey stated that there was also a large amount of blood just above his head and the splattering arched upward in a V-shape-type manner up to and on the ceding. He testified that there was brain matter on the floor in front of Mir. GofFs feet approximately six feet away, a piece of his skull fragment on top of the television set immediately to his right, and another piece of skull fragment approximately twelve feet away from his foot, out into the living room next to the couch. Just above his head approximately eighteen inches there was a scraping on the sheetrock wall which appeared to be in a downward direction toward Mr. GofFs head. There was another scrape on the wooden door trim just above and to the left of his head.

Except for the area surrounding Mr. GofFs body, everything in the apartment seemed to be intact, and there were no signs of a struggle or a forced entry. Further investigation led police officers to find traces of blood in the GofFs’ bathtub drain. That blood was tested and was determined consistent with Mr. GofFs DNA profile. In addition, the bathtub, shower curtain, and toilet plunger were wet. A pile of fourteen towels and one washcloth were found in the master bedroom under another pile of dry dirty clothes and next to a clothes basket that was almost empty. Four of the towels and the washcloth were extremely wet and the rest of the towels were damp. One of the towels had blood on it.

Dr. Kokes testified that Mr. GofF died as a result of blunt-force injuries to the head. He stated that Mr. GofF had various injuries to the back and top of his head and that in his opinion, the injuries to the back of the head occurred first, followed by the injuries to the top of the head. Kokes opined that, after being hit in the back of the head, Mr. GofF would have collapsed. He further testified that the injuries to the top of Mr. GofFs head indicated that Mr. GofF had been hit repeatedly at least six times, after he had been rendered incapacitated. Mr. GofF also had injuries on his right hand, which Dr.Kokes testified appeared to be sustained in a defensive manner, such as an attempt to ward off blows. He also testified that the injuries to Mr. Goff s head were caused by an object, such as a hammer, having a curved to oval shape measuring approximately five-eights to three-quarters of an inch in diameter. Two hammers were found in a box in the Goffs’ kitchen. Tom Bevel, a forensic consultant who assisted in the investigation, testified that the attacker was right-handed. The proof showed that Ms. Goff is right-handed.

Ms. Goff reported Mr. Goffs death to his life insurance company and told the company that her husband had “appeared to have been severely beaten somewhere in Carroll County and returned to home and left in doorway.” However, the evidence clearly reveals that Mr. Goff had been murdered in his own apartment. First, there was blood on the inside of the door, not on the outside. Second, Mr. Bevel testified that, given the pattern of blood on the wall, Mr. Goff received the majority of the blows to his head in the corner in which his body was found, with the attacker either straddling him or standing to his side. It was also Dr. Koke’s opinion that Mr. Goff was lying in the corner where his body was found when he was hit on the top of the head. The scrapes on the wall also indicated that Mr. Goff was attacked while lying in that corner.

In summary, we first point out that this court has often stated that a defendant’s false and improbable statements explaining suspicious circumstances are admissible as proof of guilt. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Bennett v. State, 297 Ark. 115, 754 S.W.2d 799 (1988). Such improbable statements were made by Ms. Goff in this case. Contrary to Ms. Goffs version of occurring events, the evidence clearly indicates that her husband had been beaten to death while present in the couple’s apartment, and given the position of Mr. Goffs body, the undisturbed blood stains on the inside doorknob, and the undisturbed windows, Mr. Goffs attacker did not leave the apartment. Further, the hammers found in the kitchen are consistent with the type of weapon that would inflict the wounds that caused Mr. Goff s death. Mr. Goff s blood was found on the bathtub drain, and a large pile of wet towels — one with blood on it — was found in the master bedroom. Such evidence indicates that someone in the apartment had attempted to “clean up” the crime scene. Ms. Goff and her three-year-old son were the only people in the apartment when Mr. Goff’s body was found. In addition, although Ms. Goff claims to have gotten up about nine minutes after the alarm went off at 4:30 a.m., her emergency call was actually made at 4:18 or 4:19 a.m., before she claims she actually woke up. When the paramedics arrived at the scene, Ms. Goff initially appeared calm and was not disheveled or groggy as if she had just woken up. Finally, the timing of Mr. Goff’s death and their marital difficulties provides an opportunity and a motive for Ms. Goff to kill her husband. We conclude the evidence was more than sufficient to establish that Ms. Goff murdered her husband. Thus, the trial court properly denied Ms. Goff s motion for a directed verdict.

Ms. Goffs second point concerns the trial court’s ruling permitting Dr. Marcia Eisenberg to testify concerning DNA profiling evidence of the blood found in the Goffs’ bathroom. Ms. Goff argues that the testimony had been performed by technicians under the supervision and control of Richard A. Guerrieri, who had prepared the DNA report. She argues that it was objectionable hearsay to allow Eisenberg to testify concerning the test results and opinions in Guerrieri’s report. In brief, Dr. Eisenberg, using Guerrieri’s report, opined at trial that the blood from the bathtub drain was consistent with the known sample from the victim and inconsistent with the known sample from Ms. Goff and her children.

Ms. Goff relies on Llewellyn v. State, 4 Ark. App. 326, 630 S.W.2d 555 (1982), where the court of appeals held that, under Rule 803(8) of the Uniform Rules of Evidence, a drug-laboratory supervisor’s testimony was inadmissible because he was not present when the substance was delivered to the lab, and he had no personal knowledge of the receipt or testing of the substance. The facts and legal argument in Llewellyn differ from those presented here. First, factually, Dr. Eisenberg testified that not only did she supervise Guerrieri, she also independently reviewed his test results. She related that under standard operating protocol, all testing is done under her supervision and she must approve all results and conclusions that are reached. Also, as pointed out by the State, under Ark. R. Evid. 703 (not discussed in Llewellyn), and pertinent case law, an expert can render an opinion based on facts and data otherwise inadmissible, including hearsay, as long as they are of a type reasonably relied upon by experts in the field. Eisenberg was qualified without objection as an expert in the field of DNA testing, and she testified that it was “quite common” for DNA experts to examine case files and protocols and decide whether the DNA testing in a particular case is accurate. She said that she did so in this case. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). In addition, when an expert’s testimony is based on hearsay, this court has held that the lack of personal knowledge on the part of the expert does not mandate the exclusion of the testimony, but instead it presents a jury question as to the weight of the testimony. See Id.; Scott v. State, 318 Ark. 747, 888 S.W.2d 628 (1994). Because this court does not reverse the trial judge’s ruling on a hearsay question absent an abuse of discretion, we find no such abuse here and affirm on this point. Ferrell, 325 Ark. at 462.

Next, relying on Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), Ms. Goff submits the trial court erred by admitting into evidence six autopsy photographs she claims were intended to inflame the jury. This court has often stated that the admission and relevancy of photographs is a matter within the sound discretion of the trial court, and the mere fact that photos are inflammatory will not render them inadmissible. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). Even the most gruesome photos may be admissible if they tend to shed some light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997). Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Id.

Here, the disputed photos revealed the position of Mr. Goffs body when found, and aided in the explanation he had been attacked while inside the apartment. They further served as aids to Dr. Kokes when explaining to the jury the nature and extent of the victim’s injuries. The photographs, too, supported Kokes’s opinion that the weapon used in Mr. Goffs murder had a circular or oval hard surface like the hammer found in the Goffs’ apartment. Finally, the challenged photographs, in depicting the nature and extent of Mr. Goff s wounds, helped the prosecution prove Ms. Goff had acted purposefully — a required element in proving first-degree murder, the crime with which she was charged. See Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). Because the six photographs were shown to have enabled Kokes to testify more effectively and to enable the jury to understand just how and where Mr. Goff was killed, the trial court did not abuse its discretion in allowing them into evidence.

Ms. Goffs final argument requests her sentence be reversed and remanded for a new sentencing because the trial judge improperly entered the jury room and communicated with the jurors during their deliberations. We agree.

While the jury was deliberating on Ms. Goffs sentence, the jury sent the judge a message raising the following three questions: (1) Whether the jury had to impose a fine and whether that fine could be zero; (2) What would happen if it could not agree on a sentence; (3) Whether insurance money was always considered pecuniary gain. The judge proposed answering each question as follows: (1) No; (2) He expected the jury to come to a verdict; (3) The question of whether insurance money was pecuniary gain was for the jury to decide. The judge then suggested he could bring the jury into the courtroom to answer their questions or he could go into the jury room to answer them • — ■ whichever the attorneys wanted. The prosecutor and defense counsel said, “That will be satisfactory with us, Judge.” The record reflects the judge went into the jury room, remained there for eight minutes, then returned. No record apparently was made of the judge’s appearance in the jury room, nor does the record reflect he disclosed to the attorneys what had been discussed with the jurors. Two minutes after the judge returned from the jury room, the jury returned with a sentence of life imprisonment.

For reversal, Ms. Goff relies on Ark. Code Ann. §16-89-125(e) (1987), which provides as follows:

(e) After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law,' they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.

Ms. Goff contends that the language in § 16-89-125(e) mandates that a jury which is in deliberation must be brought into open court before any information may be given to it, that noncompliance with this statutory provision gives rise to a presumption of prejudice, and the State has the burden of overcoming that presumption. This court has held as much in prior cases. See Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995); Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993); Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). In Tarry, the court held the State had not met its burden and held that the trial court’s violation of § 16-89-125(e), by answering questions of law in the jury room, must be deemed prejudicial. Flowever, in Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973), this court held that strict compliance had been waived where the attorneys went with the judge to the jury room, everything that happened was reported in the record, and there was no possibility of prejudice. In the present case, like in Tarry and Davlin, the State did not meet its burden of showing what occurred during the judge’s visit to the jury room, so the trial judge’s violation of § 16-89-125(e) must be deemed prejudicial to Ms. Goff.

The State argues that cases such as Tarry and Davlin should be overruled to the extent that they do not require an objection or a showing of prejudice in order for an appellant to raise and prevail on a § 16-89-125(e) argument on appeal. The State correctly contends that the general rule in Arkansas, with few exceptions, is that a contemporaneous objection must be made in the trial court in order to raise an argument on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The State asserts that an objection would have brought the violation to the judge’s attention, and he could have easily remedied that violation by instructing the jury in open court. In a twofold argument, the State also cites Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985), where this court held that prejudicial error would no longer be presumed and that, in order to prevail, appellants must show prejudice, which Ms. Goff failed to do here.

The State first expounds, citing Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997), that even a statutory mandate requires a litigant to object at trial in order to raise claims on appeal about the trial court’s failure to comply with them. However, Jefferson involved Ark. Code Ann. § 16-89-118 (1987), which requires the trial court to instruct, under oath, the officer (bailiff), taking the jury for viewing, to keep the jurors from communicating with others about the case. There, this court, citing Berna, concluded that, although the trial judge did not fully comply with § 16-89-118, his error did not affect the basic fairness of the trial, thus the Jefferson court rejected the defendant’s argument that the trial judge’s error required reversal.

The Jefferson court further explained that, while a trial court’s failure to give an officer the special oath under § 16-89-118 might result in some misconduct or prejudicial error, such error does not encompass the .type of fundamental or structural right this court sought to protect and ensure in Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992). For example, in Grinning, the court stated that the denial of the right to trial by jury in a criminal case, without the requisite waiver in accordance with the law, is a serious error for which the trial court should intervene, and is therefore an exception to the contemporaneous-objection rule. See Wicks, 270 Ark. 781, 606 S.W.2d 266.

We conclude such a fundamental right is present here, since the trial court’s failure to comply with § 16-89-125(e) resulted in both Ms. Goff and her counsel being absent when a substantial step was taken in Ms. Goffs case. See Kentucky v. Stincer, 482 U.S. 730 (1987) (Court stated that a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure); see also Davlin, 313 Ark. 218, 853 S.W.2d 882 (1992) (court, in discussing noncompliance by trial judge of § 16-89-125(e), stated that it is a basic principle of both our state’s and our nation’s criminal procedure that a defendant has the right to be present in person and by counsel when a substantial step is taken in his case). Thus, we hold the trial court’s error in failing to comply with § 16-89~125(e) deprived Ms. Goff of a fundamental right which required protection, and as such, is an exception to the contemporaneous-objection rule. Moreover, because the State failed to rebut the presumption of prejudice required by case law where a trial judge fails to comply with § 16-89-125(e), we must reverse and remand this cause for resentencing.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined in its entirety and no other rulings adverse to Ms. Goff involving prejudicial error were found.

       Rule 803(8) in pertinent part provides:
      . . . The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the government in criminal cases; (iv) factual findings resulting from special investigation of a particular

        complaint, case, or incident; and (v) any matter as to which the sources of information or other circumstances indicate a lack of trustworthiness. (Emphasis in original.)

       The court of appeals rejected this Berna argument in Huckabee v. State, 30 Ark. App. 82, 785 S.W.2d 223 (1990). In Huckabee, after the jury began its deliberations, the trial judge gave an unrecorded answer to a juror regarding an evidentiary question. The Huckabee court held that, although the supreme court’s ruling in Tarry was not consistent with the line of cases beginning with Berna, which require that the appellant demonstrate prejudice, it is clear that the Arkansas Supreme Court has chosen to apply the earlier rule which presumes prejudice with respect to error resulting from noncompliance with § 16-89-125(e).