author: Ray Thornton, Justice.

text:
    John Parker HEATHSCOTT v. Christopher C. RAFF
    98-801
    973 S.W.2d 799
    Supreme Court of Arkansas
    Opinion delivered September 14, 1998

      Appellant, pro se.

      Jeff Rosenzweig, for appellee.
   Ray Thornton, Justice.

In this election case, the appellant’s eligibility to seek the office of prosecuting attorney is contested on the ground that he is not “learned in the law” as required by the Arkansas Constitution. Appellee Christopher Raff is the incumbent prosecuting attorney for the Seventeenth— East Judicial District of White and Prairie Counties, and the Democratic nominee in the general election for that office. Appellant John Parker Heathscott, who is not a licensed attorney, is the Republican nominee.

Mr. Raff moved for declaratory judgment and mandamus to have Mr. Heathscott’s name removed from the ballot. Mr. Raff contends that Mr. Heathscott is not “learned in the law” as required for that position by Ark. Const. art. 7, § 24. Section 24 provides the following:

The qualified electors of each circuit shall elect a prosecuting attorney, who shall hold his office for the term of two years, and he shall be a citizen of the United States, learned in the law, and a resident of the circuit for which he may be elected (emphasis added).

For reasons which follow, the decision of the trial court directing that Mr. Heathscott not be certified for the ballot is affirmed.

During the hearing on the motions, Mr. Raff argued that “learned in the law” is an archaic term of art that must be considered in the context of the time in which it was crafted. In this regard, he presented expert testimony that in 1874, when the constitution was drafted, law schools and the modern bar examination did not exist. Instead, applicants became members of the bar after reading and independent study with certified lawyers, and after passing an oral examination given by a judge or panel of judges. According to the testimony, the examining panel would find applicants to be “learned in the law” and would admit them to the bar. Mr. Raff argues that this State now has a mechanism in place for determining whether one is “learned in the law,” that is, graduation from a law school and passing the bar examination. He urges that any other interpretation of the phrase would engender chaotic, standardless, and ad hoc interpretations of an applicant’s qualifications.

Mr. Heathscott, on the other hand, argues that “learned in the law” should be interpreted as a mere direction to the voters that leaves the determination of a candidate’s qualifications to the electorate. He maintains that he is “learned in the law” because he participated in summary court martials in the United States Navy twenty-seven years ago, attended an eight-week course at the Law Enforcement Training Academy twenty-two years ago, and had handled some matters pro se in the White County court. Mr. Heathscott admitted having little knowledge of the rules of civil and criminal procedure, or of federal cases construing the United States Constitution, and readily agreed that he is not a licensed attorney. However, he argued that he would not be hindered in the responsibilities of the office because he would be assisted by licensed attorneys.

The trial court determined that “learned in the law” means that the prosecuting attorney must have graduated from a law school and have passed the bar examination. Because Mr. Heathscott did not meet these requirements, the court found that he was not qualified to run for office. The court ordered the Secretary of State to refrain from certifying Mr. Heathscott for the ballot.

Arkansas law is silent on the meaning of “learned in the law.” Nonetheless, Mr. Heathscott seeks support in Weems v. Supreme Court Comm. on Professional Conduct, No. 74-5 (Ark. Sup. Ct., February 4, 1974), an unreported per curiam from this court. In that case, Weems was disbarred while he held the office of prosecuting attorney. In denying his motion to stay the judgment of the trial court pending final appeal, we noted that disbarment did not automatically effect a removal from office because there were prescribed constitutional procedures for removal. See Ark. Const. art. 15, § 1.

Besides being unpublished and not serving as valid precedent, the Weems decision does not help Mr. Heathscott. We did not discuss the eligibility requirements for the prosecuting attorney’s office in the per curiam. Rather, we considered whether disbarment during the prosecuting attorney’s elected term would automatically expel an elected official from holding an office for which he was qualified when elected.

Because there is no Arkansas law on the meaning of “learned in the law,” we first note that Black’s Law Dictionary provides the following definition: “In statutes prescribing the qualifications of judges, “learned in the law” designates one who has received a regular legal education, the almost invariable evidence of which is the fact of his admission to the bar.” Black’s Law Dictionary 889 (6th ed. 1990).

Turning to the decisions of other jurisdictions reveals that most states which have interpreted “learned in the law” in their constitutions have equated it with the qualification to practice law in the state. See, e.g., In re Teigen, 221 N.W.2d 94 (N.D. 1974) (observing that the framers of the constitution used “learned in the law” in the sense of attorney-at-law, and that this view has been uniformly accepted by the few authorities on the subject); In re Scarrella, 221 N.W.2d 563 (Minn. 1974) (holding that “learned in the law” means admitted or entitled to be admitted to practice as an attorney-at-law in the state); New Mexico ex rel. Chavez v. Evans, 446 P.2d 445 (N.M. 1968); Opinion of the Justices, 181 So. 105 (Ala. 1965); Freiler v. Schuylkill County, 46 Pa. Super. 58 (1911) (observing that the phrase clearly indicates an intention to prescribe some sort of an educational qualification, and should be given some practical effect); Howard v. Burns, 85 N.W. 920 (S.D. 1901).

The seminal case on the subject is Jamieson v. Wiggin, 80 N.W. 137 (S.D. 1899). In that case, the defendant’s eligibility to hold the office of county judge was contested on the ground that he was not “learned in the law” as required by the constitution because he was not a licensed attorney. The Supreme Court of South Dakota rejected the interpretation given a different phrase, “well informed in the law of the state” by the Supreme Court of Texas in Little v. State, 12 S.W. 965 (Tex. App. 1890).

In contrast to the Texas court, the South Dakota court determined that “learned in the law” is a fact question that must be ascertained by a competent tribunal prior to the election. Id. The court declared that “the only and conclusive evidence of such fact [is] an admission to the bar by a court of this or some other jurisdiction authorized to license persons to practice as attorneys at law.” Id. at 138. In reaching its decision, the court reasoned that the phrase was inserted for a purpose, maintaining that the phrase “clearly indicates an intention to prescribe some sort of an educational qualification, and should be given some practical effect.” Id. Decisions from other jurisdictions follow the Jamieson reasoning. See, In re Teigen; In re Scarrella; New Mexico ex rel Chavez; Opinion of the Justices; Freiler; Howard; supra; But see Ex parte Craig, 193 S.W.2d 178 (Tex. 1946), rev’d on other grounds, 331 U.S. 367 (1947).

We do not find the Texas cases to be persuasive. Article 5, section 15 of the Texas Constitution prescribes that the county judge shall be “well informed in the law of the State.” Both Texas cases involve county judges. In those cases, the Texas court construes well informed in the law as a mere direction to the voters who determine whether the candidate is sufficiently well informed in the law to hold that high office. See Ex parte Craig, supra; Little v. State, supra. Well informed in the law, unlike “learned in the law,” is not a term of art given force through centuries of English and American usage.

The holding that “learned in the law” is synonymous with membership in a bar is congruent with the phrase’s historical origin. “Learned in the law” comes from ancient English constitutional history, which evidences a desire to have professionally qualified judges. Frederic S. Le Clercq, The Constitutional Policy That Judges Be Learned in the Law, 47 Tenn. L. Rev. 689, 694 (1980). Professor Le Clercq writes that, as far back as 1215, King John of England “pledged to his barons in the Magna Carta that he would ‘appoint as justices, constables, sheriffs, or bailiffs, only such as know the law of the realm.’” Id. He writes further that the earliest reference to the phrase “learned in the law” is in a 1344 statute that provides:

Two or three of the best of Reputation in the Counties shall be assigned Keepers of the Peace by the King’s Commission, and at what time Need shall be, the same, with other wise and learned in the Law, shall be assigned by the King’s Commission to hear and determine Felonies and Trespasses done against the Peace in the same Counties ....

Id. From this he observes that, although justices of the peace were not required to be learned in the law, they were assured access to a clerk learned in the law.” Id. (internal citations omitted).

Professor Le Clercq describes two types of lawyers in English law, namely, barristers and serjeants. Id. at 696 (citing Blackstone, Commentaries on the Laws of England 23 (G. Childs ed. 1869)). Barristers, he says, were apprentices of the law, being admitted only after a long period of study in the inns of court. Id. He notes that barristers could not fill the office of full advocate until they had completed sixteen years of study, at which time, they might also be “called to the state and degree of segeants.” Id. From the degrees of barrister and serjeant, some could be called to be his majesty’s counsel, “learned in the law.” Id.

That “learned in the law” is an ancient term of art was also noted by the Supreme Court of North Dakota when it wrote that “as early as 1608, King James I of England was told that he was not qualified to determine the law, in that he was not learned in the laws of his realm.” In re Teigen, 221 N.W.2d at 99-100 (citing Edward S. Corwin, The “Higher Law” Background of American Constitutional Law, 42 Harvard L. Rev. 149, 365 (1928-1929) in Selected Essays on Constitutional Law 29 (1929)). In responding to the King’s belief that the law was founded on reason, and that as a man of reason he was qualified to judge, Sir Edward Coke stated:

True it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of the law, which law is an act which requires long study and experience, before that a man can attain to cognizance of it ... .

Id.

The Tennessee cases cited by Mr. Heathscott deserve separate mention because he argues they are persuasive authority. We think they are not. In Heard v. Moore, 290 S.W.15 (1926), the court remarked that the words “learned in the law” as used in an act that created the office of county judge in Sequatchie County was not a requirement that the office be held by a licensed attorney, but was intended as a direction to the voters. Id. at 17. The court followed the Texas case, Little v. Texas, supra, reasoning that the phrase was a vague, indefinite and uncertain phrase and that the legislature could have used the words “licensed attorney” if it intended to prohibit a layman from holding such an office. Id.

Professor Le Clercq had this to say regarding the Heard decision:

It is a poignant comment on the frailty of the human condition and the immense toll exacted by death on our understanding of the institutions by which we are governed that in 1926 the Tennessee Supreme Court would approvingly quote the solecism of a South Dakota court that the “phrase ‘learned in the law’ ... is alliterative, euphonious, vague and indefinite.”

Le Clercq, supra, at 713.

The Tennessee Court took the opposite view in LaFever v. Ware, 365 S.W.2d 44 (1963), where the issue was the constitutionality of a statute requiring that the judge of the general sessions court of White County be a licensed attorney of the state when the constitution provided qualifications for that position. In holding that the constitutional qualifications were minimal requirements giving the legislature the power to add to these qualifications, the court announced that the phrases, “learned in the law” and “licensed to practice law,” are synonymous. Id. at 51.

Perhaps as a result of the confusion in its decisions regarding the interpretation of “learned in the law,” Tennessee has now enacted law requiring all judges to be licensed to practice law. The Tennessee code provides that “[Notwithstanding any other provision of law to the contrary, effective September 1, 1990, all persons occupying the office of general sessions judge shall be licensed to practice law in this state” Tenn. Code Ann. § 16-15-5005 (a) (Repl. 1994) (emphasis added). Section 17-1-106(a) provides that “judges of the supreme court, court of appeals, chancery courts, circuit courts, and criminal courts . . . shall be learned in the law, which must be evidenced by the judge being authorized to practice law in the courts of Tennessee. Tenn. Code Ann. § 17-1-106(a) (Repl. 1994) (emphasis added).

One of the fundamental principles or rules in the construction of a constitution is that effect must be given to every part and that, unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous, meaningless, or inoperative. Williams v. Douglas, 251 Ark. 555, 557, 473 S.W.2d 896, 898 (1971). Mr. Heathscott’s construction would make inoperable, or nullify the phrase, “learned in the law.” To give meaning to the phrase, we must recognize its ancient origin and application in England and in this country.

As a term of art, in 1874 when our constitution was drafted, the phrase most likely referred to attorneys-at-law who had been admitted to the bar after passing an oral exam. That this interpretation is reasonable is further borne out by the history of legal education in this state. When our constitution was drafted, Arkansas had no prescribed educational requirements as a condition to practice law. Eugene A. Matthews, The President’s Address: Looking Backward — To See Forward, Ark. L. Rev. 273 (1956-1957). To practice law, a person had to pass an oral examination by a committee appointed by the circuit court from practitioners at the bar of that court. Id. at 280. Admission to practice in the supreme court was obtained by motion without further examination. Id. In 1917, the Legislature passed a bill providing for a Board of Bar Examiners for each judicial circuit, each of which would use a list of questions prepared by the central board in the subject areas to be tested. In 1938, the people adopted amendment 28 to the constitution which granted to the supreme court the power to make rules regulating the practice of law and the professional conduct of attorneys-at-law. Id. at 280-281. It was not until 1949 that the supreme court required two years of college work and graduation from an approved law school as a prerequisite to examination and admission to the bar. Id. at 281. Amendment 28 grants authority to the court to prescribe what education and legal training must be attained to become eligible for examination by the State Board of Bar Examiners and for admission as licensed attorneys.

Based on the American and English use of the phrase, and our own legal-education history, we hold that the constitutional qualification phrase “learned in the law” means an attorney licensed to practice law in the state. We do not agree with the trial court’s finding that the phrase automatically includes graduation from a law school and note that there are yet attorneys licensed to practice law who have not graduated from a law school. Because graduation from a law school is now required to become a licensed attorney, eventually all licensed attorneys will be graduates of a law school.

Clearly, Mr. Heathscott is not a licensed attorney, and the trial court’s decision to prevent his name from being certified as a nominee for prosecuting attorney of the Seventeenth-East Judicial District because of his failure to meet the required constitutional qualification of being “learned in the law” is affirmed.

         Robert Wright, III, Donaghey Distinguished Professor of Law at the University of Arkansas at Little Rock School of Law, based his opinion on his years of study as a legal historian and quoted a speech given by Eugene Matthews to the Arkansas Bar Association, printed at 11 Ark. L. Rev. 273 (1956-1957).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John Parker HEATHSCOTT v. Christopher C. RAFF
    CR 98-801
    973 S.W.2d 804
    Supreme Court of Arkansas
    Opinion delivered September 14, 1998

      Appellant, pro se.

      Jeff Rosenzweig, for appellee.

      Winston Bryant, Att’y Gen., by: Thomas S. Gay, Sr. Ass’t Att’y Gen. and Warren Readnour, Ass’t Att’y Gen., for Sharon Priest, Secretary of State.
   Per Curiam.

On September 3, 1998, John Parker Heathscott filed his petition for writ of mandamus seeking to stay the effect of a decision by the Pulaski County Circuit Court in an underlying case on appeal to this court, together with a motion to expedite consideration of the petition for writ of mandamus.

As the underlying case has been affirmed by a decision entered this day, the petitions for a writ of mandamus and for expedited consideration on the writ of mandamus are now moot.


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

text:
    Antonio AYERS v. STATE of Arkansas
    CR 97-368
    975 S.W.2d 88
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      McCullough Law Firm, by: R.S. McCullough and Gail Anderson, for appellant.

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

The appellant, Antonio Ayers, was convicted of capital murder and theft of property in excess of $2,500.00, for the February 25, 1995, murder of William Hall and subsequent taking of Hall’s vehicle. Mr. Ayers was sentenced to life imprisonment without parole on the charge of capital murder and twenty years in the Arkansas Department of Correction on the charge of theft of property. Mr. Ayers asserts five points on appeal. First, Ayers contends that the trial court erred by admitting Wayne Eatmon’s testimony describing what he saw and heard while observing the homicide with which Ayers was charged. Second, Ayers contends that the trial court erred by allowing, during the trial, a reference to “possible blood.” Third, Ayers contends that the trial court erred by not granting his motion to dismiss the charge of theft of property, contending that the State failed to offer sufficient proof of value. Fourth, Ayers argues that the trial court violated his Fourth, Sixth, and Fourteenth Amendment rights by refusing to allow him to call the deputy prosecutor as a witness. Fifth, Ayers asserts that the trial judge erred by not recusing in this matter. Finding no merit in appellant’s arguments, we affirm his conviction and sentence.

Sometime between 12:00 midnight, February 24, 1995, and 1:00 a.m., February 25, 1995, in the parking lot of the Whisperwood Apartments on Baseline Road in Little Rock, appellant Antonio Ayers and William Hall were involved in an argument. As the argument intensified, Ayers drew a gun and shot Hall once in the chest and once in the back, as Hall tried to run away. Hall continued running from Ayers, but Ayers caught up with Hall and began kicking him and beating him until Hall was left lying on the parking lot. Ayers then left but returned in Hall’s vehicle and drove over Hall’s body. Ayers then fled the scene in Hall’s vehicle, leaving Hall for dead.

Prior to trial, appellant moved that the trial judge recuse in the case. This request was denied and was never renewed again. Also prior to trial, appellant filed a motion in limine to suppress the testimony of Wayne Eatmon, a witness who would testify that the night of the murder, while he was present at Whisperwood Apartments, he heard someone make the statement, “No, Antonio, don’t.” He could not, however, identify whose voice it was. As the basis of appellant’s objection was relevance under Rule 403, the judge withheld ruling on this motion until the issue arose at trial. At the appropriate time during the trial, appellant again objected to Eatmon’s testimony on the basis of relevance. The trial court overruled the objection and allowed the State to present the testimony.

During the trial, appellant objected to testimony from Annette Tracy, a crime-scene specialist with the Crime Scene Search Unit of the Little Rock Police Department, concerning “possible blood” found on the underneath side of the victim’s vehicle. The trial court overruled appellant’s objection and allowed the State to present the testimony. Also during the trial, appellant requested to call John Johnson, a deputy prosecuting attorney prosecuting this case, as a witness. The trial court denied that request.

Finally, at the close of the case, appellant moved to dismiss the charge of theft of property, contending that the State had offered no proof of value. The trial court denied the motion. From these findings and appellant’s convictions, comes the instant appeal.

I. Admission of Testimony

A. Testimony of Wayne Eatmon

Appellant claims that the trial court erred by admitting testimony by eyewitness Wayne Eatmon that he heard someone say, “No, Antonio, don’t,” just before the victim was shot and killed. Antonio is appellant’s first name. Appellant asserts that the admission of this testimony was improper because the speaker’s voice was not identified or authenticated under Arkansas Rule of Evidence 901. Appellant, however, never objected in the trial court on the basis of Rule 901.

At a pretrial hearing, the trial court considered appellant’s motion in limine to exclude Eatmon’s testimony. In response to a question by the court as to the nature of his objection, appellant’s attorney stated, “Relevance, and unduly prejudicial, all under [Arkansas Rule of Evidence] 403.” Because the basis of the objection was relevance under Rule 403, the judge withheld ruling on the motion until the issue arose at trial.

Before Eatmon took the stand at trial, his testimony was proffered at a hearing outside the presence of the jury. In the proffer, Eatmon testified that he lived at the apartment complex where the shooting occurred. He was awakened by an altercation taking place in the parking lot. He looked out of his window and saw two men fighting. He could tell that one of the men was black, but could not determine the race of the other man, due to the lighting. Eatmon testified that he saw the black man pull something out of his pocket and point it at the other man. Eatmon heard someone say, “No, Antonio, don’t.” Next, he saw three “flashes” coming from the extended arm of the black man and heard three “pops.”

Appellant again objected to Eatmon testifying at trial on the basis that his testimony would be unduly prejudicial, misleading, and confusing to the jury under Arkansas Rule of Evidence 403. The court overruled appellant’s objection and ruled that Eatmon could testify. At no time did appellant ever make a specific objection based on Arkansas Rule of Evidence 901 or mention lack of foundation or authentication.

We have stated on numerous occasions that we will not consider an argument raised for the first time on appeal. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

Even if Rule 901 were to apply to this situation, appellant never objected on the basis of Rule 901 below. His objection was made solely on the basis of relevancy under Rule 403. His entire argument on appeal, however, is based on Rule 901. Because he has changed the basis of his objection on appeal, this Court will not consider his argument on this point.

B. Testimony regarding “possible blood”

At trial, the State presented evidence showing that after appellant shot the victim, William Hall, appellant got into Hall’s vehicle and drove over Hall. It is important to note that appellant does not challenge the sufficiency of the State’s evidence on appeal. During the State’s direct examination of Annette Tracy, a crime-scene specialist with the Little Rock Police Department, the deputy prosecutor asked Tracy to identify State’s Exhibit 25. Tracy described the exhibit as a photograph of the underside of Hall’s vehicle with “what appears to be possible blood” on the oil pan. The State then moved to admit the photograph.

Appellant objected to the admission of the exhibit, claiming that it was not relevant and was unduly prejudicial because Tracy had described only “possible blood.” The deputy prosecutor stated that subsequent evidence would show that samples collected from the underside of the car were identified as human blood of the victim’s blood type. On that basis, the trial court admitted the photograph.

Subsequently at trial, Scott Sherill, a forensic serologist with the State Crime Lab, testified that the substance shown in State’s Exhibit 25 was human blood but that he was not able to determine the blood type. Appellant then moved for a mistrial on the basis that the State had presented no evidence connecting the blood found underneath the car to the victim. The judge denied that motion, and appellant then moved to have the evidence “unadmitted.” The judge also denied that request, along with a request to admonish the jury to ignore the evidence.

Appellant relies on Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), to support his contention that the reference to “possible blood” requires reversal because the blood found underneath Hall’s car was not conclusively proven to be Hall’s own blood. Appellant mischaracterizes this Court’s ruling in Brenk. The Brenk case confronted the issue of whether evidence of luminol testing should be allowed in light of the fact that luminol does not distinguish between certain metals, vegetable matter, human blood, or animal blood. This Court held that evidence about the use of luminol would not be admissible unless additional tests showed that the substance tested was human blood related to the alleged crime. Brenk clearly does not apply to the facts of the instant case because luminol was not used and because serological testing showed that the substance found underneath Hall’s car was, in fact, human blood.

Appellant also relies on the case of Palmer v. State, 315 Ark. 696, 870 S.W.2d 385 (1994). Similarly, appellant’s reliance on Palmer is misplaced because it also refers to the use of luminol evidence at trial. Furthermore, there was no evidence in that case to show that the victim had ever even been in the bedroom of a house where the substance was detected by the use of luminol. Still, as in the present case, Sherill was able to identify human blood, but not blood type. The fatal flaw in Palmer was not the inability to establish the blood type but rather the lack of proof that the victim had even been at the location where the blood was found.

Again, in the instant case, the State presented evidence that appellant drove over Hall in Hall’s vehicle after shooting him; this is evidence which appellant does not challenge on appeal. Therefore, unlike Palmer, the State proved that Hall had, in fact, been underneath the car, where the blood was found, at a time when he was bleeding profusely from newly inflicted gunshot wounds. In short, the State presented very convincing circumstantial evidence connecting the blood found underneath the victim’s vehicle with this crime.

A trial court’s evidentiary ruling will not be reversed absent an abuse of discretion. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997). Relevant evidence means any evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Id. at 62. The evidence at issue was relevant to establish that appellant had driven over a wounded, bleeding man whom he had just shot.

Appellant further relies on the case of Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993), which discusses the use of “novel scientific evidence.” Appellant never claimed in the court below that the tests performed by Sherill were “novel.” In fact, the tests appellant now complains of have been in existence for many years. They are a routine part of criminal investigations and are frequently admitted by our courts. See Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992); McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992); Linder v. State, 273 Ark. 470, 620 S.W.2d 944 (1981). In each of these cases, the evidence of blood identity, i.e. animal or human and blood typing, was introduced without question concerning its novelty or reliability. Further, SherilTs testimony that the substance was human blood rendered moot any problem that may have existed with Tracy’s reference to “possible blood” being depicted in State’s Exhibit 25. Indeed, the substance was proven to be human blood; therefore, any prejudice was negated when Sherill identified the substance as human blood.

II. Insufficiency of the evidence with regard to the theft-of-property charge

In addition to capital murder, appellant was also charged with and convicted of theft of property valued at over $2,500, pursuant to Ark. Code Ann. § 5-36-103 (b)(1) (A) (Repl. 1997), with respect to his taking of the victim’s vehicle after shooting the victim. Appellant preserved this issue by making specific motions regarding proof of value at both the close of the State’s case-in-chief and at the close of all the evidence.

Appellant raises two points in regard to the charge of theft of property. First, he contends that the State failed to present sufficient proof of the value of the victim’s vehicle, and that therefore the trial court erred by not granting appellant’s motion for a directed verdict to dismiss that charge. Second, appellant claims that there was no evidence showing that he knowingly took Hall’s car with the purpose of depriving the owner of its use.

Appellant never challenged the evidence on the second basis in the court below. His sole claim for dismissal of the theft charge at trial was insufficient proof of value. Where an appellant argues on appeal grounds for a directed verdict in addition to the grounds he raised below, the appellate court limits its review to those grounds that were presented to the trial court. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996). This Court will, therefore, not address the second portion of appellant’s argument on this point.

In regard to the issue of the vehicle’s value, appellant begins his argument by suggesting that the evidence of value is insufficient because the State did not call the car’s owner to testify. A directed verdict is a challenge to the sufficiency of the evidence. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 738 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Value is defined in relevant part at Ark. Code Ann. § 5-36-101(11)(A)(i) (Repl. 1997), as “[t]he market value of the property or services at the time and place of the offense. ...” While testimony by the owner as to the property’s value is certainly helpful, it is neither conclusive nor required. Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989). Moreover, in the case at bar, the owner of the vehicle is dead. The preferred method of establishing value is by expert testimony, not by testimony from the owner. Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990). Value, however, may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement. Id. at 529. The purchase price paid by the owner is admissible as a factor for the jury to consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value. Id. Thus, when the circumstances present substantial evidence indicating the value of property, direct proof of value is not required. Stewart v. State, 302 Ark. 35, 786 S.W.2d 827 (1990).

At trial, the State introduced, without objection, State’s Exhibit 51, which consisted of certified documents pertaining to the victim’s vehicle from the Office of Motor Vehicles of the Department of Finance and Administration. Among those documents was an invoice from Prestige Toyota-Hyundai, showing that Hall had purchased the 1994 Hyundai Elantra GLS new on January 31, 1994, for a total price of $19,390.20. The date of the offenses at issue in this case occurred just over one year later, on February 25, 1995. The State also introduced a number of photographs depicting the car following the murder and theft. Those photographs showed the vehicle to be in good condition and without any obvious defects or damage. This would undoubtedly constitute substantial evidence from which the jury could reasonably conclude that the depreciation had not been so great as to reduce the car’s value from over $19,000 to under $2,500 in one year’s time. The jurors are allowed to draw upon their common knowledge and experience in reaching a verdict from the facts proved. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994).

Moreover, in Stewart v. State, 302 Ark. 35, 786 S.W.2d 827 (1990), this Court found the evidence of value sufficient where the car had been purchased three years earlier, evidence of the purchase price was presented, and a photograph of the car showing it to be in excellent condition was admitted. The instant case presents even further compelling facts supporting the sufficiency of the evidence.

Appellant relies on the case of Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990), which he interprets as requiring verbal testimony on the issue of value, as opposed to documentary and photographic evidence. The Brooks case was a Rule 37 case, alleging ineffective assistance of counsel. Brooks claimed that his attorney was ineffective for failing to make a hearsay objection when the only evidence of value was the testimony of department store security guards who testified to the price that appeared on the price tags of stolen merchandise. This Court granted the Rule 37 petition in that case, holding that the price shown on the price tags was hearsay. In so holding, the Court stated that “[i]t is necessary in a case like this to have someone testify who has actual knowledge of the property’s fair market value.” Id. at 191 (emphasis added).

The case at bar, however, is far distinguishable from Brooks. The problem in Brooks was that the only evidence of value was hearsay. No hearsay objection was made in this case to the certified documents from the Office of Motor Vehicles; in fact, they were excepted from the hearsay rule as public records. Ark. R. Evid. 803(8). The nature of the evidence that could be presented in the two cases is very different. In Brooks, the testimony of someone having direct knowledge of the value of the merchandise was required; in the instant case, the introduction of certified copies of documents from a government agency met that requirement.

Even if this Court concluded that the evidence of value was insufficient, that holding would not affect appellant’s conviction for capital murder based upon premeditation and deliberation; it would simply require that the theft charge be reduced to a misdemeanor rather than to be dismissed. Nonetheless, the State has presented substantial evidence of the vehicle’s value in order to allow the trial court to submit the issue to the jury. The trial court did not err by denying appellant’s motion to dismiss the charge of theft of property.

III. Denial of request to call deputy prosecutor as witness

During the trial of this matter, appellant called Robert Daniels as an alibi witness. Daniels testified on direct examination that he was playing cards and dominoes with appellant at the time the victim was murdered. On cross-examination, Daniels admitted that he never informed the police that he had been with appellant that evening, even after he learned appellant had been charged with these crimes. The following exchange then occurred between the deputy prosecuting attorney and Daniels:

Deputy Prosecutor: All right. And his mother’s name is Rowena Hampton? Is that right?
Mr. Daniels: Yes, sir, it is.
Deputy Prosecutor: Is she the same lady that was in the witness room telling you not to talk to me before you testified?
Mr. Daniels: Yes, sir, she was.
Deputy Prosecutor: And you refused to talk to me before you testified?
Mr. Daniels: I didn’t refuse. I just didn’t have anything to say.
Deputy Prosecutor: Did I ask you to talk? Did I request that you talk with me about your testimony?
Mr. Daniels: No.

At this point, appellant’s attorney objected to the relevancy of this testimony and claimed that it was argumentative. Counsel also asserted that the deputy prosecutor was “interjecting himself into the case.” Counsel stated that the deputy prosecutor should have informed the court and defense counsel if Daniels had refused to talk to him. The trial judge did not rule on appellant’s objection. The following exchange then occurred as cross-examination continued:

Deputy Prosecutor: Mr. Daniels, I requested that you speak with me about your testimony, and you refused to talk with me. Is that right?
Mr. Daniels: Under the advice of the family, the attorney, and everything, I was told not to say anything.
Deputy Prosecutor: All right.
Mr. Daniels: I mean, nobody else said anything. I didn’t say anything.

Defense counsel then informed the court that all he had told Daniels was that he did not have to be harassed by the prosecutor. The judge told counsel that he could address the matter on redirect.

On redirect, Daniels testified that all the defense attorney had told him was that no one could harass him while he was “down there.” Daniels further asserted that the deputy prosecutor never explained his reasons for wanting to talk to Daniels, and that the deputy prosecutor had incorrectly called him “Bill Lewis.”

At the conclusion of redirect examination, defense counsel called the deputy prosecutor as a witness. The court summoned counsel to the bench, and the defense attorney offered this explanation for calling the deputy prosecutor:

He says that the first time he even makes it to try to inquire. It was sent to him in a letter back in May. He knew who this guy was. It has his address on it. If he wanted to try to talk to him, he could have used an office subpoena or something else.

After excusing the jury from the courtroom, the trial judge admonished defense counsel to refrain from calling the deputy prosecutor as a witness in front of the jury. Defense counsel contended that the deputy prosecutor had acted in bad faith by implying that defense counsel had prevented Daniels from talking to the deputy prosecutor. Counsel requested that an “instanter” subpoena be issued for the deputy prosecutor, and claimed he would question the deputy prosecutor as to whether he had received the letter containing Daniels’s name, lest the jury believe the defense had hidden Daniels from the prosecution. Appellant also requested a mistrial be granted. Both the motion for a subpoena and the motion for a mistrial were denied by the trial court.

In appellant’s present argument, he has cited no authority that holds that the specific actions by the deputy prosecutor in this case constitute prosecutorial misconduct or entitle him to any form of relief. Appellant merely argues and makes fleeting references to various portions of the United States Constitution. Appellant’s failure to cite authority or make a convincing argument is sufficient reason for affirmance of the trial court’s ruling on this point. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). It is certainly not apparent without further research that appellant’s argument is well-taken. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996). In sum, appellant has failed to demonstrate that the trial court erred by denying his request to call the deputy prosecutor as a defense witness in this case.

IV. Failure by trial judge to recuse

At a hearing held prior to the trial of this matter, appellant asserted that he had learned that the trial judge was a friend of a man named Roland Smith. Smith, according to appellant’s attorney, owned a pawnshop that appellant had been charged with burglarizing in another case, unrelated to the present case, and the judge had recused from presiding over that case.

The trial judge denied that he knew anyone by the name of Roland Smith but stated that he probably recused from a case involving a pawnshop owner by the name of Troy Braswell, whom the judge did know. Based upon defense counsel’s statement that there was no relationship between the two cases, the judge declined to recuse from this case and no further request or discussion of the judge’s recusal was ever mentioned throughout the trial.

Recusal was not required in this case. The Arkansas Constitution, Article 7, § 20, as well as the Arkansas Code of Judicial Conduct, Canon 3(c), provide that judges must refrain from presiding over cases in which they might be interested and must avoid all appearances of bias. Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993). However, a judge is not required to recuse because of his or her life experiences. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). In addition, there exists a presumption of impartiality. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). Even if the judge knew someone connected with another criminal case involving appellant, that alone would not require him to recuse. The decision to recuse is within the trial court’s discretion, and it will not be reversed absent abuse. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. Id. at 244; Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994).

We should first consider this issue by determining if there is any evidence of bias or prejudice in the record. In Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996), we stated that the party seeking the disqualification bears the burden of proving bias or prejudice on the part of the trial court. See also Keene v. State, 56 Ark. App. 42, 938 S.W.2d 859 (1997); Gentry v. State, 47 Ark. App. 117, 886 S.W.2d 885 (1994). Applying that rule, appellant has made no showing here that he was treated unfairly during trial. He has alleged no specific instances of bias or shown in what way he was prejudiced by the trial judge’s failure to recuse.

Appellant never established that Braswell owned the pawnshop that appellant had allegedly burglarized. Defense counsel specifically stated that Roland Smith owned that store, and the judge did not know Smith. While the judge recalled having recused in a case involving a pawnshop owned by Troy Braswell, it was never conclusively stated that that particular recusal had occurred in one of the appellant’s cases. Appellant has simply failed to establish any connection between this case and a case involving Braswell’s pawnshop and has further failed to establish any bias or prejudice on the part of the trial court.

V. Rule 4-3 (h) compliance

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.

Affirmed.


author: Tom Glaze, Justice.

text:
    Derek Michael CHASE v. STATE of Arkansas
    CR 97-739
    973 S.W.2d 791
    Supreme Court of Arkansas
    Opinion delivered September 17, 1998

      Charles Duell, for appellant.

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

Appellant Derek Michael Chase was found guilty of capital murder for the killing of his brother, Greg Dean Chase. Derek was sentenced to life imprisonment without the possibility of parole. He appeals his conviction, raising six points for reversal.

Derek first argues that the trial court erred in denying his motion for directed verdict. In particular, he submits that, under Arkansas law, a person must be shown to have caused the death of another person, and the person must have had a premeditated and deliberate purpose when causing the death. See Ark. Code Ann. § 5-10-104(a)(4) (Repl. 1997). Derek points out that there was no eyewitness to how the struggle between him and his brother commenced, that only his testimony was given on this point at the trial, and that it showed that Greg had initiated the fight and Derek was defending himself against Greg’s attack.

We have consistently recognized that a criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). It is also settled law that premeditation and deliberation may be inferred from the type and character of the weapon used, the manner in which the weapon was used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused. Id. In viewing the evidence in the light most favorable to the State, Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995), we have no difficulty in reaching the conclusion that there was substantial evidence that, when stabbing and beating Greg, Derek did so with premeditation and deliberation.

The State’s proof showed that Derek and Greg lived with their mother, Joy Tackel. Early in the morning of July 26, 1995, Joy awoke to the sound of Greg screaming. She arose and located Greg and Derek in the bathroom where she observed Greg on the floor and Derek standing over him with a plunger in his hand. Joy fled the home, and went to a nearby store, where she called the police and reported the incident. Joy and some of the store employees returned to the home, where they found Derek at the front door. He appeared to have just showered and washed his hair. Greg was still on the bathroom floor surrounded by blood, and a broken knife was found near his body. Greg was flown to a medical center and pronounced dead at 8:45 a.m. Police officers investigated the crime scene the same morning, and, among other things, found Derek’s bloody cut-off shorts, a broken white-handle knife and a bread knife, a bloody shower curtain, and Derek’s packed suitcase.

The medical examiner later determined and testified at trial that Greg had died from the stab wounds that had been inflicted by Derek, and that Greg had suffered twenty-one sharp-object wounds and fifty-eight blunt object blows to the body. Greg suffered deep wounds to his left chest area which included a two-inch tear in his heart. Greg also sustained defense wounds consistent with a person holding up his arms to ward off an attacker. In sum, the evidence showing the type, number, and distribution of the wounds was sufficient for a jury to conclude Derek was the aggressor and had acted with a premeditated and deliberated purpose.

For his second argument, Derek contends that since the death penalty was waived when he was charged with capital murder, he was precluded by law from having a bifurcated sentence hearing like that which is available when a person is charged with first-degree murder or other felonies. Derek asserts this failure to afford him a sentencing trial denied him equal protection under the law.

Citing McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997) , the State counters that Derek failed to preserve this equal-protection argument below, and is barred from doing so now on appeal. We agree. At trial, Derek offered a general motion requesting that the court declare Arkansas’s capital-murder statute unconstitutional because it overlaps with the state’s first-degree murder statute. By making such a general motion, he failed to present the equal-protection argument he now enunciates on appeal, and we are unable to consider it for the first time on appeal. But cf. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998); Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984); Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981) (where court considered and rejected similar equal-protection arguments related to Arkansas’s capital and first-degree murder statutes).

We now consider Derek’s third point for reversal. After he was arrested on July 26, 1995, Derek was taken to the police station where he was given his Miranda rights and interviewed. Derek urges that during the interview he said that he wanted to talk to an attorney, but the officers failed to stop him from speaking further until after he made inculpatory statements. Relying on Hughes v. State, 289 Ark. 522, 712 S.W.2d 308 (1986), Derek argues that the trial court erred in refusing to exclude his fourteen-minute taped interview from being introduced into evidence.

To understand this issue, we set out the relevant portion of Derek’s interview below:

Q: Before we started, ah, the tape and everything we read you a statement of your rights. Is that right?
A: Yes, you give me my rights.
Q: Okay. And you understand your rights?
A: Not totally. I don’t understand them totally.
Q: Okay. What do you mean by totally?
A: But I’m willing to cooperate with you.
Q: What part do you not understand? Do you want me to explain it to you again? Mike will . . .
A: All I’m asking you for is just let me collect my thoughts and just let me talk to an attorney cause I’ve done admitted that me and Greg got in a scuffle, he is wanted by y’all for felonies and that he’s been in prison. I have never been in prison. I was a correctional officer and I’m telling you the truth, I was, I have it in my wallet where my badge was. And I searched people most of the time and I went to school there at the Department of Corrections. I ain’t the best person but I do love my sons. I need to talk to an attorney to tell him a few things and I’m gonna tell you the total truth. I was in and out of foster homes when I was a child, there’s no consideration for that, I know. But I’ve worked hard all my life and I want to pay for my mistake. I have never hurt nobody before. This is the whole truth. I have to admit Greg had some problems and I do too. But I’ve done my best, I’ve worked and I’ve worked at lots of jobs, not just one job but a lot of jobs in my life. And this could be checked I’m sure. The best job I think I ever had was for Beaver Lake Concrete. And my mother wasn’t the best mother in the world either and I ain’t been the best son neither. I’ve tried my best and I’ve stayed away from — I was married one time just for a litde while to Mary Lee. I don’t even remember what her middle name was, I was young, I’ve been in Rogers. I lived at Rogers. I worked at Garrett, Tyson’s, and I worked at Down’s Furniture and Roscal Price, he was a restaurant, this is when I was a child here. I’ve been here for years. I lived in Rogers there. Then I went in the service, I was a slush, I was a drunk. I do respect the law, but I do fear the law because I’ll tell you, I have a lot of respect for some of the law men that’s been here when I was a kid because they was decent people and they did what was right. And they are, y’all are decent people.
Officer Response: We try to be.
Derek Continues: And you know you are. I’ve done it. But it wasn’t all my fault either. But I take the blame for it. I need to see, I’d like to see an attorney and I’d like to tell him the whole story before I say very much more. But I’m willing to go to prison for what I’ve done. But, you know, I’ve never hurt anybody before, you know, I mean, what you call hurt anybody. And y’all have, I’ve been scared before. You know what I’m saying? But if I don’t stand up now, I ain’t never gonna stand up. You know what I mean? You know, I love my son Michael, y’all know who he is. I love that child more than you would ever believe. Now my daddy was worthless and maw, I guess my mother, well, I can’t say she was totally, because I was in foster homes a lot. You know? All of us was, all of my brothers and sisters, I have a lot of regrets, believe me, and it hurts. But at least let me talk to an attorney before I say very much if you would please. But I’m willing to spend my time in jail and take my punishment just like any one else. But I never, I want to say this, I never planned this. And me not ever hurting, I’d have never done it, I mean, I’ve admitted it to you. Haven’t I.
Officer Response: Yeah.
Derek Continues: At least let me have a chance to talk to an attorney, please. For just a little while. If I have to spend, I don’t care how long it is, I’ll take my punishment. I’ll take my punishment. Believe me, I’ll take it. And I’ll take all of it if I have to.
Officer Concludes: That will end this interview, same date, the time is 3:34 P.M.

To decide this point on appeal, we must determine whether after Derek was informed of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966), and had invoked his right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981), Derek waived his right. We conclude that he did.

In Edwards, the Supreme Court held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police, (emphasis added). See also, LaFave and Israel, Criminal Procedure, § 6.9(g) (1992). The definition of interrogation can extend only to words or actions on the part of the police officers that they should have known were reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 302 (1980). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Supreme Court stated that the admissibility of a confession given by a defendant who earlier invoked his Miranda right to counsel is to be determined by a two-step analysis. First, it must be asked whether the defendant “initiated” further conversation. If it is found the defendant “initiated” further conversation, it must then be inquired whether the defendant waived his right to counsel, that is whether the purported waiver is knowing and intelligent under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialog with the authorities. Id.; see also Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982).

In the present case, Derek was read his Miranda rights and he signed a rights form before officers commenced the taped interview. However, before the officers were able to question Derek about his knowledge about and participation in his brother’s death, Derek indicated he did not totally understand his rights. When the officers attempted to clarify his rights, Derek, on his own initiative, interrupted and proceeded to relate a prolonged monologue during which the officers never asked a single question. In that monologue, he stated five times that he wanted to speak to an attorney, but throughout his speech, he also volunteered incriminating statements indicating he was involved in his brother’s killing. In reviewing these circumstances, it can not be fairly concluded that Derek was subjected to police questions, words, or actions that would reasonably be likely or intended to elicit incriminating responses from Derek. Prior to Derek’s monologue, all the officers had inquired of Derek was his address and directions thereto. In short, we hold that, under the totality of the circumstances, Derek — not the police — initiated and volunteered his incriminating statements to the authorities. Furthermore, Derek knowingly and intelligently waived his right to counsel as is prescribed under Edwards. Therefore, we uphold the trial court’s decision overruling Derek’s motion to suppress.

Derek’s fourth argument challenges the trial court’s ruling that admitted into evidence State exhibits numbers 51, 52, and 53. These exhibits are pictures that were taken of the victim at the hospital shortly after his death. Derek claims the pictures showed prejudicial blood and gore. He states that the autopsy photographs could have been used to show the same wounds on the victim without the blood and gore.

It is well settled that the admission and relevancy of photographs is a matter within the sound discretion of the trial court. Carmargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997). We have further held that even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Id. Here, the State used the three photographs to show the state of the body after the attack and the number of wounds, including one to the victim’s back and another defense wound and slash cut to his wrist.

As discussed earlier, the State was required to prove that Derek had the premeditated and deliberated purpose of causing Greg’s death, and we have held the nature and extent of a victim’s wounds is relevant to a showing of intent, which may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wounds. See Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). The State’s three photographs presented strong probative evidence in proving the elements of the capital-murder crime with which Derek was charged and were particularly helpful to show the manner in which Derek used a knife when inflicting blows so violent that they opened Greg’s chest cavity and caused substantial gashes to areas on his arms and wrist. We cannot say the trial court abused its discretion when allowing these exhibits into evidence.

Derek next argues the trial court erred in allowing the State to ask leading questions of its witness Joy Tackel, the mother of Derek and Greg. He generally concludes that, because of the leading questions, Tackel’s testimony was furnished by the prosecution rather than herself and this prejudiced Derek’s defense. Derek cites no legal authority to support his argument. We conclude Derek’s argument is meritless.

During Tackel’s direct examination by the State, Tackel was having trouble relating the events of what she saw and heard on the morning of Greg’s murder. The court reporter interrupted, telling Tackel she could not understand her. The trial judge sympathetically told Tackel that he understood how difficult it must be for her, but instructed her to start again from an earlier point in her testimony and backtrack. The prosecutor then, in an effort to help Tackel, asked her to go slower so the court reporter could understand her. The prosecutor posed some leading questions such as, “You woke up and you heard screaming?” Derek’s counsel objected on the grounds of improper leading questions, but the trial judge overruled the objection, explaining that the judge would permit such questions during this particular period of Tackel’s testimony. Eventually, Derek objected again, and at this point, the judge told the prosecutor, “Go back to your regular form [of questioning] at this point.” The prosecutor did.

Under Rule 611(c) (1998) of the Arkansas Rules of Evidence, leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. In other words, the rule does not completely bar leading questions on direct, but gives the trial court discretion to permit leading questions to develop a witness’s testimony. This court has held that such rulings on evidence by the trial court will not be reversed absent a manifest abuse of its discretion. Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). As provided in 611(a), the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. In this instance, the court allowed leading questions of Tackel in order to make her presentation effective, for if the court reporter and the judge could not hear her, the trial would not have been effective for the ascertainment of truth, and the jury may well have been confused or misled.

In his final argument on appeal, Derek alleges that the trial court erred in allowing improper impeachment by the State during the cross-examination of Derek. Derek states that the prosecution asked him about an unproven arrest which involved an alleged domestic battery in Wentsville, Missouri, against his family. He cites this question as improper under Arkansas Rule of Evidence 404(a), because the arrest was an unproven case against Derek and “it served only to ‘dirty’ him in front of the jury. . . .” Derek insists that the inference was so prejudicial to his case that his conviction should be reversed and the case remanded for a new trial. The State, however, maintains that Derek did not object to this question at trial, and thus, his argument is not preserved for appellate review.

Our review of the abstract does not reveal any objection by Derek to this line of questioning by the State. At no point did Derek’s counsel interrupt the prosecutor to make any type of remark regarding the questioning about Derek’s arrest in Missouri for assault in the third degree. The court will not address arguments raised for the first time. See Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).

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

Affirmed.