author: ROBERT H. Dudley, Justice. TOM GLAZE, Justice,

text:
    Pam TORTORICH v. Tony TORTORICH
    95-332
    919 S.W.2d 213
    Supreme Court of Arkansas
    Opinion delivered April 15, 1996
    [Petition for rehearing denied June 3, 1996.]

      Dodds, Kidd, Ryan & Moore, by: Greg Alagood, for appellant.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Sam Hilburn and Dorcy Kyle Corbin, for appellee.

      Glaze, J., would grant. Corbin and Brown, JJ., not participating.

   ROBERT H. Dudley, Justice.

The question in this case is whether two counties can concurrently have venue of a divorce action. The parties, Pam and Tony Tortorich, were married in 1979 and have three children. They separated on September 17, 1992, and, at that time, both were residents of Pulaski County. Pam Tortorich filed an action for a divorce from bed and board, or a limited divorce, in the Chancery Court of Pulaski County. Pulaski County was the county of proper venue. See Ark. Code Ann. § 9-12-303 (Repl. 1993). Tony Tortorich filed a counterclaim for an absolute divorce. On December 15, 1993, the Pulaski County Chancery Court awarded Pam a divorce from bed and board, divided the marital property, and awarded alimony, child support, witness fees, and attorney’s fees. The chancery court denied and dismissed Tony’s counterclaim for absolute divorce. The chancery court retained jurisdiction for further orders. Tony appealed and argued that the chancellor erred in dividing the marital property and setting alimony, child support, and fees. He did not appeal from the dismissal of his counterclaim for absolute divorce. On June 28, 1995, the court of appeals affirmed in part and reversed and remanded in part. It reversed a major part of the valuation of marital property which, in turn, substantially reduced the amount Pam would receive, and, as a consequence, it remanded for the Pulaski County Chancery Court to reconsider the amount of alimony Pam should receive. Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995). The court of appeals also held that the award of the marital home to appellant was not ripe for review. Id. at 123, 902 S.W.2d at 252. The mandate from the court of appeals was issued on July 18, 1995.

Meanwhile, on March 19, 1994, Tony moved to Saline County. Two days later, on March 21, 1994, which was a year and four months before the court of appeals mandate was issued, Tony filed a complaint for absolute divorce in the Chancery Court of Saline County. The grounds, eighteen months separation, had not been available to him in the earlier action. A week later, on March 28, Pam filed a complaint for absolute divorce in Pulaski County Chancery Court.

On April 8, 1994, Pam filed a motion to dismiss the Saline County action because of pendency of the Pulaski County action between the same parties arising out of the same occurrence, and want of proper venue, pursuant to Ark. Code Ann. § 9-12-330(c). The Saline County Chancery Court denied Pam’s motion to dismiss, heard the case on August 19, 1994, granted Tony an absolute divorce, ordered Tony to pay child support in an amount different from the support set by the Pulaski County court, ordered the marital home sold and the proceeds divided, and denied appellant alimony. The Saline County court based its decision to deny alimony, in part, upon the assets awarded to appellant under the limited divorce decree, and these assets were subsequently reduced by the court of appeals.

As a result of the Saline County Chancery Court’s rulings, there are now two conflicting judgments. On the one hand, the court of appeals has remanded the case between these parties to the Pulaski County Chancery Court and ordered the Pulaski County chancellor to consider increasing the amount of alimony because the value of the marital property has been reduced, affirmed the amount of child support, and held that the award of the marital home is not yet ripe for review. On the other hand, the Saline County Chancery Court has ruled that Tony does not have to pay alimony and has ordered the marital home sold and the proceeds divided.

Pam appeals and argues that the Saline County chancellor erred in denying her motion to dismiss. The assignment of error is well taken for two reasons.

Rule 12(b)(8) of the Arkansas Rules of Civil Procedure provides that a cause may be dismissed because of “pendency of another action between the same parties arising out of the same transaction or occurrence.” Id. When Tony filed his complaint in Saline County, there was pending in the court of appeals an appeal from Pulaski County, initiated by Tony, concerning not only the “same transaction or occurrence” but three issues that were identical. These issues involved alimony, child support, and disposition of the marital home.

We have held “[i]n case of concurrent jurisdiction in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other.” Doss v. Taylor, 244 Ark. 252, 257, 424 S.W.2d 541, 544-45 (1968). When a case is brought in a court of competent jurisdiction, the authority and control of that court over the case continues until the matter is disposed of in the appellate court. Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922); McCarther v. Green, 49 Ark. App. 42, 895 S.W.2d 562 (1995); Cotton v. Cotton, 3 Ark. App. 158, 623 S.W.2d 540 (1981); see also Jones v. Garratt, 199 Ark. 737, 135 S.W.2d 859 (1940).

In Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934), the appellant brought a suit to foreclose on property in chancery court, while at the same time bringing an action in replevin in circuit court; two separate “causes of action” on the same subject matter. Id. at 119, 70 S.W.2d at 564. We held that the chancery court, being the first to acquire jurisdiction, had jurisdiction to bring adequate and complete relief, and the appellant could not bring an action for replevin in circuit court. Our reasoning was as follows:

[“]This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.” 15 C.J. 1134.
Bailey on Jurisdiction, page 61, states: “In the distribution of powers among courts it frequently happens that jurisdiction of the same subject-matter is given to different courts. Conflict and confusion would inevitably result unless some rule was adopted to prevent or avoid it. Therefore it has been wisely and uniformly determined that whichever court, of those having such jurisdiction, first obtains jurisdiction, or, as is sometimes said, possession of the cause, will retain it throughout to the exclusion of another.” The same rule is announced in “Courts and Their Jurisdiction” by Works, pages 68 and 69.

Id. at 121-22, 70 S.W.2d at 565.

This case illustrates “confusion, conflict, and collision.” It is an example of the “calamitous” result envisioned in Moore v. Price. Here, the two rulings by the two different chancellors have resulted in one order allowing alimony and one denying it, child support has been set in two different amounts, and one order gives the marital home to Pam until the youngest child reaches eighteen while the other orders the home sold and the proceeds divided.

In addition, Ark. Code Ann. § 9-12-303(c) (Repl. 1993) provides:

(c) When a spouse initiates an action against the other spouse for an absolute divorce, divorce from bed and board, or separate maintenance, then the venue for the initial action shall also be the venue for any of the three (3) named actions filed by the other spouse, regardless of the residency of the other spouse.

This statute could be interpreted in either of two ways: It could be interpreted to mean that any claim available to the other spouse must be filed in the same venue as long as the initial action is still pending, or it might mean that any claim available to the other spouse must be filed in the same venue, without regard to whether the initial action is still pending. We need not decide which interpretation we will ultimately apply because, under either interpretation, the initial action filed in Pulaski County was still pending on appeal when the second suit was filed in Saline County. Thus Pulaski County was the county of proper venue, and the Saline County court erred in refusing to dismiss the action filed in that court.

Reversed and dismissed.

Glaze, J., concurs.

CORBIN and Brown, JJ., not participating.

TOM GLAZE, Justice,

concurring. The majority court misses the opportunity to interpret Ark. Code Ann. § 9-12-303 (a) and (c) (Repl. 1993), which directly answers the issue before us and rectifies a venue problem that commonly arises in the filing of family law cases. Prior to the enactment of § 9-12-303(c), if a spouse filed an action for separate maintenance in the county in which he or she resided, the defendant spouse could later file for an absolute or limited divorce action in a different court and county so long as he had established residence in that other county. See Hill v. Rowles, 223 Ark. 115, 264 S.W.2d 638 (1954). In fact, this court has held the defendant spouse could even file such later action in a different division of the same county chancery court in which the plaintiff spouse had already filed suit. Myers v. Williams, 225 Ark. 290, 281 S.W.2d 944 (1955). In the Hill and Myers cases, this court reasoned that the defendant was not barred from seeking relief in a different court, since his or her cause of action is a new or separate action from the one initially filed. For example, in Hill, the wife filed for separate maintenance in Pulaski County and the husband subsequently brought a divorce action in Saline County. The Hill court denied the wife’s request for a writ of prohibition against the Saline County court, stating, “[A] determination, in a wife’s action for separate maintenance is not a determination that her husband has no grounds for divorce . . ..”

The problems resulting from such decisions place spouses in different courts that hear and decide the same marital custody, child support, alimony and property issues. Unfortunately, the different courts generally always render conflicting orders and decrees that leave all parties in a quandary. That, of course, is the very situation here.

In 1987, the General Assembly enacted § 9-12-303(c) to avoid problems that inherently arise when separate but related family law actions are filed by spouses in different chancery courts or divisions. That provision provides as follows:

When a spouse initiates an action against the other spouse for an absolute divorce, divorce from bed and board, or separate maintenance, then the venue for the initial action shall also be the venue for any of the three (3) named actions filed by the other spouse, regardless of the residency of the other spouse.

Under the plain language of § 9-12-303(c), once a plaintiff spouse has filed for (1) absolute divorce, (2) limited divorce or (3) separate maintenance, the defendant spouse can no longer go to a different court (division or county) to file any one of the three named marital-related actions. Instead, the defendant spouse, regardless of his or her own county residence, must file any new marital cause of action in the same action the plaintiff spouse already initiated.

In the present case, Pam Tortorich filed her limited divorce action against Tony in the Pulaski County Chancery Court. The Pulaski County Chancery Court granted a limited divorce, and while that part of the chancellor’s decision was affirmed on appeal, the court of appeals reversed the Tortorich’s case to reconsider the amount of alimony to be awarded Pam. Tony moved to Saline County and filed for absolute divorce which the Saline County Chancery Court eventually granted. Again, this case is the type situation contemplated by § 9-12-303, which requires Tony to seek his relief in the initial action filed in the Pulaski County Chancery Court, so all marital-related issues can be decided by one chancery judge. Consequently, the Saline County Chancery Court here should have transferred Tony’s action to the Pulaski County Chancery Court or, alternatively, dismissed his action.

Although I agree with the majority court that the Saline County Chancery Court has no venue over Tony’s absolute divorce action, I do so because § 9-12-303(c) clearly places his action in the Pulaski County Chancery Court. I would remand this case with directions to transfer this case to the Pulaski County Chancery Court which has jurisdiction and venue of Pam’s limited divorce action.

CORBIN and Brown, JJ., not participating.


source: Caselaw Access Project

author: DAVID Newbern, Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    James COOPER, Jr., Ulonzo Gordon, and Jeremy Moten v. STATE of Arkansas
    CR 95-1113
    919 S.W.2d 205
    Supreme Court of Arkansas
    Opinion delivered April 15, 1996
    [Appellant Gordon’s petition for rehearing denied May 13, 1996.]

      Simes & Simes, by: Alvin Simes, for appellant James Cooper, Jr.

      Donald A. Forrest, for appellant Ulonzo Gordon.

      Paul J. Teufel and Lilly Law Firm, by: Martin E. Lilly and Kimberly D. Boling, for appellant Jeremy Moten.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

      Dudley, J., not participating.

   DAVID Newbern, Justice.

James Cooper, Ulonzo Gordon, and Jeremy Moten were tried together and convicted of killing Otis Webster. Each was sentenced to life imprisonment without parole for capital murder. Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 1993). Each of them has appealed. We affirm their convictions. Mr. Cooper and Mr. Gordon have several points of appeal each, and Mr. Moten has one. After stating facts the jury could have concluded from evidence produced by the State at the trial, we will address each appellant’s points of appeal. Other facts will be stated as necessary in our discussion of each appellant’s arguments.

On December 3, 1994, Otis Webster, the victim in this case, shot James Cooper 11 times. On January 28, 1995, Jeremy Moten shot and killed Otis Webster. On the latter date Rickey Lewis, Tyrone King, and Corey Sublett were seated in a car parked in a parking lot in a place referred to by witnesses as the “project area” in West Memphis. Tony Johnson drove up in a car in which Otis Webster was a passenger. Tony Johnson and Otis Webster then stood talking with Lewis, King, and Sublett when a third car arrived carrying Cooper, Gordon, and Moten. Moten and Gordon got out and drew pistols. They told Johnson to get out of the way. Shots were fired, and Moten then chased Webster, shot him once, swore at him, and then shot him three more times as he lay on the ground. Cooper drove away with Gordon as his passenger and then picked up Moten.

I. James Cooper

a. Sufficiency of the evidence

Mr. Cooper’s defense was that he did not know a shooting would occur when he drove Gordon and Moten to the parking lot. He argues there was no evidence that he entertained any premeditation which is an element of capital murder as charged, so his motion for a directed verdict should have been granted. As the State points out in response, Cooper’s liability for the crime is as an accomplice, Ark. Code Ann. § 5-2-403 (Repl. 1993), and the evidence need only be sufficient to show he encouraged or aided in the commission of the crime. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994).

A motion for directed verdict is a challenge to the sufficiency of the evidence. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 878 S.W.2d 409 (1994). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Evans v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, and in determining whether substantial evidence exists, we review the evidence in the light most favorable to the appellee. Evans v. State, supra; Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993).

Mr. Cooper drove to the scene of the crime with two men who exited his car and drew weapons. One or both of them fired at the victim who, according to an eyewitness, was eventually killed by one of them. Cooper then fled the scene with one of the shootists and allowed the second to enter his car shordy thereafter. When the evidence tending to prove those facts is combined with the evidence that Mr. Cooper had a strong motive to injure or kill Mr. Webster we can hardly conclude the evidence is insufficient to support his conviction as an accomplice.

b. Severance

Mr. Cooper sought to have his trial severed from those of Mr. Gordon and Mr. Webster. The factors to be considered in deciding whether to grant a severance of the trial of one defendant from that of another are: (1) antagonistic defenses; (2) difficulty in segregating evidence; (3) lack of substantial evidence implicating one defendant except for the accusation of another; (4) deprivation by one defendant of another’s peremptory challenges; (5) compulsion of testimony by one defendant if another chooses to testify; (6) disparity in criminal records; and (7) stronger circumstantial evidence against one defendant than against another. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991); McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). Whether to grant the motion lies within the discretion of the Trial Court and a ruling will not be disturbed on appeal absent an abuse of that discretion. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); McDaniel v. State, supra.

Mr. Cooper argues his trial should have been severed because his defense was antagonistic to that of his codefendants, the evidence against them was stronger than against him, and the evidence could not successfully be segregated. We find no merit in those claims. As a matter of logic, there is no antagonism between Cooper’s defense that he did not know what Gordon and Moten planned to do and their self-defense claim. Antagonistic defenses arise when each defendant asserts his innocence and accuses the other of committing the crime. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990); McDaniel v. State, supra. That is not the case here. There is no reason the jury could not have believed both Cooper’s claim of lack of knowledge and the self-defense claim of Gordon and Moten had it found their witnesses credible.

As mentioned above, the evidence of Mr. Cooper’s participation as an accomplice was substantial. He has not demonstrated that, had he been tried separately, the evidence about the actions of Gordon and Moton would not have been admitted to prove Cooper’s status as an accomplice. He thus has demonstrated no prejudice in having one jury hear it all. There was no abuse of discretion.

c. Jury selection

Mr. Cooper contends the State improperly exercised a peremptory challenge of African-American venire person Sharon Dunigan. Mr. Cooper objected on the ground that the reason was racial in nature and thus a violation of his rights as explained in Batson v. Kentucky, 476 U.S. 79 (1986). When the peremptory challenge to Ms. Dunigan occurred, two African-American jurors had been seated. The State had struck three Caucasian venire members. In response to the objection, the prosecutor said Ms. Dunigan was struck because she would not look him in the eye when answering voir dire and, although she was a long-time resident of the neighborhood in which the killing occurred, she said she knew none of the persons involved.

Mr. Cooper’s argument focuses on the State’s explanation, but we need not evaluate it because the Trial Court’s ruling, with which we agree, was that no prima facie case of discrimination had been presented. When a Batson objection is raised the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing the challenge was not based on race. Only if the defendant makes a prima facie case and the State fails to give a facially neutral reason for the challenge is a court required to conduct a sensitive inquiry. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).

A prima fade case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire suggesting racial motive. Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). The standard of review for reversal of a Batson ruling is whether a court’s findings are clearly against the preponderance of the evidence. Sims v. State, supra.

The prosecution’s use of a peremptory challenge to remove the only black prospective juror may establish a prima facie case, Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); however, one peremptory strike of a minority prospective juror, with no additional facts or context in which it can be evaluated, is not sufficient. Heard v. State, supra; See Acklin v. State, 319 Ark. 363, 896 S.W.2d 423 (1995); see also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

The presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is significant, Heard v. State, supra; Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990), and we find nothing in the context of the challenge to Ms. Dunigan which would have required the State to explain or the Trial Court to have delved into the matter.

d. Suppression of Testimony

Officer Bill Durham investigated the incident in which Mr. Cooper was shot by Otis Webster. Officer Durham testified he spoke with Cooper while Cooper was in the hospital recovering from his wounds and advised him to come to the police station later to file a complaint but that Cooper had not done so.

Mr. Cooper claims that any testimony regarding the fact that he failed to sign an affidavit for an arrest warrant after the victim shot him was inadmissible. At trial he claimed that the evidence was hearsay because Detective Durham had not seen the shooting, and that the evidence was not relevant. On appeal he argues that the jury was allowed to hear speculative testimony that he did not sign the affidavit because he planned to kill the victim. He contends that was prejudicial and resulted in denial of a fair trial.

Mr. Cooper ignores the fact that the Trial Court admonished the jury that any evidence of the prior altercation would go only to the motive behind the murder and specifically admonished the jury not to consider the fact that Cooper failed to seek a warrant for Webster’s arrest. Evidence of motive behind a criminal offense is admissible. Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). Where the purpose of evidence is to disclose a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. See Sullivan v. State, 171 Ark. 768, 286 S.W. 939 (1926). Assuming, but not deciding, that evidence of failure to seek a warrant was inadmissible, we have been given no basis for holding Mr. Cooper was prejudiced by it in view of the admonishment to the jury.

e. Juror bias

To preserve for appeal an objection to an empaneled juror, a party is required to have exhausted his or her peremptory challenges and must show he or she was forced to accept a juror who should have been excused for cause. Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994). Mr. Cooper contends the Trial Court erred by seating four biased jurors. The record does not show the final composition of the jury. Although we have some doubt about whether Mr. Cooper has demonstrated that he had exhausted all his peremptory challenges before challenging the jurors in question, See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988), we will discuss the merits of the challenges for cause to the jurors.

i. Juror Hughes

Mr. Cooper contends juror Hughes should have been dismissed because he admitted he had been the victim of an armed robbery perpetrated by an African-American male. Without citation to authority, Mr. Cooper submits that the incident created bias because he is African-American. The record shows that when questioned, Mr. Hughes assured counsel for Mr. Cooper that he did not hold any grudges and would listen fairly to the defendants case. The Trial Court denied his motion to dismiss Mr. Hughes for cause.

ii. Juror Gitchell

Ms. Gitchell stated she was the Police Services Coordinator and that she coordinated crime prevention programs in West Memphis. When questioned about her ability to be an impartial juror, she stated that she thought she could be fair. Mr. Cooper’s motion to strike for cause was denied.

iii. Juror Whited

Mr. Cooper contends that Ms. Whited should have been dismissed because her husband was a police officer with the West Memphis police Department. The record discloses that Ms. Whited was struck from the panel.

iv. Juror Williams

Mr. Cooper submits that Mr. Williams was biased because he was involved in an automobile accident and the other driver was an African American. Mr. Williams stated he was not prejudiced due to the incident and could be fair and impartial. Mr. Cooper did not make an objection to the Trial Court regarding the alleged bias of Mr. Williams.

Persons comprising the venire are presumed to be unbiased and qualified to serve. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Franklin v. State, supra. The burden is on the party challenging a juror to prove actual bias, and when a juror states that he or she can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, a trial court may find the juror acceptable. Scherrer v. State, supra. There was no error with respect to challenges for cause of any of the jurors mentioned in Mr. Cooper’s argument.

II. Ulonzo Gordon

a. Sufficiency of the evidence

The evidence supporting the State’s claim that Ulonzo Gordon was an accomplice of Jeremy Moten in the killing of Otis Webster is strong. We need not repeat the references to authorities cited in segment I. of this opinion. We need only reiterate the evidence relating to Mr. Gordon.

Although he later recanted his statement that Gordon got out of Cooper’s car and drew a pistol as the firing began, Tyrone King initially testified it happened. Tony Johnson gave similar testimony which was not recanted. There was also testimony that Gordon fled the scene with Cooper. The evidence was clearly sufficient to support a finding of guilt.

b. Severance

Ulonzo Gordon joined severance motions made by Cooper and Moten at the trial. Much of his argument on appeal that his trial should have been severed was not presented to the Trial Court, so we will not consider it. We will, however, discuss his main point which is that severance should have been granted because of “antagonistic defenses” and his related argument concerning the inability at the trial to assure segregation of the evidence.

Mr. Gordon points out that Mr. Cooper wanted to keep the testimony of Officer Durham out of evidence and Mr. Moten wanted it in to support his self-defense claim. He then argues that Officer Durham’s testimony exemplified his claim that he had a defense antagonistic to Cooper or Moten. Although he states under another point in his argument that he was not claiming self defense, he does not at any point say what his defense was. We perceive the burden of Mr. Gordon’s argument here to be that the testimony of Officer Durham leading to an inference of a revenge motive for the killing was relevant to Cooper but not to him and that it would not have been admitted had Gordon been tried separately. He makes that statement without convincing argument or reference to authority, and we cannot say it is so. >

c. Lesser offenses

Mr. Gordon argues error on the part of the Trial Court in failure to instruct the jury on the lesser included offenses of manslaughter and negligent homicide. He offers no authority on the point and argues only that the definitions of those crimes more closely fit the evidence related to his conduct than the murder instruction.

According to Ark. Code Ann. § 5-10-104 (Repl. 1993):

(a) A person commits manslaughter if:
(1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be;
* * *
(3) He recklessly causes the death of another person;
4= * *
Ark. Code Ann. § 5-13-204 (Repl. 1993) provides:
(a) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.
(b) Aggravated assault is a Class D felony.

With respect to the “negligence” aspect of the proposed manslaughter instruction and with respect to the aggravated assault instruction we need only point out that Mr. Gordon could not have been prejudiced by any error in the Trial Court’s refusal to give those instructions. He was convicted of capital murder. The Trial Court instructed on murder in the first degree and murder in the second degree. The jury convicted Mr. Gordon of capital murder. “When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987). This is commonly referred to as ‘the skip rule.’ ” Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991).

Mr. Gordon makes no argument that the “extreme emotional disturbance” part of his proffered manslaughter instruction applied to his acts.

III. Jeremy Moten

Mr. Moten has only one point of appeal. It concerns failure of the Trial Court to instruct on manslaughter. More particular is his complaint that he was entitled to have the jury consider whether he was under excusable “extreme emotional disturbance.”

The request for that part of the manslaughter instruction concerning “extreme emotional disturbance for which there is a reasonable excuse” presents a problem excepting it from the skip rule in these circumstances because it does not deal with a lesser culpable mental state. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). It was not error, however, for the Trial Court to have refused that aspect of the manslaughter instruction in this case because it was combined in the instruction proffered with language which would have allowed the jury to find Mr. Moten acted “recklessly.”

The jury apparently believed that Mr. Moten was a principal or accomplice in a premeditated, deliberate murder. The evidence supported that conclusion. The evidence to which Mr. Moten refers in support of his manslaughter instruction might have led the jury to conclude he acted in self defense. Nothing in the evidence suggested he might have acted “recklessly.” It would not have been proper to have given the instruction presented to the Trial Court; thus, there was no error.

IV Rule 4-3(h)

In accordance with Rule 4-3 (h) the record of trial has been examined, and no erroneous and prejudicial rulings adverse to the appellants have been found.

Affirmed.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I agree with the majority on all points but one. The majority relies on the “Skip Rule” to justify not instructing on manslaughter and negligent homicide. As I wrote in Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991) (J. Brown concurring), the “Skip Rule” is used to justify not giving an instruction after the fact based on a verdict for a greater offense. The rationale is that no prejudice was caused by failure to give the instruction. Yet, had the appropriate instruction been given and defense counsel had the opportunity to argue that instruction, the verdict might well have been different.

Nevertheless, I would affirm because there was no rational basis for giving the two instructions, and they would have confused rather than assisted the jury. See Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). For that reason, I concur.


author: ROBERT L. Brown, Justice. BRADLEY D. Jesson, Chief Justice,

text:
    James Scott RUSH v. STATE of Arkansas
    CR 95-1192
    919 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered April 15, 1996

      McCormick & Kennedy, P.A., by: David H. McCormick and James D. Kennedy, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Neuman, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

This appeal concerns three alleged errors that occurred during the sentencing phase of appellant James Scott Rush’s trial. Rush was charged with kidnapping Gena Hambuchen and with residential burglary. Both offenses allegedly took place on September 25, 1994. During the guilt phase of the jury trial, Rush was convicted of the lesser included offense of false imprisonment in the second degree, a Class A misdemeanor. Class A misdemeanors carry a maximum jail term of one year or a fine not exceeding $1,000 or both. Ark. Code Ann. §§ 5-4-201 (b)(1), 5-4-401 (b)(1) (Repl. 1993).

After hearing testimony at the sentencing phase, the jury returned a verdict of one year in jail and a fine of $1,000, and Rush was sentenced accordingly. His three asserted errors on appeal are: (1) it was error to admit testimony by a victim of a prior battery conviction; (2) it was error for the State to inquire into a prior altercation between Rush and a third party; and (3) it was error to allow the mother of the victim to testify about the victim’s ensuing psychological problems in response to questions by the prosecutor, who used the Diagnostic and Statistical Manual of Mental Disorders to frame his questions. We hold that the first point has merit, and we reverse and remand.

The facts surrounding the first point are these. As the sentencing phase began, Rush moved in limine to exclude the victim of a prior battery conviction (Douglas Paul Sweeney) from testifying about the facts and circumstances surrounding that conviction. The conviction stemmed from a shooting incident in 1989 in Harrison for which Rush had pled guilty. The trial court denied the motion in limine and made the following ruling:

— I’m going to have to rule in this fashion, and this is the reason: The proof in this case was some proof of a threat to kill the victim. The defendant was found guilty of a crime which involved the holding of the victim for a period of time, even though it was not kidnapping. The defendant has not denied the fact that he made the calls involving the threats to kill. At a previous time in the defendant’s history, he did use a firearm on another person, and I think this is one of the aggravating factors that may be used. So I’m going to deny the motion in limine and permit the State to put that evidence on.

The jury was then instructed that it was to hear additional evidence to be considered in determining the appropriate sentence.

The State’s first witness was Douglas Paul Sweeney. On direct examination, he testified that in 1989, he encountered Rush in the Harrison High School parking lot. He testified that he, along with some friends, was driving around and that the high school parking lot was a hang-out. When they pulled up, they heard someone screaming, yelling, and cursing. They approached the man, whom Sweeney identified as Rush, and asked him what his problem was. Rush responded that he, Sweeney, was his problem. Words were exchanged, and Rush pulled out a gun, shot in the air, and turned the gun on Sweeney. He threatened to kill Sweeney and his entire group. Sweeney took a couple of steps toward Rush, and Rush shot him in the left leg. Rush subsequently pled guilty to third-degree battery, a Class A misdemeanor.

Rush’s counsel then cross-examined Sweeney. He asked if Sweeney was drunk or high on drugs on the night of the shooting incident. He also asked about one of Sweeney’s friends, Doug Hankins, who was armed with a machete at the time of the shooting. The direct examination and cross-examination comprised eight pages of the record. Rush contends that he was prejudiced by this examination concerning a crime that took place five years earlier and that the statute in question does not contemplate live testimony by a previous victim.

Resolution of whether it was appropriate to allow testimony from a victim of a prior crime turns on this court’s interpretation of Ark. Code Ann. § 16-97-103(2) (Supp. 1993), which reads in part:

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following, ....
(2) Prior convictions of the defendant, both felony and misdemeanor. The jury may be advised as to the nature of the previous convictions, the date and place thereof, the sentence received, and the date of release from confinement or supervision from all prior offenses;

Specifically, we must determine what is meant by: the “jury may be advised as to the nature of the previous convictions.” Rush vigorously contends that this language does not envision testimony from victims of prior crimes. The State, for its part, argues equally as forcefully that this court in previous cases has defined “nature of the offense” as including the facts and circumstances surrounding the offense. See Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).

The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994); Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). Here, the plain and ordinary meaning of “nature” is: “A kind, sort, type, order; general character.” Black’s Law Dictionary, p. 1027 (6th ed. 1990); see also Webster’s New World Dictionary, p. 904 (3rd Ed. 1989). Thus, it appears that the plain meaning of the term “nature of the previous convictions” refers to the general character of the pertinent crime.

By Act 535 of 1993, the General Assembly bifurcated criminal trials and authorized the State to present additional relevant evidence, including proof of the nature of previous convictions, during the penalty phase of a trial. See Ark. Code Ann. § 16-97-101, et seq. (Supp. 1993). But we do not agree that authorizing the State to advise the jury of the nature, or general character, of previous convictions equates to authorizing a relitigation of those matters. In neither of the two cases relied on by the State was that permitted. For example, in Brown v. State, supra, the charge at issue was felon in possession of a firearm, and the question on appeal was whether part of the judgment showing the length of sentence for the previous felony should have been excised as prejudicial. We stated that the jury was entitled to know the nature and circumstances of the prior conviction, which was an element of the charged offense, and, thus, there was no abuse of discretion by the trial court in allowing the complete felony judgment to be offered into evidence.

Similarly, in Combs v. State, supra, the defendant sought to redact that portion of a certified copy of his judgment of conviction which stated that the felony involved for a felon-in-possession-of-a-firearm charge was second-degree murder. Again, the prior felony was an element of the charge, and we held that the trial court did not err in refusing to delete the description of the felony. Both of these decisions were eminently correct. In both cases, the nature of the previous felony offense was proved by a copy of the judgment. In neither case did the State call the victim of the prior felony as a witness and seek to develop the facts of that crime by direct examination.

Act 535 of 1993 provides that proof of prior convictions shall follow the procedures outlined in the Habitual Offender Act. Ark. Code Ann. § 16-97-104 (Supp. 1993). Under the Habitual Offender Act, after a determination of guilt by the jury, the trial court hears proof of a charged habitual offender’s prior convictions outside of the presence of the jury. Proof of previous convictions is sufficient if in the form of a certified copy of the conviction or penal record. Ark. Code Ann. § 5-4-504 (Repl. 1993). The court then instructs the jury on the number of such offenses and the statutory range. Ark. Code Ann. § 5-4-502 (Repl. 1993). We have had occasion to discuss what proof may be presented by a habitual offender in the penalty phase:

We explained in Heard v. State, supra [272 Ark. 140, 612 S.W.2d 312 (1981)], that the purpose of a bifurcated trial is to protect the defendant by keeping evidence of prior convictions from the jury to assure that an accused person will not be convicted on the basis of his or her past record. In the sentencing phase, the state may only introduce evidence of prior convictions, and the accused may only introduce evidence to rebut the existence of those convictions. Nothing in § 16-90-205 suggests the General Assembly intended anything else, and we know of no constitutional provision which requires the trial to be opened in the sentencing phase to evidence the accused could have but declined to present in the guilt-innocence phase.

Conley v. State, 305 Ark. 422, 424-425, 808 S.W.2d 745, 747, cert. denied, 502 U.S. 876 (1991). In reaching this conclusion, we quoted from an earlier decision, which did not involve a bifurcated trial, to the effect that a defendant’s explanation concerning a prior offense should not be used to retry the earlier case. See Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982). That, of course, is the danger associated with the strategy followed by the State in the case before us. The net effect of our caselaw has been to limit proof of prior convictions in the habitual-offender context to the convictions themselves and to prevent a reopening of the matter by testimony relating to the convictions.

We are mindful that proof of aggravating circumstances in capital murder cases is different. See Ark. Code Ann. § 5-4-601, et seq. (Repl. 1993). A case in point is Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied 121 L. Ed.2d 79 (1992). In Ward, we held that photographs of the victim of a prior Pennsylvania voluntary manslaughter conviction as well as verbal testimony from a Pennsylvania police officer about the condition of the body were relevant to establish the following aggravating circumstance:

(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person;

Ark. Code Ann. § 5-4-604(3) (Repl. 1993). The police officer testified that the body had marks on the neck and the knuckles were scraped. He further revealed that the victim’s purse contained a photograph of the defendant and his telephone number.

The instant case, though, is readily distinguishable from Ward v. State, supra. Here, proof of aggravating circumstances is not at issue. Rather, the issue is how to appropriately advise the jury of the nature of a previous conviction. We hold that live testimony from a victim of a crime which occurred five years earlier goes far beyond advising the jury of the nature, or general character, of that conviction. A certified copy of the information and judgment of conviction would have easily sufficed.

There are substantial policy considerations involved in holding as we do today. First, a defendant should not be forced to defend a second time against a previous charge and conviction. Nor should a defendant be permitted to offer testimony in mitigation of an earlier conviction. Secondly, judicial economy factors into our decision because cross-examination will inevitably follow direct examination of a victim, as it did in the instant case, and the spectre of a trial within a trial looms large. We can see how allowing mini trials of a crime five years later could work to the disadvantage of both the State and the defense. Witnesses could disappear, evidence could be lost, and memories could fade. Without clear direction from the General Assembly that advising the jury of the nature of the previous conviction entails live testimony from victims of those crimes, we decline to interpret the statute as permitting it. For that reason we reverse the sentence and remand this case for the limited purpose of resentencing.

The dissenting opinion cites various cases for the proposition that a trial court has discretion over what may be relevant proof during the penalty phase. We do not disagree with that statement of the law. However, in none of the cases adduced was prior victim testimony the issue. In one capital murder case cited, the medical examiner testified during the penalty phase about the autopsy performed on a previous murder victim. See People v. Hope, 168 Ill. 2d 1, 658 N.E.2d 391 (1995). But, as already noted in this opinion, capital murder cases involve aggravating circumstances which are defined by statute. As discussed above, this court has held that a police officer’s testimony about a prior crime was permissible to prove the aggravating circumstance of “the use or threat of violence to another person” during the penalty phase of a capital murder trial. See Ward v. State, supra: see also Ark. Code Ann. § 5-4-604(3) (Repl. 1993).

We further observe that Act 535 of 1993 does provide for the admission of other relevant evidence during the penalty phase of criminal trials, including “relevant character evidence.” Ark. Code Ann. § 16-19-103(5) Supp. 1993). However, we cannot conclude that this statutory category coupled with judicial discretion authorizes prior victim testimony and what amounts to a retrial of a previous conviction.

An issue raised in this appeal may well occur at the resentencing, and for that reason, we address it. On cross-examination of two defense witnesses — James Bolin and Nancy Kersh — the State questioned whether either witness knew about a fight between Rush and a man at the North Forty Club in 1993. The defense only objected when the question was asked to Kersh. She had testified on direct examination that Rush was like a member of the family and had been a protector of her children. At first, the trial court sustained the objection and admonished the jury, but the court reversed itself and allowed the questioning as permissible cross-examination. We do not believe that this constituted an abuse of discretion. The State was well within its rights to delve into Rush’s character once the door had been opened by his own witness. Ark. R. Evid. 404(a)(1); Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1994).

We conclude that the third issue of the prosecutor’s use of a medical manual in direct examination of the victim’s mother is unlikely to reoccur at resentencing.

Reversed and remanded for the limited purpose of resentencing.

JESSON, C.J., concurs in part, dissents in part.

Glaze, J., dissents.

BRADLEY D. Jesson, Chief Justice,

concurring in part; dissenting in part. While I agree that this case must be reversed for resentencing, my beliefs are based on grounds different than those expressed in the majority opinion. The majority’s position regarding what constitutes the “nature of the previous convictions” in Ark. Code Ann. § 16-97-103(2) (Supp. 1993), in my view, is much too limiting. I do not interpret this statute as erecting a per se bar to the admission of witness testimony from victims of previous convictions.

The State asks us to interpret the provision at issue to include the facts and circumstances surrounding the previous offense. While the majority relies on a dictionary definition in accepting the appellant’s limiting construction of the term “nature,” the State’s proposed interpretation is consistent with decisions from other jurisdictions. See e.g., People v. Hope, 658 N.E.2d 391 (Ill. 1995)(citing People v. Owens, 464 N.E.2d 261 (Ill. 1984) (“When a prior conviction has been proved, the prosecution may introduce evidence concerning details of that offense, as long as that information is relevant and reliable.”); State v. J.E.B., 469 N.W.2d 192, 195 (Wis. App. 1991), cert. den. 112 S.Ct. 1484 (1991). I find the Wisconsin Supreme Court’s interpretation of “nature” particularly persuasive:

It is not the philosophy of modern criminal law that the punishment fit the crime alone and that for every violation of a particular statute there be an identical sanction. In light of the function of the law to deter similar acts by the defendant and others and to rehabilitate the individual defendant, it is essential that a sentencing court consider the nature of the particular crime, i. e., the degree of culpability - distinguishable from the bare-bones legal elements of it - and the personality of the criminal. The interests of both society and the individual must be weighed in each sentencing process.

McCleary v. State, 182 N.W.2d 512, 517 (Wis. 1971) (Emphasis added); see also State v. J.E.B., supra. Such an interpretation is consistent with the “Statement of sentencing policy” in Ark. Code Ann. § 16-90-801 (a)(l)(Supp. 1995), which provides that one of the primary purposes of sentencing is “[t]o punish an offender commensurate with the nature and extent of the harm caused by the offense, taking into account factors that may diminish or increase an offender’s culpability.” (Emphasis added.)

The United States Supreme Court has upheld the consideration of a defendant’s prior convictions as well as a defendant’s past criminal behavior, even where no conviction resulted from such behavior. Nichols v. United States, _ U.S. _ (1994)(sl. op., at 9); Williams v. New York, 337 U.S. 241 (1949). The Court has further held that the state could consider, as a sentence enhancement factor, visible possession of a firearm during the felonies of which a defendant was found guilty. McMillan v. Pennyslvania, 477 U.S. 79 (1986); Nichols, supra, sl. op., at 10. And in terms of sentencing by a judge, the Court has held that the judge “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” Id., quoting United States v. Tucker, 404 U.S. 443, 446 (1972). Based on this backdrop of authority, I believe a more reasonable interpretation of the statute at issue would be to permit evidence concerning the details of a prior offense, so long as the trial court determined that the evidence is relevant and reliable.

In this case, the trial court found that the underlying facts of the battery conviction were relevant because, like the facts in the present charge, the battery involved a threat to kill the victim. As this court does not have before it a record of the facts presented during the guilt phase, I would decline to reverse on this issue, as the court cannot properly review whether the trial court abused its discretion in determining that Sweeney’s testimony was relevant in the absence of a complete record.

I would, however, reverse this case for resentencing based on the third question presented. During the prosecutor’s questioning of the victim’s mother, he asked if she had visited with his victim witness coordinator regarding some matters contanied in the Diagnostic and Statistical Manual of Mental Disorders. Without establishing this treatise as reliable authority or qualifying the victim’s mother as an expert, the prosecutor proceeded to ask the victim’s mother if she was familiar with “post-traumatic stress disorder.” Reading from this manual, he inquired as follows:

QUESTION BY MR. FOSTER: Has your daughter experienced items outside the range of normal human experiences? Do you think most people go through this? Ms. Hambuchen replied no.
QUESTION BY MR. FOSTER: Does she ever relive the event of being awakened in the middle of the night and kidnapped?
Ms. Hambuchen responded yes.
QUESTION BY MR. FOSTER: Does she ever exhibit any type of emotional distress? Ms. Hambuchen responded yes.
QUESTION BY MR. FOSTER: Is she as emotionally responsible as she was prior to the event? Ms. Hambuchen responded no.
QUESTION BY MR. FOSTER: Do normal events affect her and normal emotional stimuli affect her the way it did before she was kidnapped? Ms. Hambuchen responded no.
QUESTION BY MR. FOSTER: Does she appear to be less excitable and less affected by things going on around her?
Ms. Hambuchen responded yes.
QUESTION BY MR. FOSTER: How does she respond to external stimuli such as sound? Ms. Hambuchen responded that they scare her.

Arkansas Rule of Evidence 701 governs opinion testimony of lay witnesses, and permits opinion testimony by lay witnesses in observation of everyday occurences, or matters within the common knowledge of most persons. Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991). Here, the victim’s mother was never qualified as an expert and did not have the requisite first-hand personal knowledge to testify as to the presence of factors relating to post-traumatic stress disorder. Moreover, the treatise used by the prosecutor was never established as reliable authority. In cases involving A.R.E. 803(18), which permits statements from learned treatises to be read into evidence if relied on by an expert witness, we have held that it is error to allow counsel to read from a book not shown to be established as a reliable authority. Davies v. State, 286 Ark. 9, 688 S.W.2d 738 (1985). Even the introduction to the treatise itself contains cautionary statements to the effect that the proper use of the criteria therein requires specialized clinical training that provides both a body of knowledge and clinical skills. See Diagnostic and Statistical Manual of Mental Disorders at xxvi and xxix (3d ed. rev. 1987). In my view, the trial court erred in allowing the prosecutor to use this manual to question the victim’s mother. As the jury was left with the distinct impression that the victim suffered from post-traumatic stress disorder, I must conclude that this error was prejudicial requiring reversal and remand for resentencing.


author: Andree Layton Roaf, Justice. ROBERT L. Brown, Justice,

text:
    Marcus BOHANAN v. STATE of Arkansas
    CR 95-1144
    919 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered April 15, 1996

      William R. Simpson, Jr., Public Defender, by: Sandra S. Cordi, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Marcus Bohanan was convicted of capital murder committed in the course of an aggravated robbery, first-degree battery, and aggravated assault. He was sentenced to life imprisonment without parole for the capital murder, twenty years’ imprisonment for the battery conviction, and six years’ imprisonment for the assault conviction; the sentences are to be served concurrently. On appeal, Bohanan asserts that the trial court committed reversible error by allowing the State to introduce into evidence a bullet seized from his vehicle. We affirm.

On the evening of April 16, 1994, a number of people were gathered at the Little Rock home of Weston Williams. Appellant Marcus Bohanan and Larry Davis came to the house and asked to use the telephone. Davis was known to the residents and the two were admitted. While Bohanan and Davis were present in the home, Charles Wicks arrived and indicated that he had a hundred dollars and wanted to purchase a television. At some point in the evening, one of the guests, Donald Tyler, was asked to take Wicks home. Tyler testified that as he and Wicks left the house, Bohanan and Davis also left and approached them as they were getting into Tyler’s car. Tyler saw Bohanan hold a gun to Wicks’ head and attempt to rob him. Tyler testified that when he saw the gun he got out of his car, ran back toward the house, and heard two gunshots, but he did not see Wicks get shot. Tyler and Wicks managed to get back into the house; Wicks later died of a gunshot wound to the chest. Shots were also fired into the house through a door, and James Patterson was injured by one of these bullets.

Davis was arrested the day after the shooting, and named Bohanan as the person who shot Wicks. He also told police that he and Bohanan had been in Bohanan’s car the night of the murder. At trial, Bohanan was identified by Tyler and several witnesses as one of the men who had been in the house, and by Tyler as the man who approached Wicks with a gun and attempted to rob him.

A firearms examiner with the Arkansas State Crime Laboratory testified that the two .45 caliber bullets recovered from James Patterson and the door had been fired from the same weapon. Three .45 caliber shell casings were also recovered from the scene. The examiner testified that two of the shell casings were manufactured by Winchester and the third was a Remington-Peters brand.

At approximately 8:00 p.m. on April 18, 1994, Bohanan’s car was located and confiscated by members of the Litde Rock Police Department. One live .45 caliber cartridge manufactured by the Winchester company was recovered from the back seat of the car. Bohanan was arrested on April 18, 1994, about one hour after his car was confiscated, and was identified by Tyler in a live lineup conducted on April 20, 1994.

Bohanan’s sole argument on appeal is that the trial court erred by allowing into evidence the bullet seized from his car. On the day of trial, Bohanan moved in limine to suppress the evidence of the bullet recovered from his car. He asserted that his car was improperly confiscated as an abandoned vehicle and searched prior to his arrest and that the cartridge was irrelevant and prejudicial. On appeal, Bohanan contends that his Fourth Amendment right to be free from illegal searches and seizures was violated by the warrantless search of his car. He argues that there was no reasonable cause to believe the car contained any evidence nearly three days after the offense was committed. He further argues that the evidence recovered was irrelevant and unfairly prejudicial.

The following evidence was presented at the suppression hearing. On the afternoon of April 18, less than 48 hours after the incident, Larry Davis told officers that he and Bohanan had been in Bohanan’s car before and after the shooting. Two officers then went to the area of 16th and Hanger Streets to look for Bohanan or his car. One of the officers testified that they observed a vehicle matching the description of Bohanan’s car parked on the side of the street with a flat tire and no license plate. They observed the car for thirty to forty minutes and, when no one approached, they obtained the vehicle identification number by looking through the window and confirmed that the car was registered to Bohanan.

As it was getting dark, the officers decided to confiscate the car in order to search it, because the suspects had been in the car after a homicide. They did a cursory search at the scene, found nothing, and had the car towed. Crime scene specialists later processed the car and discovered the .45 caliber cartridge in a paper bag in the back seat of the car.

On appeal from a trial court’s ruling on a motion to suppress evidence, this Court makes an independent determination based on the totality of the circumstances and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). We must start with the basic premise that a warrandess search is unauthorized. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). However, many exceptions to the Fourth Amendment have been found to exist, including an exception relating to automobiles. Id. Rule 14.1 of the Rules of Criminal Procedure, Vehicular Searches, provides in pertinent part:

(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, ivithout a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other area open to the public;
(ii) in a private area unlawfully entered by the vehicle; or
(iii) in a private area lawfully entered by the vehicle, provided that exigent circumstances require immediate detention, search, and seizure to prevent destruction or removal of the things subject to seizure.

(Emphasis added).

This Court has concluded that reasonable cause as required by Rule 14.1 exists when officers have reasonably trustworthy information, which rises to more than mere suspicion, that the stopped vehicle contains evidence subject to seizure and a person of reasonable caution could be justified in believing an offense has been committed or is being committed. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). Here, co-defendant Larry Davis informed officers that both he and Bohanan were in the car before and after the homicide, and it had been less than forty-eight hours since the crime occurred. As it is undisputed that a crime occurred, and the officers had more than a mere suspicion that the alleged assailants were in the vehicle before and after the crime, there was reasonable cause to believe the car contained things subject to seizure. See Tackett v. State, 307 Ark. 520, 822 S.W.2d 834 (1992); Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980).

Bohanan also asserts that because the vehicle had a flat tire and was unoccupied, it was not moving or readily movable as required for a warrantless search pursuant to Rule 14.1. He further contends that because the crime occurred two days prior to the search, no exigent circumstances were present which would allow for removal of evidence from the vehicle.

We first observe that Bohanan’s car, even with a flat tire, was a readily movable vehicle. The tire could have been changed in a matter of minutes, or the car could have been driven away even with a flat tire. Further, the rule does not require additional exigent circumstances where a vehicle is on a public way or other area open to the public, or in a private area unlawfully entered. Additional exigent circumstances requiring the immediate detention, search, and seizure are required only where the vehicle is in a private area lawfully entered.

We have upheld the warrandess search of an automobile pursuant to Rule 14.1 where the suspect is stopped and arrested while driving the vehicle. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). Certainly, if Rule 14.1 authorizes a search where the suspect is taken into custody at the time of the seizure of the automobile, the warrantless search of a vehicle where the suspect is still at large is even more justifiable. Bohanan argues that the police should have obtained a warrant to search the vehicle after receiving information from Larry Davis. He suggests that the detectives who located the vehicle could have called other officers to continue surveillance of the car while a search warrant was obtained. Of course this would be true for any vehicle, and no warrantless vehicular search would be authorized if such measures were required.

The cases relied upon by Bohanan can be readily distinguished. In Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), this Court held the warrandess search and seizure of appellant’s vehicle after his arrest was illegal. However, the vehicle was parked on private property and the Court said that there were no exigent circumstances since the car was not stopped and abandoned on the open highway and there was no way that the appellant could have had access to the car after he was arrested. In Tillman v. State, 271 Ark. 552, 630 S.W.2d 5 (1982), this Court upheld the warrandess search of Tillman’s vehicle for stolen goods after Tillman had been apprehended in the vehicle and handcuffed.

In short, Rule 14.1 simply does not require a search warrant in the circumstances presented in this case. A warrandess search of the car would clearly have been authorized had Bohanan been apprehended in or near the vehicle. It stands to reason that such a search was authorized when Bohanan was still at large. It further does not matter whether the search is conducted at the scene or after the vehicle has been seized and removed to another location. As noted in 3 Wayne LaFave, Search and Seizure, § 7.2(b) at 468-469 (3rd ed. 1996):

[WJhenever a warrantless at-the-scene search of a vehicle would be permissible, the police may instead seize the car and search it shordy thereafter at the station. As the Court put it in Michigan v. Thomas,
the justification to conduct such a warrandess search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.
One explanation for this, offered in United States v. Ross, is that “if an immediate search on the scene could be conducted but not one at the station if the vehicle is impounded, police often simply would search the vehicle on the street - at no advantage to the occupants, yet possibly at certain costs to police.”

In summary, we hold that the trial court correcdy determined that Ark. R. Crim. P. 14.1 authorized a warrantless search of Bohanan’s vehicle.

Bohanan also asserts that the trial court erred in introducing the bullet into evidence because it was irrelevant and unfairly prejudicial. He contends that nothing connects the bullet recovered from his car to the alleged offense. The trial court concluded that it was relevant that the victim was killed with a .45 caliber bullet and Bohanan had a .45 caliber bullet in his car.

According to Ark. R. Evid. 401, relevant evidence is evidence having any 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. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). A ruling on the relevancy of the evidence is discretionary and will not be reversed unless the trial court abused its discretion. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). We cannot say that the trial court in this instance abused its discretion. A .45 caliber bullet and three .45 caliber shell casings were recovered from the scene, including two which were manufactured by the Winchester Cartridge Company; a .45 caliber cartridge manufactured by the Winchester Cartridge Company was recovered from Bohanan’s car. It was thus more probable that Bohanan had access to a .45 caliber weapon at the time of the homicide.

Bohanan further submits that the introduction of the bullet was unduly prejudicial and created a danger that “the jury would attach undue significance to this evidence and conclude that the appellant was somehow involved in the alleged offense.” Rule 403 of the Arkansas Rules of Evidence allows a trial court to exclude relevant evidence if its probative value is outweighed by the possibility of confusion of issues. Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994). This weighing is a matter left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Id. The appellant has simply failed to establish an abuse of discretion in this instance.

Because Bohanan was sentenced to life imprisonment without parole, we must review the record for prejudicial errors objected to by Bohanan but not argued on appeal. See Ark. Sup. Ct. R. 4-3 (h). We discuss one such issue not raised in the briefs of either Bohanan or the state.

Donald Tyler was the only witness who identified Bohanan as the person who held a gun and attempted to rob Wicks. Prior to trial, Bohanan moved to suppress the fact that Tyler identified him in a physical lineup. After a hearing was conducted, the motion was denied.

On April 17, 1994, the day after the shooting, Tyler was shown a lineup which consisted of six photographs; Bohanan’s photograph was not included. Tyler picked number “5” and stated on the “spread form” that he was about 85 percent sure. He also stated, “I can identify him in person.” In a second photographic lineup, conducted after Davis had implicated Bohanan, Tyler identified photograph number six as being “similar” to the person he saw pull the gun on Wicks. In that lineup, photograph number two was a photograph of Bohanan. On April 20, a live physical lineup was conducted. Tyler “immediately” identified Bohanan as the shooter during the physical lineup.

Tyler testified that he saw Bohanan inside the home while the lights were on and that he saw the assailant for two or three seconds at the time of the incident. Tyler further testified a street light across the street was shining down in the area of the car. In addition, he stated that the assailant did not have anything covering his face. Finally, Tyler testified that the picture of Bohanan in the second photographic lineup seemed blurry and dark and the two photographic lineups did not influence his decision in viewing the physical lineup.

A pre-trial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the criminal. Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995). Even if the identification technique is impermissibly suggestive, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide the weight the identification testimony should be given. Id. This Court does not reverse a ruling on the admissibility of an identification unless it is clearly erroneous and will not inject itself into the process of determining reliability unless there is a very substantial likelihood of misidentification. Id. Further, the following factors are to be examined to determine reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapse between the crime and confrontation'. Id.

Here, Tyler viewed Bohanan inside the house and for several seconds at the time of the incident. Tyler never positively identified someone other than Bohanan, and he continued to maintain he could identify the assailant if he saw him in person. That is, in fact, what occurred — Tyler immediately identified Bohanan when the physical lineup was conducted. We cannot say the trial court was clearly erroneous in concluding the identification testimony was reliable.

The record has been examined pursuant to Supreme Court Rule 4-3 (h) for other reversible error, and none has been found.

Affirmed.

JESSON, C.J., and Brown, J., concur.

ROBERT L. Brown, Justice,

concurring. Rule 14.1 of the Arkansas Rules of Criminal Procedure deals with exigent circumstances that might justify a vehicular search when reasonable cause for that search exists. One such exigent circumstance pertains to a search of a “moving or readily movable vehicle.” Ark. R. Crim. P. 14.1(a). That is the section on which the majority bottoms its conclusion that no search warrant was necessary in this case. I disagree.

It is undisputed that the vehicle involved in this case had a flat tire. It had also been under observation by police officers for some 40 minutes. During this surveillance, there was no sign of activity around the vehicle or any attempt to move the car. Had there been, the police officers would have been well within their rights to conduct a Rule 14.1 search. But there was none. Failing efforts by someone to move the car, a search warrant should have been obtained. This could have been easily accomplished.

The majority cites Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994), to uphold the warrantless search. But Hudson is inappo-site authority because the defendant was in his car driving when his vehicle was stopped. Moreover, it does not follow, as the majority contends, that because a suspect is at large, this renders a search of his car an emergency matter. What would have rendered the situation exigent was if the Bohanan car could have been readily moved and any evidence in the car, as a result, lost. Ark. R. Crim. P. 14.1; see also Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980).

I would affirm, however, because proof of Bohanan’s culpability, apart from the .45 caliber cartridge found in the car, was considerable, and any error resulting from evidence amassed from an illegal search was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995); Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992). Multiple witnesses placed Bohanan at the scene, and Donald Tyler witnessed the attempted robbery and saw Bohanan place a gun at the victim’s head. Immediately thereafter, witnesses attested to the fact that the victim had been shot and had made his way into a house. A second victim, James Patterson, was then shot through the door of that same house and wounded. The .45 caliber cartridge found in the car was, in reality, a very small facet of the State’s case. Accordingly, I concur in the affirmance.

JESSON, C.J., joins.


author: Andree Layton Roaf, Justice.

text:
    Ralph Van HUDGENS v. STATE of Arkansas
    CR 95-971
    919 S.W.2d 939
    Supreme Court of Arkansas
    Opinion delivered April 15, 1996

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by; J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

The appellant, Ralph Van Hudgens, was convicted of DWI in a bench trial in circuit court. Hudgens contends the trial judge erred by 1) not suppressing all of the state’s evidence and dismissing the charge, and 2) resentencing him to a harsher sentence upon retrial after his first conviction was reversed on appeal. We affirm the conviction, but agree that the trial judge erred in sentencing Hudgens and modify the sentence.

Ralph Van Hudgens was stopped by a Fayetteville police officer at approximately 2:00 a.m. on July 4, 1992, after the officer had observed Hudgens’ vehicle swerving and repeatedly striking the curbside. The officer testified that Hudgens smelled of alcohol, and that he failed all of the field sobriety tests administered. Hudgens was arrested and taken to the police station, where he refused to take the breathalyzer test. Hudgens posted a bond, but was not released until 4:00 p.m. the following afternoon. Hudgens was convicted in the Fayetteville Municipal Court of DWI, first offense, and violation of the implied consent law. He appealed the conviction to Washington County Circuit Court and was again convicted of both offenses in a bench trial before Judge William Storey. He was sentenced by Judge Story to a $250.00 fine, ninety days suspension of his driver’s license, and one day of jail time suspended.

Hudgens’ conviction was reversed and his case remanded by the Court of Appeals for violation of his right to jury trial, in an opinion not designated for publication. He was retried by Judge Story on the DWI charge only, and was again convicted. He was sentenced by Judge Story to a $500.00 fine, ninety days suspension of his driver’s license, and five days jail time.

Hudgens filed a motion to suppress all evidence and to dismiss the charges against him in municipal court and prior to both bench trials in circuit court. In his motion, he alleged that he was unlawfully held in custody, after he refused the breathalyzer test, in violation of certain statutes and rules of criminal procedure, and was thus prevented from gathering exculpatory information in violation of the United States and Arkansas Constitutions. In both bench trials, the trial court denied the motion as being untimely because it was filed less than ten days before the trial; in the second bench trial, the trial court also found that even if the motion was timely, Hudgens had failed to demonstrate prejudice.

On appeal, Hudgens first argues that the trial court erred in failing to suppress the State’s evidence and to dismiss the charges against him. He further contends that the trial court incorrectly determined that his motion was untimely filed pursuant to Ark. R. Crim. P. 16.2, because the rule only applies to evidence illegally seized in violation of the Fourth, Fifth and Sixth amendments. He contends that the police did not gather evidence illegally, but rather his unlawful detention for more than twelve hours after his arrest prevented him from having a blood test performed; he suggests that such a test could have provided “exculpatory evidence.”

Arkansas Rule of Criminal Procedure 16.2 pertains to motions to suppress evidence and states in pertinent part:

(a) Objection to the use of any evidence, on the grounds that it was illegally obtained, shall be made by a motion to suppress evidence.
* * * *
(b) The motion to suppress shall be timely filed but not later than ten (10) days before the date set for the trial of the case, except that the court for good cause shown may entertain a motion to suppress at a later time.

We agree that Hudgens’ motion does not pertain to the suppression of evidence illegally obtained, and is- thus not governed by the ten-day limitation set forth in Rule 16.2(b). All of the evidence used in the trial of Hudgens for DWI was obtained at the scene of his arrest, and prior to his arrival at the police station where he alleges the violations took place. He asserts that because he was illegally detained in violation of various Arkansas statutes and rules, all the evidence submitted by the state should have been suppressed; Hudgens’ arguments concerning statutory and rules violations are all without merit.

Hudgens first argues that he was not allowed to call an attorney or physician prior to his refusal to submit to the breathalyzer test, as required by Ark. Code Ann. § 16-85-101, which provides that “no prisoner shall be denied the right to consult an attorney of his own choosing or to call a physician of his own choosing if in need of one while confined to any prison in this state awaiting trial.” Clearly, Hudgens cannot be characterized as a prisoner confined to prison awaiting trial by virtue of his DWI arrest. He further did not have the right to counsel before taking the breathalyzer test. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

Hudgens also argues that the conduct of the officers after his arrest violated Ark. Code Ann. §§ 27-50-602, 603, 606, and 609, and that such violations also require suppression of all the evidence against him. Hudgens contends that he should have been immediately taken before a magistrate upon his arrest, as required by § 27-50-602, or that he should have been released from custody pursuant to § 27-50-603, which provides for a person not taken before a magistrate to post a bond and be forthwith released from custody.

Hudgens also asserts that because his driver’s license was seized upon arrest, he should not have been required to post bond at all, pursuant to § 27-50-606. This section provides for deposit of driver’s license in lieu of posting of bond. Hudgens further argues that because jail personnel set his bond, he was made to post a bond without seeing a judge in violation of Ark. R. Crim. P. 8.1, which requires that an arrested person not released by citation or other lawful manner be taken before a judicial officer without unnecessary delay, and Rule 9.2(a) which requires that the judicial officer set money bail.

Even if Hudgens were correct in his assertions that the various statutes and rules were violated, his argument that the evidence should be suppressed and the charges dismissed has no merit. His argument is based solely upon the denial of the opportunity to obtain an independent chemical test. As he refused to take the breathalyzer test he had no right to an independent chemical test. See Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988); Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). Nor did Hudgens have the right to be released from custody in order to gather exculpatory evidence. Calnan, supra.

Moreover, Hudgens testified that he was detained for more than twelve hours before he was allowed a phone call and before he was released from custody. He is in essence complaining of an illegal detention. We have addressed the effect of such a violation of Ark. R. Crim. P. 8.1 in Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978), by stating that a defendant is not entitled to a dismissal of the charge on which he is arrested when the rule is contravened. It is also well settled that an illegal arrest or detention does not void a subsequent conviction. See Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981); Bolden, supra.

Hudgens also argues that the trial court erred in imposing a harsher sentence upon retrial. When Hudgens objected to the sentence, the trial judge stated that “upon reflection, after hearing the facts again, the facts are much more egregious than I had initially concluded.”

The fact that the sentence received by a defendant is meted out by a judge both times is the basis for concern about vindictiveness. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). We have stated unequivocally that a more severe sentence may not be imposed because of any vindictiveness of the court arising from the convicted party successfully appealing the first sentence; this would clearly be violative of the due process clause of the Fourteenth Amendment. Marshall v. State, 265 Ark 302, 578 S.W.2d 32 (1979). In Marshall, we cited with approval the United States Supreme Court case of North Carolina v. Pearce, 395 U.S. 711 (1969), wherein it stated:

[W]e have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding, and the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed upon appeal.

In this instance, the trial court merely stated that the facts were more egregious than he originally thought. However, this recitation by the trial court does not meet the requirement set forth in Marshall that his reasons be based on the defendant’s conduct occurring after the time of the original sentencing.

In Texas v. McCullough, 475 U.S. 134 (1985), the Supreme Court held that the presumption of vindictiveness had been overcome where, to justify the longer sentence, the judge entered the following findings of fact:

[T]he testimony of two state witnesses who had not testified at the first trial added to the credibility of the state’s key witness and detracted from the credibility of respondent and a defense witness; the two new witnesses’ testimony directly implicated respondent in the commission of the murder and shed new light upon his life and conduct; and it was learned for the first time on retrial that respondent had been released from prison only four months before the murder.

In Hudgens’ retrial, there were no new witnesses or new facts presented. Consequently, the trial court has provided no findings of fact to overcome the presumption of vindictiveness in the resentencing of Hudgens, and the sentence cannot stand. However, where the trial court’s error has nothing to do with the issue of culpability and relates only to punishment, we may correct the error in lieu of reversing and remanding the case. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). We thus modify Hudgens’ sentence by reinstating the $250 fine and one day jail time suspended, as imposed by the trial court in Hudgens’ first trial.

The trial court’s judgment of conviction and sentence is affirmed as modified.


author: PER CURIAM.

text:
    L.T. TAPP v. STATE of Arkansas
    CR 95-1351
    920 S.W.2d 483
    Supreme Court of Arkansas
    Unpublished opinion delivered March 18, 1996
    [Appellee’s motion requesting publication of opinion granted April 15, 1996.]

      Lance Garner, for appellant.

      Winston Bryant, Att’y Gen., by; Brad Newman, Asst. Att’y Gen., for appellee.
   PER CURIAM.

On April 26, 1994, judgment was entered in the Circuit Court of Garland County reflecting that L. T. Tapp had been convicted by a jury of rape and sentenced to twenty-eight years imprisonment. Mr. Tapp’s attorney filed a timely notice of appeal of the judgment on April 28, 1994. On May 31, 1994, Tapp, acting pro se, filed a motion for new trial pursuant to Criminal Procedure Rule 37 alleging that he had not been afforded effective assistance of counsel by his trial attorney. The trial court entered an order on June 2, 1994, stating that the motion would be held in abeyance until after the appeal was completed because it did not have jurisdiction to consider a request for postconviction relief while the appeal was pending. In 1995, the court of appeals affirmed the judgment. Tapp v. State, CACR 94-744 (June 21, 1995).

After the appellate court’s mandate was issued on July 11, 1995, the trial court appointed an attorney for Tapp and held an evidentiary hearing on the Rule 37 allegations. Postconviction relief was denied, and the record has been lodged here on appeal. The appellee State seeks to have the appeal dismissed, arguing that the trial court was without jurisdiction to consider the postconviction pleading on its merits.

We find the State’s argument is well founded and dismiss the appeal. Postconviction relief under Rule 37 cannot be had while an appeal is pending. Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981). Thus, the trial court was without authority to do more than dismiss the pro se motion for new trial under the rule once it determined that it was not timely filed. The rule does not allow for holding allegations in abeyance for future consideration when the court obtains jurisdiction.

Rule 37.2(c) provides:

If an appeal was taken of a judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days (60) of the date the mandate was issued by the appellate court.

The petition must be filed after the mandate is issued because, when a case is directly appealed, the circuit court does not regain jurisdiction over the case until that event occurs. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945). A court must have jurisdiction before it can do more with respect to a Rule 37 petition than examine it to see if it is timely. In Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989), we said:

... .a court always has the power and duty to examine the evidence and determine whether in fact it does have jurisdiction over the matter, (citations omitted) That being so, a [Rule 37] petition once tendered should be filed even though untimely so that the court may exercise the power and duty to determine whether jurisdiction exists. . . .once it is determined that jurisdiction does not exist, the disposition of the case must he made on that basis.

In accordance with Maxwell, once the trial court saw that the request for postconviction relief had been filed after the notice of appeal but before the mandate was issued, it was bound to do no more than declare it untimely. It was incumbent on appellant Tapp to raise his grounds for postconviction relief after the mandate was issued just as it is incumbent on a convicted defendant to determine when the judgment is entered before filing a notice of appeal.

Motion granted; appeal dismissed.

       Even if the appellant had filed the motion for new trial under Criminal Procedure Rule 36.22, which permits a motion for new trial to be filed within the time fixed to file a notice of appeal, i.e. thirty days, the motion here would have been untimely. It was not filed until thirty-five days after the judgment was entered.