text:
    Don MALLETT v. STATE of Arkansas
    CR 97-930
    954 S.W.2d 247
    Supreme Court of Arkansas
    Opinion delivered October 30, 1997

      Petitioner, pro se.
    No response.
   Per Curiam.

On August 26, 1996, judgment was entered reflecting that Don Mallett had been found guilty by a jury of theft of property by deception. A sentence of fifteen years’ imprisonment with three years suspended was imposed.

Mallett’s' retained attorney, Andrew Clark, filed a notice of appeal; but because it was filed before the judgment was entered, it was of no effect. Hicks v. State , 324 Ark. 450, 921 S.W.2d 604 (1996). Now-before us is Mallett’s pro se motion seeking to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure — Criminal, which permits a belated appeal in a criminal case in some instances.

It is the practice of this court when a pro se motion for belated appeal is filed alleging that counsel was ineffective for failure. to perfect an appeal to request an affidavit from the trial attorney in response to the allegations in the motion. Mr. Clark expresses in his affidavit the erroneous assumption that the notice of appeal was timely. He avers that he did not perfect the appeal because Mallett did not produce the $1,600.00 necessary to pay the court reporter to begin work on the transcript.

Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

The record does not reflect, and attorney Clark does not contend, that he was relieved as counsel by the trial court, and it is clear from the filing of the untimely notice of appeal that Clark knew that Mallett desired an appeal. See Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989). As a result, Clark was obligated to file a timely notice of appeal and, if Mallett was unable to pay the cost of the appeal, lodge a partial record in the appellate court to preserve the appeal. Upon lodging the partial record, counsel would then have been in a position to file a motion in the appellate court for his client to proceed as an indigent and to be appointed counsel or, if Mallett was not indeed indigent at that time, to file a motion to be relieved as counsel. Under no circumstances may an attorney who has not been relieved by the trial court abandon an appeal where he is aware with the thirty days allowed to file a notice of appeal that the convicted defendant desires to appeal simply because defendant has not paid for the transcript. Miller, supra.

The motion for belated appeal is granted. A convicted criminal defendant is entitled to effective assistance of counsel on appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his first appeal when his counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985). To cut off a defendant’s right to appeal because of his attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987).

Mallett has appended to the motion for belated appeal an affidavit asserting his indigency. As the State has not contested that assertion, he will be permitted to proceed informa pauperis on appeal. Mr. Clark remains attorney-of-record and is appointed to represent the appellant. Our clerk will lodge the record, and counsel is directed to file within thirty days a petition for writ of certiorari to bring up the record, or that portion of it, necessary for the appeal.

A copy of this opinion shall be forwarded to the Arkansas Supreme Court Committee on Professional Conduct.

Motion granted.

       If there was a second timely notice of appeal filed with the circuit clerk, it does not appear in the partial record lodged here.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Joseph RAMEY v. STATE of Arkansas
    CR 97-1205
    952 S.W.2d 677
    Supreme Court of Arkansas
    Opinion delivered October 30, 1997

      Ben Seay, for appellant.
    No response.
   Per Curiam.

Joseph Ramey, by his attorney, has filed a motion for rule on the clerk. His attorney, Ben Seay, requests that the clerk accept the late record, and he admits in his motion that the record was tendered late due to a mistake on his part.

We hold that an error causing delay in submission of the transcript of the trial record on appeal, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion to allow acceptance of the belated record. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Because Mr. Seay admits mistake in this motion, appellant’s motion for rule on the clerk to accept the belated record is therefore granted.

The present motion for rule on the clerk is granted. A copy of this opinion shall be forwarded to the Committee on Professional Conduct.


text:
    William Wesley SKIVER v. STATE of Arkansas
    CR 96-527
    954 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered October 30, 1997

      Jon A. Williams, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, William Wesley Skiver, was convicted of aggravated robbery and was sentenced as a habitual offender to life in prison. Pursuant to Anders v. California, 386 U.S. 738 (1967), his attorney filed a motion to withdraw and a brief stating there is no merit to the appeal. Last term, we wrote an opinion ordering Skiver’s attorney to rebrief the case because the abstract and argument portions of the brief did not comply with the requirements of Anders, supra, and Ark. Sup. Ct. R. 4-3(h) and 4-30. Skiver v. State, 326 Ark. 914, 935 S.W.2d 248 (1996). Counsel filed a substituted brief, and Skiver was given thirty days to file a pro se brief raising any additional arguments. Skiver did not file a brief. The State agrees that there is no merit to the appeal and recommends that Skiver’s conviction be affirmed. We find that the substituted no-merit brief, like its predecessor, is not in compliance with Anders and Rule 4-30. Accordingly, we must again order rebriefing.

The facts surrounding Skiver’s conviction and sentence were set forth in our previous opinion. Skiver v. State, supra. In that opinion, we noted that although the record did not contain a written or oral motion to suppress Skiver’s custodial statement, a Denno hearing was held on the day of trial. At the conclusion of that hearing, the Trial Court made the following ruling regarding Skiver’s statement:

The Court will find that the defendant knowingly, voluntarily, and intelligently waived his rights to remain silent and gave a knowing, voluntary statement to the officer.

This ruling is not discussed in the argument section of the substituted brief. Once again, counsel has failed to comply with Rule 4-30, which provides:

A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court.

We simply cannot affirm Skiver’s conviction without any discussion as to why an issue concerning the Trial Court’s ruling concerning his statement would not be a meritorious ground for reversal. Accordingly, we direct Skiver’s counsel to submit another brief containing an abstract of the motion to suppress and a discussion of the merit of any issue that can be raised concerning that ruling. If the motion was written, we direct that the record be supplemented with a certified copy of that motion. If the motion was oral, we direct that there be entered a stipulation as to its existence and contents.

Furthermore, we noted in our previous opinion that “while the denial of Skiver’s motion for a directed verdict is mentioned, the sufficiency of the evidence is not fully discussed.” The substituted brief still fails to fully discuss the sufficiency of the evidence issue. Counsel fails to set forth the State’s evidence and explain its sufficiency for a conviction for the crimes charged. Accordingly, we direct counsel to reargue the sufficiency of the evidence.

Skiver’s counsel is directed to file a new brief on or before December 30, 1997. In accordance with Rule 4-30(2), Skiver will have thirty days from that date to raise any additional arguments.

Rebriefing ordered.


text:
    Dennis Cornell TUCKER v. STATE of Arkansas
    CR 97-1213
    952 S.W.2d 677
    Supreme Court of Arkansas
    Opinion delivered October 30, 1997
    G. B. “Bing" Colvin, III, for appellant.
    No response.
   Per Curiam.

Appellant, Dennis Cornell Tucker, by his attorney, G.B.“Bing” Colvin, III, has filed a motion for rule on the clerk. His attorney admits that the transcript was tendered late due to an error on his part.

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

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


author: Donald L. Corbin, Justice.

text:
    Larry Douglass BROWN v. Jim Guy TUCKER
    96-1379
    954 S.W.2d 262
    Supreme Court of Arkansas
    Opinion delivered November 6, 1997

      Tona M. DeMers, for appellant.

      Winston Bryant, Att’y Gen., by: Kay J. Jackson DeMailly, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Larry Douglass Brown appeals the order of the Pulaski County Circuit Court dismissing his complaint against Appellee Jim Guy Tucker for slander, tortious interference with employment expectancy, and outrage. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(15), as it presents issues involving the law of torts. Appellant argues on appeal that the trial court erred in dismissing his complaint. We find no error and affirm.

From what little facts we have been provided, it appears that Appellant filed suit against Appellee as a result of Appellant’s being removed from his position as an investigator with the Arkansas State Police, and being reassigned to the position of patrol officer. In his motion to dismiss filed below, Appellee raised the issues of sovereign immunity, individual immunity, and the complaint’s failure to state facts upon which relief could be granted as provided in ARCP Rule 12(b)(6). The order of the trial court, however, reflects only that Appellee’s motion to dismiss was granted; there is no indication as to why the case was dismissed, nor are there any factual findings or conclusions. We affirm the trial court’s ruling on the basis that Appellant failed to state sufficient facts in his complaint.

In reviewing the denial of a dismissal granted pursuant to Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Malone v. Trans-States Lines, Inc., 325 Ark. 383, 926 S.W.2d 659 (1996). When the trial court decides Rule 12(b)(6) motions, it must look only to the complaint. Id. This court has summarized the requirements for pleading facts as follows:

Arkansas has adopted a clear standard to require fact pleading: “a pleading which sets forth a claim for relief. . . shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id.; ARCP Rule 8(f).

Malone, 325 Ark. at 385-86, 926 S.W.2d at 661 (quoting Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 639, 846 S.W.2d 176, 178 (1993)). Where the complaint states only conclusions without facts, we will affirm the trial court’s decision to dismiss the complaint pursuant to Rule 12(b)(6). Id.

Appellant’s abstract lends litde support to his argument that the trial court erred in dismissing his complaint. The complaint itself, which contains mostly legal conclusions, is abstracted as follows:

Filed February 6, 1996. Plaintiff alleges slander, tortious interference with employment expectancy, and tort of outrage.
Plaintiff was an investigator with the Arkansas State Police who was assigned to investigate the school funding formula. Plaintiff alleges tortious interference with business expectancy. Plaintiff also alleges that defendant slandered him by referring to him as incompetent and unable to function in his position. Plaintiff alleges that defendant forced Col[.] Tommy Goodwin to demote plaintiff with the hopeful end result of forcing plaintiff to resign. Plaintiff alleges that defendant’s actions exceeded all bounds of common decency, amounting to tort of outrage for plaintiffs emotional distress.

This summation tells us virtually nothing of the facts and circumstances that form the bases of each of the three causes of action alleged by Appellant.

Our rules require the abstracting of such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of each issue presented to this court for review. Ark. Sup. Ct. R. 4-2(a)(6); National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997); Kingsbury v. Robertson, 325 Ark. 12, 923 S.W.2d 273 (1996). It is Appellant’s burden to demonstrate reversible error and to present a record evidencing such error. Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997). Moreover, it is fundamental that the record on appeal is confined to that which is abstracted and cannot be contradicted or supplemented by statements made in the argument portions of the brief. National Enters., 329 Ark. 332, 947 S.W.2d 378. Here, Appellant states in his argument that the trial court erred in dismissing the case because the complaint was “more than adequate in that it contained nine pages of facts supporting appellant’s claims, which were presented in chronological order with dates and times.” Appellant then offers a citation to the place in the record where all the factual allegations can be found. Such reference to the record is not an adequate substitute for a complete abstract. See Boren v. Worthen Nat’l Bank, 324 Ark. 416, 921 S.W.2d 934 (1996). We have stated on occasions too numerous to count that it is impractical to require all seven members of this court to examine one transcript in order to decide an issue on appeal. See, e.g., National Enters., 329 Ark. 332, 947 S.W.2d 378; Duque v. Oshman’s Sporting Goods Servs., Inc., 327 Ark. 224, 937 S.W.2d 179 (1997); Kingsbury, 325 Ark. 12, 923 S.W.2d 273. In short, Appellant has failed to produce a record demonstrating reversible error. By way of illustration, we discuss below some of the numerous factual deficiencies.

In the first instance, Appellant claims that Appellee tortiously interfered with a business expectancy. The elements of tortious interference which must be proved are: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); United Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992). The only facts alleged in the complaint pertaining to this claim are that Appellee forced Colonel Goodwin to demote Appellant with the hopeful end result of forcing him to resign. There are no facts demonstrating that Appellant had a valid contractual relationship or' business expectancy in his job, or that he was damaged by Appellee’s alleged actions. To the contrary, Appellee contends that Appellant was merely reassigned to another position with the state police; he was not demoted from his rank of corporal, nor was his pay reduced as a result of his new job assignment.

In the second instance, Appellant claims that Appellee slandered him. The following elements must be proven to support a claim of defamation, whether it be by the spoken word (slander) or the written word (libel): (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages. Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997) (citing Mitchell v. Globe Int’l Pub., Inc., 773 F. Supp. 1235 (W.D. Ark. 1991)). The only information offered in the complaint on this cause of action is that Appellee slandered Appellant by referring to him as “incompetent and unable to function in his position.” The defamatory nature of those particular words is not evident, especially if Appellant was, in fact, not competent to function in his position. Nor is it evident that the statement implies an assertion of an objective verifiable fact. In order to determine whether a statement may be viewed as implying an assertion of fact, the following factors must be weighed: (1) whether the author used figurative or hyperbolic language that would negate the impression that he or she was seriously maintaining implied fact; (2) whether the general tenor of the publication negates this impression; and (3) whether the published assertion is susceptible of being proved true or false. Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97 (1991) (citing Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir. 1990)). The words allegedly used by Appellee clearly possess the general tenor of an opinion, as opposed to a verifiable statement of fact. Furthermore, as with the first claim, Appellant has offered no factual assertion that he was damaged by the alleged slanderous remarks.

In the third instance, Appellant claims that Appellee’s “actions exceeded all bounds of common decency, amounting to tort of outrage for plaintiff’s emotional distress.” In order to establish an outrage claim, it must be shown: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiff s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable man could be expected to endure it. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997) (citing Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)). Appellant’s complaint contains nothing more than bare legal conclusions that Appellee’s actions were extreme and exceeded all bounds of common decency.

In sum, even construing the complaint liberally, Appellant has failed to state sufficient facts upon which any relief can be granted. Accordingly, we conclude that the trial court did not err in dismissing the complaint pursuant to Rule 12(b)(6). We further modify the trial court’s ruling to be a dismissal with prejudice, as Appellant has indicated that a prior suit was brought by him against Appellee and that the action was voluntarily nonsuited by him. See Bakker v. Ralston, 326 Ark. 575, 932 S.W.2d 325 (1996). Because we affirm the trial court’s ruling under Rule 12(b)(6), we need not address the remaining issues pertaining to immunity.

Affirmed as modified.

Special Justices William Randall Wright, Michele Harrington, and Richard Lusby join in this opinion.

Brown, Imber, and Thornton, JJ., not participating.


text:
    Nathaniel THOMAS v. STATE of Arkansas
    CR 96-803
    954 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered November 6, 1997

      Wallace, Hamner & Hendry, by: Phillip M. Hendry, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Nathaniel Thomas appeals the denial of relief under Arkansas Rule of Criminal Procedure 37 from the Pulaski County Circuit Court. Appellant asserts that the trial court erred in denying the Rule 37 petition because his attorney was ineffective by failing to timely renew the motion for directed verdict at the conclusion of Appellant’s case, thus barring a challenge to the sufficiency of the evidence on appeal. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 -2(a) (4). We affirm.

Appellant was charged along with three other men, James Ellison, Lawrence Butler, and Clayton Phillips, with three counts of capital murder in the shooting deaths of Cyrus Lee, Sabrina Earl, and Marcus Johnson at an apartment in Little Rock on February 19, 1992. He was tried before a jury on December 9 and 10, 1992, and found guilty of the capital murder of Cyrus Lee, and the first-degree murders of Sabrina Earl and Marcus Johnson. Appellant received respective sentences of life imprisonment without parole and two terms of forty years’ imprisonment to run concurrendy together, but consecutive to the life term.

On appeal to this court, Appellant raised two points for reversal, one regarding the sufficiency of the evidence and the second concerning the admissibility of custodial statements. Neither argument had merit, and we affirmed the judgment of the trial court. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). The record of the trial demonstrated that Appellant’s counsel did not attempt to renew the directed-verdict motion until the jury had begun its deliberations, after being prompted by the trial court. This court held that Appellant’s sufficiency argument was thus not preserved for appeal, because he failed to timely renew his motion for directed verdict after he had presented evidence in his defense. A defendant who goes forward with the production of additional evidence after a directed-verdict motion is overruled waives any further reliance upon the former motion. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992).

Following our affirmance of the direct appeal, Appellant filed in the trial court a petition for postconviction relief pursuant to Rule 37, which was subsequently denied. Appellant then appealed that ruling, and this court reversed and remanded so that the trial court could address Appellant’s allegation that his trial counsel was ineffective for failing to properly preserve his challenge to the sufficiency of the evidence. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). In that opinion, this court prospectively overruled the holdings in Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987), and Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991), that an allegation of ineffective assistance of counsel based on counsel’s failure to move for a directed verdict was not cognizable under Rule 37.

On remand, the trial court again denied the requested relief under Rule 37, after having reviewed the evidence regarding Appellant’s allegation that counsel had been ineffective in the representation of Appellant for fading to timely renew the motion for directed verdict. The trial court found in its order:

As the record from the trial reflects, at the end of the State’s case, Petitioner’s counsel made a detailed and thorough motion for a directed verdict. The Court overruled the motion, explaining that the State had provided sufficient evidence for the case to be presented to the jury. The fact that Petitioner’s counsel did not renew the directed verdict after the defense rested does not alter the sufficiency of the evidence presented by the State, which in the Court’s view, had already reached the amount necessary to proceed to the jury. It cannot be said that but for counsel’s failure to renew the motion, the factfinder, in this case the jury, would have reached a different conclusion on the guilt or innocence of Petitioner, since the Court had already determined that the State could proceed with its case. [Emphasis added.]

The question before us now is what standard of review should we apply in determining whether the trial court erred in reviewing its own previous decision to deny Appellant’s motion for directed verdict. We conclude that the appropriate standard of review for this issue is whether the trial court’s decision was clearly erroneous or clearly against the preponderance of the evidence presented at trial and during the hearing on the Rule 37 petition. For reasons set out below, we conclude that the trial court was not clearly erroneous in denying Appellant’s requested relief under Rule 37.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel’s representation fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense. Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Id.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Thomas, 322 Ark. 670, 911 S.W.2d 259. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668; Thomas, 322 Ark. 670, 911 S.W.2d 259.

Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Huls, 301 Ark. 572, 785 S.W.2d 467. In Huh, this court found that even if a timely objection at trial could have prevented the jury from hearing a witness’s testimony, the testimony, when taken with the entire evidence presented at trial, did not lead to a conclusion that there was a reasonable probability that the jury would have acquitted petitioner if the witness had not testified. In making a determination on a claim of counsel’s ineffectiveness, we must consider the totality of the evidence presented to the judge or jury. Id.

Normally, to prevail on a claim of counsel’s ineffectiveness, the appellant must demonstrate that but for counsel’s errors, the jury would have reached a different conclusion. In the present case, that cannot be the focus of our inquiry because if the directed-verdict motion had been timely renewed and granted, the matter would not have gone to the jury. The trial court in this case seemed to be puzzled because the case was remanded for a determination of whether counsel was ineffective due to the failure to renew the directed-verdict motion. The trial judge remarked that he had already decided that the State’s case was sufficient to go to the jury.

The duty of the trial court upon remand was to determine whether anything that happened between the time the motion was denied at the conclusion of the State’s case and the conclusion of all the evidence would have caused him to grant the motion upon renewal. An example of such an event might be the defense’s presentation of a witness who had previously testified for the prosecution, but wished to change or recant his or her testimony. Once the trial court determines that no such event occurred, and thus no prejudice resulted from the failure to renew the motion, an appeal of that decision would have to result ultimately in our review of whether the evidence was or was not sufficient for presentation to the jury. Upon reviewing the totality of the evidence, we conclude that there was sufficient evidence for presentation of the case to the jury.

The motion made at the end of the State’s case-in-chief was based on the assertion that the State had failed to prove that Appellant was an accomplice to the murders. The trial court denied the motion based on the fact that the jury might accept the statements that Appellant had given to the police. Arkansas Code Annotated § 5-2-403 (a) (Repl. 1993) provides that a person is an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in the commission of the offense. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Under the accomplice liability statute, a defendant may properly be found guilty not only for his own conduct, but also for that conduct of.his accomplice. Id. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id. There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id. In a case based upon circumstantial evidence, relevant circumstances include the presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation, and possession of instruments used in the commission of the offense. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). The mere presence of a person at the scene of a crime is not proof of his guilt. Green v. State, 265 Ark. 179, 577 S.W.2d 586 (1979).

From the record provided, we can discern the substance of Appellant’s statements as follows. Appellant told the police that one of the victims, Cyrus Lee, owed money for drugs to James Ellison, Lawrence Butler, and Clayton Phillips. After these three men gathered their guns, Appellant agreed to go with them to go get their money. Appellant asserted that the three men pushed their way into the apartment and stayed inside for thirty to forty-five minutes. Apparently, when they came outside with blood on their clothes, they told Appellant that the victim would not give them their money, so they made him pay another way. Ellison told Appellant that he should burn the bloodstained clothes. Appellant asserted that instead, he put the bloody clothes in a paper sack and left them in a trash dump behind Ellison’s house. Appellant declared that he remained outside while the murders were occurring inside the apartment. Notwithstanding that claim, the State asserts that he provided details of what occurred inside the apartment in his statement to police.

In sum, the totality of the evidence demonstrates that Appellant was not prejudiced by counsel’s failure to timely renew the directed-verdict motion. Appellant stated that he knew that the three men were going to the apartment to collect drug money and that they were armed with guns. He went with them to the apartment. He knew details about what happened inside the apartment, including the timing and location of the killings. He identified one of the murder weapons. In a taped statement, he stated that he could not see the victim that walked up later and entered the apartment, but he later made a photo identification of this victim. A bloody jacket was found in the house, near the trash dump where he claimed to have disposed of the other clothing, which he was supposed to dispose of by setting them on fire. He stated that he worked with the three codefendants making the drugs during this time period, and that he had continued to work with them after the murders. This evidence is sufficient to show that Appellant possessed the requisite knowledge and intent and was an accomplice in the three murders.

Based on the foregoing, Appellant did not demonstrate that he was prejudiced by counsel’s error in failing to renew the directed-verdict motion. While the Appellant was not able to directly appeal any challenge to the sufficiency of the evidence, there was substantial evidence to support the verdict. Appellant did not prove the second prong of the Strickland test and was thus not denied the right to a fair trial. We will not reverse for a mere potential of prejudice. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

Affirmed.


author: Robert L. Brown, Justice.

text:
    Michael BURCHAM v. CITY OF VAN BUREN, Civil Service Commission of the City of Van Buren, and Chief of Police Mason Childers In His Official Capacity
    97-410
    954 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered November 6, 1997

      Pryor, Barry, Smith, Karber & Alford, PLC, by: Gregory T. Karber, for appellant.

      Steven G. Peer, for appellees.
   Robert L. Brown, Justice.

Appellant Michael Burcham, a patrolman in the Van Burén Police Department, was passed over for promotion to corporal during the one-year span from March 1995 and to March 1996. He filed a complaint against appellees City of Van Burén, the Civil Service Commission for the City (Commission), and Chief of Police Mason Childers and alleged that he was entitled to be promoted in 1995 and 1996 because he was on the three-person eligibility list for promotion certified by the Commission to the Police Chief for this period. He further alleged that he ranked second on the three-person eligibility list during this time frame and that three patrolmen other than himself were promoted to corporal. Burcham also asserted, as a separate count, that the appellees failed to advertise the competitive examination for promotion to corporal in August 1996. The 1996 competitive examination determined the eligibility list for the next year which ultimately was the list used for promotions. He contended that state law requires publication in a local newspaper that the examination relating to promotions is to take place. Because of the Department’s failure to advertise, he contended that he was foreclosed from taking the examination. Thus, he contended that the 1996 eligibility list should be declared invalid which presumably would invalidate all promotions made based on that eligibility list. Burcham prayed for back pay from the date he was not promoted, any other lost benefits, and attorneys fees, interest, and costs.

The appellees moved for summary judgment on both claims, and the trial court granted summary judgment. On appeal, Burcham urges that the trial court erred. We affirm.

I. Eligibility List

Burcham’s first point of appeal brings into play the civil service statute governing how police officers and firefighters are selected for promotion within their departments. See Ark. Code Ann. § 14-51-301 (Supp. 1995). That statute requires that cities adopt rules governing the departments and continues in pertinent part as follows:

(b) These rules shall provide for:

(4)(A)(i) The creation and maintenance of current eligibles lists for each rank of employment in the departments, in which shall be entered the names of the successful candidates in the order of their standing in the examination. However, for ranks in each department where there may not be openings during an annual period, the board may establish rules to create the eligibles fist on an as-needed basis.

(B)(i) All lists for appointments or promotions as certified by the board shall be and remain in force and effect for the period of one (1) year from date thereof.

(6) Certification to the department head of the three (3) standing highest on the eligibility list for that rank of service, and for the department head to select for appointment or promotion one (1) of the three (3) certified to him and notify the commission thereof;

Ark. Code Ann. § 14-51-301(b)(4)(A)(i), (B)(i), (6) (Supp. 1995).

Burcham argues that it is a mathematical impossibility for three promotions to be made in one year without all three people who were originally named as the three standing highest being selected. He claims that the one-year duration for “lists” in § 14-51-301(b)(4)(B)(i) also applies to the certified names by the Commission of the three standing highest. Under his interpretation, the second time a position became available, only two names would be submitted, and the third time, only the third name would be submitted. This would assure that the third person would be selected for the position. As a consequence, he concludes that he should been selected for one of the three positions that became available between March of 1995 and March of 1996.

The appellees, on the other hand, read § 14-51-301 to require the Commission to adopt the following procedure. The Commission creates and maintains a list of eligible applicants for promotion for each rank of employment within the Department. The eligibility lists remain in effect for one year from the time the Commission certifies them. Each time a position becomes available within a Police Department, for example, the Commission certifies and submits to the Department head (here, the police chief) the three most qualified applicants based on their examination scores. This short list is referred to as the “three standing highest.” The Police Chief then selects one of the three for promotion. If another position for promotion becomes available within that same year, the eligibility list is examined and the Commission certifies the names of the three standing highest at that time and submits those names to the Police Chief. This second time, the three names would include the two that were on the previous list of three standing highest as well as one new name from the eligibility list based on examination scores. If a third position comes open in that year, the same procedure for selection from the names of the three standing highest is followed. We subscribe to the appellees’ reading of the statute.

In support of his interpretation, Burcham cites this court to three cases. Cross v. Bruce, 284 Ark. 230, 681 S.W.2d 339 (1984); Orrell & Abernathy v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979); Smith v. Little Rock Civil Serv. Comm., 214 Ark. 765, 218 S.W.2d 366 (1949). Prior to 1987, the civil service statute contained language suggesting that promotion be afforded to the one standing highest on the eligibility list. Ark. Stat. Ann. § 19-1603 (1980). That language was amended in 1987 to provide that the department head would select for appointment or promotion from the certified list of the three standing highest. See Act 657 of 1987, now codified at Ark. Code Ann. § 14-51-301(b)(6) (Supp. 1995). These cases decided prior to the change in the statute have little or no precedential value.

In interpreting a statute, this court will give the words in the statute their ordinary meaning and common usage. Rush v. State, 324 Ark. 147, 919 S.W.2d. 933 (1996); McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994). If the language of the statute is plain and unambiguous, the analysis need go no farther. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994). It is clear from the structure of § 14-51-301 that the one-year requirement concerning the list certified by the Commission applies to the eligibility list in toto and not just to the names of the three standing highest which are certified by the Commission to the department head. We conclude that the statute states as much. But, in addition, the process for promotions would not work under Burcham’s reading. Subsection (b) (6) makes it clear that when the names of the three standing highest are submitted, the department head is to choose one of the three. To limit the Police Chief to one name in making his selection would run counter to the express language of the statute. In fact, in 1987, the General Assembly deleted language in § 14-51-301 (b)(6), requiring promotion of the one standing highest on the eligibility list. See Act 657 of 1987.

We hold that the appellees have correctly interpreted the statute. Each time a position becomes available within the Van Burén Police Department, the Commission is required to submit the names of the three applicants with the highest examination scores to the Police Chief. Because one of the three will be selected, it stands to reason that the next time a position becomes available the three names submitted will have changed. To read the statute otherwise would eventually deprive department heads of any discretion in choosing the best candidate. This is clearly not what the General Assembly intended.

II. Advertisement for Promotions

Burcham next contends that the Commission violated Ark. Code Ann. § 14-51-301(b)(3)(A), by not advertising in the local paper the next promotional examination held on August 12, 1996, and, thus, the resulting eligibility list, and presumably all promotions, are invalid. The statute provides as foEows:

(b) These rules shaE provide for:
(1) (A) The qualifications of each applicant for appointment to any position on the police or fire department;
(B)(i) No person shall be eligible for appointment to any position on the fire department who has not arrived at the age of twenty-one (21) years;
(ii) No person shall be eligible for appointment on the police department affected by this chapter who has not arrived at the age of twenty-one (21) years;
(2) Open competitive examination to test the relative fitness of applicants for the positions;
(3) (A) Public advertisement of all examinations by publication of notice in some newspaper having a bona fide circulation in the city and by posting of notice at the city haE at least ten (10) days before the date of the examinations.
(3)(B) The examinations may be held on the first Monday in AprE or the first Monday in October, or both, and more often, if necessary, under such rules and regulations as may be prescribed by the board;

Ark. Code Ann. § 14-51-301(b)(l), (2), and (3) (Supp. 1995) (emphasis added).

City of Van Burén Ordinance No. 28 of 1995 specifies that newspaper notice of examinations will be done for appointments for police and firefighter positions, but the ordinance does not include advertisement for promotions within the ranks. In granting summary judgment in favor of the City, the trial judge found that the publication requirements as set out in subsection (b)(3)(A) only apply to appointments and not to promotions. We agree with this interpretation.

Burcham focuses on the words “all examinations” in § 14-51-301 (b)(3), in arguing his case, but in doing so, he disregards the preceding subsections which refer only to applicants for appointment as opposed to applicants for promotion. In determining legislative intent, our rules for guidance have been often stated:

In interpreting a statute and attempting to construe legislative intent, the appellate court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. McCoy, supra; Gritts v. State, 315 Ark. 1, 864 S.W.2d 859 (1993).

Henson v. Fleet Mortgage Co., 319 Ark. 491, 495, 892 S.W.2d 250, 252 (1995).

We conclude that the more reasonable interpretation in the instant case is to look to the context of the statute and to the fact that in subsections (b)(1)(A), (b)(l)(B)(i), and (b)(l)(B)(ii) of § 14-51-301, the sole focus is on appointments. The publication requirement then follows in subsection (b)(3)(B). Precise reference in the statute to advancement within the ranks or promotions is not made until subsection (b)(4)(A), which is after the publication requirement. At that point, the statute shifts its focus from appointments to requirements for promotions.

Moreover, the purpose of the statutory requirement for publication of examination dates is to ensure that all potential applicants are notified. If the only pool of potential applicants are those already on the police force, it is entirely reasonable to post test dates on the troop bulletin board at the Department. There is little need to advertise to the public at large through a local newspaper when the purpose of the examination is only to decide promotion of current police officers to a higher rank. Indeed, it would be wasteful to do so. We will not give a statute an interpretation which is at odds with common sense. Stephens v. State, 328 Ark. 570, 944 S.W.2d 836 (1997); Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992).

Affirmed.


author: Robert L. Brown, Justice. Donald L. Corbin, Justice,

text:
    Willie Leon GREEN v. STATE of Arkansas
    CR 97-59
    956 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered November 6, 1997
    [Petition for rehearing denied December 11, 1997.]

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., and Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Willie Leon Green was charged with capital murder in connection with the shooting death of Little Rock Police Department Detective Joseph Fisher and attempted capital murder for the shooting of Little Rock Police Department Detective Frederick Lee. He was tried by jury and convicted of first-degree murder and attempted capital murder. He was subsequently sentenced to consecutive terms of life imprisonment and thirty years’ imprisonment. On appeal, he raises six points for reversal. We affirm.

At trial, Detective James Stephens of the Little Rock Police Department testified that he was in charge of executing a search warrant at Green’s apartment at approximately 7:55 p.m. on February 7, 1995. He testified that the plan was for Detectives Frederick Lee and Joseph Fisher to operate a battering ram for a forced entry into Green’s apartment along with other police officers. Detective Stephens testified that he had established a position securing the rear of the apartment building when he heard his entry team yell, “Police, search warrant, police,” followed by what he believed to be the battering ram striking the front door and a number of gunshots. He rushed to the front of the apartment building and found Detective Lee staggering out the door with a gunshot wound to the head. He saw Detective Fisher lying on the kitchen floor, where two police officers were attempting first aid. Police officers were also handcuffing Green and a woman named Donna Finney, who was on the couch near two children, one of whom was in a playpen. On cross-examination, Detective Stephens stated that he made the decision to execute the search warrant even though he knew that Green had been robbed the preceding month. He testified that some of his police officers wore police markings on their back and some wore vests with reflective tape that displayed “police” on the front.

Detective John Gravett confirmed that prior to breaching the door, he shouted, “Police, search warrant,” at least two times. He testified that the door was breached between the first and second yell. As he followed Detective David Smith to the front door, he heard gunshots, and the first thing he saw was Detective Lee with blood on his face. He said shots were still being fired at the time when Detective Fisher shouted out that he had been hit. He testified that Detective Smith yelled, “Get your hands up or I’ll shoot,” or words to that effect, at which time Detective Gravett saw Green squatting in the corner of the room with a gun at his feet. Detective Gravett admitted that it was common knowledge that Green’s apartment had been the subject of a recent robbery.

Detective Donnie Bakalekos testified that he was standing behind Detectives Lee and Fisher when he shouted, “Police. Search warrant. Little Rock Police,” prior to the door being rammed. He stated that he believed the entire squad yelled the same warning. He testified that he and Detective Ralph Breshears were assigned to secure the upstairs portion of the apartment. He explained that once the door was breached, he made it halfway up the stairs before he heard gunshots. He testified that Detective Breshears stood immediately below him on the stairs and fired his weapon.

Officer David Smith testified that he entered the apartment with a 12-gauge shotgun immediately behind Detective Fisher. He explained that he followed Detective Fisher until the time when Detective Fisher was shot. Once Detective Fisher fell to the floor, Officer Smith fired one round at Green, who attempted to hide behind some furniture. Officer Smith testified that the police officers’ ability to maneuver inside the apartment was hampered by a child’s playpen that appeared to be in the middle of the apartment. He testified that he fired his shotgun a second time when Green began firing from behind the furniture. Officer Smith testified that he yelled to Green to drop his gun and surrender, which Green did after Donna Finney shouted: “It’s the police. Drop your gun.“

Four other police officers confirmed that they heard their fellow police officers yell, “Police, search warrant.” Norma Allen, a resident of Green’s apartment complex, testified that she heard some people talking “loud” outside her apartment between 7:45 and 8:00 p.m. on the night of the killing, but she could not determine what they were saying. She testified that this was followed by a “boom” sound and then gunshots. She testified that she also heard screaming and a person yell, “Someone’s down.”

A Taurus .38 special revolver, which had been used by Green, was removed at the scene and contained five spent hulls. Cash in the amount of $505.39 was recovered from a purse located in the apartment. In the kitchen, a hat containing a .38 round, a wallet, a pager, and $1,643.37 was found by police officers. Two plastic bags with green, vegetable matter were also recovered. Upstairs in Green’s apartment, a Rossi .38 special revolver containing five live rounds was found in the master bedroom.

Donna Finney, Green’s girlfriend and the mother of his two children, was called by the prosecutor as a witness. At the time of the slaying, she was seven months pregnant. She testified that she never saw the word “Police,” written on any of the officers’ vests. She also told the jury that the previous home robbery on January 7, 1995, caused Green and her to lose $2,000 in cash, along with a ring and a check. She stated that the robbers were black, wore ski masks,' and broke into the apartment after midnight on a Friday night. She admitted that the police officers in this case were white and wore vests. She testified that they did not yell anything to identify themselves.

Former Detective Mark Sims testified that he and a confidential informant named John Cron were involved in four crack cocaine buys at Green’s residence before the shooting. On February 7, 1995, there was a plan for Detective Sims and Cron to both be present during a hand-to-hand purchase of crack cocaine from Green. At the same time, Detectives Fisher and Lee were to watch from the outside. Sims, however, contacted the two detectives and told them that the plan had changed and that Cron was going to make the buy alone. After Cron’s buy, Sims and Detective Fisher went to the Little Rock Municipal Judge to obtain the search warrant.

Dr. Charles Kokes, associate medical examiner, testified that he found gunshot entry and exit wounds on Detective Fisher’s body. He testified that the bullet entered the area in front of his right shoulder, missing the bulletproof vest, passed through the right lung and severed a branch of the aorta, and exited through his upper left back. He opined that this gunshot wound was the cause of death. Ronald Andrejack, a firearms and toolmark examiner, testified that the fatal bullet was fired from the Taurus .38 special revolver. However, his test results with respect to the bullet retrieved from Detective Lee’s head were inconclusive because the bullet was severely damaged.

Donna Finney also testified for the defense and stated that she was upstairs with her children on January 7, 1995, the date of the previous robbery. She heard a loud boom from downstairs. Green then came upstairs at gunpoint with a man behind him wearing a mask and demanding money. Finney next testified that on February 7, 1995, she was in the living room with Green and the two children when she heard a loud boom and the door “came in.” She testified that she was aware that Green was firing his gun but told him to stop doing so when she realized it was the police. On cross-examination, she claimed that she was not selling drugs; that some of the money found by the police officers was her rapid-return federal tax money; and that she did not hear anything prior to the door being broken down.

Green testified in his own defense. He stated that he was home on January 7, 1995, with Donna Finney, the two children, and two friends when three armed men broke through the door and entered the living room. The men wore masks and demanded money. Green testified that he had recently received a check from a lawsuit that had settled and that he had just been paid from his job at St. Vincent Infirmary. He testified that he gave the men his money at gunpoint. After that robbery, he testified that he kept two loaded guns in the house for protection. He admitted that he began selling crack cocaine about that time to recoup the money that was lost. He also testified that he recognized Detective Sims from a previous job at University Hospital and that he never sold him drugs. He stated that he sold John Cron two rocks of crack cocaine on February 7, 1995. Later, he, Donna Finney, and the two children were in the living room when he heard a loud noise and saw men coming through the front door. Green stated that he thought it was another break-in and grabbed his pistol. He testified that he fired toward the door and not at any particular person and that he hoped to scare the intruders off. He explained that his biggest concern was for the safety of his child, who was in the playpen between himself and the front door. He testified that he was firing from an awkward position behind a piece of furniture and that he could only recall firing three times. He testified that after those shots, he threw down his weapon to surrender when he was hit in the leg with a shotgun blast. He testified that he did not know that the police were coming that night and that he had no idea it was police detectives who were on the receiving end of his volley.

On cross-examination, Green stated that he was unaware that any of the officers were injured and maintained that he did not intentionally kill anyone. He stated that he only shot three times, but he could not explain how the pistol was out of bullets when he surrendered. He explained that he thought he shot first but that he was not certain.

In contrast to February 7, 1995, Green testified that the January 7, 1995 robbery was accomplished by three black males who were wearing ski masks. He testified that these men wore blue, which was a color associated with the Crips gang, but he denied that he was associated with the Park Street Pirus, a Bloods affiliate.

I. Insufficiency of the Evidence

At trial, defense counsel’s motion for directed verdict focused on the lack of premeditation and deliberation on Green’s part because of the forced entry which was a complete surprise. The motion was denied.

The standard of review for motions for directed verdict has been stated often by this court:

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997).

With respect to Green’s conviction for attempted capital murder, there was substantial evidence that he acted with premeditation and deliberation in the shooting of Detective Lee. 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. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996); Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). The necessary premeditation is not required to exist for a particular length of time and may be formed in an instant. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996); Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989). 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. Key v. State, supra; Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), cert. denied, 117 S. Ct. 436 (1996).

In this case, viewing the evidence in the light most favorable to the State, there was substantial evidence that Green was guilty of attempted capital murder with respect to the shooting of Detective Lee. There was evidence that the police officers announced their presence outside of Green’s apartment prior to breaking down the door. Once the door was knocked down, the first two men through, Detectives Fisher and Lee, were both shot. Fisher was shot with a bullet from Green’s Taurus .38 special revolver. The jury could have inferred that Detective Lee was shot with a bullet from the same weapon. The revolver that was recovered at the scene contained five spent hulls. Detective Lee was also shot in the head, while wearing his police gear and after an announcement that they were police officers executing a search warrant. We conclude that this constitutes substantial evidence that Green was guilty of attempted capital murder with regard to Detective Lee.

Green makes two additional arguments on appeal with respect to lack of substantial evidence relating to his first-degree murder conviction for the shooting death of Detective Fisher. Neither point should be considered, as neither was raised as part of Green’s motion for directed verdict before the trial court. This court does not address arguments, even constitutional arguments, that are raised for the first time on appeal. See, e.g., Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). The first argument appears to be that Green’s conviction for first-degree murder was prejudiced by the submission of capital murder to the jury. His second point raised for the first time on appeal relates to self-defense. Both arguments are procedurally barred. We conclude that there is no basis for reversal on the first point.

II. Comment on the Evidence

During its case-in-chief, the prosecutor called Donna Finney to testify. She was questioned at length about Green’s involvement with selling drugs, and she proved to be hostile to the State on the subject. The prosecutor impeached her testimony with her prior statement given to police detectives. On cross-examination, defense counsel wanted to explore other topics contained in her statement, at which time the prosecutor objected on the ground that such questions were beyond the scope of direct examination. After the trial court overruled the objection, thus providing leeway to defense counsel, the following occurred:

THE COURT: . . . But Ms. Finney, are you aware of what pegury is?
MS. FINNEY: Huh-uh.
THE COURT: Perjury is lying in an official proceeding, which this is. Not telling the truth. The consequences of that are that if you’re convicted of it, you can be sent to the penitentiary from three to ten years and fined up to $10,000.
You are now under oath and you are sworn to tell the truth. Do you understand that?
MS. FINNEY: Yes, sir.
THE COURT: All right. You may proceed.

Green argues that the trial court’s admonition in the jury’s presence was an unauthorized comment on the evidence in violation of Ark. Const, art. 7, § 23. There is no doubt that the trial court intimated that it found the testimony of Ms. Finney not to be believable. We have held in the past that an insinuation by the trial court that a witness is committing perjury is an impermissible comment on the evidence by the trial court. See, e.g., West v. State, 255 Ark. 668, 671, 501 S.W.2d 771, 773 (1973)(holding the following to be an unconstitutional comment: “How much were you paid to come up with this information?”); Watkins v. State, 222 Ark. 444, 448, 261 S.W.2d 274, 277 (1953)(holding the following to be an unconstitutional comment: “Let me warn you whatever you said then they have it down word for word and you were under oath then and are under oath now, but if you tell the same things two different ways you are going to be guilty of perjury. You get yourself straight[.]”). Green admits that this error was not raised to the trial court but asserts that the argument is not barred because (1) this court searches the record for reversible error in life cases under Ark. Sup. Ct. R. 4-3 (h), and (2) Ark. R. Evid. 103(d) provides that nothing in the rules precludes taking notice of errors affecting substantial rights though they were not brought to the attention of the trial court.

In interpreting Rule 4-3 (h), this court has continually maintained its position that the language of Rule 4-3 (h) does not mandate plain-error review. See, e.g., Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997); Webb v. State, 327 Ark. 51, 938 Ark. 806 (1997); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 117 S. Ct. 1853 (1997); Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995). We have been constant in requiring an objection by counsel to preserve an issue for our review under Rule 4-3(h). The acknowledged exceptions to this rule are (1) death penalty cases involving an error in a matter essential to the jury’s consideration of the death penalty itself; (2) cases where the trial judge made an error of which the appellant had no knowledge; (3) cases where the trial judge neglected his or her duty to intervene; and (4) cases involving evidentiary errors which affected the appellant’s substantial rights. Camargo v. State, 327 Ark. 631, 640, 940 S.W.2d 464, 469 (1997), citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Green does not attempt to fit his situation into one of the four Wicks exceptions.

In addition, Green’s argument cannot be salvaged by the language of Rule 103(d) of the Rules of Evidence. This court has previously held that this language does not authorize review of plain error. See, e.g., Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996). This issue is barred from our review.

III. Batson Challenge

The procedure for a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), is well settled:

First, 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 that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.

Wooten v. State, 325 Ark. 510, 514, 931 S.W.2d 408, 410 (1996), cert. denied, 117 S. Ct. 979 (1997), quoting Prowell v. State, 324 Ark. 335, 344, 921 S.W.2d 585, 591 (1996). See Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995).

A prima facie 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. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997); Wooten v. State, supra. The standard of review for reversal of a trial court’s Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Id. We have observed in this regard that “the trial court [is] in a good position to determine whether th[e] reason was genuine or pretextual.” Sonny v. Balch Motor Co., 328 Ark. at 330, 944 S.W.2d at 92, quoting Hernandez v. New York, 500 U.S. 352, 365 (1991).

At trial, Green objected to the State’s use of peremptory strikes against two potential African-American jurors. One of these jurors was Ruthie Hadley, whom the State sought to strike because she appeared to sleep 75 percent of the time through one previous trial and 98 percent of the time in another. Both of these trials were before the same trial court. The prosecutor offered to the trial court that he did not want a person with this history to sit on a capital-murder case. The court overruled the Batson objection and stated: “And I recall that that’s one of the problems with this particular juror and I also recall that this juror was late both days of court and appears to have very little interest in the process.”

The second potential juror was Frank McFadden, whom the State initially sought to strike because he had philosophical objections to the death penalty and stated that he was predisposed to sentencing a criminal defendant to life without parole. The trial court overruled the motion to strike for cause and determined that McFadden intimated that he could consider the death penalty under certain circumstances despite his philosophical opposition. When the State exercised its peremptory strike, a Batson objection was raised, and the prosecutor stated as his race-neutral explanation the same arguments made in support of his motion to strike. The trial court ruled that the explanation was sufficient.

We have held that there is no need for the prosecutor to give an explanation sufficient to strike a juror for cause. Prowell v. State, supra. Under these facts, we are not convinced that the trial court’s rulings were clearly against the preponderance of the evidence. Sonny v. Balch Motor Co., supra. This point with respect to both jurors has no merit.

IV. Misdemeanor Weapon Conviction

At trial, Green testified on cross-examination by the prosecutor that before January 7, 1995, he owned a handgun but did not carry it outside the house. The prosecutor sought to impeach his credibility with a certified copy of a 1992 misdemeanor judgment of conviction for possession of a weapon. Green’s only objection was that the misdemeanor conviction was irrelevant. The prosecutor answered that the evidence was in response to Green’s statement that he kept loaded guns in his house only to defend his home. Green’s objection was overruled, and Green denied knowledge of the misdemeanor conviction.

On appeal, Green argues that the prior misdemeanor conviction should not have been allowed into evidence under Rule 609 of the Arkansas Rules of Evidence. He admits that the only argument raised against its admission at trial was to relevance but urges now that “[the objection] was not well put, but it sufficiently apprised the trial court of what the complaint with the evidence was.”

Arkansas law is clear that an appellant may not change arguments on appeal. See, e.g., Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997); Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997); Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). We conclude that that is what has occurred in relation to the misdemeanor conviction. Consideration of this point is procedurally barred.

V. Identification of Police Officers

During Green’s direct testimony, he testified that he did not hear officers shout their identity prior to breaking down the door. He was then asked by defense counsel: “If you’d have heard it, what would you have done?” The prosecutor objected for the reason that an answer would have called for speculation. The trial court sustained the objection. Green did not proffer a response into the record, and his argument on appeal is that the trial court violated his Fourteenth Amendment due-process rights because he was prevented from fully presenting his case.

The State argues failure to proffer the response as rebuttal to Green’s point. In order to challenge a ruling on excluded evidence, an appellant must proffer the excluded evidence so that the decision can be reviewed unless the substance of the evidence is apparent from the context. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). We believe that here the content of Green’s response can be gleaned from the defense he offered at trial — he would not have shot the men had he known they were police officers. Indeed, Green testified on direct examination that he had no. idea he was shooting at police officers. We decline to decide this point on failure to proffer a response.

This court, however, does not reverse a judgment of conviction absent prejudicial error. See, e.g., Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997). We fail to discern reversible error under these circumstances when Green had already made it clear that he did not know the men were police officers and did not intend to kill anyone. This point is without merit.

VI. Second-Degree Murder Instruction

At the jury-instruction conference, the trial court was faced with the issue of which version of AMCI 2d 1003 to give to the jury on the lesser-included offense of second-degree murder. The prosecutor sought and received the version of the second-degree murder instruction requiring proof that appellant “knowingly caused the death of Detective Joseph Tucker Fisher under circumstances manifesting extreme indifference to the value of human life.” Green, however, asked for the alternative language in the second-degree murder instruction that Green “with the purpose of causing serious physical injury to another person, caused the death of Joseph Tucker Fisher.” Green’s requested instruction was denied, and he proffered it into the record. Both instructions contain correct statements of the law.

At the conference, the following colloquy occurred surrounding the two instructions:

THE COURT: Which one’s correct?
PROSECUTOR: I would submit that the one that we submitted. The one that says, knowingly caused the death, et cetera, under circumstances manifesting, et cetera, et cetera, is the correct one because under the submitted one by defense counsel it says, with the purpose of causing serious physical injury to another person. The testimony by the defendant is that he was not trying to shoot anybody, I don’t see how he could form the purpose of hurting that one individual —
DEFENSE COUNSEL: Wei, that’s —
THE COURT: I think he’s right on that.

The trial court noted that Green’s defense was that he was only-shooting in the direction of the door as opposed to shooting at a particular person.

Green’s testimony was that he had been robbed the previous month; that he maintained a loaded gun for protection; that he believed he was again being robbed when the police burst in; and that he did not intend to shoot anyone and only hoped to scare away the intruders. On appeal, the State again submits that Green’s denial of an intent to shoot anyone negates the possibility that he had the purpose of causing serious physical injury to another person, and that the instruction Green requested was not required to be given. In support of its position, the State cites Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993), a case that stands for the well-established principle that a party cannot assert a complete denial of the offense and at the same time insist that a rational basis exists for instructing on a lesser-included offense.

This is not a case, though, where the issue is whether a rational basis exists to give an instruction on a lesser offense. See, e.g., Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Fladung v. State, 292 Ark. 510, 730 S.W.2d 901 (1987). An instruction on the lesser offense of second-degree murder was given. Rather, this is a case involving which alternative paragraph of AMCI 2d 1003, the second-degree murder instruction, should have been given. This appears to be a case of first impression for this court.

We conclude that the trial court did not err in instructing the jury as it did. There is first the fact that it does seem inherently inconsistent for Green to testify that he did not shoot at anyone and then request an instruction that “with the purpose of causing serious physical injury to another person,” he caused the death of Detective Fisher. Moreover, evidence was presented supporting the instruction that Green killed the police officer under circumstances manifesting extreme indifference to the value of human life. For example, Green shot five times and hit two police officers. We are further mindful of the fact that the jury returned a verdict of guilty for first-degree murder, which included purposeful murder of Detective Fisher as an element of the offense. Under these circumstances, we cannot say that it was reversible error for the trial court to instruct the jury as it did.

The record has been examined under Ark. Sup. Ct. R. 4-3(h) for reversible error, and none has been found.

Affirmed.

Newbern, Corbin, and Imber, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. I respectfully dissent because I believe that the trial court committed reversible error in failing to give the requested jury instruction on second-degree murder. I am concerned that the majority is establishing a new test for determining whether an instruction on a lesser-included offense is warranted without bothering to explain why the old “rational basis” test is not applicable.

The majority has concluded that when instructing on lesser-included offenses, a trial court must choose between alternate versions of an offense, even though, arguably, each version may be applicable to the facts in evidence. To my knowledge, that has never been the law in this State. The long-established test for instructing on lesser-included offenses is provided in Ark. Code Ann. § 5-1-110(c) (Supp. 1995):

The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. [Emphasis added.]

This court has repeatedly held that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997); Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). This court will affirm a trial court’s decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Spann, 328 Ark. 509, 944 S.W.2d 537. Stated another way, where a rational basis for a verdict of acquittal on the greater offense and conviction on the lesser offense exists, the trial court should instruct on the lesser offense, and it is reversible error not to do so. Brown, 325 Ark. 504, 929 S.W.2d 146. Notwithstanding the fact that the defendant claims to have acted in self-defense, the decision to give an instruction on a lesser offense still turns on a determination of whether there is a rational basis for the instruction. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).

The majority attempts to distinguish this case by analyzing the issue in terms of which alternative paragraph of the second-degree-murder instruction should have been given. Why should the trial court have to make such a choice? I can see no reason why we are not reviewing this issue in terms of whether there was a rational basis for giving the proffered instruction. Clearly, there are situations in which more than one alternative version of a lesser-included offense is supported by the facts in evidence. In other words, a rational basis may exist for instructing on more than one version of an offense. This is one of those cases. Applying the “rational basis” test to the facts of this case, I. cannot escape the conclusion that the trial court committed reversible error in refusing to give the proffered instruction.

Appellant contended below that the evidence warranted an instruction on second-degree murder on the theory that Appellant acted with the purpose of causing serious physical injury to another person in causing the death of Officer Fisher. The trial court rejected that instruction, electing instead to instruct the jury that in order to convict Appellant of second-degree murder, the State must prove beyond a reasonable doubt that Appellant knowingly caused the officer’s death under circumstances manifesting extreme indifference to the value of human life. Appellant argues that it was reversible error for the trial court to refuse the proffered instruction. I agree.

The State argues that there was no rational basis for giving the proffered instruction on second-degree murder because Appellant denied any intent in firing at the officers. That argument is inconsistent with the fact that Appellant was convicted of the first-degree murder of Officer Fisher, on a theory that he had acted with the purpose of causing the death of another person. Clearly, if there was a rational basis for instructing the jury on Appellant’s purpose in causing the death of another person, then'there was an equally rational basis for instructing the jury on Appellant’s purpose in causing serious physical injury to another person. The State cannot contend on the one hand that the proof will not support a finding that Appellant acted with the purpose of seriously injuring someone and, on the other hand, assert that the proof supports the greater finding that Appellant acted with the purpose of killing someone.

In accordance with the State’s argument, the majority states that it is inherently inconsistent for Appellant to testify that he did not shoot at anyone and then request the instruction that with the purpose of causing serious physical injury to another person, he caused the death of Officer Fisher. That, however, is not the correct test. Since when has the determination of whether the proof supports a particular jury instruction depended upon only that evidence produced or claimed by the defendant? The proof either warrants the instruction or it does not. In State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995), the State appealed the trial court’s refusal to instruct on the lesser-included offenses of second-degree murder and manslaughter, based on the trial court’s rationale that if the defendant wanted to gamble between being convicted of the offense charged or being acquitted outright, it was his choice. This court declared error, holding that section 5-1-110(c) does not delegate the decision regarding the propriety of a lesser-included-offense instruction to the defendant, but, requires the trial court to determine whether the proffered instruction concerns a lesser-included offense and; if so, whether a rational basis exists for a verdict acquitting the defendant of the greater offense and convicting him of the lesser. Thus, the majority’s reasoning that the evidence presented by the defense did not support the giving of the proffered instruction is flawed, because it is not for the defense to determine whether there exists a rational basis for an instruction on a lesser-included offense.

Here, the proof presented by both parties would have supported the jury’s conclusion that Appellant acted with the purpose of causing serious physical injury to the persons entering his home. This is evident from the testimony by Appellant and his girlfriend, as well as some of the State’s witnesses, that Appellant had been robbed one month earlier by a group of persons wearing dark clothing, who broke down his door and proceeded to rob him and his guests at gunpoint; that Appellant believed that the officers, who were wearing dark clothing instead of police uniforms, were the same or similar persons who had robbed him one month ago; that Appellant grabbed his gun and began firing in the direction of the door when he heard the door being broken down; that Appellant fired until his gun was empty; and that one officer was dead and another wounded by Appellant’s actions in firing the gun. From that evidence, the jury could reasonably have concluded that Appellant was shooting at the intruders, believing them to be robbers, in an attempt to injure them.

Because I believe that there was evidence presented by both sides from which the jury could have determined that Appellant killed Officer Fisher having the intent to cause serious physical injury to another person, I would reverse the conviction and remand for a new trial.

Newbern and Imber, JJ., join in this dissent.