text:
    Sam Houston GILLAND v. STATE of Arkansas
    CR 94-396
    883 S.W.2d 474
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994

      Bill Luppen, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Sam Houston Gilland was sentenced to forty years in the Arkansas Department of Correction following his conviction for first degree murder. On appeal, he argues two points for reversal: (1) the prosecution unconstitutionally used its peremptory strikes to exclude black males from the petit jury and (2) the trial court unduly restricted the closing argument for the defense. Finding no error we affirm.

Since the sufficiency of the evidence is not disputed, no extensive recitation of the facts is necessary. Gilland and the victim got into an altercation at a Little Rock truck stop ending in a fatal shooting. Gilland contended the victim called him a “nigger” and threatened to kill him. He testified the two struggled over a pistol, which belonged to the victim, and the gun discharged. However, there was testimony that Gilland drew the weapon from his back pocket and fired one shot into the cab of the victim’s truck and left the truck stop.

I

The Prosecution Unconstitutionally Used Its Peremptory Strikes To Exclude Black Males From the Petit Jury

Gilland was tried before a jury comprised of two black women, four white women, and six white men. Gilland contends he was denied equal protection because he is a black male, the victim is white, and the state exercised peremptory strikes to exclude two black males from the jury panel. He argues specifically the failure to comply with Batson v. Kentucky, 476 U.S. 79 (1986) and J.E.B. v. Alabama ex rel T.B., 511 U.S.__, 128 L. Ed. 2d 89 (April 19, 1994).

The United States Supreme Court has held that the Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude potential jurors solely on account of their race. Batson, supra; Powers v. Ohio, 499 U.S. 400 (1991). In J.E.B., the Supreme Court found that “gender, like race, is an unconstitutional proxy for juror competence and impartiality.” The Court noted that as with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. J.E.B., supra.

The appropriate procedure to be followed pursuant to a Batson challenge has been defined. First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993). 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. Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

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. Franklin, supra; Tucker, supra. The standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against a preponderance of the evidence. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990).

During the jury selection process, the appellant made a challenge under Batson to the State’s peremptory challenge to excuse a black male juror, Dexter Calloway. The trial court concluded the appellant failed to make a prima facie case that racial discrimination was the basis of the juror challenge. The court noted that of the jurors on the panel two were black and six were white. Further, the State had exercised four peremptory challenges — only one of which was a black juror (Mr. Calloway). Nevertheless, the State undertook to explain that the juror had failed to make eye contact during voir dire and was unresponsive to questions.

When the state subsequently struck Clifford Morgan, a black male, appellant made another Batson challenge. At that point the jury consisted of two black females, four white females and five white males. The trial judge opined that a pattern had developed because the state had struck the only two black males called to the jury. The state responded that Morgan gave evasive responses to questions on the burden of proof, indicating he expected the state “to prove its case by 100%.” Asked whether people are responsible for their actions, he stated, “It depends.” Further, the state explained he brought up the death penalty inappropriately and even after being told it had no application to this case, he hesitated with each answer. The trial court ruled the state had presented racially neutral reasons which were borne out by what the trial court had observed during voir dire.

On appeal, the appellant contends the prosecution unconstitutionally used its peremptory strikes to exclude black males, specifically, Clifford Morgan. The appellant relies on Bat-son and J.E.B. read in conjunction. However, appellant did not properly raise the gender issue and did not seek a ruling on that basis. At trial, Gilland objected under Batson to the State’s use of a peremptory challenge to excuse juror Clifford Morgan. The appellant, however, did not object based upon gender or refer to J.E.B., which was not yet decided at the time of appellant’s trial. Because an appellant may not change his grounds for objection on appeal, this point is not preserved on appeal. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

Arguably, the gender issue was introduced in the response of the trial judge to appellant’s Batson objection:

TRIAL COURT: I am seeing a pattern develop, but it’s not exactly the way you’ve outlined it. The state has exercised six of its eight strikes. Four of those strikes have been against females. The state has exercised only two strikes against males, and both of those are black males. Both were the only two black males that have been called to the panel and who have been eligible for strikes. Even though we had two jurors left, those were both black females. So for that reason at this point, I could see what could be termed a pattern involved, in that all black males who have been called have been stricken by the state. There have been no white males struck at all. The defendant in this case is a black male. Because I see this pattern I am now going to ask the state to respond to this motion.

When the prosecutor concluded his reasons for striking Mr. Morgan, the trial judge ruled as follows:

TRIAL COURT: The court finds that the reason given by the state was racially neutral. I note that the other jurors were asked similar questions and none had similar responses that Mr. Morgan did. The state does not have to show that they had reason for a challenge for cause, but only that the reason was racially neutral. I find that is borne out by what I have heard and seen during this voir dire. The Batson objection is overruled.
DEFENSE COUNSEL: In order to preserve my record, I would at this time to ask for a mistrial based on the Bat-son objection.

Thus the gender issue was neither presented, nor ruled on. The burden of obtaining a ruling is on the appellant and matters left unresolved may not be raised on appeal. Parmley v. Moore, 317 Ark. 52, 876 S.W.2d 243 (1994). Nor has the appellant made any attempt to establish that males have a recognizable status within a cognizable racial group. See Batson, supra; Castaneda v. Partida, 430 U.S. 482 (1977). Moreover, in Tucker v. State, 313 Ark. 624, 85 S.W.2d 948 (1993), we wrote:

And finally, no reason or authority has been advanced to extend Batson to gender challenges within a racially cognizable group. We can divine no reason for doing so in this case.

Accordingly, we hold the issue preserved for review is whether the State unconstitutionally used its peremptory challenges to exclude blacks from the jury. We further hold that given the circumstances as a whole, the appellant failed to establish a prima facie case of purposeful discrimination.

In Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990), in rejecting a Batson argument we emphasized that the jury which convicted the appellant included three black members. We concluded that the presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is significant. Indeed, in Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987) we said the best answer the state can have to a charge of discrimination is to be able to point to a jury which has some black members. In Thompson, supra, we noted that, when the black jurors were seated on the jury, the prosecutor still had peremptory challenges remaining. See also Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). Additionally, the Court noted that the number of black persons serving on the jury (three) was greater than the number struck by the prosecutor (two).

In the instant case, the jury that convicted the appellant included two black persons. Both of those jurors were seated on the jury prior to the peremptory challenges to either Mr. Calloway or Mr. Morgan. Finally, the number of black persons serving on the jury was the same as the number struck by the prosecutor.

II

The Trial Court Unduly Restricted

The Closing Argument For The Defense

The appellant contends the trial court erred by not allowing the defense counsel to refer during closing argument to testimony given by Clinton Stackhouse, called by the state. During cross-examination the following occurred:

Q. All right. In your statement [to the police] you say . . . The white male got back in his truck and tried to take the pistol away from the colored man. Isn’t that what you told the police.
A. Yes. (Emphasis supplied.)

During closing argument, counsel for the defense made the following comment:

Now, Clinton Stackhouse, again, like Miss Dunklin, he doesn’t tell you what he told the police that night. He didn’t tell you what he told the police was that the white man and the colored man, the colored man that’s what he called him —• were having a fight with that gun.

The State objected on the ground there was no testimony that Mr. Stackhouse had made the statement. The trial court said he did not “remember hearing that word used.” Counsel for the defense responded that the witness was questioned regarding the prior statement. The following exchange then occurred:

(Defense Counsel): Your Honor, I read his statement to him, and I said did you not say that the white man and the colored man were fighting with the gun out there? He was right ■—
The Court: What was his response?
(Counsel): His response was I don’t remember saying that. (Emphasis supplied.)
The Court: All right. Now, now did you introduce his statement in evidence to prove that he did, in fact, say it?
(Counsel): No, . . .
The Court: . . . Unless he admits that statement, having made that statement, or it is introduced into evidence, it’s not in evidence.

On appeal, the appellant correctly notes that the witness affirmed his use of the term “colored man” in his prior statement. Indeed, the appellant correctly asserts the trial court mistakenly concluded the witness had not admitted the remark and sustained the State’s objection. However, defense counsel mistakenly informed the trial court that Mr. Stackhouse’s response was, “I don’t remember saying that.” (Emphasis supplied.) On that basis the trial court concluded the testimony was not in evidence and was not subject to comment. An appellant may not claim reversible error based on his or her own error at trial. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994). Moreover, we do not regard the point as rising to the level of reversible error. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993).

Affirmed.

Dudley, J., not participating.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    STATE of Arkansas v. Andre Keith DENNIS
    CR 94-439
    883 S.W.2d 811
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      Paul Johnson, for appellee.
   David Newbern, Justice.

On January 6, 1994, Andre Keith Dennis pleaded guilty to two counts of theft by receiving. His plea was accepted, and sentencing was postponed until February 3, 1994. At the sentencing hearing, Mr. Dennis acknowledged his prior felony convictions and that he was to be sentenced as an habitual offender with more than one but fewer than four such prior convictions. When the Trial Court began to recite the sentence to be imposed, he stated it was to be imprisonment for five years. The deputy prosecutor objected, stating that at the time the crime was committed, July 15, 1992, the law required a minimum sentence of 10 years. The Trial Court pointed out, apparently referring to Ark. Code Ann. § 5-4-501, that the new sentencing law, which would allow a minimum five-year sentence, purports to apply to crimes committed after June 30, 1983, and he proceeded to sentence Mr. Dennis to five years imprisonment. The State has appealed, and we find it necessary to reverse and remand for resentencing.

The State’s appeal is based on Ark. R. Crim. P. 36.10(c) which permits the State to appeal if the Attorney General is satisfied that error has occurred in a criminal prosecution and the error is both prejudicial to the State and that the “correct and uniform administration of the criminal law requires review by the Supreme Court. . . .” As will be explained below, we have already decided the issue presented in this case and thus have created a precedent which will assure the correct application of the law. We permit this appeal, however, as it will foster uniform application of the law with respect to sentencing. State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994).

The Trial Court did not, at the time sentencing occurred, have the benefit of our decision in Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994), which was not handed down until June 13, 1994, over four months later. In the Neely case we held the General Assembly, in Acts 532 and 550 of 1993, codified in § 5-4-501, did not intend to apply the new, reduced sentences specified in those Acts to felonies committed after June 30, 1983, but that its intent was to make them applicable to felonies committed after June 30, 1993.

The State correctly cites the Neely case as well as other recent cases in which we have made it very clear that the law in effect at the time of the commission of a crime applies to determine the sentence to be imposed. State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993); State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994); State v. Williams, supra.

Without acknowledging those cases, Mr. Dennis challenges the proposition for which they stand. He argues a defendant is entitled to be sentenced under either the law in effect at the time of commission of the crime or that in effect at the time of sentencing, whichever is more lenient. For that proposition he cites United States v. Swanger, 919 F.2d 94 (8th Cir. 1990), and United States v. Bell, 991 F.2d 1445 (8th Cir. 1993).

The Swanger and Bell cases hold it is a violation of the constitutional prohibition of ex post facto legislation to apply a law creating a harsher sentence than the one in effect at the time the crime in question was committed. The cases cited by Mr. Dennis are thus consistent with our rule requiring application of the sentencing law in effect at the time the crime was committed.

As we observed in State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993), a remand for resentencing does not violate the rule against double jeopardy. We therefore reverse the judgment to the extent of holding the sentence imposed was improper and remand for resentencing.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    Eugene WESLEY v. STATE of Arkansas
    CR 94-376
    883 S.W.2d 478
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994

      Jeff Rosenzweig, for appellant.

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

Eugene Wesley brings this appeal from convictions for aggravated robbery, kidnapping and theft for which he received the respective sentences of life, twenty years and ten years in prison. The kidnapping sentence was made to run consecutive to the life sentence. For his points for reversal, Wesley argues the state’s evidence is insufficient to support any of the three offenses and the trial court erred by refusing to continue the trial overnight to permit Wesley to obtain two character witnesses.

First, we consider Wesley’s insufficient-evidence claims that the robbery victim’s (Pat Jones’) testimony identifying Wesley as the perpetrator was implausible. In support of his contention, he points out that the perpetrator was described as having a mask over his face during the robbery and subsequent events, and the other eyewitness testified only that she “believed” Wesley was the one who committed the offenses.

Wesley’s argument relates selected testimony and ignores other relevant evidence that bears on his guilt. In addition, Wesley fails to acknowledge the settled rule that, on appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Friar v. State, 313 Ark. 253, 854 S.W.2d 321 (1993). Also, this court has held that the testimony of one eyewitness alone is sufficient to sustain a conviction. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990).

The record reveals that, at about noon on May 28, 1993, a male, wearing a light-colored sweat suit and also a red scarf mask around his face, entered the Country Store in Falcon. When Wesley entered, Pat Jones, a store employee, actually saw Wesley’s face when his mask fell down and before he could pull it back up. Jones had known Wesley for twenty to twenty-five years. Jones testified she was absolutely sure that Wesley was the one who entered the store, grabbed her and held a knife to her throat while he took money from the cash register. Wesley then forced Jones at knife point into her own truck. He drove the truck a quarter of a mile from the store before letting her out and driving away. Finally, Jones testified that she was sure Wesley was the perpetrator because approximately five or six months before the robbery, he had entered the store wearing a mask and claiming he had a cold. That earlier event helped Jones recognize Wesley’s voice at the time of the robbery. The foregoing evidence alone supports Wesley’s convictions.

Wesley next argues that his trial counsel made an oral motion to continue the trial until the next day, so that he could obtain the presence of two character-witnesses, Reverend and Mrs. Herschel Martin, who were Wesley’s neighbors. He asserts that, because he took the stand in his own defense, denying his guilt, the sole issue at trial became one of credibility, and when the trial court refused to continue the trial for one day to allow Wesley’s character witnesses to testify, that ruling effectively denied him his constitutional right to present a defense. Wesley’s argument is meritless for several reasons.

A trial court’s denial of a motion for continuance will not be reversed absent a clear abuse of discretion, and the defendant has the burden of proof in showing the abuse of discretion. Jones v. State, 317 Ark. 131, 876 S.W.2d 262 (1994). When considering whether a continuance should be granted, several factors are considered, including (1) the diligence of the movant, (2) the probable effect of the testimony or evidence, (3) the relevance of the testimony, and the likelihood of procuring the evidence or witness sought. Failure to exercise due diligence alone can be the basis to deny a motion for a continuance. Id.

Here, Wesley had subpoenas issued for the Martins five days before trial, but no service was had on these two witnesses. Although no returns had been made reflecting service on the Martins, Wesley waited until trial and after he presented the testimony of his mother and father before disclosing the Martins’ absence to the court. When Wesley did bring the Martins’ absence to the court’s attention, he made no motion to continue the case to the next day, nor did he request the court’s ruling on the question of continuance. But most important, Wesley gave no assurance that the Martins would be present the next day if a continuance had been granted. In fact, in opening argument, Wesley stated only that he “hoped” Reverend Martin would testify on his behalf.

In sum, Wesley failed to show diligence in obtaining the Martins as witnesses and offered no likelihood or assurance that the Martins would be present to testify in his behalf if the trial had been continued to the next day. Accordingly, the trial court did not abuse its discretion in refusing a continuance.

Because a life sentence is involved, the record has been reviewed pursuant to Ark. Sup. Ct. Rule 4-3(h), and it has been determined that there were no rulings adverse to Wesley which constituted prejudicial error.

Affirmed.

       Different counsel was retained by Wesley on appeal.

       The prosecutor on his own objected to any continuance because (1) the case had been set for trial that day, (2) Wesley had made no further efforts to obtain his witnesses after no service was had and (3) the Martins’ testimony dealt only with Wesley’s character.


author: Donald L. Corbin, Justice.

text:
    Kenneth BYRUM v. STATE of Arkansas
    CR 94-18
    884 S.W.2d 248
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994

      LaJeana Jones, for appellant.

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

Appellant, Kenneth Byrum, was found guilty by a jury of one count of rape. Appellant was sentenced as an habitual offender with five prior felony offenses to serve a term of imprisonment for life at the Arkansas Department of Correction. Appellant appeals and asserts six points of error. We find no merit and affirm.

SUFFICIENCY OF THE EVIDENCE

The fourth of the six arguments raised by appellant is the trial court erred in denying his motions for directed verdict. We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993). Preservation of appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, 114 S. Ct. 1417 (1994); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Consequently, we consider appellant’s challenge to the sufficiency of the evidence prior to considering his other assignments of trial error.

The test we apply on appeal to determine sufficiency pf the evidence is whether there is substantial evidence to support the verdict, viewing the evidence in the light most favorable to the appellee. Mitchell, 314 Ark. 343, 862 S.W.2d 254; Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture.

As required, we recite the evidence in the light most favorable to appellee. The twelve-year-old victim testified that, at the time of the rape, she lived with her mother, her mother’s friend, Victoria Smith, Ms. Smith’s two teenaged sons, Dwayne and Chad, and Ms. Smith’s boyfriend, Gary Martin, in Martin’s house located outside DeQueen, Arkansas. The victim testified she slept on a mattress in the living room of Martin’s house. The victim testified the thirty-eight-year-old appellant lived “in a little trailer thing in the front yard [of Martin’s house],” and she considered appellant to be a friend of hers and of the other residents of the Martin house.

The victim testified that, on the evening of the rape, she and appellant, together with four of the victim’s friends, whose ages ranged from eleven to fifteen years, drove around DeQueen and neighboring areas in Martin’s Ford king cab truck. The victim testified appellant (the driver) was also drinking beer and driving recklessly. The victim testified the entire group drove to the Martin house around 7:00 or 8:00 p.m. and she then asked her mother for permission to ride with appellant to take the other passengers home. The testimony of the other passengers was they were home no later than 9:00 to 9:30 p.m., leaving only the victim and appellant in the Ford truck.

The victim testified that, after the other passengers had been dropped off, she began to drive and at appellant’s direction she drove down a dirt road to a place where appellant and some of his friends used to go, pulled off the road, turned off the truck and put it in park. The victim testified appellant then put his hand between her legs and told her “all he wanted to do was eat me.” The victim testified she told appellant to leave her alone and appellant replied if the victim did not go along with him, he would kill her. The victim testified appellant pulled her over to his lap, kissed her, undressed her and himself, and then performed oral sex on her. The victim testified appellant then placed her in the back seat of the king cab where she lay on her back, appellant got on top of her, “stuck his penis inside of me,” sucked her breasts and, finally, forced her to simultaneously perform oral sex on him while he performed oral sex on her.

The victim testified appellant told her to say they had a flat tire to account for arriving home so late. The victim testified she relayed the flat tire story to her mother upon returning to the Martin house at approximately 10:30 p.m., told Chad Smith what “[appellant] did to me”, took a bath and was asleep on the mattress in the living room about 11:00 p.m. Chad Smith testified the victim told him “Kenny raped me” after she returned home that evening.

The victim testified she went to school the following morning and reported the rape to her teacher, then to her school counselor, and then to a representative of the State’s Department of Human Services, Child Welfare Division. The testimony of the teacher and school counselor confirmed the victim told them about her rape the evening before.

Dr. Susan Couture, a board-certified physician in the fields of internal medicine and pediatrics, was admitted as an expert witness regarding medical matters. She testified she examined the victim on the day after the rape. She testified her examination revealed a bruise in the lower part of the victim’s back as well as a superficial scratch, a small bruise on her inner thigh, and two tears in the victim’s hymen. She testified her examination was consistent with penetration of the victim “most likely within 24 to 48 hours” and the results of her examination were consistent with the victim’s statement to her that the victim had been raped the night before.

We have repeatedly held the uncorroborated testimony of the rape victim is sufficient to uphold the defendant’s conviction for rape. See, e.g., Lukach, 310 Ark. 119, 835 S.W.2d 852. In this case, the victim testified appellant committed the rape. Although corroboration was not required, the testimony of Dr. Couture and Chad Smith, in fact, corroborated the victim’s testimony.

On appeal, appellant raises arguments based on the credibility of the witnesses, including conflicting testimony. We have held many times the determination of these issues is left to the trier of fact. Lukach, 310 Ark. 119, 835 S.W.2d 852; Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). The jury judged the credibility of the victim’s testimony and returned a guilty verdict. The evidence is substantial and therefore sufficient to support the verdict.

ADMISSIBILITY OF CHAD SMITH’S TESTIMONY UNDER EXCITED UTTERANCE EXCEPTION

On direct examination, Chad Smith was allowed to testify the victim told him “Kenny raped me.” Appellant argues this statement was inadmissible hearsay not within the excited utterance exception in A.R.E. Rule 803(2). We conclude appellant did not preserve his argument by timely objection at trial, and we are precluded from reviewing this issue on appeal. A.R.E. Rule 103(a).

A summary of the events at trial pertinent to the introduction of the challenged statement is useful in our review. Chad Smith was called as the State’s second witness, his testimony having been preceded by opening statements of counsel and the testimony of the State’s first witness, Officer Ray Gentry, Sevier County deputy sheriff, regarding his investigation of the rape.

The State then called Chad Smith, whereupon counsel for appellant requested a bench conference. A conference followed immediately between counsel for the State, counsel for appellant, and the trial judge. At the bench, counsel for appellant informed the trial court that appellant was unaware the State intended to call Chad Smith since he was listed as a defense witness, but had no objection to the State calling- this witness except that if the State asked the witness about statements made by the victim, appellant objected on hearsay grounds. The following colloquy ensued:

THE COURT: It sounds like to me if what [Chad Smith] is going to say is what they said in opening statement that was immediately after this incident that it would be an excited utterance and it would be an exception to the hearsay rule.
MS. JONES [for defense]: Your Honor, the excited utterance has to fall very close behind —
MR. WRIGHT [for State]: No. As soon as they got through with the rape they went directly to the house and we’re talking about ten minutes.
MS. JONES: She didn’t hit the door and run to Chad.
THE COURT: I’m going to overrule your objection. ' I believe it is excited utterance based on what I’ve heard about it so far.

We conclude this ruling by the trial court was simply a preliminary or qualified ruling on the admissibility of the victim’s out-of-court declaration to Chad Smith, subject to the introduction of evidence sufficient to support a final ruling on the matter. The preliminary nature of the trial court’s ruling is manifested by its timing and its language. At the time the ruling was made, there had been no proffer of Chad Smith’s testimony. The witness had not yet taken the stand, been asked any questions, or given any foundation testimony pertinent to the availability of the excited utterance exception. At that point in the trial, based on statements of counsel, the trial court could only anticipate that Chad Smith’s testimony might include hearsay statements potentially admissible under the excited utterance exception. Accordingly, the trial court specifically framed its ruling in terms of the limited record before it, stating: “I believe it is excited utterance based on what I’ve heard about it so far” (emphasis added).

On direct examination of Chad Smith, after concluding its foundation questions, the State then asked the witness what the victim said to him. Appellant did not object to the question, nor did he renew or request a final ruling on his previous objection on this issue. Appellant did not move to strike the hearsay testimony. Based on the foregoing, we conclude appellant failed to make a timely objection at trial to the admission of the challenged statement, thus precluding appellant from raising this issue on appeal.

SENTENCING AS HABITUAL OFFENDER — USE OF PRIOR CONVICTION POLK COUNTY CIRCUIT COURT #CR-77-29

Appellant argues the trial court erred in using his 1977 burglary conviction in the Polk County Circuit Court, Docket #CR-77-29, in determining appellant’s sentence here as an habitual offender pursuant to Ark. Code Ann. § 5-4-501 (Repl. 1993).

A prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or validly waived counsel. Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989). In the event the record of the prior conviction does not show the defendant was represented by counsel, a presumption arises the defendant was denied assistance of counsel and the conviction cannot be used to enhance punishment under our habitual offender provisions. Id. The State has the burden of proving a defendant’s prior conviction. On appeal, the test is whether there is substantial evidence the defendant was previously convicted of the felony in question. Id.

Prior to trial, the State provided to appellant’s counsel a copy of the uncorrected Arkansas Department of Correction commitment sheet for the challenged conviction. At trial, during an in-camera hearing held after the culpability stage of this bifurcated proceeding, the State provided to the trial judge and appellant’s counsel a corrected copy of the Arkansas Department of Correction commitment sheet (the correction pertained to a matter not relevant to this discussion), and a copy of the Polk County Circuit Court’s criminal court docket sheet for the challenged conviction. Both copies were certified by the Polk County Circuit Court Clerk’s Office.

The copies of the uncorrected and corrected commitment sheet contained a blank space where the defendant’s attorney should have been listed, and showed “George E. Steel, Jr.” as attorney for the State. Both versions of the commitment document indicated the appellant pleaded “guilty” after withdrawing an initial plea of “not guilty.”

The copy of the docket sheet contained a column headed “Attorneys.” In that column, opposite the State’s name was written the name “George Steel, Jr.” and opposite the defendant’s name was written the name “Bob Keeter.” At the in-camera hearing, the trial judge inquired as to whether “Bob Keeter” was an attorney in Polk County, and appellant’s counsel replied she believed he was.

Appellant objected to the certified copies of the corrected commitment sheet and the docket sheet because those documents had not been provided to his counsel by the State through discovery prior to trial. This argument is without merit. We recently held, in Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994), no error was committed by the trial court when it examined original docket entries for proof of the defendant’s representation by counsel at a prior conviction in sentencing the defendant as an habitual offender where the State had' supplied the defendant with a “pen pack” for each prior conviction which did not reflect the defendant had an attorney in each case. The defendant there objected because the docket entries were not supplied to defense counsel prior to the sentencing phase of trial. We determined that objection to be meritless since the defense had been put on notice the State was going to ask for sentence enhancement because of the prior convictions and should have anticipated the pen pack’s deficiency regarding prior representation being corrected.

In his brief, appellant relies upon Tims v. State, 26 Ark. App. 102, 760 S.W.2d 78 (1988), supp. op. on reh’g, 26 Ark. App. 106-A, 770 S.W.2d 211 (1989), and Neville v. State, 41 Ark. App. 65, 848 S.W.2d 947 (1993), and also objected to the documents as ambiguous concerning the prior representation issue. We do not address this argument because it is raised for the first time on appeal. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993).

SENTENCING AS HABITUAL OFFENDER — USE OF PRIOR CONVICTION JOHNSON COUNTY CIRCUIT COURT #CR-76-48

Appellant next argues the trial court erred in using his 1976 conviction for First Degree Carnal Abuse in the Johnson County Circuit Court, Docket #CR-76-48, in determining his sentence here as an habitual offender. Appellant objects to the form of the certification used by the Johnson County Circuit Clerk for the copy of the trial court’s judgment which was presented as proof of the challenged conviction.

The Johnson County certificate form reads as follows:

CERTIFIED TRUE COPY IS/ (JANE BIRKHAHN) JANE BIRKHAHN, CIRCUIT CLERK, JOHNSON COUNTY, ARK.

The Circuit Clerk’s certificate and impressed seal is set forth in the lower left hand corner of a date-stamped “filed” copy of the trial court’s judgment for the challenged conviction.

Appellant argues the Johnson County Circuit Clerk’s format is insufficient proof of the conviction because it does not state the copy is a true and correct copy of the original, when the original was filed, or when the certified copy was prepared. Appellant cites no authority for this argument.

Our statute governing proof of previous convictions for sentencing enhancement provides a previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt the defendant was convicted or found guilty. Ark. Code Ann. § 5-4-504 (Repl. 1993). Subsection (b) of the statute provides further: “(b) The following are sufficient to support a finding of a prior conviction or finding of guilt: (1) A certified copy of the record of a previous conviction or finding of guilt by a court of record[.]”

The Johnson County Circuit Clerk certified the copy of the previous conviction record as a true copy. Therefore, we hold the State sufficiently proved this prior conviction in compliance with section 5-4-504(b)(l).

RAPE SHIELD STATUTE

Appellant next argues the trial court erred in refusing to admit evidence of the victim’s prior sexual conduct. We affirm the trial court’s ruling on this issue.

The admissibility of a rape victim’s prior sexual conduct is determined pursuant to the procedures set forth in Ark. Code Ann. § 16-42-101 (Repl. 1994) (the “Rape Shield Statute”), and is discretionary with the trial court. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In evaluating the admissibility of such evidence under the statute, the trial court determines whether the probative value of the evidence outweighs its inflammatory nature. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994). The trial court is given a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn its decision unless it constituted clear error or a manifest abuse of discretion. Id.; Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

In accordance with section 16-42-101(c), appellant filed a written motion on May 28, 1993 for an in-camera hearing to consider the admissibility of “relevant evidence of the victim’s prior sexual conduct for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, lack of truthfulness, and contradiction in statements.” This motion was heard in chambers on the day of the trial prior to the trial’s commencement. No witnesses were called by appellant and no documents were offered. In short, no proffer of the “relevant evidence” was made. Hence it is impossible for us to consider the admissibility of this evidence on appeal. Gaines, 313 Ark. 561, 855 S.W.2d 956. We note appellant did not object to and does not appeal any issue relating to the adequacy of the in-camera hearing. Thus, that issue is not before us. Laughlin, 316 Ark. 489, 872 S.W.2d 848.

MOTION FOR CONTINUANCE

Appellant’s final argument is the trial court should have granted a continuance. Appellant’s motion for continuance was filed on June 1, 1993, two days prior to the trial date, and heard at an in-camera proceeding held on the morning of the trial. On appeal, appellant argues the motion for continuance should have been granted to permit appellant additional time to review a thirteen-page statement given by the victim to Ms. Marsteen Harris, a criminal investigator with the Arkansas State Police, and to review certain tape recordings mentioned in the statement.

A review of the transcript of the in-camera hearing on the motion identifies the thirteen-page statement as that given by the victim during an interview conducted by Ms. Harris on May 28, 1993. The transcript also reveals a copy of the statement was provided to appellant’s counsel on June 2, 1993.

The burden is on the movant to show good cause for a continuance. A.R.Cr.P. Rule 27.3. The motion for continuance is addressed to the trial court’s sound discretion. Oliver v. State, 312 Ark. 466, 851 S.W.2d. 415. The trial court’s exercise of its discretion will not be reversed absent a showing of clear abuse of discretion; the burden of proving prejudice and an abuse of discretion belongs to the appellant. Id. Among the factors the trial court should consider in determining whether a continuance should be granted are the diligence of the movant and the probable effect and the relevance of the testimony at trial. Id.

We conclude appellant has failed to carry his burden to show prejudice in this matter. Appellant was provided with a copy of the thirteen-page statement on the day prior to the trial date. Moreover, the victim testified at the trial, and appellant made frequent references to the interview with Ms. Harris on cross-examination of the victim. With respect to the tape recordings, we observe they were never mentioned at trial and appellant fails to identify the nature and content of the tapes, and, therefore, to demonstrate any prejudice resulting from his failure to review them prior to trial. Finally, we note appellant agreed to the immediate trial date at the bond reduction hearing conducted three weeks prior to the trial date without conditioning that consent on the availability of further discovery from the victim or any other witness.

In accordance with Ark. Sup. Ct. R. 4-3(h) and Ark. Code Ann. § 16-91-113(a) (1987), we have examined the record and determined there were no rulings prejudicial to appellant.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Ricky Lee FRANKLIN v. STATE of Arkansas
    CR 94-407
    884 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994

      C.P. Christian, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Ricky Lee Franklin appeals from a judgment of conviction for two counts of burglary. He was sentenced to forty years imprisonment. He raises two points on appeal: (1) an insufficient foundation was laid by the State for the admission of two pieces of physical evidence; and (2) the evidence was insufficient to corroborate the testimony of an accomplice in that it failed to independently connect Franklin with the crimes. The points are meritless, and we affirm.

On July 22, 1991, Franklin was charged with committing thirteen burglaries in Lonoke County. The thirteen crimes occurred in Cabot, and two concerned burglaries of a convenience store named Pony Express #4 and a business named River City Gymnastics. The two charges read that the defendant “during a time period from June 27-28, 1991, in Lonoke County, Arkansas did unlawfully” enter Pony Express #4 and River City Gymnastics for the purpose of committing a felony.

On December 16, 1992, Franklin was tried for the two burglaries. At the trial, the State called Jimmy Doyle Mayfield as its first witness. Mayfield testified that he, Franklin, and a third man named Carl Radar committed several burglaries in Cabot during the summer of 1991. Mayfield first described breaking into a convenience store. He testified that Franklin took the glass door out of its frame, and Mayfield went in and took money out of the cash register. Mayfield and Franklin then located a safe in the store, took it outside, pried it open, took some money out of it, and left it behind a dumpster.

Following the convenience store burglary, Mayfield testified that the three men entered a gymnastics store by using a screwdriver to force open the front door. They got some money out of a coke machine and next found a swimsuit which they cut up and converted into a ski mask. The State moved to introduce the makeshift ski mask into evidence as State’s Exhibit 1, and defense counsel objected on grounds of lack of a proper foundation. Specifically, defense counsel contended that Mayfield had failed to pinpoint the dates of the burglaries and that mere testimony that they occurred during the summer of 1991 was not sufficient to put Franklin on notice to prepare a defense. The trial court overruled the objection.

Mayfield further testified that the three men used a police scanner belonging to Franklin in the burglaries. Mayfield identified that police scanner at trial, and the State moved its introduction as State’s Exhibit 2. Defense counsel objected on the same grounds of lack of proper foundation, and the trial court, again, overruled that objection.

The State next called Lieutenant Sherman Malcomb of the Cabot Police Department, who investigated the two burglaries on the morning of June 28, 1991. He related that at Pony Express #4 the solid glass door had been removed to gain entry. Inside the store, the burglars had opened the cash register and also removed a safe which was found pried open and left beside a dumpster behind a hardware store. At River City Gymnastics, he stated that the front door had been pried open, and leotards, swimsuits, and other gymnastic clothing were taken.

Jerri Tollett, the owner of River City Gymnastics, testified that some $300 to $500 worth of gymnastic clothing was stolen from her store. She also identified State’s Exhibit 1, the converted swimsuit, as an item carried in her store which had to be specially ordered from out of state.

For its last witness, the State called Detective Mark Baugh of the Heber Springs Police Department. Detective Baugh told the jury that he had confronted Franklin, Mayfield, and Radar on July 2, 1991, leaving room 20 of the Arkansas Inn in Heber Springs and had found the converted swimsuit and police scanner, State’s Exhibits 1 and 2, in the ceiling of that room.

The State then rested and defense counsel moved for a directed verdict which was denied. After the defense rested, the motion was renewed but again denied.

The jury was then instructed on the applicable law, but the abstract of record reflects that no instruction on accomplice testimony and the need for corroborating evidence (AMCI 402) was given to the jury or even offered by the defense. The jury returned a verdict of guilty on the two counts, and the forty-year sentence was imposed.

For his first point, Franklin urges that the State was not specific enough with its dates in laying a foundation for the introduction of the swimsuit which was converted into a ski mask and the police scanner, State’s Exhibits 1 and 2. The argument pertains to Jimmy Mayfield’s testimony that the burglaries occurred during the summer of 1991. Franklin argues that this testimony is not sufficiently precise to enable him to fashion a defense. We disagree.

The information filed in this case was very exact as to when the two burglaries occurred — June 27-28, 1991. Thus, from the outset Franklin knew the timeframe in question and was also privy to Cabot police information, including the affidavit for arrest warrant, which specified the date of the crimes as “the night time hours of 27/28 June 1991.” The testimony of Jimmy Mayfield, though less precise, was certainly not at odds with the dates in the criminal information or in the affidavit for arrest. Moreover, Franklin knew that Detective Baugh confronted both Mayfield and him in Heber Springs on July 2, 1991, and found the cut-out swimsuit and the police scanner. By necessity, Franklin knew that the crimes involved had to have occurred before then.

The issue before us is not, as Franklin suggests, one where a discrepancy existed between the dates in the charging information and testimony at trial. See, e.g., Lewis v. State, 309 Ark. 392, 831 S.W.2d 145 (1992); Payne v. State, 224 Ark. 309, 272 S.W.2d 829 (1954). Here, the criminal information and May-field’s testimony can easily be harmonized. The trial court correctly refused to give this argument any credence.

For his second point, Franklin contends that there was insufficient evidence to corroborate the testimony of Jimmy Mayfield, an accomplice. Franklin is right that when accomplice testimony is involved, statutory law requires that there be other corroborative evidence “tending to connect the defendant with the commission of the offense.” Ark. Code Ann. § 16-89-111(e)(1) (1987). Franklin urges that in his case there was none.

We decline to consider this issue. There is nothing in Franklin’s abstract of the record which shows that this issue was ever raised to the trial court. No motion or argument by defense counsel is presented in the abstract. Nor do we have before us a ruling by the trial court on whether Mayfield was an accomplice as a matter of law or a proffered instruction to the jury on the necessity for corroborative evidence. Our Supreme Court Rules make it abundantly clear that it is incumbent upon the appellant to abstract the material parts of the record for our review. Ark. Sup. Ct. R. 4-2(a)(6). The reason is basic. There are seven justices on this court and only one record. When an abstract is so deficient that we are unable to discern what happened in the trial court, we will affirm. As we have said many times, we will not scour the single record searching for prejudicial error, except in death or life imprisonment cases where a motion, objection, or request on the point at issue was made before the trial court. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980).

In this regard, we are aware that the State in the Argument portion of its brief alluded to a motion by Franklin for a directed verdict and his contention that Mayfield’s testimony was not independently corroborated. Even though the State appears to have conceded that Franklin raised lack of corroborative evidence as part of his motion for directed verdict, we are not prepared to say that references in the State’s Argument to what transpired at trial equate to an abstract of the record. But even if we were, this issue is still not preserved for our review. Franklin failed to abstract any ruling from the trial court that Mayfield was an accomplice as a matter of law and that corroborative evidence was required. In addition, he neglected to include in his abstract any reference to a proffered instruction on accomplice testimony and corroborative evidence which would have enabled the jury to decide the issue. Because of these circumstances, we conclude that his abstract is flagrantly deficient, and our cases foreclose a review of this point. See, e.g., Watson v. State, supra.

Affirmed.

       The new model criminal instruction, published in 1994, is AMCI 2d 402.


author: Per Curiam.

text:
    Jerry Lee BURRESS v. Robert EDWARDS, Circuit Judge; Jess Odom, Sheriff, White County, Arkansas, and the State of Arkansas
    94-976
    883 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

On December 15, 1993, Jerry Lee Burress pled guilty to possession of a controlled substance and was sentenced to a term of years in the state penitentiary. He posted an appeal bond, but no notice of appeal was filed. On September 1, 1994, he was arrested and incarcerated, and his appeal bond was revoked. He now moves for a belated appeal under Ark. R. Crim. P. 36.9, and his attorney, A. Wayne Davis, admits fault in failing to file a notice of appeal in timely fashion.

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


text:
    Undra SUMLIN v. STATE of Arkansas
    CR 94-362
    883 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994

      Matthew J. Ketcham, for appellant.
    No response.
   Per Curiam.

Undra Sumlin, by his attorney, Matthew J. Ketcham, has filed a motion to file a belated record. We treat this as a motion for belated appeal.

His attorney, Matthew J. Ketcham, admits by motion that the record was tendered late due to a mistake on his part in calculating the forty-five days for filing the record pursuant to our per curiam of July 11, 1994.

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


text:
    R. Robert BAILEY, and Ed H. Smith, Individually, and On Behalf of the Committee to Save Arkansas Jobs, Inc., and All Others Similarly Situated v. W.J. “Bill” McCUEN, Secretary of State
    94-951
    884 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered September 27, 1994
   Per Curiam.

On September 20, 1994, the Honorable Tom Digby was duly appointed Master in this original action. Because of recent surgery, it is necessary to replace Judge Digby with the Honorable Darrell Hickman.

By this appointment Judge Hickman is directed to discharge the responsibilities assigned to the Master as set out in our Per Curiam of September 20, 1994.


author: Robert H. Dudley, Justice.

text:
    Jimmy Dewayne WALKER v. STATE of Arkansas
    CR 94-563
    883 S.W.2d 831
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      Paul J. Teufel, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Jimmy DeWayne Walker lost $17,000 gambling with Larry Conway. Conway demanded his money. Walker took him to the apartment of a friend under the pretext of getting some of the money. The two men argued. Walker went into an adjoining room and returned with a concealed pistol. He fatally shot Conway from behind, placed his body in a sheet, loaded the body in the trunk of a car, cleaned up the apartment, drove the car to a field near Memphis, and set the car on fire.

At trial, Walker’s attorney timely moved for a directed verdict. His motion stated that there was insufficient evidence for a verdict of either first degree murder, second degree murder, or manslaughter. The court denied the motion. Walker was con- • victed of first degree murder. On appeal, he argues the evidence was insufficient to prove that he had the culpable mental state required for first degree murder. The outcome of this appeal would be obvious if we were to reach its merits, but we do not do so because the assignment of error was not preserved for appeal.

This case gives us the opportunity to make clear the standard for preserving an insufficiency-of-the-evidence argument. Before we adopted the Arkansas Rules of Criminal Procedure, we said that a general motion for a directed verdict was sufficient to apprise the trial court of a defendant’s argument that the statutory elements of the crime were not proved, but nothing more. See, e.g., Rogers v. State, 248 Ark. 696, 453 S.W.2d 393 (1970). However, since the adoption of the Rules of Criminal Procedure, as amended, we have required that the basis of the motion be specified. A general motion is no longer sufficient to preserve the “statutory elements” ground. Rule 36.21(b) of the Arkansas Rules of Criminal Procedure, adopted in 1988, specifies when a motion for a directed verdict must be made, and it is intended to be in “alignment” with the Rules of Civil Procedure. See A.R.Cr.P. Rule 36.21 reporter’s notes (1988). Rule 50 of the Arkansas Rules of Civil Procedure provides that a “motion for a directed verdict shall state the specific grounds therefor.” A.R.C.P. Rule 50(a). A motion for a directed verdict in a criminal case likewise must “state the specific grounds therefor.”

Other practical reasons have caused us to require that the grounds for the motion be specified. In multiple-count cases,, which mandate different degrees of culpability for the lesser included offenses, it is easy for an element of one of the counts for lesser included offenses to be overlooked. Since a general motion for a directed verdict does not specify the missing element, the trial court is not apprised of the proof that was overlooked. As a result, the trial court is not made aware of the deficiency. See, e.g., Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992).

Since the 1988 amendment to Rule 36.21(b), we have repeatedly required that a motion for a directed verdict state the specific grounds of the motion. We have reiterated that the moving party must specifically apprise the trial court of the basis for the motion. See, e.g., Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994); Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989). “A directed verdict motion must be a ‘specific motion to apprise the trial court of the particular point raised.’” Patrick v. State, 314 Ark. 285, 287, 862 S.W.2d 239, 241 (1993) (quoting Middleton, 311 Ark. at 309, 842 S.W.2d at 435). “The reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.” Brown, 316 Ark. at 726, 875 S.W.2d at 830.

We draw a bright line and hold that a motion for a directed verdict in a criminal case must state the specific ground of the motion. Rule 36.21 of the Arkansas Rules of Criminal Procedure is to be read in alignment with Rule 50 of the Arkansas Rules of Civil Procedure. If a motion for directed verdict is general and does not specify a basis for the motion, it will be insufficient to preserve a specific argument for appellate review. Rogers and other similar cases decided before the adoption of our Arkansas Rules of Criminal Procedure, as amended, are no longer controlling.

Appellant received a life sentence. As a result, the record has been examined for any other rulings adverse to appellant that might constitute reversible error. See Ark. Sup. Ct. R. 4-3(h). No other adverse rulings constitute reversible error.

Affirmed.


author: Steele Hays, Justice.

text:
    Joseph John RANK v. STATE of Arkansas
    CR 93-1328
    883 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      J. Sky Tapp, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Joseph John Rank was tried and convicted of first degree murder for the death of Laura Full-bright, age sixteen months. Rank was sentenced to life imprisonment. We find no merit in the several points raised on appeal.

Laura Fullbright died as a result of injuries suffered on September 12, 1992. Dr. William Stumer, Chief Medical Examiner for the State of Arkansas, testified Laura died from traumatic injuries to the head. Laura’s mother, Mary Ellen Robbins, and Joe Rank were living together at the time. Rank maintained Laura was injured in a fall in the driveway.

Motions For Mistrial

Three points of error involve motions for mistrial:

During voir dire a prospective juror, responding to a question by defense counsel concerning her ability to be fair, answered, “I just have a feeling that a child that is murdered is something that I would have a hard time with and I don’t think I could be maybe fair.” Counsel immediately asked for a mistrial, urging that neither he nor the prosecutor had yet mentioned murder. The motion was denied.

Second, during opening statement the prosecutor told the jury:

You will have no reasonable doubt, Ladies and Gentlemen, that the defendant, who places himself in the sole care of this child, is simply not telling the truth when he says she fell down on the driveway.

Counsel interrupted to urge the prosecutor was “now commenting on what my client will or will not say. He’s not required to take the stand.” The motion was denied.

Finally, during redirect examination of one of the attending physicians, the prosecutor struck the counsel table with her hand to demonstrate the type of blow her question contemplated, prompting a mistrial motion. It, too, was denied. Appellant argues the prosecutor engaged in staged histrionics, striking the table in “a violent downward manner.”

This court has said repeatedly that mistrial is a drastic remedy and proper only where the error is beyond repair and the trial cannot in fairness continue. The trial court has wide discretion and we will not reverse in the absence of an abuse of discretion. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994). None of the cited episodes rise to that level. The prospective juror was responding candidly to counsel’s question. Whether either lawyer had mentioned murder is beside the point. Certainly the panel had been generally informed as to the nature of the case it had been called to try.

Second, the prosecutor’s opening statement was in reference to a taped statement voluntarily given by Joe Rank attributing Laura’s injuries to a fall in the driveway. The prosecution planned to introduce the statement in evidence. Appellant argues on appeal the remark was a comment on the right of the accused to remain silent as provided by the Fifth Amendment, citing Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993). But the reference was to his statement, not to whether or not he testified and he did, in fact, take the stand and deny he had ever harmed Laura. Where evidence is admissible, a party is entitled to refer to it during opening statement. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Also, a prosecutor is allowed to argue any inference reasonably deducible from the evidence. Id. Further, we have held that, where an appellant’s confession was properly admitted into evidence, there was no error in permitting the prosecutor to detail the confession to the jury in his opening statement. House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959); Mouser v. State, 216 Ark. 965, 228 S.W.2d 472 (1950). In short, the prosecutor’s comment was not inappropriate to the anticipated proof.

As to the “histrionics,” we see nothing basically wrong with counsel attempting to demonstrate manually the amount of force it might require to leave a given imprint. As to the manner by which it is carried out, we are wholly dependent on the trial judge, who sees and hears what occurred, whereas we have only a mute record.

Photographs

Appellant’s next assignment of error involves five color photographs of Laura, four in a hospital bed and one, evidently taken earlier, depicting a badly bruised and swollen left eye. Appellant submits the probative value of these exhibits, as well as an enlarged artist’s rendering of an alleged hand print on the child’s chest and stomach (Ex. No. 8), was substantially outweighed by the danger of undue prejudice.

As to the enlargement, it is neither abstracted nor in the record. Of the remainder, their admissibility is a matter for the sound discretion of the trial court and its ruling will not be reversed in the absence of an abuse. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). The admissibility of photographs, even those that are appalling and gruesome, is influenced by whether they assist the jury in any of the following: (1) by shedding light on some issue; (2) by proving a necessary element of the case; (3) by enabling a witness to testify more effectively; (4) by corroborating testimony; or (5) by enabling jurors to better understand the testimony. Sanders, supra; Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). The mere fact that a photograph is inflammatory or cumulative is not, in and of itself, a sufficient reason for its exclusion. Weger, supra. Here, the photographs were used by medical witnesses to illustrate the nature and extent of the injuries. Where the issue is whether injuries are accidental or deliberate, we cannot say the trial court abused its discretion in submitting such photographs to the jury.

Character Witness

Another point of error concerns the cross examination of four witnesses called by the defendant: Kevin Eakin, Daniel Susan, Gary Burgess and Dan Reeves.

On cross-examination, Kevin Eakin, a long time friend of Joe Rank, was asked about a hostile relationship between Rank and his father. Defense counsel objected and the trial court sustained the objection. Thus, appellant received the relief he requested at trial. See Jurney v. State 298 Ark. 91, 766 S.W.2d 1 (1989).

On direct examination, Daniel Susan testified to the reputation of Joe Rank in the community as being “a trustworthy, gentle, kind individual.” On cross-examination Susan was asked if he was aware of an incident in 1987 when Rank threatened Ms. Linda Dean with a gun and threatened to blow up her house. A defense objection was overruled and Susan testified he was not aware of such threats. The witness was asked his opinion, based upon his knowledge of the appellant, as to the latter’s reputation in the community. The only purpose the questions could have had was to show the appellant was a person not disposed to commit the alleged crime. Therefore, Susan was a character witness pursuant to Rule 404.

A.R.E. Rule 404(a) clearly allows evidence of a person’s character to be offered by the prosecution to rebut character evidence offered by an accused. Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1994). Once the admissibility of character evidence is established under Rule 404, A.R.E. Rule 405 establishes the methods of proof which may be utilized. Id. A.R.E. Rule 405 provides in part: “On cross-examination, inquiry is allowable into relevant specific instances of conduct.”

The Court has recognized that by producing a character witness the defendant opens the door to evidence which might otherwise have been inadmissible. Smith, supra; Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986). Rule 405 clearly provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’ knowledge of specific instances of conduct. Smith, supra; Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989); Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986). Such cross-examination tests the witness’s knowledge of the defendant’s reputation and that, in turn, may go to the weight to be given his opinion. Smith, supra. Further, Rule 405 places no limit, other than relevancy, on the kind of instances of misconduct with respect to which cross-examination may occur. Smith, supra; Reel, supra; Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992).

On direct examination Gary Burgess stated the appellant “has a reputation of being a very loyal, honest person.” On direct examination of Don Reeves, the counsel for the defense inquired “based upon having known Joe for this length of time and the fact that you have been in this community for a number of years, do you have an opinion as to Joe Rank’s reputation in this community.” Reeves stated the appellant “has a good reputation ... [h]e has been very loyal and trustworthy and a gentle spirit.”

During cross-examination, the state questioned both witnesses as to their knowledge of the appellant’s threats towards Ms. Linda Dean and the appellant’s grandfather. The record, however, reveals no objection on the appellant’s part to the line of questioning. The issue is not preserved for appeal. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). In any event, the line of questioning was permissible. Smith, supra.

The trial court did not err in allowing inquiry into relevant specific instances of conduct during cross-examination of appellant’s character witnesses. Whether the witnesses were aware of the prior incidents tested their knowledge of the defendant’s character and the weight to be given to their opinion. The appellant would have been entitled to an instruction limiting the jury’s consideration of the testimony. Smith, supra. However, the instruction was not requested.

Rebuttal Witnesses

The final argument concerns two rebuttal witnesses for the state, Linda Dean and John Dodd. Appellant assigns error to the state’s failure to comply with discovery in that Dean and Dodd were not on the state’s list of witnesses. The record, however, reveals no objection to the calling of the two witnesses. Thus, the issue is not preserved for review. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). Further, the state is not required to furnish the defense with the names of rebuttal witnesses. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied 499 U.S. 913; Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986).

The record had been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the State. No other rulings adverse to the appellant which constituted prejudicial error are found.

For the reasons stated, the judgment is affirmed.


text:
    Bernard J. TRUHE v. Robert GRIMES
    93-1221
    884 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      Lavender, Rochelle, Barnette, Dickerson & Pickett, by: G. William Lavender and Shannon Tuckett.

      McMillian, Turner, & McCorkle, by: F. Thomas Curry, for appellee.
   Steele Hays, Justice.

Bernard J. Truhe brought this appeal from the denial of a motion to set aside a default judgment against him. Mr. Truhe died while the appeal was pending and Mary Engstrom, Special Administratrix, is now substituted as appellant. Having considered the two points for reversal, we find no abuse of discretion by the trial court. Accordingly, we affirm the order appealed from.

In 1991 vehicles driven by Robert Grimes, appellee, and Bernard Truhe collided. Robert Grimes sued for personal injuries and summons was served on Bernard Truhe on July 14, 1993. No answer was filed and on August 13 Grimes moved for a default judgment. The motion was granted on August 23. A hearing on damages was held and the trial judge awarded a judgment to Grimes for $230,000.

On September 15, 1993, Truhe moved to set aside the default judgment under Ark. R. Civ. P. 55(c), asserting he had immediately turned over the summons to his insurance company, Farmers Insurance, and had been assured by Farmers’s agent that it would defend the suit. Truhe argued that any negligence was on the part of the insurance company and not attributable to any action or inaction on his part.

The trial court denied the motion, finding Truhe had depended on his agent, Farmers Insurance Company, which did not relieve him of responsibility. Bernard Truhe appealed from that order.

Appellant first submits the trial court erred in not setting aside the judgment on grounds of excusable neglect or inadvertence. The argument has three facets: 1) the failure to timely file was excusable; 2) if not excusable, it was not Truhe’s fault but that of the insurance company; 3) there is no evidence the insurance company was Truhe’s agent.

Since ARCP 55(c) was amended in 1990 only two cases have dealt with excusable neglect relevant to this case: B&F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992), and Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992).

The facts in Cotroneo are similar to the case now before us. In Cotroneo, the complaint and summons were served on B&F on January 25, 1991, and B&F forwarded them to its liability insurer. No answer was forthcoming and on February 19, Cotroneo moved for a default judgment. B&F responded with a general denial, maintaining the failure to answer was due to mistake, inadvertence or excusable neglect by its insurer in not notifying its counsel of the action. The reason given by B&F for failing to answer was provided by B&F’s insurer. The affidavit of its claims examiner explained that he had received the complaint styled Michael Cotroneo v. B & F Engineering, Inc., but had failed to recognize it was a separate cause of action from a pending suit styled Martin v. Eisele, Special Administrator for G.W. Franks, Deceased, & B & F Engineering, Inc., arising out of the same accident and which the insurance company was already defending. Due to that misconception he did not notify the company’s attorney of the Cotroneo complaint.

We noted the 1990 amendment to Rule 55(c) was intended to liberalize Arkansas practice regarding default judgment, but we were not persuaded that the wide discretion of the trial court had been abused under the circumstances, noting particularly that courts had not been liberal in treating defaults attributable to the inaction of insurance companies as excusable. The lapse of time in the case before us is greater than in Cotroneo. More important, no reason was offered to the trial court for the insurance company’s failure to respond. We agree therefore with the trial court that this omission does not constitute excusable neglect under ARCP 55(c) and our cases interpreting that rule. See also Divelbliss, supra.

Second, appellant submits that if the delay was inexcusable, it was the insurer’s negligence that caused the delay and such negligence should not be imputed to the insured. Looking elsewhere, since we have not addressed this question directly, we note a division among the courts. We believe the more persuasive opinions support the trial court in this case.

In Griffey v. Rajan, 514 N.E.2d 1122 (Ohio 1987) the court drew an analogy between the relationship of attorney/client to that of insurer/insured. Quoting from Ward v. Cook United, Inc., 521 S.W.2d 461 (Mo. App. 1975), the court said:

Reason and logic render impossible the acceptance of any real distinction between the inexcusable neglect of a lawyer (held in Missouri to be imputable to his client) and the inexcusable neglect of a claims manager and attorney for the defendant’s insurer. Both occupy a contractual relationship with the client, the prime purpose of which is to handle the litigation within the framework of judicial proceedings. But even of more significant force is that by undertaking such responsibilities they also assume an obligation to third parties interested in the matter and to the courts administering and judicially determining the controversy.

The court noted the general rule that an attorney’s negligence is imputable to his or her client and quoted from Link v. Wabash Railroad Co., 370 U.S. 626 (1962):

Keeping this suit alive merely because . . . [defendant] should not be penalized for the omissions of his own attorney would be visiting the sins of . . . [defendant’s] lawyer upon the [plaintiff].

The Griffey court concluded the insurer’s negligence was imputable to the insured.

There is authority supporting the result in Link v. Wabash, as applied to the relationship of insurer and insured, as in this case. See, e.g. Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind. 1983); Stevens v. Gulf Oil Corp., 108 R.I. 209, 274 A.2d 163 (1963); Chielewski v. Marich, 2 Ill.2d 568, 119 N.E.2d 247 (1954); Griffey v. Rajan, supra; Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849 (1952); Leslie v. Spencer, 170 Okla. 642, 42 P.2d 119 (1935); Ward v. Cook, supra.

Furthermore, though we have not directly decided whether the negligence of the insurer may be imputed to the insured, we have long held clients responsible for the acts of omission or commission of their attorneys. Alger v. Beasley, 180 Ark. 46, 20 S.W.2d 317 (1929); Merchants and Planters’ Bank and Trust Co. v. Ussery, 183 Ark. 838, 38 S.W.2d 1087 (1931); Beth v. Hartis, Ex’r, 208 Ark. 903, 118 S.W.2d 119 (1945); Moore v. Robertson, 242 Ark. 413, 413 S.W.2d 872 (1967); Meisch v. Brady, 270 Ark. 652 (Ark. App. 1980) (“The failure of an attorney to file an answer is imputable to the litigant.”) And in Alger v. Beasley, supra, though recognizing a division, the rule was reaffirmed in Arkansas:

The attorney did not testify and, so far as this court knows, there is no reason why he should not have filed the answer within the time given by the court.

In light of the reasoning of other jurisdictions and our own cases we reject appellant’s point and hold the negligence of the insurance company is imputed to the appellant.

Appellant also argues the record does not support a finding that the insurance company had become Truhe’s agent. This argument was not made below, however, and is waived.

Appellant also argues the trial court erred in failing to give due consideration to appellant’s meritorious defense and the lack of prejudice to appellee. ARCP 55(c) requires that the party seeking to have the judgment set aside must demonstrate “a meritorious defense to the action.” Appellant cites Medunic v. Lederer, 533 F.2d 891 (3rd Cir. 1976), for the proposition that the trial court must consider the meritorious defense before denying the motion to set aside the default judgment. This argument has already been addressed in Maple Leaf Canvas, Inc. v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992). Seeking relief from a default judgment, Maple Leaf argued it had a meritorious defense and that no prejudice resulted to the appellees. We responded:

Appellant contends that no prejudice resulted to the appellees and that it has a meritorious defense. Appellant however must first satisfy the court that a threshold reason exists for denying default judgment. The reason it presents is not convincing. The failure to answer the complaint seems due more to carelessness . . ., a result of not attending to business. [Our emphasis.]

To reiterate, we are not renouncing the view that default judgments are not favored, that judgments on the merits are preferred. Even so, the issue involves the sound discretion of the trial court [Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984)], and where the record is bereft of explanation for the failure to respond to a complaint we are hard pressed to hold that an abuse of discretion occurred.

Affirmed.

       For cases supporting the proposition that an insurance company’s negligence is not imputable to the insured, see Flexsteel Industries v. Modern Industries, Ltd., 239 S.W.2d 593 (Iowa 1976) (and cases cited therein).