text:
    Kenneth WILLIAMS v. STATE of Arkansas
    CR 00-520
    36 S.W.3d 324
    Supreme Court of Arkansas
    Opinion delivered February 1, 2001

      John W. Cone, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellee.
   JIM HANNAH, Justice.

Appellant Kenneth Williams was convicted of capital murder, attempted capital murder, two counts of aggravated robbery, two counts of kidnapping, two counts of theft of property, and one count of arson, and sentenced by a jury to life in prison without parole. Williams raises two points on appeal. First, Wilbams argues that the trial court abused its discretion by allowing the State to introduce evidence of another crime for which he was convicted to prove modus operandi under Ark. R. Evid. 404(b). Second, Williams argues that the trial court erred by not granting a mistrial due to prosecutorial misconduct during closing arguments. We find no merit to Williams’s argument and affirm.

Facts

On December 13, 1998, Peter Robertson, a student at the University of Arkansas at Pine Bluff, and his friend Dominique Herd borrowed a friend’s gold 1999 Mitsubishi Galant and went to dinner at Bonanza Steak House in the late afternoon. Upon exiting the restaurant after dinner while it was still daylight, a man approached the couple, briefly conversed with them, and then pulled a gun, a silver revolver, and forced them into their car. The man sat in the back seat of the car and directed Robertson where to drive. He first made them go to a bank ATM to withdraw approximately $70 from Robertson’s account, and they then attempted to withdraw money from Herd’s account. When Herd could not remember the password, the man directed Robertson to drive off.

During the drive, the man continued to tell the couple that they would be fine. He made the couple drive around town, and he directed them down several dead-end streets. At one dead-end, he made the couple get out of the car, and he made Robertson take a picture of Herd with Robertson’s camera, after the man lifted Herd’s dress and pulled down her underwear. Robertson took a second picture of the man after Herd had straightened her clothes. After this episode, the man directed the couple to drive to another dead-end street, exit the car, climb a fence, go behind a shed, and kneel down. The man then got into the car and pulled off; however, he backed up, asked Herd for her pocketbook, and then asked, “Where did you say you were from again?” Herd answered, “Dallas,” and Robertson answered, “New Jersey.” The man then said, “I don’t like the niggers from Dallas anyway,” and started shooting the couple, emptying the gun. The man then drove off. Robertson was able to make it to the road where a passing car picked him up and took him to a house where he called the police. Robertson survived the shooting, but Herd died from a gunshot to her head. The police ultimately found the car at the end of a dead-end street where it had been burned.

On December 18, 1998, Williams was charged with one count of capital murder, one count of attempted capital murder, two counts of kidnaping, two counts of aggravated robbery, two counts of theft of property, and one count of arson. Williams was appointed a public defender, and Williams’s counsel and the prosecutor proceeded with motions and discovery. Included in those motions was a motion in limine filed on September 9, 1999, by defense counsel requesting that the trial court prohibit introduction of Williams’ prior aggravated robbery conviction under Rule 404(b) of the Arkansas Rules of Evidence because that evidence was not relevant, and its probative value was vastly outweighed by its prejudicial impact. On that same day, the State moved to introduce this same evidence under the modus operandi exception to the general rule of exclusion. In an Order filed September 13, 1999, the trial court granted the State’s motion to introduce that evidence, and in effect, denied Williams’s motion to exclude the same evidence.

Jury selection began on September 9, 1999, and the trial concluded on September 14, 1999. The prosecution presented fifteen witnesses. The prosecution’s first witness was Robertson, who testified about the facts surrounding his and Herd’s abduction. During his testimony, Robertson identified the perpetrator as Williams, and pointed to him in the courtroom. Robertson also testified that when questioned by the police, he originally described the perpetrator as possibly having a gold tooth. However, Robertson testified that upon later reflection, he did not think that the man had a gold tooth. Robertson also testified that he identified Williams in a photo lineup as the man who shot him and Herd.

Next, Shantella Anderson testified that the burned car that was recovered was hers, and that it was a total loss. Stephen Hankins testified that he and his brothers went back to the scene of the shooting after one of his brothers drove up to the house with Robertson in the car after he had been shot. Hankins and his brothers found Herd where Robertson described, and Hankins testified that they attempted CPR on her and ultimately flagged down a car to call an ambulance. The prosecution presented other witnesses who testified about seeing a man possibly matching Williams’s description who was driving a car like Anderson’s, and who entered a convenience store on the night of the shooting. These witnesses, however, could not identify who the man was. Richard Gilliam testified that he worked with Williams around the time of the shooting, and that Williams took unprecedented interest in the newspaper story about the car-jacking and shooting.

The prosecution then presented testimony from the medical providers and State Crime Lab investigators who worked on this case. Dr. Lee Forestiere testified about Robertson’s injuries when Robertson was taken to the emergency room. Dr. Charles Kokes, an associate medical examiner at the State Crime Lab, testified about the autopsy performed on Herd. He stated that Herd sustained two gunshot wounds, including one to the top of her head, fired at a range of more than two feet away, and that these wounds were the cause of death.

The State presented evidence from the investigating officers in Pine Bluff. Greg Bohn, an investigator at the Jefferson County Sheriffs Department, testified that he went to the scene of the shooting after receiving a call at about 5:20 p.m. on December 13, 1998. He testified that Anderson’s car was found burning about two blocks from Williams’s apartment. Bolin also testified that Robertson described the perpetrator to him as he helped prepare an identification kit, and that Robertson was not sure whether the man had a gold tooth. Ultimately, Bohn testified that Williams became a suspect in another similar car-jacking case in which a car was burned in almost the same location. Furthermore, Bolin testified that Robertson selected Williams in the photo lineup. Stephen Moreau, an investigator with the Sheriff s department, also testified and added that Williams lived about two blocks from where the cars were burned, and that the cars were burned about fifty to seventy-five yards away from each other. Moreau testified that Robertson reacted strongly when shown a picture of Williams, and that Robertson identified Williams from a picture. Moreau also stated that Robertson said the perpetrator wore black Lugz boots, but that upon searching Williams’s apartment, the police did not find any such boots. However, Moreau stated that in the search of Williams’ apartment, the police found the insurance card of Sharon Hence, the victim of the other car-jacking incident for which Williams was convicted.

On the next day of trial, Hence testified. She testified that she was at an ATM machine in Pine Bluff, and Williams got into her car, made her withdraw money, and forced her to drive away. He held her at gunpoint with a silver revolver, and made her drive around town, often driving down dead-end streets. He apparently yelled at her not to have a wreck, and that he could not let her out because she would call the police. He then made her pull down a dead-end street, give him all of her jewelry, and then get out of the car. He wanted her to walk toward some nearby woods, but when she refused, he drove away. The car was later found burned near SEARK college, close to where Williams lives. Hence testified that she picked him out of a lineup, and she also identified him in court.

After presenting another witness, the State rested, and the defense renewed its motion for a directed verdict, which was denied. The defense then presented its case. Several witnesses were offered to provide a time-line for December 13, 1998, to show that Williams could not have committed these crimes. For example, Willie Buckley and Kevin Isom testified that Williams was at Buckley’s house at about 2 p.m. to watch a football game on television, and that Williams left at about 3:30 or 4 p.m. The defense also established that Williams usually left his apartment door unlocked because he had lost his key, and that anyone could enter the apartment. Williams’s sister, Yolanda Williams, testified that the composite sketch the police created with Robertson’s help actually looked more like Larry Carter, Williams’s and Yolanda’s cousin. Finally, the defense presented testimony from David Parsley and Billy Anderson. Parsley, an assistant fire chief, testified that in 1998, there were 110 automobile fires, with nine listed as arson, thirteen as suspicious, and six as undetermined. He testified that when a car is burned, it is usually done on a dead-end street or in a secluded area. Anderson, a salesman at Smart Mitsubishi in Pine Bluff, testified that his dealership sold 335 Galants from 1994 until trial, and twenty were gold in color.

The defense rested and renewed its motion for directed verdict, which again was denied. Counsel then proceeded to closing arguments. During the prosecution’s closing, the prosecutor stated, “You can have a gold tooth today and not have one tomorrow. So maybe he did; maybe he did not. Anyone knows that. Matter of fact, I didn’t have one this morning. Guess what? I’ll show you something...,” and as the prosecutor attempted to pull something from his pocket, the defense objected. A bench conference ensued, and the defense moved for a mistrial due to prosecutorial misconduct. The court denied the motion, but admonished the jury. After closing arguments, the defense developed the matter further, renewing its motion for mistrial, and developing that the prosecutor had attempted to pull a false gold tooth from his pocket to show the jury. Again, the trial court decided that the admonition and the regular jury instructions were sufficient to warn the jury not to consider any such information that was not submitted into evidence during the trial.

After deliberations, the jury returned with a guilty verdict on all counts. During sentencing, the defense objected to an aggravator offered by the prosecution, but the court allowed it. The jury then returned a sentence of life in prison without parole. The Judgment and Commitment Order were filed on October 4, 1999, and Williams filed his Notice of Appeal and Designation of Record on October 6, 1999.

Standard of Review

The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and this court will not reverse absent a showing of manifest abuse. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000). We will not reverse a trial court’s decision to deny a motion for mistrial absent an abuse of discretion or manifest prejudice to the complaining party. Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000); see also, Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). A trial judge is given broad discretion to control counsel in closing arguments, and this court does not interfere with that discretion absent a manifest abuse of it. Gates, v. State, 338 Ark. 530, 2 S.W.3d 40 (1999); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).

I. Modus Operandi or Rule 404(b) Evidence

During trial, the court allowed the State to introduce testimony from Sharon Hence, a woman who was abducted and robbed in a previous incident by Williams, who was convicted of that crime. The State offered the evidence to prove that Williams used the same modus operandi in this case as he had in the incident with Hence. The State offered evidence that Hence, too, was held at gunpoint with a silver revolver, made to withdraw money from an ATM, drive around town down dead-end streets, and finally dropped off in a secluded place in town. Furthermore, the State showed that Hence’s car also was burned in a secluded place not far from Williams’s home after Williams abandoned it.

Williams couches his argument in terms of admissibility under Ark. R. Evid. 404(b) and the modus operandi exception. In Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000), this court determined that the analysis for admissibility of such evidence for modus operandi is different from the Rule 404(b) analysis. See also, Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). The court in Haire stated:

[ T]he test for proving modus operandi. That test is different from the proof required for a Rule 404(b) exception such as intent. See Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995) (both modus operandi and proof of intent as an exception under Rule 404(b) were examined and discussed). Simply stated, proof of modus operandi is not the same as proof of a Rule 404(b) exception to other bad acts. The two evidentiary concepts are different.

Haire, 340 Ark. at 16. However, the court in other cases has found that modus operandi is an unnamed exception to the Rule 404(b) exclusion of certain evidence. See, e.g., Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987). Because the distinction has been blurred in many of this court’s cases due to the similarity of concepts between modus operandi and Rule 404(b)’s “motive, intent, or plan” and because the State argues that the evidence is admissible under either analysis, they will both be discussed.

A. Modus Operandi

There are two requirements for introducing evidence of an unrelated prior act to show modus operandi, or a method of operation: “(1) both acts must be committed with the same or strikingly similar methodology; and (2) the methodology must be so unique that both acts can be attributed to one individual.” Frensley v. State, 291 Ark. 268, 274, 724 S.W.2d 165, 169 (1987) (citing Edward J. Imwinkelried, Uncharged Misconduct Evidence, § 3.10 to 3.12 (1984)). The first requirement is that there be a very high degree of similarity between the charged crime and the prior uncharged act. Diffee, supra. The second requirement for admission as a method of operation is that the methodology be so unique that it independently identifies the accused as the perpetrator. Id.

This court has allowed modus operandi evidence in some cases. In Burmingham, one of the “blue-light rapist” cases, the court found that “comparing this witness’s testimony to the events described by S.W, it appears that appellant performed his rapes following the same modus operandi on both victims.” Burmingham, 342 Ark. at 108. The court then listed the similarities of the two incidents.

In Jacobs v. State, 287 Ark. 367, 699 S.W.2d 400 (1985), this court allowed evidence of prior bad acts in an automobile breaking- and-entering case because the “similarity of method used to enter the vehicle is remarkable and the vehicles were all on the parking lot at McCain Mall.” Id, 287 Ark. at 369. In Frensley, supra, the court, after listing the similarities, allowed evidence of a prior crime in an aggravated robbery and kidnaping case stating:

Both actions were committed in the same unique fashion. Further, the two acts were so unique and uncommon that they became distinctive and identifying. The two acts establish a method of operation. The inference is clear, there were not two different robbers.

Frensley, 291 Ark. at 274.

This court, however, at times has found that the level of evidence was insufficient to meet the requirements under the modus operandi exception. In Diffee, supra, the court determined that the defendant’s attempted attack with an ice pick on her husband was not sufficient to meet the requirements under modus operandi to allow the act to be admitted in the defendant’s murder trial for the death of her mother, whom she murdered with an ice pick.

The Diffee court quoted a legal treatise detailing examples of sufficient acts which met the modus operandi test. The court quoted Edward J. Imwinkelried, Uncharged Misconduct Evidence (1984), wherein Professor Imwinkelried stated:

There are numerous, excellent hypothetical and actual examples of unique methodology.
The hypothetical examples are more colorful. Professor Alan Polasky of the University of Michigan hypothesized the bandit with the silver crossbow. The British examples are just as histrionic; criminals who repeat a particular humorous limerick or who wear the ceremonial headdress of an Indian chief. More recently, Professors Broun and Meisenholder have given us the example of the robber wearing the medieval knight’s helmet. The point of each hypothetical is to illustrate the required standard of uniqueness.
There are several illustrations drawn from actual cases that are equally good examples of the standard. The courts have admitted evidence of other crimes to establish a one-of-a-kind modus operandi in the following cases: The burglar always left a bathroom scale on the front door of the burgled residence; the drug trafficker sold a type of white heroin rare in the San Antonio area; the killer always shot the victim in the back near the fourth cervical vertebra; the thief used a rare automobile to make his getaway; the forged money orders were identical in amount, payee, and payer and sequential in number; the burglaries were committed after the burglar bypassed the alarm system in a sophisticated, distinctive manner; the bank robber wore rose-tinted wire-framed glasses and a certain color shirt and wig; the caller making the phone threat always mentioned a “Mary D” during the call; and the smugglers used the same ingenious stratagem even though on one occasion the smuggled contraband was drugs but on the other occasion the contraband was a handgun. In these cases, although the crimes may not have been identical in every detail, the crimes were sufficiently similar and the modus sufficiently unique to justify admitting the uncharged misconduct evidence to show identity.

Diffee, 319 Ark. at 677-678 (quoting Imwinkelreid, supra at § 3.13).

Here, the similarities in both crimes are striking. To begin with, the crimes took place close in time, December 5 and December 13, 1998. In both crimes, Williams encountered strangers and forced himself into their cars with them. He then made the victims give him personal belongings, and forced them to withdraw money from ATMs. He forced the victims to drive around town, at times taking them down dead-end streets, until in both instances he dropped off the victims at dead-end streets and made them leave the cars with him. After driving the cars himself, Williams parked them in nearly the same area and burned them. Both Hence and Robertson described Williams’s gun as a silver revolver.

There are differences in the two incidents, however. In Hence’s case, Williams entered her car while she was at the ATM instead of approaching her while she was out of her car, and Williams wore different clothing in the incident with Hence than the offender wore in the second incident. According to the testimony, Williams was threatening during the incident with Hence, but the offender in the second incident was reassuring to Robertson and Herd. In addition, the offender made Herd pose for a sexually humiliating photograph, but Williams did not violate Hence in any way. Finally, the end result is different because Williams did not harm Hence in the first incident, but the offender shot Robertson and killed Herd in the second incident.

Both crimes were committed with strikingly similar methodology. Thus, the first requirement for introducing evidence of an unrelated prior act to show modus operandi is satisfied. The issue is whether the second requirement, that the methodology must be so unique that both acts can be attributed to one individual, has been satisfied. In this case, the most unique and compelling similar methodology that goes to independently identifying Williams as the perpetrator of both crimes is that both cars were burned within fifty to seventy-five yards of each other and approximately two blocks from Williams home, a silver revolver was used in both incidents, and the perpetrator forced the victims to drive around Pine Bluff and down several dead-end streets. However, the evidentiary similarities are not so unique that they independently identify Williams as the perpetrator of both crimes. The trial judge erred in allowing the prior crime to be introduced into evidence to show modus operandi.

B. Rule 404(b)

Arkansas Rule of Evidence 404 (b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). This court has recognized that the list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list but rather represents examples of the types of circumstances where evidence of other crimes or wrongs or acts would be relevant and admissible. Burmingham; Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994).

This court addressed the admissibility of evidence under the exceptions to Rule 404(b) in Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). In that case, the defendant, Andrew Sasser, was convicted of capital felony murder and sentenced to death for the kidnapping, attempted rape, and murder of Jo Ann Kennedy, a convenience-store clerk. During trial, the prosecution presented evidence of a prior similar crime committed by Sasser involving the battery, kidnapping, and rape of another store clerk several years earlier. On appeal, this court addressed the admissibility of the prior crime under Rule 404(b). In ruling that the evidence was admissible, the court compared the similarities and differences in the crimes and stated:

We conclude the 1988 crimes bore sufficient similarity to the present crime to justify proof of the former as probative of appellant’s intent to commit the predicate offenses of the latter. Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Snell, 290 Ark. 503, 721 S.W.2d 628. The record in this case shows that on December 31, 1992, less than six months before the commission of the present crime, appellant was discharged from the Arkansas Department of Correction having completed his sentence for his 1988 crimes. Both the 1988 crimes and the present crime involved female victims on duty as employees of E-Z Mart stores located in neighboring communities. Both were committed shortly after midnight by appellant, without accomplices, after he had purchased items from the victim at the store and had made several trips to the store on the day of the attack. Both involved a physical struggle between appellant and the victim that started in one part of the store and moved to other parts. Both involved sexual implications. In 1988, Carter pleaded for her life, whereas the victim in the present case was killed. In 1988, appellant apparently traveled to the E-Z Mart on a bicycle, whereas he borrowed his brother’s pickup truck in the present case. Clearly, the challenged testimony had probative value which, we conclude, was not substantially outweighed by the danger of unfair prejudice. See Rule 403.

Sasser, 321 Ark. at 446-447. The majority noted that the dissent challenged the admissibility of th'é evidence because the prior crime was not sufficiently similar to the present crime to allow its admission under Rule 404(b). However, the majority stated:

The degree of similarity between the circumstances of prior crimes and the present crime required for admission of evidence under Rule 404(b) is a determination that affords considerable leeway to the trial judge, and may vary with the purpose for which the evidence is admitted. See 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 112, n. 4 and accompanying text (2d ed. 1994) (“To be probative, prior criminal acts must require an intent similar to that required by the charged crime, although it is usually said that the prior crime need not closely resemble the charged crime.”); 1 John W Strong, McCormick on Evidence § 190, n. 31 and accompanying text (4th ed. 1992) (“The similarities between the act charged and the extrinsic acts [admitted to show the act charged was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge] need not be as extensive and striking as is required ... [to show modus operandt\”). See generally 2 Jack B. Weinstein, et al., Weinstein’s Evidence ¶ 404[12] (1995); 2 John Henry Wigmore, Evidence in Trials at Common Law § 302 (Chadbourn rev. 1979). On this record, we conclude the similarity between the circumstances of the 1988 crimes and the predicate offenses of the present crime was sufficient to support the trial court’s admission of the challenged testimony under Rule 404(b) as independently relevant proof of appellant’s intent to commit the predicate offenses.

Sasser, 321 Ark. at 447.

The Hence crime is independently relevant proof of Williams’s intent to commit these offenses. Williams’s prior crime against Hence is admissible under the intent exception to Rule 404(b). The Hence crime was not admissible into evidence to show modus operandi. However, we will affirm the ruling of a trial court if it reached the right result, even though it may be for a different reason. Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992). See Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993). Here we affirm the ruling of the trial court because it reached the right result even though we are affirming the result for a different reason than the trial court used.

II. Prosecutorial Misconduct

In his second and last point on appeal, Williams argues that the trial court erred in faffing to grant a mistrial due to prosecutorial misconduct during closing arguments. Williams claims that the prosecutor’s act of attempting to pull out and exhibit a false gold tooth to the jury was sufficient to warrant a mistrial because the gold tooth had not been admitted into evidence prior to closing arguments. The State responds that the trial court did not abuse its discretion in denying Williams’s motion for mistrial because the trial court sufficiendy admonished the jury and Williams never objected that the admonishment was inadequate.

A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Woods, supra. This court has recognized on multiple occasions that not every instance of prosecutorial misconduct mandates a mistrial and that any prejudice suffered may be cured by a proper admonition. See, e.g., Muldrew v. State, 331 Ark. 519, 963 S.W.2d 580 (1998); White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). Remarks that require a reversal are rare and require an appeal to the jurors’ passions. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). In the event an improper statement has been made, an admonition to the jury usually cures any prejudice unless the argument is so patently inflammatory that justice could not be served by continuing the trial. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996); King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).

In this case, the following transpired:

Mr. BLOODMAN: ... But the only straw that they managed to hold on to throughout this whole case has been one thing. This gold tooth nonsense. Anyone — anyone who lives in a black neighborhood knows what? You can have a gold tooth today and not have one tomorrow. So maybe he did; maybe he did not. Anyone knows that. Matter of fact, I didn’t have one this morning. Guess what? I’ll show you something —
Mr. KlZER: May we approach, please?
The Court: You may.
(Counsel approached the bench.)
Mr. Kizer: That hasn’t been introduced into evidence.
Mr. BLOODMAN: I’m not introducing it.
Mr. KlZER: Your Honor —
The COURT: You can’t argue anything that’s not been introduced into evidence.
Mr. CONE: If we can approach the bench, your Honor? We are requesting a mistrial. He’s pulled something out in front of this jury.
Mr. BLOODMAN: I’ve not showed them anything.
THE COURT: They will be instructed to disregard anything that’s said or done by counsel that’s not in the evidence, and I’ll —
MR. CONE: Are we making a record that we’ve requested a mistrial at this point?
The Court: Yes.
Mr. Cone: Thank you.
(Conclusion of bench conference.)
The COURT: The Court is going to instruct the jury again to disregard any argument, statement or remarks of the attorneys that have no basis in the evidence.

FoEowing this discussion, the prosecutor finished his closing argument. The trial court then invited defense counsel to begin, and defense counsel renewed the defense motion for a mistrial, and asked the trial court to aEow the defense to get on the record exactly what had transpired. The trial court aEowed the defense to make the record after the jury had retired. During this exchange, the defense described what took place during the prosecutor’s closing arguments, and then stated:

Mr. CONE: Mr. Garfield, as I understood it, and, again, I might need to have the record played back for me as to what he was saying, told the jury, roughly, “You can have a gold tooth today and not have one tomorrow,” and I saw him reach in and pull something out. I could not see what it was. I could not tell if the jury saw what it was. That is why we jumped up and objected1, because it was giving the impression he was about to show the jury something. I’d Eke to know at this time what it was that he had.
The COURT: What were you puEing out of your pocket, Mr. Bloodman?
Mr. BLOODMAN: WeE, first of aE, your Honor, for the record —
The Coúrt: Yes.
Mr. BLOODMAN: First of aE, for the record, your Honor, I attempted to go in my pocket. Had not been able to do so. Nothing was retrieved from my pocket. To the extent that something was going to be shown, nothing had been shown. And if he have any evidence as such, he can bring it forward, but I never got to that point. Secondly, what I said was, I said, “I did not have a gold tooth this morning. I could have one this afternoon,” and at that point I was attempting to show that I could do that and that’s when I reached in my pocket to retrieve this, which I never had a chance to do that.
MR. CONE: I would ask that that be introduced at this time.
The Court: What is it?
MR. BlOODMAN: It’s a tooth.
Mr. Cone: Would you show the Judge what it is you were going to show the jury.
Mr. BlOODMAN: As you can see where it was folded, I never even got close to get into my pocket much less show it to anyone in the courtroom until now.
The COURT: Well, it appears to the Court that it is some kind of gold cap with a star in it that could or could not fit over a tooth.

Thereafter, the trial court determined that the admonition he gave to the jury along with the jury instructions at the end of the case sufficiendy instructed the jury to disregard any information not in evidence in trial.

A mistrial was not warranted in this case. The trial court correctly admonished the jury, which usually cures any potential prejudice that may have resulted from unwarranted statements. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). Further, the defense offered no evidence that anyone, including the jury, actually saw the false gold tooth that the prosecutor improperly attempted to introduce during closing arguments. There is no doubt that what the prosecutor attempted to do was improper. However, that is not the test. Instead, this court must determine whether the trial court abused its discretion by denying the motion for mistrial because the argument was “so patently inflammatory that justice could not be served by continuing the trial” and the attempt was an improper “appeal to the jurors’ passions.” Lee, supra; Puckett, supra. That did not occur here. The trial court did not abuse its discretion.

Rule 4-3(h) Compliance

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

Affirmed.


source: Caselaw Access Project

author: PER CURIAM. Tom Glaze, Justice,

license: Public Domain

text:
    Robert MURPHY and Cathy Murphy, His Wife; Billy Joe Campbell and Margaret Ann Campbell, His Wife; Edward Ginger and Brenda Ginger, His Wife; John Lee Cottrell and Delphine Cottrell, His Wife; Ray Kinley and Sandra Kinley, His Wife; Charles Ray and Patricia Ray, His Wife; and Richard Ray and Cheryl Ray, His Wife, v. David M. DUMAS and Donnie S. Dumas, His Wife

    00-1411
    36 S.W.3d 351
    Supreme Court of Arkansas
    Opinion delivered February 1, 2001

      James B. Bennett, for appellants.

      Harrell & Lindsey, P.A., by: Paul E. Lindsey, for appellees.
   PER CURIAM.

Appellees David M. Dumas and Donnie S. Dumas (the Dumases) move this court to dismiss the appeal of appellants Robert Murphy, Cathy Murphy, and others (the Murphys) due to a late filing of the record on appeal in violation of Ark. R. App. P. — Civ. 5(a). We agree that the trial court erred in granting the extension of time, but we deny the motion to dismiss.

The facts are that on July 28, 2000, the Murphys timely filed their notice of appeal from a decree quieting title to certain land entered on June 29, 2000. This meant that under Appellate Rule 5(a) the record had to be filed by October 26, 2000. On September 20, 2000, the trial court entered an order extending the time for filing the record for seven months which presented a new deadline of January 29, 2001. At this writing, the Murphys have not filed the record. The extension order was entered without (1) a request by the Murphys, (2) a hearing being held by the trial court, (3) notice to the Dumases, and (4) findings by the trial court. The trial court’s order, as a result, violated the terms of Appellate Rule 5(b), which reads in part:

(b) Extension of time. In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the trial court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order. . . . Counsel seeking an extension shall give to opposing counsel notice of the application for an extension of time.

See also Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995) (per curiam); Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982); Harper v. Pearson, 262 Ark. 294, 556 S.W.2d 142 (1977). Hence, the extension order was void and of no effect, and the 90-day limit under Rule 5(a) continued to apply. This meant that the deadline for filing the record in this matter was October 26, 2000, and that deadline was missed.

Nevertheless, we are reluctant to dismiss an appeal when the appellants relied on an order of the trial court, albeit an erroneous order, which gave them until January 29, 2001, to file their record. Moreover, there is nothing to suggest that the Murphys relied on the extension order in bad faith. We have held in the past that parties are entitled to rely on a trial court’s order extending time even when the trial court may later vacate the order or when a judgment was erroneously entered. See King v. Carney, 341 Ark. 955, 20 S.W.3d 341(2000) (appellant entitled to rely on extension order though trial court later vacated it); see abo Cole v. First Nat’l Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990) (plaintiff had right to rely on judge’s default judgment, though erroneously entered, and savings statute applied). This principle should apply to the facts of this case.

We give notice by this opinion to the bench and bar that henceforth we will strictly enforce the requirements of Rule 5(b).

Glaze, Corbin, and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. Appellees David and Donnie Dumas move to dismiss appellants’ appeal. Appellees filed a timely notice of appeal on July 28, 2000, and they had ninety days, or until October 26, 2000, to file their record, unless the time was properly extended by order of the trial court. See Ark. R. App. P. — Civ. 5(a) (2000). On September 20, 2000, or within the required ninety-day period, an order of the trial court was entered extending the time for filing the record to January 29, 2001; however, this was done (1) without the appellants having filed a motion requesting the extension, (2) without notice to the appellees, (3) without a hearing being held by the trial court, and (4) without findings by the trial court, all of which are required under Ark. R. App. P. — Civ. 5(b). See Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995). As of this date, appellant still has not filed a record.

Clearly, the trial court’s order entered in this case violated Rule 5(b); this court has issued clear warnings that this provision must be followed. Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982); Osburn v. Arkansas Department of Human Services, 341 Ark. 218, 15 S.W.3d 673 (2000); Perry v. Perry, 257 Ark. 237, 515 S.W.2d 640 (1974); Gallman v. Carnes, 254 Ark. 155, 492 S.W.2d 255 (1973), and appendix; see also Harper v. Pearson, 262 Ark. 294, 556 S.W.2d 142 (1977) (court reiterated the necessity for ordering a transcript and conducting a hearing on the necessity for an extension). In Perry, the court stated that the purpose of the rule (a statute at that time) was to eliminate unnecessary delay in the docketing of appeals and that the court expected compliance to the end that lawsuits may progress as expeditiously as justice requires. Moreover, this court has held that it does not view granting such extensions as a mere formality. Seay v. Wildlife Farms, Inc., 342 Ark. 503, 29 S.W.3d 711 (2000). The timely lodging of the record from the proceeding appealed has been deemed a jurisdictional requirement to perfect an appeal. Id.

Exactly why or how the trial court granted an extension in this matter is not clear, but to allow appellant to ignore the requirements of Rule 5(b) to appellees’ detriment is unfair in my view. The appellees’ motion to dismiss should be granted.

Corbin and Imber, JJ., join this dissent.


author: PER CURIAM.

text:
    Russell Timothy ROBERTS v. STATE of Arkansas
    CR 01-53
    36 S.W.3d 751
    Supreme Court of Arkansas
    Opinion delivered February 1, 2001

      Christopher Carter, for appellant.
    No response.
   PER CURIAM.

Appellant Russell Timothy Roberts, by and through his attorney, has filed a motion for rule on clerk. His attorney, Christopher Carter, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an 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.


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

text:
    Alvin B. JACKSON v. STATE of Arkansas
    CR 99-83
    37 S.W.3d 595
    Supreme Court of Arkansas
    Opinion delivered February 8, 2001

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., and O. Milton Fine II, Ass’t Att’ys Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, Alvin B. Jackson, was serving a life sentence without parole for one count of capital murder and two counts of attempted murder, when he stabbed a prison guard to death. A jury convicted appellant of capital murder and sentenced him to death by lethal injection. This Court affirmed in Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997). Attorney Maxie Kizer represented Jackson at trial and on direct appeal.

The mandate of affirmance issued on November 6, 1997, but was not filed in the Jefferson County Circuit Clerk’s office until November 20, 1997. Rule 37.5(b) requires that a hearing be held within twenty-one days from the issuance of the mandate. The twenty-first day fell on November 27, 1997, which was Thanksgiving Day. A hearing was held on the first business day following, which was Monday, December 1, 1997.

On December 4, 1997, the circuit court issued an order nunc pro tunc to December 1, 1997. The court noted the above procedural facts and specifically found that “such is in conformity with the Rule [37.5].” The circuit court then appointed the Capital Conflicts and Appellate Office of the Arkansas Public Defender Commission (hereinafter the Commission) to represent appellant. The circuit court further ordered the Commission to submit within seven days the name of an attorney in its office for appointment. The circuit court ordered that upon the specific appointment of the named attorney, appellant would have ninety days in which to file his Rule 37.5 petition. The court stayed the execution.

The record does not indicate whether the Commission ever submitted a name to the circuit court. On December 22, 1997, however, the Commission, represented by its director, Ms. Didi Sailings, moved to be relieved from representation of appellant based upon a conflict of interest. On March 1, 1998, (filemarked March 6, 1998), appellant wrote to the circuit court, inquiring as to whether the court had ruled upon the Commission’s motion to be relieved. On March 13, 1998, the circuit court entered an order relieving the Commission from further representation and appointing Jeff Rosenzweig to represent appellant. The court further ordered that Mr. Rosenzweig had ninety days to file a petition, pursuant to Rule 37.5.

On June 8, 1998, Mr. Rosenzweig filed a Rule 37 petition raising claims of error on the part of the trial court and five claims of ineffective assistance of counsel. On the same day, Mr. Rosenzweig filed another Rule 37 petition raising the same-claims, but which included more lengthy argument under each claim, and alleging a new claim. On June 28, 1998, the State filed a motion to dismiss both of the Rule 37 petitions.

The State argued that appellant’s Rule 37 petitions were untimely filed because they were not filed by March 4, 1998, which was ninety days after the circuit court’s December 4, 1997, nunc pro tunc to December 1, 1997, order. As such, the State claimed that the circuit court was without jurisdiction to appoint Mr. Rosenzweig on March 13, 1998, because the ninety days for filing a Rule 37 petition had passed.

On November 19, 1998, the circuit court entered an order finding that appellant’s Rule 37 petitions were not timely; and, therefore, the court was without jurisdiction to consider them. The court denied the petitions and dissolved the stay of execution. It is from that denial that the instant appeal is taken. As his only point on appeal, appellant asserts that the circuit court wrongly dismissed his Rule 37 petition as untimely and that the case should be remanded for a hearing on the merits of the petition. We agree with appellant and hereby reverse and remand the case.

The circuit court ruled, pursuant to Rule 37.5(e), that it lacked jurisdiction to consider appellant’s Rule 37 petitions because they were not filed within ninety days of the court’s nunc pro tunc order appointing the Commission to represent appellant. Rule 37.5(e) states that the ninety days will run upon entry of an order pursuant to Rule 37.5(b)(2). Rule 37.5(b)(2) requires the court to appoint an attorney meeting the qualifications of Rule 37.5(c), if the person under the sentence of death is indigent and desires an appointed attorney. The circuit court must enter written findings and the order of appointment within seven days of the Rule 37.5 hearing. See Ark. R. Cr. P. 37.5(b)(2).

The State contends that the ninety days began to run on the day the circuit court appointed the Commission, which was December 4, 1997 (nunc pro tunc to December 1, 1997). Thus, under this scenario, the ninety days in which to file a petition had already expired when the court appointed Mr. Rosenzweig on March 13, 1998; under this theory, it would have expired on March 4, 1998.

If the present case were a non-capital case, then the general rule would certainly be that the time limits set forth in Rule 37 are jurisdictional in nature and would apply; further, that rule would necessitate that this Court affirm the circuit court’s order. See Hill v. State, 340 Ark. 248, 13 S.W.3d 142 (2000); Tapp v. State, 324 Ark. 176, 920 S.W.2d 483 (1996). However, because this is a capital case involving the death penalty and involving Rule 37.5, it calls on this Court to address whether due process requirements of fundamental fairness compel the circuit court to address appellant’s Rule 37 petitions on their merits. See Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999).

In Porter, this Court found good cause for allowing an untimely Rule 37 petition. We held:

In light of the fact that this is a case involving the death penalty and the fact that Rule 37.5 has in effect cured the instant situation from recurring, coupled with the ambiguous circumstances surrounding appellant’s legal representation, and the requirements of due process, we hereby hold that fundamental fairness, in this narrowest of instances where the death penalty is involved, dictates an exception in the present matter to allow appellant to proceed with his Rule 37 petition.

Id. at 19-20 (emphasis in original). In allowing Porter to proceed, this Court noted that Rule 37.5 evolved from Act 925 of 1997 (Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1997) (Arkansas Effective Death Penalty Act of 1997)), “where the General Assembly expressly noted that the purpose of the Act was to comply with federal law by instituting a comprehensive state court review.” Id. at 19 (citing Ark. Code Ann. § 16-91-204). We also noted our prior holding in Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) , that in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing. Id.

Here, appellant contends that Rule 37.5 creates a specific entitlement to counsel in a capital case for the purpose of pursuing relief via Rule 37. He further contends that that entitlement to counsel means “conflict-free” counsel (citing Wood v. Georgia, 450 U.S. 261 (1981)), and that because the attorney appointed by the circuit court moved to be relieved on the basis of a conflict of interest and was relieved on that basis, he was not provided Rule 37.5 counsel prior to the expiration of the filing period. We agree.

We noted in O’Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999) that there is no constitutional right to an attorney in State postconviction proceedings; however, in O’Brien, we distinguished our holding in Porter based on the fact that Porter was a death penalty case decided under Rule 37.5; O’Brien was not. Further, as we pointed out in Porter, while there is no constitutional right to a postconviction proceeding, when the State undertakes the role of providing such, it must comport with due process and be fundamentally fair. See Porter, 339 Ark. at 18 (citing Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997)).

This Court’s pronouncements in cases following Porter suggest that Rule 37.5 cases require an examination of whether it is “fundamentally fair” to require an inmate on death row to abide by the stringent filing deadlines when he was under the impression he was represented by counsel and that said counsel was timely filing the proper pleadings on his behalf. Porter, 339 Ark. at 18; see O’Brien v. State, supra; Coulter v. State, 340 Ark. 717, 13 S.W.3d 171 (2000). The obvious concern in the instant case is that the State has opted to specifically provide a postconviction process for persons under a sentence of death through Rule 37.5. Rule 37.5 mandates very specific requirements, including a level of quality of appointed counsel for persons pursuing Rule 37.5 relief. In addressing whether the strict application of the jurisdictional time limits would be fundamentally fair in the instant case, the following facts are of relevance to consider:

1) In the instant case, appellant requested the appointment of counsel for the purpose of pursuing Rule 37 relief at his Rule 37.5 hearing; he inquired as to whether the circuit court was going to relieve the counsel appointed based on the asserted conflict of interest; and, he eventually did file a Rule 37 petition via Mr. Rosenzweig. Clearly, appellant wanted to pursue Rule 37 relief.
2) The Commission, shortly after appointment, moved to be relieved based upon a conflict of interest. The asserted conflict was that appellant’s trial counsel, Maxie Kizer, would soon be employed by the Public Defender Commission and under the direct supervision of Ms. Didi Sailings. Thus, the Commission would be investigating claims of ineffective assistance of counsel against one of its employees. Ms. Sailings also submitted that it was a conflict of interest for her to represent appellant because she had previously represented him in a different capital murder case, and she could conceivably be called as a witness at the Rule 37.5 hearing.
3) Rule 37.5(c)(5) specifically states that a circuit court shall not appoint an attorney under the rule if that attorney represented the person under a sentence of death at trial or on direct appeal to the Arkansas Supreme Court .unless the person requests as such. Further, the rule states that if such an attorney is appointed, the circuit court shall appoint a second attorney who has not represented the person. Thus, this rule was violated because Ms. Sailings represented appellant in a different trial, under a sentence of death, and the circuit court did not appoint a second attorney to assist. Mr. Kizer’s employment with the Commission further complicated the situation.

Unlike Porter, this case does not evolve from a lack of notice to the appellant. He was aware in this case that the Commission had been appointed but had moved to be relieved. Appellant was, however, waiting for the circuit court to either relieve the Commission and appoint new counsel who would file his petition, or to deny the Commission’s motion so that the Commission would then file his petition. The end result is that a breakdown in the State-provided postconviction proceeding led to the dismissal of appellant’s petitions on procedural grounds, and this Court has held that great care should be taken to assure that the denial rests on solid footing. Porter, 339 Ark. at 19.

Porter and the cases that follow suggest that Rule 37.5 requires a heightened standard of review of capital cases because the State has undertaken, via Act 925 of 1997 and Rule 37.5, to provide collateral relief so as “to eliminate the need for multiple federal habeas corpus proceedings in death cases.” Id. Again, while there is no constitutional right to a postconviction proceeding, when the State undertakes the role of providing such, as it has done here, it must comport with due process and be fundamentally fair. Id. at 18.

Therefore, pursuant to Porter, we hold that fundamental fairness dictates that the appellant in this case be afforded an opportunity to have his claims considered. For all of the above-stated reasons, we hereby reverse and remand the case.

Reversed and remanded.

Glaze, J.,

concurs because Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999), requires reversal and remand.

       Pursuant to Ark. R. Cr. P. 1.4, the circuit court possessed jurisdiction to hold a Rule 37.5 hearing on December 1 because November 27 and 28 were State holidays, and November 29 and 30 were Saturday and Sunday, respectively.


author: Tom Glaze, Justice.

text:
    Kimberly Dawn LLOYD and Derek Lloyd v. Michael D. BUTTS
    00-568
    37 S.W.3d 603
    Supreme Court of Arkansas
    Opinion delivered February 8, 2001

      Woodruff Law Firm, P.A., by: Jennifer E. Weaver, for appellants.

      Barrett & Deacon, by: Robert J. Gibson and D.P. Marshall, Jr., for appellee.,
   Tom Glaze, Justice.

The court of appeals certified this chancery court custody case because it involves a significant issue requiring clarification of the law pertaining to the natural-parent-preference rule. Ark. R. Sup. Ct. l-2(b)(5). To understand and to reach this issue requires us to review the relevant proceedings that led to this appeal.

On May 1, 1992, appellee Michael Butts filed a divorce complaint against Kimberly Butts (now Kimberly Lloyd), and in that lawsuit, Michael sought custody of their children, Lanai and Tyler. In December 1992, Derek Lloyd was allowed to intervene, whereby he alleged he was the biological father of Tyler. On May 23, 1994, the chancellor granted Michael a divorce, found Derek to be Tyler’s biological father, and found Kimberly and Derek to be “unfit and unsuitable for custody of the children.” Michael was awarded custody of both children. In his findings, the chancellor observed that Kimberly and Derek were “nefarious and devious,” “engaged in [a] clandestine affair for several years,” and were “sly, cunning, and deceitful.” The chancellor concluded that what Kimberly and Derek did was not just immoral, but lacking in basic character and demonstrating an “unfitness to nurture children, or inculcate values.”

Kimberly and Derek did not appeal the chancellor’s May 23, 1994, decision. However, they subsequently married and one year later, on May 24, 1995, they filed a motion seeking custody of the children and alleging that a substantial change of circumstances justified a change of custody. On September 10, 1997, the chancellor entered an order finding the Lloyds were no longer unfit'parents, but because the chancellor found that no material change in circumstances had occurred involving the children, he ruled the children’s best interests would be served by their staying with Michael. The Lloyds appealed this September 10 order, and the court of appeals affirmed the chancellor’s decision in an unpublished opinion on July 1, 1998. In that appeal, the Lloyds conceded they had failed to prove a material change in circumstances to effect a change of custody; however, they attempted to raise a new issue — that once the chancellor acknowledged the Lloyds to be “fit” parents, he was bound by law to place the children in their custody. The court of appeals related that the Lloyds, in making their argument, maintained that “the preference for natural parents rises above both the best-interest standard and the requirement for showing a change in circumstances.” Citing Barnes v. Barnes, 312 Ark. 61, 847 S.W.2d 23 (1993), the court of appeals refused to address the Lloyds’ natural-parent argument on appeal because the Lloyds failed to raise the issue below so the chancellor could rule on it.

After the appellate court’s decision, the Lloyds filed a second petition for change of custody on May 6, 1999, once again alleging a change of circumstances. They asserted that (1) they were fit parents; (2) they were the natural parents of Tyler; (3) they had always provided for both children; (4) they could provide a suitable home for Tyler; and (5) when custody of Tyler was changed, a change of circumstances would occur with the other child, Lanai. The Lloyds also raised the issue they had tried to raise previously before the court of appeals, namely, that once the chancellor found them “fit” parents, Arkansas law, regarding the natural-parent-preference rule, required they be awarded custody of Lanai and Tyler. Michael responded, stating no material change in circumstances had occurred. He also submitted that the Lloyds were procedurally barred by res judicata from raising the natural-parent-preference issue because, while they could have raised this issue in the earlier proceeding culminating in September 1997, where they first sought modification of the chancellor’s initial award of custody, they did not do so.

We first address Michael’s claim that res judicata bars the Lloyds’ natural-parent-preference argument. Although Michael raised res judicata as a defense below, the chancellor did not rule or rely on it in his final order. In Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997), we were faced with the same issue when Teresa Slayton asserted the defense of res judicata, but failed to obtain a ruling from the chancellor on the issue; as a consequence, our court refused to consider the issue on appeal. See Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997). As in Slaton and for the same reason, we are unable to decide Michael’s res judicata defense on appeal.

We now turn our attention to the Lloyds’ primary argument that the chancellor erred in rejecting their contention that, because the chancellor found them fit, the natural-parent-preference rule required the chancellor to award them custody of Lanai and Tyler. We hold the chancellor did not commit error.

We find the case of Hancock v. Hancock, 198 Ark. 652, 130 S.W.2d 1 (1939), most instructive. That case involved a custody battle over a thirteen-year-old son between the natural mother and the stepmother, after the boy’s biological father died. There, the chancellor found the mother fit, but based on other evidence, awarded custody of the boy to the stepmother. On appeal, the Hancock court decided the mother should have been awarded custody, and in doing so, relied on the following rule announced earlier in Holmes v. Coleman, 195 Ark. 196, 111 S.W.2d 474 (1937):

Courts are very reluctant to take from the natural parents the custody of their child, and will not do so unless the parents have manifested such indifference to its welfare as indicates a lack of intention to discharge the duties imposed by the laws of nature and of the state to their offspring suitable to their station in life. When, however, the natural parents so far fail to discharge these obligations as to manifest an abandonment of the child and the renunciation of their duties to it, it then becomes the policy of the law to induce some good man or woman to take the waf into the bosom of their home, and when they have done so and, through their attentions to it, have learned to love it as if it were their very own child, this bond of affection will not then be severed, although the natural parent may later repent his breach of the laws of nature and of the state and offer to resume the duties and obligations which he should never have ceased to perform. (Emphasis added.)

In different terms, our appellate court has more recently said that the rights of parents are not proprietary and are subject to their related duty to care for and protect the child; the law secures their preferential rights only as long as they discharge their obligations. Jones v. Jones, 13 Ark. App. 102, 680 S.W.2d 118 (1984); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980).

The rule is also settled that a judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child. Stamps v. Rawlings, 297 Ark. 370, 761 S.W.2d 933 (1988); see also Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). In Campbell, this court said that, in order to avoid relitigation of factual issues already decided, courts will usually restrict evidence in a modification proceeding to facts arising since the prior order. Id. at 383. The only other time a change is permissible is when there is a showing of facts affecting the best interest of the children that were either not presented to the chancellor or were not known by the chancellor at the time the original custody award was entered. Id. at 384.

Especially significant to the present case, this court has further held that its reasons for requiring more stringent standards for modifications than for initial custody determinations are to promote stability and continuity in the life of the child, and to discourage the repeated litigation of the same issues. Jones v. Jones, 328 Ark. 97, 940 S.W.2d 881 (1997). We recognized in Jones that the improper use of custody proceedings is more likely if parents are allowed to relitigate their relative fitness without the addition of significant new facts. Id. at 101. Of course, whether an initial proceeding or a modification proceeding, the polestar remains the best interest and welfare of the child. See Jones v. Strauser, 266 Ark. 441, 585 S.W.2d 931 (1979); see also Ideker v. Short, 48 Ark. App. 118, 892 S.W.2d 278 (1995). Finally, we look to Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998), where this court stated very clearly that, while there is a preference in custody cases to award a child to its biological parent, that preference is not absolute. Rather, of prime concern, and the controlling factor, is the best interest of the child. Id. at 104-105.

In reviewing the relevant history of the case in light of the foregoing case law, it is significant that, in the initial custody proceeding, Kimberly and Derek were determined unfit parents, and accordingly, they were denied custody of Lanai and Tyler. A decree fixing the custody of a child is final on conditions then existing and should not be changed unless there are altered conditions since the decree was rendered or there were material facts existing at the time of the decree, but unknown to the court, and then only for the welfare of the child. Campbell, supra. Moreover, the party seeking modification of the custody order has the burden of showing a material change in circumstances. Id.

Certainly to Kimberly’s and Derek’s credit, they have rectified their fives, and the positive changes they made were acknowledged by the trial court’s findings in their two modification proceedings that they are now fit. However, our court has also adopted the majority rule that a change of circumstances of the noncustodial parent is not sufficient to justify modifying custody. Campbell, supra; see also Jones, 326 Ark. 481, 931 S.W.2d 767. Here, the Lloyds had the burden of showing that a material change of circumstances had occurred since the chancellor’s initial award of custody of the children to Michael in May 1994. While the chancellor found the Lloyds fit in both of the modification proceedings they have filed since 1994, he stated that they had failed to prove the material change of circumstances needed for them to prevail in their quests for custody. In fact, in reviewing the record in this appeal, Kimberly conceded that she was unaware of anything concerning the children’s health and welfare that would warrant such a change. Nor was she aware of any mental abuse by Michael. Tyler was the main focus of the testimony, apparently because the Lloyds alternatively asked for custody of Tyler alone if they could not have both children. However, such a request in no way strengthened their case since our law is well estáblished that young children should not be separated from each other in the absence of exceptional circumstances. See Freshour, supra. Nonetheless, Kimberly averred that the reasons she and Derek filed for custody was that “Tyler was biologically Derek’s and mine, and he should live with us.” In addition, she admitted that they filed their petition “because . . . the last time we went to court, . . . they basically made a ruling on something other than what we went to court for, and so we were advised to do it again.” Thus, the record is abundantly clear that the Lloyds failed to meet their burden of showing a material change in circumstances. See Campbell, supra; Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989).

Although Kimberly offered some testimony suggesting Michael controls Tyler and Tyler is afraid of him, other evidence was presented that Tyler is close to Michael. Tyler is described by Kimberly and Derek as getting straight “A’s” in school, and as being affectionate, a happy-go-lucky kid, and a hugger. Again, none of this evidence supports a finding that would support the Lloyds’ contentions. In sum, from our de novo review of the record, we cannot say the chancellor was clearly erroneous in his finding that the Lloyds failed to show a change of material circumstances that would warrant uprooting Tyler and Lanai to place them in the Lloyds’ custody. Therefore, we affirm the chancellor’s denial of the Lloyds’ petition for modification of custody.


author: Robert L. Brown, Justice.

text:
    Michael and Leesa FERGUSON v. The KROGER CO.
    00-744
    37 S.W.3d 590
    Supreme Court of Arkansas
    Opinion delivered February 8, 2001

      Dover & Dixon, P.A., by: David A. Couch, for appellants.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: James M. McHaney, Jr., and Phil Campbell, for appellee.
   Robert L. Brown, Justice.

This is an appeal by appellants Michael and Leesa Ferguson in which they claim that the trial court erred in refusing to certify a class of people who allegedly had been misled and damaged by appellee The Kroger Co.’s double-coupon promotion. We disagree that the trial court erred in denying class certification, and we affirm the trial court’s order.

This case arises out of Kroger’s double-coupon advertising campaign. The time frame specified by the Fergusons in their complaint is 1990 through 1992. During that period, Kroger advertised to the general public that it would double the value of a manufacturer’s coupon for goods on particular days. The value of that doubled coupon would then be deducted against the price of the product. During this time period, Kroger discounted the amount of state sales tax against the enhanced coupon value. The net result was that customers did not receive the full double-coupon value. Rather, they received the double-coupon value less the sales tax on the enhanced value, which was remitted to the applicable state revenue department by Kroger. Kroger admits that this occurred in the 1990-92 time frame and that in 1992, it reprogrammed its computer software to eliminate the sales tax deduction from the value of the double coupon.

On September 15, 1993, the Fergusons filed their original complaint against Kroger in the United States District Court for the Eastern District of Arkansas. In 1994, the District Court dismissed this complaint due to lack of subject-matter jurisdiction because no individual claim exceeded $50,000. In 1995, the Fergusons refiled their complaint in the Pulaski County Circuit Court. In 1996, they amended their complaint to efiminate any claim relating to taxes and instead focused on allegations of false and misleading advertising by Kroger. They asserted causes of action for negligence, breach of contract, unjust enrichment, misrepresentation, and conversion. A motion to certify the matter as a class action accompanied the amended complaint. In that motion, as well as in the amended complaint, the Fergusons contended that Kroger had overcharged customers in seventeen states, in addition to Arkansas, and that the company had admitted that the overcharges approximated $500,000. Later discovery showed that in fourteen states, including Arkansas, the amount of taxes improperly collected on the doubled coupon by Kroger and remitted to the various state treasuries was $6,135,188 for the 1990-92 time period.

The trial court scheduled a hearing on the Fergusons’ motion to certify the class. At that hearing, the court heard testimony from witnesses, including expert witnesses — Jay Marsh for the Fergusons and Dr. Charles Venus for Kroger. On December 3, 1999, the court entered its order denying class certification. The court found that it was without jurisdiction to order the treasuries of other states to refund tax revenues. It concluded its findings as follows:

The Plaintiffs failed to meet their burden of proving the requirements of commonality, predominance, superiority,.and adequacy. The claims in this action are based on potential class members’ individual perceptions of Kroger’s double coupon advertising program and the expectations associated with those perceptions. Preliminary issues of the class members’ perceptions and expectations of the advertising must be resolved on an individual basis before common issues can be addressed, thus individual issues predominate over common ones in this lawsuit. See Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995); see also Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997): Therefore, a class action is not superior to the use of individual actions to resolve the issues in this action. Moreover, the Plaintiffs have not demonstrated that they are adequate class representatives. They failed to prove that they are ready, willing, and able to commit the financial resources necessary to give notice of the cause of action to potential class members.

The focal point of the Fergusons’ appeal is that the trial court erred in its findings relating to the required prerequisites set out in Ark. R.- Civ. P. 23(a)- and (b). Rule 23 reads in pertinent part:

(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

As an initial matter, this court has made it clear that we will not reverse a trial court’s ruling on class certification absent an abuse of discretion. See, e.g., Fraley v. Williams Ford Tractor & Equipment, 339 Ark. 322, 5 S.W.3d 423 (1999); Seeco, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997); Mega Life & Health Ins. Co. v. Jacob, 330 Ark. 261, 954 S.W.2d 898 (1997). We turn then to the prerequisites for class certification and specifically to questions relating to the size and extent of the class.

Kroger argues in its brief on appeal that it is virtually impossible to identify members of the proposed class and, thus, impossible to define the class. We agree. We acknowledge at the outset that defining the class size is not a specified prerequisite to class certification under Rule 23. But that alone does not decide the issue. This court has held that the exact number of a class need not be proved as a prerequisite for class certification. See Mega Life & Health Ins. Co. v. Jacola, supra; Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995); see also I Newberg on Class Actions, § 3.05 (3d ed. 1992). But at the same time, we subscribe to the recognized principle that in order for a class to be certified, a class must exist and that this is implicit in Rule 23. The treatise, Moore’s Federal Practice, states the proposition succinctly and the reasoning behind it:

It is axiomatic that in order for a class action to be certified, a class must exist. The definition of the class to be certified must first meet a standard that is not explicit in the text of Rule 23, that the class be susceptible to precise definition. This is to ensure that the class is neither “amorphous,” nor “imprecise.” Concurrently, the class representatives must be members of that class. Thus, before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. Furthermore, for a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria.

5 Jeremy C. Moore, Moore’s Federal Practice § 23.2(1) (Matthew Bender 3d ed. 1997). A second distinguished treatise echoes these principles that class identity must be feasible and that the class cannot be excessively broad or amorphous. 7A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 1760 (2d ed. 1986); see also Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980) (proposed class of all children with learning disabilities too difficult to identify and not adequately defined); Intratex Gas Co. v. Beeson, 22 S.W.3d 398 (Tex. 2000); Hamilton v. Ohio Savings Bank, 82 Ohio St. 3d 67, 694 N.E.2d 442 (1998). Clearly defining the class insures that those people who are actually harmed by the defendant’s wrongful conduct will participate in the relief ultimately awarded. See Simer v. Rios, 661 F.2d 655 (7th Cir. 1981). Whether a class exists is a question of fact that will be determined by the circumstances of each case. Id. See Adashunas v. Negley, supra.

In affirming or directing the certification of class actions in recent years, this court has implicitly recognized that a class must be susceptible to definition and cannot be amorphous or imprecise. See, e.g., BNL Equity Corp v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000) (proposed class to consist of purchasers of UAC stock after first and second offerings; approximately 1,841 investors); Fraley v. Williams Ford Tractor and Equipment Co., supra, (proposed class could consist of 429 persons since those persons allegedly had not received their insurance premium refunds); Seeco, Inc. v. Hale, supra, (proposed class of royalty owners allegedly defrauded consisted of more than 3,000 persons); Mega Life & Health Ins. Co. v. Jacola, supra, (proposed class consisted of approximately 400 persons who allegedly were misled into believing that their health insurance policies were group policies); Cheqnet Systems, Inc. v. Montgomery, supra, (proposed class of about 3,000 persons who were allegedly charged $10 more for debt collection than the law allowed); Summons v. Missouri Pacific Railroad, 306 Ark. 116, 813 S.W.2d 240 (1991) (proposed class of about 3,500 persons, who allegedly were evacuated due to derailment of a chemical tank car); Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991) (proposed class of about 800 persons allegedly defrauded by promises of gifts for entering into retail installment membership contracts); Int’l Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988) (proposed class of salaried and hourly employees consisting of several hundred employees who sued union for loss of pay and personal and property damage due to strike).

Just last year, this court reversed and remanded a case where the trial court had certified a class consisting of persons allegedly exposed to toxins following an explosion and fire at an agricultural packaging plant in West Flelena. See BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000). Plaintiffs in that case had alleged class membership of between 16,000 -and 20,000 members. The trial court found that the class met the numerosity requirement of Ark. R. Civ. P. 23(a) but gave no indication of what the class membership would be. We pointed out in our opinion that we “cannot be certain of: (1) the number of members in the class which the trial court used to determine whether the numerosity requirement was met (estimated size of the class ranged from 100 members to 20,000 members) ....” BPS, Inc., 341 Ark. at 850, 20 S.W.2d at 411. We remanded for the trial court to make factual findings relating to the approximate size of the class and regarding other points as well.

In the case at hand, the Fergusons presented the trial court with a proposed class of people who were misled into shopping at a Kroger store because of double-coupon advertisements. These people, according to the Fergusons, were misled because they did not receive the full double-coupon discount owing to the assessment of the sales tax against the doubled value. This means that in order to identify a class member for the proposed class, it must be shown:

(a) that the shopper saw or heard about a double-coupon advertisement by Kiroger;
(b) that the shopper went to a Kroger store on double-coupon day because of the double-coupon advertisement;
(c) that the shopper did not expect the sales tax to be deducted from the enhanced value of the coupon or that the shopper was misled to believe that a sales tax would not be assessed against the double coupon;
(d) that the sales tax was wrongfully assessed against the enhanced value due that shopper;
(e) that the shopper can prove by sales receipts that he or she used a double coupon and did not receive the full value of the double-coupon discount.

Added to the mix is the fact that the Kroger advertisements for double coupons in the affected states and local communities varied insofar as the medium used to promote the advertisement (newspapers, direct mail, door hangers) as well as the content of the advertisement. Identifying class membership is also made more difficult by the passage of time and changes in the shoppers’ circumstances. In light of these facts, we view the Fergusons’ ability to define the class to be all but insurmountable. Arguments and proof presented at the hearing before the trial court as well as the Fergusons’ brief on appeal do little to allay our concerns.

We affirm the trial court’s denial of the motion to certify the class. In doing so, we recognize that we are affirming the trial court for a different reason than what it specified in its order. Nevertheless, we have acknowledged our authority to do so. See State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999); McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999). Suffice it to say that we conclude that in order to have a class action there must be a defined class that will make it administratively feasible for a court to determine membership in that class. Here, a defined class does not exist.

The Fergusons also contend that the trial court erred in allowing Dr. Charles Venus to testify as an expert witness for Kroger because his name was not furnished until ten days before the hearing. Kroger responds that the reason the name was not furnished is that it did not make the decision to call Dr. Venus until after deposing the Fergusons’ expert witness, Jay Marsh. We do not agree that the trial court abused its discretion in allowing Dr. Venus to testify. Kroger was not able to depose Mr. Marsh until ten days before the hearing, and after that deposition, it disclosed the fact that Dr. Venus would testify as a rebuttal witness to Mr. Marsh. This does not appear to be an unreasonable explanation for Kroger’s actions. Moreover, the Fergusons had the opportunity to depose Dr. Venus during the ten-day period before the hearing. There was no abuse of discretion by the trial court. See Farm Bureau Mutual Ins. Co. of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).

Because we are affirming on the basis of the Fergusons’ failure to define the class sufficiently, we need not address the trial court’s findings that it lacked subject-matter jurisdiction to order other state treasuries to refund tax. revenues or the inability of the class representatives to pay for notice to potential class members as a reason for disqualification.

Affirmed.


text:
    Joe Louis DANSBY v. STATE of Arkansas
    CR 97-1415
    37 S.W.3d 599
    Supreme Court of Arkansas
    Opinion delivered February 8, 2001

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Joe Louis Dansby was found guilty of two counts of capital murder and sentenced to death. We affirmed. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999). After the judgment was affirmed, Dansby filed a petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37 in the trial court. The petition was denied, and on November 28, 2000, Dansby lodged an appeal of that order here.

On September 14, 2000, Dansby filed the instant petition asking that this court reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000). Literally, coram nobis means our court, in our presence, before us. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). The essence of the writ of error coram nobis is that it is addressed to the very court which renders the judgment where injustice is alleged to have been done, rather than to an appellate or other court. Black’s Law Dictionary 337 (6th ed. 1990). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Pitts, supra. When determining whether a petitioner is entitled to relief as a result of material evidence withheld by the prosecutor, the petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the evidence been disclosed at trial. Larimore, supra. A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Due diligence is required in making application for relief. Penn v. State, supra; Troglin v. State, 257 Ark. 644, 646, 519 S.W.2d 740, 741 (1975). After reviewing the instant petition, we do not find that petitioner was diligent in advancing the issues raised in this petition or that he has stated any good cause to grant leave to proceed with a petition for writ of error coram nobis in the trial court.

Petitioner Dansby contends that he is entitled to error coram nobis relief on the ground that two persons, Wayne Mills and Larry Byers, have provided by affidavit exculpatory information that was not available to trial counsel even if counsel had sought the information with due diligence. To place the information contained in the affidavits in context, it is necessary to reiterate some of the circumstances surrounding the murders which are set forth in detail in our decision affirming the judgment.

On May 16, 1992, Malissa Clark and her boyfriend, Jeffrey Lewis, left her residence to go riding on a four-wheel all-terrain vehicle. ' When Clark’s parents learned the next morning that she had not returned home, law enforcement authorities began a search for the couple. By noon that day several pieces of potential evidence had been found, including a pair of pink panties, bloodstained gym shorts, weight-lifting gloves, a part of a gun rack, and several expended .22 shell casings located in a rural area in Nevada County that was designated Crime Scene I. Later that day, the bodies of Clark and Lewis were found several miles away in another rural area that was designated as Crime Scene 2. Both victims had died from multiple gunshot wounds inflicted by a .22 rifle. After petitioner Dansby became a suspect in the homicides, he consented to a search of an area surrounding his home. No shell casings were found in that search, but at a later date four expended .22 shell casings matching those found at Crime Scenes 1 and 2 were found, one on petitioner’s back porch and three in his yard. DNA analysis conducted by the F.B.I. and a private testing lab indicated that semen taken from the body of Malissa Clark matched Dansby’s DNA. Petitioner’s wife and a person incarcerated with petitioner testified that he had admitted committing the offenses.

In his affidavit, Wayne Mills averred that in May 1992 when the homicides occurred he was living on a gravel road, presumably in the area where the victims lived or where their bodies were found. At 10:30 a.m. on May 17, 1992, prior to the discovery of the victims, he saw a pickup truck go down the gravel road with Harley Hillary, identified by petitioner Dansby as the stepfather of Malissa Clark and an investigator for the Nevada County Sheriffs Office, riding in the passenger seat. Mills saw the truck go back up the road ten minutes later, and soon thereafter he left for work on his bicycle. Approximately a mile from his house, Mills found a paper bag that he assumed had been thrown from the truck because there was no other traffic on the road and the bag was dry despite an early morning shower and dew still on the ground. Inside the paper bag Mills found the following items: a pair of gray jogging shorts, a pair of white panties, several candy bar wrappers, several cigarette butts, pieces of a torn picture of Malissa Clark and Jeff Lewis with a girl Mills did not recognize, a New Testament of the kind distributed by the Gideons, a red diary, and a metal key. He removed the New Testament, the diary, and the key from the bag and hid them across the road under a tree so that he could examine them later. At about 5:30 p.m. that day, Mills was headed home when he saw a man he did not recognize with the bag in his hands. He continued home and returned about 6:00 p.m. to the place where he had hidden the New Testament, diary, and key and took the items to his house. Upon examining the diary, he found that it had been cut open with a knife and several pages removed. In reading the diary he gathered that it belonged to Malissa Clark and that she had been having sexual relations with Harley Hillary for a number of years.- Mills said that he had since misplaced the diary but would deliver the New Testament and the key to the State Police. In conclusion, he said that he had not come forward with the information because he feared for his life. He did not say of whom he was fearful.

Dansby contends that, if Mills is truthful about the contents of the paper bag and correct in his inference that it was discarded by Harley Hillary, a most pernicious act by a State actor occurred on the day the victims’ bodies were discovered. Dansby argues that there is a compelling inference that the paper bag was placed on the road by Hillary, or by an agent at his direction, and that the information about the timing of the event would have been beneficial to the defense in its pretrial investigation and would have impeached the State’s entire investigation. He does not contend that the State knew about Mills’s finding the paper bag. His argument is entirely that the information constitutes newly discovered evidence that was valuable to the defense and could not have been discovered by counsel at the time of trial regardless of counsel’s diligence.

In his affidavit, Larry Byers stated that on May 17, 1992, before the victims were found, he went to the home of Harley Hillary to join in the search for the couple. A neighbor came by with a weight-lifting glove that he had found on a logging road that Hillary identified as belonging to Jeff Lewis. The neighbor had also brought a part of a gun rack that Hillary thought had come from Lewis’s vehicle. Byers and Hillary drove to the area later designated as Crime Scene 1. (A deputy sheriff was also present when Byers and Hillary were at Crime Scene 1.) There, Byers saw about seven .22 shell casings lying together in a small group. Hillary picked one of the shell casings up and put it back down. Near where the casings were found, the two found a checkbook that Hillary said belonged to Lewis, a pair of sunglasses, and an item of blood-soaked material lying in a bloody spot of grass. Byers said he pointed out that there was a footprint by the bloody grass, but Hillary was “not well focused,” and it was Byers’s conclusion that Crime Scene 1 was not properly sealed off so that a proper investigation could take place. Byers also saw a pair of women’s panties. Byers said that Hillary picked up the bloody item and placed “these items” in a sack and put the sack in his car. The affidavit is not clear on whether the panties and all other items mentioned by Byers as being at Crime Scene 1 were collected by Hillary and placed in the sack. Byers does not state in his affidavit that he has any knowledge that whatever items collected by Hillary at Crime Scene 1 were wrongfully disposed of by Hillary or in some way were concealed from the defense by the State. Byers said that Hillary told him later that he did not need the information about what he had observed at Crime Scene 1. Byers said that he was not asked to give a written statement to investigators and was not called by Dansby’s attorneys concerning the case.

Petitioner Dansby alleges that the information Byers had about Crime Scene 1 was withheld from the defense by agents of the State. He contends that testimony at trial and information provided by the State in discovery indicated that fewer shells were found than were described by Byers and in a much different location and configuration than described by Byers. Petitioner asserts that if the shell casings were indeed found as Byers says they were found, it could be inferred that the perpetrator of the crime had used a pistol rather than a rifle as the State contended and dumped the empty shells on the ground from a cylinder chamber. He further argues that if the murder weapon was not a rifle as the State theorized, the testimony of petitioner’s wife regarding her leading investigators to the murder weapon would have been undermined.

There is a distinction between fundamental error and newly discovered evidence. Before a writ of error coram nobis may issue it must appear that the facts as alleged as grounds for its issuance are such that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial, not that the newly discovered evidence might have produced a different result had it been known to judge and jury. Larimore, supra. The information contained in the affidavits that petitioner contends is newly discovered exculpatory evidence is not of such fundamental nature that it can be said that there is a reasonable probability that the judgment would not have been rendered had the information been brought out at trial, especially in view of the forensic evidence, including DNA testing linking petitioner to one of the victims, and petitioner’s admission to two persons of his guilt. With respect to petitioner’s claim that the State, or Hillary acting as an agent of the State, may have withheld Byer’s account by telling Byers that his information was not needed, petitioner has not demonstrated that there was some deliberate suppression of exculpatory evidence by the State such that a fundamental error extrinsic to the record occurred.

Petition denied.


text:
    Jerry WILLIAMS v. STATE of Arkansas
    CR 01-74
    38 S.W.3d 304
    Supreme Court of Arkansas
    Opinion delivered February 8, 2001

      Ann Hill, for appellant.
    No response.
   PER CURIAM.

Petitioner, Jerry Williams, by his attorney, Ann Hill, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on her part.

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

The motion for rule on the clerk is, therefore, granted. A copy of this per curiam will be forwarded to the Committee on Professional Conduct.