author: JIM HANNAH, Justice.

text:
    Marion Douglas WOOD, Jr. v. SUPREME COURT COMMITTEE on PROFESSIONAL CONDUCT
    00-1127
    38 S.W.3d 310
    Supreme Court of Arkansas
    Opinion delivered February 15, 2001

      Appellant, pro se.

      Lynn Williams, Staff Attorney, for appellee.
   JIM HANNAH, Justice.

Attorney Marion Douglas Wood appeals the Committee on Professional Conduct’s denial of his motion for reconsideration of his request that the Committee lift its interim suspension of his license to practice law. Thus, his asserted appeal is derivative of the imposition of interim suspension. Under the applicable Procedures Regulating Professional Conduct, interim suspension is initiated, adjudicated, and imposed upon presentation of a file-marked judgment of conviction of a felony to the Committee on Professional Conduct. The Rules do not provide for appeal from this action by the Committee. Therefore, Wood’s appeal is dismissed without prejudice.

Facts

On November 12, 1999, a judgment on ten felony counts was entered in federal district court in Louisiana against attorney Wood for conspiracy and mail fraud. He was sentenced to 228 months. He was also ordered to make restitution in an amount approaching $1,500,000. Wood has appealed and is presently free on bond pending his appeal.

Upon receipt and review of the judgment on the felony convictions, the Supreme Court Committee on Professional Conduct placed Wood on interim suspension pursuant to the Procedures Regulating Professional Conduct, Section 7E(3)(b), and under the procedure set out in Section 8B(l)(b). An order imposing interim suspension was filed with the clerk of this court on December 27, 1999. Wood then filed a Request for Dissolution of Interim Suspension and Affidavit in Rebuttal with the Committee on Professional Conduct on January 7, 2000, pursuant to Section 8B(2). That request was considered and denied by the Committee. Notice of the denial was given to Wood by a letter from the Committee dated January 13, 2000. This letter also notified Wood that disbarment proceedings would be commenced in circuit court.

On March 10, 2000, Wood filed an action in circuit court seeking dissolution of the interim suspension. The Committee filed a motion to dismiss, alleging a lack of standing. Wood filed a dismissal under Ark. R. Civ. P. 41, and then filed a motion for reconsideration and reinstatement with the Committee on April 28, 2000, which was denied by an order filed with the Clerk of the Supreme Court on July 17, 2000. Appeal was taken from this order by a notice filed with the Committee on August 15, 2000.

Procedures Regulating Professional Conduct

The procedure to be followed in this matter is set out in the Procedures Regulating Professional Conduct. Although this court has characterized the process undertaken by the Committee as in the nature of administrative proceedings, the Committee is an administrative agency of the court and the rules for such proceedings are promulgated by this court. Walker v. Sup. Ct. Comm. on Prof. Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982). The Administrative Procedure Act, Ark. Code Ann.§§ 25-15-201 — 25-15-214, is thus inapplicable.

In this case, we are required to interpret our Procedures Regulating Professional Conduct. Courts construe their own rules using the same means as are used to construe statutes. Gannett River Pub. Co. v. Arkansas Dis. & Disab. Comm’n, 304 Ark. 244, 801 S.W.2d 292 (1990). The fundamental principle used in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning. Boston v. State, 331 Ark. 99, 952 S.W.2d 671 (1997); Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996); Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998).

Interim Suspension

At issue is interim suspension under Section 7E(3)(b), which has not been addressed by this court previously. Interim suspension may be imposed by the Committee immediately upon conviction of a felony, notwithstanding pending postconviction action by the attorney. Section 7E(3)(b). Consistent with this provision, this court has stated that under the Procedures, conviction of a felony constitutes grounds for automatic suspension pending an automatic referral for disbarment. Cambiano v. Neal, 342 Ark. 691, 703, 35 S.W.3d 792, 799 (2000).

There is a right to appeal for some actions taken by the Committee. Section 5A of the Procedures provides for investigation and adjudication of violations of the Model Rules. When such a violation is investigated and adjudicated by the Committee, there is a right to a public hearing as set out in Section 5J, and once an action is taken by the Committee, there is a right to an appeal as set out under Section 5L. However, Section 5 is not applicable to interim suspension.

Section 8B(l)(b) specifically provides the procedure for interim suspension in this case and states in pertinent part:

An action for interim suspension...is initiated, adjudicated and imposed...[p]ursuant to Section 7E(3)(b)...upon presentation to the Committee of a file marked copy of a judgment of a court of proper jurisdiction reflecting that the attorney has been convicted of...a felony.

Thus, upon presentation of a judgment of conviction, there is no right to a public hearing, and the Section 5 right to an appeal is not applicable. Rather, Section 8 provides interim suspension may be imposed upon presentation of the file-marked copy of the judgment.

Interim suspension provides a means to preclude an attorney from practice while further action is undertaken by the Committee. It is a temporary action and is not afforded the same protections as permanent actions. The purpose of interim suspension under Section 7E(3)(b) is made clear by the use of “interim,” meaning the suspension is imposed while disbarment proceedings are initiated under Section 6B. As this court noted in Cambiano, conviction of a felony constitutes grounds for automatic suspension pending an automatic referral for disbarment.

Interim suspension was properly imposed in this case. An order of the Committee was filed with the clerk of this court on December 27, 1999, which provided that interim suspension was imposed immediately against attorney Wood based upon presentation of a file-marked copy of a judgment of conviction of a felony pursuant to the above-noted sections of the Procedures Regulating Professional Conduct. The order also stated the Committee was directing that disbarment proceedings be commenced pursuant to Section 6B(1).

Upon imposition of the sanction of interim suspension, Wood had the right to file an affidavit in rebuttal and request for dissolution or modification of the interim suspension. Section 8B(2). Wood availed himself of this; however, his request was denied by a letter of the Committee dated January 13, 2000.

Imposition of interim suspension pursuant to Section 7E(3)(b), under the procedure set out in Section 8B(l)(b), is not subject to appeal.

Appeal dismissed without prejudice.


source: Caselaw Access Project

author: CURIAM.

license: Public Domain

text:
    Jerry WILLIAMS v. STATE of Arkansas
    CR 01-74
    38 S.W.3d 304
    Supreme Court of Arkansas
    Opinion delivered February 15, 2001

      Mark S. Frasier, for appellant.
    No response.
   CURIAM.

Mark S. Fraiser, a state-salaried, full-time public defender for the Eighteenth Judicial District, was appointed by the trial court to represent appellant Jerry Williams, an indigent defendant, in this probation-revocation case. Appellant’s probation was terminated, and he was convicted of possession of a controlled substance and sentenced to eight years in the Arkansas Department of Correction. A notice of appeal from the judgment of conviction was timely filed, and the record has been lodged with our clerk.

Mr. Fraiser now asks this court to relieve him as counsel for Mr. Williams in this appeal. In support of his motion to be relieved, Mr. Fraiser asserts that he is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 484 (2000). He also directs this court’s attention to Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), wherein we relieved the appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also, Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 25 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant Mr. Fraiser’s motion to be relieved for good cause shown. Ms. Ann C. Hill will be substituted as attorney for appellant Jerry Williams.


author: Tom Glaze, Justice.

text:
    Ledell LEE v. STATE of Arkansas
    CR 99-1116
    38 S.W.3d 334
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Craig Lambert, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Ledell Lee was convicted and sentenced to death for the 1993 capital murder of Jacksonville resident Debra Reese; that conviction was affirmed by this court in Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997). Lee subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging that his trial attorneys, Bill Simpson, Bret Qualls, and Dale Adams, had rendered ineffective assistance of counsel. The trial court denied the petition, and on appeal, Lee raises sixteen points for reversal.

The general standard of review for reviewing claims of ineffective assistance of counsel, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), has been stated many times. A defendant must show first, that counsel’s performance “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, and second, that the errors “actually had an adverse effect on the defense.” Id. at 693.

We have repeatedly held that we will not reverse the trial court’s denial of postconviction relief unless the trial court’s findings are clearly against the preponderance of the evidence. Norman v. State, 339 Ark. 54, 2 S.W.3d 772 (1999). There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. (citing Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992); Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988)). Furthermore, matters of trial tactics and strategy are not grounds for postconviction relief. Id. (citing Vickers v. State, 320 Ark. 437, 898 S.W.2d 26; Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973)). This latter principle is of particular importance in this case, as it is applicable and disposes of several of Lee’s points.

Lee’s first argument on appeal is that his Sixth Amendment right to conflict-free counsel was violated because the trial court refused to relieve Simpson and Qualls of the Pulaski County Public Defender’s Office and appoint him new counsel. To better understand his arguments, a discussion of the facts leading up to Lee’s trial is necessary. After Lee was charged with Reese’s murder, he quickly became a suspect in several other crimes that had occurred in the Jacksonville area. He was eventually charged with a second capital murder and with three counts of rape. Of the charges pending against him, the Reese murder was assigned to Pulaski County Circuit Court, Second Division; the other capital murder case was assigned to Seventh Division; and the three rape cases were assigned to First Division. Public Defender attorneys Simpson and Qualls were appointed to represent Lee in all five of these cases.

Lee was first tried for the murder of Debra Reese in 1994, and that trial ended in a hung jury; at the time, the other murder case and all three rape cases were still pending. On February 17, 1995, Lee, acting pro se, represented to First Division Judge Marion Humphrey that a conflict of interest existed between himself and his attorneys, and he requested that Simpson and Qualls be relieved as counsel in the First Division rape cases. Lee also voiced dissatisfaction with Simpson’s and Qualls’s refusals to call certain witnesses in his Second Division capital murder case; he also was upset because, after obtaining the mistrial in the Reese case, Simpson stated that Lee should have gotten the death penalty. After hearing Lee’s and Simpson’s testimony, but without articulating his reasons, Judge Humphrey found that a conflict existed. The judge granted Lee’s request to relieve Simpson and Qualls from the First Division rape cases; he then appointed Dale Adams to represent Lee in the three rape cases.

After being removed from the First Division cases, Simpson filed motions in Second and Seventh Divisions, asking to be relieved in those murder cases as well. He argued that since a conflict had been found to exist in the First Division cases, a conflict necessarily existed in the Second and Seventh Division cases. Particularly, Simpson contended that the rape charges were going to be used against Lee in the murder trials — in Second Division, they would be introduced as aggravating factors during the penalty phase, and in Seventh Division, they would be used as evidence under Ark. R. Evid. 404(b).

On February 22, 1995, Second Division Judge Chris Piazza held a hearing on Simpson’s and Qualls’s motion to be relieved, and at the hearing’s conclusion, Judge Piazza ruled that the conflict in First Division was “not going to affect this division. . . . Judge Humphrey cannot declare there is a conflict up there and have any bearing on this case.” Another hearing was held on March 8, 1995, at which time Lee argued that he wished to have the Public Defender attorneys removed from his case because they would not communicate with him, nor would they handle the case to his liking. Judge Piazza again refused to relieve Simpson or Qualls.

A third hearing was held on March 23, 1995. Simpson noted that there would be a problem of inconsistent strategies if he was required to continue representing Lee in the Second Division murder case. Once again, Judge Piazza refused to recognize that a conflict existed, and denied defense counsels’ motion to be relieved. At yet another hearing on April 21, 1995, Simpson pointed out that he had received a copy of a complaint, bearing no file mark, which purportedly was a civil lawsuit against him by Lee. Simpson submitted that this complaint appeared to put him in a direct adversarial position with Lee. Simpson also asserted that Lee had refused to discuss the case or cooperate in any way the last two times they had attempted to visit about the case. Lee responded that he did not trust Simpson or Qualls. Judge Piazza, commenting on Lee’s “pattern of obstruction,” refused to find a conflict and again declined to relieve Simpson and Qualls.

Simpson subsequendy filed a petition for writ of certiorari with our court on April 25, 1995, alleging that there was “an intolerable conflict between himself and [Lee]” and asking us to order Judge Piazza to relieve him and Qualls as defense counsel in the Second Division murder case. Our court, presented with only a partial record, declined to hold that Judge Piazza had “committed a plain, manifest, clear, great, or gross abuse of discretion in refusing to relieve the public defender.” Simpson v. Pulaski County Circuit Court, 320 Ark. 468, 899 S.W.2d 50 (1995).

Lee’s Second Division murder trial was set for May 15, 1995. At a pretrial hearing on May 12, Judge Piazza agreed to appoint Dale Adams to represent Lee during the penalty phase of his trial. At that point, the following colloquy was had between Lee, Simpson, Qualls, Adams, Holly Lodge (the deputy prosecutor), and Judge Piazza:

The COURT: [Speaking to Lee] It is my understanding that Mr. Adams and Mr. Simpson have conferred with you about this situation, and it is my understanding that you intend to waive any conflict of interest and accept the situation as it exists. Is that correct?
Mr Lee: Yes, it is.
The COURT. Mr. Adams, just for the record, you have discussed this with Mr. Lee?
Mr Adams: Yes I have, Your Honor. I have talked with him. Mr. Simpson has talked with him about what he is doing is waiving any possible error that might be in the trial by having me involved in this. It is his statement that this is what he wants to do as long as we get it continued until sometime this fall where I will have sufficient time to prepare the mitigation.
The Court: interest? As far as any error in dealing with the conflict of
Mr. Adams: Yes, that’s correct.
The COURT: Mr. Simpson, that’s your understanding also?
Mr. Simpson: Yes, Your Honor.
The COURT: That’s your understanding, Mr. Lee?
Mr Lee: Yes, it is.
Ms. Lodge■. Mr. Lee, you are perfectly satisfied with Mr. Simpson defending you in the guilt phase of this trial?
Mr Lee: Yes, I am.
Ms. LODGE: Your Honor, I want to make sure the record is clear there’s not any coercion here, anything like that going on. This isn’t an ultimatum. This is a voluntary intelligent choice. We are not putting him in a predicament, it is this or nothing. I want this amply clear this is a voluntary choice at this point, something we can stick with when he changes his mind two weeks from now.
The Court. Mr. Lee, you understand that?
Mr Lee: Yes, I understand.
The COURT: This is a free and voluntary choice on your part?
Mr Lee: Yes, it is.
The COURT: I have a feeling there’s nothing you ever do that’s not free and voluntary. I want to make sure that’s on the record. I will make a docket entry showing Mr. Adams appointed for the penalty phase. Mr. Lee has waived the conflict of interest, and the Public Defender will continue in this case.

(Emphasis added.)

In accordance with everyone’s agreement, Judge Piazza then continued Lee’s trial to October 9, 1995. Immediately prior to the beginning of trial, Lee attempted to reassert his conflict-of-interest argument, and again generally argued that he and Simpson had a conflict and that he was not satisfied with Simpson. Lee added that, when he previously sought a writ of certiorari from this court due to the alleged conflict-of-interest issue, Judge Piazza improperly sent a letter to Chief Justice Jack Holt stating that Lee’s petition should be denied. Judge Piazza ruled that Lee had waited until the day of trial to once again raise the issue and that Lee’s actions were “ridiculous.” The case then proceeded to trial, with Simpson and Qualls representing Lee in the guilt phase of the trial, and Adams handling voir dire and the sentencing phase for Lee. The jury convicted Lee of capital murder and sentenced him to death by lethal injection.

On appeal, Lee argues that, pursuant to Holloway v. Arkansas, 435 U.S. 475 (1978), Judge Piazza had a duty to either relieve Simpson and Qualls, or take “adequate steps” and conduct a “searching review [and] thorough inquiry” into the assertions that a conflict existed. He contends that Holloway mandates an automatic reversal when an actual conflict exists which had an adverse effect on counsel’s performance. The difficulty with Lee’s argument, however, is that he clearly waived any conflict of interest that might have existed. Lee explicitly stated that he was satisfied with Simpson and Qualls defending him in the guilt phase of the trial, and he expressed to the court that his waiver of any conflict of interest was a free and voluntary choice on his part. Although Lee attempted to raise the issue again before his second trial started, we have held that a defendant cannot be allowed to abort or frustrate the process of justice by his own actions. See Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).

Here, Lee had previously expressed in clear terms why he believed he and the public defender’s counsel had a conflict of interest, but he also intelligently and voluntarily waived any such conflict, which he had every right to do. Moreover, in Myers v. State, 333 Ark. 706, 972 S.W.2d 227 (1998), we held that where the defendant declared that he was satisfied with the services rendered by his attorney, and the alleged conflict of interest was not brought to the attention of the court until the Rule 37 petition, the conflict was waived. Here, of course, the claimed conflict was asserted before trial, but Lee did not raise the issue again until he filed his petition for postconviction relief. Because Lee waived the alleged conflict of interest prior to his trial and he failed to raise this issue on direct appeal, we refuse to consider Lee’s arguments on this point now.

Lee’s second point on appeal is that trial counsel was ineffective for failing to call a number of alibi witnesses who had testified at his first trial. Specifically, Lee contends that his counsel, Mr. Qualls, should have called Stella Young, Lee’s mother, during the guilt phase, and that Dale Adams should have called Sheila Dodson, Lee’s then-girlfriend, during the sentencing phase. At the Rule 37 hearing, both of these witnesses testified that they were present at the second trial and were available to testify consistently with the statements they made during the first trial, which resulted in a mistrial.

When asked why he did not call Stella Young at the second trial, Qualls responded that he had considered it, and indeed had said during his opening statements that he would call her. However, after discussing the situation with Simpson and with Lee, they agreed that they should not call any witnesses. Qualls also stated that he did not feel that Young’s testimony had helped Lee before the jury at the first trial; in addition, he and Simpson felt that the State’s case was not as strong during the second trial, and they did not want to put on any evidence that the State could attack or impeach.

Dale Adams was also questioned about his decision not to call Sheila Dodson. At sentencing at the second trial, the State introduced evidence that Lee had raped a Jacksonville woman. During the first trial, Adams had called Dodson to testify that she was on the phone talking to Lee at the time the rape was supposed to have occurred. However, Adams testified at the Rule 37 hearing that Lee and his family had “talked him into” putting Dodson on as a witness at the first trial, but after the trial was over, the prosecutor sardonically thanked Adams for having called Dodson, because her testimony allowed the State to introduce damaging rebuttal testimony. For this reason, Adams chose not to “make that mistake again” by calling Dodson in the second trial.

This court has held that an attorney’s decision not to call a particular witness is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not, itself, proof of counsel’s ineffectiveness. Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996) (citing Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988)). Moreover, Rule 37 does not provide a forum to debate trial tactics or strategy, even if that strategy proves improvident. Id. (citing Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984)).

In deciding not to call Young and Dodson as witnesses, trial counsel weighed the options and clearly made strategic, tactical decisions, based in large part on their experiences with having already tried the case the first time around. In addition, after the State rested, the trial judge spoke to Lee, Qualls, Simpson, and Adams, and commented that the attorneys had all conversed with Lee and his family and that they had concurred in the decision to rest at the conclusion of the State’s case; Lee responded, “Yes sir, that’s correct.” The Court then asked, “You’ve discussed with them your right to testify and what the implications are?” Lee replied, “Yes sir.” It is clear, then, that trial counsel made a strategic call with which Lee agreed. Lee’s belated disagreement with his attorneys’ decisions on calling witnesses cannot serve as a basis for granting postconviction relief. See Helton, supra.

Lee’s next contention is that trial counsel unreasonably failed to present testimony and evidence at trial that would have shown that he had an income and thus a lack of a motive to rob. When Debra Reese’s body was found, her purse was missing money, thus one of the aggravators introduced at Lee’s capital murder trial was that the murder was committed for pecuniary gain. Other evidence showed that Lee had made a payment on rental furniture at a Jacksonville Rent-A-Center with a $100 bill that was only two serial numbers away from another bill found in Reese’s house. Lee argues now that counsel should have rebutted this robbery aggravator with evidence that he had an income earned from his job, and that he was to receive a tax refund in excess of $1,500.

Simpson testified at the Rule 37 hearing that, before the second trial, he had investigated and confirmed Lee’s assertions that he had money. Simpson chose not to present that evidence because he did not believe it was a very good explanation of why Lee did not commit the murder, especially since the State’s proof reasonably and inferentially showed Lee had spent a $100 bill that had been in Reese’s possession at the time she was murdered. Again, this is a question of trial strategy, which cannot serve as the basis for relief under Rule 37. See Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994).

For his fourth point, Lee argues that counsel was ineffective for failing to highlight the absence of blood on his person or clothing. Lee argues that Qualls failed to call attention to the fact that two witnesses testified that they saw Lee shortly after the murder was alleged to have happened, and neither of them saw blood on his clothing. Lee claims that this testimony, coupled with the crime scene photos, which showed that it was a very bloody murder, would have helped exonerate him, and that his attorneys were therefore ineffective in failing to present it.

Andy Gomez and Glenda Pruitt were the two witnesses who testified that they did not see blood on Lee shortly after the murder. In his closing argument, Simpson emphasized the point that neither of these witnesses saw blood on Lee.: “Did Mr. Gomez . . . see any blood on this black male[?] .... [He said] ‘No I didn’t.’ . . . Glenda Pruitt, who said she got within two feet of him, ‘Did you see any blood on [Lee]?’ ‘No, no blood.’ She and Andy Gomez both say there’s no blood.” It is difficult to see what else defense counsel could have done, short of opening the door to genuinely damaging testimony about the blood on the jacket Lee was seen wearing on the day of Reese’s murder. Once again, this is a matter of trial tactics, and provides no ground for relief.

In addition, Simpson testified at the Rule 37 hearing that he and Qualls wanted to keep out the fact that Lee had a small amount of blood on his shoes, and that they had considered showing Lee’s jeans to the jury, to demonstrate that they did not have blood on them. However, he said that they did not want to open the door about the fact that Lee had blood on his shoes. Simpson stated that “[s]howing [the jeans] to the jury and pointing out the absence of blood on these clothes might have opened the door to evidence of blood on Ledell’s shoes[.]” In addition, Simpson noted that human blood had been found on a jacket that was similar to the one identified by Andy Gomez (one of the witnesses Lee claims counsel should have examined further about the blood). That jacket was found being worn by Lee’s mother the day of the murder, and it had blood on it. Simpson testified that he and Qualls had successfully excluded the evidence about the jacket with a motion in limine, and they did not want to take a chance of waiving their motion by introducing other blood evidence.

In his next point on appeal, Lee claims that Dale Adams was ineffective during the penalty phase for failing to challenge the State’s aggravating circumstances. At sentencing, the State introduced evidence related to Lee’s three rape charges, on which Adams represented Lee in First Division. Lee assigns error to Adams’s failure to 1) cross-examine J.P. as extensively as Adams did during the J.P. rape trial; 2) present proof that the hair and fingerprints taken from the scene of the L.D. rape did not match Lee’s; and 3) avoid opening the door for an in-court identification by the third rape victim, A.S.

First, Lee claims that Adams should have cross-examined J.P. more vigorously and pointed out inconsistencies in her testimony. During the Rule 37 hearing, Adams testified that he did not do so because the State’s next witness was an employee of the circuit clerk’s office, who presented the records from the J.P. rape trial that showed Lee was convicted of raping and kidnapping J.P. Because the jury was going to find out from the next witness that Lee had been convicted of rape, Adams stated that it would only have made the jury angry to “argue with the victim” about details of the rape case. He was able, however, to cross-examine J.P. and show that her identification of Lee as being her assailant was wrong when she described Lee as being only a couple of inches taller than J.P. This was a tactical decision by Adams, which once again does not provide grounds for relief under Rule 37.

With respect to L.D., Lee argues that Adams mounted no defense at all to her testimony about her rape; in particular, Lee asserts that Adams should have presented exculpatory proof as well as cross-examined her as thoroughly as he had during the initial rape trial. During the murder trial, Adams questioned L.D. about her inability to identify her attacker. Nonetheless, Lee contends that Adams’s strategy was “objectively unreasonable,” but beyond that, he only offers a bare assertion that “but for counsel’s failure, there is a reasonable probability that the jury would have found this aggravator lacking.” This statement is not only conclusory, but also it disregards the fact that even without L.D.’s rape as an aggravator, there was still evidence of the two other rapes and the fact that Reese’s murder was committed for pecuniary gain. Thus, it is not likely that, in the absence of this aggravating factor, the jury would not have imposed the death penalty. See, e.g., Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

Finally, Lee argues that Adams was ineffective in his cross-examination of State witness A.S. He asked A.S., “[Yjou’ve never been able to identify the man that did this to you, have you?” Adams asked the question because A.S. had never previously identified anyone in a lineup or photo spread, and Adams thought he could show A.S. had never identified Lee as her attacker. However, A.S. unexpectedly made an in-court identification of Lee as being her assailant. Certainly, Adams’s strategy appeared reasonable, and we have held that Rule 37 does not provide a forum to debate trial tactics or strategy, even if that strategy proves improvident. Helton, 325 Ark. at 147.

Lee’s sixth argument is that counsel was ineffective for failing to offer, as a mitigating circumstance, the fact that the State had made him an offer of life imprisonment without parole in exchange for a guilty plea. In support of this contention, he cites Cook v. State, 369 So. 2d 1251 (Ala. 1978), which he describes as holding that an offer of life without parole constitutes a mitigating factor. That was not the holding in Cook. The statement to which Lee refers is found in a concurring opinion, which expresses that justice’s opinion that the trial court should have considered the State’s offer to the defendant as a mitigator. The majority holding in Cook makes no mention of this offer. Lee, however, asserts that defense counsel knew about this case and should have argued it. At the Rule 37 hearing, Dale Adams testified that he considered arguing this case and bringing up the offer as a mitigator, but he decided not to do so because he “[didn’t] think that’s a true mitigator. [Adams thought] it would have been objected to by the State and probably sustained by the Court.” Counsel cannot be deemed ineffective for not raising every novel issue which might conceivably be raised. See Weaver v. State, 339 Ark. 97, 102, 3 S.W.3d 323 (1999) (citing Ruff v. Armontrout, 77 F.3d 265 (8th Cir. 1996)).

Next, Lee contends that his attorneys were ineffective for failing to move to quash the jury panel, move for a mistrial, or seek some other remedial measure to counteract the pretrial publicity his case had engendered. However, although he presented evidence at the Rule 37 hearing that there was indeed a good deal of publicity, Lee faded to offer the testimony of any juror who might have said that he or she was in any way influenced or prejudiced by the publicity.

The decision of whether to seek a change of venue is largely a matter of trial strategy and therefore not an issue to be debated under our postconviction rule. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990) (citing Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985)). To establish that the failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must offer some basis on which to conclude that an impartial jury was not empaneled. Id. Jurors are presumed unbiased, and the burden of demonstrating actual bias is on the petitioner. Id. (citing Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984); Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983)). A defendant is not entitled to a jury totally ignorant of the facts of a case, id. (citing Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987)), and he is not entided to a perfect trial, only a fair one. Id. (citing Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985)).

In addition to the fact that Lee did not present any evidence that any juror was actually prejudiced, there was also the testimony of Simpson that he and the rest of the defense team considered filing a motion for change of venue, but decided that their chances would probably be better in Pulaski County, as opposed to Perry County, the only other county in the Sixth Judicial District. This is a question of trial strategy, and it does not provide a basis for relief under Rule 37.

Lee’s eighth point on appeal is that counsel was ineffective for failing to object to certain testimony about Lee’s alleged use of crack cocaine. Glenda Pruitt was called as a witness to testify that she had seen Lee around noon on the day of the murder, which was shordy after the murder occurred. Lee argues that it was ineffective for Qualls to fail to object when the State first questioned Pruitt about a conversation she had with Lee wherein he told her that he liked crack cocaine. In addition, Lee urges that Qualls only made matters worse when he pursued the line of questioning on cross-examination, when he asked her what she meant when she asked Lee, “Where’s the fire?” On redirect, in response to these questions, the State asked Pruitt what she had said after Lee told her he preferred crack; she said that, when she asked him if he had it “running all through [his] veins,” he answered, “Yes, it is running all through me.”

During the Rule 37 hearing, Qualls testified that he pursued these questions because he wanted to investigate Pruitt’s own use of drugs in order to discredit her testimony. He stated that he believed they “needed to attack the witness ... by showing she’s a drug user, and in spite of all this coming in, we felt the benefit to be gained by attacking her as a drug user was worth the detriment, and we kind of expected the whole thing to come in once we got in it. But we felt like we should attack the woman on her drug use.”

Once again, this is clearly a matter of trial strategy. Qualls balanced the alternatives and concluded that attacking Pruitt’s credibility as a drug user would result in more good than the harm that could occur by opening the door to Lee’s drug use. As noted above, the fact that a choice of trial strategy later proves improvident does not amount to ineffective assistance of counsel.

Next, Lee accuses counsel of ineffective assistance in their failure to seek a mistrial when a juror was seen leaving the judge’s chambers during jury deliberations. The juror in question was seen entering the judge’s chambers and exiting some fifteen to twenty minutes later. Stella Young testified at the Rule 37 hearing that when she informed Qualls about the juror’s actions, he told her that the juror was merely using the telephone. Because the judge was seen exiting the chambers after the juror left, Lee concludes that there was improper contact between the juror and the judge, which should have resulted in a motion for mistrial. Additionally, he contends that he should be excused from having to show prejudice from this event because such a showing would be “impossible.”

Neither Young nor any other witness testified as to what occurred in the judge’s chambers. Judge Piazza testified during the Rule 37 hearing, but Lee did not ask him about the juror. Although Lee claims it is “impossible” to show prejudice in this situation, Lee could have easily asked Judge Piazza about the incident since the judge testified. Lee has failed to meet his burden under Strickland, and this point, too, must be rejected.

Lee’s tenth point is that counsel unreasonably failed to support their motion to prohibit the use of voter registration records to select the jury panel. Prior to trial, Simpson and Qualls had filed such a motion, arguing that the use of voter registration records systematically underrepresented blacks, women, and other cognizable groups from service on jury panels. The trial court rejected the motion, saying that counsel had failed to support it with any expert testimony; this court affirmed that ruling on direct appeal. However, in holding that Lee had failed to present any proof as to the number of African-Americans on every jury venire in Pulaski County, this court also went on to note that there was no possibility of systematic or purposeful exclusion of any group in the jury selection process, because it was an entirely random selection procedure. Lee, 327 Ark. at 699.

Lee has simply failed to argue at all how he was prejudiced by his counsels’ actions with respect to this issue. He has not asserted that he was prejudiced, let alone attempted to demonstrate how he might have been prejudiced. Thus, he has failed to meet the Strickland test’s requirement that the defendant show that “the deficient performance prejudiced the defense,” and this point as such presents no grounds for relief. Moreover, this court has long upheld the use of voter registration records for jury selection. See, e.g., Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989). It is not ineffective assistance of counsel to fail to raise an objection when there is no chance it will be sustained. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

For his eleventh point, Lee argues that his attorneys were ineffective because they failed to investigate the personal relationship between Judge Piazza and Deputy Prosecuting Attorney Melody LaRue. Here, however, he concedes that Simpson and Qualls testified at the Rule 37 hearing that they were not aware of the relationship and that no one associated with the State informed them that such a relationship might have existed. Nevertheless, he urges that he is entitled to relief because of trial counsels’ failure to investigate the issue. Once again, Lee offers no evidence that would support his contention that this was an “error[j so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. When his attorneys did not know about the relationship, it could not have been ineffective assistance for them to fail to investigate that relationship.

Lee’s twelfth point on appeal is that, during the penalty phase, counsel was ineffective for failing to object to improper closing remarks. After the penalty phase of Lee’s capital murder trial, the prosecutor offered closing arguments in which she said that Lee “is a hunter. [Jacksonville] is his habitat. And his prey were the people of Jacksonville from 1990 to 1993. And the people of Jacksonville didn’t even know they were being hunted. . . . He is a hunter.” When Dale Adams offered his closing statements, he asked the jury “Who are we then to say that we are going to kill Ledell Lee?” The prosecutor then re-addressed the jury, saying “Mr. Adams . . . says, who are we, referring to us, I guess, referring to you specifically as jurors, who are we to determine when a fife should be taken? Ladies and gentlemen, I will tell you who we are. We are the hunted.” Adams offered no objection during any of this.

Lee now argues that Adams’s failure to object was ineffective; he points out that Adams agreed at the Rule 37 hearing that he should have objected, and would have if he had heard the statements, but he “just missed it.” Lee contends that these remarks were “deliberately calculated to create intense fear in the mind of each and every juror.” The judge hearing the Rule 37 petition ruled that these comments were indeed improper, but he concluded that it was not a comment which would have inflamed the passion of the jury to such a degree that the outcome of the proceeding would have been any different had the remark not been made, or had been objected to, and the jury admonished to disregard it. We cannot say that this conclusion is erroneous.

Ordinarily, the failure to object during closing argument is within the wide range of permissible professional legal conduct. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). This court has held that experienced counsel in any case could disagree as to the influence a particular closing argument had on the jury’s verdict. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). Before a petitioner can prevail on an allegation that counsel was wrong in not objecting during closing argument, he must establish that he was denied a fair trial by the failure to object. Id.

Here, Dale Adams testified that he would have objected if he had heard the statement. Since he did not hear the comment, his failure to object cannot necessarily be labeled “trial strategy.” Nonetheless, it was unlikely that, even if Adams had heard the statements and objected, the trial court would have granted a mistrial. Mistrial, of course, is a drastic remedy, to be granted only when there has been an error so prejudicial that justice cannot be served by continuing the trial. See, e.g., Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). Given the nature and strong evidence of guilt the jury had already heard, both during the guilt phase and the sentencing portion of Lee’s trial, it is unlikely that the additional comment — albeit an objectionable comment — was the determining factor in the jury’s decision to impose the death penalty on Lee. When a defendant challenges a sentence of death, “the question is whether there is a reasonable probability that, absent the errors, the sentencers . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695. Although the prosecutor’s statements were improper, when taken along with the evidence already presented to the jury, we do not believe there to be a reasonable probability that, absent these statements, the jury would not have sentenced Lee to death.

Next, Lee argues that his attorneys were ineffective because they failed to advance “the correct theory” to support their objection to the State’s use of victim-impact evidence. Lee submits that his attorneys should have argued that such evidence was irrelevant based on the concurring opinion in Lee v. State, 327 Ark.692, 942 S.W.2d 231 (1997). That concurrence criticized the use of victim-impact testimony, suggesting that while such evidence may be permissible, it still must be relevant before it is admissible. Lee now argues that counsel was ineffective for fading to raise the relevancy issue on direct appeal. He does not mention, however, that at the time of his trial, there was already authority that approved the use of victim-impact evidence. See, e.g., Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Watkins v. State, 320 Ark. 165, 895 S.W.2d 532 (1995). It is therefore likely that, even if counsel had made such an objection, the trial court would have rejected it on the basis of this court’s other opinions approving the use of victim-impact testimony. It is not ineffective assistance of counsel to fail to make a meritless objection, Trimble v. State, 336 Ark. 437, 986 S.W.2d 293 (1999), therefore, this argument does not present a basis for relief.

In the last of Lee’s points alleging ineffective assistance of counsel during the guilt and sentencing phases of his trial, Lee contends that his attorneys should have raised an argument that the inordinate amount of time condemned inmates spend on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Citing Lackey v. Texas, 514 U.S. 1045 (1995), Lee urges that counsel unreasonably failed to raise this claim. Lackey was a memorandum opinion, written by Justice Stevens upon the Supreme Court’s denial of certiorari in an appeal raising the question described above. Justice Stevens opined that the claim was novel, but not without foundation, and he noted that the Court’s denial of certiorari would leave the “important” issue “undecided.” (Emphasis added.)

No Arkansas case has ever cited or approved the point mentioned in the Lackey opinion. We have decided one case that considered the length of time spent on death row, Hill v. State, 331 Ark. 312, 962 S.W.2d 762(1998), but that opinion concludes that “we know of no reason why we should now hold that the imposition of the death penalty is cruel and unusual punishment merely because there has been an extended passage of time between the crime and the punishment.” Hill, 331 Ark. at 322-23. Thus, even if Lee’s attorneys had raised the “Lackey challenge” urged by Lee, there is no indication that the trial court would have granted it or even considered it. It would have been a novel claim, which counsel is not ineffective for failing to raise.

Lee’s penultimate point on appeal is that he was denied due process and a fair trial by the trial court’s refusal to recuse based upon his relationship with the deputy prosecuting attorney. He contends that testimony by Pat Piazza, the judge’s ex-wife, established that the relationship between Judge Piazza and Melody LaRue began at least as early as 1995, and that, because of the relationship, Judge Piazza had a duty to recuse from Lee’s trial.

We reject Lee’s arguments for two reasons. First, the trial judge’s failure to recuse is an issue that should have been raised on direct appeal. Second, however, the Rule 37 court heard testimony from parties on both sides of the issue, and concluded that Lee had not proven that there was in fact a relationship between Judge Piazza and Melody LaRue at the time of Lee’s trial. Although Pat Piazza testified that the relationship began in 1995, Judge Piazza stated that his relationship with LaRue did not begin until the spring of 1996, after Lee’s trial was over. Having seen and heard both witnesses at the Rule 37 hearing, that court made a credibility determination and concluded that the existence of a relationship prior to October of 1995, when Lee was tried, had not been proven. This court defers to a trial court’s determinations of credibility on Rule 37 appeals, see Myers, 333 Ark. 706, 972 S.W.2d 227, and therefore, this assertion does not warrant the granting of relief.

Finally, Lee asserts that he is entitled to relief under the cumulative-error doctrine, because 1) defense counsel did not argue at trial that the cumulative effect of all the errors committed in those proceedings entitled him to relief; and 2) the cumulative effect of the errors committed by defense counsel in the guilt and penalty phase of his murder trial entitles him to relief. In Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998), this court held that a reversal of a conviction based on cumulative error is only appropriate in rare and egregious cases. There, the defendant had not identified any errors committed during the trial that would have justified relief under the cumulative-error doctrine, either at trial or on appeal. Consequently, the Noel court held that the defendant had not shown that trial counsel were ineffective for failing to request relief from the trial court based on cumulative error, or to argue that theory on appeal. Here, likewise, Lee has not identified any errors committed during trial or on appeal; rather, he maintains in a conclusory fashion that he is entitled to relief. Such conclusory allegations cannot be a basis for relief. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). As in Noel, we hold that Lee has not demonstrated that his counsel’s performance was so deficient as to fail under the Sixth Amendment, and thus, we deny his request for relief on this point, as we do on all the others.

Affirmed.

       While the record reflects Judge Piazza wrote Chief Justice Holt a letter, the letter was hardly an ex parte missive since copies were furnished to all counsel and also all circuit judges with the expressed purpose of obtaining counsel to represent Judge Piazza on the conflict-of-interest issue then pending before this court.

       We note that we have thoroughly read the record upon which Judge Humphrey ruled a conflict of interest existed between Lee and counsel Simpson and Qualls, but we are unclear of the reason(s) upon which the judge made his ruling. Because Lee waived whatever conflict could have existed, we need not reach the merits of whether a conflict of interest in fact occurred between Lee and his defense counsel. The standard for determining whether a defendant received ineffective assistance of counsel because of a conflict of interest was set out in Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998):
      Prejudice will be presumed from a conflict of interest only when the defendant demonstrates that an actual conflict of interest adversely affected his lawyer’s performance. Petitioner has the burden of proving a conflict of interest and showing its adverse effects. A petitioner is not entitled to relief . . . unless he satisfies both prongs of the test. The prejudice must be real and have some demonstrable detrimental effect and not merely have some abstract or theoretical effect.

        Sheridan, 331 Ark. at 4-5 (quoting from Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995) (internal quotations and citations omitted).

       Lee’s brief actually contains only four numbered points on appeal. His second point actually consists of thirteen individual issues, which makes a total of sixteen points on appeal. For ease of reading, we will number his points one through sixteen.

       Although Simpson stated that he wanted to keep the shoes out of evidence, the shoes were in fact introduced as State’s Exhibit 47, and Kermit Channell of the State Crime Lab testified that there was a pinhead-sized spot of human blood on the left shoe and a very small spot of blood on the right shoe. We read Simpson’s remarks to mean that he wanted to avoid any additional emphasis on the fact that there was human blood on the shoes.

       We denominate these cases with the initials of the victims: J.P., L.D., and A.S.

       Pruitt’s testimony had been that, as Lee hurried past her yard that morning, she asked him, “Where’s the fire?” According to her, he responded, “Well, you are always asking me for weed” and “I told you, I don’t like that.” He then told her that he preferred crack cocaine.


author: ROBERT L. Brown, Justice.

text:
    Stefany Yvonne SHOEMAKER v. STATE of Arkansas
    00-915
    38 S.W.3d 350
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Luffman & Bledsoe, Ltd., by: James M. Luffman, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

The appellant, Stefany Yvonne Shoemaker, contests the constitutionality of Ark. Code Ann. § 6-17-106 (Repl. 1999), which provides that it is a misdemeanor for any person to abuse or insult a public school teacher who is performing normal and regular or assigned school responsibilities. We agree that the statute impinges on the First Amendment as well as the Due Process Clause of the Fourteenth Amendment of the United States Constitution. We reverse the order of the trial court and dismiss.

This appeal stems from events which occurred on October 19, 1999. On that day, Stefany Shoemaker, a 13-year-old student at Oakdale Junior High School in Benton County, was in her eighth-grade science class with her teacher, Kathy Catón, who had given the students a science assignment to complete. After turning in the assignment, her students were permitted to leave the class to complete an extracurricular activity, which was writing a poem for the garden club. Stefany had tried to turn in her science assignment either two or three times — two times according to Ms. Catón and three times according to Stefany. Each time she was told that her work was not correct and to try again. Following her last attempt to turn the assignment in, Stefany returned to her desk and said the word “bitch,” which was heard by Ms. Catón and many, if not all, of her classmates. Ms. Catón immediately looked up, determined that Stefany had said the word, and sent Stefany to the school office. Stefany was subsequently suspended by the school’s principal for three days. Thereafter, the matter was turned over to the prosecutor who petitioned that she be adjudged a delinquent pursuant to § 6-17-106. On January 26, 2000, a hearing on the delinquency matter took place, and during the hearing, Stefany moved to dismiss the petition on constitutional grounds. She argued that the statute was unconstitutionally vague due to the broad range of conduct that it could conceivably proscribe and that it violated her First Amendment right to free speech.

Following the hearing, the trial court took the constitutionality issue under advisement and ordered both parties to prepare briefs. On April 14, 2000, the court issued an order denying Stefany’s motion to dismiss and adjudicating her delinquent. The court specifically found:

4) Defendant’s motion to dismiss the case due to its unconstitutionality is denied. The words “insult or abuse” as used in ACA 6-17-106 are of such common usage or understanding, especially in a school setting, that they do not fail to give notice of the behavior proscribed. Further, the statute does not fail due to a constitutionally suspect classification that excludes certain classes while including others. Public school teachers are more likely to suffer “insult or abuse” from students than are private school teachers, thus, the legislature’s classification is rational.
5) There is little or no doubt in this Court’s mind that the juvenile’s use of the word “bitch” under the circumstances adduced at trial were directed at her teacher, and the word was meant as an “insult or abuse.”

The court set her disposition hearing for May 15, 2000.

On May 15, 2000, Stefany filed her notice of appeal from the trial court’s Delinquency Order. The court of appeals certified this case to our court for determination. Following certification, the State filed a motion to dismiss appeal on October 9, 2000, and claimed that the trial court’s order of April 14, 2000, was not a final order under Arkansas Rule of Appellate Procedure — Civil 2(a)(1). Thus, the State contended, this court was without jurisdiction to hear the appeal. On October 16, 2000, Stefany responded to the motion and said a Disposition Order and new notice of appeal would be filed. That same day, Stefany filed the trial court’s Disposition Order and a notice of appeal. On October 23, 2000, the State and counsel for Stefany entered into a Stipulation to supplement the record with the Disposition Order and the new notice of appeal. Stefany then filed a Motion to Amend Brief with this court to include the Disposition Order in the Addendum of her brief on appeal. We granted the motion on November 9, 2000, and the Disposition Order was added to the Addendum in Stefany’s brief. The State has not pursued its motion to dismiss, and this court determined that the State’s motion would be submitted with the briefs of the parties for resolution:

I. Jurisdiction

We first address the State’s motion to dismiss the appeal for lack of a final order. This motion appears to be moot as far as the parties are concerned. Stefany, in her response to the State’s motion to dismiss, advised this court that the Disposition Order and new notice of appeal would be filed. That was done. This court then granted Stefany’s Motion to Amend Brief and to supplement the Addendum with the Disposition Order. The new notice of appeal dated October 16, 2000, was added to the record as part of the Stipulation of the parties but was not abstracted. The question then is whether the failure to abstract the new notice of appeal under these facts is fatal to Stefany’s appeal under Ark. Sup. Ct. R. 4-2(b). We think not.

The parties were engaged in a curative action to salvage the appeal with the frill knowledge of this court. Again, Stefany, in her response to the State’s motion to dismiss, advised this court that the Disposition Order and new notice of appeal would be filed. She then moved to add the Disposition Order to the Addendum of her brief and referred to the Stipulation by the parties to supplement the record. This court granted her motion and she amended her brief on November 13, 2000. The record was also supplemented with the Stipulation, Disposition Order, and new notice of appeal. Under these facts, we do not consider Stefany’s abstract to be flagrantly deficient under Ark. Sup. Ct. R. 4-2 (b)(3). This court was made aware by the motions and responses before this court that a new notice of appeal would be filed, and that was done.

II. Overbreadth and Vagueness

Stefany argues (1) that § 6-17-106 is overbroad in that it impinges on protected speech, and (2) that it is vague because it does not adequately inform the public of proscribed conduct. The State concedes that § 6-17-106 violates the United States Constitution and has filed a brief in support of that position.

The general rule in cases which involve a question regarding the constitutionality of a statute is that the statute is presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. See Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5 S.W.3d 402 (1999) (citing ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997)). Because statutes are presumed to be framed in accordance with the United States Constitution, we do not hold them invalid unless the conflict with the Constitution is clear and unmistakable. See id. (citation omitted). Moreover, all doubts are resolved in favor of a statute’s constitutionality. See State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999) (citing Foster v. Jefferson County Bd. of Election Comm’rs, 328 Ark. 223, 944 S.W.2d 93 (1997)).

The statute at issue, § 6-17-106(a), provides:

(a) Any person who shall abuse or insult a public school teacher while that teacher is performing normal and regular or assigned school responsibilities shall be guilty of a misdemeanor and upon conviction be hable for a fine of not less than one hundred dollars ($100) nor more than one thousand five hundred dollars ($1,500).

Ark. Code Ann. § 6-17-106(a) (1999 Repl.).

The United States Supreme Court has made it clear that certain classes of speech may be prevented and punished without running afoul of the United States Constitution. These classes “include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words’ — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942). Thus, a “statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.” Gooding v. Wilson, 405 U.S. 518, 522 (1972).

Our court recognized these same principles in Hammond v. State, 255 Ark. 56, 498 S.W.2d 652 (1973), when we examined a breach-of-peace statute and reaffirmed our previous holding that the statute was constitutional. In Hammond, we said:

It appears clear from Chaplinsky that any statute punishing or regulating the use of abusive language must be limited to fighting words. If the statute appears vague and unclear on its face, it can be preserved by the courts when restricted in its application to “fighting words” as defined by Chaplinsky. In other words, only that vile or abusive language which arouses anger to the extent likely to cause retaliation - fighting words - are within the meaning of the statute.

Hammond, 255 Ark. at 57-58, 498 S.W.2d at 653.

Section 6-17-106(a), on the other hand, is not limited to only “fighting words,” as was the case of the breach-of-peace statute in Hammond. Additionally, as the State points out in its brief, other states have struck down statutes with language similar to that in § 6-17-106(a). Such a case was State v. Reyes, 104 Wash. 2d 35, 700 P.2d 1155 (1985). In Reyes, the statute at issue read:

Any person who shall insult or abuse a teacher anywhere on the school premises while such teacher is carrying out his official duties, shall be guilty of a misdemeanor, the penalty for which shall be a fine of not less that ten dollars nor more than one hundred dollars.

Reyes, 104 Wash. 2d at 40, 700 P.2d at 1158. The Supreme Court of Washington analyzed the statute’s constitutionality and concluded that the statute was a criminal statute which “punishes the spoken word.” Id., 700 P.2d at 1158. Noting the court’s duty to construe a statute so as to uphold its constitutionality, the court found that the statute was not susceptible to a curative limitation in that it could not logically be limited in its application to fighting words. Specifically, the court stated that because “insult” is defined as “an act or speech of insolence or contempt,” many insults cannot be categorized as “fighting words” as they are not “inherently likely to lead to a breach of peace or a ‘violent reaction.’ ” Id. at 42, 700 P.2d at 1159 (quoting Webster’s Third New International Dictionary 1173 (1971)). The court added that the word “abuse” is equally overbroad because its definition includes all “language that condemns or vilifies” as well as “physically harmful treatment.” Id., 700 P.2d at 1159 (quoting Webster’s, at 8). The court held that because it could not determine whether “abuse” as used in the statute was intended to punish words, acts, or both, the statute was void for vagueness as it failed to give fair notice of the conduct proscribed.

The Kentucky Court of Appeals held similarly in the case of Commonwealth v. Ashcraft, 691 S.W.2d 229 (Ky. App. 1985). In Ashcraft, the contested statute read:

No person shall upbraid, insult or abuse any teacher of the public schools in the presence of the school or in the presence of a pupil of the school.

Ashcraft, 691 S.W.2d at 230 (quoting KRS 161.190). Noting that the court could adopt a limiting construction of the statute which might avoid the constitutional defects, the court declined to “cut and paste” the legislation in order to save it and concluded that it would be “hard-pressed to find that the language in the present statute can be limited to ‘fighting words’ only.” Id. at 231. The court acknowledged that the appellee’s actions were inappropriate but said that “there was no showing that the teacher or anyone present was violently aroused or incited to breach the peace.” Id. at 232 (citations omitted). Recognizing that there were numerous cases standing for the proposition that First Amendment rights are not automatically abandoned when one steps through the schoolhouse door, the court stated that while there was “a significant governmental interest in restricting expression which materially disrupts classes or which impairs the dignity of the teacher in the presence of his/her students, no intention to so limit KRS 161.190 can be read into the present language.” Id. The court concluded that “[w]hile alternative avenues for expression are commonly provided in our public schools, the present statute is so vague and overbroad that it can be seen as a blanket prohibition against critical expressions regarding a teacher[; w]e would have to completely rewrite KRS 161.190 in order to remove constitutionally protected speech from its purview [and s]uch is not the function of this court.” Id. at 232.

Finally, the California Court of Appeals considered a related statute in Ketchens v. Reiner, 194 Cal. App. 3d 470, 239 Cal. Rptr. 549 (1987). In Ketchens, the statutes read:

Education Code section 44811 [ ]: Every parent, guardian, or other person who upbraids, insults, or abuses any teacher of the public schools, in the presence or hearing of a pupil, is guilty of a misdemeanor.
Section 44812[ ]: Any parent, guardian, or other person who insults or abuses any teacher in the presence of other school personnel or pupils and at a place which is on school premises or public sidewalks, streets, or other public ways adjacent to school premises or at some other place if the teacher is required to be at such other place in connection with assigned school activities is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred dollars ($100) nor exceeding one thousand dollars ($1,000).

Ketchens, 194 Cal. App. 3d at 475, 239 Cal. Rptr. at 551-52. In examining whether the challenged statutes were overbroad, the court stated that it could not only formulate statements which would be classified as “fighting words” as punishable by the statutes but could just as easily formulate statements which would not likely cause an average person to fight. The court noted that hypothetical statements of opinion about a teacher’s harshness to students or unfairness or insensitivity or poor dressing habits did not rise to the level of “fighting words:”

[ T]hey are not obsecene, nor, if true, are they libelous; they do not create a clear and present danger of incitement to violence. They are protected expressions of opinion which could impermissibly be swept within the terms of Education Code sections 44811 and 44812.

Id. at 476, 239 Cal. Rptr. at 552.

The California Court of Appeals concluded that the sections were unconstitutionally overbroad and that the plaintiffs were likely to prevail on their facial challenge to the statutes. The court then went on to examine the plaintiffs’ claim that the statutes were also unconstitutionally vague and held that the plaintiffs would likely be successful on this issue as well. The court found no “satisfying clarity” in the terms “upbraid,” “abuse,” or “insult” as contained in the statutes and said that it was unsure from the statutes “whether the determination as to the upbraiding, insulting, or abusive character of a statement is to be made with the sensitivity of the particular teacher in mind.” Id. at 478, 239 Cal. Rptr. at 553-54. The court concluded that because the statutes did not clearly define their prohibitions, they failed to provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that person may act accordingly.

, As a final point, the court noted that neither statute at issue tied the prohibited expression to the disruption of normal school activities, nor were the prohibitions limited to specific, fixed times, such as when school was in session. The court concluded that under the authority of Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969), and Grayned v. City of Rockford, 408 U.S. 104 (1972), the statutes were not reasonable time, place, and manner regulations narrowly tailored to further the state’s legitimate interest, and were therefore unconstitutional restrictions of protected speech.

We turn then to the case before us. We conclude that § 6-17-106(a) fails to proscribe only “fighting words.” First, it is clear to us that the undefined terms “abuse” and “insult” could include protected speech. Thus, § 6-17-106(a) is overbroad. Although the doctrine of facial overbreadth should not be invoked “when a limiting construction has been or could be placed on the challenged statute,” that does not appear to be possible here. Bailey v. State, 334 Ark. 43, 52, 972 S.W.2d 239, 244 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601 (1973)). “Insult” is defined as “to treat or speak to insolently or with contemptuous rudeness; affront” or “to affect as an affront; offend or demean.” The Random House Dictionary of the English Language 989 (2d Ed. Unabridged 1987). “Abuse” is defined as “to treat in a harmful, injurious, or offensive way” or “to speak insultingly, harshly, and unjustly to or about; revile; malign.” The Random House Dictionary of the English Language 9 (2d Ed. Unabridged 1987). Were this court to read into the statute a limitation to “fighting words,” we would clearly be legislating in order to save the statute. This we will not do.

We further hold that § 6-17-106(a) is void for vagueness, as it does not define what precise conduct is proscribed. Although schools do have the right to discipline students for infractions of school rules, “ [i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Community Sch. Dist., supra. The United States Supreme Court went on to say in Tinker that “where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.” Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). The same holds true in the instant case. What language is insulting or abusive is not defined so as to put a reasonable person on notice of the proscribed conduct.

We do not disagree that the term “bitch” is derogatory and insulting to a teacher and should be the subject of school discipline and control by the school administration. However, that was done in this case, and Stefany was suspended from school for three days for her infraction. But we conclude that the General Assembly went too far in § 6-17-106(a) when it criminalized undefined insulting or abusive comments by any person to a teacher irrespective of the time, place, or manner of the speech. We concur with the caselaw from other states and hold that the language of § 6-17-106(a) cannot be salvaged as prohibiting merely fighting words.

Reversed and dismissed.

       The statute at issue was Ark. Code. Ann. § 14-1412, which read in pertinent part:
      If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, shall be deemed guilty of a breach of the peace. . . .

        Hammond v. State, 255 Ark. 56, 57, 498 S.W.2d 652, 652-53 (1973).


author: ANNABELLE Clinton Imber, Justice.

text:
    Kara Kathleen HUFFMAN v. John Nicholas FISHER
    00-906
    38 S.W.3d 327
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Easley, Hicky & Hudson, by: B. Michael Easley; and Barrett & Deacon, by: D.P. Marshall Jr. and Leigh M. Chiles, for appellant.

      Ford & Glover, by: Robert M. Ford, for appellee.
   ANNABELLE Clinton Imber, Justice.

Kara Kathleen Huffinan appeals the order of the Cross County Chancery Court changing the name of her minor child from Jacob Auston Huffman to Jacob Auston Fisher. This is the second time that this case has been before us. In Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999) (Huffman I), we reversed the order of the chancery court changing the child’s name and remanded with instructions to consider six enumerated factors in deciding whether to change the child’s name.

We related the facts giving rise to these appeals in Huffman I:

Appellant Kara Kathleen Huffman was sixteen years old and unmarried when she gave birth to a son on May 18, 1996. She named her son Jacob Austen (sic) Huffman and filed a Certificate of Birth with the Arkansas Department of Health listing appellee John Nicholas Fisher (“Nick”) as the father. In August, 1996, the Arkansas Office of Child Support Enforcement filed suit on behalf of Kara against Nick for child support. Nick filed a third-party complaint in which he admitted that he was the child’s father, and he asked that child support be set and reasonable visitation be established. He also requested that the child’s surname be changed to Fisher.
At a hearing on April 23, 1997, before the Cross County Chancery Court, several witnesses testified concerning whether the child’s surname should be changed from his custodial parent’s surname to his father’s surname. The trial court summarized the testimony and its findings in a letter opinion filed on June 3, 1997. The trial court found that Nick had not paid any child support since Jacob’s birth except for $100.00, although his parents had paid a portion of Kara’s lying-in expenses. The trial court also found that Nick had encouraged Kara, a Catholic, to have an abortion, and that he had counseled her to keep her condition from her parents. Furthermore, there was testimony that Nick had become angry with Kara for getting pregnant and that he had ridiculed her physical appearance during the pregnancy. Since Jacob’s birth, the Fishers had exercised visitation with Jacob in their home on alternate Saturdays from 10:00 a.m. until 6:00 p.m.
Nick testified at trial that he wanted Jacob’s surname to be changed to Fisher because “that’s how I grew up” and he didn’t think he, as a father, should be treated any differendy because he had a child out of wedlock. He wanted the child’s name changed because there was the possibility that Kara would marry in the future and take her husband’s name, leaving Jacob with a name different from his mother’s. Finally, he stated that Jacob would be better labeled with a different name from the Huffman family that would be raising him.
Nick’s uncle testified that the Fisher family was a good family and that it would be the proper thing for Jacob to bear the Fisher name, although he could think of no advantage or disadvantage to having one name as opposed to the other. Nick’s father testified that it would be awkward for Nick to explain to others why the child bore his mother’s last name, but that such a scenario probably wouldn’t arise for Kara, and that it was only right for the child to be known as Fisher.
Kara Huffman testified that Nick had not provided her with any financial or emotional support during her pregnancy and that she had made the decision to name Jacob with her family name because he would be raised in her family and would spend his life with her. Kara further offered to retain her maiden name in the event she chose to marry in the future if it would be in Jacob’s best interest.

Huffman I, 337 Ark. at 60-62, 987 S.W.2d at 270.

The trial court, in Huffman I, determined that it was in the best interest of Jacob to take the surname of his father because of the court’s concern that Jacob would experience stigma in his adolescence if he retained his tnother’s surname. Id. 337 Ark. at 62, 987 S.W.2d at 270. The court reached this decision because “the norm in this locale” is that children take the paternal surname and because Kara might some day marry and take her husband’s surname, leaving Jacob with no connection by name to either parent. Id. 337 Ark. at 63, 987 S.W.2d at 271.

We reversed, noting that speculation as to what Kara’s future holds and the “norm in the locale” are insufficient reasons to change a child’s name. Huffman I, 337 Ark. at 70, 987 S.W.2d at 275. We also rejected Kara’s argument that we adopt a presumption in favor of the surname chosen for a child by the custodial parent. Id. Rather, we held that the only relevant inquiry in determining whether to change the surname of a minor child is what is in that child’s best interest. Id. 337 Ark. at 66, 987 S.W.2d at 273. The burden of proof is on the moving party to demonstrate that the change is in the. best interest of the child. Id. 337 Ark. at 69, 987 S.W.2d at 274. Finally, we held that the chancery court must make this determination on a case-by-case basis through “thoughtful and careful consideration” of at least six factors that we enumerated to g uide chancery courts in the decision. Id. 337 Ark. at 70, 987 S.W.2d at 275. The six factors to be considered are:

(1) the child’s preference;
(2) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent;
(3) the length of time the child has borne a given name;
(4) the degree of community respect associated with the present and proposed surnames;
(5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and
(6) the existence of any parental misconduct or neglect.

Huffman I, 337 Ark. at 68, 987 S.W.2d at 274.

Upon remand, the case was tried again with the presentation of additional evidence and testimony. Mr. Fisher’s family members testified that it was their belief that Jacob’s name should be changed to Fisher in order to provide Jacob with a sense of connection to the Fisher family and because there was no certainty that Kara would not marry and take another name in the future. If Kara did remarry, the Fishers were concerned that Jacob would be left with a surname that connected him to neither of his parents. Whereas, Nick’s surname would always be Fisher, so Jacob would not face that situation as a Fisher.

Dr. Mary Elizabeth Boeckmann, the principal of Wynne Primary School, testified on behalf of Mr. Fisher that thirty-five percent of the kindergarten students in Wynne Primary School are from single-parent households. Some of these households are single parent as a result of divorce, others are the result of unwed parents. Of the thirty-five percent of kindergarten students from single-parent households, Dr. Boeckmann testified that about eight percent carry their mother’s maiden name, whereas twenty-seven percent carry their father’s surname. Dr. Boeckmann testified that Jacob carrying his mother’s surname could potentially cause him embarrassment at school, not because the Huffman name is not respected, but because he could be subjected to ridicule and embarrassing questions about why he does not have his father’s name. She testified that it could be a sign of illegitimacy that could cause him embarrassment and comment from other students as he grew older. Although Dr. Boeckmann was unable to identify any specific instance in which she knew of a child to have faced any real problems for that reason, she did testify that children in her school commonly question other children regarding their names and parentage.

Roger Fisher, Nick Fisher’s uncle, testified to knowledge from his days as a county judge of an incident in which a child in the juvenile system, whose records he was reviewing, had been ridiculed because of his name even though the child was from a good family.

Ms. Huffman also presented the testimony of family and friends. They testified that it would be better for Jacob to keep the Huffman name because he was a part of the Huffman life on a daily basis and visited the Fishers only on weekends and during the summer. Ms. Huffman testified that Jacob identifies himself as Jacob Huffman because his preschool class calls him by his full name in order to avoid confusion with another Jacob in his class. According to Ms. Huffman, Jacob came home from preschool one day and told her that his name was Jacob Huffman.

Dr. Rolan Irwin, a clinical psychologist with a Ph.D in psychology whose clinical practice involves the treatment of both adults and children, testified as an expert on Ms. Huffman’s behalf. It was his testimony that by three and one-half years of age, the age of Jacob at the time of the hearing, a child has begun to develop a sense of identity, or a self-concept, integral to which is the child’s knowledge of his name, his household mates, and his family. Dr. Irwin testified that changing Jacob’s name at this point in his life might create confusion and disrupt his development of a positive self-concept. Dr. Irwin also acknowledged, however, that Jacob may face ridicule by other children because he does not have his father’s name. Although Dr. Irwin believed the present risk of damaging Jacob’s sense of self-identity outweighed the future risk that he may face ridicule, he admitted that he had never treated a child for problems associated with a name change.

Following retrial, the chancery court again decided, in a letter opinion filed on January 14, 2000, that changingjacob’s surname to Fisher is in Jacob’s best interest. In support of this decision, the trial court made the following findings of fact:

(1) Jacob is too young to have a considered opinion as to which name he preferred.
(2) Jacob spends the majority of his life with the maternal side of his family. No proof was offered which would indicate that a surname change from Huffman to Fisher would have a detrimental effect on Jacob’s relationship with his mother and her family. Nick did testify that he felt Jacob would form a second connection to him if he had the name Fisher. There would be no detrimental effect on Jacob concerning the preservation of his relationship with either Nick or Kara if his name was changed to Fisher.
(3) Although Jacob has had the name Huffman for 3 1/2 years, this action has been pending the entire time.
(4) Both surnames were equally respected in the community.
(5) Jacob would not face any harassment or embarrassment if his surname is changed to Fisher; but he might if his name is not changed.
(6) There is no parental neglect or misconduct from either party.

Based upon these findings and conclusions, the trial court entered an order on March 1, 2000, directing that Jacob’s surname be changed to Fisher. Ms. Huffman appeals, contending that the chancellor erred in the conclusions he drew when applying four of the Huffman I factors.

“Where a full inquiry is made by the chancellor of the implication of [the Huffman I\ factors and a determination is made with due regard to the best interest of the child, the chancellor’s decision will be upheld so long as it is not clearly erroneous.” Huffman I, 337 Ark. at 69, 987 S.W.2d at 274. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Rad Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 463 (1986).

Ms. Huffman first argues that the chancellor erroneously gave no weight to the substantial length of time that Jacob has borne the Huffman surname. She asserts that the now four and one-half years that Jacob has carried the name Huffman should weigh heavily against changing his name to Fisher. In support of her argument, Ms. Huffman directs this court’s attention to our decision in Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992), wherein we upheld a chancellor’s decision that it was in the best interest of the child to keep “the surname he [had] carried since birth.” However, as previously stated, the determination of what is in the child’s best interest is a decision that must be made on a case-by-case basis with due consideration to the specific facts and relationships involved in each case. Huffman I, 337 Ark. at 70, 987 S.W.2d at 275.

In Reaves v. Herman, supra, the facts were significantly different than in the present case. For instance, unlike in the case at hand, the father of the child in Reaves was unwilling to accept paternity of the child until some time after his birth. Reaves v. Herman, 309 Ark. at 373, 830 S.W.2d at 861. In contrast, Mr. Fisher has accepted Jacob and been involved in his life from birth. The testimony reveals that, unlike the father in Reaves, Mr. Fisher was present at the hospital when Jacob was born, visited Jacob daily in Memphis until he was released to go home, and has been a significant part of Jacob’s life ever since. Even more significant, however, is the fact that since our decision in Reaves v. Herman, supra, we have more clearly outlined the factors that the trial court should consider in determining whether a change of a minor child’s surname is in the best interest of the child, and we have adopted the clearly erroneous standard of review. Huffman I, supra. “These holdings necessarily modify and clarify our holding in Reaves.” Huffman I, 337 Ark at 69, 987 S.W.2d at 274. Pursuant to our holdings in Huffman I, the length of time that a minor child has held a name is but one of the factors to be considered by the trial court.

Furthermore, we note that the chancellor decided not to weigh the length of time that Jacob’s name had been Huffman in either party’s favor because this case has been pending for most of Jacob’s life. This litigation began when Jacob was only three months old. To hold that the fact that Jacob is now over four years old weighs determinatively in the favor of one party would only encourage lengthy proceedings and reward stalling tactics by any party arguing against changing a child’s name. The chancellor recognized in his letter opinion that, as of that time, Jacob was three and one-half years old; however, the chancellor also recognized that this action began when Jacob was only three months old. Because Mr. Fisher has never denied paternity, has actively participated in Jacob’s life since birth, and has pursued this litigation for most of Jacob’s life, and pursuant to our holdings in Huffman I, we are not firmly convinced that the chancellor erred in affording no weight to the length of time that Jacob has borne the Huffman surname.

Second, Ms. Huffman argues that the chancellor erred in evaluating the evidence of the impact that changing Jacob’s surname would have on the child’s relationship with each parent. The chancellor found that there was ’ no proof that changing Jacob’s surname would in any way harm his relationship with his mother or detrimentally affect his relationship with either parent. On the other hand, the trial court found that changing Jacob’s surname to Fisher would afford Jacob “a second connection to Nick as the only other connection Jacob has with his father is the visitation time.”

Ms. Huffman’s continued reliance upon the New Jersey Supreme Court’s decision in Gubernat v. Deremer, 140 N.J. 130 (1995), 657 A.2d 856 (1995), is misplaced. Although factually similar to the case at hand and cited by this court in Huffman I for its historical survey on the use of surnames, the Gubernat court adopted a strong presumption in favor of the surname chosen by the custodial parent. Id. 140 N.J. at 144, 657 A.2d at 869. In Huffman I, we specifically rejected such a presumption, and we declared that the determination of whether a change of surname is in the child’s best interest must be made by the chancellor on a case-by-case basis. Huffman I, supra, 337 Ark. at 70, 987 S.W.2d at 275. In so holding, we relied upon our previous holding in McCullough v. Henderson, 304 Ark. 689, 691, 804 S.W.2d 368, 369 (1991), “that ‘a rule which makes the result automatic would be neither prudent nor consistent with the established traditions of the law.’ ” Huffman I, supra, 337 Ark. at 70, 987 S.W.2d at 275. Moreover, the Arkansas Court of Appeals reached a similar conclusion in Mathews v. Oglesby, 59 Ark. App. 127, 952 S.W.2d 684 (1997): “When the best interests of a child are at stake, the chancellor should look into the peculiar circumstances of each case and act as the welfare of the child appears to require.” Id. 59 Ark. App. at 130, 952 S.W.2d at 685.

Ms. Huffman argues that by citing the “connection” to the noncustodial parent as the reason for changing Jacob’s name, the chancellor did precisely what we rejected in Huffman I; that is, the reason given by the chancellor amounts to nothing more than a preference for a particular party because the noncustodial parent will always be able to assert the need for a stronger “connection” with the child. Certainly, we agree with Ms. Huffman that a chancery court, must be careful not to allow testimony regarding the need to “connect” with a noncustodial parent to become a defacto presumption in favor of the noncustodial parent. We reiterate that we have declined to adopt a presumption in favor of either parent. Huffman I, supra. “[A]n inflexible resolution will not serve the best interest of the children involved.” Huffman I, 337 Ark. at 70, 987 S.W.2d at 275. “[A]n individualized determination” based upon “thoughtful and careful consideration of the factors” is required in each case. Id. The record indicates that the chancellor undertook such an inquiry in this case.

Presented with circumstances that are somewhat atypical of child name-change cases, the chancellor determined that the increased connection Jacob would feel toward his father supported changing Jacob’s surname. The chancellor was faced with two involved, loving parents, each having taken full responsibility from the moment the child was born, each asserting that they would love the child in any case. In weighing the evidence, the chancellor determined that a change to the paternal surname would not adversely affect Jacob’s relationship with his mother, but that it would enhance the development of his relationship with his father by providing an additional link with Mr. Fisher beyond weekend visitations. Considering this evidence along with the evidence relating to the other relevant factors, we cannot say that the chancellor’s decision in this regard was clear error.

Third, Ms. Huffinan argues that the chancellor erred in finding that Jacob might suffer harassment or embarrassment if his name is not changed, while “closing its eyes” to the testimony of Dr. Irwin that Jacob may suffer harm if his surname is changed. In Huffman I, supra, we directed the chancellor to consider the “difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname,” based on the evidence presented in this case. Id. 337 Ark. at 68, 987 S.W.2d at 274. Both parties presented the testimony of expert witnesses. The two experts agreed that Jacob might suffer ridicule at the hands of his peers and the community as a result of not having his father’s surname. According to Dr. Boeckmann, it is typical in Wynne for children to take the paternal surname, and a child who does not bear his father’s surname may be stigmatized as illegitimate. While Ms. Huffman’s witness, Dr. Irwin, a child psychologist, testified that in his opinion the risks associated with a name change on the formation of Jacob’s self-concept outweighed the risk of future ridicule, the chancellor afforded more weight to the testimony of Dr. Boeckmann.

Ms. Huffinan asserts that the chancellor’s determination regarding the potential for ridicule and embarrassment was based solely on evidence of the “norm in the locale” with regard to a child taking his father’s surname. We rejected such evidence as a sole basis for changing a child’s surname in Huffman I, 337 Ark. at 70, 987 S.W.2d at 275. However, we held that evidence of what is normal in a particular locale may be relevant in determining whether a child may experience difficulties, harassment, or embarrassment from bearing a particular surname. Id. Although the statistical evidence presented in this case by Dr. Boeckmann demonstrated that the norm in Jacob’s school was for children to have the paternal surname, we do not agree that the “norm in the locale” was the determinative factor in the chancellor’s ruling. In determining whether Jacob could face difficulties, harassment, or embarrassment with either name, the chancellor considered expert testimony that was tangentially related to the norm in the locale, but not comprised solely of local norms. Dr. Irwin testified that there was a possibility that Jacob would suffer embarrassment in the future if he did not have his father’s surname, though he felt that changing Jacob’s name had the potential for greater harm. Dr. Boeckmann, a primary school principal, when asked whether she had seen significant problems with ridicule in the primary school setting, testified, “We might have teasing, like, Who’s your daddy? Why don’t you have a daddy?’ Those type questions are asked at a younger age.” Dr. Boekmann also testified that the teasing could get worse as Jacob grows older because older children are more likely to be cruel.

In his letter opinion, the chancellor specifically stated that he found Dr. Boeckmann’s testimony to be more credible than Dr. Irwin’s. It follows that the chancellor.was more convinced of the potential harm to Jacob from the ridicule of his peers than of the potential harm to his self-image by changing his name at such a young age. We will defer to the chancellor’s “superior position to judge the credibility of the witnesses and weigh their testimony.” Southeast Arkansas Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993); Nicholson v. Century, 307 Ark. 161, 818 S.W.2d 254 (1991). The evidence supports the chancellor’s conclusion that Jacob may suffer difficulties, harassment, or embarrassment if he were to retain his maternal surname. We, therefore, find no clear error.

Finally, Ms. Huffman asserts that the chancellor erred by finding no misconduct by Mr. Fisher prior to Jacob’s birth. Specifically, the chancellor found that there was no parental misconduct or neglect on either side in this case, although he did take notice that both parents exhibited behavior prior to Jacob’s birth that, though consistent with their ages and the difficult circumstances in which they found themselves as teenage parents, could be construed as misconduct. Specifically, Mr. Fisher encouraged Ms. Huffman repeatedly to have an abortion, urged her to hide the pregnancy, and ridiculed her appearance; Ms. Huffman continued to play competitive sports, kept the pregnancy hidden from her parents, and failed to obtain prenatal care. However, because the chancellor also recognized that Mr. Fisher and Ms. Huffman have both been dedicated, loving parents since Jacob’s birth, he attributed no misconduct to either party. Accordingly, we conclude that it was not clearly erroneous for the chancellor to attribute no weight to the misconduct of Mr. Fisher that occurred prior to Jacob’s birth, just as he attributed no weight to evidence that could be construed as misconduct by Ms. Huffman.

Ultimately, the chancellor can only weigh the factors for which the parties provide evidence or that are relevant under the circumstances. In this case, (1) because of Jacob’s age, the child’s preference was not applicable; (2) the evidence supported the chancellor’s determination that changing Jacob’s surname would have no detrimental effect on his relationship with his mother, but would strengthen the bond the child had with his father; (3) there was no error in giving no weight under the circumstances of this case to the length of time the child has borne a given name; (4) there is no difference in the degree of community respect associated with either name; thus, a conclusion based on this element does not inure to the benefit of either party; (5) the testimony of expert witnesses combined with statistical “norm in the locale” evidence supported the chancellor’s finding that Jacob was likely to suffer difficulties as a result of peer ridicule as he grows older; and (6) the chancellor did not err in holding both parents blameless of misconduct or neglect. After weighing all the relevant factors, the chancellor decided that in the aggregate, particularly with respect to the development of Jacob’s relationships with his parents and the potential for future difficulty and embarrassment, a name change was in Jacob’s best interest. For the reasons stated above, we cannot say the chancellor was clearly erroneous.

Affirmed.

       This appeal originated in the Court of Appeals, which affirmed the trial court as a result of an evenly divided en banc decision. Huffman v. Fisher, 63 Ark. App. 174, 976 S.W.2d 401 (1998). We granted Ms. Huffman's petition for review pursuant to Ark. Sup. Ct. R. 1-2(e)(i).

       No challenge has been raised to the chancery court’s finding that Jacob is too young to have an informed preference as to which name he bears or to the finding that both family names are equally respected in the community. These two factors, therefore, inure to the benefit of neither party and we will not discuss them further. We are in no way suggesting, however, that these two factors are not necessary to future determinations in name-change cases.

       We reiterate that it is incumbent upon the trial court to distinguish between mere evidence of the “norm in the locale” and evidence that actually demonstrates the potential for difficulties in the child’s future. This is a narrow, but essential, distinction that we find to have been made in this case.