author: David Newbern, Justice.

text:
    Paul LATHAM v. STATE of Arkansas
    93-1159
    883 S.W.2d 461
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Charles A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Paul Latham, was convicted of rape' and sentenced as an habitual offender with seven previous felony convictions to 75 years imprisonment. He contends the Trial Court erred by excusing, without notice to him, one of the jurors selected for the trial and by refusing to suppress hearsay testimony. We decline to reverse the decision with respect to excusing the juror as no prejudice was demonstrated, and we hold the testimony objected to fell within the excited utterance exception to the rule prohibiting introduction of hearsay testimony. The conviction is thus affirmed.

The victim danced with Mr. Latham at a nightclub. He asked her to give him a ride home. She agreed to do so. She testified she pulled her truck off the road and voluntarily kissed Mr. Latham, but when he began to fondle her breasts she protested. He grabbed her throat and told her to lie back, and she continued to protest as he removed her clothing and penetrated her.

Within thirty minutes of the incident, the victim returned to the home she was sharing with her mother and her mother’s companion, Ronald Sams. She initially encountered Mr. Sams, who testified that she was noticeably upset but would not say what was wrong until after he questioned her. After learning what had happened, Mr. Sams awakened the victim’s mother who testified the victim was crying and upset but that she (the mother) “had to keep talking to her to get the information out of her.” The victim was reluctant to talk about the incident or report it to the police due to her feeling she might be to blame in view of the voluntariness of her initial physical contact with Mr. Latham.

The trial began on Wednesday, June 23, 1993. On the previous Monday, a jury of twelve persons and one alternate was selected. On the morning of June 23, 1993, prior to the beginning of the trial and prior to administering the oath to the jury, the Court advised the defense that he had excused one of the selected jurors to allow the juror to attend a job interview on the day scheduled for trial. The Court said he tried but could not reach defense counsel prior to excusing the juror, and that he was substituting the alternate juror who had been selected earlier. Mr. Latham’s counsel objected to the Court excusing the juror without notice.

1. Excusing the juror

Mr. Latham argues it was reversible error to excuse a juror without affording him an opportunity for notice and a hearing. He contends the Trial Court abused its discretion when it excused an impaneled juror solely because the trial date conflicted with a job interview. He also contends the excusal of a juror and elevation of an alternate is a “substantive step” in a criminal proceeding that requires the presence of the defendant and that he need not demonstrate any prejudice resulting from his absence.

a. Abuse of discretion

Arkansas Code Ann. § 16-30-102(a) (Repl. 1994) states in relevant part, “Alternate jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.” Mr. Latham argues a juror does not become “unable or disqualified” by the prospect of missing a job interview.

The statute offers no guidance on the circumstances in which a juror becomes “unable or disqualified.” The record shows the Trial Court considered the financial hardship that would result if the juror missed the job interview and concluded the juror would have “had a financial and economic emergency or opportunity that would be lost” if he were required to serve.

In People v. Diefenderfer, 784 P.2d 741 (Colo. 1989), the question was whether a mistrial should have been declared because the Trial Court, prior to the beginning of the trial, excused a juror on the basis of “pressing business concerns.” It was held that, because the excusal occurred prior to the trial, no prejudice occurred.

We cannot say the Trial Court abused its discretion here, and even if it had, there has been no demonstration of prejudice. In Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992), it was argued that the Trial Court erred in excusing a juror during a trial when it was discovered the juror was not a registered voter. We declined to reverse absent a showing of prejudice.

b. Defendant’s presence

Mr. Latham argues the Trial Court’s action excusing a juror constituted a substantial step in the proceedings against him at which his presence was required. The State replies that we should not consider the issue because no such objection was raised at the trial. Counsel objected on the ground of lack of notice to the defendant. Obviously, had the defendant been present, he would have had notice. We think the objection was sufficient.

Here is what we have said recently about the law on which Mr. Latham relies:

It is a basic principle of both our state’s and our nation’s criminal procedure that a defendant has the right to be present in person and by counsel when a substantial step is taken in his case. Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988). One expression of this basic principle can be found at Ark. Code Ann. § 16-89-103(a)(l) (1987), which states that a defendant indicted for a felony must be present during trial (emphasis added). This court has applied the “substantial step of the case” requirement to an earlier version of section 16-89-103. Bearden v. State, 44 Ark. 331 (1884). Bearden held that when a defendant is absent from a substantial part of the proceedings, reversal is required and the defendant need not demonstrate prejudice. The rereading of instructions to the jury constitutes a substantial step in a defendant’s case, Kinnemer v. State, 66 Ark. 206, 49 S.W. 815 (1899), as does the instructing of the jury when the trial judge, accompanied by counsel for both parties, enters the jury room to read the instructions. Stroope v. State, 72 Ark. 379, 80 S.W. 749 (1904).

That statement is from Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993), in which we reversed a conviction because a video tape of Davlin’s confession which had been admitted in evidence was replayed for the jury during its deliberations absent the presence of the defendant but in the presence of his counsel who objected to the defendant’s absence.

While it is easy to conclude a defendant is absolutely entitled to be present when evidence against him is presented to a jury, it is much more difficult for us to conclude that a court’s excusal of a juror constitutes the sort of “substantial step” to which the absolute rule should apply. Mr. Latham cites no authority in support of that proposed conclusion, and we know of none. His brief merely says, “Is such action a substantive step in the proceedings? The question can only be answered in the affirmative, requiring a reversal.” The authority we have encountered is to the contrary.

For example, in United States v. Patterson, 819 F.2d 1495 (9th Cir. 1987), a juror was excused and replaced by an alternate during the trial on the ground of a death in the excused juror’s family. The Trial Court’s action was announced at the beginning of a new day of trial, and the defendants were given no opportunity to be heard. Defendant Brown objected and argued that it was error to excuse the juror outside his presence in that it deprived him of due process and the right to be present at every stage of the trial. Fed. R. Crim. P. 43(a). The Court of Appeals said:

Failure to afford a defendant the opportunity to be heard prior to a juror being excused is not grounds for reversal without a showing of prejudice. See United States v. Lustig, 555 F.2d 737, 745-46 (9th Cir. 1977), cert. denied, 434 U.S. 1045 . . . .
* * *
Brown presents no showing of prejudice from the excusal. While it may have been preferable in retrospect to give Brown an opportunity to be heard during the excusal conference, the omission should not be considered reversible error given the expedition the circumstances required.

The selection of the persons to sit in judgment of an accused is, no doubt, a most important part of a trial. Mr. Latham was accorded the right to be present when that occurred. We do not, however, regard the subtraction of one of those persons and replacement with another person, previously selected in Mr. Lath-am’s presence and presumably with his participation, as an act of the sort we addressed in the Davlin case. We agree with the United States Court of Appeals for the Ninth Circuit that the failure to accord a defendant a chance to object in such circumstances is error, but it is not of the fundamental sort invoking the “substantial step” rule. We thus will require a showing of prejudice just as we did in Heinze v. State, supra.

The only prejudice Mr. Latham suggests is that the trial was to be a one-day affair thus he could not reasonably have anticipated the seating of an alternate juror so he gave less attention to the selection of the alternate than he gave to those selected for the regular panel. That argument does not persuade us that Mr. Latham was prejudiced; it shows only that he may have misperceived the purpose of alternate jurors and underestimated their possible importance.

2. Excited utterance

Mr. Latham moved in limine to exclude testimony by the mother of the victim and Mr. Sams with respect to the statements made by the victim when she returned to their residence shortly after the alleged rape.

The victim’s statements to be reported by these witnesses were hearsay. The question is whether they fell within the “excited utterance” exception. The exception is described in Ark. R. Evid. 803(2) as follows: “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

Mr. Latham contended that the remarks could not be excited utterances because they were not spontaneous. Instead, they were made in response to questions and thus lacked the sincerity carried by a spontaneous, unsolicited comment. As his sole authority he cites Professor Imwinkelried’s remark that the statement’s spontaneity is its guaranty of truthfulness. E. Imwinkelried, Evidentiary Foundations, p. 187 (1980). No authority is cited holding or even saying that a response to a question may not be an excited utterance in the sense of the rule.

In Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), we quoted with approval from United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), the statement that it is “not controlling” that a declarant’s statement was made in response to an inquiry, noting that is merely a factor a court must weigh in determining whether the testimony falls within the exception. Mr. Latham concedes the victim’s statements to the witnesses were otherwise qualified to fall within the “excited utterance” exception. Admissibility of evidence is a decision within the discretion of a trial court. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). We cannot say the Trial Court abused its discretion in this instance.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Franklin Allen ROWE v. STATE of Arkansas
    CR 94-261
    883 S.W.2d 804
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Gene O’Daniel, for appellant.

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

Appellant was charged with possession of marijuana with intent to deliver after police seized more than fifty pounds of marijuana from a concealed compartment in the gasoline tank of the truck he was driving. Appellant employed counsel who filed a motion to suppress the search of the truck and the seizure of the marijuana. On July 28, 1993, appellant pleaded guilty to possession of marijuana with intent to deliver and was sentenced to ten years in prison with five years suspended. He began serving his sentence and on August 24, 1993, filed a motion to withdraw his plea of guilty because he said he had a “change of heart.” The trial court denied the motion. Appellant appeals and argues that he should be allowed to withdraw his plea because of ineffective assistance of counsel. We affirm the ruling of the trial court.

A motion to withdraw a plea of guilty is untimely after the sentence is placed into execution. A.R.Cr.P. Rule 26.1; Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). Appellant’s motion to withdraw his guilty plea was filed after the sentence was placed into execution. Consequently, it was untimely and will not be considered pursuant to Rule 26. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). However, appellant argued that his counsel was ineffective, and that allegation is cognizable under A.R.Cr.P. Rule 37. Id. at 957-581, 581 S.W.2d at 313; see also Simmons v. State, 265 Ark. 48, 50-51, 578 S.W.2d 12, 14 (1979). A trial court can treat an untimely Rule 26 motion as a Rule 37 motion. See, e.g., Thompson v. State, 307 Ark. 492, 494, 821 S.W.2d 37, 38 (1991). The trial court apparently treated appellant’s motion as a Rule 37 motion, and we review it as such.

We will not reverse a trial court’s denial of postconviction relief unless the ruling was clearly erroneous. Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991). Appellant contended that his counsel was ineffective at the time he pleaded guilty. In order to show ineffectiveness of counsel a petitioner must show that counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s errors, the outcome would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986).

Appellant contends that his attorney was ineffective because he did not pursue the motion to suppress. Counsel testified that he did not think he could prevail on the motion and that the prosecutor had offered to recommend a sentence of ten years with five years suspended. Counsel further testified that the prosecutor added the condition that if it became necessary to expend time on the motion to suppress, the information would be amended to allege that appellant was a habitual criminal and that one of his prior convictions was a prior drug conviction. In fact, appellant had two prior convictions, and one of those was for a drug charge. Counsel testified that he and appellant discussed the plea offer in detail and weighed it against the likelihood of appellant’s being tried and sentenced as a habitual offender. Counsel testified that he thoroughly advised appellant of the consequences of entering a guilty plea. Appellant disputed his counsel’s testimony. The trial court found that appellant was thoroughly and adequately advised of the consequences of entering a guilty plea and knowingly, intelligently, and voluntarily pleaded guilty. There was substantial evidence to support the trial court’s finding; therefore, it was not clearly erroneous.

Affirmed.


author: Steele Hays, Justice.

text:
    John CUPPLES v. STATE of Arkansas
    CR 94-367
    883 S.W.2d 458
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Robert P. Remet, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant John Cupples was alleged to have engaged in sexual intercourse with his daughter, M.C., who was less than fourteen years of age. Count one of the information asserts that between March 1, 1988 and March 23, 1991 Cupples engaged in sexual intercourse or deviate sexual activity with a person under the age of fourteen. Count two asserts that between March 24, 1991 and March 1, 1992, he engaged in sexual intercourse or deviate sexual activity with a person he knew to be a descendant.

M.C. testified her father had sexual intercourse with her thirteen times between the ages of eleven and fourteen. Cupples was convicted of one count of rape and one count of incest. He was sentenced to thirty five years and nine years, respectively, in the Arkansas Department of Correction. The sentences are to be served consecutively.

On appeal Cupples raises two points of error: (1) a mistrial should have been declared and (2) a hearing pursuant to the Rape Shield Statute, Ark. Code Ann. § 16-42-101(c) (Repl. 1994), should have been held. Finding no error, we affirm the judgment of conviction.

I.

A mistrial should have been declared due to the admission of highly prejudicial, irrelevant and hearsay evidence.

Appellant cites three segments of the trial testimony as warranting a mistrial. All three involve the testimony of two witnesses for the State, Ms. Carolyn Turner, a high school counselor, and Ms. Susan Bradberry, an employee of the Arkansas Commission on Child Abuse, Rape, and Domestic Violence.

A.

These witnesses testified concerning a perceived improvement in the demeanor and self esteem of M.C. following her removal from the home and having undergone counselling. Appellant’s objection on grounds of relevancy was overruled. In rejecting appellant’s argument on appeal, we first note that a trial court’s ruling on relevancy is entitled to great deference, and will be reversed only if the trial court abused its discretion. Jones v. State, 317 Ark. 131, 876 S.W.2d 262 (1994). Second, we find no motion for a mistrial pertaining to this testimony.

B.

During Ms. Bradberry’s testimony on direct examination, the following occurred:

Q. And at some point in time did she [M.C.] tell you what has led to the filing of these charges?
A. Yes, she did.

Counsel for the defense objected on the grounds the State violated an understanding between counsel that the testimony of Ms. Turner and Ms. Bradberry would be limited to M.C.’s behavior and there would be no testimony as to what M.C. actually told them. The trial court sustained the objection. Subsequently, the defense moved for a mistrial, arguing that the State had exceeded the restriction. The motion was denied but the trial court expressed its willingness to give a cautionary instruction. After a brief discussion, the court concluded, “I think the best thing we can do, unless you all have some cautionary you want me to give, is just drop it, and go on and do the cross of the witness if you have any.” Counsel for the defense did not offer a cautionary instruction and expressed no further complaint.

Declaring a mistrial is certainly a drastic remedy, and proper only where the error is beyond repair and cannot be corrected by any curative relief. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994). The trial court has wide discretion in this area, and we will not reverse absent an abuse of discretion or manifest prejudice to the complaining party. Id. In the instant case, the trial court was in a better position to determine the effect of the remark on the jury and concluded the error was insufficient to warrant a mistrial declaration. We agree. The statement in question was not offered to prove the incident which led to the filing of the charges was true. In fact, the statement does not even reveal the incident which led to the filing of the charges. The testimony was elicited in regard to M.C.’s behavior and relationship with the counselor. A statement made out of court is not hearsay if offered for the purpose of proving the statement was made. Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981).

C.

At the conclusion of Ms. Bradberry’s testimony, a dispute arose in regard to M.C.’s credibility, namely, whether she had made conflicting statements concerning her stay at Harbor View, a rehabilitation facility. The appellant contends the court upheld his objection to such questioning but failed to issue either a warning or curative statement to the jury. However, the record indicates the discussion in question occurred “at the bench, out of the sound of the jury.” In any event, the appellant failed to move for a mistrial or request a limiting instruction; therefore, he received the relief he requested at trial. See Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989).

II.

A hearing pursuant to Ark. Code Ann. § 16-42-101(c) (Repl. 1994) should have been held.

The Rape Shield Statute, Ark. Code Ann. § 16-42-101 (Repl. 1994), broadly excludes evidence of specific instances of the victim’s sexual conduct prior to the trial. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Under the statute, the trial court, upon proper motion, may engage in a balancing test to assess whether the probative value of the testimony sought outweighs the inflammatory nature of the testimony. Id. Section (c) of the Rape Shield Statute provides in part:

(2)(A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.

The defense filed a pre-trial motion requesting a hearing pursuant to § 16-42-101(c). The motion alleged the complaining witness had made inconsistent statements regarding her sexual activity and she had made accusations of sexual misconduct against others which were false.

A pre-trial hearing was held regarding a defense motion for discovery of medical records and reports. The defense sought medical records and reports from several institutions where M.C. had been institutionalized since the alleged incidents. At that hearing, the defense discussed the motion for admissibility of the alleged prior sexual conduct. The defense contended the medical information was needed in order to conduct the hearing pursuant to § 16-42-101(c). Although the requested medical records were obtained, there is no indication in the record the hearing pursuant to § 16-42-101 (c) was held. However, there is no showing the appellant pursued the matter. The only references in the record to the § 16-42-101(c) hearing occured in the pre-trial motion and the discovery hearing. There is no indication the appellant ever raised the issue after the discovery hearing. It is the duty of the appellant to obtain a ruling on his motions. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). An appellant may not claim reversible error based on his or her own error at trial. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994).

The Rape Shield Statute clearly provides that a hearing shall be held on a motion. Drymon. In Drymon, we found good cause existed for holding the hearing within three days of the trial because the trial court stated it was unaware of the motion which had been filed. We concluded it is the defendant’s “responsibility to pursue the motion and to bring the matter of a hearing to the court’s attention.” (Emphasis supplied.) Similarly, it was Cupples’ responsibility to pursue the motion and bring the matter of a hearing to the court’s attention. Further, appellant’s failure to proffer the evidence defeats the argument. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993). On numerous occasions, where the defense sought to introduce evidence of a rape victim’s prior sexual activity but no proffer of this evidence was made, we declined to consider its admissibility on appeal. Gaines, supra.

For the reasons stated, we affirm the trial court’s decision.


author: Tom Glaze, Justice.

text:
    Montay ROBINSON v. STATE of Arkansas
    CR 94-290
    883 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      William R. Simpson, Jr., Public Defender, by: Bret Qualls, for appellant.

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

On April 9, 1993, appellant Montay Robinson was charged, along with Cedric Bradley and Pierre Bradley, with the first degree murder of Terrence Taylor. On his motion, Robinson’s case was severed from the Bradleys’. At trial on November 23, 1993, Robinson was convicted as charged and the jury fixed Robinson’s sentence at forty years in the Department of Correction. Robinson’s sole point for reversal is that the evidence is insufficient to support his conviction.

Robinson timely and specifically moved for a directed verdict at the end of the state’s case and after he rested his case, Robinson claimed the state had failed to show purposeful conduct on his part. See Ark. R. Crim. P. 36.21(b). Directed verdict motions are treated as challenges to the sufficiency of the evidence. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).

The test on appeal is whether there is substantial evidence to support the verdict. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). Substantial evidence is evidence that is of sufficient force and character to compel reasonable minds to reach a conclusion without resorting to suspicion and conjecture. Id. In determining whether substantial evidence exists, we review only the evidence that supports the conviction and do not weigh it against other conflicting proof favorable to the accused. Id.

At trial, the court instructed the jury on murder in the first degree, stating that, to sustain the charge, the state must prove beyond a reasonable doubt that Robinson, or an accomplice, with the purpose of causing the death of another person, did cause the death of Terrence Taylor. See Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). Accomplice was defined for the jury as one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages or coerces the other person to commit the offense, or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993). Also, the court correctly instructed that a person acts with purpose with respect to his conduct or as a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1993). In addition, we mention the settled rule that intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the killing. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994); Walker, 313 Ark. 478, 855 S.W.2d 932.

Here, we hold the evidence is more than sufficient to support Robinson’s conviction. The state’s proof showed that Robinson and the Bradleys were seen carrying weapons outside the Tangerine Club located in the College Station neighborhood in Little Rock. Pierre Bradley and Robinson were seen carrying 9 millimeter guns and Cedric possessed a .44 pistol. Approximately an hour later, a fight broke out in the club after Robinson’s friend and others in the club began “throwing up” gang signs at each other. It was described as though “they were fighting with gang signs.”

When someone started to hit the club’s bouncer, Darrell Als, with a chair, Als said that he shot a .25 bullet into the floor. Everyone then began to run outside. Als saw Taylor running from the club when Taylor bumped Robinson. Als said that both Robinson and Taylor fell and Robinson’s gun discharged. Taylor got up, and was running away from Robinson when Als saw Robinson and the Bradleys firing toward Taylor. Another club employee, Mr. Burton, also saw Robinson shooting at Taylor. Als testified that he saw only Robinson and the Bradleys outside the club, and they were all shooting at Taylor. Tracy James testified that Robinson and the Bradleys were the only ones he saw with guns. While Als never saw Taylor actually shot, Als found him outside the club after the shooting stopped; he then witnessed Taylor had been shot. The state medical examiner confirmed Taylor had been shot and the bullet went through his body. He opined that the bullet wound was the cause of Taylor’s death.

From the above evidence, the state established that, at the least, Robinson aided the Bradleys in the commission of the crime. None of the three men’s culpability was affected by which one’s bullet actually killed Taylor. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

Affirmed.


author: Donald L. Corbin, Justice.

text:
    David W. STRICKLIN v. STATE of Arkansas
    CR 94-303
    883 S.W.2d 465
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Joe Kelly Hardin, for appellant.

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

Appellant, David Stricklin, appeals from a judgment of the Saline County Circuit Court convicting him of seven counts of rape of his two minor daughters over the period beginning in 1992 and ending on or about May 1, 1993; counts 1,2 and 3 of the information concerned the rape on three separate occasions of the ten-year-old victim and counts 4, 5, 6 and 7 of the information concerned the rape on four separate occasions of the eleven-year-old victim. After a bench trial, appellant was found guilty on all counts by judgment filed on December 28, 1993, and was sentenced on each count as an habitual offender to a term of forty-six years imprisonment in the Arkansas Department of Correction to run concurrently. We affirm the judgment of convictions.

On appeal, appellant argues the trial court erred in denying his motions for directed verdict made with respect to each count at the conclusion of the State’s evidence and renewed at the close of all evidence. Point one of the appeal concerns the denial of the directed verdict motions as to counts 1 through 3; point two of the appeal concerns the denial of the directed verdict motions as to counts 4 through 7.

We summarize appellant’s directed verdict motions at trial as follows: at the close of the State’s evidence, appellant moved for a directed verdict as to each count and argued the following three grounds for the motions — first, specifically, as to counts 4 through 7, the evidence did not prove appellant touched the victim anally with his finger, penis or any foreign object, or penetrated her “penilely,” or had sexual intercourse with her; second, specifically, as to all counts, but particularly counts 1 through 3, the medical evidence did not prove the crimes charged ever took place in that it did not prove penetration of the victim; and third, as to all counts, the State’s evidence did not satisfy its burden to present proof beyond a reasonable doubt. As to this third ground, appellant noted generally the victims’ testimony had changed from their pretrial statements, and noted two specific instances where the eleven-year-old victim had done so: (1) she testified first yes and then no when asked if the ten-year-old victim told their mother that appellant touched the ten-year-old anally; and (2) she stated before trial that appellant had penetrated her penilely, although at trial she testified such penetration had not taken place. At the close of all evidence, appellant renewed his motion for a directed verdict as to each count on the same grounds as stated earlier. On appeal, appellant argues the trial court erred in denying his directed verdict motions for two other specific reasons, that is, because the proof as to each count was insufficient to separate the counts as to (1) time and (2) where they occurred.

Our law is well established that a directed verdict motion is treated as a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). It is equally well settled that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of their objections and arguments presented at trial. Id.; Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990); Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989).

To conclude, in contravention of our established law applicable to proper preservation of issues for appellate review, appellant argued three grounds for his motion at trial, but bases his argument on appeal on two entirely different specific grounds, neither of which was raised at trial. In consequence, we summarily dispose of the argument, and will not consider it for the first time on appeal. Brown, 316 Ark. 724, 875 S.W.2d 828.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Robert Edward JACKSON v. STATE of Arkansas
    CR 94-343
    883 S.W.2d 466
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      McArthur & Finkelstein, by: Hugh Finkelstein, for appellant.

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

This appeal stems from a judgment of conviction for three counts of attempted first-degree murder in violation of Ark. Code Ann. § 5-3-201 (1987). The appellant, Robert Edward Jackson, was sentenced as a habitual offender to fifty years on each count with the three sentences to run concurrently. His point on appeal is that the trial court erred in failing to suppress identifications of Jackson from two photographic spreads. We affirm.

Early in the evening of October 27, 1992, Jackson was beaten by several teenage boys at his house in Little Rock for allegedly raping a friend of theirs. Later that same evening, Jackson accosted three teenage girls, Merdina Hildreth, Allison Poindexter, and Carrie Nesbitt, who were standing near a street light and whom he associated with the boys who had beaten him. He forced the girls into an alley at gunpoint and shot each in the head with a pistol. He also shot Hildreth in her chest, back, and hand.

Following the shooting, the victims were taken to University Hospital in Little Rock for treatment. While the victims were in the Emergency Room and under treatment, Detective Steve Moore of the Little Rock Police Department testified that he presented each victim with a six-picture photographic spread for purposes of identifying the assailant. Merdina Hildreth selected Jackson as a “look alike” from the display. The two other victims, Allison Poindexter and Carrie Nesbitt, could not identify the culprit from the photographs shown that evening.

Three days later on October 30, 1992, Detective Moore testified that he separately showed Allison Poindexter and Carrie Nesbitt a second photographic spread consisting of six pictures. Both picked Jackson as the attempted murderer. When Merdina Hildreth was shown the display at this later time, she was not able to identify anyone as her assailant. Hildreth disputes Detective Moore’s recollection that she viewed the two spreads on separate occasions and believes she saw both together at the hospital and that she positively identified Jackson. In the two photographic displays on October 27 and October 30, Jackson was the only man pictured twice. He was also in the same position in each spread ■— position two.

Jackson was charged with one count of rape and three counts of attempted murder. He was also charged as a habitual offender. Prior to trial, he filed a Motion to Suppress Identification in which he prayed that “the photo line-up identifications be suppressed.” A hearing was held and testimony was taken from Detective Moore and the three victims. The motion was denied. At the ensuing trial, Detective Moore testified to the photographic identifications by each of the three victims. Also, at trial Hildreth, Poindexter, and Nesbitt each identified Jackson in the courtroom as the man who had shot them. No objection was made at trial to the photo identification testimony of Detective Moore or to the courtroom identifications by the victims. A verdict of not guilty on the rape charge but guilty on the three counts of attempted murder followed, and the fifty-year sentences were imposed.

On appeal, Jackson asserts error by the trial court in failing to suppress the victims’ photo identifications. The key premise of Jackson’s argument is that he was the only person featured in both of the photospreads and that his position in each display was number two. This, he contends, was unduly suggestive, thereby rendering the photo identifications unreliable.

We note initially that there are two procedural deficiencies in Jackson’s appeal. First, his motion to suppress was directed only to the photo identifications which were testified to by Detective Moore. No objection or argument that the in-court identifications by the victims were tainted was advanced by Jackson at the trial level. That point, accordingly, is not preserved for appeal. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993). Secondly, Jackson did not include the two photographic displays as part of the record on appeal. The reason for this is obvious from the record. Neither Jackson nor the State introduced the photographs into evidence at the pretrial hearing on the motion to suppress. They were simply marked as exhibits for identification purposes.

We are left then to determine the suppression issue only as it relates to Detective Moore’s testimony. Again, Jackson’s contention is grounded on the fact that he was the only person pictured in both photo lineups and he occupied the same position in both. We are somewhat hamstrung in deciding this issue without being able to view what photos were presented to the victims on the two occasions. Detective Moore, for example, testified that the pictures of Jackson in the two spreads were different, but how different they were is a matter of speculation for this court. The trial court obviously viewed the two spreads, and we are asked to make a decision that its finding of reliable identifications was clearly erroneous under the totality of the circumstances. This is difficult to do without the actual photographs before us. As has been stated many times by this court, it is incumbent upon the appellant to bring a record to this court which is sufficient for our review of the issue at hand. See, e.g., Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994); Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993).

Be that as it may, we have on occasion reviewed the trial court’s decision on the reliability of an identification even when the allegedly suggestive photographic lineup was not part of the record for our review. See, e.g., Chism v. State, 312 Ark. 559, 853 S.W.2d 225 (1993). We have also declined to do so when the allegation was that the appellant’s eyes were closed at the photo lineup, and the appellant failed to abstract the pivotal photographs for our perusal. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). In reviewing the case before us, we conclude that Jackson falls far short in establishing that the two photo identifications were so suggestive as to create a substantial possibility of misidentification. That is the test. See Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993); Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981).

The two photo lineups were three days apart, and the pictures of Jackson were different in each display according to the undisputed testimony. The mere fact that an accused was given the same number in a lineup and in a photospread has been held insufficient to make a case of unreliability. Allen v. State, 297 Ark. 155, 760 S.W.2d 69 (1988). Moreover, unlike the situation in the case relied on by Jackson (Foster v. California, 394 U.S. 440 (1969)), there is no legitimate insinuation in the instant case that Detective Moore sought to influence the identification by the method he used to present the photographs. See also Matthews v. State, supra. In Matthews, we held under similar circumstances that the fact the accused was the only suspect included in a photo lineup and in a later group of people leaving a Con-Agra plant, both of which were viewed by the victim, was not sufficient by itself to render the identification unreliable. We reach the same conclusion in the case at hand.

Furthermore, the three victims had ample opportunity to see Jackson as the confrontation initially occurred under a street lamp. No one identified anyone else. The photo identifications were made within three days, and two of the victims were positive about their selection. All three positively identified Jackson in the courtroom. Considering these factors, we cannot say that the photo identifications were unreliable. See Hayes v. State, 311 Ark. 645, 846 S.W.2d 183 (1993); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991).

Affirmed.

Holt, C.J., not participating.

       Allison Poindexter was not certain whether she was shown both displays at one time or on separate occasions.


author: Per Curiam.

text:
    Leonard Lee EMBRY v. STATE of Arkansas
    CR 94-864
    883 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      John W. Settle, for appellant.
    No reponse.
   Per Curiam.

Leonard Lee Embry, by his attorney, has filed a motion for a rule on the clerk.

His attorney, John W. Settle, admits by motion that the record was filed untimely due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

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


text:
    Robert Lee JONES v. STATE of Arkansas
    CR 94-595
    883 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Davis Loftin, trial counsel for appeallant.

      Bart E. Ziegenhorn, newly appointed appellate counsel for appellant.
    No response.
   Per Curiam.

By per curiam opinion issued July 18, 1994, this court directed Mr. Davis Loftin, trial counsel for Robert Lee Jones, to appear on Monday, September 12, 1994, and show cause why he should not be held in contempt for failing to file a record and brief in this appeal. Mr. Loftin conceded that, on May 21, 1991, he filed a notice of appeal from Jones’ conviction judgment entered on May 2, 1991. Loftin asserts the notice of appeal was filed so as to preserve Jones’ right to appeal while Jones was deciding whether he would appeal. Jones subsequently obtained a bond and has been free, since the filing of the appeal notice. Loftin also concedes he never filed a motion to withdraw as counsel, nor has he done anything further to perfect or lodge a record in this cause.

Under Ark. R. Crim. P. 36.26, trial counsel, whether retained or appointed, shall continue to represent a convicted defendant through any appeal to the supreme court, unless permitted by this court (or trial court before notice of appeal is filed) to withdraw in the interest of justice or for other sufficient cause. Here, Mr. Loftin undisputedly filed a notice of appeal in this matter and was aware of Jones’ appeal bond. Nonetheless, he never filed a motion to withdraw requesting to be relieved as counsel. Therefore, Loftin remained attomey-of-record and responsible for representing Jones on appeal. Wesson v. State, 280 Ark. 98, 655 S.W.2d 401 (1983).

Mr. Bart E. Ziegenhom has now been appointed counsel for Jones and a motion for rule on the clerk has been granted permitting the record to be filed, although it is more than three years late. Jones v. State, CR94-595 (per curiam opinion delivered July 18, 1994). Based upon Mr. Loftin’s knowledgeable filing of a notice of appeal, awareness of Jones’ appeal bond and failure to lodge a record, he is held in contempt of court and fined $250.00. See Mitchael v. State, 309 Ark. 280, 828 S.W.2d 844 (1992). In fixing the fine, the court also considered Mr. Loft-in’s prior failure to lodge a record after having filed a notice of appeal in the case of Gidron v. State, CR92-1388 (unpublished per curiam opinion delivered on February 8, 1993).

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


text:
    Dexter Dumount MACK v. STATE of Arkansas
    CR 94-726
    882 S.W.2d 672
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Paul Johnson, for appellant.
    No response.
   Per Curiam.

Dexter Dumount Mack was convicted of possession of a firearm and sentenced to six years in the Arkansas Department of Correction. Appellant’s counsel, Paul Johnson, filed notice of appeal. However, the notice was filed prior to the entry of the judgment and, hence, of no effect. Ark. R. App. P. 4; Woods v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). Mr. Johnson has acknowledged his mistake in failing to determine that judgment had been entered prior to the notice of appeal and, accordingly, we grant the motion for belated appeal and direct that a copy of this order be filed with the Committee on Professional Conduct. See our Per Curiam opinion In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Thomas F. STORY v. STATE of Arkansas
    91-106
    883 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Appellant, pro se.

    No response.
   Per Curiam.

In 1991 the petitioner Thomas F. Story filed in this court a pro se petition for writ of mandamus in which he contended that the Hon. Francis Donovan, Circuit Judge, had failed to act in a timely manner on a motion for return of bail filed in the Circuit Court of Searcy County on September 26, 1988. We granted the petition, and the writ was issued on May 20, 1991. Petitioner now seeks to file a second petition for writ of mandamus in the matter based on his contention that the motion for return of bail remains pending. He asks that the fee to file a petition for writ of mandamus be waived and that this court enforce the writ of mandamus issued in 1991 and compel action on the pending motion. He states that the Hon. David Reynolds, Circuit Judge, is now assigned responsibility for ruling on the motion.

We will permit the second petition to be filed without fee as the petition is a continuation of the first petition for writ of mandamus. However, the record provided by petitioner is not sufficient for further action, as the status of the motion for return of bail cannot be determined with certainty. The record contains a letter dated January 20, 1993, from Judge Reynolds to Mr. Kenneth Fuchs, an attorney designated as representing petitioner, which states that the “case is set for pre-trial” on February 19, 1993. There is also an order entered February 10, 1993, dismissing petitioner’s motions for post-conviction relief filed on or before June 24, 1991, on the ground that a hearing had been scheduled for December 21, 1992, at which petitioner failed to appear although every effort had been made to contact him and his attorney, if one had been retained. It is not clear whether the motion for release of the bail money was included with the post-conviction pleadings and dismissed. The purpose of the hearing set for February 19, 1993, is also not clear from the record. Petitioner contends that he had never sought any post-conviction relief.

Because this court has already issued a writ of mandamus to compel action of the motion for return of bail and it cannot be ascertained whether the motion is still pending, we remand this matter to the trial court. The trial court is directed to provide a copy of any order it may have entered disposing of the motion or, if the motion remains pending, to act on the motion forthwith and provide this court with a copy of its order.

Motion granted; matter remanded.

       in the motion for return of bail filed in the trial court in 1988, petitioner stated that (1) he was charged in 1986 with aggravated assault and admitted to bail in the amount of $7,500.00 which he deposited in cash; (2) the bail was reduced to $5,000.00 at arraignment; (3) he was found guilty on March 10, 1987, and surrendered to the county sheriff on February 3, 1988; and (4) because there were no pending charges related to the deposited bail, he was entitled to the return of the $5,000.00 on deposit.


text:
    R. Robert BAILEY, and Ed H. Smith, Individually and On Behalf of the Committee to Save Arkansas Jobs, Inc., and All Others Similarly Situated v. W.J. “Bill” McCUEN, Secretary of State
    94-951
    884 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered September 20, 1994

      Friday, Eldredge & Clark, by: Paul B. Benham III, Elizabeth J. Robben, and Robert S. Shafer, for petitioners.

      Youngdhal, Sadin & McGowan, by: Thomas H. McGowan, for the appellant Committee.

      Winston Bryant, Att’y Gen., by: Melissa Rust, Asst. Att’y Gen., for respondent.
   Per Curiam.

On September 7, 1994, an original action was filed in this court for an order to invalidate a proposed initiated constitutional amendment offered under Amendment 7 to the Arkansas Constitution; to enjoin placement of the proposed initiated constitutional amendment on the November 8, 1994 general election ballot; and to direct that any votes cast thereon not be counted or certified because the petition contained invalid signatures and other irregularities and because the ballot title is defective.

This original action filed by the parties raises issues of fact. Arkansas Supreme Court Rule 6-5(b) provides that evidence on issues of fact will be taken by a Master to be appointed by this court. Therefore, we appoint the Honorable Tom Digby as Master and direct him to conduct such proceedings and hearings subject to and in accordance with our Rule 6-5(a) and Rule 53, Arkansas Rules of Civil Procedure, as are necessary to determine whether the allegations contained in the petition are true and to file his report with this court as expeditiously as possible. We also direct the Master to attend to the parties’ additional motions for the taking of depositions and the establishment of bifurcated briefing schedules and such other matters as are necessary to discharge his duties.

Arkansas Supreme Court Rule 6-5(b) Rules of Supreme Court provides in pertinent part:

As a condition to the appointment of a master, the Court may require both parties to file a bond for costs to be approved by the Clerk. Upon the filing of the master’s findings, the parties shall file briefs as in other cases.

In addition, the Master is instructed to work with the Supreme Court Clerk and respective counsel in expediting a briefing schedule so that this court will receive the parties’ briefs in sufficient time to consider the issues and render its decision as to whether or not this measure is to remain on the ballot to be printed for the November 8, 1994, general election.


author:
Per Curiam. Donald L. Corbin, Justice, Robert L. Brown, Justice.,
      David Newbern, Justice,

text:
    Dan IVY, Republican Candidate for Attorney General for the State of Arkansas v. REPUBLICAN PARTY of Arkansas; Asa Hutchinson, in his Capacity as Chairman of the Republican Party of Arkansas; Marty Ryalls, Executive Secretary for the Republican Party of Arkansas; and the Secretary of State for the State of Arkansas
    94-1006
    883 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered September 23, 1994

      Erwin L. Davis, for petitioner.

      Gean, Gean, & Gean, by: Thomas C. Gear, for respondents.
   Per Curiam.

The pertinent facts appear undisputed. Dan Ivy duly filed with the State Republican Party as a candidate to be that party’s nominee for Attorney General. He ran unopposed at the Republican Party Primary elections and, under Ark. Code Ann. § 7-7-304(c), he was entitled to be certified as the Republican Party nominee for the office of Attorney General. See also Ark. Code Ann. § § 7-7-203(k)(l) and'7-7-403 (Repl. 1993).

After the primary elections, Mr. Ivy apparently was arrested for the criminal offense of battery in the third degree and was determined guilty by the Fayetteville Municipal Court on September 7, 1994. He appealed. On September 10, 1994, the State Republican Convention convened, and at that convention the membership voted not to certify Ivy as its nominee for Attorney General. On September 12, 1994, Ivy promptly filed a petition for writ of mandamus, in the Pulaski County Circuit Court, naming the Republican Party of Arkansas and its Chairman and Executive Secretary, and, among other things, requested the court to issue its writ and declaratory judgment directing the Republican Party officials to certify Ivy as the party’s nominee for Attorney General. On September 19, 1994, the circuit court denied Ivy’s request.

In reaching its ruling, the trial court construed Ark. Code Ann. § 7-1-104(4) which defines “vacancy in nomination” as the following:

“Vacancy in nomination” means the circumstances in which the nominee of a political party selected at a primary election shall not be certified as the nominee due to death, resignation, withdrawal, or other good and legal cause arising subsequent to nomination and preceding the final date for certification of nominations (emphasis added).

The lower court also cited Ark. Code Ann. § 7-3-101 (Repl. 1993) as providing that organized political parties shall have the right to prescribe the qualifications of their own membership and for voting and they can establish rules and procedures for their own organization. The court concluded that, under § 7-1-104(4), the General Assembly recognized that a vacancy in nomination might occur for “other good and legal cause,” and further concluded Ivy had been found guilty of battery in the third degree, a misdemeanor, and the Republican Convention could appropriately withdraw Ivy’s nomination.

Arkansas law is well-settled that the party chairman and secretary do not have the judicial authority to determine that a candidate is ineligible to hold public office, nor can they refuse to place the candidate’s name upon the ballot. Ridgeway v. Catlett, Chairman, 238 Ark. 323, 379 S.W.2d 277 (1964); Irby v. Barrett, 204 Ark. 682, 163 S.W.2d 512 (1942). In Ridgeway, E. T. Ridgeway qualified as a candidate for the nomination for the office of Governor in the Democratic Primary. The Democratic Committee learned Ridgeway had been convicted of a felony and notified him that his name would not appear on the ballot. Ridge-way filed suit for a writ of mandamus to compel the party officials to perform the ministerial duty of certifying his name for inclusion on the ballot. The trial court denied Ridgeway relief, but this court reversed.

In reversing, the Ridgeway court conceded that Ridgeway was ineligible to hold public office under the Arkansas Constitution. Nonetheless, the court held the procedure followed by the Democratic Party officials was improper in preventing his candidacy. The Ridgeway court relied in part upon the earlier holding in Irby which concluded the party chairman and secretary do not have the judicial authority to determine that a candidate is ineligible to hold office and for that reason to refuse to place the candidate’s name on the ballot. (Our emphasis.)

The Ridgeway court quoted from the Irby decision as follows:

If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, he have a holding by the court that the name should not have been omitted. (Emphasis added.)

The Ridgeway court cited other compelling language, quoting from a Kentucky decision, Young v. Beckham, 115 Ky. 246, 72 S.W. 1092, as follows:

If the committee can say who is not eligible to be nominated as party’s candidate for office, they can, on the very last day before the ballots are printed, refuse to allow a person’s name to go on the ballot upon the pretext that he is ineligible, and thus prevent his name from' appearing upon the official ballot. They could thus destroy one’s prospect to be nominated, for the rules of procedure in courts are necessarily such that no adequate relief could be afforded the party complaining, if at all, until after the primary election had been held. If the committee or governing authority has the authority to decide the question as to who is eligible to hold an office or be a candidate before a primary election, then they would have a discretion and judgment to exercise that could not be exercised by a mandamus. The most that could be done by such a writ would be to compel them to act upon the question. (Emphasis added.)

In our more recent case of State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), we reviewed the earlier Ridgeway and Irby decisions and fully recognized the dangers posed by permitting party committees the discretion to determine if a candidate’s name should go on the ballot. This court declared that an action for mandamus and declaratory relief is the proper method of enforcing the right set out in Ark. Code Ann. § 7-5-207(b) which specifically prohibits the inclusion of an ineligible candidate on an election ballot.

The foregoing decisions and underlying rationale apply to the situation before us now. The General Assembly has provided no procedure for state and county party committees or conventions to make a judicial determination concerning whether a party nominee should be certified. To do so in the case here means the party officials would investigate, make factual determinations and determine whether those factual findings constitute “other good and legal cause” under § 7-1-101(4). Such undertaking requires a judicial tribunal, not a political one. Besides, to reiterate, § 7-1-101(4) only defines the term “vacancy in nomination” — it in no way empowered political committees with a procedure to cause or create a vacancy. Here, the lower court incorrectly deferred to the state party convention’s actions and discretion, exercised under § 7-1-101(4), in permitting the convention to decide Ivy was ineligible. In conclusion, we mention the trial court’s reliance on the cases of Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), and Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992). The trial court cited these two cases as ones that addressed the First Amendment right of association and the proposition that a political party has a right to identify with and select those candidates that best reflect political party preferences. The lower court concluded that the General Assembly intended to follow this right of association proposition when it passed the “vacancy in nomination” provision set forth in § 7-1-101(4), thereby allowing a party to vote not to certify a party nominee for “good and legal cause.”

While we agree with the federal decisions cited and the First Amendment tenets expressed in those holdings, we disagree they are applicable here. Under Arkansas’s election laws, a political party can remove a nominee for good and legal cause, but the party is merely required to petition the circuit court in so doing. We set out the reasons for such a procedure in the Craig-head County case mentioned above. Because the reason (good and legal cause) for vacating a nomination is defined by state law, it is compelling that a judicial, rather than a political, determination be made as to whether the facts correctly invoke § 7-1-104(4) and its definitional standard. The primary difference between these federal cases, however, is that the Republican Party is not deprived of its right of association since state law provides a means to exercise that right.

For the reasons above, we hold the trial court was in error, and should enter a writ of mandamus forthwith compelling the respondents to certify Dan Ivy the party’s nominee for the November 8, 1994 General Election.

Writ granted.

Donald L. Corbin, Justice,

dissenting. I dissent.

The majority’s plenary determination is founded on the principle that if a nominee of any political party satisfies the basic constitutional and statutory requirements to the elective office sought, the party cannot refuse to accept an individual as a party nominee for an elective office. I strongly disagree.

A party should have the means to either accept or reject an office seeker. A political party should be entitled to adopt and enforce standards for its office seekers that do not conflict with the constitutional and statutory qualifications for office holding. A party should be able to set such standards that promote the party’s ideologies and preferences, not to mention the need to safeguard the integrity of its other office seekers. In fact, the United States Supreme Court has held that parties do have such rights. Democratic Party of United States v. Wisconsin, 450 U.S. 107 (1981). The Supreme Court has held that the First Amendment guarantees a political party’s right of association, which includes the right to identify its membership qualifications and the right to select candidates who best represent the party’s ideologies. Id.

When a person seeks the nomination for a political office as a member of a particular party, he or she has to assume that he or she will be subjected to the discipline of the party from which he desires support. I see the actions of the Republican Party of Arkansas as being a discretionary act designed to promote the ideologies and preferences of its adherents. If one does not wish to adhere to the discipline of the party, he or she is free to seek office under the auspices of another party or as an independent. The party owes its membership and the other party nominees the duty to reject an individual who fails to meet the party’s highest standards for designation as a party nominee.

Our General Assembly has enacted a statute expressly providing that organized political parties in this state shall have the right to prescribe the qualifications of their own membership; prescribe the qualifications for voting in their party primaries; and establish rules and procedures for their own organization. Ark. Code Ann. § 7-3-101 (Repl. 1993). The trial court concluded that, pursuant to this statute, the Republican Party of Arkansas set forth a set of rules governing party membership and authority; Article I, Section 1 (B) of those rules provide that:

The final authority in all party matters shall rest in the biennial Republican State Convention, which shall be deemed to have delegated such interim authority to the State Committee and Executive Committee as is necessary to carry out the purposes and objectives of the party.

In 1969, the Arkansas General Assembly passed Act 465. Article I of Act 465 addressed nominations and primary elections. This section, now codified at Ark. Code Ann. § 7-1-101(4) (Repl. 1993), provides that:

“Vacancy in nomination” means the circumstances in which the nominee of a political party selected at a primary election shall not be certified as the nominee due to death, resignation, withdrawal, or other good and legal cause arising subsequent to nomination and preceding the final date for certification of nominations[.] [Emphasis added.]

It is clear that when the legislature passed this statute, it used the “vacancy in nomination” language to allow a political party not to certify a candidate for good and legal cause.

A number of federal cases have addressed the issue of a political party’s right not to certify candidates in terms of the party’s First Amendment right of association. In Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992), the Court of Appeals held that Republican members of the Georgia Presidential Candidate Selection Committee did not infringe on the candidate’s right of association by excluding his name from the ballots. In denying David Duke’s request for a preliminary injunction, the Court of Appeals concluded that “the Republican Party enjoys a constitutionally protected freedom which includes the right to identify the people who constitute this association that was formed for the purpose of advancing shared beliefs and to limit the association to those people only.” Id. at 1530 (citing Democratic Party of United States v. Wisconsin, 450 U.S. 107 (1981)). The Court of Appeals also made clear a proposition stated by the United States Supreme Court — that a political party has a First Amendment right to “select a standard bearer who best represents the party’s ideologies and preferences.” Duke, 954 F.2d at 1531.

In Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), cited in Duke, 954 F.2d 1526, a state statute required voters in any party primary to be registered members of that party. The Republican Party challenged this provision on the ground that it burdened the party’s First Amendment right to enter into political association with individuals of its own choosing. The Supreme Court, in ruling for the party, reasoned that a “nonmember’s desire to participate in the party’s affairs is overborne by the countervailing and legitimate right of the party to determine its own membership qualifications.” Tashjian, 479 U.S. at 215 n.6.

The recent federal decisions addressing the First Amendment right of association stand for the proposition that a political party has a right to identify with and select those candidates that best reflect the party preferences. Although this court has not specifically addressed the issue of whether a state political party may prevent a person from becoming a candidate for office since the passage of Act 465 in 1969, it appears that the Arkansas General Assembly intended to follow this proposition when it passed the “vacancy in nomination” provision set forth in section 7-1-101(4) allowing a party to vote not to certify someone for “good and legal cause.”

I see good cause for the Republican Party to refuse to declare Petitioner as the Republican Party nominee to the Office of Attorney General. The Office of Attorney General is the chief legal officer in the state charged with enforcement of the state’s laws. Certainly, the fact that Petitioner has been convicted in municipal court, albeit pending appeal, of violating the very laws which the Attorney General is charged with enforcing constitutes “good and legal cause” for not certifying Petitioner.

I would deny the request for a writ of mandamus.

Robert L. Brown, Justice.,

dissenting. I would deny the petition.

The narrow issue involved in this case is whether the Republican Party had good and legal cause not to certify the nomination of petitioner Dan Ivy to the Secretary of State because of his misdemeanor conviction for third degree battery involving his wife. The Party claims that the battery conviction constituted such good and legal cause under Ark. Code Ann. §§ 7-1-101(4) and 7-7-104(a) (Repl. 1993). The Pulaski County Circuit Court agreed and denied a previous petition for mandamus on September 19, 1994.

Ivy appears to couch jurisdiction in this court as original jurisdiction under Article 7 of the Arkansas Constitution which authorizes this court to issue writs of mandamus and other “remedial writs.” The Republican Party responds that jurisdiction only rests as an appeal from Pulaski County Circuit Court. In any event, a writ of mandamus to compel a public entity to act is not appropriate when that entity has the authority to employ discretion in its actions. Buttolph Trust v. Jarnagan, 302 Ark. 393, 789 S.W.2d 466 (1990); State v. Craighead County Board of Election Commissioners, 300 Ark. 405, 779 S.W.2d 169 (1989); Gober v. Daniels, 295 Ark. 199, 748 S.W.2d 29 (1988). Here, the Party did exercise discretion in determining that good and legal cause did exist to deny certification. Counsel for Ivy conceded some discretion in the Party in oral argument when he admitted that a felony conviction as opposed to a misdemeanor might be appropriate reason for the Party not to certify a nomination. Mandamus is simply not an available remedy in this case.

Ivy also petitions for a declaratory judgment and mandatory injunction. These remedies do not constitute “remedial writs” as contemplated by Article 7 of the Constitution and are not the subject for original jurisdiction in this court. But even viewing the matter as an appeal from the order of the Pulaski County Circuit Court (which did not have a prayer for these remedies before it), I would agree with the court that good and legal cause exists to deny certification. The standard definition of “good cause” is a “substantial reason” for doing something. Black’s Law Dictionary, p. 692 (6th Ed. 1990). I cannot say under these facts that the Republican Party did not have substantial reason to deny Ivy’s certification. A battery conviction for beating one’s spouse, albeit at the municipal court level, is serious business when the position at issue is the chief law enforcement officer of the state. It is true that the conviction may be reversed by a jury on appeal, but at this point that is a matter for speculation.

The majority cites two cases for the proposition that political parties cannot refuse to certify candidates for good and legal cause. Ridgeway v. Catlett, Chairman, 238 Ark. 323, 379 S.W.2d 277 (1964); Irby v. Barrett, 204 Ark. 682, 163 S.W.2d 512 (1942). Both cases were decided before Act 465 of 1969 which enables political parties to do exactly that. Ark. Code Ann. §§7-1-101(4) and 7-7-104(a) (Repl. 1993). The cases, therefore, are not controlling.

The Republican Party refused to certify Ivy’s nomination for Attorney General for good and legal cause. A review of that decision was precipitated by Ivy in Pulaski County Circuit Court, and that court rendered a judicial determination and, in effect, found no basis to compel the Party to do otherwise. I see nothing in the controlling statutes that would force the political parties to seek a judicial determination of good and legal cause before acting, as the majority suggests. In sum, there is no constitutional basis for us to take original jurisdiction of this matter and issue a writ of mandamus because the decision not to certify involved discretion on the Party’s part. But even if this case were appropriately before us as an appeal, I detect no sound reason to decide the case differently from the circuit court.

David Newbern, Justice,

dissenting. Mr. Ivy’s petition for mandamus, injunction, and declaratory relief was filed with this Court yesterday, September 22, 1994. Late yesterday afternoon a response was filed. This morning, September 23, 1994, we heard oral arguments on the issues presented in those pleadings. The issues are significant. This afternoon this Court issued its decision.

The definiteness and quality of the opinions issued may belie my position, but I cannot believe we have acted so rapidly. The pleadings deserved to be given very serious consideration. Sometimes we have the good judgment not to agree to hear matters in which the parties seek an expeditious result which requires us to go too fast. See, e.g., Westark Christian Action Council v. Stodola, 311 Ark. 449, 843 S.W.2d 318 (1993).

While I express no opinion on the merits of the petition or response, I must respectfully dissent from the action of the Court which I regard as precipitous.

       Section 7-5-207 (b) reads as follows:
      (b) No person’s name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing as a candidate for the office to hold the public office for which he is a candidate, except if a person is not qualified to hold the office at the time of filing because of age alone, the name of the person shall be printed on the ballot as a candidate for the office if the person will qualify to hold the office at the time prescribed by law for taking office.

       Other distinguishing points can be made concerning the two federal cases cited. For example, the Tashjian holding involved the fundamental right to vote and a state law prohibited the Connecticut Republican Party by party rule from allowing independent voters to vote in its primaries. In the case here, no party rule is in conflict with statutory law. The Duke case, on the other hand, upheld the right of the Republican members of the Georgia Presidential Candidate Selection Committee to exclude Duke’s name from the ballot. There, however, Georgia’s state law plainly allowed the party’s committee members to agree to delete a candidate’s name from the ballot. As discussed in the body of our opinion here, Arkansas’s statutory law is quite different.

       We note that, in their motion to dismiss below, respondents alleged that Ivy failed to join the secretary of the Republican Party as a party in this matter. This point seemed to fade at the hearing, and the trial court did not mention the issue in its order. Nor is it pursued on appeal since respondents fail to mention the point in their responsive briefs or cite any authority to support the point. Thus, we do not address it in this per curiam decision.


text:
    Billy Wayne OWENS v. STATE of Arkansas
    CR 94-437
    883 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994

      William R. Simpson, Jr., Public Defender, by: Julia B. Jackson, Deputy Public Defender.

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

Appellant was convicted of four counts of delivery of a controlled substance, and was sentenced as a habitual offender. He does not challenge the sufficiency of the evidence so we need not recite all of the facts. He argues that the trial court erred in admitting hearsay evidence and erred in the manner of proceeding in the sentencing phase of the bifurcated trial. There is no merit in either argument, and we affirm the convictions.

The facts surrounding the evidentiary ruling are as follows. Joe Murdock witnessed the drug sales that appellant made to an undercover police officer. However, before the trial Murdock told appellant’s attorney that appellant did not sell drugs to the undercover officer. At trial, appellant called Murdock as a witness. On direct examination Murdock testified that appellant had indeed sold cocaine to the undercover officer. He admitted that his testimony was inconsistent with his prior statement to appellant’s attorney, but testified that he made the prior statement because he was afraid of appellant. On cross-examination, the prosecutor asked Murdock if he had been threatened by appellant or by anyone else on appellant’s behalf. Appellant objected on the ground of hearsay. The trial court overruled the objection because the testimony was offered to show that the statement was made and not for the truth of the statement. Murdock then testified that appellant’s girlfriend had threatened to “go on a shooting spree” if he testified to anything that resulted in appellant’s conviction. Appellant assigns the ruling as error.

The ruling was correct. A statement is not hearsay when the statement is offered not for its truth but merely to show the fact of the assertion. Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993); see also 4 Jack B. Weinstein & Margaret M. Berger, Weinstein’s Evidence § 801(c) at 801-93 (1993). Here the statement was offered to show that Murdock had been threatened by appellant’s girlfriend and not for the purpose of proving whether or not she would have in fact gone “on a shooting spree.”

In his argument on this point appellant cites our case of Morrison v. Lowe, 267 Ark. 361, 590 S.W.2d 299 (1979). That case is materially different. In that case the Morrison family and the Lowe family had a strained relationship. The Morrisons made threats against the Lowes. The threatening statements were not made to witnesses who testified at trial, but rather were made to third parties who relayed the statements to the witnesses. Under these circumstances, we wrote:

Such testimony, although hearsay if offered to prove that the threats had in truth been made by the Morrisons, would nevertheless be admissible, with a proper limiting instruction to the jury, to show that the plaintiffs had reason to be afraid of the defendants [Lowes]. . . .

Id. at 363, 590 S.W.2d at 301. (emphasis added). In the case at bar, the witness testified about the threat he heard, while the witnesses in Morrison sought to testify about threats which others told them had been made. As we wrote in Morrison regarding the hearsay rule, “It is still not permissible for a witness to relate information he obtained from someone else rather than by his own observation.” Id. at 362, 590 S.W.2d at 301; see also David F. Binder, Hearsay Handbook § 6.01 at 95-96 (3d ed. 1991).

In appellant’s second point of appeal he contends that the trial court erred in submitting to the jury the “law applicable to parole, meritorious good time, or transfer.” The assignment of error comes about in the following manner. Section 16-97-103 of the Arkansas Code Annotated of 1987 went into effect on January 1, 1994. Appellant’s trial took place on January 11, 1994, before a pattern instruction on the statute was available. The statute provides, in pertinent part:

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, . . .
(1) The law applicable to parole, meritorious good time, or transfer[.]

Id. § 16-97-103(1) (Supp. 1993).

The State proposed a jury instruction on parole eligibility. Appellant objected to the instruction. The court alternatively proposed handing the jury copies of the statutes concerning parole, meritorious good time, and transfer. See Ark. Code Ann. §§ 16-93-606 — 607 and 12-29-201 (1987). Appellant objected to the procedure on the ground that the statutes would only confuse the jury. The trial court repeatedly asked appellant’s counsel how he would prefer that the information about parole and good time be given the jury, and his response was that the jury should not be given “any information whatsoever about the parole eligibility dates or meritorious good time.” The trial court allowed photocopies of the statutes to be admitted as exhibits for the State.

Appellant argues here, as at trial, that the copies of the statutes were confusing to the jury. It is not necessary for us to determine whether handing copies of statutes to a jury constitutes an instruction or admitting the statute into evidence. We will treat them as evidence, as does the appellant. The copies of the statutes were relevant under the provisions of section 16-97-606, as they apply to meritorious good time, parole, and transfer. Rule 403 of the Arkansas Rules of Evidence allows a trial court to exclude relevant evidence if its probative value is outweighed by the possibility of confusion of issues. This weighing is a matter left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993).

The trial court did not abuse its sound discretion. The jury was instructed that appellant had two prior felony convictions and was classified under the statutes as a habitual offender. With that information, the jury simply had to read the appropriate provisions of these statutes to determine eligibility for parole, good time, or transfer. Significantly, the jury did not ask for additional instructions or otherwise indicate confusion.

Appellant additionally argues that some of the subsections of the statutes submitted to the jury did not apply to him, and it was error to submit those parts of the statutes. He did not make the court aware of such an objection at trial and did not ask to have parts of the statutes omitted. We do not address the argument. We have repeatedly written that to preserve an argument for appeal there must be an objection in the trial court that is sufficient to apprise the trial court of the particular error. Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994).

Affirmed.


author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

text:
    Bert SCALCO v. CITY OF RUSSELLVILLE
    CR 94-262
    883 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered September 26, 1994
    [Rehearing denied October 31, 1994.]

      Dunham & Ramey, P.A., by: James Dunham, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.

       Brown, J., would grant rehearing.

   Robert H. Dudley, Justice.

A policeman stopped appellant’s car and asked appellant to take field tests for sobriety. Appellant failed to satisfactorily perform any of the tests, and the policeman took him to the local jail for a breathalyzer test. Appellant was advised in writing that, after the police-administered breathalyzer test was complete, the police department would assist him in obtaining, at his expense, a blood, breath, or urine test from some other qualified person. See Ark. Code Ann. § 5-65-204(e) (Repl. 1993). The police-administered breathalyzer test showed a blood alcohol content of .187. Appellant questioned the accuracy of the breathalyzer test and requested a second test, a blood test. The second test was never completed.

The case was initially tried in municipal court where appellant was found guilty. He appealed to circuit court and there filed a motion to suppress the evidence of the breathalyzer test on the ground that the police officer did not afford him a reasonable opportunity to take the second test, as required by Ark. Code Ann. § 5-65-204 (Repl. 1993). The trial court ruled that the officer acted in a reasonable manner and refused to suppress evidence of the test result. Appellant entered a plea of guilty pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. The prosecuting attorney consented. See A.R.Cr.P. Rule 24.3.(b). That rule provides that a defendant may plead guilty, conditionally, and reserve the right to appeal from the judgment of conviction for a review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea. Based on appellant’s plea, the trial court, on June 25, 1992, entered a judgment of conviction and sentenced appellant. In the material part, the court’s order provides:

If the defendant prevails on appeal, he shall be allowed to withdraw his plea in accordance with the Arkansas Rules of Criminal Procedure, Rule 24.3.
Whereupon, the defendant pleaded guilty to the charges of driving while intoxicated first offense and left of center, and the court doth accept said plea, and sentences the defendant [to a fine, suspended jail sentence, driving school and driving while intoxicated school].

Appellant attempted to appeal the trial court’s ruling. The court of appeals held that Rule 24.3(b) authorizes an appeal of an illegally obtained evidence, but does not authorize an appeal of an evidentiary ruling when the evidence was not illegally obtained. Since there was no showing the test result was illegally obtained, the court of appeals dismissed the appeal. Scalco v. State, 42 Ark. App. 134, 856 S.W.2d 23 (1993). The court of appeals dismissed the appeal on June 16, 1993, and the mandate was issued on July 29, 1993. Appellant did not file a petition for rehearing, and the sentence was not stayed. Appellant did not “prevail on appeal.” Thus, under the express language of Rule 24.3, he could not withdraw his guilty plea.

About six weeks after the decision became final, see Rule 5-3 of the Rules of the Supreme Court, appellant filed a motion to withdraw his guilty plea and asked the trial court to set aside the judgment of conviction and sentence. One week later, on September 27, the trial court allowed appellant to withdraw the guilty plea and ordered the judgment of conviction and the sentence set aside. Appellant was given a new trial, found guilty, and now seeks to appeal the trial court’s original ruling refusing to suppress the evidence of the test result. We remand with instructions to the trial court to reinstate both the plea originally accepted and the sentence originally imposed.

As a general rule, direct appeals from guilty pleas are prohibited. E.g., Redding v. State, 293 Ark. 411, 413, 738 S.W.2d 410, 411 (1987); A.R.Cr.P. Rule 36.1. A plea of guilty constitutes the accused’s trial, Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993), and there is generally nothing to appeal from that trial. We have said that a plea of guilty was in itself a conviction and an admission of all elements of the charges and constituted a waiver of any defense, other than jurisdiction, which might have been raised at trial. Cox v. State, 255 Ark. 204, 499 S.W.2d 630 (1973). Because guilty pleas are not appealable, an attempted appeal from a guilty plea must be dismissed for lack of jurisdiction. Jenkins v. State, 301 Ark. 20, 21-22, 781 S.W.2d 461, 462-3 (1989). Until recently, we did not allow a conditional plea of guilt. Wolfe v. State, 102 Ark. 295, 144 S.W. 208 (1912). However, we added subsection (b) to Rule 24.3 to allow pleas of guilty conditioned on the reversal of a pretrial determination of a motion to suppress illegally obtained evidence. If the express terms of Rule 24.3 are not complied with, the appellate court acquires no jurisdiction to hear the appeal of a conditional plea. Noble v. State, 314 Ark. 240, 241, 862 S.W.2d 234, 234 (1993). Under the express language of the rule, if a defendant makes a conditional guilty plea but, on appeal, does not obtain a favorable determination, there is no further direct appeal. At that time, the conditional plea becomes final and is treated the same as any other plea of guilty. Appellant’s conditional plea of guilty was his trial and appeal, and his conviction and sentence are final.

Because this matter was not raised by either appellant or the State, the issue in this case then becomes whether the trial court had jurisdiction to allow the plea to be withdrawn and to set aside the conviction after sentence had been imposed when appellant did not obtain a favorable determination from his appeal. Some background information is helpful in determining the issue. In the 1930’s, the applicable statute provided that a plea of guilt might be withdrawn “at any time before judgment.” Pope’s Digest § 3902 (1937). Pursuant to that statute, a trial court might, in its discretion, allow a defendant to withdraw a plea at any time before judgment was entered. Carson v. State, 198 Ark. 112, 128 S.W.2d 373 (1939). However, trial courts often accepted pleas of guilty and entered judgments of conviction, but suspended pronouncement of sentences. When a plea of guilty was accepted, the judge had the authority to “postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation.” Pope’s Digest § 4053 (1937). Thus, a judgment of conviction and a sentence might have been entered at different times. In adopting Rule 26 of the Arkansas Rules of Criminal Procedure, we sought to avoid any problem that might arise as a result of the different times for the conviction and sentence and sanctioned a plea withdrawal only “prior to pronouncement of sentence.” A.R.Cr.P. Rule 26(a). There are sound public policy reasons for treating a defendant’s motion to withdraw a guilty plea differently when the request is made before sentencing rather than afterward. Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984). We have often said that a guilty plea may be set aside before sentencing. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988); Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986); Pennington v. State, 286 Ark. 503, 697 S.W.2d 85 (1985); Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). However, once the guilty plea has been accepted, and the sentencing has taken place, the trial court is without jurisdiction to set aside a plea of guilty, unless there was some kind of stay of the sentence. Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987); see also Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977).

Here, there was no stay of the sentence after decision by the court of appeals became final. The guilty plea and the sentence were conditioned upon appellant obtaining a favorable decision on his appeal of the evidentiary ruling, and he did not obtain a favorable ruling. After the court of appeals’ decision became final, the trial court was without jurisdiction to allow the plea to be withdrawn. As a result, the trial court’s order vacating the original sentence was void. See Redding, 293 Ark. at 413, 738 S.W.2d at 411. Accordingly, we remand this case to the trial court with directions to reinstate the guilty plea originally accepted and the sentence originally imposed.

Remanded with directions.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. I would affirm the DWI judgment of conviction entered on November 30, 1993, because the assistance afforded Bert Scalco by Officer Jeff Myers in obtaining the blood test was entirely reasonable. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985).

The majority, though, decides this case on a procedural ground that was not briefed by the parties. The procedural facts are these. Scalco sought to appeal a denial of his motion to suppress a blood/alcohol breathalyzer test. He entered a conditional plea of guilty with the proviso that if he prevailed on appeal, his plea would be withdrawn. The Court of Appeals declined the appeal on the basis that the denial of the motion to suppress was not an appealable order and, thus, the appellate court lacked jurisdiction. The mandate then came down dismissing the appeal. Scalco moved to withdraw his guilty plea, and the court granted the motion. The court also ordered the judgment of conviction and the guilty plea to be set aside. A trial transpired, and Scalco was convicted.

The majority concludes that the circuit court lost jurisdiction after the Court of Appeals held the suppression order was not final, and the mandate was issued. The cases cited for this conclusion are Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987) and Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). Those cases, however, stand for the proposition that a trial court does not lose jurisdiction of the matter until a valid sentence has been put into execution:

The court, at any time before pronouncing sentence, may allow a defendant to withdraw his plea if it is fair and just to do so. However, a defendant has no right to withdraw a plea after it has been accepted by the court unless it is necessary to correct a manifest injustice. See A.R.Cr.P. Rule 26.1. A sentence is placed into execution when the court issues a commitment order unless the trial court grants appellate bond or specifically delays execution of sentence upon other valid grounds. Once a valid sentence has been put into execution, the trial court is without jurisdiction to modify, amend or revise it. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). After the sentence is put into execution the power to change the sentence passes from the trial court to the executive branch of government. Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984).

Redding, 293 Ark. at 413, 738 S.W.2d at 411.

The majority would have it that a mandate and no stay of the mandate equate to putting the sentence into execution. But that clearly did not happen here. The trial court did not put the sentence into execution but allowed the withdrawal of the guilty plea and commenced to try the case. This a trial court can do under the Rules of Criminal Procedure which permit withdrawals of guilty pleas to correct a manifest injustice “after the entry of judgment upon the plea.” Ark. R. Crim. P. 26.1(b). The trial court then set aside its previous judgment of conviction and the guilty plea, as Rule 26.1(b) requires.

The first fallacy in the majority opinion is the confusion between withdrawal of a plea after sentencing which is permissible under appropriate circumstances and withdrawal of a plea after the sentence has been placed into execution and the trial court has lost jurisdiction. The authority cited by the majority speaks to the second circumstance, not the first, and, therefore, is inapposite to the case before us.

The second fallacy in the opinion is the conclusion that Scalco could not withdraw his plea because he did not prevail on appeal under Ark. R. Crim. P. 24.3(b). However, neither side prevailed in that appeal because the Court of Appeals refused to hear it. See Scalco v. State, 42 Ark. App. 134, 856 S.W.2d 23 (1993). Moreover, the Court of Appeals held that Rule 24.3(b) providing for conditional pleas did-not apply in this case because the suppression urged by Scalco did not involve illegally seized evidence as contemplated by the Rule.

The Court of Appeals dismissed the appeal for lack of a final order. The matter went back for trial, after withdrawal of the guilty plea, and the trial and conviction followed. I see no reason to divest the trial court of jurisdiction to do exactly what it did in this case.

I would reach the merits and affirm.

       The mandate actually speaks in terms of dismissing the circuit court decree.