text:
    Scott A. PORTER v. STATE of Arkansas
    CR 90-128
    823 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992

      Witt Law Firm, P.C., by: Ernie Witt, for appellant.

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

Appellant Scott Porter was sentenced to life in prison for the first degree murder of his eighteen-month-old stepson, Keith Richardson. The appellant assigns seven (7) of the trial court’s rulings as error. We hold that no reversible error occurred and affirm the judgment of conviction.

Two (2) of appellant’s assignments of error involve sufficiency of the evidence. As a result, we set out the facts. Appellant and Melanie Richardson met in June 1988, at the Booneville Human Development Center where they both were employed. They dated for a few months and were married on November 10, 1988. At the time of the marriage, Melanie had a young son, Keith, who lived with his great grandmother, Nettie Richardson. After their marriage, Keith continued to live with his great grandmother, although he did spend a few nights with the appellant and Melanie.

Young Keith spent the week prior to his death with his great grandmother, Nettie Richardson, at her home about seven (7) miles out of Booneville. About 2:30 in the afternoon on Friday, February 3, Keith’s mother, Melanie, and her husband, the appellant, went to Nettie’s home to get Nettie and take her to a doctor. Appellant, Melanie, Nettie, and Keith left Nettie’s home and drove to the doctor’s clinic. Melanie and Nettie got out at the clinic, and the appellant left with Keith to go to his home in Booneville. The two were alone. According to appellant’s statements and testimony, he took Keith inside the home, let his dog out, and made a telephone call. When he finished the phone conversation he looked around the house for Keith but didn’t see him. He looked outdoors and saw Keith’s legs behind a pile of wood stacked in the carport. He ran out and found Keith lying on his back near the woodpile with a log on his chest. He was gasping for air.

Appellant immediately took Keith to the closest doctor’s office, the one where he had left Melanie and Nettie. However, the doctor was at the Booneville hospital, so the three of them left the clinic and went to the hospital. Enroute there, Melanie administered mouth-to-mouth resuscitation to Keith. She said there was some blood on the outside of his nose.

Dr. Charles Parker treated Keith at the Booneville hospital. He testified it appeared that the child had been beaten. His face and neck were swollen and bruised. The back and right side of his head were “soft and mushy.” The injury was consistent with a blunt trauma but was not consistent with a fall. He had fresh bruises on the right side of his forehead, and some older bruising under his jaw. He had an abrasion on his forehead. A surgeon was called in to perform a tracheotomy in preparation for transferring the child to St. Edwards Hospital in Fort Smith.

Before transferring the child, Dr. Parker spoke by phone with Dr. Albert McDade, a neurological surgeon in Fort Smith, to prepare him for Keith’s arrival. Dr. Parker told Dr. McDade that Keith had a closed head injury and a lot of brain damage. In response to a question from Dr. McDade, he said he suspected child abuse because of the different ages and distribution of the bruises and the swelling around the child’s neck.

Nurse Dorothy O’Bar was the emergency room nurse at the Booneville hospital. She observed bruises on the child’s neck and head. The bruises on the neck were like finger marks, and there was a small amount of blood coming from the nose.

Dr. John Williams assisted in the treatment of Keith at the Booneville hospital and accompanied him on the ambulance trip to Fort Smith. He testified that Keith had multiple bruises on his head, and the back of his head felt “mushy” due to blood under his scalp. He stated that Keith suffered seizures because of brain damage or injury.

Nurse Gary Lem also attended Keith on the ambulance trip. He observed four (4) bruises on the right side of Keith’s forehead that were consistent with an adult’s knuckles. In addition, he noticed bruising in the soft tissue on each side of the neck.

Dr. Steven Graves attended Keith in the emergency room of St. Edwards. He testified that a computerized tomography scan of the brain showed both subarachnoid and subdural bleeding. Subarachnoid bleeding is below an inner layer of the cover of the brain. Subarachnoid bleeding alone is almost always due to severe shaking back and forth and the subdural bleeding suggested there had been a blow to the head by an adult.

Dr. Albert McDade also examined Keith at St. Edwards. He observed four (4) evenly distributed bruises on both the left and right sides of the forehead. The scalp was swollen on both sides, with the swelling being worse and more recent on the right side. There were hemorrhages in the eye grounds indicating acute and rapidly increased pressure on the brain which usually occurs from an impact or shaking.

Keith’s condition was critical by the time he reached St. Edwards Hospital, and he was taken to surgery to drill holes in his skull to allow the blood to escape and thereby reduce the pressure. The next day, February 4, his condition had deteriorated to the point that he was essentially brain dead. His blood pressure had to be artificially supported to keep him alive. A second brain scan showed that both sides of the brain had bruising, and there was white matter injury (ruptured nerves from shearing stress) which is consistent with the rapid acceleration and deceleration motions involved in violently shaking a child. The doctors discussed Keith’s condition with Melanie, and later she stated that she did not want Keith to be kept alive artificially. The doctors took Keith off the respirator at 3:10 p.m., and he was pronounced dead at 3:40 p.m.

Dr. Fahmy Malak, the State’s Chief Medical Examiner, performed an autopsy on Keith’s body. With the aid of photographs taken during the autopsy, he testified that Keith had an old bruise in the center of his chest and one above his nose. He had two (2) adjacent fresh bruises on the right side of his forehead. On the left side of his forehead there were multiple small round bruises. There was a small old bruise behind his left ear and an older one under his jaw. There was a similar bruise on the right side of his neck under his jaw. He had three (3) small old bruises on his buttocks. On the back of his head, he had a large bruise extending from behind the ears toward the crown of the head and a fresh bruise on the back of the skull. There were blood clots at the base of the skull which were consistent with vigorous shaking. The scalp was separated from the skull, and this was consistent with vigorous hair pulling. There was bleeding around the optic nerves which was consistent with savage shaking. Dr. Malak testified that Keith died from a head injury caused by swelling of the brain and increased intracranial pressure which caused the heart and lungs to stop functioning.

Various witnesses, including Dr. Malak, testified that there was no evidence on Keith’s body to indicate that either of the two (2) logs found near the woodpile had fallen on him. The logs weighed thirty-four (34) and twenty-two (22) pounds, and yet, there was no external damage to Keith’s skin or damage to his internal organs. The logs showed no evidence of blood or skin. Most importantly, the great grandmother, Nettie Richardson, testified that she bathed Keith on Friday afternoon, just before she, Melanie, the appellants, and Keith first went to the doctor’s clinic. This bath would have been only about two (2) hours before the appellant brought a dying Keith back to the doctor’s office. Her testimony is as follows:

Q. Okay. Had you bathed the child—
A. Yes, sir.
Q. —shortly before they arrived?
A. Yes, sir.
Q. Now, at that time would you tell the jury, please, Ms. Richardson, what you observed about the child in the form of bruises? Did he have any bruises on him—
A. He—
Q. —at the time you bathed him?
A. The only bruises he had was on his forehead and those on his throat, and they were old; they wasn’t new.
Q. All right. Did he have any bruises anywhere else?
A. No, sir; nowhere.

She additionally stated that a few days earlier the appellant had attempted to explain away the bruises on the forehead and throat by stating that the bruise on the forehead came from playing with another child and the bruises about the throat came from the child’s play pen.

W. C. O’Neil testified that he saw Keith on January 23, which was eleven (11) days before his death, and at that time he had two black eyes, a swollen nose, and a skinned place between his eyes about the size of a half dollar. The appellant told O’Neil that Keith hurt himself while playing. O’Neil questioned the truthfulness of appellant’s explanation and, on cross-examination, stated:

Q. And then you queried Scott about that?
A. Yes, I did.
Q. And basically his — he told you that the child jumped off the step, or dove off the step, or something—
A. He said he was running across their dining room and jumping into the den, and I happen not to agree with it.
Q. Pardon me?
A. And I did not agree with him. I stated to him that the step was padded, carpeted, and it was only like the width of a two-by.
Q. Okay. If that was a true statement that Mr. Scott Porter made to you, would that child have had a carpet burn up here?
A. It wasn’t a carpet burn. A carpet burn, I would think would be skinned sideways. This was a perfect circle cut.

The foregoing is substantial circumstantial evidence of a cruel, malicious, and continued course of child abuse culminating in a violent act that caused the death of Keith. The evidence is sufficient to sustain the conviction for knowingly causing the death of a person fourteen (14) years of age or younger under circumstances manifesting cruel and malicious indifference to the value of human life. See Ark. Code Ann. § 5-10-102(a)(3) (Supp. 1989).

Appellant’s other argument involving sufficiency of the evidence is that removing the life support system was the intervening cause of death, and that child abuse was not the direct cause of death. This argument is wholly without merit. Ark. Code Ann. § 5-2-205 (1987) provides:

Causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.

In interpreting this statute, we have written: “Where there are concurrent causes of death, conduct which hastens or contributes to a person’s death is a cause of death.” Cox v. State, 305 Ark. 244, 248, 808 S.W.2d 306, 309 (1991) (citing Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989)). Thus, even if there had been a concurrent cause for Keith’s death, it is clear that the injury to his brain contributed to his death. Had he not suffered the brain injury which necessitated the use of the respirator, he would not have died.

Appellant also argues that the doctors did not require Keith’s mother to request in writing that the extraordinary measures to prolong life be removed as required by Ark. Code Ann. § 20-17-202 (Supp. 1991), the statute which regulates discontinuances of extraordinary means to prolong life. He contends that their non-compliance with the statute is a defense to his criminal liability. We summarily dispose of the argument by stating that no such defense existed at common law and the cited statute is not intended as a criminal defense statute. The provision stating that such requests be in writing is for the protection of medical personnel. See Ark. Code Ann. § 20-17-203 (Supp. 1991).

The appellant argues that the trial court erred in admitting seven (7) photographs taken during the autopsy. We summarily dispose of this argument, also. The admissibility of photographs rests within the sound discretion of the trial court, and we will not reverse without a showing of clear abuse of that discretion. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). We cannot say the trial court abused its discretion in this case as each of the seven (7) pictures enabled the jury to understand the testimony about the injuries. The photographs are not pleasant to view, and they might be inflammatory, but they shed light on the various injuries.

Appellant’s next argument involves A.R.E. 615, or “the rule” concerning the exclusion of witnesses from the courtroom. The argument comes about because Charles Richardson, a witness for the State, testified on cross-examination that he asked a nurse, who had already testified, what questions were asked of her. Appellant immediately moved for a mistrial due to a violation of “the rule.” The trial court denied the motion. We have said many times that the granting of a mistrial is an extreme and drastic remedy that should only be resorted to when there has been an error so prejudicial that justice could not be served by continuing the trial. See, e.g., Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). We cannot say the trial court abused its considerable discretion in this matter, especially in view of the fact that the trial court allowed appellant to question the witness extensively about the conversation and that reflected upon the witness’ credibility. See Graham v. State, 296 Ark. 400, 757 S.W.2d 538 (1988). Additionally, see Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987) for a complete review of our case law applicable to A.R.E. 615.

The appellant also argues that the nurse’s testimony should have been stricken because she talked to witness Richardson. This issue was not raised at trial, and we will not consider it for the first time on appeal.

The appellant next argues that the trial court erred in refusing to grant a mistrial as a result of prosecutorial misconduct. The argument comes about in the following way. The appellant took the witness stand, to testify in his own defense. His attorney very appropriately tried to present appellant as a wonderful God-fearing choirboy who had grown into a wonderful and caring adult. His attorney asked about his background, and he responded that he was a local boy who went to the local high school, played sports there, and sang in the high school chorus. He testified that he sang with the New Life Singers Choir at the First Baptist Church in Booneville and sang all over Europe with the Southern Baptist Choir. He testified about his work with the Booneville Human Development Center. His testimony about that job is fairly abstracted as follows:

In the job, basically, I helped them in their daily lives. I helped them pick out their clothes, or monitored their baths if there were a patient that was susceptible to seizure activity. I played big brother more than anything. These are basically what you would call grown children. They have mental ages anywhere from four to five, to approximately seventeen or eighteen, that is the men that I was directly working with. I worked with them for four or five months and then was transferred to another area. When I was transferred I worked with retarded adult males, mental age of thirteen or fourteen months through probably a year or two old.

Abstract and Brief for Appellant at 173. On cross-examination of the appellant the following occurred:

BY MR. BULLOCK [PROSECUTING ATTORNEY]: (Cont’d.)
Q. Mr. Porter, are you still employed at the Boone-ville Human Development Center?
Q. No, sir; I’m not.
Q. Were you discharged—
MR. RUSH [DEFENSE ATTORNEY]: Objection, your Honor.
THE AUDIENCE: Ohhhh!
MR. DAVID RUSH: Objection.
BY THE COURT: Chambers.
And there won’t be any more outbursts from the audience, or you will be evicted from the courtroom.

The appellant, the attorneys, and the judge then retired to chambers, and the judge asked the prosecutor if he had any basis for the question. The prosecutor stated that he did and that the appellant was fired from the job for carrying a gun. The defense attorney responded that he was fired for having a gun in his truck. The judge stated that he would sustain the objection, declined to grant a mistrial, and gave a limiting instruction to the jury not to consider the question.

We need not decide whether the prosecutor was guilty of any misconduct, and certainly a strong argument can be made that he was only “fighting fire with fire,” see Wortman v. Shipman, 293 Ark. 253, 737 S.W.2d 438 (1987) and Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), because not every act of prosecutorial misconduct warrants the declaration of a mistrial. A mistrial is to be granted only where any possible prejudice cannot be removed by an admonition to the jury. Holbird v. State, 299 Ark. 551, 775 S.W.2d 893 (1989). Here, thequestion was not completed, and it was not answered. Thus, the appellant has not shown that any prejudice occurred and, even if'there was possible prejudice, has not shown that it was not removed by the court’s admonition to the jury to disregard the question.

With regard to the outburst by the audience, the appellant did not ask for a cautionary instruction, he only asked for a mistrial. On several occasions we have held that a mistrial is not required when there is a spontaneous outburst by an audience. See, e.g., Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). It is within the discretion of the trial court, and we cannot say the trial court abused its discretion in this case.

Appellant argues that the trial court erred in denying his motion for a new trial because of juror misconduct. The argument comes about as follows. During a recess in the trial, the appellant saw Dr. James Harbison, a potential State’s witness, talking with the juror who later became foreman. He immediately informed his attorney, and they went to where the two had been talking in order to listen. Appellant’s trial attorney failed to advise the court of the conversation at that time. He later filed a motion for a new trial based upon alleged juror misconduct. The court heard the motion for a new trial and heard testimony on the matter. Dr. Harbison testified that he was subpoenaed as a witness, reported to the courtroom a few minutes late, and was asked by the Sheriff to leave the courtroom, apparently after the witnesses were instructed about “the rule.” He did not hear any instruction not to talk to jurors, but knew not to talk to them about the case. He testified that he talked to the juror during a recess, but he also unequivocally testified that he did not discuss the case with the juror. He stated that they had “shop talk” about the South Logan County Day Care Center, which the juror managed, and that he could have possibly mentioned the word “child” or “children” in the context of the day care center, but he did not think that he had done so. The appellant testified that he heard Dr. Harbison state “of the child” to the juror. The trial court found: “It has not been established that the two involved discussed this case.” Accordingly, the trial court denied the motion for a new trial. That finding of fact was not clearly erroneous and, accordingly, we affirm the finding and the denial of the motion for a new trial on the basis of juror misconduct.

Appellant’s trial attorney filed an appellate brief on the above discussed points of appeal and additionally argued that he should be allowed to withdraw because appellant had been deprived of effective assistance of counsel because he failed to timely notify the trial court of the conversation between Dr. Harbison and the jury foreman. The State filed a motion to remand pursuant to A.R.Cr.P. Rule 36.4, as amended July 1, 1989, and for new counsel to be appointed for that post-conviction issue. We granted the motion, new counsel was appointed, and a hearing was held. The trial court denied post-conviction relief based upon ineffective assistance of counsel. The ruling was correct.

In order for the appellant to show that he was afforded ineffective assistance of counsel, he must show that (1) counsel’s performance was deficient in that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment and (2) the deficient performance must have resulted in prejudice so pronounced as to have deprived the appellant of a fair trial, or a trial on which the outcome cannot be relied as just. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). The trial court held that even if the appellant had met the first part of the above test he did not meet the second part, prejudice, and, as a result, declined to grant post-conviction relief. The ruling was correct. Even if the attorney had immediately notified the trial court of the conversation between Dr. Harbison and the juror, and an inquiry had been held immediately, the trial court’s decision would have been not to grant a mistrial because there was no prejudice. Thus, appellant did not prove prejudice so pronounced as to have deprived him of a fair trial.

Pursuant to Rule 11(f) of the Rules of the Supreme Court and the Court of Appeals, an examination of the complete record has been made for any prejudicial error which may have been objected to below, but not argued on appeal. There is no such prejudicial error.

Accordingly, we affirm on direct appeal as well as on post-conviction appeal.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    McKelly HARRIS, Michael Joe Harris, and Larissa Harris v. STATE of Arkansas
    CR 91-114
    823 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992

      Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.

      Winston Bryant, Att’y Gen., Elizabeth Vines, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Michael Joe Harris, his wife, Larissa Harris, and his brother, McKelly Harris, appeal from judgments of conviction for aggravated robbery, burglary and, in the case of Michael and McKelly, felon in possession of a firearm. We affirm the judgments.

About 8:30 on the evening of March 8,1990, two armed men disguised with pantyhose entered the home of Bill and Yvonne Jones in Atkins. Others present were Scott and Beverly Jones, and Jerome and Judy Snyder. One of the men, whom the Snyders recognized as Michael Harris, brandished a .12 gauge shotgun and the other a chrome-plated .357 magnum pistol. Some $300 in cash and several personal items were taken. The victims were ordered to lie on the floor and were bound with grey duct tape. Moments after the gunmen left, Scott Jones and a brother who lived nearby followed and saw the lights of a vehicle stopped on the road leading to Crow Mountain. Two pairs of pantyhose were later found near where the vehicle was stopped. They managed to get close enough to identify a white Chevrolet S-10 pickup driven by a white female with long blond hair accompanied by two whité males.

Pope County officers radioed an alert and around ten o’clock officers at Clinton stopped a white S-10 pickup being driven by Larissa Harris. Michael and McKelly Harris were passengers. Michael Harris had $291 concealed in his shorts. A shotgun and a chrome-plated .357 magnum were in the vehicle and cartridges for the pistol were found in McKelly Harris’s pockets. Michael, Larissa and McKelly Harris were tried and convicted of the crimes and sentenced to concurrent terms of imprisonment totaling fifty-six years, fifteen years and fifty-six years, respectively.

On appeal, McKelly Harris and Larissa Harris rely upon a common point of error: that the trial court erred in denying a motion for a directed verdict. Michael and Larissa Harris also contend the trial court erred in allowing witnesses to remain in the courtroom, denying their motion to exclude witnesses under “the rule.”

I

MOTION FOR DIRECTED VERDICT

A motion for a directed verdict is a challenge to the sufficiency of the evidence.

We affirm that trial court’s denial of a directed verdict if there is substantial evidence to support the conviction. Substantial evidence is evidence of a sufficient force that it will compel a conclusion one way or another, inducing the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). We review the evidence in the light most favorable to the appellee, considering only the testimony which tends to support a guilty verdict. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). Circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989).

Tarentino v. State, 302 Ark. 55, 785 S.W.2d 584 (1990).

McKelly Harris

The evidence connecting McKelly Harris to the crimes is as follows: the victims were robbed by two white males, one of whom was identified as appellant Michael Harris, McKelly’s brother. Three of the victims heard one of the gunmen call the other “Kelly” during the robbery. Some of the victims observed a tatoo of a swastika on the wrist of one of the suspects. Both Michael and McKelly had tatoos resembling a swastika. McKelly was with Michael and Larissa Harris prior to the robbery and the three of them were arrested together about ninety minutes after the robbery. At the time of their arrest both Michael and McKelly Harris were dressed according to the description of the two suspects provided by the victims. McKelly Harris had cartridges from a .357 magnum in his possession and among the contents of the pickup truck were a .12 gauge shotgun, a chrome-plated .357 magnum and grey duct tape. The approximate amount of the money taken in the robbery was recovered from the person of Michael Harris. The evidence, while circumstantial, is entirely sufficient to deny a motion for a directed verdict and submit the issue to the jury.

Larissa Harris

Larissa Harris was convicted as an accomplice to the crimes of aggravated robbery and burglary. While the evidence of her guilt, like McKelly Harris, is circumstantial rather than direct, that is sufficient if substantial. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

Michael Harris testified at trial. While he denied much of the state’s evidence, he admitted being at the Jones residence on March 8,1990, and striking both Scott Jones and Jerome Snyder. He acknowledged that it was Larissa who was driving the pickup. There was other testimony that Larissa was with Michael and McKelly at various times during the day, that her hair at that time was long and blond. Moments after the incident two of the victims saw the S-10 pickup near the scene driven by a white female with long blond hair with two white males as passengers. Larissa Harris was driving the pickup some ninety minutes later when the trio was arrested at Clinton. A shotgun and chrome-plated .357 magnum identified as weapons used in the robbery were in the truck, as well as grey duct tape similar to that used to bind the victims. Additionally, the S-10 was registered in the name of Larissa Harris and the .12 gauge shotgun had been purchased by her. The verdicts as to the guilt of Larissa Harris as an accomplice are supported by substantial evidence.

II

At trial the defendants asked for the exclusion of witnesses. Ark. R. Evid. 615. On appeal, Michael and Larissa Harris argue that all six individuals present at the robbery should not have been permitted to remain in the courtroom.

The state relies on Ark. R. Evid. 616:

Right of victim to be present at hearing. Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen years of age, that minor victim’s parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.

Appellants argue that not all of the individuals present when the robbery occurred were victims. We disagree. In summary, the proof was that money was taken from some of the victims, two were struck with the guns when they did not respond quickly enough, all were threatened with death if they withheld any money, and all were ordered to lie on the floor where their hands were bound behind them.

Aggravated robbery occurs when robbery is committed by one who is armed or pretends to be or who inflicts or attempts to inflict death or serious physical injury. Ark. Code Ann. §§5-12-102 — 103 (1987). Robbery does not require that each victim, or even one victim, be deprived of property. As appellants concede, robbery has been redefined under Arkansas law by shifting the emphasis from the taking of property to the threat, express or implied, of physical harm to the victim. It is plain enough that these individuals were victims within the meaning of Rule 616.

Affirmed.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Marc Stephen DAVASHER v. STATE of Arkansas
    CR 91-5
    823 S.W.2d 863
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992

      Daniel D. Becker, for appellant.

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

The appellant, Marc Stephen Davasher, was convicted of capital murder of Loretta Hignight and her daughter, Bonnie Hignight Hamilton, and burglary of their home. Devasher raised eight points on appeal, contending the Trial Court erred by (1) not directing a verdict in his favor on the burglary charge because there was insufficient evidence of an unlawful entry, (2) not granting a motion to suppress evidence taken from the front porch of his mother’s home, (3) not granting a motion to suppress evidence consisting of blood, saliva, hair, and other substances taken from his body because defense counsel was not notified that these samples would be taken, (4) refusing to grant a mistrial when a serologist referred to “suspected marijuana seeds” seized from his apartment, (5) allowing a forensic odontologist to testify he could not rule out the conclusion that bite marks located on Davasher’s leg were inflicted by the victims’ dog, (6) allowing two counselors to testify in violation of the psychotherapist-patient privilege, (7) not granting a motion for acquittal or a directed verdict on the ground of mental disease or defect, and (8) allowing a criminologist to testify that the victims’ hairs were found on Davasher’s clothes when there was no evidence as to how the witness had received the victims’ hairs which were used for comparison.

We affirm the conviction. There was substantial evidence from which the jury could have concluded Davasher unlawfully entered the Hignight residence. Because the evidence was seized from his mother’s home, Devasher has no standing to assert the alleged illegality of the search. We find no prejudice in the failure to notify defense counsel that body substance samples would be taken from Davasher. The admonishment given by the Trial Court to the jury cured any possible prejudice which might have resulted from the testimony regarding the suspected marijuana seeds. We further conclude the scientific testimony regarding dog bite identification was reliable. As to the psychotherapist-patient privilege, Davasher has waived the privilege by raising mental disease or defect as a defense. The Trial Court was not required to enter a judgment of acquittal on the ground of mental disease or defect, and we find substantial evidence to support the jury verdict on this issue. On the final point, we find no abuse of the Trial Court’s discretion as the chain of custody and foundation for introduction of the physical evidence in question were sufficient.

On the morning of September 14, 1988, Bonnie Hamilton called the Hot Springs Police Department at approximately 8:30 and told Sergeant Harold Turner her ex-boyfriend was knocking on the front door of the home at 741 Linwood, and he had a knife. Hamilton’s mother, Loretta Hignight, made a second call a few minutes later and told Turner her daughter’s ex-boyfriend was breaking into their house and wanted to kill someone.

Officer Tim Hoover was the first to arrive at the scene where he found the front door of the house standing open. After searching the rooms, he went to the back door and saw the bodies of Hamilton and Hignight lying side by side in the back yard. He further observed severe cut wounds on the victims’ heads and bodies. The family dog, Scooter, was found between the bodies, whimpering.

Marc Davasher lived in an apartment at 135 Watt Street, one block from the Hignight residence. One of Hamilton’s friends, Paula Pendarvis testified Hamilton seemed scared and told her Davasher was “really strange.” Another friend, Jerry Stouffer, testified he saw Hamilton and Davasher together only one week before the crime.

Around 9:00 a.m. on the 14th, Davasher went to a liquor store located three blocks away from the Hignight residence and bought a six pack of beer. The owner of the store stated Davasher seemed nervous. Davasher was interviewed briefly by a police officer after leaving the liquor store. He calmly told the officer he had been at the liquor store. He was holding a package of beer over his chest.

Davasher’s mother became worried about her son that morning, so she called Chris Bonney, one of his counselors at the Garland County Mental Health Center. Mrs. Davasher told Bonney “Her son was in a bad way,” and she asked Bonney to go with her to check on him. Mrs. Davasher and Bonney went to Davasher’s apartment on Watt Street. By that time, several police cars had arrived at the Hignight’s home on Linwood. Mrs. Davasher and Bonney went into the apartment where Bonney observed severe scratches on Davasher’s chest and injuries on his hands.

Bonney then went outside and told Officer Larry Douglas that a patient living nearby, Marc Davasher, appeared very upset and was not taking his medication. Bonney described Davasher’s physical condition and told the officer Davasher might have had something to do with the crime. Bonney came back into the apartment and told Davasher the police were coming to each house in the neighborhood to ask questions about a crime committed on Linwood. Mrs. Davasher then said “Let’s go,” and she picked up some clothes lying on the floor. Mrs. Davasher took her son to her house.

After arriving at her house, Mrs. Davasher called Norma Joyce, another counselor of Davasher at the Mental Health Center. She asked Joyce to come see her son. Joyce was afraid to go to the house alone because she believed Davasher might be violent. By this time, officers had received information that Davasher might have been Hamilton’s ex-boyfriend. Officer Douglas and Investigator Birdsong accompanied Joyce to the house, and Mrs. Davasher let them inside to speak to Davasher. One officer stated Davasher looked like he had been crying. The officers observed fresh scratches on Davasher’s chest and injuries on his hands. They observed Davasher’s fingers were blistered from burns.

Birdsong asked Davasher if he would go to the station and answer some questions. At first Davasher agreed to go, but he later refused and was placed under arrest. When the officers were leaving the house with Davasher in custody, they seized some wet clothes lying on the front porch. The clothes included basketball shoes, blue jeans, blue shorts, white shorts, a black pullover shirt, and two pairs of underwear. Birdsong testified Mrs. Davasher told him the clothes belonged to her son. There was evidence that Davasher frequently stayed at his mother’s house. In the back seat of the police car, Davasher told Officer Larry Selig, “Things didn’t turn out the way they were supposed to,” and “I read the Bible.”

The day after the crime officers searched Davasher’s apartment pursuant to a warrant. They seized an envelope with the name “Bonnie” written twice. Lisa Calhoun, a forensic serologist, obtained scrapings from Davasher’s patio door which later revealed the presence of blood. A machete was found in bushes near the crime scene. No fingerprints were found on the knife, but it also tested positive for blood. Joyce testified Davasher once told her he owned a machete. Donald Smith, a criminologist with the Arkansas State Crime Laboratory, found evidence of Hignight’s hair on Davasher’s pullover sweater. He also found evidence of Hamilton’s hair on Davasher’s blue shorts.

The State filed a motion for blood, hair, saliva, and other body substance samples to be taken from Davasher. Included in the motion was a request for impressions and photographs of wounds located on Davasher’s ankles, legs, and hands. The State requested this evidence to prove by scientific testimony that a wound located on Davasher’s leg was a bite inflicted by the Hignights’ dog, Scooter. Dr. Richard Glass, a forensic odontologist, was allowed to testify that he could not rule Scooter out as the dog that bit Davasher.

Davasher filed a notice to raise mental disease or defect as a defense, and he was sent to the State Hospital for evaluation. On November 9,1988, Dr. David Pritchard determined that because Davasher suffered from paranoid schizophrenia, he could not cooperate with an attorney in the preparation of his defense and could not understand the nature of the charges against him. On December 1, 1989, Dr. Marino, a psychiatrist at the State Hospital, determined Davasher competent to proceed. Dr. Marino also found that at the time of the commission of the offenses, Davasher lacked the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law. On March 2,1990, Davasher filed a motion to dismiss and a motion for judgment of acquittal due to mental disease or defect. Davasher also filed a motion to suppress evidence taken from his mother’s residence and a motion to suppress evidence taken from his person. The motions were denied.

Davasher introduced medical evidence at trial that because he suffered from paranoid schizophrenia, he could not conform his conduct to the requirements of law or appreciate the criminality of his actions. There was no medical evidence to the contrary. Dr. Marino stated that, at the time of the offenses, Davasher was under the influence of psychotic symptoms. He further stated Davasher was tortured by religious delusions. Dr. Marino could not remember anyone at the State Hospital who disagreed with this conclusion. Dr. Hall, Director of Forensic Services at the State Hospital, testified Davasher suffered from paranoid schizophrenia and could not conform his conduct to the requirements of the law. Dr. Stephens, a clinical psychologist who examined Davasher initially at the State’s instance, agreed with this diagnosis. Despite this evidence, the jury found Davasher guilty of capital murder and burglary and imposed a life without parole plus twenty years sentence.

1. Evidence of burglary

A person commits burglary, as defined by Ark. Code Ann. § 5-39-201 (1987), “if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Davasher contends a directed verdict should have been granted on the burglary charge because there was no showing he entered the house occupied by Hamilton and Hignight.

On appeal from a denial of a directed verdict, we look to see if there is any substantial evidence to support the verdict. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). Substantial evidence has been defined as being of sufficient force and character to compel a conclusion one way or the other, forcing the mind to pass beyond suspicion or conjecture. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).

Circumstantial evidence may constitute substantial evidence. Summers v. State, 300 Ark. 525, 780 S.W.2d 541 (1989); Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). For circumstantial evidence to be sufficient to support a finding of guilt in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every other reasonable hypothesis is for the finder of fact to determine. Summers v. State, supra; Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

The circumstantial evidence of an unlawful entry was sufficient in this case. Hamilton told the police that an ex-boyfriend was knocking on her front door and had a knife. Officer Hoover testified the front door was standing open when he arrived. It is reasonable to assume that the calls to the police were made from inside the house. Because the victims’ bodies were later found outside the rear of the house, the jury could have reasonably inferred Davasher forcibly entered the front door and chased the victims outside.

2. Standing

As the officers were removing Davasher from his mother’s home, they saw some clothing on the porch which was “soaking wet.” Mrs. Davasher identified the. clothes as belonging to her son. The clothing was seized, and from it the evidence described above connecting Davasher to the crime was obtained. Davasher contends his rights were violated because the officers had neither a warrant nor permission to search the premises.

Evidence should be excluded when the Court finds that an unlawful search or seizure violated the defendant’s constitutional rights. The defendant’s rights are violated if the challenged conduct invaded his legitimate expectation of privacy. State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990). A person’s Fourth Amendment rights are not violated, however, by the introduction of damaging evidence secured by the search of a third person’s premises or property. Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990), citing Rakas v. Illinois, 439 U.S. 128 (1978).

In Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), this Court held an individual had no standing to contest a warrantless search and seizure because there was no showing that the person owned or leased the searched premises. Furthermore, there was no showing the person maintained any control over the premises.

The mere fact that Davasher frequently stayed at his mother’s home does not give him a reasonable expectation of privacy in the premises. Davasher did not show that he owned, leased, or maintained control over the house. The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights have been violated by the challenged search or seizure, State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986), and that has not occurred in this case.

3. Failure to give notice

Davasher argues the blood, saliva, hair, and other body substances taken from him shortly after his arrest should not have been admitted into evidence because they were taken without notice to his counsel. Davasher also contends the Trial Court’s order allowing samples to be taken did not specifically refer to photographs and castings which were taken of the alleged dog bite on his leg, thus these specific items of evidence should have been suppressed.

Arkansas Rule of Criminal Procedure 18.1(b) (1991) states in part, “whenever the personal appearance of the defendant is required to take samples of his blood, hair, and other materials of his body, reasonable notice of the time and place of the appearance shall be given to the defendant and his counsel.” Defense counsel stated he had not been notified. The prosecutor’s predecessor who was in office when Davasher was arrested could not recall whether notice to counsel had been given.

The issue is whether suppression of the evidence is an appropriate remedy for a violation of Rule 18.1 (b). The standard of review on imposing sanctions for discovery violations is whether there has been an abuse of discretion. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982).

At the suppression hearing, defense counsel argued that the failure to notify him of the taking of samples was “prosecutorial misconduct” for which the remedy was suppression of the evidence. He stated that spontaneous statements made by Davasher during the taking of the evidence would not have been made if he had been present to advise his client.

The Trial Court suppressed the statements made by Davasher at the time the physical evidence was taken but refused to suppress the physical evidence because he found no prejudice resulting from the failure to notify defense counsel.

When there has been a failure to comply with discovery procedures, a trial court is not required to suppress evidence unless prejudice will result. Hall v. State, 306 Ark. 329, 811 S.W.2d 318 (1991). At the general suppression hearing during which a number of motions to suppress were considered with respect to various items of evidence, defense counsel did not suggest how prejudice might have occurred from his not being present when the samples were taken from Davasher. In reviewing the transcript, however, we recognized that defense counsel, at a mid-trial suppression hearing with respect to dog bite evidence, asserted he would have been in a better position to cross-examine the State’s expert witness if he had been present when the physical evidence was taken. Defense counsel’s statement was made in the context of objecting to not being provided access to slides depicting the casts taken of Scooter’s dentition and the area of Davasher’s leg which allegedly suffered the bite.

To solve the problem, the Trial Court agreed to provide defense counsel funds for an expert witness to testify on Davasher’s behalf regarding the dog bite evidence. At the conclusion of the colloquy between the Court and defense counsel, defense counsel was asked if his objection was satisfied, and he agreed that it was. Defense counsel cross-examined the State’s expert with respect to the dog bite evidence. Later in the trial, defense counsel announced he would not present a rebuttal expert after all because his cross-examination of the State’s expert was sufficient. In these circumstances, we cannot conclude that prejudice resulted from the failure to notify counsel of the taking of the samples, especially in view of the apparent waiver of the objection.

The Trial Court recognized that the order allowing samples to be taken did not specifically refer to taking photographs and castings of Davasher’s leg. The order, however, did refer to the motion which requested these things. Arkansas Rule of Criminal Procedure 18.1(a) requires a judicial officer to order a defendant to submit to taking samples. We find no error in the Trial Court’s conclusion that the evidence which was the subject of the order could have easily been determined by referring to the motion.

4. Mistrial

Lisa Calhoun, a serologist called by the State to testify about body fluids she had found and identified at Davasher’s apartment and on the machete found in the vicinity of the crime, revealed in a pre-trial hearing that she located “suspected marijuana seeds” in Davasher’s apartment. The State agreed not to introduce this evidence at trial. An opening question by the prosecution to Ms. Calhoun was:

Q: First of all, I would like for you to take it one step at a time. If you would, please, ma’am, tell me what you collected [from Davasher’s apartment] and how you did it on each individual item.

To which she responded:

A: The first thing that I collected were suspected marijuana seed —

Defense counsel objected at that point and moved for a mistrial. The Trial Court denied the motion and admonished the jury to disregard the statement.

In Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), we wrote:

Declaring a mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Brown v. State, 259 Ark. 464, 534 S.W.2d 207 (1976).

Had the question in this case been solely whether Davasher was the person who performed the killing, we could easily reject the argument that a mistrial should have been granted. The question is closer, however, in view of the fact that Davasher pleaded not only not guilty, but not guilty by reason of insanity. We recognize that the introduction of evidence of illicit drug use might have affected the jury’s decision with respect to the insanity defense.

A review of our cases where similar incidents have occurred, and a trial court has refused to grant a mistrial, shows a balancing approach. See, e.g., Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983); Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988). As indicated in the Free case, a trial court must balance the curative effect of the admonition given to the jury against the prejudice which might have resulted from the improper testimony. On appeal, we must decide whether a trial court abused its discretion in this weighing process or whether there has been a showing of “manifest prejudice” resulting from the objectionable evidence coming before the jury.

In this case, as will be discussed below, Davasher put on a very strong case of mental illness, and the jury heard no further testimony about any possibility of his mental condition having been drug induced. While we cannot know with certainty the effect of the admonishment given to the jury to disregard the statement about marijuana seeds being found in Davasher’s apartment, we cannot conclude there was “manifest prejudice” and abuse of discretion in failure to grant a mistrial.

5. Admissibility of dog bite evidence

Dr. Glass, the State’s expert witness with respect to the evidence that Scooter bit Davasher, specialized in forensic odontology. A forensic odontologist identifies bodies by dental examination and also identifies bite marks. Dr. Glass is a licensed dentist and is board certified by the American Academy of Oral Pathology. At the time of trial, he had been qualified to testify about human bite mark identification six or seven times. He had testified concerning dog bite identification twice.

Dr. Glass obtained a cast impression of Scooter’s mouth and of the bite marks on Davasher’s leg. He believed the injury marks on Davasher’s leg were caused by a bite based on the arc shape of the wound. After comparing the two impressions and, according to his testimony, attempting in every possible way to exclude Scooter as having caused the bite mark, Dr. Glass testified he could not rule Scooter out as the dog that bit Davasher.

Davasher argues the scientific methodology used by Dr. Glass had not achieved general acceptance within the scientific community, was not helpful to the trier of fact, and was prejudicial. The State responds, citing our recent holding in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).

In the Prater case, we announced the standard for determining the admissibility of novel scientific evidence, specifically DNA identification evidence. A relevancy approach was adopted which focuses on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse, or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case. Reliability is the critical element.

There is a big difference between DNA identification and dog bite identification. A glance at the discussion of the evidence evaluated in the Prater case reveals that testimony relating to DNA has more potential for confusing the jury than testimony relating to dog bites. With the exception of the identification of the blood and microbes, which were not particularly significant here, the jury could see for itself the photographs and the casts of the wound located on Davasher’s leg and the photographs and casts of the dog’s dentition and draw conclusions without complicated scientific explanation.

Applying the Prater rationale, we cannot agree that the procedures used by Dr. Glass were unreliable. Dr. Glass testified the same basic procedures are used for analyzing dog bites and human bites. Human bite mark identification evidence is widely accepted by courts. See, e.g., People v. Marx, 54 Cal. App. 3d 100, 126 Cal. Rptr. 350 (1915); People v. Milone, 43 Ill. App. 3d 385, 356 N.E.2d 1350 (1976); People v. Middleton, 54 N.Y.2d 42, 429 N.E.2d 100, 444 N.Y.S.2d 581 (1981); P. Gianelli & E. Imwinkelried, Scientific Evidence, § 13-4 (1986).

There is little danger that bite mark identification testimony will confuse, overwhelm, or mislead the jury. The methodology is relatively simple. There is a clear connection between the evidence in this case and the disputed factual issue. The disputed issue was whether Davasher had been bitten by the dog in question. The evidence was helpful in determining it could have occurred. The fact that Dr. Glass could not positively state that Scooter bit Davasher goes only to the weight of the evidence, not its admissibility.

6. A.R.E. 503

Davasher contends the Trial Court erred by allowing Bonney and Joyce to testify in violation of the psychotherapist-patient privilege. Arkansas Rule of Evidence 503(b) (1991) provides in part that “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition.” Section (a)(4) defines confidential communication as “not intended to be disclosed to a third party.” Section (d)(3) provides in part “[t]here is no privilege under this rule as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense.”

Bonney testified about what he observed upon entering Davasher’s apartment. He disclosed no confidential communications made by Davasher. The real aim of the physician-patient privilege and presumably the same applies to the psychotherapist, is to prevent a doctor from repeating what a patient told him in confidence. Oxford v. Hamilton, 297 Ark. 512, 763 S.W.2d 83 (1989); Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982).

Joyce testified that when Davasher was one of her patients he told her he owned a machete. Joyce testified the conversation was not part of Davasher’s diagnosis or treatment. If the statement was not made for the purpose of diagnosis or treatment, it was not privileged. If it was made for either of those purposes, it was privileged, but the privilege was waived by claiming mental disease or defect as a defense.

7. Mental disease or defect

Davasher next argues the Trial Court should have granted his motion to acquit on the basis of mental disease or defect. He also asserts the Trial Court should have granted a directed verdict on the issue of mental disease or defect because he introduced uncontroverted medical evidence that he was a paranoid schizophrenic.

a. Motion to acquit

Although the medical testimony regarding Davasher’s mental illness was not rebutted by other medical testimony, there was no requirement that the Trial Court enter a judgment of acquittal. Arkansas Code Ann. § 5-2-313 (1987) provides a court “may” enter a judgment of acquittal on the grounds of mental disease or defect. “[T]he statute permits the trial judge to acquit the defendant in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear.” Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991); Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981). Denial of the motion was clearly within the Trial Court’s authority and discretion.

b. Directed verdict

Mental disease or defect is an affirmative defense which must be proven by a preponderance of the evidence. Ark. Code Ann. § 5-2-312 (1987); Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979). The question on appeal from a denial of a directed verdict is whether there is substantial evidence to support the verdict. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981). In support of the verdict, the State argues there was evidence that Davasher bought a machete six months before the crime, that he attempted to wash his clothes after the crime to remove incriminating evidence, and that he burned his hands so the police would have trouble obtaining his fingerprints. These steps taken to avoid identification as the culprit indicate Davasher was cognizant of his wrongdoing at the time the crime was committed. Davasher responds by summarizing the medical evidence, which was unrefuted by other medical evidence, that he was not legally responsible for his actions at the time of the offenses.

We recognize that the medical evidence on the issue of insanity was highly persuasive. It has consistently been held, however, that a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Even when several competent experts concur in their opinions, and no opposing expert evidence is offered, the jury is bound to decide the issue upon its own judgment. Testimony by expert witnesses is to be considered by the jury in the same manner as other testimony and in light of other testimony and circumstances in the case. The jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it they believe to be true. Robertson v. State, 304 Ark. 332, 802 S.W.2d 448 (1991); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

8. Foundation evidence

Donald Smith, a criminologist with the State Crime Laboratory, testified that he identified hairs found on Davasher’s clothing as coming from the victims. Davasher argues there was no basis for Smith’s assertion that the hair samples he received from the medical examiner for comparison were actually the victims’ hairs.

Smith testified he compared samples taken from Hignight with hair found on Davasher’s sweater and found a match. Thereafter, he stated he compared samples taken from Hamilton with hair found on Davasher’s shorts and found a match. Although an objection was raised to the later testimony about Hamilton’s hairs being found on items belonging to Davasher, no objection was made when Smith first testified that the hairs from Davasher’s sweater were Hignight’s. To preserve a point for review, a proper objection must be asserted at the first opportunity after the objectionable matter occurs. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). The objection was waived with respect to Hignight’s hair samples; the question remains with respect to those of Hamilton.

Smith testified he received the Hamilton hair samples from the medical examiner. The medical examiner testified he took hair samples from Hamilton’s body. Although the issue is framed as whether there was a proper foundation for Smith’s testimony, it is essentially a chain of custody argument. The ultimate argument made by defense counsel at trial was that the medical examiner, not Smith, took the hairs from the victim; therefore, Smith’s basis for assuming that the hairs he used for comparison purposes were taken from the victims was the hearsay statement of the medical examiner.

The purpose of establishing a chain of custody is to prevent the introduction of evidence which is not authentic. Minor discrepancies in the chain of custody are for the Trial Court to weigh. Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989). In Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990), we could not tell precisely the nature of the appellant’s objection to a serologist’s testimony regarding blood samples. We surmised the objection had to do with the adequacy of the foundation laid for the testimony. We wrote:

Appellant may be arguing that [the] foundation [which was laid] was inadequate. As in Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979), appellant does not allege that the samples had been tampered with and there is nothing in the record to suggest such a possibility. It is not necessary that every moment from the time evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come into contact with it. It is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. The trial judge did not abuse his discretion in allowing the result of the serological test of appellant’s blood sample.

We find the showing of the chain of custody was sufficient, and thus we agree with the State’s position that a sufficient foundation had been laid for the introduction of the hair samples taken from the victims.

9. Rule 11(f)

In accordance with Supreme Court Rule 11(f), the record has been reviewed for all errors prejudicial to the defendant, and none have been found.

Affirmed.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. I dissent. Over the years the insanity defense has been whittled away until, with this case, virtually nothing is left.

Our state statutes set out an elaborate scheme for determining mental disease at the time of the offense. See Ark. Code Ann. § 5-2-393, et seq. (1987) and (Supp. 1991). The salient points of the procedure are these:

a. Evidence of a mental disease is admissible to prove whether the defendant had the culpable mental state to commit the offense. § 5-2-304.

b. Once the defendant files notice of a mental-disease defense, the trial court orders a psychiatric examination. §§ 5-2-304, 5-2-305 (Supp. 1991).

c. The report of the examiner includes whether the defendant had the ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time of the offense. § 5-2-305 (Supp. 1991).

d. Lack of capacity due to mental disease is an affirmative defense. § 5-2-312 (1987).

e. Lack of capacity due to mental disease at the time of the offense may result in a judgment of acquittal by the court. § 5-2-313 (1987).

f. Commitment of the defendant to the state hospital, upon a judgment of acquittal, may be commenced by the circuit court with resolution resting in the probate court. § 5-2-314 (Supp. 1991).

g. Release or discharge after commitment lies with the probate court after notice to the prosecuting attorney and defendant. § 5-2-315 (Supp. 1991).

This case represents the first time that this court has upheld an appellant’s mental" capacity in the face of all expert or lay testimony to the contrary. In Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991) the state presented the testimony of a psychiatrist who answered, hypothetically, that a person suffering from severe schizophrenia like the accused could have killed either because of delusion or longstanding argument. In Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991), Dr. Marino, staff psychiatrist for the state hospital, testified that the defendant was neither schizophrenic nor psychotic at the time of the killing. Similarly, in three other cases where mental disease and capacity to commit the crime were at issue, state hospital personnel found the defendants to be “without psychosis.” Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981); Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981); Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980).

The appellant hacked to death two women with a machete. He did this in the women’s back yard in broad daylight. He had first harassed the women by beating on their front door, giving them time to call the Hot Springs police twice. After the killings he had rushed wildly away and cut his stomach severely when he apparently dove over a barbed wire fence. At some point, either before or after the killings, he burned all ten fingers on a hot pan or hot stove. He changed clothes, and the clothes he had been wearing were piled by his mother on her front porch. They were wet. Thirty minutes after the savage killings, the appellant bought a six pack of beer and seemed only a “little nervous” to the salesman. These facts are byzantine on their face.

Exacerbating the abnormality of these events were the circumstances of his arrest within two to three hours of the deaths. He told Sergeant Larry Selig of the Garland County Sheriff’s office: “I read the Bible. Anyone that conquers the Bible can conquer the world.” When Hot Springs police officer Larry Douglas walked into the house where the appellant’s mother lived, he found him sitting in a chair drinking a beer with his shirt open. The gouges on his chest were in plain view.

The defense notified the prosecuting attorney that it would present a mental disease defense. On September 27, 1988, the appellant was admitted to the state hospital for evaluation. He was diagnosed as suffering from paranoid schizophrenia, which was not drug related, and remained in the state hospital for the next fifteen months because he was not fit to stand trial. On December 1,1989, the staff psychiatrist advised the court that he could be tried.

State hospital psychiatrists and staff were all in agreement according to Dr. John C. Marino and Dr. Wendell Hall, two staff psychiatrists, that the appellant was not responsible for his actions the day of the slayings due to mental disease and specifically due to paranoid schizophrenia. Dr. Marino was particularly graphic in his testimony. The appellant hallucinated, heard voices from God, and suffered from delusions. His preoccupation with fanatical religion was flagrant. He was obsessed by the religious concept of the rapture and was convinced that before the rapture there must be human sacrifice. Dr. Marino testified that the appellant was put on heavy dosages of anti-psychotic medicine.

The state hospital’s discharge summary filed by Dr. Marino on the appellant reads, in part, thus: “He was delusional about Christ, executions, sacrifices, preachings, and being ‘tormented’ by the devil and his own religious beliefs.” At the time of discharge for trial, he was still complaining of auditory hallucinations “helping me out and not persecuting or commanding in nature.”

Both Dr. Marino and Dr. Hall disputed any suggestion that the appellant might be faking his condition because he was a patient at the state hospital for more than fourteen months and was observed round-the-clock by clinicians.

The prosecutor presented no expert opinion to offset the defense witnesses. Nor did the state present lay testimony of competency, though this would have been clearly admissible. See Moore v. Duckworth, 443 U.S. 713, (1979); Avery v. State, supra.

We have held that insanity is an affirmative defense to be proven by a preponderance of the evidence. Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981). We have further held that the jury is free not to accept the testimony of expert witnesses as conclusive or to give expert testimony more weight than other testimony Robertson v. State, supra. Finally, when a jury rejects an insanity defense, the verdict must be supported by substantial evidence to support the jury’s finding that the defendant was legally responsible for his acts when the crime was committed. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

What the majority relies on as substantial evidence to support the jury’s verdict is flimsy indeed. The majority cites a machete purchased six months before the slayings as evidence. Yet the purchase was clearly so stale in time as not to be meaningful. The majority then looks to the appellant’s burned fingers and wet clothes as acts of concealment suggestive of furtive activity and, therefore, mental competency. That the fingers were burned is certainly not the act of a sane man. And the record is devoid of proof as to when this was done. The piling of wet clothes on Mrs. Davasher’s front porch in full view of law enforcement is exactly the opposite of a clandestine act. Moreover, it could well have been the mother who washed the clothes. When subjected to scrutiny, these circumstances amount to little more than a handful of fog and certainly do not constitute substantial evidence.

The end result of our failure to enforce the insanity defense is that we are incarcerating the criminally insane in our penitentiary system which is not equipped to handle such inmates. Prison personnel, under these circumstances, have no alternative but to place these inmates in maximum security and heavily medicate them. Public policy is not well served by this solution, and the General Assembly did not intend it. Until the General Assembly removes mental disease as a defense to criminal activity and repeals Ark. Code Ann. § 5-2-301, et seq. (1987), we should enforce it.

There was no substantial evidence to go to the jury to support the jury’s finding of lack of mental disease. The circuit court erred in refusing to direct a verdict in favor of the appellant on mental disease. I would reverse with instructions to the circuit court to commence commitment proceedings under Ark. Code Ann. § 5-2-314 (Supp. 1991).

       The appellant had been a patient before at the state hospital in August 1986 for amphetamine-induced delirium and was currently in treatment in Hot Springs at a mental health center and on prescribed medication.


author: David Newbern, Justice.

text:
    Derrick Dewayne GILBERT v. STATE of Arkansas
    CR 91-223
    823 S.W.2d 875
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992

      William L. Wharton, for appellant.

      Winston Bryant, Att’y Gen., by; Melissa K. Rust, for appellee.
   David Newbern, Justice.

The issue in this case is whether the appellant, Derrick Dewayne Gilbert, should have been evaluated a second time to determine his mental competency to stand trial. The issue arose because shortly before he was to be tried Gilbert appeared to his counsel to be unable to communicate. Gilbert admitted at the trial that he had been faking mental illness. The Trial Court was unpersuaded of the necessity of a second psychiatric evaluation. We affirm the judgment.

Gilbert, an habitual offender, was charged with kidnapping, aggravated robbery, theft of property, theft by receiving, and being a felon in possession of a firearm. The evidence showed that he and an accomplice forced 17-year-old Robert Jason Walton to drive them from a mall parking lot at gunpoint and then stole his wallet and the automobile he was driving. Walton was released some five miles from the scene of the kidnapping. At least one shot was fired, either at Walton or to scare him, upon his release.

Walton described his assailants to the police, and Gilbert was apprehended in the act of entering the stolen automobile a few days later. Gilbert pleaded not guilty by reason of mental disease and was committed to the State Hospital for observation. The resulting report stated he was competent and that he had made and was capable of making suicidal gestures to avoid incarceration.

After the case was set for trial Gilbert’s first attorney withdrew. New counsel visited with Gilbert the day before trial and observed him to be incapable of communication. A supplemental commitment on the basis that Gilbert was unable to assist in his own defense was requested.

A hearing was held to determine whether further evaluation was required. Gilbert’s attorney and a fellow attorney who was with him at the jail testified of their observations, their efforts to communicate with Gilbert and his apparent inability to communicate with them due to his mental state. Gilbert testified he could not remember his date of birth, what he was charged with, or the incident which gave rise to the charges. He also testified about drugs he was taking for his mental illness and the fact that he had seen psychiatrists all his life.

The State introduced testimony of a deputy prosecutor that Gilbert had previously been incarcerated with another prisoner who faked mental illness and had inspired Gilbert to do so on a previous occasion to avoid trial and incarceration.

There was no error. When Gilbert’s counsel stated to the Court his reasons for thinking further mental evaluation was needed, a hearing was held. Gilbert contends the Court had thus made a finding that proceedings were to be suspended because, in the words of Ark. Code Ann. § 5-2-305(a)(2) (Supp. 1991), “there [was] reason to doubt his fitness to proceed.” He contends the Statute required the Court, after making that finding, to send him for further psychiatric evaluation. In our view, the Court had made no such finding at that point. The purpose of the hearing was to determine whether such a finding was appropriate. The Court’s remarks show that Gilbert had failed to demonstrate he was anything other than a malingerer. It was proper for the Court to consider the prior medical opinion. Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988).

Obviously, there is a very fine line between the determination which must be made by a trial court that there is “reason to doubt” an accused’s fitness to proceed and the determination of competency which must be made by medical authorities after a court has determined “reason to doubt.” In the circumstances of this case, it seems clear the “reason to doubt” determination was being made. Given Gilbert’s subsequent admission of deceit, we can hardly find prejudice in the Court’s conclusion that no further evaluation was needed.

Affirmed.


author: Tom Glaze, Justice.

text:
    Raymond C. SANDERS v. STATE of Arkansas
    CR 91-122
    824 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992

      Robert N. Jeffrey, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an appeal from the appellant’s conviction of two counts of capital murder and death penalty sentences for each count. Appellant raises three issues on appeal: 1) there is insufficient evidence to support his convictions; 2) the trial court erred in denying his motion for funds to obtain expert psychiatric assistance in preparing his defense; and 3) during the sentencing phase of the trial, the trial court erred in permitting evidence of the appellant’s conviction of capital murder committed subsequent to the present murders. Because we find merit only in the appellant’s third argument, we affirm the jury’s guilty verdict, but remand for resentencing. Wilson v. State, 295 Ark. 692-A, 752 S.W.2d 762 (1988) (Supplemental opinion on petition for rehearing).

The appellant properly preserved his sufficiency of the evidence issue by timely making a directed verdict motion at the end of the state’s evidence and at the end of the trial. ARCP Rule 36.21. As this court has stated numerous times, we treat directed verdicts as challenges to the sufficiency of the evidence. See, e.g., Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). In criminal cases, this court affirms where there is substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). Substantial evidence is evidence which is of sufficient force to compel a conclusion one way or another and forces or induces the mind to pass beyond suspicion or conjecture. See Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In determining whether there is substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). It is permissible for the court to consider only the testimony which supports the verdict of guilt. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Even circumstantial evidence may be sufficient to sustain a conviction, as it may constitute substantial evidence. Id. Whether the circumstantial evidence excludes every other reasonable hypothesis is for the fact finder to determine. Id.

Charles and Nancy Brannon were killed by gunshot wounds. Charles’ body was found on the Rockport church grounds on November 21,1989, and Nancy’s body was found two days later a short distance from where the police found the Brannons’ pickup truck on Grigsley Ford Road in Malvern. The police found the Brannons’ home had been ransacked. After an investigation by the Hot Spring County Sheriffs Office, the appellant was charged with the robbery-murder of the Brannons.

To prove its case, the state was required to prove the following:

Acting alone or with one (1) or more persons, he commits or attempts to commit . . . robbery . . . , and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life;

Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1991).

At trial, the state presented Eddie Watkins who testified that, while he and appellant were incarcerated in the Hot Spring County jail, appellant confessed that he shot Charles Brannon and dumped his body and shot Nancy Brannon and took some rings from her fingers. Watkins further testified that the appellant told him that Charles Brannon always carried around a large sum of money and that the appellant took a briefcase full of money.

The state’s witness, Bobby Kirchoff, who worked at the Malvern Pawn Shop, identified the appellant as the man who came into the shop with a female on December 19, 1989, and pawned a .22 caliber automatic rifle. Kirchoff testified that he believed that the rifle the appellant pawned was the rifle the state introduced into evidence as exhibit number thirty-three. Berwin Monroe, a ballistics expert, testified that a .22 caliber shell casing recovered from the Brannons’ pickup truck had been fired by the same .22 caliber rifle. The state’s evidence also showed that the truck was covered in blood matching the Brannons’ blood types.

Further, Mark Roys, owner of the A-l Pawn Shop, related that on November 27,1989, the appellant pawned three pieces of jewelry. Through the testimony of Nancy Brannon’s two daughters, the state established that the jewelry pieces pawned by appellant belonged to their mother. The state also presented other evidence at the trial establishing that Charles Brannon was known to carry large sums of money on his person, appellant had worked for Charles and had visited the Brannons’ house many times. Additionally, two acquaintances of the appellant’s, Dorene Luster and Deloris Baker, testified that they saw the appellant with a large sum of money after the Brannons had been murdered. Baker also testified that she saw a gun and some jewelry at appellant’s house, and when she asked the appellant about the Brannon murders, appellant stated, “there were some things she didn’t need to know.”

From the evidence set out above, we clearly find no merit in thp appellant’s argument that there is insufficient evidence to support his capital murder convictions.

Next, the appellant argues that the trial court erred in denying his pretrial motion requesting the provision of funds to hire expert psychiatric assistance for his defense. The trial court did grant the appellant’s motion for psychiatric evaluation and ordered the appellant to be examined at the Southeast Mental Health Clinic in Pine Bluff. The appellant was found to be without psychosis and competent to stand trial. The examining psychiatrist found that the appellant has the mental capacity to appreciate the criminality of his conduct and was not impaired at the time of the crimes.

In arguing that the psychiatric evaluation was not sufficient, the appellant relies on Ake v. Oklahoma, 479 U.S. 68 (1985). In Ake, the Supreme Court held that when a defendant had made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a state provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one. However, the Supreme Court made it clear that the indigent defendant does not have the constitutional right to choose a psychiatrist of his personal liking or receive funds to hire his own.

With respect to the question of a defendant’s sanity at the time an offense was committed and competency to stand trial, this court has held that the statutorily provided review by a state hospital is sufficient. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). As previously stated, the appellant was examined by such a facility and found to have no problems with his sanity. The appellant is in fact arguing that he should have been allowed the “opportunity to have a second opinion.” Again, the Supreme Court did not hold in Ake that a defendant has the constitutional right to choose a psychiatrist of his personal liking or to shop around to find one who will support his insanity defense. Also, the Supreme Court made it clear that the defendant must make a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at the trial before the state is required to provide psychiatrist assistance in preparing his defense. Clearly, here the appellant has not made this preliminary showing, and in fact, the psychiatric examination exhibits that the appellant has no problems with his sanity. See Day v. State, 306 Ark. 520, 816 S.W.2d 853 (1991). In sum, under the facts of this case, the trial court gave the appellant all of the psychiatric assistance required under Ake.

Because we find no merit in the appellant’s first two arguments, we affirm his conviction for the two counts of capital murder, and now review the sentencing phase of the appellant’s trial. During this phase of the trial, the jury found that the following aggravating circumstances existed:

(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person;. . . (5) The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody.

Ark. Code Ann. § 5-4-604 (Supp. 1991). The jury found no mitigating circumstances.

To establish the previously committed felony aggravating circumstance, the state introduced into evidence appellant’s prior conviction for capital murder. The state produced no evidence concerning the murder itself, and introduced into evidence only the conviction judgment. This other capital murder for which appellant was convicted involved a murder the appellant committed on December 21, 1989 — after his crimes involving the Brannons. However, the appellant was convicted of the other capital murder charge on March 17, 1990, which was before appellant was tried for the Brannon murders. The appellant argues the state’s introduction of this other capital murder conviction was error for the following two reasons: 1) the December 21,1989 capital murder was not committed previously to the present crimes as is required by the wording of § 5-4-604(3); and 2) this other capital murder conviction used as an aggravating circumstance was later reversed by this court on March 25, 1991, in Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).

In Johnson v. Mississippi, 486 U.S. 578 (1988), the Supreme Court held that where the prosecutor only admitted the conviction judgment into evidence to establish an aggravating circumstance and that judgment was later reversed, the use of the conviction was prejudicial and the defendant was entitled to be resentenced. Such holding is clearly applicable to the case at hand. Because the only evidence presented to establish the aggravating circumstance of a previous felony was the conviction judgment which had been reversed, there is clearly error under Johnson. On this point, we mention the state’s contention that the appellant failed to cite or raise the Johnson citation of authority and argument below. However, while the Johnson cite was not provided below, appellant did present this argument to the trial court in his amended motion for a new trial, which was appellant’s first opportunity to raise the issue after this court reversed his March 17, 1990 capital murder conviction. Appellee and appellant in his reply brief furnished the Johnson citation in this appeal. Accordingly, appellant’s argument was properly preserved below and argued on appeal. Finally, because we must declare error on this point, we need not address the appellant’s argument that the capital murder was not previously committed to the present crimes as is required under § 5-4-604(3).

Anticipating that this court might find error, the state argues that we can affirm the appellant’s death sentence under the harmless error review pursuant to Ark. Code Ann. § 5-4-603(d) and (e) (Supp. 1991). Section 5-4-603(d) provides that if this court on review finds that the jury erred in finding the existence of any aggravating circumstance and the jury found no mitigating circumstances, we must conduct a harmless error review of the defendant’s death sentence by making the following determinations:

(1) Determining that the remaining aggravating circumstance or circumstances exist beyond a reasonable doubt; and
(2) Determining that the remaining aggravating circumstance or circumstances justify a sentence of death beyond a reasonable doubt.

Under provision (e) of § 5-4-603, if this court concludes that the erroneous finding of any aggravating circumstances by the jury would not have changed the jury’s decision to impose the death penalty on the defendant, then a simple majority of the court may vote to affirm the defendant’s death sentence.

Here, the remaining aggravating circumstance, as mentioned above, is that the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody. We agree that this aggravating circumstance existed beyond a reasonable doubt. The state presented evidence that the appellant had previously worked for the Brannons and had even been in their home. Clearly, the Brannons could have identified the appellant. The appellant also attempted to conceal the decedents’ bodies. Further, as we have held previously in Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), this aggravating circumstance can justify a sentence of death.

However, we are unable to conclude, under provision (e), that the erroneous finding of the aggravating circumstance would not have changed the jury’s decision to impose the death penalty. During the jury’s deliberations, the jury foreman came out and asked the trial judge the very question appellant raises in this appeal, viz., whether the jury could consider the March 17, 1990 capital murder conviction as an aggravating circumstance since that actual killing did not occur prior to the other murders. While it is impossible to surmise the amount of emphasis the jury gave this aggravating circumstance, we know it singled out that capital murder conviction in order to obtain direction from the trial judge. The jury then adopted it as an aggravating circumstance, which we must now set aside. In view of the jury’s inquiry, we are unable to conclude that the jury would have still imposed the death penalty if it had known it was limited to the aggravating circumstance that appellant committed the Brannon murders in order to avoid or prevent an arrest. Therefore, we remand for resentencing.

Under Ark. Sup. Ct. R. 11 (f), we have reviewed the rulings made against the defendant by the trial judge during the trial and we find no error. For the reasons stated above, we affirm the appellant’s convictions but reverse his death sentences and remand for resentencing.


author: Per Curiam.

text:
    Dorothy JOHNSON v. STATE of Arkansas
    CR 92-21
    821 S.W.2d 479
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992

      Appellant, pro se.

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

Appellant, Dorothy Johnson, by her attorney, John C. Goodson has filed a motion for rule on the clerk. Her attorney admits that the record was tendered late.

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

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


text:
    Lenner PARKER v. STATE of Arkansas
    CR 91-276
    823 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered January 27, 1992

      Appellant, pro se.

      Winston Bryant, Att’y Gen., Gil Dudley, Asst. Att’y Gen. for appellee.
   Per Curiam.

The petitioner Lenner Parker was convicted of delivery of a controlled substance and sentenced to twenty years imprisonment. The Court of Appeals affirmed. Parker v. State, CACR 91-48 (August 28, 1991). On December 10, 1991, petitioner filed in this court a pro se petition to proceed pursuant to Criminal Procedure Rule 37. On December 27,1991, the state filed its response in which it contended that the petition was without merit. On December 30, 1991, the petitioner filed the motion which is now before us asking to withdraw the petition. He asks to be afforded the opportunity to resubmit a “correct” petition.

The motion is denied. If this court were to permit a petitioner to withdraw a petition and submit another as soon as the state through its response pointed out deficiencies in the petition, it would be unfair to the state and open the door to an unending succession of petitions. Due process does not require this court to provide unlimited opportunities to provide post-conviction claims or prevent this court from requiring a petitioner to raise grounds for relief in the original petition. See Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989).

Motion denied.


text:
    Thomas B. HARVEY v. Bill CLINTON, Governor of the State of Arkansas; Jim Guy Tucker, Lieutenant Governor and Acting Governor When the Governor is Absent from the State; William J. “Bill” McCuen, Secretary of State; Winston Bryant, Attorney General; and the Board of Apportionment
    91-346
    827 S.W.2d 636
    Supreme Court of Arkansas
    Opinion delivered January 29, 1992

      Charles Karr and Asa Hutchinson, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for respondents.
   Per Curiam.

On January 17, 1992, petitioner filed his first amended petition and application for revision of plan of apportionment, and respondents answered, largely denying the allegations in the petition, but agreeing that the court should advance this case on its docket. Both parties apparently agree that the issues raised in this case should be resolved in advance of when the filing period for candidates commences on Tuesday, March 17, 1992.

The court is concerned because it has nothing before it except the parties’ pleadings, and it is difficult to understand from what has been provided the reason for the delay in filing the apportionment plan required under Ark. Const, art. 8. Nor is this court privy to the status of the federal litigation involving the state’s apportionment plan or why it was initiated without a final plan having been filed with the Secretary of State’s office as required under Ark. Const, art. 8, §§ 4 and 5. These questions and others arising from the parties’ pleadings must be promptly addressed to determine if this court can possibly resolve the issues raised in this proceeding prior to the March 17,1992 deadline the parties suggest. In an effort to meet the issues raised and requests made, and in view of our concern that there may already be too little time for this court to decide questions which may arise, we direct the parties’ counsel to appear Monday, February 2, 1992, at 9:00 a.m. We ask counsel to be prepared at that time to address the foregoing questions and other questions the court may have. Counsel for each side will have fifteen minutes.

Counsel are directed to make every effort to agree on a master, in the event the court deems one is required. Before a master is appointed, the parties should promptly determine what, if any, stipulations can be agreed upon so as to expedite any decisions the master must make.