text:
    Kirt WAINWRIGHT v. STATE of Arkansas
    CR 89-79
    823 S.W.2d 449
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      John Wesley Hall, Jr., by: Craig Lambert, for petitioner.

      Winston Bryant, Att’y Gen., Oían W. Reeves, Senior Asst. Att’y Gen., for respondent.
   Per Curiam.

The petitioner Kirt Wainwright was found guilty by a jury of capital felony murder in 1989 and sentenced to death by lethal injection. This court affirmed. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); cert. den__U.S. _, 111 S. Ct. 1123 (1991). Petitioner now seeks permission to proceed in circuit court pursuant to Criminal Procedure Rule 37. The petition contains some forty or more allegations, many of which petitioner concedes were raised only to satisfy procedural considerations with an eye to pursuing a petition for writ of habeas corpus in federal court should that be necessary at a later date. We will address the issues one-by-one in approximately the order raised in the petition.

Defense counsel was ineffective for failing to challenge the constitutionality of the trial court’s limitation of expenses for expert forensic, ballistic, and psychiatric testimony.

At the time petitioner was tried Ark. Code Ann. § 16-92-108 (1987) set out certain limitations on expenses and fees imposed for court-appointed attorneys for indigent clients accused of criminal offenses. Since that time we found the fee cap statute unconstitutional. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991).

Counsel for appellant requested and received funds in excess of the statutory amount allowed under the statute for expert testing and testimony for his trial, but he did not receive as much as he requested. On appeal, petitioner argued that the trial court erred in denying sufficient funds to secure the services and testimony of a psychiatric expert. We found no error. Petitioner contends that if counsel had challenged the statutory fee cap, the challenge would have been successful and the trial court would have been less hampered in awarding fees for psychiatric and forensic testing and testimony and thus counsel was ineffective. We do not accept petitioner’s conclusion.

While it can always be said that a defendant could have benefitted from more money to spend on his defense, a petitioner cannot establish that his attorney was ineffective for not securing additional funds merely by reciting testing which could have been done or witnesses which could have been called had there been more money available. Assertions of ineffective assistance of counsel must be examined in light of the criteria set out in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court held that the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The criteria apply to both capital sentencing proceedings as well as the guilt phase of a capital trial. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

To prove ineffective assistance of counsel under the Strickland standard, the petitioner must show first that counsel’s performance was deficient in that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction or death sentence resulted from a breakdown in the adversarial process that renders the result unreliable. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner has the burden of overcoming that presumption by identifying the acts and omissions of counsel which when viewed from counsel’s perspective at the time of trial could not have been the result of reasonable professional judgment. Even if counsel’s conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. A reasonable probability that, but for counsel’s conduct the result of the proceeding would have been different, is a probability sufficient to undermine confidence in the outcome.

Trial counsel sought expenses to pay for additional psychological expert testimony, to employ an independent forensic expert to study the autopsy findings, to employ a ballistics expert, and for a sociologist to help in preparing the defense and to testify in mitigation of punishment. The requests were denied, and petitioner has not demonstrated that had counsel on appeal challenged the fee cap that the judgment would have been reversed on appeal, especially since this court had previously upheld the statute’s constitutionality. Ruiz v. State, 269 Ark. 331, 602 S.W.2d 625 (1980). Trial counsel presented a zealous defense in behalf of an accused against whom there was ample evidence of guilt. Petitioner has offered no factual substantiation that convinces us that there is a reasonable probability that the outcome of either the guilt or sentencing phases of the trial would have been different had the jury heard specific testimony of a specific witness. Petitioner’s most specific assertion is that Dr. Irwin Stone, a ballistic’s expert, could have testified conclusively that an alleged accomplice Dennis Leeper fired the weapon used to kill the store clerk. This allegation, however, falls short of establishing that counsel’s failure to raise the fee cap issue on appeal deprived the petitioner of a fair trial and appeal whose outcome can be relied on as just.

Attorneys at trial were ineffective in failing to object to the trial court’s exclusion of venirepersons Steed and Johnson for cause.

Two prospective jurors, Steed and Johnson, were excused by the court after each expressed a preference for imposing a death sentence in cases where the evidence showed that the murder had been committed in the course of a robbery. Petitioner asserts that counsel should have objected under Witherspoon v. Illinois, 391 U.S. 510 (1968). In Witherspoon the Court held that a state may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed in voir dire examination that they had conscientious scruples against, or were otherwise opposed to, capital punishment. In Adams v. Texas, 448 U.S. 38 (1980); see also Wainwright v. Whitt, 469 U.S. 412 (1985), the court said that as a general proposition a juror may not be challenged for cause based on his views about capital punishment, unless those views would prevent, or substantially impair, the performance of his duties as a juror in accordance with his instructions and his oath. It is the trial court which must decide if the juror’s views would prevent or substantially impair performance of his or her duty as a juror, and great deference must be given to the trial judge who sees and hears the potential jurors. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990).

Here, Steed said that if it were proven that the accused took a life, his life should be taken too. He further stated that if the state proved its case that a life had been taken, he probably would not consider imposing a sentence of life imprisonment without parole. He also said that he would be able to follow the court’s instructions and give consideration to both life without parole and death as appropriate punishments. Venirewoman Johnson said that she believed that the state had the right to take a life as punishment for certain crimes and that she would be able to vote to impose the death penalty in a case where capital murder was proven. She further stated at one point that she would be unwilling to consider life without parole as a punishment where a life had been taken during a robbery. Although she said that she would be able to follow the court’s instructions and at least give consideration to both possible punishments, she also expressed several times a leaning toward the death penalty.

Under these circumstances, when considering the deference which must be given to the trial court which was in a position to hear the words of the venirepersons and consider their demeanor, we cannot say that the court was wrong to excuse either Steed or Johnson for cause. Moreover, it is not clear how petitioner could have been prejudiced by the trial court’s action since both the jurors clearly looked upon capital punishment with favor.

Counsel was ineffective in not raising and supporting a motion to suppress petitioner’s statements on the ground that the statements were coerced.

Counsel challenged the admissibility of four statements made by the petitioner to the police on the ground that the statements were not freely and voluntarily given. Only the fourth statement was incriminatory. After a pretrial hearing on the voluntariness of the statements, the trial court ruled that the statements were admissible. The issue of the voluntariness of the second statement and the inculpatory fourth statement was raised on appeal. This court made an independent determination of the voluntariness of the statements and upheld the trial court’s decision. Counsel also challenged two other statements, one made during a search of his cell and another made to his co-defendant Leeper. These statements were introduced into evidence in the penalty phase of the trial. We sustained the trial court’s ruling that those statements were admissible. Petitioner contends that Leeper in a post-trial interview said that the first statement petitioner gave, which was not incriminatory, and the statement made during the cell search were both coerced. He alleges that there are potentially other witnesses who could corroborate Leeper’s assertion.

Trial counsel challenged the admissibility of the statements at trial, and petitioner has offered no convincing factual support for the allegation that counsel could have shown that the statements were inadmissible had he called Leeper or any other specific witness to testify that the statements were coerced. The substantiation provided by petitioner to demonstrate that counsel could have produced further evidence of coercion is too weak to overcome the presumption that counsel was effective.

Counsel was ineffective for failing to timely object and support his motion that the jury did not reflect a fair cross-section of the community and for failing to challenge the constitutionality of Ark. Code Ann. §§ 16-32-103 — 105 (1987).

After voir dire of the jury panel had begun, counsel for the petitioner moved to quash the panel on the ground that it did not represent a cross-section of the community. The court denied the motion because it was not timely made and because there was no showing that the venirepersons did not represent a cross-section and random sample of the community. Petitioner alleges that counsel had facts available to show that about thirty percent of the people in Nevada County were black but the jury panel was only approximately 15 % black. He further argued that counsel should have raised the issue of whether choosing a jury panel from a list of registered voters, as was done in this case, is constitutional under the Sixth and Fourteenth Amendments.

As to whether counsel was ineffective under the criteria of Strickland in failing to object in a timely manner to the makeup of the jury panel before voir dire began or in failing to present evidence to show that the panel did not represent a fair cross-section of the community, petitioner has not shown that he was prejudiced in that he has not demonstrated that the jury which tried him was not selected in accordance with the requirements of the Sixth Amendment. Before it can be said that counsel was ineffective, petitioner must establish that some distinctive group such as women or black persons was excluded. See Duren v. Missouri, 439 U.S. 357 (1979). Petitioner has not met his burden of demonstrating that counsel could have presented facts to show that there had been a systematic exclusion of black persons from the jury panel in this case. He has also failed to show in his petition that the choosing of jurors from a list of registered voters denied him a fair trial under the criteria set out in Strickland. In a related allegation, petitioner asserts that counsel was ineffective in failing to establish a prima facie case of purposeful discrimination by the state in exercising a peremptory challenge to exclude Gladys Blakely. There is no merit to the argument because, as we held on appeal, the prima facie showing was not made at trial, but even if it had been made, the state clearly offered a neutral explanation for its challenge of Ms. Blakely, i.e. her views on the death penalty.

Counsel was ineffective in failing to object “through comparative review”, to petitioner’s sentence as violative of the cruel and unusual punishment clause of the Eighth Amendment as caused by passion or prejudice.

This court has committed itself to comparative review of death sentences to assure evenhandedness in the application of the death penalty in this state. Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988). Petitioner was afforded this review on appeal; therefore, counsel was not ineffective with respect to securing a comparative review on appeal of petitioner’s death sentence with sentences imposed in other murder cases.

If petitioner is contending that counsel should have moved for the trial court to reduce the sentence to life without parole, he has provided nothing to demonstrate that the jury’s recommended sentence was the result of passion or prejudice or that the sentence was not otherwise appropriate under the laws of this state and the United States. Petitioner argues that the facts that Leeper was found to have gunpowder residue on his hands, that Leeper pleaded guilty, and that another co-defendant who drove the car used in the robbery was acquitted should be noted when considering whether the death penalty should have been imposed. There was ample evidence from which it could be fairly concluded that petitioner committed the crime with which he was charged, thus, neither the evidence that Leeper had gunpowder residue on his hands nor the fact that the death penalty was not imposed on the co-defendants establishes that there was a reasonable probability that counsel could have successfully challenged the death sentence in the trial court on the basis of comparative review.

Counsel was ineffective in not presenting evidence to support the defense that petitioner did not commit the murder and the mitigating circumstance that the murder was committed by another person.

Petitioner contends that had counsel presented expert testimony relative to the amount of gunpowder residue on Dennis Leeper’s hand and called petitioner to testify, the jury would have concluded that he was not the triggerman and either convicted him of first degree murder or sentenced him to life imprisonment without parole for capital murder.

As we said on direct appeal, there was evidence which clearly supported the state’s charge that the petitioner killed the store clerk in the course or furtherance of a robbery. At trial petitioner raised the defense that he did not commit the homicidal act, but evidence was adduced which indicated that several witnesses saw petitioner run from the convenience store immediately after the victim was shot. Octavia Hardamon, who personally knew petitioner, said that she saw petitioner leave the store with a pistol in his hand. Considering the evidence produced by the state, we cannot say that petitioner has shown that there is a reasonable probability that the jury would have concluded that he was not the triggerman if a ballistics expert had been called to testify.

Petitioner’s allegation that the jury would have been swayed by his testimony had he been called is conclusory. A petitioner who claims that counsel was ineffective for not calling him to testify must state specifically what the content of his testimony would have been and demonstrate that his failure to testify resulted in actual prejudice to his defense. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Petitioner has not set out what his testimony would have been; therefore, it cannot be said that the defense was prejudiced by the failure to testify. Moreover, the decision to advise a defendant not to take the stand, even if it proves improvident, is a tactical decision within the realm of counsel’s professional judgment, and matters of trial tactics and strategy are not grounds for post-conviction relief. Isom, 284 Ark. 426, 682 S.W.2d 755; Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Petitioner has presented nothing to show that counsel here did more than merely advise his client not to testify.

Petitioner was denied due process and a fair trial in that police misconduct induced a factually inaccurate statement from Octavia Hardamon and inaccurate testimony followed from that statement.

Petitioner states that he is unprepared to support factually the allegation that Octavia Hardamon’s trial testimony was perjured but that he makes the allegation for the purposes for preserving it for further review, presumably in federal court. Petitioner contends that at the least Hardamon was grossly mistaken in her identification because the physical evidence and other witnesses contradict it. He has attached the affidavit of a woman who states that Hardamon has informed her of circumstances surrounding the giving of her statement to the police which casts doubt on the reliability of her account.

Rule 37 was designed as a means to collaterally attack a conviction. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Petitioner is clearly attempting to raise questions about the witnesses’s account which constitutes a direct attack on the judgment. The credibility of witnesses, new evidence, and rebuttal evidence are matters for trial since such issues constitute a direct attack on the judgment. See Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981).

The evidence does not support either capital murder or the death sentence.

Petitioner asserts that he is innocent of capital murder and that the death sentence is not supported by the evidence. He asks this court to set aside the conviction, set aside the death penalty, or reduce the conviction to first degree murder. The argument is a challenge to the sufficiency of the evidence which is not cognizable under our post-conviction rule. McCroskey, 278 Ark. 156, 644 S.W.2d 271.

Appellate counsel was ineffective for failing to argue trial error in sustaining the state’s objection to trial counsel’s attempt to impeach Dr. Fahmy Malak’s testimony.

At trial the state objected when petitioner sought to impeach the medical examiner Dr. Malak about discrepancies in his report in unrelated case. The objection was sustained. Petitioner argues that his counsel should have raised the issue on appeal. He further states that counsel did not comply with Supreme Court Rule 11(f) and abstract the adverse ruling.

If counsel omits an issue which could have been raised on appeal and the convicted defendant later claims under Rule 37 that the attorney was ineffective for failing to argue it, the petitioner must demonstrate that counsel’s action amounted to an error of such magnitude that it rendered counsel’s performance constitutionally deficient under the criteria set out in Strickland; Troutt v. State, 292 Ark. 192, 729 S.W.2d 139 (1987). The burden is on the petitioner to state facts in the Rule 37 petition which show that counsel failed to raise some possibly meritorious issue. Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). Petitioner has not met his burden of establishing that there would have been any merit to the argument even if it had been raised on appeal. An attorney need not advance every possible argument regardless of merit. Howard, 291 Ark. 633, 727 S.W.2d 830; see Jones v. Barnes, 463 U.S. 745 (1983).

Trial counsel was ineffective in twenty-four additional instances.

Petitioner lists “for the record” twelve instances where counsel is alleged to have been ineffective. He lists a further twelve instances of counsel’s alleged ineffectiveness “to preserve these issues for habeas review.” The presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. Strickland v. Washington, 466 U.S. 668 (1984). The burden of demonstrating some actual prejudice arriving from counsel’s conduct falls on petitioner. The petitioner here has not met that burden in that the twenty-four allegations are essentially conclusory statements apparently made to exhaust state remedies which do not provide a basis for a finding of ineffective assistance of counsel. See Reynolds v. State, 248 Ark. 153, 450 S.W.2d 555 (1970).

An assistant Attorney General’s conduct entitles petitioner to relief in some form.

Finally, petitioner states that an assistant Attorney General’s decision to seek a dissolution of the stay of execution in this case amounted to misconduct because another assistant Attorney General had agreed to allow petitioner’s counsel all the time needed to prepare his petition for post-conviction relief. Petitioner states that he is entitled to “relief of some form” and that he desires to point out that any procedural default in federal court is because of misconduct of the state. We find no ground under Criminal Procedure Rule 37 to grant petitioner relief in any form on this allegation.

Petition denied.

       We granted petitioner permission to file a petition which exceeds the ten page limit provided in Rule 37.1(e). The petition now before us contains, with attachments, thirty pages. Nevertheless, he contends that “time and space limitations” prevent him from elaborating on some allegations.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Linda Gail Sloan ATKINS v. Sterling Oliver ATKINS, Jr.
    91-182
    823 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Griffin, Rainwater & Draper, P.A., by: Paul S. Rainwater,
      for appellant.

      Harrod Law Office, by: Shelby Reid Harrod, Jr., for appellee.
   Robert H. Dudley, Justice.

We have accepted appellate jurisdiction of this case because it is a significant case involving the construction and interpretation of state and federal statutes setting out the jurisdictional requirements for interstate child custody disputes, and additionally, it involves interpretation of the federal statute which sets out the requirements for according full faith and credit to a foreign child custody decree. In interpreting the applicable statutes, we affirm the Chancellor’s refusal to accord full faith and credit to a foreign custody decree.

Appellant Linda Atkins and appellee Sterling Atkins were married on December 27,1985, in Linda’s hometown of Bastrop, Louisiana, and immediately returned to Sterling’s hometown of Hamburg, Arkansas, where they resided until they were separated. Bastrop, Louisiana, and Hamburg, Arkansas, are only thirty (30) miles apart. The couple had one child, Lindsey, who was born in a Bastrop hospital on December 29, 1989.

On August 15, 1990, while still living in Hamburg, the mother, Linda, and the father, Sterling, separated, and the mother took the child to her parent’s home in Bastrop. On August 28,1990, she filed a petition for separation in Morehouse Parish, Louisiana, the Parish in which Bastrop is located. On September 4, 1990, service of process was had on the father under the Louisiana long-arm statute.

Three days later, on September 7,1990, the father filed a suit for divorce in the Chancery Court of Ashley County, Arkansas, which is the County in which Hamburg is located. Service of process was had on the mother under the Arkansas long-arm statute on October 22, 1990.

On October 11, 1990, a hearing was held in the Louisiana proceeding. The father objected to the jurisdiction of the Louisiana court and requested a stay of the proceedings. The trial court overruled the father’s objections and heard the case on its merits. The trial court awarded temporary custody of the child to the mother and ordered the father to pay temporary alimony and child support. The father appealed to the Court of Appeal of Louisiana. The appellate court reversed that part of the decree that ordered the father to pay temporary alimony and child support because they found there was no personal jurisdiction over him. Atkins v. Atkins, No. 22908-CA, 1991 WL 226588 (La. Ct. App. Oct. 30, 1991). The father did not appeal from the award of custody of the child to the mother.

On November 13, 1990, the mother moved to dismiss the proceeding in Ashley County, Arkansas, because Ark. Code Ann. § 9-13-206(a) (Repl. 1991), which is a part of the Uniform Child Custody Jurisdictional Act (UCCJA) as adopted by the Arkansas General Assembly, provides:

A court of this state shall not exercise its jurisdiction under this subchapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

On February 12, 1991, the Arkansas trial court denied the mother’s motion to dismiss and on March 25, 1991, refused to accord full faith and credit to the Louisiana decree, granted the father a divorce, and awarded custody of the child to the father, with the right of visitation being granted to the mother. The mother subsequently filed this appeal.

The mother argues that the Louisiana proceeding was never stayed, and therefore, the Arkansas trial court exercised jurisdiction in violation of Ark. Code Ann. § 9-13-206(a), quoted above. She admits that the quoted statute is a part of the UCCJA and that, under it, the Arkansas court could exercise jurisdiction if the Louisiana court had not acted “substantially in conformity” with the UCCJA. (Both Louisiana and Arkansas have adopted the identical uniform act. See La. Rev. Stat. Ann. § 13:1700-1724 (1983) & Ark. Code Ann. § 9-13-203 to-27 (Repl. 1991)). But, she argues, the Louisiana court acted substantially in conformity with UCCJA, and as a result, the Arkansas court erred in exercising jurisdiction. The argument concerning the UCCJA is most likely without merit, and although we discuss the argument, we do not decide it, because this case is governed by a preemptive federal statute, the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1982), and the trial court’s ruling was correct under that federal act.

The UCCJA outlines when a court has jurisdiction to determine child custody upon the finding of one or more of four facts:

(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a)(1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
(b) Except under subdivisions (a)(3) and (4), physical presence in this state of the child, or of the child and one (1) of ’the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Ark. Code Ann. § 9-13-203(a)(1) — (4) (Repl. 1991).

“Home state” is defined as “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six (6) consecutive months[.]” Ark. Code Ann. § 9-13-202(5) (Repl. 1991). Under this definition Arkansas was the home state of the child, and therefore, the Louisiana court could not have exercised jurisdiction under subpart (1), quoted above. Subparts (3) and (4) of the above quoted statute are not applicable, and the Louisiana court could not have exercised jurisdiction under either of them. Subsection (2) quoted above, the “significant connection” and “substantial evidence” provision, is the only provision under which the Louisiana trial court could have possibly exercised jurisdiction, but there is no record of findings of fact by the Louisiana court to support such jurisdiction.

In discussing subsection (2) we have said: “ [T] hat provision, while broad, must be judiciously applied, and it should not be regarded as giving a court only recently involved an excuse to act precipitously, in an ex parte proceeding, by disregarding the remainder of the act, so plainly aimed at promoting cooperation between courts.” Norsworthy v. Norsworthy, 289 Ark. 479, 485, 713 S.W.2d 451, 455 (1986). Further, we reversed an Arkansas trial court for exercising jurisdiction under subsection (2) under facts almost identical to those which were before the Louisiana court in this case. See Garrett v. Garrett, 292 Ark. 584, 732 S.W.2d 127 (1987).

However, we need not decide whether the Louisiana court did find, under subsection (2), that the child had a “significant connection” with Louisiana and that there was “substantial evidence” there because, even if the Louisiana court did so find, the result would be that under the UCCJA there was concurrent jurisdiction in the two states.

The Parental Kidnapping Prevention Act of 1980 (PKPA) was passed by Congress for cases just like this one because the states’ UCCJA’s flexible provisions, especially those involving “significant connection” and “substantial evidence,” can be interpreted to permit two states to assert jurisdiction concurrently. Note, Parental Kidnapping in Arkansas Under the Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 10 U. Ark. Little Rock L. J., 69, 75 (1987-88). The existence of concurrent jurisdiction under the UCCJA continued to allow forum shopping. See Note, North Dakota’s Interpretation of the Interplay between the PKPA and the UCCJA, 62 N.D.L. Rev. 231, 269 (1986); Krauskoph, Remedies for Parental Kidnapping in Federal Court, 45 Ohio St. L. J. 429, 431-32 (1984). In response, Congress enacted the PKPA. In Thompson v. Thompson, 484 U.S. 174, 177 (1987), the opinion of the Court explained: “As the legislative scheme suggests, and as Congress explicitly specified, one of the chief purposes of the PKPA is to ‘avoid jurisdictional competition and conflict between State courts.’ Pub. L. 96-611, 94 Stat. 3569 § 7(c)(5), note following 28 U.S.C. § 1738A.” We stated in Garrett v.Garrett, 292 Ark. 584, 732 S.W.2d 127 (1987), that the principal distinction between the UCCJA and the PKPA is that the PKPA gives exclusive jurisdiction to the child’s home state. “Home state” is defined as the state in which the child lived with his parent or parents for “at least six (6) consecutive months.” 28 U.S.C. § 1738A (b)(4) (1982). Accordingly, under the PKPA, the Arkansas court had exclusive jurisdiction since it was the home state, while under the UCCJA there might have been concurrent jurisdiction because of the “significant connection” and “substantial evidence” provision. When the UCCJA and the PKPA conflict, the preemptive federal PKPA controls. Norsworthy v. Norsworthy, 289 Ark. 479, 713 S.W.2d 451 (1986).

Although the PKPA only applies directly to modification proceedings, it also indirectly governs initial custody determinations. Note, Parental Kidnapping in Arkansas and the Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 10 U. Ark. Little Rock L. J. 69, 77 (1987-88). This is due to the fact that if a custody decree fails to conform to the requirements of the PKPA, it will not be entitled to full faith and credit in another state. See 28 U.S.C. § 1738A(a) (1982). We have so applied the act, Garrett v. Garrett, supra, as have other states. See, e.g., Schrock v. Schrock, 365 S.E.2d 657 (N.C. Ct. App. 1988). Accordingly, we affirm the exercise of jurisdiction by the Arkansas trial court and affirm its refusal to afford full faith and credit to the decree of the Louisiana court.


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

text:
    David JOHNSON v. STATE of Arkansas
    CR 91-121
    823 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Smith <6 Smith, by: Robert Smith, for appellant.

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of capital murder and sentenced to death by lethal injection. Upon review of the points assigned as error by the appellant, and upon our own comparative review of other death penalty cases, we affirm the judgment of conviction as well as the sentence imposed.

Even though the appellant does not contest the sufficiency of the evidence, we detail the facts for the purpose of making a comparative review of other cases in which we have affirmed the death penalty. We do so to be assured of the evenhandedness of the application of the death penalty. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977) and Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983) (Hickman, J., concurring). The victim in this case, Leon Brown, a sixty-seven-year-old male, first went to work for Little Rock Crate and Basket Company in 1967, worked there a few years, left, returned in 1982, and continued to work there until he was murdered. During the last few years he worked as a night watchman only on Friday and Saturday nights. On the evening of Saturday, September 2,1989, while on duty, he wore a black leather John Brown type of police belt and holster to carry his .41 caliber Smith and Wesson pistol, and four (4) empty shell casings. He was known to carry the empty casings, although no one knew the reason. He also carried a watchman’s clock, which is a device that looks something like an old-fashioned leather covered circular style canteen with a paper disc on the outside. As he made his rounds, he would stop at designated locations which had permanent station keys and insert one of the keys in his watchman’s clock. It would punch a hole in the paper disc. That hole would reflect the time the watchman stopped at that particular station.

Little Rock Crate and Basket Company is located at 1623 East Fourteenth Street, which is at the end of Fourteenth Street in Little Rock. It manufactures fruit and vegetable containers, baskets, and wire bound crates. It consists of warehouses located on both sides of the street, a log yard, and an office which is located at the end of one of the warehouses. The office area, comprised of five (5) offices, is built of concrete blocks and has three (3) steel doors which were locked with dead bolt locks. It has windows which open into a lunchroom which is located at the end of the warehouses. The warehouses are built of corrugated steel, and on September afternoons, it gets hot inside them, so it was not unusual for the workers to open the warehouse doors to cool the building. The doors were so opened at 6:30 on the evening of September 2,1989. Even so, one would not worry about security because Fourteenth Street at that location is a private street, owned by Little Rock Crate and Basket, with no through traffic, and the business is surrounded by a high chain link fence with barbed wire on top.

Leon Brown had a number of friends who worked at Little Rock Crate and Basket Company, and he enjoyed going to work a little early so he could visit with them. His night watchman’s shift began at 4 p.m. on the 2nd. He went in early and visited with his friends and then, at work time, began his rounds.

Dudley Swann, the principal stockholder in Little Rock Crate and Basket, received a call from a customer at about 4:30 in the afternoon on the 2nd. The customer wanted some crates delivered immediately, and Swann had to find truck drivers who were willing to work on the Labor Day weekend. He was at his home when he received the customer’s call and did not have the drivers’ telephone numbers there, so he went to the plant to get the telephone numbers. As he drove up to the company office area at about 6:30 that evening, he saw a white Delta 88 Oldsmobile automobile stuck in the drainage ditch beside the private street. The rear wheels of the car were spinning, and the tires were smoking. Swann parked. his car, walked over to the white Oldsmobile, and told the driver he was tearing up his car. He asked the driver to leave and come back the next day to get his car because he did not want the driver on the premises after dark. Swann later identified appellant as the driver of the white Oldsmobile.

Swann went into the building with the offices and there saw Leon Brown on duty. He told Brown about the white Oldsmobile and stated that he had asked the driver to leave and come back the next day to get his car. Swann went into his office and, over about a fifteen-minute period, got the telephone numbers. He left the office area and went into the lunchroom area and again saw Brown. He asked Brown if the driver had left, and Brown motioned toward a pay telephone located on the wall. Swann looked there and saw the appellant. He went over to him and said, “I thought I asked you to walk on out.” The appellant replied, “Yes sir, I am in just a moment. I need to make one or two telephone calls to try to find some friends but they’re all at work.” Brown told Swann, “Don’t worry about anything. Everything’s all right.” Swann made a note of the license plate number on the white Oldsmobile and left at 6:50 p.m.

The next morning, Sunday, the 3rd, at 7:15, George Wood, another part-time watchman, came to Little Rock Crate and Basket Company to check on Brown, as he usually did. He stood outside and called out for Leon Brown. There was no response and he waited ten (10) or fifteen (15) minutes for Brown to complete one of his rounds, but Brown did not appear. By then, Lawrence Sloan had come to work the day watch, and after about fifteen (15) minutes more, the two of them decided to go in the building. The gate was locked, but they went around to one of the doors that had been left open to cool the building the evening before. Just inside the building, in the lunchroom area, where Swann had last seen the appellant and Brown, they saw Brown’s body. Lawrence Sloan’s initial response graphically described the scene: “Ooh, somebody done beat Leon’s brains out.” Leon Brown’s motionless body was lying face-down in a large pool of blood. He had been bludgeoned to death with a piece of 2” x 4” board that was found near his body. Three (3) of the blows to his head were made with such force that his skull was crushed, part of it was dislodged and rammed into his brain, and his brain was crushed. The medical examiner estimated that the blows to the head were so forceful that 300 to 400 pounds of pressure per square inch had been inflicted on his skull. An image of the extent of the damage to the victim’s skull is created by the fact that upon arriving at the scene experienced detectives thought the victim had been shot in the head. His false teeth were found six feet away from his head, and his glasses were found past his feet.

The vending machines in the lunchroom area had been turned over and broken into. The windows into the office area had been forced open and the offices had been entered. Papers had been strewn about, desk drawers had been opened, and the pay telephone had been torn off the wall. Among the missing items were a typewriter, a Sharp brand calculator, two (2) cameras, tools, three (3) pistols, a fountain pen, a briefcase, a television set, three (3) Motorola brand handheld radios, and a battery charger.

The police were called; they quickly responded and immediately began their investigation. Among their procedures, officer Todd Vint was assigned to watch the white Delta 88 Oldsmobile automobile that was still stuck in the ditch. At about 11 o’clock that morning, the 3rd, a blue and white pickup stopped beside the white Oldsmobile, and three (3) people got out and began to try to get the Oldsmobile out of the ditch. The three (3) were Terrie Dickerson; her father, Elmer Richardson; and the appellant. Dudley Swann saw them and told officer Vint that appellant was the man he had seen the evening before, first trying to get the car out of the ditch and then later inside the building.

Police work developed many additional facts which were subsequently proven at trial. Steve Rowell told the police he was the manager of Lucky’s Seafood in Little Rock and that appellant worked there and was supposed to report for work at either 4:00 or 5:00 p.m. on the 2nd but did not do so. At a few minutes after 7:00 p.m. on the 2nd, the appellant had called Rowell and told him that he could not come to work because he was in jail. In fact, he was not in jail, and at that time, the police were not looking for him.

Robert Sanders told the police that he saw a low-slung black car parked in front of Little Rock Crate and Basket Company a little after 9:00 on the night of the 2nd.

Terrie Dickerson told the police that, at about 11:00 on the morning of the 2nd, before the murder, the appellant came to her house and told her that his car was out of gasoline. He asked to borrow her car. She stated that he owned a low-slung black Oldsmobile Cutlass automobile. She loaned him her white Oldsmobile Delta 88. He left in her car, came back about 2:30 that afternoon, and left again in her car at about 2:45. She did not see him again until about 9:00 that night, the 2nd, when he returned on foot and told her that the police had been chasing him and that he had gotten her car stuck in a ditch. In fact, the police were not chasing him. He left her house afoot, but later came back in his low-slung black car, and brought into her house three (3) Motorola brand handheld radios and a Sharp brand calculator. Later, she went with him when he drove his black car to Priscilla Marshall’s house. At that time she saw some guns and tools in his car. He took the guns and tools into Priscilla’s house. The next morning, September 3, Terrie and the appellant went to the home of Terrie’s father, Elmer Richardson. They asked him to drive them to the Little Rock Crate and Basket Company so they could get Terrie’s white Oldsmobile out of the ditch. As they drove up in his pickup truck, they were spotted by Officer Vint; appellant was identified by Dudley Swann and was arrested by the police. Subsequently, the radios and calculator were recovered from Terrie’s house. They were identified as part of the property taken from the Little Rock Crate and Basket Company.

Priscilla Marshall told the police that the appellant came to her house on the morning of the 3rd, told her that his girlfriend was moving to North Little Rock, and said he needed to store some guns and tools. From her house the police later recovered the battery charger, a .38 caliber pistol, a Magnavox brand television set, cameras, tools, a fountain pen, and Leon Brown’s .41 caliber Smith and Wesson revolver. Each of the items was identified as property taken from Little Rock Crate and Basket.

Connie Manuel testified that the appellant came to her house at about 10:00 on the night of the 2nd, remained a few minutes, left, and came back between midnight and 1:00 a.m. on the 3rd. At that time, he washed his clothes and took a bath. He spent the rest of the night with her. Her mother, Luella Shavis, gave the washed clothes, including his tennis shoes, to the police.

A police officer, Jack Matlock, found one of appellant’s palm prints on the coin box which had been ripped out of the soft drink vending machine in the lunchroom area, and removed one of his fingerprints from the inside of an office window. Both prints were positively identified as being appellant’s. Appellant’s tennis shoes, which had been recovered from Luella Shavis, had human blood on them, but it was not in sufficient quantity to type. Hair samples found on the 2” x 4” board were compatible with the hair of Leon Brown. The paper disc from the watchman’s clock reflected that Leon Brown did not make his round through the building at 7:00 p.m. on September 2.

The appellant did not testify at trial. One defense witness, Ella Mae Richardson, testified at the guilt phase of the trial that the appellant phoned her at 5:00 or 5:30 p.m. on the 2nd, and another witness, public defender Llewellyn J. Marczuk, testified that detective Mark Stafford told him that the appellant might not have committed the crime alone. The detective denied making the statement. The other defense witness took the Fifth Amendment.

After hearing the above testimony, the jury unanimously found the appellant guilty of capital murder. The punishment phase of the trial was then held, and the jury found one aggravating circumstance, that the murder was committed for pecuniary gain, and one mitgating circumstance, that the appellant was a model prisoner and could conform to prison life and be a productive member of the prison society. The jury weighed the two and unanimously determined beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating circumstance and determined that appellant should be sentenced to death by lethal injection. Pursuant to Ark. Code Ann. § 5-4-603 (a), the jury is required to return written findings. For some unknown reason, the record contains only part of the required written findings, but that has not caused us any difficulty in reviewing the matter since the record reflects that the jury foreman read the findings aloud and each juror stated aloud that the foreman had correctly stated his or her individual finding.

In summary, the proof is overwhelming that appellant savagely murdered Leon Brown for pecuniary gain. The real issue is whether the wickedness, inhumanity, and heinousness of this murder for pecuniary gain case is comparable with that of other cases in which we allowed the sentence of death to stand. We have concluded that it is comparable to the cases of Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986);and Woodard v. State, 261 Ark. 895, 553 S.W.2d 259, cert. denied, 439 U.S. 1122 (1977). Accordingly, we hold that the sentence of death was not freakishly or arbitrarily applied, and we will not, on our own motion, set aside the sentence. For statistical purposes, we note that both the victim and the appellant are black persons. See Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (Hickman, J., concurring).

We now address the appellant’s assignments of error. The first involves the statute under which he was charged. He contends that the capital murder statute Ark. Code Ann. § 5-10-101(a)(4) (Supp. 1991) is facially unconstitutional under the Eighth and Fourteenth Amendments because it fails to narrow the class of persons eligible for the penalty of death.

The statute, as amended in 1989, provides:

(a) A person commits capital murder if:
(4) With the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.

The major premise of appellant’s argument is that premeditation and deliberation are not required to exist for any particular length of time, see e.g., Ward v. State, 298 Ark. 448, 452, 770 S.W.2d 109, 111 (1989), and as a result, almost any charge embracing a murder becomes a death eligible case. His minor premise is that the narrowing function is performed at the guilt phase of the bifurcated trial, and thus, he concludes the statute has “absolutely no narrowing mechanism.”

The appellant cites O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988) for his minor premise that a narrowing of the death eligible class occurs during the guilt phase of the trial. We did so write in O’Rourke, but that opinion discussed an earlier version of the statute. We did not discuss the possibility of the narrowing occurring in the penalty phase because we did not have to. But the statute has been changed, and under the current statute, the narrowing primarily occurs in the penalty phase of the trial. The issue then is whether it is constitutionally permissible for the narrowing of the death eligible class to occur at the penalty phase of the bifurcated trial. The Supreme Court of the United States has clearly answered the issue.

In Lowenfield v. Phelps, 484 U.S. 231 (1988), the opinion of the Court provides that the narrowing function required for capital punishment statutes may be provided in either of two (2) ways: The legislature may itself narrow the definition of the crime so that the finding of guilt in a death penalty case is necessarily a narrow finding, or the legislature may more broadly define capital offenses and provide for the required narrowing by jury findings of aggravating circumstances at the penalty phase. The legislature previously narrowed the class in both ways but, under the 1989 amendment, has broadened the definition of the crime so that the narrowing now primarily occurs at the penalty phase.

Ark. Code Ann. § 5-4-603(a) (1987) provides:

(a) The jury shall impose a sentence of death if it unanimously returns written findings that:
(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.

The foregoing statute provides for the narrowing in the penalty phase of the trial. The Constitution requires no more than a narrowing of the death eligible class in the penalty phase of a bifurcated trial. Lowenfield v. Phelps, supra.

The appellant next makes a “double counting” argument. He contends that the duplicate use of pecuniary gain as part of the definition of the offense and also as an aggravating circumstance violates the Eighth Amendment. His argument is based upon the case of Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985). The appellant has no standing to raise the argument. As previously stated, he was charged with, and convicted of, capital murder as set out in Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1991), that is, “premeditated and deliberated” murder. The murder for pecuniary gain was considered only as an aggravating circumstance in the penalty phase under Ark. Code Ann. § 5-4-603(a) (1987), quoted above. Thus, there was no double counting. Further, Collins v. Lockhart, supra, was effectively overruled in Lowenfield v. Phelps, 484 U.S. 231 (1988), and the Eighth Circuit Court of Appeals so held in Perry v. Lockhart, 871 F.2d 1384, 1393 (1989), cert. denied 493 U.S. 959 (1989). Accord Singleton v. Lockhart, 871 F.2d 1395, 1401 (1989), cert. denied, 493 U.S. 874 (1989) and O’Rourke v. State, 295 Ark. 57, 64, 746 S.W.2d 52, 56 (1988).

The appellant next argues that “the Arkansas capital murder statutory scheme becomes a mandatory death statute, and as such, is unconstitutional because it does not allow the jury to show mercy to a particular defendant.” We most recently rejected this argument in Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). There, quoting from Clines, Holmes, Richley & Orndorff v. State, 280 Ark. 77, 82, 656 S.W.2d 684, 686 (1983), we wrote: “[W]hatever the jury may find with respect to aggravation versus mitigation, it is still free to return a verdict of life without parole, simply by finding that the aggravating circumstances do not justify a sentence of death.”

The appellant’s next assignment of error involves the appeals process in death cases. In Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), we explained that a defendant in a capital case has an unqualified right to appeal, but if competent, he may waive that right. Because of that, the appellant argues that the appeals process in death penalty cases is unconstitutional because there is no mandatory appeal. The appellant has no standing to raise the issue. He had an unqualified right to appeal and has exercised it. It is immaterial that someone else might waive his or her right to appeal. In order to establish standing to challenge a statute or a court rule, a party must demonstrate that he is possessed of a right upon which the statute or rule infringes, and that he is within the class of persons affected by the statute or rule. Thompson v. Arkansas Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984), appeal dismissed, 469 U.S. 926 (1984). Appellant does not meet those qualifications.

The appellant’s next assignment of error involves an amendment to the information. It came about in the following manner. On the first morning of the trial, the venire was in the courtroom, and the petit jury was to be selected. The first six (6) prospective jurors were temporarily seated in the jury box and the other jurors were excused from the courtroom for a short while. The trial judge asked the six (6) prospective jurors a number of general questions. See A.R.Cr.P. Rule 32.2. In doing so, he read the information to them so that he could see if any of them knew anything about the case or knew any of the witnesses or knew either the appellant or the victim. The information that was read by the trial judge charged that the appellant killed Leon Brown “by shooting him.” Immediately after the judge read the information, the two (2) deputy prosecutors and the appellant’s two (2) attorneys approached the bench. One deputy prosecutor, Melody LaRue, said, “It’s not a shooting. It’s a beating.” The other deputy prosecutor, Mark Fraiser, said, “That’s what it says but it’s not supposed to.” The trial judge asked, “How did it happen?” and deputy prosecutor Melody LaRue responded, “He was beaten to death.” The trial court then announced, “The prosecutor advises me I’m wrong. The death did not occur by shooting. It was by a beating of some kind. So, strike that from it. The death did not occur from a shooting but by blunt trauma or a beating of some kind.” The State never sought to amend by interlineation or by substituted information. The appellant did not make a contemporaneous objection to the oral amendment of the information by the trial judge. Some time later (thirteen (13) transcript pages later) and after the trial judge had completed his general examination of the six (6) prospective jurors, he, the attorneys, and the first prospective juror were preparing to go into chambers for individual sequestered voir dire of the jurors by the lawyers. Out of the hearing of the first such juror, the following colloquy occurred:

THE COURT: Robert [Smith, a defense attorney], that information read by shooting. It’s wrong. It’s always been a beating hasn’t it, the cause of death?
MR. SMITH: I’m going to hold them to the burden of proof of what they’ve got on the information.
THE COURT: Well, I amended it out there, so — That is the cause of death, isn’t it?
MR. SMITH: I believe —
THE COURT: Huh?
MR. SMITH: —
COURT REPORTER: I can’t hear you.
MR. SMITH: I believe that’s what the medical examiner says.
THE COURT: But you’re not surprised by the fact that it’s a beating?
MR. SMITH: Oh, no, sir.
THE COURT: All right.
MR. SMITH: But you have amended it?
THE COURT: Well, I’ve explained it to them out there. I read it and it says shooting. Then she came up and told me. And I said I was in error, that it is by — the cause of death is by beating instead of shooting.
MR. SMITH: But that’s what they have on the information.
THE COURT: I know but it’s amended as of now.
MR. SMITH: For the record I’d like to object to the fact it’s been amended by the Court.
THE COURT: Well, I didn’t amend it. That’s just what they allege and that’s what the autopsy shows and that’s what you prepared for trial. So.
MR. SMITH: My whole point is that’s what the information alleges.
THE COURT: Well, if you prepared your defense on the basis of a shooting and you are surprised by this change in it —
MR. SMITH: No, I’m not going to throw that at the Court. I’m not going to lie about that.
THE COURT: Okay. If you’re on notice that’s what it was —
MR. SMITH: Yes, sir.
THE COURT: Then it’s not a material change. The cause of death doesn’t change anything other than an element they prove as to how it'occurred.
MR. SMITH: I would just like for the record to reflect that I object to the fact it’s been amended.
THE COURT: Okay.

Much later (320 pages of transcript later) the following occurred:

MR. SMITH: I just want to get on the record that — I still want to make an objection on the record. I think this case needs to be dismissed now that the jury’s been empaneled for the fact that the information states he was shot by a gun. I think they need to be held to that proof.
I realize that you have already ruled on this tentatively this morning. It’s my view that only the grand jury or a prosecutor can file a criminal information and — Without any law backing me up. I don’t know that. But I would anticipate the law being that the prosecuting attorney would be the only one that can amend an information.
I just want to clarify what the Court’s ruling is today and make our objection if you are going to amend like you said.
THE COURT: The record — The record should show that this morning when I read the information I read that the deceased was killed by shooting and that at the conclusion of that statement the prosecutor told me that that was in error, that the deceased was beat to death. I immediately corrected it to the jury. There was no objection by the Defense. And later on —
MR. SMITH: There was.
THE COURT: There wasn’t an objection, Robert. Now, if you’re going to dig this hole, let’s get in it together.
MR. SMITH: Yes, sir.
THE COURT: So, I said I was in error, that the State alleges that the deceased died as a result of a beating. Then, when we came back to do individual voir dire, I asked you about it and you said you were going to hold them to their burden of proof or to the allegation in the information. And I said, “But it was corrected out there and you didn’t object then.” And you said you were not surprised and that you were prepared to go forward and defend the case on the basis of that he was beaten to death and you were not surprised by that. You had the opportunity then to ask for a continuance or make an objection and you did neither.
MR. SMITH: If I can clarify, to the best of my recollection I did object. I do not deny that — that it was a — that it wasn’t a surprise to me.
THE COURT: Well, the record, I think, will show that you didn’t object.
And the record should also show that I did not amend it, that the prosecutor approached the Bench and said, “Judge, that’s an error.” I said, “That’s what it is.”
She said, “Well, it should be that he died as the result of a beating.” So, I consider that an amendment by the prosecutor. I do not consider it a material change in the allegation and especially coupled with the fact that you tell the Court that you were prepared to defend the case on the basis of death as the result of a beating.
MR. SMITH: I understand.

The appellant argues that the trial court erred in orally amending the information. The trial judge did commit error, but we will not reverse because there was no contemporaneous objection and also because we are satisfied that the appellant suffered no prejudice.

The State asks us to affirm this point because the trial judge did not amend the information, but rather the deputy prosecutors effectively moved to amend the information to make it conform with the facts that all the attorneys knew would be proven. We do not so interpret the record. It is clear that the State did not actually amend the information to allege “by beating,” either orally, by interlineation, or by substitute information. The State did not ask the trial court’s permission to amend the information. The trial court did not grant leave to the State to amend the information and, significantly, the trial judge stated that he had amended it. Thus, we can only conclude that the trial judge did amend the information and that was wrong. A trial judge should never perform the duties of the prosecuting attorney. However, there was no contemporaneous objection and, as a general rule, we require such an objection before we will consider a matter on appeal. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). The reason is that the trial judge must be given an opportunity to timely correct the mistake. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). That opportunity, to timely correct the mistake, was not afforded the trial judge in this case, and we will not reverse. We recognize that there are certain exceptions to the contemporaneous objection rule in death penalty cases, see Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988), but this case does not fit within the exceptions since there was no prejudice which would unquestionably cause us to grant post conviction relief. See Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982). The amendment by the judge did not change the nature or degree of the crime charged, and the appellant’s attorney admitted that the nature of the amendment was no surprise.

Appellant next argues that the State did not prove beyond a reasonable doubt that he killed the victim “by shooting him” as charged in the information. The argument is without merit for two procedural reasons. First, it goes to the sufficiency of the evidence, and although the appellant moved for a directed verdict at the close of the State’s case, he did not do so at the close of all of the evidence. He must do so to preserve the issue. A.R.Cr.P. Rule 36.21(b). Secondly, the information was amended as previously discussed, and the appellant only objected to the trial judge’s amending the information. Thus, he did not preserve the issue for appeal. Stephens v. State, 293 Ark. 366, 738 S.W.2d 91 (1987).

The appellant next assigns as error the trial court’s ruling that State’s witness Scott Sherrill could testify. The point comes about in the following way. A.R.Cr.P. Rule 17.1 provides that the State must furnish to the defendant a list of the names of each of the witnesses it intends to call at trial and the failure to furnish the name of a prospective witness will prevent that witness from being called. Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978). The State did not furnish the name of Scott Sherrill but called him as a witness. The following Colloquy then took place out of the hearing of the jury:

MR. SMITH: [Defense attorney] We object to Mr. Sherrill testifying. He was not given as a witness for the State at any time. I have no idea what he’s going to testify to. He was not disclosed to the Defense as a witness.
MRS. LaRUE: [Deputy prosecutor] Your Honor, Mr. Sherrill has always been — always been the person from serology who tried to type the blood on the board.
THE COURT: Did you tell him he was going to be a witness?
MR. SMITH: I had no idea, your Honor.
MRS. LaRUE: His laboratory analysis has been in our case file. I mean if Mr. Smith — Did you copy the case file?
MR. SMITH: Yeah.
MRS. LaRUE: You never received a copy of the lab analysis?
THE COURT: In all likelihood he’s not going to hurt you. The last one helped you better than anything else you’ve got going for you. I’ll keep him out if you don’t want him. If he’s got anything, they would have called him earlier.
MRS. LaRUE: Your honor, we have —
MR. SMITH: What is he going to testify to?
MRS. LaRUE: That the blood on the board is human blood and that it matches all the characteristics of Mr. Brown’s blood, although he couldn’t say conclusively that it is Mr. Brown’s blood.
MR. SMITH: He’s not going to testify anything about blood on David’s clothes or anything?
MRS. LaRUE: No. Well, the tennis shoes.

Immediately thereafter, the questioning of the witness started. As can be seen from the above part of the record, the trial judge ruled that he would not allow the witness to testify if the appellant still objected, and the appellant did not respond. Thus, the issue was not preserved for appeal. However, even if the point had been preserved, we would not reverse because we have held that when a defendant is not prejudiced by the testimony of a witness called in violation of Rule 17.1, there is no reversible error. Vasquez v. State, 287 Ark. 467, 701 S.W.2d 357 (1985). There was no prejudice in this case. Scott Sherrill, a forensic serologist, testified that he examined the blood samples which came from the 2” x 4” board recovered at the scene, and that he examined appellant’s clothes, including his tennis shoes, that had been washed. He said that he could identify the blood on the board as human blood and that it had some of the same characteristics as the blood of the victim, but he could not identify it as the victim’s blood. This testimony could not have prejudiced the appellant. The jury already knew that the bloody board had been found close to the victim’s body. Dr. Fahmy Malak, the medical examiner, had already testified as follows:

Q. Could you tell in your autopsy how many wounds he sustained to his crown?
A. There was at least three blows to the crown of the head. They were inflicted from the left back to the right front and down.
Q. Okay. What type of object could cause that? Or how do you classify those type of injuries?
A. The case came to me as suspicious of gunshot wounds but it was the case. This was due to blunt trauma caused by a blunt implement or tool. There was no gunshot wound. It may be a two by four or a similar object. Simply we found some wood fragments in the brain. So, it most probably caused by a lumber or wood object.

Another witness, Gary Lawrence, a criminalist, found hair similar to that of the victim on the board. Scott Sherrill’s testimony about the board was only cumulative. In addition, he testified that the blood on the tennis shoes was human blood, but there was not enough of it to type. Again, this testimony did not result in prejudice to the appellant. The jury already knew that the appellant had been at the scene of the murder, and had taken property from there to the various locations. The scene of the murder had a large amount of blood. Between midnight and 1:00 a.m., he went to Connie Manuel’s house to take a bath and wash his clothes. Connie Manuel identified the tennis shoes as the ones the police took from her home, and the jurors could observe that they have a spot on them. Again, Sherrill’s testimony was mostly cumulative, but it did add the fact that it was human blood. Thus, appellant was not prejudiced by the witness’ testimony, especially when we consider the overwhelming weight of the other evidence of appellant’s guilt. When the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987).

Appellant’s last assignment of error concerns the admission into evidence of photographs taken at the crime scene. The admissibility of photographs is in the sound discretion of the trial judge and will not be set aside absent an abuse of that discretion. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). “Even inflammatory photographs can be admitted if they shed some light on any issue or are useful to the jury.” Id. at 83, 777 S.W.2d at 210. Each of the photographs admitted into evidence shed light either on the violence done to the victim or else on the crime scene. They were useful to the jury’s understanding of the case. Accordingly, the trial judge did not abuse his discretion in admitting the photographs.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, and pursuant to A.R.Cr.P. Rule 36.24, 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 was such an error, but it does not constitute reversible error. During the penalty phase of the trial, the appellant called James R. Moneypenny, a doctor of philosophy in psychiatry, to testify that the appellant could successfully live in prison and not pose a danger to other inmates. As a foundation for this evidence of a mitigating circumstance, Dr. Moneypenny was asked about the appellant’s background. He responded that, as a child, the appellant had lived in numerous places, and his family had experienced a great deal of turmoil, upheaval, drug use, and other problems. At that point, the deputy prosecutor objected “to his testifying what was told him.” The trial court sustained the objection. The ruling was erroneous.

Ark. Code Ann. § 5-4-602(4) (1987), in pertinent part, provides:

Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in criminal matters, but the admissibility of evidence relevant to the aggravating circumstances set forth in § 5-4-604 shall be governed by the rules governing the admission of evidence in such trials. [Emphasis added.]

In Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981), we said that, by the above quoted statute, the legislature did not intend to totally open the door to any and all matters simply because they might conceivably relate to mitigation, and that, under the statute, direct testimony should be sworn, unless there were compelling reasons to not do so. But we did not intend to abrogate the statute. Clearly, the statute means that a psychologist can use a patient’s history to give the patient’s prognosis.

Even though the ruling was erroneous, no prejudice was suffered because the expert witness was able to express his opinion that the appellant could successfully live in a prison society, and the jury so held, and the facts concerning the appellant’s background were fully developed for the jury by another witness, appellant’s sister, Patrice Marcella Jackson Jenkins.

We affirm the judgment of conviction and the sentence of death.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. Associate Justice Sherman Minton of the United States Supreme Court observed nearly forty years ago: “A defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 (1953). The Court has ratified Justice Minton’s view repeatedly over the years. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); United States v. Hasting, 461 U.S. 499, 508-509 (1983); Bruton v. United States, 391 U.S. 123, 135 (1968). I subscribe to the maxim, and for that reason I concur in the majority’s opinion.

Nevertheless, there were errors in this case that are troubling. First, the prosecutor filed an erroneous charge against the appellant that failed to identify the correct murder weapon or cause of death. This was not corrected until the day of the trial and only after the jury panel had been advised of the fallacious charge. Even at that time, it was erroneously corrected by the court and not by the prosecutor’s amendment. Secondly, the prosecutor failed to provide the defense with the name of a key expert witness, Scott Sherrill, a forensic serologist, who was the only state witness to testify to human blood on the appellant’s tennis shoes. And, thirdly, the trial court erroneously limited the hearsay testimony of a psychologist testifying during the penalty phase on mitigating circumstances.

In reviewing potential prejudice to the appellant resulting from these errors, there is no question but that the defense counsel knew the correct instrument of death and prepared his defense on that basis. A closer question is presented by the serologist’s surprise testimony that confirmed the presence of human blood on the appellant’s tennis shoes. It is conceivable that Sherrill’s testimony affected the appellant’s case to some extent due to his counsel’s inability to prepare adequately. By the same token, the other evidence against the appellant in this case was considerable. I cannot say that the prejudice is clearcut or conclusive from my review of the record. See Hughes v. State, supra.

Our rules are clear that we hold ourselves to a high standard in cases where death or life imprisonment is involved. See Ark. Sup. Ct. R. 11 (f). Undoubtedly, the state does also in these cases. Failure to have a correct charge filed on the day of the trial or to provide defense counsel with the name of an expert witness before trial, though not prejudicial under these facts, falls somewhat short of this standard.


text:
    Todd Jarrell SWANSON v. STATE of Arkansas
    CR 91-174
    823 S.W.2d 812
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      John Wesley Hall, Jr., and Craig Lambert, for appellant.

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

The appellant, Todd Swanson, was convicted of rape and burglary and was sentenced to thirty (30) years in prison. Although the sentence is not for “more than 30 years imprisonment,” as prescribed by Rule 29 (l)(b) of the Rules of the Supreme Court and Court of Appeals, we accepted appellate jurisdiction on the basis of the appellant’s statement that the case involves DNA profile evidence, an issue of significant public interest and major legal importance. See Ark. Sup. Ct. R. 29(4)(b). A complete review of the six (6) assignments of error, and numerous subpoints, reveals that there are no matters of first impression, and we affirm the judgment of conviction.

The appellant argues that the evidence is insufficient to sustain the convictions for rape and burglary. We review the sufficiency of the evidence prior to the consideration of the other asserted trial errors because, if the evidence is insufficient, the other asserted errors do not matter. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The appellant makes two (2) arguments involving insufficiency of the evidence for the rape conviction under this initial point. First, he argues that there is insufficient proof of penetration, and second, he argues that there is insufficient proof of forcible compulsion. See Ark. Code Ann. § 5-14-103(1) (1987).

The prosecutrix testified that on the night of June 7, 1989, she was asleep in her home. A man entered her bedroom, bound her hands and ankles with tape, placed a pillow over her face, and “had sex” with her. After having had sex, the attacker bound her hands and ankles with a sheet and left a note telling her that she would not be harmed and that she should not call the police. The prosecutrix testified about her mental state: “I was afraid I was going to be murdered and one of my children would find my body so I just kept telling him that I wouldn’t call the police if he would just go away and leave me alone.” After the attack, the prosecutrix called the prosecuting attorney, Ron Fields, who took her to a hospital for a rape examination. The police could not find any evidence of a forced entry into her home.

The appellant is the prosecutrix’s next door neighbor, and he knew she had a key to her home hidden under an oil can outside her house. The appellant confessed to the crimes. In his confession he admitted that he got the key from under the oil can, opened the door, and went into the proxecutrix’s house:

After going in the house, I went into [prosecutrix’s name deleted] bedroom and she was asleep and she woke up when I came into the room. I covered her eyes and mouth with my hands and turned her over and tied her hands with the tape that I had brought from my garage. I then turned her over on her back and I had sexual intercourse with her. I at first covered her eyes with my hand and later used a pillow.

The appellant then stated that after he had an orgasm, he turned her back over and bound her more tightly and left.

An emergency room physician testified that he performed an examination of the prosecutrix on the night of the attack and his findings were consistent with sexual intercourse having occurred. The physician took semen samples from the vagina of the prosecutrix. Later, blood.samples were taken from the appellant. The samples taken from the vagina of the prosecutrix and the samples taken from the appellant’s blood were compared through the use of DNA profiling and were found to match. The chance given of an incidental match was one in eighty-four million. In sum, the evidence of rape is not only sufficient, it is overwhelming.

The appellant additionally argues that the evidence is insufficient to support the conviction for burglary. Again, the evidence is overwhelming, and we only summarily treat the issue. The prosecutrix testified that the attacker illegally entered her house and raped her, and the appellant admitted he illegally entered the prosecutrix’s house and raped her. Such proof is sufficient. See Ark. Code Ann. § 5-39-201 (1987).

Next, the appellant urges us to reverse the trial court, based on any one of three (3) arguments, for permitting F.B.I. special agent Lawrence Presley to testify about DNA profiles and statistics. The first argument is that evidence of DNA profiling is insufficiently reliable. In Prater v. State, 307 Ark. 180, 194, 820 S.W.2d 429 (1991), in discussing this same issue, we wrote: “[W]e have no hesitancy in affirming the trial court’s ruling that DNA testing is such a sufficiently reliable scientific procedure that it may be admitted in evidence.” We need not repeat the reasoning used in Prater, supra.

The second argument is that the probative value of the expert testimony about DNA profiling was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. Again, as set out in Prater, id. at 190, 820 S.W.2d 429:

The trial court must then weigh its assessment of the reliability of the novel scientific evidence against the danger that the evidence, even though reliable, might nonetheless confuse or mislead the finder of fact. In that weighing process, the trial judge must keep in mind the “presumption of helpfulness” accorded expert testimony generally under A.R.E. Rule 702. “The relevancy approach favors admissibility whenever the general conditions for admissibility of evidence have been met.” [Citation omitted.]

The evidence concerning DNA profiling was beyond the knowledge of the average juror and was helpful to the jury. Thus, the trial court did not abuse its discretion in the weighing process.

The third argument does not involve evidence of DNA profiling, but, instead, involves testimony about extrapolating the probabilities of matching profiles. Appellant’s argument is that the State’s witness was not qualified as an expert in the field of population genetics and therefore could not testify concerning the probabilities. The trial judge was never apprised of such an objection, and thus, the argument was not preserved for appeal. The facts surrounding the issue are that, in qualifying Presley as an expert, the State asked a number of questions going to his competency to testify about DNA profiling. Neither population genetics nor probabilities of matching profiles was ever mentioned by the State’s attorney. The trial court allowed the appellant’s attorney to voir dire the witness about his qualifications. Again, DNA profiling was the subject of the questioning and neither population genetics nor extrapolations was ever mentioned. After questions and answers, which cover six and one-half pages of transcript, the appellant objected because the witness “should have, at the very minimum, completed a Ph.D. program[.]” The trial court held the witness was competent to testify as an expert. The trial court’s ruling obviously went to competency to testify about the only subject mentioned, DNA profiling. The witness then testified at length about DNA profiling and a good bit later, thirty-two (32) pages of transcript later, testified, without objection, about the mathematical probabilities of matching profiles.

The appellant next argues that the trial court erred in allowing the State’s expert in forensic serology to testify about the reliability of DNA testing. On appeal, he contends the State’s expert was not qualified as a DNA expert. Again, the issue argued on appeal was not preserved. The transcript reflects the following:

Q. And then you sent it on to the D.N.A. Section?
A. Yes, sir.
Q. You work in the laboratory and all. Do you accept the D.N.A. as a valid procedure based upon your —
MR. WATKINS [Defense Attorney]: Objection, your Honor.
THE COURT: Overruled.
MR. FIELDS [Prosecuting Attorney] CONTINUES:
Q. — Based upon your scientific knowledge and your training, do you have any concerns about the D.N.A. procedures and their sample bases?
A. No, sir, I do not.
Q. Are you familiar with the sample base that they use?
A. No, Fm not.
Q. Okay. Would it surprise you to know that they only use —
MR. WATKINS: Your Honor, he has already answered he doesn’t know. I object to the question.
THE COURT: Overruled.
BY MR. FIELDS:
Q. Would it surprise you to know that there was only two or three hundred people in this statistical base?
A. No, sir, it wouldn’t.

The first objection was a general objection and did not put at issue the qualifications of the witness. We have written that a specific objection to the introduction of testimony because of failure to lay the proper foundation must be made before we will hold that the admission of evidence was in error. Home Ins. Co. v. Allied Telephone Co., 246 Ark. 1095, 442 S.W.2d 211 (1969). The reasoning for the holding is that if the rule were otherwise, the trial court would not be apprised of the deficiency, and the adverse party would not be given the opportunity to correct it. The second circuit similarly has held that a general objection that was overruled cannot avail upon appeal unless there was no reason whatsoever to admit the evidence, because the judge did not know what was in counsel’s mind. U.S. v. Klein, 488 F.2d 481 (2d Cir. 1973). The second objection to the questions, while specific, was not on the basis now argued on appeal.

Appellant next argues that the trial court erred in denying his request for a continuance in order to locate an expert in the field of DNA testing. The information was filed in this case on October 30, 1989. The State gave notice that it intended to use evidence of DNA profiling. On February 8, March 6, and April 20, 1990, the appellant sought and was granted continuances because the results of DNA testing had not yet come back. On August 9, 1990, the State furnished appellant’s counsel the test results. On August 17, 1990, the appellant sought and was granted another continuance. On September 4, 1990, the appellant again moved for a continuance, but the trial court denied it. The appellant assigns that ruling as error.

We have often written that the decision to grant or deny a continuance is addressed to the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of that discretion, see, e.g., Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990), but we have also written:

DNA tests should not be ruled admissible before the accused’s expert has had a chance to examine the evidence, procedures, and protocol. . . . [A]ccess to data, methodology, and actual results are crucial. An accused must be given the opportunity for independent expert review before a determination of reliability is made.

Prater v. State, 307 Ark. 180, 200, 820 S.W.2d 429 (1991). Thus, the denial of a continuance which would deprive an accused of the chance to have an independent review of DNA analysis will be closely examined.

In this case, in moving for the last continuance, the appellant’s attorney stated that he had not yet located an expert witness. Counsel stated that he had found only one person in Arkansas who understands what “the F.B.I. is doing in terms of DNA,” but that he could not use the witness. When the trial court asked why he could not use that witness the appellant’s counsel responded: “Judge, I was afraid of that question, and I want to respectfully decline to answer it at this time. I do want to point out though, your Honor, she did point out several problems to me in the test.” The trial court again inquired if counsel would answer the question, and he stated that he did not wish to answer. The appellant had months to locate an expert witness and make some sort of tentative arrangement for an independent review. Yet, he could not offer the name of a potential expert witness, nor could he offer any hope of procuring the attendance of such a witness in the near future. In short, appellant sought an open-ended continuance for an unnamed witness. Accordingly, the trial court did not abuse its discretion in denying the continuance.

Appellant’s final argument involves the quashing of a subpoena served on the Prosecuting Attorney. As set out in the initial recitation of facts, immediately after the prosecutrix was attacked, she phoned the prosecuting attorney, Ron Fields, and asked for help. He responded and drove her to a hospital for an examination. Fields did not anticipate testifying since his knowledge of facts was insignificant and any testimony that he might give would be cumulative to the observations of the examining physician. In short, his testimony was unnecessary. The appellant’s attorney had long known that Fields took the prosecutrix to the hospital, but had never mentioned that he might want to call Fields as a witness. Fields anticipated being the State’s lead attorney and, in fact, served as the State’s main attorney. At 9:15 or 9:20 of the morning of the first day of trial, the appellant caused a summons to be served on Fields. Fields moved to have the summons quashed. The trial court ordered it quashed, and the appellant assigns the ruling as error. The ruling of the trial court was eminently correct. The law applicable to this set of facts is controlled by the almost identical case of Williams v. State, 300 Ark. 84, 87-88, 776 S.W.2d 359, 361 (1989), where we wrote:

The court has held that when a prosecutor undertakes an active role in the investigation of a crime to the extent that he becomes potentially a material witness for either the State or the defense, he can no longer serve as an advocate for the State in that case. Sherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). However, we have also held that the rule against a prosecuting attorney acting both as an advocate and a witness was not designed to permit the defense counsel to call the prosecuting attorney as a witness and thereby disqualify him as the state’s advocate.

In addition, the subpoena was untimely and was not granted with leave of court. See ARCP Rule 45(d).

Affirmed.


author: Steele Hays, Justice.

text:
    D.J., A JUVENILE v. STATE of Arkansas
    91-223
    821 S.W.2d 782
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992
    [Rehearing denied February 17, 1992.]

      Thomas J. Pendowski, for appellant.

      Winston Bryant, Att’y Gen., Teena. L. White, for appellee.
   Steele Hays, Justice.

Appellant, D.J., age thirteen, was adjudged a juvenile delinquent in July 1990 for repeated acts of shoplifting. He was placed on indefinite probation. Later he was charged with violating conditions of his probation, burglary, three counts of theft and one count of theft by receiving. These offenses resulted in a second adjudication of delinquency and commitment to the intake unit of the Youth Services Center.

The juvenile filed notice of appeal to the chancery court and moved that he be released pending appeal. The court entered an order setting a bond in the amount of $15,000 to insure his appearance, making specific reference to Ark. R. Crim. P. 36.6, Ark. Code Ann. § 16-91-109 (1987) and Ark. R. Crim. P. 9.2(b)(ii). Appellant filed a motion to reduce the appeal bond but the motion so far as we can determine, was not addressed.

On appeal, appellant relies on Ark. Code Ann. § 9-27-343(a) (1987), which provides that all appeals from juvenile courts shall be in the same time and manner as appeals from chancery court. He argues that Rule 36.6 and § 16-91-109 are intended to apply to criminal appeals and the chancellor erred in refusing to order a supersedeas bond consistent with chancery appeals.

The abstract consists of two sentences:

At the close of the sentencing phase of Appellants adjudication hearing appellant requested that an appeal bond be set (T 388-389). The Court by written Order entered Nunc Pro Tunc directed that a bond be set pursuant to A.C.A. § 16-91-109 and A.R.C.P. 36.6 (T 303-304).

We decline to address the argument. Sup. Ct. Rule 9 provides that the abstract should consist of only such material parts of the pleadings, proceedings, facts, documents and other matters in the record as are necessary to an understanding of questions presented to the appellant for decision. The word “only” is emphasized to stress that extraneous material should be omitted. However, some portions of the record are essential to an adequate understanding of the specific issues. They normally include at a minimum motions and orders relative to the argument raised. Scores of our cases have tried to shed light on what the rule contemplates and will be found in abundance in the Research Reference notes under Rule 9. A narrative statement which merely recites in the barest terms the general question for review does not constitute an abstract.

Affirmed.

       Act 31 of 1987 repeals Ark. Code Ann. § 16-91-109 (1987).


text:
    Woodrow MAYS v. STATE of Arkansas
    CR 91-200
    822 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Robert N. Jeffrey, for appellant.

      Winston Bryant, Att’y Gen., by; Gil Dudley, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

On March 15,1991, Benton Municipal Judge, Sandra Partridge, issued a search warrant based on two written affidavits and the oral testimony of informants Terry and Lori Ward. The warrant commanded a search of appellant, Woodrow Mays, and of a Benton motel room where the appellant was living. During the search officers discovered six quarter grams of methamphetamine.

Mays was convicted of multiple counts of possession and delivery of a controlled substance and, as a habitual offender, sentenced to consecutive terms totaling eighty years. On appeal Mays asserts that the trial court erred in denying his motion to suppress evidence.

Ark. R. Crim. P. 13.1 (b) provides that “the application for a search warrant . . . shall be supported by one (1) or more affidavits of recorded testimony under oath before a judicial officer. . . .” Subsection (c) of the rule states, in part, “if sworn testimony alone is offered in support of the application, such testimony shall be recorded pursuant to subsection (b) hereof’.

In this case, both sworn testimony and affidavits of Terry and Lori Ward were taken, however, the affidavits were later misplaced. At the suppression hearing, Judge Partridge testified that on March 15,1991, in her capacity as Municipal Judge she issued a search warrant for the appellant’s person and the motel room. She stated that she put Terry and Lori Ward under oath and recorded their testimony. She also testified that the Wards executed two written affidavits at that time. At the suppression hearing the tape recording of the proceedings was received in evidence and played for the trial court. However, it was not made a part of the record in this appeal.

The appellant argues that the trial court should have suppressed evidence taken pursuant to the search warrant because of the failure to provide the affidavits. When the accused attacks the validity of a search warrant and the affidavit upon which the warrant was based, the state has the burden of producing the warrant and affidavit or of following approved procedure for establishing their contents. Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980). The burden of showing the invalidity of the warrant then shifts to the appellant. Id. In another context, the failure of the state to produce the affidavits might be fatal, however, the appellant is not challenging the validity of the search warrant on the grounds that the affidavits or testimony did not establish reasonable cause for the warrant to be issued. Rather, Mays is merely asserting that under Rule 13.1 the state must produce an affidavit to support the warrant. Appellant’s argument lacks merit because where there is no claim that the contents of the affidavits do not support the issuance of a search warrant, the absence of the affidavits themselves is inconsequential. The significance of the affidavits is to preserve information for the later determination that the warrant was properly issued. Where that is not disputed, the appellant’s argument becomes abstract and without substance. Ark. R. Crim. P. 16.2(e).

The appellant also contends that the state did not provide copies of the tape and written affidavits pursuant to discovery requests, therefore, the evidence should be suppressed. Defense counsel’s objection to the introduction of the taped recording at the suppression hearing was on the grounds that the warrant was invalid because there was not an accompanying affidavit. There was no objection based on the discovery request. Because that specific objection was not made with a fair opportunity for consideration by the trial judge, this Court will not now consider it on appeal. Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990).

Affirmed.