author: T OM Glaze, Justice. R AY THORNTON, Justice,

text:
    Carmen Hendrickson ATKINSON v. STATE of Arkansas
    CR 01-097
    64 S.W.3d 259
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      John C. Stratford, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   T OM Glaze, Justice.

Appellant, Carmen Atkinson, appeals the Tune 23, 2000, judgment and commitment order of the Lonoke County Circuit Court, convicting her of first-degree murder in the death of Joshua Smith and sentencing her to life in prison. Atkinson raises two points for reversal: (1) the trial court committed reversible error by not granting her motions for directed verdict; and (2) the trial court committed reversible error by failing to give Atkinson’s requested instruction on second-degree murder. Neither issue has merit. In addition, the State, as required by Ark. Sup. Ct. R. 4-3 (h), calls to our attention an error committed by the trial court that was neither abstracted nor briefed by Atkinson. The State argues the error was not prejudicial to Atkinson and, for that reason, is not reversible. We agree.

Joshua Smith had been Atkinson’s long-time boyfriend and was the father of two of her children. In January of 1998, Atkinson had an affair with Richard Lackie, whereupon she and her children moved in with Lackie. Smith and Lackie had been friends and often went fishing, hunting, and drinking together. On August 18, 1998, Lackie and Smith went to a remote field, where they shot snakes, squirrels, and rabbits. On this occasion, Lackie then shot Smith in the back of the head with a shotgun, from a range of less than three feet. Lackie then took a shovel, covered Smith’s body with some dirt, and left.

The next day, Atkinson and Lackie drove to a salvage yard in Little Rock, where Atkinson sold Smith’s car for $100. In September of 1998, Atkinson went to the home of Smith’s mother, Judy Smith, and told her that Smith was out of town and that he was living with Atkinson and Lackie and wanted his mail transferred to their house. On October 1, 1998, Lackie was arrested at a bank after attempting to obtain cash from an automatic teller machine (“ATM”) with Smith’s ATM card. Atkinson had accompanied Lackie to the bank, but climbed into the driver’s seat and drove away as Lackie was taken away in handcuffs. Atkinson subsequently parked the car at a gas station in Butlerville and had a friend, Regina Williams, drive her home. Atkinson was picked up at her home later in the day on October 1, 1998, and was then interviewed by the police.

Lackie ultimately entered into an agreement with the State to plead guilty to the murder of Smith, in exchange for a thirty-five year sentence, and to testify against Atkinson. Atkinson was arrested on June 25, 1999, for first-degree murder in the death of Smith, pursuant to Ark. Code Ann. § 5-10-102 (Repl. 1997).

At trial, Lackie testified that Atkinson had asked him to kill Smith. Specifically, Lackie testified that Atkinson, with whom he was living, told him, beginning in'June 1998, she wanted Smith dead and regularly asked him to kill Smith. Lackie testified that Atkinson came up with the plan for him to take Smith and kill him where no one could find him so that she could have his social security income check. Atkinson was not present at the shooting. Lackie testified that he killed Smith after Smith threw sand in his eye during an argument. Lackie further testified that he decided to kill Smith just a second before it happened, and that he was under the influence of drugs at the time of the killing. Lackie also testified that he would not have killed Smith but for the fact that Atkinson had asked him to do so. Lackie stated that on the day that he killed Smith, Atkinson had suggested to him that it was “a good day to . . . get rid of [her] problem,” which Lackie interpreted as meaning that it was a good day to kill Smith.

Anthony Hughes similarly testified that Atkinson, with whom he had been sexually involved since February of 1998, had asked him to kill Smith on one occasion in July or August of 1998. Hughes further testified that Atkinson had discussed killing Smith herself or talking Lackie into killing Smith on several other occasions. Hughes also testified that Atkinson had asked him if he knew where Atkinson could get a gun or if he could find her a gun, and, upon asking her why she wanted a gun, she responded, saying she was going to get rid of Smith.

Shawn Lackie, Richard Lackie’s brother, testified that at a party on September 12, 1998, Richard Lackie had asked him to chop the head, arms, and legs off a body because there were tattoos on them, but that he had told Richard that he was cra2y and walked off. Dr. Stephen Erickson, associate medical examiner at the state crime lab, testified that he identified Smith’s body through dental records and that Smith’s body had a tattoo on his left arm with “Carmen” and a tattoo on his lower leg with “Carmen,” a heart, and “Josh.” Shawn Lackie further testified that he told his father about Richard’s request; the father told him that Shawn needed to report it to the pohce. Shawn Lackie then testified that he made a statement to Lonoke County officers, who set him up with a wire to try to get Richard Lackie to tell Shawn where Smith’s body was located. Shawn Lackie testified that he went over to the home of Atkinson and Richard Lackie and asked Richard if he still wanted him to get rid of the body. Shawn testified that when Lackie said “head, arms, and legs” in front of Atkinson, she just started laughing. Shawn Lackie further testified that when he asked Atkinson and Richard if it was Smith, they looked at each other and just laughed and said, “No.” Shawn stated that the next day, he and an undercover officer, who was wired, went to Richard Lackie’s house and told Richard that the undercover officer was the person that was ready to do the job. Shawn testified that the undercover officer asked Richard where Smith’s body was, and Richard gave them some directions, but the directions did not lead the pohce to a body.

Frank Sturdivant, a Lonoke County criminal investigator in the investigation into Smith’s death, testified that Atkinson made an oral statement on October 1, 1998, in which she denied knowing the whereabouts of Smith’s body. Fiowever, Sturdivant further testified that Atkinson’s written statement rendered on October 1, 1998, gave a description of the geographical location of the place where the murder had taken place; Sturdivant went to that geographical location and subsequently located Smith’s body. Sturdivant testified that Atkinson told him in her October 1, 1998, statement that, in September 1998, Richard Lackie had told her about Smith’s death, but that in Atkinson’s October 2, 1998, statement, which was transcribed from an audio tape, Atkinson told him that Richard Lackie told her about Smith’s death on August 18, 1998.

Kandi Howell testified that she was present at a conversation after Atkinson was arrested in connection with Smith’s homicide. Howell stated that when Atkinson was asked how she was able to get one man to kill another for her, Atkinson responded by saying that she could get a man to kill for her with sexual favors.

Wanda Malone testified that Atkinson told her, when they were in prison together in 1998, that she made Richard Lackie kill Smith, and that Atkinson told Wanda that she told Richard to cut his head, arms, and legs off because of the tattoos.

Atkinson then testified in her own defense, and denied making the post-arrest statements to Howell and Malone. Atkinson further testified that she had discussed wanting Smith dead with both Richard and Anthony Hughes, but that she was never serious about it and that she never asked either Lackie or Hughes to kill Smith. Atkinson testified that she dropped the car off at the gas station in Butlerville because she did not want to be found with the car, but she did not know why. Finally, Atkinson testified that she wrote a letter to Richard Lackie, in which she referred to the solicitation of murder charge against her, and asked Richard if he would “destroy any kind of evidence for me that states I had something to do with this.”

At the close of the State’s case, Atkinson moved for a directed verdict. The trial court denied Atkinson’s motion for a directed verdict, stating, “there were sufficient facts for the jury to consider and it would be a fact question for the jury.” At the close of Atkinson’s case, she renewed her motion for a directed verdict. The trial court again denied Atkinson’s motion for a directed verdict, stating that there was “ample evidence presented to the jury, and it is a factual question.”

Prior to the case being submitted to the jury, a discussion occurred between the State, Atkinson, and the trial court regarding Atkinson’s request for jury instructions on lesser-included offenses. The State contended that the jury should not be instructed as to any lesser-included offenses. Atkinson disagreed, contending that she was entitled to a second-degree murder instruction because there was sufficient evidence to support a second-degree murder instruction. Specifically, Atkinson contended that because Richard Lackie testified that he shot Smith on a sudden impulse, Atkinson was entitled to a second-degree murder instruction because there was lack of premeditation. The trial court rejected Atkinson’s argument, finding that it was not required to give a second-degree murder instruction in a case where, viewing the facts in the light most favorable to the defendant, there was no rational basis for a verdict acquitting Atkinson of first-degree murder and convicting her of the included offense.

The case was then submitted to the jury, and, on June 22, 2000, the jury returned a guilty verdict against Atkinson and sentenced her to life in prison. The judgment and commitment order of the Lonoke County Circuit Court was filed on June 23, 2000. It is from this order that Atkinson brings this appeal. Of her two points on appeal, we first consider Atkinson’s argument that there was insufficient evidence to convict her of first-degree murder because double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the other issues on appeal. See, e.g, Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).

Atkinson argues that the trial court erred in denying her motion for a directed verdict based upon the sufficiency of the evidence because (1) Atkinson did not have the intent or purpose to cause the death of Smith and did not cause his death; (2) Richard Lackie testified that he decided to kill Smith in the woods behind a church, and there was no testimony that Atkinson was there; (3) Atkinson was not an accomplice, in that she did not directly participate in the commission of the offense and did not have the purpose of promoting or facilitating the commission of the offense; and (5) the testimony of Richard Lackie had not been substantiated by any believable testimony. We disagree.

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. E.g., Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001) (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id.

Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 s.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Id.

Viewing the evidence in the light most favorable to the State, we turn to the question whether there was substantial evidence to sustain Atkinson’s conviction of first-degree murder under Ark. Code Ann. § 5-10-102. The threshold issue in making this determination is whether Atkinson was an accomplice to the murder of Smith.

We have outlined the elements required to support accomplice liability on numerous occasions. Under Ark. Code Ann. § 5-2-403 (Repl. 1997), an accomplice is defined as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

Id.

One’s status as an accomplice is ordinarily a mixed question of law and fact. See, e.g., Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998) (citing Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). One’s presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Id. Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Id. A defendant is an accomplice so long as the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of the fact that defendant was not present at the murder scene and did not direcdy commit the murder. See Sumlin v. State, 273 Ark. 185, 618 S.W.2d 372 (1981) (holding that it is irrelevant that Sumlin, who was in jail at the time of the murder, did not pull the trigger, if he aided, solicited, or encouraged his wife, Ruth Sumlin, in committing the murder).

In the present case, the evidence was more than sufficient for the jury to have found that Atkinson was an accomplice to the murder of Smith so as to sustain the jury’s verdict convicting appellant of first-degree murder. Richard Lackie’s testimony indicated that Atkinson asked him to kill Smith for her on numerous occasions. In addition, Lackie testified that he did kill Smith because Atkinson had asked him to do so. Further, Anthony Hughes’s testimony indicated that Atkinson had told him that she had asked Richard Lackie to kill Smith for her. Moreover, while Atkinson testified that she was not serious about her request, she nevertheless testified that she had discussed wanting Smith dead with both Lackie and Hughes. The abundant testimony indicating Atkinson’s desire for Smith to be dead and her encouragement of Lackie to kill Smith for her is not only evidence of her purposeful intent to kill Smith, but is also evidence of her role as Lackie’s accomplice, nothwithstanding the fact that she was not present at the shooting. See Sumlin, supra.

We further note that Ark. Code Arm. § 16-89-111(e) (Supp. 2001) requires that the testimony of an accomplice he corroborated in order to convict a defendant of a felony. See, e.g., Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001). For purposes of § 16-89-111(e), corroborating evidence is sufficient if, without considering the accomplice’s testimony, other evidence at trial independently establishes the offense and tends to connect the defendant with its commission. Id. The corroborating evidence does not have to be sufficient, standing alone, to sustain a conviction. Id. Moreover, corroboration can be provided by the acts, declarations, or testimony of the accused. Id.

In the present case, Atkinson’s own statements acknowledging that she encouraged Lackie to kill Smith were sufficient to corroborate Lackie’s testimony that she asked him to kill Smith. Moreover, Hughes testified that Atkinson had discussed killing Smith herself or asked Lackie to kill Smith for her. Based upon our standard of review of the sufficiency of the evidence, by which we defer to the jury as fact-finders regarding the credibility of the witnesses, we cannot say that the trial court erred in denying Atkinson’s motion for directed verdict based upon the sufficiency of the evidence.

Atkinson next argues that the trial court erred by failing to give the jury her requested instruction on second-degree murder. Specifically, Atkinson argues that based on the testimony of Richard Lackie that he committed the murder at the last minute while he was under the influence of drugs, the trial court committed reversible error when it declined to give Atkinson’s requested instruction on a lesser-included offense of second-degree murder. As authority for her argument, Atkinson relies on Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), where we held it to be error for the trial court not to instruct the jury on second-degree murder where there was evidence that on the date of the homicides Mr. Robinson was probably “confused,” in a “dreamlike state,” and had “an unusual lack of appreciation” for what had happened — evidence upon which the jury could have relied in order to find an absence of premeditation and deliberation. We disagree with Atkinson’s application of Robinson holding to the facts of this case.

We have acknowledged that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by the slightest evidence. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). However, the trial court may refuse to offer a jury instruction on an included offense when there is no rational basis for a verdict acquitting the defendant of the charged offense and convicting him of the included offense. Chapman, supra (citing Ark. Code Ann. § 5-1-110(c) (Repl. 1977)). Moreover, it is not error for the trial court to decline to give the proffered instruction on the lesser offense when the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Id. In cases in which a defendant makes a claim of innocence, no rational basis exists to instruct the jury on a lesser-included offense because the jury need only determine whether the defendant is guilty of the crime charged. Id.

In the present case, no rational basis existed to instruct the jury on second-degree murder. First, as we discussed in our analysis of the sufficiency of the evidence, we note that Atkinson was an accomplice to a murder where Richard Lackie testified that Atkinson had asked him to kill Smith. This testimony was corroborated by Atkinson’s own testimony. Second, even though Lackie testified that he decided to shoot Smith at the last second while he was under the influence of drugs, Lackie also testified that Atkinson had asked him to kill Smith on numerous occasions and that he would not have killed Smith but for Atkinson asking him to do so. Third, medical evidence showed that Lackie shot Smith in the back of the head from a distance of three feet or less, which is indicative of his purposeful intent to commit murder. Finally, in light of Atkinson’s defense of innocence, no rational basis existed to instruct the jury on a lesser-included offense, because the jury needed only to determine whether Atkinson was guilty or innocent of first-degree murder. Therefore, we cannot say that the trial court erred in declining to instruct the jury on second-degree murder, and we affirm the trial court on this point.

Finally, this court has reviewed the transcript of the record in this case in accordance with Ark. Sup. Ct. R. 4-3(h). That rule requires, in cases in which there is a sentence to life imprisonment or death, that all prejudicial errors be reviewed in accordance with Ark. Code Ann. § 16-91-113(a) (1987). Pursuant to its obligation under Rule 4-3 (h), the State examined the transcript and appellant Atkinson’s abstract to ensure that all rulings adverse to her have been abstracted or supplementally abstracted for our review. The State certified that it briefed all issues raised by Atkinson on appeal and found one error on the part of the trial court involving the trial court’s communication with the jury, which was neither abstracted nor briefed by Atkinson.

During the jury’s deliberation in the guilt phase, the jury sent a note to the trial court containing two questions: “May we please see the letters written by Carmen to Richard in jail? Also statements to police by Carmen on October One and October Two.” After a discussion between the trial court and counsel for the parties, the trial court stated the foEowing: “I’m just going to say that the letters and statements, the written forms, are not in evidence. The spoken word is what they have to consider.” When the court asked whether anyone objected to that answer, counsel for the prosecution responded, “no,” and counsel for appeEant responded, “It’s a correct statement of the law.”

The record lodged by Atkinson does not reflect whether, or in what manner, the trial court’s answer was actuaEy communicated to the jury. On September 6, 2001, however, we granted the State’s motion to remand this case to the trial court for it to settle the record concerning whether, and in what manner, the trial court’s response to the jury’s questions was communicated to the jury. In accordance with our writ of certioriari, the trial court held a hearing to settle the record on September 27, 2001, at which Atkinson and her counsel, as well as the prosecuting attorney and deputy prosecuting attorney, were present.

Arkansas Code Annotated § 16-89-125(e) (1987) provides that trial courts must call juries into open court in order to communicate with them when they have a query during deliberations. Noncompliance with this statutory provision gives rise to a presumption of prejudice, and the State has the burden of overcoming that presumption. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986); Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995). The failure of a defendant and his counsel to be present when a substantial step, such as the judge’s answering questions of law in the jury room is taken in defendant’s case results in violation of the defendant’s fundamental right to be present at any stage of the criminal proceeding is critical to the outcome. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). However, this court has held that strict compliance with the rule was waived where attorneys went with the judge to the jury room, everything that happened was reported in the record, and there was no possibility of prejudice. Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973). In Goff supra, on the other hand, this court held that strict compliance with § 16-89-125(e) had not been waived where the State failed to show what occurred during a trial judge’s visit to the jury room.

While the trial court here violated § 16-89-125(e) by communicating with the jury other than in open court, reversal of Atkinson’s conviction here, in these particular limited circumstances, is not warranted, because the State clearly rebutted the presumption of prejudice which arose from the violation. The trial court found, without objection by Atkinson, that its communication with the jury was limited to answering the jury’s questions via a note, using the language agreed upon by the parties. The record clearly reflects the substance of the trial court’s communication with the jury, and the court answered the jury’s questions in the manner agreed upon by the parties in open court. Here, the trial court never had any contact with the jury during deliberations, and Atkinson fully agreed with the court and State regarding the answer written on the same note on which the jury had written its questions. In short, the State clearly rebutted the presumption of prejudice which arose from any violation of § 16-89-125(e). To reverse this case on these facts would place form over substance and would in effect adopt a brightline rule which would require an automatic reversal merely by showing § 16-89-125(c) had been violated. That is not the rule. Here, the court’s communication with the jury was shown not to be prejudicial to Atkinson, and Atkinson made no objection to the contrary. Thus, we affirm the trial court on all points.

Brown and Thornton, JJ., dissent.

Imber, J., not participating.

R AY THORNTON, Justice,

dissenting. In its analysis of the Rule 4-3 (h) error that was brought to our attention by the State, the majority today has concluded that the State has overcome the presumption of prejudice that arose from the trial court’s violation of Ark. Code Ann. § 16-89-125(e) (1987) when it communicated its answer to the jury’s questions by means of a note without first bringing the jury into the courtroom. While I agree that the appellant’s other points on appeal have no merit, I cannot agree with the majority’s conclusion regarding the Rule 4-3(h) error. For this reason, I respectfully dissent.

The majority correctly acknowledges the well-established line of cases where we have held that strict compliance with Ark. Code Ann. § 16-89-125(e) may be waived where the attorneys go with the judge to the jury room, everything that happens is reported in the record, and, thus, there is no possibility of prejudice. See Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001) (citing Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973)). However, I am unable to agree with an extension of this exception to our strict compliance rule to the circumstances of this case.

Unlike the cases in which we have held that strict compliance had been waived where the attorneys go with the judge to the jury room and everything that happens is reported in the record, the trial judge and the attorneys here did not enter the jury room. In addition, while the trial court and the parties orally agreed to the language proposed for the note, and the discussion of such proposed language was reflected in the record, the written note is not included in the record because it has since been lost. The exact language of the note is not part of the record. Instead, we are told what the trial court intended to convey by means of a note. Additionally, what occurred in the jury room when the trial court’s response was received by the jury was not reflected in the record. See Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). There is nothing in the record to indicate the language actually used in the note because because no court reporter was present in the jury room to record the reading of the trial court’s communication with the jury. In Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986), we held that the State had not met its burden of overcoming the presumption of prejudice by showing what occurred when the trial judge answered the jury’s questions because the record was incomplete regarding the trial judge’s actual communication with the jury. Id. As in the present case, the court reporter in Tarry, supra, did not record what happened when the trial judge entered the jury room to answer the jury’s questions. Id.

Finally, the State’s reliance upon Houston v. State, 41 Ark. App. 67, 848 S.W.02d 430 (1993) is misplaced. In that case, the court of appeals held that the presumption of prejudice had been rebutted where the record clearly reflected what occurred when the jury sent the note to the judge, as well as the judge’s response, the note itself had been preserved for the record, and the trial court’s communication with the jury occurred after the jury had already finished its deliberations on guilt. Id. Here, unlike in Houston, supra, the note has not been preserved as part of the record and the jury was still in the midst of deliberations in the guilt phase when the trial court sent its response to the jury’s questions by means of a note.

I am unwilling to accept that the presumption of prejudice arising from a violation of the statute prohibiting a trial court’s communication with the jury outside the confines of the courtroom may be cured by the trial court’s effort to reconstruct the language that a missing note contained. The creation of such an exception to the rifle established by statute will open the door to allow unrecorded communication with a jury that is in the midst of reaching a verdict. I cannot find that the State has rebutted the presumption of prejudice where the offending note is not available for our review. In my opinion, passing notes back and forth simply does not comply with the statutory requirement that all communication with a jury must be made of record in open court with all parties present. I do not think we should extend the narrow exception to full compliance with the statute to fit the circumstances of this case. ,

In reaching my conclusion, I am mindful of the policy reasoning behind Ark. Code Ann. § 16-89-125(e), which we discussed in Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993). We stated:

The following quotation, which stresses the importance of strict compliance with section 16-89-125(e)’s predecessor, bears repeating here:
The procedure set out in the statute is not difficult to follow and places no burden at all on the trial court or attorneys, and places very little burden on the jury. It simply recognizes that the courtroom, where the trial is being conducted, is the proper place for the giving of all instructions to the jury in open court and where all the jury and anyone else interested, including the defendant, can hear the instructions in the context given. The defendant, as well as the public, is entitled to know what goes on in the courtroom, but they are not entided to know what goes on in the jury room. We can think of many good reasons why a jury should receive all instructions in the public forum of the courtroom and we can think of no good reason why it should not. To strictly follow the simple procedure as set out in the statute, would avoid such difficulties that have arisen in th[is] . . . case. . . .
Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973) (referring to Ark. Stat. Ann. § 43-2139 (Repl. 1964), identical in all respects to section 16 — 89—125(e)).

Davlin, supra. Trial in open court is a fundamental right, and a contemporaneous objection is not required. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997).

Here, the trial court failed to follow the statute and erred in communicating with the jury by means of a note. The State faded to rebut the presumption of prejudice arising from that error because the note is not available for our review, and I would conclude that the trial court’s violation of Ark. Code Ann. § 16-89-125(e) must be deemed prejudicial to appellant. I would reverse and remand the case to the trial court.

As Justice George Rose Smith wrote in Tarry:

Although we have not held, and do not intend to hold, that this right of defendant cannot be waived, we take this means of giving notice that we will carefully scrutinize every case tried after the date of our decision in Martin (July 23, 1973) to determine whether there has been a waiver of defendant’s right to have such proceedings held only in open court, and that all reasonable doubts will be resolved by us against waiver.

Tarry, supra (citing Jackson v. State, 256 Ark. 406, 507 S.W.2d 705 (1974); Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971)) (emphasis added).

Because I cannot agree with the majority’s conclusion that the State has overcome the presumption of prejudice that arose from the trial court’s violation of the statute prohibiting the trial court from communicating with the jury outside the presence of the courtroom, I respectfully dissent.

I am authorized to state that Justice BROWN joins in this dissent.

       Ark. Code Ann. § 5-10-102 provides, in pertinent part:
      (a) A person commits murder in the first degree if:
      (2) With a purpose of causing the death of another person, he causes the death of another person.

        Id. Ark. Code Ann. § 5-2-202 (Repl. 1977) defines “purposely” as follows:
      (1) “Purposely.” A person acts purposely with respect to his conduct or as a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.

        Id.

       Section 16-89-111(e) provides:
      (1)(A) A conviction or an adjudication of delinquency cannot be had in any case of felony upon the testimony of an accomplice, including in juvenile court, unless corroborated by other evidence tending to connect the defendant or the juvenile with the commission of the offense.
      (B) The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances therefor.

        Id.

       Ark. Sup. Ct. R. 4-3(h) provides:
      When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. § 16-91-113(a). To make that review possible, the appellant must abstract all rulings adverse to him or her made by the trial court on all objections, motions, and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling. The Attorney General will make certain and certify that all of those objections have been abstracted and will brief all points argued by the appellant and any other points that appear to involve prejudicial error.

       the note had been lost.


source: Caselaw Access Project

author: D ONALD L. CORBIN, Justice. T OM GLAZE, Justice,

license: Public Domain

text:
    STATE of Arkansas v. Misty Renee PRUITT
    CR 01-776
    64 S.W.3d 255
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellant.

      Paul Petty, for appellee.
   D ONALD L. CORBIN, Justice.

This is an appeal by the State of Arkansas from an order of the White County Circuit Court granting Appellee Misty Renee Pruitt’s motion to suppress. For reversal, the State raises several allegations of error regarding the trial court’s finding that a search of Pruitt’s vehicle was illegal, thus suppressing evidence found during the search and a subsequent statement made by Appellee. As is required by Ark. R. App. P.— Crim. 3(c), the State alleges that error has been committed to the prejudice of the State and that the correct and uniform administration of the criminal law requires review of this appeal. We disagree and dismiss the appeal.

The record reflects that on the evening of December 8, 2000, a gold 1999 Chrysler Sebring convertible pulled into a parking lot of a convenience store at the intersection of Highways 367 and 385 in Judsonia. Present in the parking lot were Kensett Police Officer Terry Evans and White County Deputy Mike Rogers. The driver of the Sebring, Christy Ireland, pulled up behind the officers and flashed the car’s headlights. Ireland and a rear-seat passenger, James Ball, then got out of the car while arguing with one another. Pruitt, seated in the front passenger seat initially remained in the vehicle. Ireland reported to the officers that Ball had attempted to grab the car’s steering wheel while she was driving. Deputy Rogers took Ball aside, while Officer Evans radioed Sergeant Robert Parsons Jr., of the Judsonia Police Department, for assistance.

According to Parsons, when he arrived on the scene, Pruitt was still sitting in the vehicle, but then voluntarily exited the vehicle. Evans inquired if there was any contraband in the car, and the women replied, “No.” Parsons then asked the women if they had used methamphetamine, and they admitted to having used it within the last twenty-four hours. Thereafter, Parsons requested consent to search the vehicle from Ireland. Even though both officers admitted that they did not know who owned the vehicle, at no point prior to the search did either officer inquire as to who owned it. Instead, Parsons simply presented Ireland with a consent to search form, and she signed it. Evans and Parsons both testified that Pruitt was present when they requested the consent, but that she never indicated that she was the owner of the car, nor objected to the search.

During the search, Evans discovered a black purse on the front passenger floorboard. Without asking who owned the purse, Evans opened it and found two white rocks in a plastic bag and a second plastic bag with a powder residue on it. The rocks were identified as methamphetamine. Parsons discovered a Wal-Mart sack that contained a fight bulb with a coke bottle cap attached to it and a glass tube stuck down through the cap. Inside the bulb was a burned white rock, also methamphetamine. He also discovered a Bearcat scanner in the rear of the car. Parsons admitted that neither he nor Evans looked at the vehicle’s registration papers that were located in the car’s glove box until the end of the search, after the drugs had already been discovered.

Pruitt was placed under arrest and transported to the police department in Judsonia. After being advised of her Miranda rights, Pruitt provided a written statement admitting that Ball had given her the methamphetamine in exchange for her driving him to Bald Knob. Parsons then conducted a taped interview with Pruitt who confirmed her written version of events. During this interview, Parsons also apologized to Pruitt for failing to ask for her consent to search the vehicle. Pruitt was charged with possession of a Schedule II controlled substance, namely methamphetamine, with intent to deliver, and use of a communication facility.

She subsequently filed a motion to suppress the evidence seized as a result of the search of her car, on the basis that the officers did not obtain a valid consent to search. Pruitt also requested that her subsequent confession be suppressed as the fruit of an illegal search. The State filed no response to the suppression motion, and the circuit court held a hearing on the motion on April 4, 2001. Neither side made any opening statements. Evans, Rogers, and Parsons each testified, as well as Pruitt. At the conclusion of the hearing, the trial court indicated that closing statements were unnecessary and then proceeded to rule from the bench, granting Pruitt’s motion to suppress the evidence and her statement.

The State then requested permission to file a motion for reconsideration and supporting brief. The court granted this request, and the State filed its motion on April 11, 2001. In its motion for reconsideration, the State argued that Ireland, as the driver of the vehicle, had apparent authority to grant consent to the search, particularly in fight of the fact that Pruitt stood silently by and failed to object to the search. The State averred that the officers’ reliance on this authority was reasonable and held in good faith, thus rendering the consent valid. The State argued in the alternative that any violation of Pruitt’s constitutional rights was minimal, and Pruitt failed to demonstrate that her Fourth Amendment rights were violated.

After considering the State’s motion and Pruitt’s response, the trial court entered a written order affirming its original grant of Pruitt’s motion to suppress. Specifically, the trial court stated:

Arkansas Rules of Criminal Procedure 11.2(b) provides that the registered owner or a person in apparent control of a vehicle may grant consent to search the vehicle. While many times the apparent control of the vehicle is in the hands of its driver, that is not always the case. In the case at hand, Officer Parsons obtained a consent to search from Christie [sic] Ireland, a person whom he never observed operate or control the vehicle. While one can assume that Officer Evans told Officer Parsons that Ms. Ireland had driven the vehicle earlier, when Officer Parsons arrived at the scene, the defendant, Misty Renee Pruitt, was the only person inside the vehicle. In the Court’s opinion Officer Parsons did not in good faith act reasonably when he did not bother to ask any of the three persons at the scene who was the owner of the vehicle in question. When Officer Parsons attempted to obtain a valid consent to search, it was necessary for him to simply ask who was the owner of the vehicle and if that person were available to obtain a consent from such owner.

The trial court also ruled that Evans did not act in good faith when he searched the purse found on the passenger’s side of the vehicle, particularly when he knew Pruitt had been seated on that side of the car. Finally, the trial court found that the language of the written consent signed by Ireland did not extend to a search of a closed container. From that order, comes the instant appeal.

The threshold issue in the instant matter is whether the State has properly brought this appeal pursuant to Rule 3(c). Pruitt contends that this is not an appealable matter because it does not involve the correct and uniform administration of the law. It is well settled that there is a significant difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is neither a matter of right, nor derived from the Constitution, but rather is only granted pursuant to the confines of Rule 3. See State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000); Bowden v. State, 326 Ark. 266, 931 S.W.2d 104 (1996). The limited instances in which the State may bring appeals was set forth in State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000). There, this court stated:

We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W 788 (1916).

Id. at 628, 19 S.W.3d at 13 (quoting State v. Stephenson, 330 Ark. 594, 595, 955 S.W.2d 518, 519 (1997)). Stated differently, this court will only accept appeals by the State when our holding will establish a precedent that will be important to the correct and uniform administration of justice. Stephenson, 330 Ark. 594, 955 S.W.2d 518; State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997); State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997).

In determining the propriety of an appeal by the State, this court must determine whether the issue subject to appeal is one involving interpretation of a rule or statute, as opposed to one involving the application of a rule or statute. Guthrie, 341 Ark. 624, 19 S.W.3d 10. This court has consistently held that an appeal that raises the issue of application, rather than interpretation, of a statutory provision does not involve the correct and uniform administration of the criminal law. McCormack, 343 Ark. 285, 34 S.W.3d 735; State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Moreover, where the resolution of the issue on appeal turns on the facts unique to that case, it cannot be said that the appeal is one requiring interpretation of our criminal rules with widespread ramifications. See State v. Gray, 330 Ark. 364, 955 S.W.2d 502, supplemental opinion on denial of reh’g, 330 Ark. 368-A, 958 S.W.2d 302 (1997); Harris, 315 Ark. 595, 868 S.W.2d 488.

In the instant appeal, the State does not allege that the trial court misinterpreted the law; rather, the State argues that the trial court erred in finding that the officers did not act reasonably in relying on Ireland’s consent. A review of the trial court’s order reflects that he properly considered the law regarding warrantless searches as set forth in Ark. R. Crim. P. 11.1 and 11.2. In order to make such a determination, the trial court was required to review the facts and circumstances surrounding the search of the vehicle and purse. It is well settled that this court will not accept an appeal by the State where the trial court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even a mixed question of law and fact. McCormack, 343 Ark. 285, 34 S.W.3d 735; Guthrie, 341 Ark. 624, 19 S.W.3d 10. The instant appeal is not one involving an erroneous interpretation of Rules 11.1 and 11.2; rather, the State’s argument is premised on the notion that the trial court misapplied the provisions of these rules to the facts and circumstances in this case. In Guthrie, this court refused to take on the role of fact-finder or to engage in a search for error. We again refuse to do so in the instant matter.

Finally, we disagree with the State’s assertion that the policy of ensuring the correct and uniform administration of justice requires us to consider this appeal, because Fourth Amendment search and seizure issues are frequently the subject of litigation. The State’s theory ignores the fact that the validity of this search was a fact-intensive matter, and will have limited precedential effect. The facts present in this case are not facts commonly shared in other cases involving vehicle searches. Stated differently, a review of this appeal will not have widespread ramifications on the interpretation of our criminal law. Accordingly, the State’s appeal of this issue does not fall within the confines of Rule 3, and is therefore not properly before us.

Appeal dismissed.

Glaze, dissents.

IMBER, J., not participating.

T OM GLAZE, Justice,

dissenting. Once again, this court sidesteps review of a search and seizure case that specifically involves the interpretation and application of its rules, Rules 11.1 and 11.2 of the Rules of Criminal Procedure. Our Ride 3(c) of the Arkansas Rules of Appellate Procedure provides for an appeal by the State when the correct and uniform administration of the criminal rules requires review by this court. Here, not only are Rules 11.1 and 11.2 in issue here, but also in question is the purely legal issue of “probable cause.” See Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); see also State v. Sullivan, 340 Ark. 315, 11 S.W.2d 526 (2000) (where we granted review where appeal involved the constitutional safeguards applicable to traffic stops and the misinterpretation and misapplication of Ark. R. Crim. P. 16.2), but see State v. Guthrie, 341 Ark. 624, 16 S.W.3d 10 (2000) (where in a split decision, this court in a search and seizure case similar to Sullivan, refused the State a review under Ark. R. Crim. P. 3(c)). In my view, the majority court was wrong in Guthrie, and it is wrong here, as well.


author: P ER Curiam.

text:
    Joshua BROWN v. STATE of Arkansas
    CR 01-1196
    64 S.W.3d 274
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      Charles Duett, Chief Public Defender, for appellant.
    No response.
   P ER Curiam.

Appellant Joshua Brown, by and through his attorney, Charles Duell, has filed a motion to file a belated brief and for an extension of time. The motion reflects that Appellant was convicted of rape and first-degree murder and sentenced to twenty-five years’ and life imprisonment, respectively. The judgment and commitment order was filed on April 4, 2001, and an amended order was filed on April 5, 2001. The notice of appeal was timely filed on May 2, 2001, the record was timely lodged with this court’s clerk on November 5, 2001. Appellant’s brief was due to be filed on December 17, 2001.

To this date, no brief has been filed on Appellant’s behalf. Mr. Duell admits that he had notice of the brief s due date, and he accepts full responsibility for failing to timely file the brief. He further requests an additional ninety days in which to prepare and file Appellant’s brief. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Johnson v. State, 337 Ark. 609, 990 S.W.2d 553 (1999) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). We thus grant the motion and order that Appellant’s brief be filed with this court’s clerk on or before April 10, 2002.

A copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

Motion granted.

Imber, J., not participating.


author: P ER CURIAM.

text:
    Lloyd CALLIE v. STATE of Arkansas
    CR 01-1351
    64 S.W.3d 274
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      Walker, Shock & Cox, P.L.L.C., by: James O. Cox, for appellant.
    No response.
   P ER CURIAM.

Appellant Lloyd Callie, by and through his attorney, has filed a motion for rule on clerk. His attorney, James O. Cox, states in the motion that the record was tendered late due to a mistake on his part.

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

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

IMBER, J., not participating.


text:
    Steven EDWARDS v. STATE of Arkansas
    CR 00-1452
    64 S.W.3d 706
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      W. Ray Nickle, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellee.
   P ER CURIAM.

Appellant pleaded guilty to murder in the first degree and was sentenced to forty years’ imprisonment. Pursuant to Ark. Code Ann. § 16-93-611 (Supp. 1997), appellant would not be eligible for parole until he had served at least seventy percent of his sentence. During the 1999 legislative session, the Arkansas General Assembly amended § 16-93-611 to allow circuit courts the discretion to waive the seventy percent requirement in some cases in which the defendant was a juvenile at the time of the offense. See Ark. Code Ann. § 16-93-611 (Supp. 1999). Appellant filed a petition seeking to have the requirement waived in his case. The State filed a motion to dismiss arguing that because two years had passed since entry of the sentence, the circuit court was without jurisdiction to hear appellant’s petition. The circuit court agreed and granted the State’s motion. On appeal, appellant argues that the circuit court erred in dismissing the petition, because § 16-93-611, as amended, creates an exception to the limitations for modifying a sentence set by Ark. Code Ann. § 16 — 90—111 and that § 16-93-611 should apply retroactively.

Arkansas Code Annotated § 16-93-611 provides:

(a) Notwithstanding any law allowing the award of meritorious good time or any other law to the contrary, any person who is found guilty of or who pleads guilty or nolo contendere to murder in the first degree, § 5-10-102 . . . shall not, except as provided in subsection (b) of this section, be eligible for parole or community punishment transfer until the person serves seventy percent (70%) of the term of imprisonment, including a sentence prescribed under § 5-4-501, to which the person is sentenced. . . .
(b) The sentencing judge, in his discretion, may waive subsection (a) of this section under the following circumstances:
(1) The defendant was a juvenile at the time of the offense;
(2) The juvenile was merely an accomplice to the offense; and
(3) The offense occurred on or after July 28, 1995.

According to appellant, the 1999 amendment to § 16-93-611 was proposed to specifically address appellant’s case and others similarly situated by granting the trial court the discretion to waive the seventy percent requirement. Appellant claims that under the limited circumstances set forth in subsection (b), the trial court is reinvested with jurisdiction to consider a waiver of the requirement beyond the “120 day (90 day) limit.”

In an attempt to bolster his argument, appellant called State Senator Mike Bearden to testify to the legislative intent of the amendment, but Senator Bearden’s testimony should not have been admitted into evidence. We have specifically held that the testimony of legislators with respect to their intent in introducing legislation is clearly inadmissible. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001), citing Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988). In short, if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Langley v. State, 343 Ark. 324, 325, 34 S.W.3d 364, 365 (2001). Aside from Senator Bearden’s testimony, appellant offers nothing more than the conclusory allegation that § 16-93-611 creates an exception to the limitations set out in § 16-90-111. Appellant cites no authority or language in either statute supporting the allegation.

The plain language of § 16-93-611 allows a, circuit court discretion when deciding whether to waive the seventy percent requirement. According to the plain language of § 16-90-111, a court may not exercise that discretion outside of the limitations set by the General Assembly. Moreover, there is no mention of § 16-90-111 in the language of § 16-93-611. Because appellant filed his petition outside of the period set out in § 16-90-111, the circuit court was correct in dismissing his petition.

Finally, there is no language in § 16-93-611 that expressly reflects the General Assembly’s intent to make the statute retroactive, as appellant claims. Although Senator Bearden testified to such intent, that is not sufficient. Only when the General Assembly expressly provides, will a statute be applied retroactively. Eg., State v. Ross, 344 Ark. 364, 368, 39 S.W.3d 789, 791 (2001).

Affirmed.

IMBER, J., not participating.

       Arkansas Code Annotated § 16-90-lll(b) (Supp. 1997) allowed a circuit court to reduce a sentence within 120 days after the sentence was imposed. In 1999, the Arkansas General Assembly lowered that limitation to 90 days. See Ark. Code Ann. § 16-90-lll(b) (Supp. 1999). In his brief, appellant refers to the limitation as being “120 days (90 days).” However, appellant’s petition was filed beyond the time period under either version.


author: P lER CURIAM.

text:
    Tony PENNINGTON v. STATE of Arkansas
    CR 01-1352
    64 S.W.3d 708
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      Walker, Shock & Cox, P.L.L.C., by: James O. Cox, for appellant.
    No response.
   P lER CURIAM.

Appellant Tony Pennington, by and through his attorney, has filed a motion for rule on clerk. Attorney, James O. Cox, states in the motion that the record was tendered late due to a mistake on his part.

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

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

IMBER, J., not participating.


text:
    Phillip WILLIAMS v. STATE of Arkansas
    CR 01-1170
    65 S.W.3d 401
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      Thomas B. Devine, III, for appellant.
    No response.
   P ER CURIAM.

Thomas B. Devine, III, as a state-salaried, full-time public defender, was appointed by the trial court to represent appellant Phillip Williams, an indigent defendant, in this criminal case. Williams was convicted and sentenced to life imprisonment in the Arkansas Department of Correction. Mr. Devine timely filed a notice of appeal from the judgment of conviction and lodged the appellate record with the Supreme Court Clerk.

Mr. Devine now asks this court to relieve him as appellant’s counsel and to appoint new counsel. Mr. Devine cites Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), that public defenders cannot be paid separately to file appeals. Accordingly, we grant Mr. Devine’s motion to be relieved for good cause shown. Mr. Tim Cullen will be substituted as appellant’s attorney in this matter.

IMBER, J., not participating.

       Act 1370 of2001 provides that part-time public defenders may receive compensation from appellate courts.


text:
    Jimmy Don WOOTEN v. STATE of Arkansas
    CR 01-986
    64 S.W.3d 708
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      Alvin Schay, for appellant.
    No response.
   P ER CURIAM.

Appellant, Jimmy Don Wooten, by and through his attorney, Alvin Schay, has filed a motion for belated appeal, which will be treated as a motion for rule on the clerk. Appellant’s attorney states in the motion that he was appointed to represent appellant in a Rule 37 appeal in a captial case, and the original due date for the abstract and brief was November 13, 2001. He obtained a thirty-day extension to December 13, 2001; and, although he intended to seek another thiry-day extension, he failed to do so by December 13, 2001.

Mr. Schay admits in the instant motion that the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals In Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, we grant the motion for rule on the clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.

IMBER, J., not participating.


author: w .H. “Dub” Arnold, Chief Justice. R OBERT L. BROWN, Justice,

text:
    Marcel Wayne WILLIAMS v. STATE of Arkansas
    CR 00-822
    64 S.W.3d 709
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002

      William A. McLean, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   w .H. “Dub” Arnold, Chief Justice.

Marcel Williams was found guilty of capital murder and sentenced to death. We affirmed his conviction and sentence in Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Williams subsequently filed a petition for postconviction relief in the trial court pursuant to Arkansas Rule of Criminal Procedure 37, alleging ineffective assistance of counsel. The trial court denied the petition. On appeal, Williams asserts that the trial court erred in finding that he received effective assistance of counsel in the penalty phase of his jury trial. He contends that his trial counsel was ineffective for failing to introduce mitigation evidence concerning his troubled youth and asserts that the trial court should have vacated his death sentence and ordered a new sentencing phase of the trial. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (a) (8). We find no error and affirm.

In considering Williams’s appeal, it is unnecessary to repeat all the facts and evidence previously detailed in Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). The record reflects that the trial court appointed two attorneys to represent Williams in his original trial: Herbert Wright and Phillip Hendry. The two attorneys recruited the assistance of Bill James, who also participated in Williams’s defense but was not appointed by the court. After a jury trial, Williams was found guilty of all charges and convicted of the capital murder of Stacy Errickson. Following the sentencing phase of his trial, Williams was sentenced to death by lethal injection.

At his Rule 37 hearing, Williams asserted only one ground for relief. He alleged that his trial counsel rendered ineffective assistance in the penalty phase of his trial by failing to properly investigate mitigating evidence and present such evidence to the jury during the sentencing phase of his trial. The record reflects that all three members of Williams’s trial counsel testified it was their strategy to gain credibility with the jury, in the face of overwhelming evidence ofWilliams’s guilt, by admitting guilt to the jury and seeking mercy through a punishment of life without parole. In an effort to obtain potentially mitigating evidence, counsel ordered a mental evaluation of Williams and reviewed his school, medical, and prison records. The potentially mitigating evidence of which counsel was aware consisted of the following: Williams had been in training school early, near the age of eleven or twelve; he had previously spent time in the Department of Correction; his mother did not provide a good home life for him; he had confrontations with his stepfather; his mother had a lot of men in and out of the house and possibly used drugs in his presence; his family faced economic hardship; and he was allegedly raped in prison at the age of sixteen.

Defense counsel did not present any of the potentially mitigating evidence of Williams’s troubled background to the jury. Counsel testified at the Rule 37 hearing that they did not want to put Williams on the stand to testify to his troubled youth because they feared opening him up to questions by the prosecuting attorney about details of the gaps in time during the kidnapping of Ms. Errickson, as well as other crimes Williams had committed around the same time, including the abduction and rape of another young woman which Williams had already pleaded guilty to. Counsel also feared that, by putting Williams on the stand, they would open him up to questions about the major disciplinary problems in his prison record. Counsel considered using Williams’s mother to put on evidence about his troubled past, but she would not cooperate with them; and Williams could not recommend anyone else who could have presented the evidence on his behalf. Thus, defense counsel chose to present only one witness during sentencing: Michael Orndorff, an inmate at the Arkansas Department of Correction. Orndorff originally received the death penalty, but his sentence was commuted to life without parole. Defense counsel intended for Orndorff to communicate to the jury that life in prison without parole, as opposed to being on death row, is an extremely harsh punishment.

Overall, the defense submitted six mitigating factors to the jury for consideration: (1) the capital murder was committed while Williams was under extreme mental or emotional disturbance; (2) the capital murder was committed while Williams was acting under unusual pressures or influences or under the domination of another person; (3) the capital murder was committed while the capacity of Williams to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse; (4) the youth of Williams at the time of the commission of the capital murder; (5) that Williams accepted responsibility for his conduct and admitted his participation in the crime; and (6) that Williams showed remorse for his actions.

The State presented evidence bearing on three aggravating circumstances: (1) that Williams had previously committed another felony, an element of which was the use or threat of force or violence to another person or creating a substantial risk of death or serious physical injury to another person; (2) that the capital murder was committed for pecuniary gain; and (3) that the capital murder was committed in an especially cruel and depraved manner. At the conclusion of the sentencing phase, the jury found that all three aggravating circumstances existed beyond a reasonable doubt, but found the probable existence of only one mitigating circumstance: that Williams had accepted responsibility for his conduct. The jury concluded that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt and that the death penalty was justified beyond a reasonable doubt.

Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). Judicial review of counsel’s performance must be highly deferential. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Nooner v. State, supra. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000).

Williams argues that his counsel was ineffective in the sentencing phase of his trial for failing to introduce mitigation evidence concerning his troubled youth. We have often quoted the standard for ineffective assistance of counsel from Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

See Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). Thus, a defendant must first show that counsel’s performance “fell below an objective standard of reasonableness.” Id. (citing Strickland v. Washington, supra). Second, the defendant must show that counsel’s errors “actually had an adverse effect on the defense.” Id. (citing Strickland v. Washington, supra). In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Thomas v. State, supra; Wainwright v. State, 307 Ark. 569, 823 S.W.2d 499 (1992). A postconviction petitioner claiming ineffective assistance 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. Wainwright v. State, supra. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Thomas v. State, supra. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

Williams argues that the case of Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000) is directly on point and supports his position that his counsel was ineffective. Contrary to Williams’s argument, Sanford v. State is factually different from the case now before us. We determined that Sanford’s attorney was ineffective because the attorney made no effort to obtain Sanford’s school records, jail records, medical records, or family history. Id. If obtained, those records would have shown that Sanford was considered mildly mentally retarded, had been in special education, and had a good school record with only one disciplinary incident. Id. We held that the attorney’s “failure to investigate caused the jury not to have before it all the available significant mitigating evidence” and further held that such failure raised “a reasonable probability that the result of the sentencing proceeding would have been different if competent counsel had presented and explained'the significance of all the available evidence.” Id. at 34, 25 S.W.3d at 422 (citing Williams v. Taylor, 529 U.S. 362 (2000)).

Sanford referred to another decision in which the appellant’s attorney failed to discover or put on any mitigation evidence: Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983). Available evidence in Pickens indicated that the appellant was physically abused by his father as a youth, tried to run away several times, and had prior difficulties with the law as both a juvenile and an adult. Id. The Eighth Circuit Court of Appeals held that, given the severity of the potential sentence and the reality that the appellant’s fife was at stake, it was incumbent upon counsel to offer mitigating proof. Id. However, the court based its decision upon the fact that there was no indication in the record that counsel made a tactical decision not to offer the evidence. The court noted it was more likely that counsel “abdicated all responsibility for defending his client in the sentencing phase.” Id. at 1467. It was undisputed that counsel made no investigation whatsoever into any potential mitigating circumstances, prompting the court to add: “It is only after a full investigation of all the mitigating circumstances that counsel can make an informed, tactical decision about which information would be the most helpful to the client’s case.” Id. However, the court made it clear in Pickens that it would not have faulted a strategy decision by counsel to concentrate on another possible line of defense “if it were a reasoned choice based on sound assumptions.” Id.

In this case, contrary to Sanford and Pickens, counsel clearly made a full investigation of all information available to them at the time and made a tactical decision not to offer that information to the jury. Phillip Hendry, the member of counsel assigned to handle the sentencing phase of the trial, and his co-counsel investigated Williams’s school records, jail records, medical records, and family history for substantial mitigating circumstances. The results of that investigation are set out above. Counsel also had Williams evaluated by a psychiatrist, but the psychiatrist’s report indicated that he was competent and also contained information they felt could have been damaging to his case. Counsel did not present any of the evidence of Williams’s troubled youth to the jury because they did not want to put Williams on the stand to testify, his mother would not testify on his behalf, and he could not recommend anyone else to present the evidence. Though counsel testified at the Rule 37 hearing that, looking back, they felt they should have done things differently, they admitted that, at the time of trial, they did not know any other way to introduce the information about Williams’s troubled youth.

Hendry stated at the Rule 37 hearing: “[I]n hindsight seeing . . . that . . . our strategy was not accepted ... I would probably now put a lot of things in maybe that I didn’t do the first time.” However, he also acknowledged: “[T]he reason we did not do that is because we wanted to avoid Marcel taking the stand . . . there was too much negative that could come out of him by taking the stand,” and “we saw some of the things we could have brought out in sentencing, his background, ... as being flipped and being turned into a non-specified aggravator . . . something that could be argued in close that would harm him.” The other members of Williams’s trial counsel also admitted that, in hindsight and after learning more about how the mitigation phase of trial works, they felt they should have petitioned the court for funds to hire a psychiatrist or psychologist to tell the jury about Williams’s background. Herb Wright testified.: “[I]t wasn’t that we didn’t have mitigation, [it was] that we were ignorant of how to present it without exposing him.” However, counsel admitted that they believed they did the best they could at the time with the knowledge they had. A fair assessment of counsel’s performance under Strickland v. Washington, supra, requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. Thomas v. State, supra. Thus, hindsight has no place in a review of effective assistance of counsel.

Matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel. Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994). As the decision not to introduce evidence of Williams’s troubled background was made after a full investigation and pursued in Williams’s best interest, we hold that it was a reasonable trial strategy decision and that counsel’s performance did not fall below an objective standard of reasonableness.

At any rate, Williams has not shown that counsel’s failure to introduce the evidence of his troubled past prejudiced the outcome of the sentencing phase of his trial. The Sanford decision relied heavily upon Williams v. Taylor, 529 U.S. 362 (2000), in concluding there was a reasonable probability that the outcome of the sentencing phase in that case would have been different if competent counsel had presented and explained the significance of all available mitigating evidence. In Williams, however, the appellant offered factual substantiation of such a substantial amount of omitted mitigating evidence that the Court was convinced that there was a reasonable probability that the evidence could have changed the result of the sentencing phase. The evidence was much more substantial than in the present case.

Existing documents in Williams “dramatically described mistreatment, abuse, and neglect during [the appellant’s] early childhood, as well as testimony that he was ‘borderline mentally retarded,’ had suffered repeated head injuries, and might have mental impairments organic in origin.” Id. at 370. Other omitted evidence showed that the appellant did not advance beyond sixth grade in school, his parents had been imprisoned for the criminal neglect of the appellant and his siblings, he had been severely and repeatedly beaten by his father, he was in the custody of the social services bureau for two years during which he had a stint in an abusive foster home, and he was returned to the custody of his parents after they were released from prison. Id. In addition, the appellant had received commendations in prison for helping to crack a prison drug ring and for returning a guard’s missing wallet, and prison guards were willing to testify that he was among the inmates least likely to act in a violent or dangerous way. Id.

In the instant case, Williams contends, with no factual substantiation, that he had a poor home life and was allegedly raped in prison at age 16. Williams’s most specific assertion is that “a different result could have occurred” if his trial counsel had presented mitigation evidence concerning his troubled youth. That allegation, however, is merely conclusory and does not establish that Williams was denied a fair trial. When a defendant challenges a death sentence, the question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Hill v. Lockhart, 28 F.3d 832 (1994) (citing Strickland v. Washington, supra). It is likely that the jury would have viewed Williams’s prior difficulties with the law as both a juvenile and an adult unfavorably, and they may not have been sympathetic to his troubled family background. He failed to call anyone to the stand at his Rule 37 hearing or to proffer the substance of any specific testimony to show what evidence could have been presented and whether it would have changed the mind of one of the jurors. See Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). We will not grant postconviction relief for ineffective assistance of counsel where the petitioner failed to show what the omitted testimony was and how it could have changed the outcome. Id. Williams has failed to demonstrate there is a reasonable probability that, but for counsel’s failure to introduce the evidence of his troubled youth, the jury would have reached a sentence of life imprisonment without parole. As Williams has failed to demonstrate both error and prejudice, we affirm.

Affirmed.

BROWN, J., concurs.

IMBER, J., not participating.

R OBERT L. BROWN, Justice,

concurring. I disagree with the majority’s conclusion that the three defense counsel in this case made a strategic decision not to present mitigating evidence of Williams’s family and penal history. Each attorney testified that he was unaware that this evidence could be offered through a witness other than the appellant and/or that reason, failed to present the proof to the jury. It may have been a strategic decision not to call Williams to discuss his past, but it was clearly ineffective representation not to have presented this evidence through another witness such as a psychiatrist, psychologist, or social worker.

Defense counsel William Owen James made this point abundantly clear at the Rule 37.5 hearing:

With regard to what I’ve learned since this case, I’d like to preface this, I was a pup in this game. I didn’t know anything about it. I’d watched some capital murder cases, hear bits and pieces, but I had never tried one. And so I hate to criticize, but, I mean, we completely and absolutely dropped the ball. We didn’t do anything we should have done for sentencing phase. I think there was huge amount of mitigation that could have been brought forward. I believe that this man’s life from the time he was born, I mean he went to prison when he was 14 or 15. He went to training school. He got out and robbed someplace with a broken shotgun because he thought he could [go] back to the training school, was charged as an adult and went to prison and then got out seven months before this happened, I believe. And I think the, I mean, the evidence would have showed that his family life was pretty messed up, that he didn’t have lot of guidance.
I absolutely disagree that it was trial strategy on the part of the defense team, after careful consideration that the witnesses put on in the sentencing phase was the best way to proceed in this particular case. Before this I had tried no capital cases. From November to the time of the trial I was there every time and I don’t know — it frankly didn’t come up that much. The idea of mitigation was apparently by all of us. Like I said, I certainly don’t mean to discredit the folks who were helping me learn, but, this is the bottom line, we had no idea what mitigating — we thought mitigation was Boy Scout merits he should have got. We had no idea what we should have been looking for.

James concluded that without question this social and penal history should have been conveyed to the jury through a psychiatrist or psychologist.

Lead defense counsel Herb Wright, Jr., testified similarly:

The concept of using a psychiatrist or psychologist or some type of mitigation specialist to come and present a life history of the client was foreign. That is something I learned in other experiences. I think to do that makes an incredible difference.
In looking back, the problem as I see wasn’t that we didn’t have mitigation, is that we were ignorant of how to present it without exposing him. I was concerned about putting him on in the penalty phase. Now I know that I can achieve the goal through a psychologist or a psychiatrist or a mitigation specialist.

Wright acknowledged that it was error on his part not to have presented a psychiatrist or psychologist to explain to the jury Williams’s background and history. He was simply ignorant as to how to go about it. He acknowledged that the defense team did not want to call Williams to testify, but the team did not know that they could have hired and called a professional to present this mitigating evidence. The third defense counsel, Phillip Hendry, testified that looking back on it, he would have put on Williams’s background in mitigation.

The importance of mitigation evidence in the sentencing phase of a death case has been emphasized by this court. We no longer engage in a proportionality review of comparable crimes and sentences as part of our death-case analysis, because we have concluded that the weighing of aggravating and mitigating circumstances by the jury affords sufficient protection against arbitrary verdicts. See Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). That, of course, highlights the importance of mitigating evidence.

Nevertheless, I agree with the majority that Williams has not shown that with the omitted social history and background, there is a reasonable probability that the results of his trial would have been different. What he offers in the way of early incarcerations, a dysfunctional family, and rape while in prison does not compare to the omitted history in either Williams v. Taylor, 529 U.S. 362 (2000), or Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000).

For that reason, I agree to affirm.