text:
    Ronald OWEN v. STATE of Arkansas
    CR 00-820
    26 S.W.3d 122
    Supreme Court of Arkansas
    Opinion delivered September 7, 2000

      Randel Miller, for appellant.
    No response.
   Per Curiam.

Appellant Ronald Owen was convicted of possession of methamphetamine with intent to deliver, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of marijuana with intent to deliver, and judgment was entered on November 17, 1999. Appellant timely filed his Notice of Appeal on November 29, 1999, and the record was accordingly due to be filed on February 28, 2000. Appellant then sought, and obtained, and extension of the time to file the record from February 28, 2000, to May 28, 2000. On May 26, 2000, the trial court again extended the time to file the record from May 28, 2000, to June 27, 2000.

Appellant’s counsel, Randel Miller, attempted to file the record of appeal with the Clerk of this court on June 26, 2000. The Clerk correctly refused to accept the record, stating that it had not been filed in a timely manner. Rule 5 of the Rules of Appellate Procedure — Civil (2000) provides that in no event shall the time for filing of the record be extended more than seven months from the date of the entry of judgment. A motion for a rule on the clerk has now been filed on appellant’s behalf to compel the clerk’s office to accept the record. In his motion, Mr. Miller disagrees that the record has not been timely filed.

This court has long held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. Beavers v. State, 341 Ark. 649, 19 S.W.3d 23 (2000). Here, Mr. Miller does not admit fault, but instead disagrees with the Clerk’s computation of time for filing of the record. We have held that a statement that it was someone else’s fault, or no one’s fault, will not suffice. Id. Furthermore, this court has held that the attorney is responsible for filing the record and cannot shift that responsibility to another. Id. Because Mr. Miller fails to accept responsibility for not filing the record within the required time, appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit in this case accepting full responsibility for not timely filing the record in this case, and upon filing same, the motion for rule on the clerk to accept the record will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

Motion denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Julian Robert PROCTOR v. STATE of Arkansas
    CR 00-779
    25 S.W.3d 413
    Supreme Court of Arkansas
    Opinion delivered September 7, 2000

      William C. McArthur, for appellant.
    No response.
   Per Curiam.

Julian Robert Proctor, by his attorney, has filed a motion for rule on the clerk. His attorney, William C. McArthur, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


text:
    Walter URQUHART v. The Honorable Fred DAVIS, Judge
    00-282
    25 S.W.3d 411
    Supreme Court of Arkansas
    Opinion delivered September 7, 2000
    No response.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for respondent.
   Per Curiam.

On March 7, 2000, Walter Urquhart filed a petition for writ of mandamus in this court contending that the Honorable Fred Davis, Circuit Judge, had failed to act within a reasonable time on a pro se petition for declaratory judgment that was filed in his court on April 2, 1999. The attorney general filed a response to the mandamus action in Judge Davis’s behalf that offered no reason whatever for the delay. After repeated requests to Judge Davis for information on the cause for the delay to which there was no response, the writ of mandamus was issued. Urquhart v. Davis, 341 Ark. 653, 19 S.W.3d 21 (2000). Judge Davis now asks this court to rehear the matter on the ground that there was a material error of fact contained in this court’s opinion issuing the writ.

Judge Davis contends that this court mistakenly characterized Urquhart as a pro se litigant when he was in fact represented by counsel in the circuit court. He argues that Urquhart’s status is significant because when a litigant is represented by counsel, it is within the circuit court’s discretion to entertain any motions filed pro se. He cites Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1991), as support for that position. The reliance on Monts, however, is misplaced.

In Monts, the defendant who was represented by counsel filed in the trial court a pro se motion for dismissal of the charges against him. When the court failed to act on the pro se motion to dismiss within a reasonable time, Monts filed a mandamus action here. While we noted that the court had the discretion to strike pretrial motions which are filed pro se without the knowledge or aid of the attorney-of-record, we specifically held that the trial court should exercise its discretion to either strike the pro se motion on the ground that the defendant is represented by counsel and thus was not entitled to proceed pro se or otherwise make an appropriate ruling on the motion. In either event, we said disposition should be prompt and made a matter of record. Accordingly, we directed the trial court to either strike or act on the motion to dismiss within ten days. Clearly, Monts does not stand for the proposition that a circuit judge has the discretion to ignore a motion filed in his or her court merely because the motion was filed pro se by a litigant who is represented by counsel. Here, the court neither struck the pro se pleading nor otherwise disposed of it.

By taking no action, Judge Davis left this court with no choice but to issue the writ. We find no good cause to rehear the matter.

Petition denied.

       Judge Davis did not include the Urquhart pro se pleading on his compliance report to the Administrative Office of the Courts for the periods in which it was pending.


author: Tom Glaze, Justice. Donald L. Corbin, Justice.

text:
    Renate HAPNEY v. RHEEM MANUFACTURING COMPANY
    99-732
    26 S.W.3d 777
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000
    [Petition for rehearing granted in part and denied in part September 14, 2000.  ]

      Walker, Shock, Harp, & Hill, PLLC, by: Eddie H. Walker, Jr., for appellant.

      Warner, Smith, & Harris, PLC, by: Wayne Harris, for appellee.

        Reporter’s note: For the original opinion, see Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000).

   Tom Glaze, Justice.

Appellee Rheem Manufacturing Company petitions for rehearing of this court’s June 8, 2000, decision wherein it held that the gradual onset for back injuries specified in Ark. Code Ann. § 11 -9-102(4) (A) (ii) (b) applies to injuries to the neck or cervical spine.

In reaching its decision, the majority court relied in relevant part on the case of Newberg v. Thomas Industries, 852 S.W.2d 339 (Ky. App. 1993). There, the Kentucky Court of Appeals, citing to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (1st ed. 1977), held that the cervical vertebrae are part of the worker’s back. In so holding, the Kentucky court based its decision on the 1977 Guides which provided, “The back is a unit of the whole man, [and] may be divided into three sections: the cervical, dorsal, and lumbar regions.”

Rheem notes that the Newberg case was first mentioned by appellant Renate Hapney during oral argument, and it was unable to respond as it should. Even Hapney’s counsel was unable to answer the questions posed to him as to whether the 1977 Guides’ definition of “back” relied on by the Newberg court had changed in subsequent editions of the Guides. Rheem now accurately submits that the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 2nd, 3rd, and 4th editions, do. not contain the definition of “back” utilized by the court in Newberg. In fact, the Guides, 4th edition, at page 13, in discussing the musculoskeletal system, describes that system as being comprised of the upper extremity, the lower extremity, the spine, and the pelvis, each to be considered a unit of the whole person. While the term “spine” is used, “neck” or “back” is not. Moreover, a discussion of the spine in the fourth edition, at page 94, states that symptoms related to the back and spine are among the most common of adults’ everyday complaints, thus demonstrating that the two are not the same thing. The Guides, 4th edition, at pages 116-17, further recognizes the “neck” as a distinct unit in connection with measuring range of motion.

The major point to be made of the above is that the Newberg decision simply is not controlling here since its employment of the definition of “back” used in the 1977 Guides is no longer recognized. Instead, the more current Guides appear to omit that definition of “back” used in the 1977 edition and correctly employ the term “spine” when dealing with the determination of impairments. It is also worth noting at this point that the Guides’ purpose is just that — aiding physicians in the determination of impairments, not in determining whether an injury is compensable.

In considering the above, we emphasize the obvious which was noted in the dissenting opinion rendered on June 8. Section ll-9-102(4)(A)(ii)(b) provides that a worker sustains a compensable gradual onset injury if the injury is a back injury; the statute makes no mention of “spine” or “neck.” Also, as mentioned in that opinion, recognized medical definitions have very clearly defined the term “back” as being below the neck or from the neck to the pelvis. For these reasons, we grant Rheem’s request for rehearing, and hold the commission was correct in rejecting Hapney’s argument that she sustained a compensable back injury under § 11-9-102(4) (A) (ii) (b).

Having rejected Hapney’s foregoing first point on appeal, we must now consider her two other points for reversal, which our court did not address in its original opinion. In her second point, Hapney submits that her neck injury is compensable because the injury was caused by a specific incident and was identifiable by time and place of occurrence pursuant to Ark. Code Ann. § 11 — 9— 102(4)(A)(i). This argument is meritless and can easily be dismissed. Section 11-9-102(4) (A) (i) defines a compensable injury as one “caused by a specific incident and . . . identifiable by time and place of occurrence.” Hapney’s own deposition testimony reflected that she did not know how she was injured and that she did not recall anything specific happening, nor did Hapney tell her treating physician that her pain was associated with any particular, specific incident. Thus, her own words belie her argument that the injury was caused by a specific, identifiable incident.

Her next or third point poses a more complex question. Under this argument, Hapney urges that her injury is compensable because it was caused by rapid repetitive motion, as provided under Ark. Code Ann. § ll-9-102(4)(A)(ii)(a) (Supp. 1999). To prove a rapid repetitive motion injury, a claimant must prove by a preponderance of the evidence that the injury: (1) arose out of and in the course of her employment; (2) caused internal or external physical harm to the body requiring medical services; (3) was caused by rapid repetitive motion; and (4) was the major cause of the disability or need for treatment. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998).

In addition, the court of appeals has expanded the definition of “rapid repetitive motion” beyond an earlier definition that required the motions to be “exact, or almost exactly, the same movement again and again.” Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996) (cited in Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998)). Malone discusses that portion of Baysinger which refined that earlier definition “to include multiple tasks involving different movements which could be considered together to satisfy the repetitive element of ‘rapid repetitive motion.’ ” Malone, 333 Ark. at 349, 969 S.W.2d at 647.

Thus, in Malone, this court devised a two-part standard to determine whether an injury is caused by rapid and repetitive motion: (1) the tasks must be repetitive, and (2) the repetitive motion must be rapid. Malone, 333 Ark. at 350, 969 S.W.2d at 647. In Malone, we further stated as follows: “As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Arguably, even repetitive tasks and rapid work, standing alone, do not satisfy the definition. The repetitive tasks must be completed rapidly.” Id., 969 S.W.2d at 647-48. In Malone, the court held that a woman who worked as a custodian did not perform rapid repetitive motions, even though her job required numerous movements repeated many times in a day, because the movements were different and separated in time. Id., 969 S.W.2d at 648.

Here, however, the facts are more compelling. Over the course of a nine- to ten-hour shift, Hapney completed 316 units, each of which had six screws; on average, the same movements were repeated every 1.89 minutes. Because she had to bend her neck for each screw, that would be 1,896 bends during the shift, or approximately 189-90 bends per hour, assuming a ten-hour shift (the figure approaches 210 bends per hour given a nine-hour shift). Stated another way, in ten hours, Hapney would have bent her neck a little more than three bends per minute, or one bend every twenty seconds.

The workers’ compensation commission rejected this math, concluding that Hapney did not prove that she had sustained a rapid repetitive motion injury because there was “no evidence that each movement required of claimant actually involved the shoulder or neck.” We believe the commission has misread the record. Our standard of review requires us to consider whether a reasonable person could come to the same conclusion, and we will not reverse the commission’s decision unless we are convinced that fair-minded persons with the same set of facts before them could not have reached the conclusions arrived at by the commission. Olsten Kimberly Quality Care v. Petty, 328 Ark. 381, 944 S.W.2d 524 (1997). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the commission’s conclusion, we must affirm its decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).

In the present case, we hold that reasonable minds could not have arrived at the same conclusion as the commission reached. As noted above, nearly 1900 bends over the course of nine or ten hours comes out to a figure between 190 and 210 bends per hour. Even the commission pointed out that Hapney worked on an average of 31.6 units per hour, which required the completion of a set of movements every 1.89 minutes (or a movement every twenty seconds). Movements repeated every fifteen seconds have been found to be sufficiently “rapid” to satisfy § ll-9-102(4)(A)(ii)(a). High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998) (affirming commission’s decision awarding benefits). Likewise, the court of appeals has held that a series of repetitive motions, performed 115 to 120 times per day separated by periods of only 1.5 minutes, constituted rapid motion within the meaning of the statute. Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998). Hapney’s movements, which were repeated every twenty seconds, met the rapidity requirement.

Here, the commission also asserted that “there [was] no evidence that each movement required of claimant actually involved the shoulder or neck.” This argument also appeared in Rheem’s brief, in which the company asserted that although the sequence of movements was repeated every 1.89 minutes, that “ [did] not mean that [Hapney] was required to rapidly move her neck or cervical spine every 1.89 minutes.” Both of these arguments, however, ignore Hapney’s testimony that she had to “stoop over” to locate the screw hole on each unit, but then “had to bend [her] head or neck” and “bend down and turn [her] neck a little” for each of six screws on each of 316 units. The commission should have considered the positioning of the part of the body as well as the number of movements that the claimant had to undergo to determine if the movement was “rapid and repetitive.” Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999).

While the determination of the credibility of the witnesses and the weight to be given their testimony are matters exclusively within the province of the commission, see Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000), it may not arbitrarily disregard the testimony of any witness. Freeman v. Con-Agra Frozen Foods, 70 Ark. App. 306, 19 S.W.3d 43 (2000). Hapney testified that she bent her neck not only for each unit, but for each screw that went into the unit. These same bending movements were repeated for each unit completed, satisfying the repetitive component of the statute. As noted above, these repetitive motions were completed rapidly. The fact that Hapney’s injury occurred after her only day on this particular job strongly indicates that her neck was injured as a result of performing these repetitive tasks. Because both parts of the test set out in Malone were met, we hold that Hapney satisfactorily proved that she suffered a rapid repetitive motion injury to her cervical spine under § 11 -9-102(4) (A) (ii) (a).

We thus hold that Hapney’s injury was compensable, and therefore, while we grant Rheem’s petition for rehearing concerning our initial June 8, 2000, ruling, we still reverse the commission’s denial of benefits to Hapney for the reasons set out above.

CORBIN and Thornton, JJ., dissent in part and concur in part.

Donald L. Corbin, Justice.

Although I agree with the majority’s ultimate decision to award Mrs. Hapney benefits, I would deny rehearing in this case based simply on the fact that Appellee Rheem Manufacturing Company has presented this court with a petition that does nothing more than reargue its points on appeal. This court’s own rule regarding petitions for rehearing specifically states that the petition is to be used to call attention to specific errors of law and fact contained in the opinion. See Ark. Sup. Ct. R. 2-3 (g). In reversing the previous opinion in this case, the majority does not establish how the opinion contained any error of law or fact; rather, the majority opinion is nothing more than a reflection of a contrary opinion. With this grant of rehearing, this court is setting a new and regrettable precedent.

The majority premises its grant of rehearing on the notion that the previous opinion relied on Newberg v. Thomas Indus., 852 S.W.2d 339 (Ky. App. 1993), a case that is not controlling. First of all, this court’s decision did not rely on Newberg. It simply pointed out that another jurisdiction had addressed an issue similar to the one before our court. This court has previously reviewed other jurisdictions’ treatments of a particular issue, but it certainly did not establish precedent.

The majority makes bare mention of our previous analysis focusing on the American Medical Association’s Guides to the Evaluation of Permanent Impairment. As we pointed out, the Commission is required to adopt an impairement-rating guide to be used in the assessment of anatomical impairment, and in complying with its statutory mandate, the Commission adopted the Guides. The majority states that the most recent edition of the Guides omits the definition of back and instead uses the term spine. We stated as such in our previous opinion, and then went on to explain that if the guide adopted by the Commission categorizes an impairment in terms of the “spine,” then the Commission was precluded from making a distinction between the back and the neck for purposes of determining compensability. If the Guides does not have the information necessary for a doctor or the Commission to determine what the impairment rating for a neck injury is, only an injury to the spine, then how can this court hold that it is appropriate for the Commission to make a distinction not recognized by the very impairment guide it adopted? The answer is simple, we cannot. Mush ado has been made about the use of the words back and neck in common parlance, but what everyone seems to forget is that the medical evidence in this case established that Mrs. Hapney suffered from disc herniation at C5-6 and some protrusion at C6-7 resulting in spinal stenosis. Such injuries are addressed by the Guides and the method for determining impairment based on these injuries is explained in detail.

The majority states that the purpose of the Guides is to aid physicians in determining impairment, not in determining if an injury is compensable. Even if that is the only purposes of the Guides, the majority fails to recognize two important facts. First, the Commission adopted the Guides pursuant to statutory mandate. Second, if the purpose of the Guides is to aid doctors, and it discusses injuries usch as Mrs. Hapney’s in terms of “spinal injuries”, as opposed to “neck injuries”, the doctors who rely on the Guides will in turn rate impairments and diagnose patients in terms of spinal injuries, instead of back or neck injuries. Does that mean that a claimant who is diagnosed with an injury to the L1-L5 region of the spine may not recover under Ark. Code Ann. § 11-9-102(4)(A)(ii)(b) because the doctor did not diagnose the claimant with a “back injury”? Such as result is highly doubtful. Moreover, in light of the rigid standard applicable to a doctor’s opinion in these types of cases, the fact that the Guides is relied on by doctors in determining impairment is of utmost importance. Determining impairment and proving compensability are two different things, but they are certainly intertwined. Accordingly, the distinction made by the Commission and now accepted by this court is without merit.

Finally, the majority states that recognized medical definitions have clearly defined the “back” as “being below the neck or from the neck to the pelvis.” It is interesting that the majority’s chosen definition is self-contradictory. Contrary to how the majority may interpret the definition, those authorities defining the back in a manner that means “from the neck” clearly mean that the neck is the beginning point for the back. The word “from” is consistently defined as: “used as a function word to indicate a starting point.” See Webster’s Third New International Dictionary 913 (1981); Black’s Law Dictionary 668 (6th ed. 1990). Thus, when the back is defined as being from the neck, such a definition clearly means that the starting point for the back is the neck.

The Commission’s determination that this injury was not compensable because it was a “neck injury” as opposed to “back injury” is simply another example of how the Commission denies compensable claims that are obviously compensable on some absurd technical ground. Unfortunately, this court, under the guise of strict construction, is allowing the Commission to prevail, even though it is clearly wrong.

I respectfully dissent.

Thornton, J., Joins.

       At the time Hapney filed her appeal, prior to the issuance of the 1999 supplement to the Arkansas Code, this section was § 11-9-102(5). See Ark. Code Ann. § 11-9-102 (Repl. 1996).

       This belated reference to the Newberg case is alone sufficient to consider the granting of a rehearing, especially when this court’s original decision relied on the Newberg holding.

       This court’s original majority opinion referenced Websters’ New World Dictionary 99 (3rd college ed. 1988) to define back as (1) the part of the body opposite to the front; in humans and many other animals, the part to the rear or top reaching from the nape [back] of the neck to the end of the spine; (2) the backbone or spine. This language offers little clarification, but we note the definition in Webster’s New Universal Unabridged Dictionary, Deluxe 2nd Edition, cited by Rheem, which defines “back” as follows:
      (1) the part of the body opposite to the front;
      (2) in man and many animals, the part to the rear or top, opposite the chest, breast, or belly, and reaching from the base of the neck to the end of the spine. (Emphasis added.)

       This statute expressly provides that carpal tunnel syndrome is a compensable injury falling within the defintion of rapid repetitive motion injury.


author: Tom Glaze, Justice.

text:
    Damond SANFORD v. STATE of Arkansas
    CR 99-1057
    25 S.W.3d 414
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Damond Sanford was convicted of capital murder, residential burglary, rape, and theft of property, and sentenced to death; on direct appeal, we affirmed those convictions. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Sanford subsequendy filed a Rule 37 petition requesting postconviction relief, alleging his trial counsel, William Howard, had provided ineffective assistance. The trial court denied Sanford’s petition, and in this appeal from that denial, Sanford raises eight reasons why the trial court was wrong and why his convictions should be reversed.

In considering Sanford’s points for reversal, it is unnecessary to repeat all the evidence and facts already detailed and related in our earlier Sanford decision. We need only revisit those facts relevant to the points argued by Sanford in this appeal. Our established standard of review when considering such claims of ineffective counsel is set forth as follows in 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.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, that counsel’s performance “fell below an objective standard of reasonableness,” id. at 688, and second, that the errors “actually had an adverse effect on the defense.” Id. at 693. Stated differently, the Strickland court held that actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id.

The first of Sanford’s arguments that we consider is his contention that the trial court erred in ruling Howard was not ineffective when he failed to seek the suppression of Sanford’s custodial statement, which Sanford claims resulted from an illegal arrest. In making this argument, Sanford points out that the victim, Minnie Ward, had been murdered at her home at about 9:30 a.m. on January 9, 1995, and that Sanford was arrested without probable cause for the crime on the evening of the same day. Sanford further argues that, while he was under illegal arrest, officers made their case against him, which led to his custodial confession given on January 11, 1995, at 3:00 p.m.

The trial court held that probable cause existed to arrest Sanford on January 9 because, on that day, officers had information from Sanford’s sister and father that, after Ward’s murder, Sanford possessed an antique .44 pistol which was owned by Minnie Ward and kept in her house. Regardless of whether this evidence constituted probable cause to arrest Sanford, Sanford simply fails to show any prejudice that resulted from his arrest and the confession that ensued from it. Consistent with Strickland, this court has stated that a defendant has the burden of providing facts that establish actual prejudice due to his attorney’s conduct. Cranford v. State, 303 Ark. 393, 797 S.W.2d 442 (1990). Sanford himself concedes in his argument that, even without his confession, the State still had his sister Earlene’s testimony that Sanford admitted killing Minnie Ward and had threatened to kill Earlene and her children if she told anybody. Sanford further concedes that, even if his confession had been eliminated from evideiice, that omission might not have prevented his conviction. Nonetheless, he urges that the elimination of his detailed written statement still may well have prevented his being sentenced to death. Sanford offers no compelling evidence or argument to support this conclusion, and we have ruled that a conclusory allegation cannot be a basis for postconviction relief. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). Thus, we reject Sanford’s conclusory argument here.

Sanford next asserts that Howard, as trial counsel, was ineffective for failing to communicate to him the prosecutor’s offer of life imprisonment without parole in exchange for a guilty plea. Basically, this issue involved a swearing match. Howard testified that he conveyed the State’s offer to Sanford and his family, but Sanford and his family claimed that no such offer was ever made. The trial court specifically found that Howard’s testimony was the more credible on this issue. In doing so, the trial court also mentioned the prosecutor’s testimony that Howard made continuous attempts to secure a better offer than fife without parole, but the prosecutor rejected those requests. The trial court concluded that Howard’s efforts to obtain a better offer corroborated his version of what transpired. Our court has held that questions of credibility are within the trial court’s discretion and will not be reversed absent an abuse of discretion. Norman v. State, 339 Ark. 54, 2 S.W.3d 771 (1999) (per curiam). Here, we cannot say the trial judge abused his discretion. Before leaving this point, we note, too, that Sanford does not allege he would have accepted the life-without-parole offer, if it had been made, or that he would accept it even now Without such a showing, this court has held a defendant seeking postconviction relief should be denied because no prejudice is shown. Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983) (per curiam).

In another argument for reversal, Sanford claims Howard rendered ineffective assistance when he failed to call medical examiner personnel as witnesses to testify concerning the victim’s time of death. He also questions Howard’s failure to object to the State’s use of the county coroner to testify as to the victim’s time of death, and asserts the coroner had no medical degree or training to offer an expert opinion on the time issue. The time-of-death issue bore on whether Minnie Ward was alive at the time she was raped.

As noted by the State, to the extent Sanford’s claim purports to challenge the sufficiency of the evidence to support his rape conviction, such claim cannot be entertained in this appeal because this court held on direct appeal that sufficient evidence of rape was shown. Sanford, 331 Ark. at 343, 962 S.W.2d at 340. Sufficiency challenges cannot be raised in Rule 37 proceedings. O’Rourke v. State, 298 Ark. 144, 153, 765 S.W.2d 916, 921 (1989).

Next, Sanford contends that Howard was ineffective when he failed to object to improper rebuttal testimony presented by the State. This argument is also meritless. Rule 37 is a postconviction remedy, and as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). At his original trial, Sanford implicated another person, Mingo Kennedy, as the person who actually killed Ward. He claimed Kennedy put a .380 caliber pistol to Sanford’s head and made him enter Ward’s house. He testified Kennedy shot Ward three times, took money from Ward’s purse, and forced Sanford to have sex with Ward. Sanford claimed he had no gun and further said that he was afraid of Kennedy. State witness David Palmer provided rebuttal testimony to Sanford’s story and testified that, on the day of Ward’s murder, he observed what he thought was a gun in Sanford’s inside pocket. Palmer further related Kennedy and Sanford were together and there was nothing unusual about the way they treated each other. In short, Palmer’s testimony was proper rebuttal testimony, and Howard was not ineffective in choosing not to object to its introduction. Stated in other terms, counsel cannot be ineffective when he or she fails to make an argument which has no merit. Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993).

The same can be said of Sanford’s next argument where he suggests Howard should have objected to the prosecutor’s closing remarks that the defense did not show Sanford was mentally retarded. Sanford argues that his psychologist testified that he had an IQ of 67, in the mildly mentally-retarded range. However, as underscored by the trial court, a factual dispute existed regarding the correctness of the psychologist’s score since he was also tested at a full-scale IQ of 75 by other experts at Delta Counseling. Such a factual dispute was fair argument by the State, and it was within the jury’s province to decide the issue. Again, to say Howard was ineffective in failing to object to the prosecutor’s remarks on this issue is baseless.

Sanford raises a sixth argument wherein he urges that Howard was ineffective when he failed to challenge on appeal the jury’s finding that no mitigating circumstances existed. Sanford’s jury found three aggravating circumstances, but no mitigating circumstances. Once again, he seeks to raise a direct-review question under the guise of ineffective assistance. See O’Rourke, 298 Ark. at 155, 765 S.W.2d at 923. In addition, this court has ruled that a jury’s determination of mitigating circumstance is a finding of fact that lies within its province. Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998). For these reasons, we hold Sanford’s point has no merit.

In his seventh issue for reversal, Sanford claims his trial counsel was ineffective in failing to make the argument that Sanford’s mental status fell within the current definition of a mentally retarded person, and, as such, the imposition of the death penalty violated the constitutional prohibition of cruel and unusual punishment. See Ark. Const, art. 2, § 9; U.S. Const, amend. 8. Sanford concedes this issue was not raised below, but asks us to recognize its viability here under the holding in Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), since this case involves the death penalty. Our court has held that in death-penalty cases we will consider errors argued for the first time on appeal where prejudice is conclusively shown by the record, and this court would unquestionably require the trial court to grant relief under Rule 37. However, Sanford showed no conclusive right to Rule 37 relief on this point. In this respect, Sanford submits that the current definition of mentally retarded is set by the Diagnostic and Statistical Manual IV at a high IQ of 70, and that his expert showed Sanford had an IQ of 67. The States evidence, on the other hand, reflected Sanford’s full-scale IQ was 75 — in the borderline range.

The General Assembly enacted Act 420 of 1993, codified at Ark. Code Ann. § 5-4-618 (a) (2) (Repl. 1997), which establishes a presumption of mental retardation when a defendant has an intelligence quotient of 65 or below. The statute further provides that no defendant with mental retardation at the time of committing capital murder shall be sentenced to death. Ark. Code Ann. § 5-4-618(b) (Repl. 1997). Sanford does not challenge the constitutionality of § 5-4-618. As we recently said in Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000), Arkansas law fixes a rebuttable standard for mental retardation at a quotient of 65. Thus, it was appropriate for the jury to have considered the State’s and Sanford’s evidence when deciding any question bearing on the mental retardation issue. Clearly, Sanford established no conclusive right to Rule 37 relief, and for these reasons, we reject Sanford’s claim of ineffective assistance on this issue.

Finally, in Sanford’s only meritorious contention, he argues Howard’s ineffectiveness when, during the penalty phase of the trial, Howard failed to present mitigation evidence concerning Sanford’s school records showing long-standing mental retardation, his age, medical records, family history, and jail records, reflecting commendations he had received. In the recent case of Williams v. Taylor, 120 S. Ct. 1495 (2000), the Court recognized that a trial counsel’s failure to investigate and present substantial mitigating evidence during the sentencing phase of a capital murder trial can constitute ineffective assistance of counsel. In Williams, the defendant had been convicted of robbery and capital murder, and, based on his “probability of future dangerousness,” he was sentenced to death. The Virginia Supreme Court affirmed, but in a later state habeas corpus proceeding, a trial judge found Williams’ conviction valid, but because counsel had failed to discover and present significant mitigating evidence, the judge held Williams’ right to effective assistance of counsel had been violated. The Virginia Supreme Court set aside the trial judge’s decision, but, in a subsequent federal habeas proceeding, a federal judge agreed with the state trial judge’s holding. The federal district court identified five categories of mitigating evidence that counsel had failed to introduce and concluded that, but for counsel’s unprofessional errors, the result of the penalty proceeding would have been different. The district court’s decision was overturned by the Fourth Circuit Court of Appeals, which in turn was reversed by the Supreme Court.

The Supreme Court held that Williams had a right — indeed, a constitutionally protected right — to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer. Id. at 1513. The Court noted that counsel failed to conduct an investigation which would have shown Williams had been criminally neglected by his parents, beaten by his father, placed in custody of social services, and shown to be borderline mentally retarded. Such an investigation also would have shown commendations given Williams for helping to expose a drug-ring operation in prison, returning a guard’s wallet, and being described as a “least likely [inmate] to act violent, dangerous, or in a provocative way.” The Williams court held that whether or not those omissions were sufficiently prejudicial to have affected the outcome of sentencing, they clearly demonstrate that trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background. The Court further held that counsel’s unprofessional service prejudiced Williams within the meaning of Strickland. Furthermore, the Court stated that the state court failed even to mention the sole mitigating argument trial counsel did advance — Williams had alerted police to a crime they otherwise would never have discovered — and concluded that, while this, coupled with prison records and guard testimony, may not have overcome a finding of future dangerousness, the graphic description of Williams’ childhood, filled with abuse and provocation, or the reality that he was “borderline mentally retarded,” might well have influenced the jury’s appraisal of his moral culpability. Id. at 1515. Because Williams’ prior violent behavior was a compulsive reaction, rather than the product of cold-blooded premeditation, the court decided Williams’ mitigating evidence unrelated to dangerousness might have altered the jury’s selection of penalty, even it if did not undermine or rebut the prosecution’s death-eligibility case.

The Eighth Circuit Court of Appeals has decided two cases that are helpful to our analysis here, and while rendered earlier, are consistent with the rationale in Williams. Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994); Pickens v. Lockhart, 714 F.2d 1465 (8th Cir. 1983). In Pickens, the court recognized the settled rule that the failure to investigate, discover, and present mitigating evidence has been deemed ineffective assistance numerous .times. Id. at 1467-1468. There, the court noted that while the decision not to investigate “all lines of defense” can in some cases be considered trial tactics, a “total abdication of duty” to prepare a mitigation case “should never be viewed as permissible trial strategy.” The court further held that, given the severity of the potential punishment and “the reality that the life of [counsel’s] client [is] at stake, ... it [is] incumbent to offer mitigating proof.” Id.

The Eighth Circuit in Hill related that trial counsel had not bothered to get medical and psychiatric records which would have shown a decades-long history of mental illness and the defendant’s consistent positive response to anti-psychotic medication. In ruling that this failure amounted to ineffective assistance, the court stated “it was the duty of Hill’s lawyers to collect as much information as possible about Hill for use at the penalty phase of his . . . trial.” Hill, 28 F.3d at 845. Because the Hill court found that it was likely that the jury would have at least considered Hill’s impaired capacity as a mitigating factor, had it known of this evidence, the court could hardly imagine Hill had not been prejudiced by his lawyers’ default. The court further concluded that such failure or default had shaken its confidence in the jury’s determination that no mitigating circumstances existed. See id. at 846.

In the present case, Howard largely conceded that he did little in putting on proof of mitigation during the penalty phase, and that the reasons may have been because he was “quite disappointed” in the jury’s guilty verdicts, and “he was tired.” In fact, while he was well aware that, during the penalty phase, the prosecutor painted Sanford as a remorseless, heartless, cold-blooded person, Howard guessed “he did not do anything” to counter the State’s presentation in the penalty phase. Moreover, when asked by the trial court if he intended to ask for AMCI 1009 — the capital murder, mitigation instruction based on mental retardation — Howard responded, “Yes, Your Honor, I had not even thought about it, but I am quite sure I am going to offer that.” (Emphasis added.)

From the colloquy between the trial court and counsel, it became obvious that, although he could have offered additional evidence at the penalty stage, Howard had made no plans to offer any more evidence except the testimony of Sanford’s parents. Nor did Howard recall his expert to expound further on Sanford’s mental status, although he did repeat for the jury some of the expert’s prior trial testimony, which reflected that witness’ opinion that Sanford was mentally retarded when, at age sixteen, he killed Minnie Ward. Sanford’s parents’ testimony was the only additional evidence bearing on mitigating circumstances, and it basically indicated Sanford was young, .had been a good son, had a mental problem, and his life was worth saving.

Other proof bearing on mitigation was available, but was not investigated or discovered by Howard. Howard admitted he made no effort to obtain Sanford’s school records, jail records, medical records, or family history. While he had a social worker available to him, Howard never considered asking the worker to assist him in developing mitigation.

Sanford’s school records showed Sanford had been in special education, and had been considered mildly mentally retarded during much of his time in school. Sanford was shown to have a good record with only one disciplinary incident. His medical history reflects he almost suffocated to death as a child, when a load of cotton seed fell on him; Sanford’s mother opined Sanford acted a “bit slower” after the cotton-seed incident. Later he suffered a blow to the head with a two-by-four wielded by his sister. Proof also available, but not investigated by Howard, showed siblings and other family members to be either slow or retarded.

In sum, the record reveals that Howard placed most of his energies in the guilt phase of Sanford’s trial, and he conducted virtually no investigation in an effort to garner proof to show mitigation. Yet, counsel’s primary function in the penalty phase of a capital trial is to “neutralize the aggravating circumstances” presented by the State and “present mitigating evidence.” See Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999).

In Pickens, cited above, the court rejected the idea that a trial counsel’s failure to offer significant mitigating evidence can be a matter of strategy and tactics; 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. Pickens, 714 F.2d at 1467. The Pickens court, quoting from Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975), which cited the ABA standard, stated the following:

The lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant. Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to fulfillment of these functions. (Emphasis added.)

Pickens, at 1466, quoting 1 ABA Standards for Criminal Justice, Standard 4-4.1, Commentary, at 4-55 (2d ed. 1980). Attorney Howard’s failure to investigate caused the jury not to have before it all the available significant mitigating evidence, and this failure raises “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.” Williams, 120 S. Ct. at 1516 (internal quotations omitted).

For the foregoing reasons, we affirm in part and reverse and remand in part for resentencing.

       Sanford’s parents testified they would have urged him to take the offer.

       Howard said that he had tried three capital murder cases, but this was the first one where the death penalty was imposed.

       It is also worth noting that the prosecutor in this case testified at the Rule 37 hearing that he had never expected the jury to impose the death penalty, and that in his experience, Chicot County was the “least likely [county] in which the State could get the death penalty.”


author: Donald L.Corbin, Justice.

text:
    Riley Dobi NOEL v. STATE of Arkansas
    CR 99-738
    26 S.W.3d 123
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      McLean Law Firm, by: William A. McLean, for appellant.

      Mark Pryor, Att’y Gen., by: Joseph V Svoboda, Ass’t Att’y Gen., for appellee.
   Donald L.Corbin, Justice.

Appellant Riley Dobi Noel was convicted of three counts of capital murder and one count of attempted capital murder; he was sentenced to death by lethal injection and sixty years’ imprisonment, respectively. This court affirmed his convictions and sentences in Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Noel then filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition. On appeal, Noel alleges four instances in which his trial counsel was ineffective: (1) failing to present alibi testimony; (2) eliciting from Noel on direct examination that he was testifying against the advice of counsel; (3) failing to call witnesses to testify about Noel’s demeanor and activities in the days prior to the murders; and (4) failing to request funds for an expert on eyewitness identification. Our jurisdiction of this appeal is pursuant to Rule 37 and Ark. Sup. Ct. R. 1-2 (a) (8). We find no error and affirm.

The trial record shows that on the evening of June 4, 1995, Noel and three other persons went to the home of Mary Hussian in Little Rock. Present in the home that night were Mrs. Hussian, three of her children, and Kyle Jones. The three children (Malak Hussian, age 10; Mustafa Hussian, age 12; and Marcel Young, age 17) were shot by Noel in the head as they lay on the living room floor. Meanwhile, a codefendant, Terry Carroll, attempted to shoot Mrs. Hussian with a shotgun. The shotgun jammed, however, and Mrs. Hussian was eventually able to wrestle it away from CarroE. Jones escaped unharmed through the bathroom window. It was the State’s theory that Noel committed the murders in retahation for the death of his brother, which had occurred approximately one week earlier. Noel apparently believed that his brother had been “set up” in a drive-by shooting by one of Mrs. Hussian’s daughters.

In his petition for postconviction relief, Noel alleged nine instances in which his trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000); Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at 99, 3 S.W.3d at 325. Petitioner must also show that the deficient performance prejudiced his defense; this requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. Unless the petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith, 341 Ark. 722, 19 S.W.3d 612. This court will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Jones, 340 Ark. 1, 8 S.W.3d 482; State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). With this standard in mind, we review the four allegations raised on appeal.

I. Alleged Alibi Witnesses

Noel argues that trial counsel was ineffective for failing to present the testimony of alibi witnesses. The trial record reflects that an in-camera hearing was held, wherein defense counsel reported that Noel had given him the names of several witnesses who would provide an alibi for him. During the course of interviewing those witnesses, it was discovered that they could not provide a genuine alibi for Noel; however, the witnesses indicated that they were prepared to lie for him. Based on this knowledge, counsel advised that he would not present the false testimony, as it would violate the Model Rules of Professional Conduct.

During the postconviction hearing, Noel failed to call these alleged alibi witnesses to the stand. Moreover, he made no attempt to proffer the substance of the testimony that they would have provided at trial. This alone is sufficient reason to affirm. This court does not grant postconviction relief for ineffective assistance of counsel where the petitioner has failed to show what the omitted testimony was and how it could have changed the outcome. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

Furthermore, the Supreme Court has recognized that as a matter of law, counsel is not ineffective for failing to present false testimony. In Nix v. Whiteside, 475 U.S. 157 (1986), the defendant in a murder trial had consistently told his attorney that he had acted in self-defense in stabbing the victim. He told his attorney that although he had not actually seen a gun in the victim’s hand, he was convinced that the victim had a gun. Shortly before the trial, however, the defendant told his attorney that he had seen something metallic in the victim’s hand. When questioned about this new information, the defendant stated: “If I don’t say I saw a gun, I’m dead.” Id. at 161. Defense counsel warned that if he testified falsely, it would be counsel’s duty to advise the court that he felt the defendant was committing perjury, and that counsel would seek to withdraw from his case. At his trial, the defendant testified without making reference to seeing anything in the victim’s hand, and he was convicted. Following his conviction, he claimed that he had received ineffective assistance of counsel.

The Court disagreed, holding that counsel’s conduct did not violate the reasonable professional standards contemplated in Strickland v. Washington, 466 U.S. 668 (1984). In reaching its decision, the Court discussed the need to balance the Sixth Amendment right to effective counsel with the ethical obligations attorneys have as officers of the court. The Court explained that counsel’s duty of loyalty and his duty to zealously advocate the defendant’s cause are “limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.” Nix, 475 U.S. at 166. Thus, “[although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.” Id. The Court thus concluded that because there was no breach of any recognized professional duty, there was no deprivation of the right to effective assistance of counsel under Strickland. Finally, the Court held that “as a matter of law, counsel’s conduct complained of here cannot establish the prejudice required for relief under the second strand of the Strick/andinquiry.” Id. at 175 (emphasis added).

The only difference between this case and Nix is that, here, the false testimony was not being supplied by the defendant, but by his sympathizers. Counsel in this case acted properly by declining to present the false alibi testimony; to do otherwise would have been a violation of his ethical obligations. Rule 3.3(a) of the Model Rules of Professional Conduct provides: “A lawyer shall not knowingly: ... (4) offer evidence that the lawyer knows to be false.” Subsection (c) provides: “A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.” Given these rules and the Supreme Court’s recognition that a lawyer’s duty of zealous representation extends only to legitimate, lawful conduct, we conclude that counsel was not ineffective for failing to present the false alibi testimony.

II. Informing Jury that Noel was Testifying Against Counsel’s Advice

Noel contends that he was prejudiced when the jury was informed, during his direct examination, that he was testifying against the advice of counsel. The record reflects the following exchange between Noel and his trial counsel:

Q All right. Now, Riley, you’re taking the stand here because you want to tell the jury your story. Is that correct?
A Yes sir.
Q And that’s over my advice?
A Yes, sir.
Q Against my advice?
A Yes, sir.

Noel urges that this was a comment on his credibility, or lack thereof, as a witness. He contends that by informing the jury that he was testifying against the advice of counsel, the jury could have concluded that even his own attorney did not believe he was telling the truth.

The State argues that this was a calculated trial tactic aimed at showing the jury that Noel was so insistent upon his innocence that he would risk taking the stand, where his prior felony convictions would be revealed and he would likely undergo an exhausting cross-examination. Trial counsel testified that he chose to reveal this information to show the jury how strongly Noel believed in his innocence. This strategy was further pursued by counsel in closing argument, wherein he stated:

I told you in my opening that there were three witnesses that I anticipated would be presented, three main witnesses, for the State, and there were three main witnesses, testimony of witnesses against my client, Kyle Jones, Mary Hussian, Curtis Cochran.... Now, we have two people that I told you would be very partisan witnesses, and they are. And I don’t fault them at all. They have lost loved ones, and we feel sorry for them. It’s a very tragic event. The third person is Curtis Cochran, and, you know, an admitted liar. Ladies and gentlemen, you have the Defendant, who took the stand in his own behalf, against the advice of his own attorney, and told you in his own way that he was not involved on June 4th, 1995. He told you his own story. He told you without any kind of deal from the State, no lighter sentence. He got it [sic] up, faced the music, and underwent a very grueling cross examination by the most experienced prosecutor on the prosecuting attorney’s staff.... That, ladies and gentlemen, I think, rebuts a lot of the State’s evidence [.]

The trial court found that counsel was attempting to impress the jury with Noel’s sincerity in wanting to tell his side of the story, and that this was a matter of trial strategy. We cannot say that this ruling was clearly erroneous. Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel. Chenowith, 341 Ark. 722, 19 S.W.3d 612; Weaver, 339 Ark. 97, 3 S.W.3d 323. Thus, even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987).

III. Failing to Call Certain Witnesses

Noel argues that trial counsel was ineffective for failing to call several witnesses who would have testified as to his demeanor and activities during the days prior to the murders. The substance of their testimony was that Noel did not act like a person who was planning to murder these children in retaliation for his brother’s death. While he acknowledges that the decision whether to call particular witnesses is a matter of trial strategy outside the purview of Rule 37, Noel argues that counsel’s failure on this point coupled with the comment about his decision to testify against counsel’s advice, cumulates into extreme prejudice and requires reversal under Strickland, 466 U.S. 668. Inasmuch as Noel is making a cumulative-error argument, we do not address it because this court does not recognize cumulative error in allegations of ineffective assistance of counsel. See Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999); Parks v. State, 301 Ark. 513, 785 S.W.2d 213 (1990).

In any event, Noel has failed to show that counsel’s failure to call these witnesses was error. During the hearing on the petition, trial counsel stated that he did not recall having knowledge of any witnesses who could have testified that days before the murders, Noel was not acting like someone planning to kill. Counsel stated that he, co-counsel, and their investigator had interviewed every potential witness that Noel provided them, and there were no additional witnesses that could have been called on Noel’s behalf. The trial court found that the admission of such demeanor testimony would not have altered the outcome of the trial and that, as a matter of law, the allegation was insufficient to warrant relief. We agree.

Whether or not counsel had known about such testimony, the failure to present it does not render counsel’s performance ineffective. The decision whether to call particular witnesses is a matter of trial strategy that is outside the purview of Rule 37. Chenowith, 341 Ark. 722, 19 S.W.3d 612; Dillard, 338 Ark. 571, 998 S.W.2d 750. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. When assessing counsel’s decision not to call a particular witness, we must take into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Id. Noel has not shown that counsel was deficient for not calling these particular witnesses or that his defense was prejudiced by the absence of their testimony. Accordingly, we affirm on this issue.

IV Funds for Expert Witness

Lastly, Noel argues that trial counsel was ineffective for failing to request funds to hire an expert witness to challenge the credibility of the eyewitness testimony of Mrs. Hussian and Kyle Jones. He contends that counsel’s failure to do this prevented him from raising the issue on direct appeal. Noel acknowledges that this court’s case law is not in his favor; however, he raises this issue to preserve it for federal review.

During the hearing below, trial counsel testified that he did not seek to retain an expert on eyewitness identification because he knew that Arkansas case law did not support the admissibility of such testimony. The trial court agreed, finding that the question of allowing an expert witness to testify regarding possible unreliability of eyewitness testimony had been addressed by this court and determined to be an invasion of the province of the jury. The trial court thus concluded that counsel was not ineffective for failing to request funds for such an expert. We agree with the trial court’s analysis.

In Utley v. State, 308 Ark. 622, 626, 826 S.W.2d 268, 271 (1992), this court held that the admission of expert testimony regarding eyewitness identification “could have hindered the jury’s ability to judge impartially the credibility of the witnesses and the weight to be accorded their testimony.” In arriving at this conclusion, this court observed that our appellate courts had long upheld the trial court’s refusal to allow such expert testimony. For example, in Criglow v. State, 183 Ark. 407, 36 S.W.2d 400 (1931), this court explained:

[T]he question whether these witnesses were mistaken in their identification, whether from fright or other cause, was one which the jury, and not an expert witness, should answer. This was a question upon which one man as well as another might form an opinion, and the function of passing upon the credibility and weight of testimony could not be taken from the jury.

Id. at 409-10, 36 S.W.2d at 401-02 (citations omitted) (emphasis added). See also Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998); Jones v. State, 314 Ark. 289, 862 S.W.2d 242 (1993); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (Ark. App. 1980).

Given the prior appellate holdings on this issue, it is not likely that counsel would have been successful in admitting such expert testimony to the jury. Thus, we cannot say that counsel’s decision not to request funds for this purpose amounted to a denial of effective assistance of counsel. Counsel cannot be found ineffective for failing to make an argument that has no merit or has been previously rejected by this court. See Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993); O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989) (per curiam). Accordingly, Noel has failed to demonstrate both error and prejudice on this issue.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Brandon FLOWERS v. STATE of Arkansas
    CR 99-1497
    25 S.W.3d 422
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      William M. Howard, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Appellant Brandon Flowers was convicted of capital murder and sentenced to life imprisonment without parole. Appellant argues two points of appeal. He first challenges the sufficiency of the evidence on grounds that (a) there was insufficient evidence that the victim was killed during a robbery; (b) the testimony by his accomplices was not corroborated; (c) there was insufficient evidence that the victim’s death was caused under circumstances manifesting extreme indifference to the value of human life; and (d) appellant had an alibi. With respect to each of these arguments, we hold the evidence was sufficient. For his second point on appeal, appellant argues that the trial court erred in failing to dismiss a juror who had a prior association with the victim and his family. In making this argument to the trial court, appellant only asserted that the juror’s prior association with the victim might have some impact on the penalty-phase verdict. We hold that this point became moot when the jury did not render a penalty-phase verdict. We affirm the judgment.

On June 19, 1998, Patrick Brown was killed in front of an apartment building at No. 12 Tulip Cove in Pine Bluff, Arkansas. According to the medical examiner, Brown died of a gunshot wound to the chest. Several witnesses testified that a dice game was being held at No. 12 Tulip Cove on the night of the killing. Witnesses at the scene also reported seeing Brown in front of the apartment building when three armed men approached the apartment. Immediately thereafter, witnesses heard a gunshot and then discovered that Brown had been shot.

Testimony at trial indicated that shortly before the shooting Flowers and four other men had gathered on Amis Street in Pine Bluff and discussed robbing the dice game at No. 12 Tulip Cove. The five men then left Amis Street in a car with the purpose of robbing the dice game. Upon reaching Tulip Cove, two men remained in the car while Flowers and his other two companions approached the apartment building armed with guns. Within minutes, the shot that killed Brown was fired. Shortly after the shooting, police developed a list of suspects that included Flowers. For the next eight or nine days, police attempted unsuccessfully to make contact with Flowers at his home. When Flowers was eventually found, he admitted to the police officers that he had been hiding from them. Flowers also denied knowing any of the people involved in the shooting and stated that he was at home during the shooting with his father and brother. His father and brother failed to confirm his alibi. Flowers was arrested and charged with capital murder in Jefferson County Circuit Court. On May 19, 1999, a jury convicted Flowers of capital murder. The trial judge then sentenced him to life imprisonment without parole because the State had waived the death penalty.

I. Insufficient Evidence

We first address Flowers’s claim that there was insufficient evidence to support the verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id, Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Barr v. State, supra.

According to the record in this case, Flowers was convicted of capital murder pursuant to the felony-murder provision of the capital-murder statute. Arkansas Code Annotated section 5-10-101(a)(1) (Repl. 1997) provides that:

(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, vehicular piracy, robbery, burglary, a felony violation of the Uniform Controlled Substances Act §§5-64-101 - 5-64-608, involving an actual delivery of a controlled substance, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life[.]

Flowers first asserts that the prosecution failed to prove with substantial evidence that the victim, Patrick Brown, was killed during a robbery. Flowers is correct that the underlying felony is an essential element of a capital-felony murder charge. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986). To prove capital-felony murder, the State must first prove the felony. Id. Nevertheless, his assertion lacks merit because the prosecution was not required to prove that a robbery occurred in order for Flowers to be convicted of capital-felony murder. Instead, the prosecution only needed to prove that Flowers, acting alone or with his accomplices, attempted to commit robbery. Ark. Code Ann. § 5-10-101 (a)(1); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985). An attempted robbery is established by proof that the defendant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of a robbery. Ark. Code Ann. § 5-3-201 (a)(2) (Repl. 1997).

Dante Wesley testified on behalf of the State that on June 19, 1998, he and Derek Taylor had been to two “dice houses” in Pine Bluff. After they left the second gambling house located at No. 12 Tulip Cove, Taylor began a discussion with Wesley about robbing the gambling house on Tulip Cove. Wesley and Taylor then drove to Amis Street in Pine Bluff where they met Flowers, Andrew Gardner, Jermaine McBride, and Ervin Robinson. Upon arriving at Amis Street, Taylor got out of his car and began talking to the other men. According to Wesley, the conversation that Taylor had with these men was consistent with what he and Taylor had discussed while alone in the car; that is, robbing the gambling house on Tulip Cove. Following this conversation, Flowers, Gardner, Robinson, McBride, and Taylor then left Amis Street together in Taylor’s car. Wesley did not accompany them.

Andrew Gardner also testified on behalf of the State that on June 19, 1998, he, Flowers, McBride, and Robinson were together on Amis Street when Wesley and Taylor drove up and talked to them about robbing a gambling house. He further testified that everyone in his group, including Flowers, left Amis Street and went with Taylor in his car to some apartments on Tulip Cove “to rob a gambling house.” Upon reaching Tulip Cove, Flowers, McBride, and Robinson, each armed with guns, got out of the car and approached the building with the purpose of robbing the gambling house. About one minute after the three men approached the front of the building, Gardner heard a shot fired. Fifteen seconds later, Flowers and Robinson ran back to the car where Taylor and Gardner had been waiting. All four men fled from the scene in the car driven by Taylor. He dropped Flowers and Robinson off at a baseball field before going onto another location where he picked up McBride. According to Gardner, Robinson and Flowers had approached the front of the house together and Robinson stated later that he thought he was the one who did the shooting that night.

Robert Moon, Colby Cobb, and Shamelia Harvey were all at or near the gambling house on Tulip Cove on the night of June 19, 1998. Moon and Harvey testified that Brown was in front of the building when three men approached the house shortly before the gunshot was fired. Moon identified Flowers from a photo-lineup as one of the men that he had seen in front of the house just before the shooting. Cobb, who was inside the gambling house, reported that McBride entered the house with a gun just before Brown was shot in front of the house.

From the testimony set out above, we conclude that the State presented substantial evidence that Flowers and his accomplices purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of a robbery. Specifically, there was evidence that Flowers and the other men intended to rob the gambling house on Tulip Cove, and that they took a substantial step in that direction when they approached the house armed with guns. Accordingly, we hold that there was sufficient evidence for the jury to find that Flowers committed the underlying felony of attempted robbery.

Flowers next argues that the evidence against him was insufficient because he cannot be convicted on the uncorroborated testimony of an accomplice. With regard to accomplice testimony, Ark. Code Ann. § 16-89-111 (1987) states:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

Ark. Code Ann. 16-89-111 (1987). The corroboration must be sufficient standing alone to establish the commission of the offense and tend to connect the defendant with it. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999); Peeler v. State, supra.

In this case, the State presented the testimony of several witnesses who were not accomplices. The medical examiner testified that Brown died of a gunshot wound to the chest. Dante Wesley testified that Flowers was involved in a conversation with his accomplices about robbing the dice game at Tulip Cove. Robert Moon identified Flowers from a photo-lineup as one of the men who approached the front of the building on Tulip Cove just before Brown was shot. Shamelia Harvey testified that three or four men approached the house and one of them was facing Brown just before she heard the gunshot that killed him. We conclude that this testimony provides sufficient evidence that a murder occurred during an attempted robbery and that Flowers was connected with it. Furthermore, Detective J.D. Cannon of the Pine Bluff Police Department testified that he and other officers tried unsuccessfully to make contact with Flowers for eight or nine days after the shooting. Officer Cannon also stated that when Flowers was found, he admitted that he had been hiding from the police. Evidence of flight to avoid arrest may be considered by the jury as corroborative of guilt. Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). We therefore hold that the State presented sufficient evidence to corroborate the testimony of Flowers’s accomplices.

Flowers next contends that the capital-murder element of “under circumstances manifesting extreme indifference to the value of human life” was not proven with sufficient evidence. Again, we disagree. The words “manifesting extreme indifference to the value of human life” indicate that the perpetrator of capital murder must act with deliberate conduct that culminates in the death of some person. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Additionally, intent may be inferred from the type of weapon used; the manner of use; and the nature, extent, and location of the trauma suffered by the victim. Id. The State’s evidence established that Brown died as the result of a large-caliber gunshot wound to his chest and that the gun was fired from approximately one to two-and-a-half feet away. Furthermore, there was evidence that Flowers and two of his accomplices were armed when they approached the gambling house at Tulip Cove with the purpose of committing a robbery. Based on this record, we conclude that there was sufficient evidence for the jury to find that Brown was killed under circumstances manifesting extreme indifference to the value of human fife.

In making his challenge to the sufficiency of the evidence, Flowers additionally argues that the evidence was insufficient because he presented an alibi defense. This argument is also without merit, because on appeal we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Barr v. State, supra.

II. Juror Dismissal

For his second point on appeal, Flowers contends that the trial court erred in failing to dismiss a juror who revealed to the court after the trial began that he had been the victim’s Little League coach years earlier. During the first recess after the state began to present its case-in-chief, Juror Taylor informed the trial court in chambers that when he saw the autopsy photographs, he recognized the victim as having been a player on his Little League baseball team seven or eight years prior to the trial. Juror Taylor also stated that he had become acquainted with the victim’s parents during that time. Upon learning this, the trial judge asked Taylor whether or not his association with the victim would affect his deliberations as a juror. Juror Taylor responded:

I don’t think it would have anything to do with finding guilt or innocence. If we did find him guilty and it came to a sentencing phase, I’m not sure. I remember them being very good people. Patrick being a very fine young man. If we were to find him guilty, whether that would have any bearing or not on the severity of the penalty, I’m not real sure to be honest with you.

After further questioning by the trial judge, however, Juror Taylor stated that he thought he could be as objective as anyone else at both phases of the trial. Flowers’s attorney then questioned Juror Taylor, who again stated that he thought he could be objective at both the guilt and sentencing phases of the trial. Juror Taylor was then excused, and Flowers moved to dismiss Taylor from the jury and replace him with the alternate juror. The trial judge declined to make a ruling at that time, but instead stated that Juror Taylor could remain on the jury for the time being and that Flowers “could renew [his] motion or make a better record on it or ask the Court to go on and make a ruling. . . before we submit [the case] to the jury.” At the conclusion of the second day of the trial, the trial judge summoned Juror Taylor to his chambers and again asked him whether his prior association with the victim’s family might influence his “thinking processes in coming up with a verdict in this case.” Juror Taylor responded that he did not “think it would be any problem at all” at either phase of the trial. Following this colloquy, Flowers did not renew his motion and the trial court did not make a ruling. On the morning of the third day of the trial, Flowers renewed his motion to excuse Juror Taylor:

Defense Counsel: I might as well make a motion to excuse him for cause based on the revelation that he made in relation to being the Little League or baseball coach of the victim and knowing the family, the father and I think that that [he] connection even though it has been several years may, if we get to the penalty phase, it may have some impact on his decision-making.

The trial court denied this motion.

In renewing his motion to dismiss Juror Taylor, Flowers limited his argument to the impact that the juror’s prior association with the victim might have on the penalty phase of the trial. Thus, Flowers obtained no ruling by the trial court on the impact that the juror’s prior association with the victim might have on the guilt phase of the trial. Issues not ruled on below will not be considered on appeal. Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000). Furthermore, Juror Taylor’s initial uncertainty regarding his ability to be objective at the sentencing phase is of no consequence here because the State had waived the death penalty. Therefore, the trial court imposed the only possible penalty for a capital-murder conviction: life imprisonment without parole. Ark. Code Ann. § 5-10-101(c) (Repl. 1997). Under these circumstances, we hold that Flowers’s second point on appeal became moot when the jury did not render a penalty-phase verdict.

III. Arkansas Supreme Court Rule 4-3 (h)

The transcript of the record in this case has been reviewed in accordance with our Rule 4-3 (h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a). None have been found.

Affirmed.


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    Charles Ray BOLTON v. STATE of Arkansas
    CR 00-881
    26 S.W.3d 783
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      Joseph D. Hughes & Assoc., P.A., by: Joseph D. Hughes, for appellant.
    No response.
   Per Curiam.

Joseph D. Hughes, a state-salaried, part-time public defender for the Second Judicial District, Greene County, Arkansas, was appointed by the trial court to represent appellant Charles Ray Bolton, an indigent defendant, in this criminal case. Appellant was convicted of manufacturing a controlled substance and other drug-related offenses and sentenced to 20 years in prison. A notice of appeal from the judgment of conviction was timely filed and the record has been lodged with our clerk.

Mr. Hughes now asks this court to relieve him as counsel for Bolton and to appoint new counsel for Bolton in this criminal appeal. In support of his motion to be relieved, Mr. Hughes asserts that he will not be compensated by the Arkansas Public Defender Commission for work performed in the appeal of this matter. He further asserts that he is ineligible for compensation by this court pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). Under these circumstances, we grant Mr. Hughes’s motion to be relieved for good cause shown. See Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam). .Greg Knutson will be substituted as attorney for appellant Charles Ray Bolton.


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    David Kelly CHAPMAN v. STATE of Arkansas
    CR 00-795
    26 S.W.3d 784
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      Beverly C. Claunch, for appellant.
    No response.
   Per Curiam.

Beverly C. Claunch, a state-salaried, part-time public defender for the Sixteenth Judicial District, Stone County, was appointed by the trial court to represent appellant David Kelly Chapman, an indigent defendant, in this criminal case. Chapman was convicted of manufacturing a controlled substance and sentenced to life imprisonment. A notice of appeal from the judgment of conviction was timely filed, and the record has been lodged with our clerk.

Ms. Claunch now asks this court to relieve her as counsel for Chapman and to appoint new counsel for Chapman in this criminal appeal. In support of her motion to be relieved, Ms. Claunch asserts that she will not be compensated by the Arkansas Public Defender Commission for work performed in the appeal of this matter. She further asserts that she is ineligible for compensation by this court pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). Under these circumstances, we grant Ms. Claunch’s motion to be relieved for good cause shown. See Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam). Robert L. Herzfeld, Jr., will be substituted as attorney for appellant David Kelly Chapman.


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    Richard CRAFT v. STATE of Arkansas
    CR 00-829
    26 S.W.3d 584
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      Joseph D. Hughes & Assoc., P.A., by: Joseph D. Hughes, for appellant.
    No response.
   Per Curiam.

Joseph D. Hughes, a state-salaried, part-time public defender for the Second Judicial District, Greene County, Arkansas, was appointed by the trial court to represent appellant Richard Craft, an indigent defendant, in this criminal case. Appellant was convicted of manufacturing a controlled substance and other drug-related offenses and sentenced to twenty years in prison. A notice of appeal from the judgment of conviction was timely filed and the record has been lodged with our clerk.

Mr. Hughes now asks this court to relieve him as counsel for Craft in this criminal appeal. In support of his motion to be relieved, Mr. Hughes asserts that he will not be compensated by the Arkansas Public Defender Commission for work performed in the appeal of this matter. He further asserts that he is ineligible for compensation by this court pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). Under these circumstances, we grant Mr. Hughes’s motion to be relieved for good cause shown. See Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam). William H. Craig will be substituted as attorney for appellant Richard Craft.

Motion granted.


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    Jessie James HOWARD v. STATE of Arkansas
    CR 00-976
    25 S.W.3d 428
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      John C. Stratford, for appellant.
    No response.
   Per Curiam.

Jessie James Howard, by his attorney, has filed a motion for rule on the clerk.

His attorney, John C. Stratford, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


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    Anthony O’Neil HUGHES v. STATE of Arkansas
    00-964
    25 S.W.3d 430
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      Mary M. Rawlins, for appellant.
    No response.
   Per Curiam.

Appellant Anthony O’Neil Hughes was adjudicated delinquent for having committed the offenses of residential burglary, felony theft of property, and criminal mischief in the first degree. An order of adjudication was entered on March 2, 2000. Notice of appeal was timely filed on March 31, 2000. Appellant’s counsel, Mary M. Rawlins, has now filed a Motion for Rule on the Clerk, asking that this court order that the record in this case be filed by the Clerk of the Court.

The Clerk correctly refused to accept the record, on the grounds that the original order extending the time for the fifing of the record was not timely filed below. This court has long held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. Beavers v. State, 341 Ark. 649, 19 S.W. 3d 23 (2000). Here, Ms. Rawlins does not admit fault, but rather attempts to explain the delay in filing of the original extension of time of filing of the record by the chancery judge’s absence on the date due, June 29, 2000. We have held that a statement that it was someone else’s fault, or no one’s fault, will not suffice. Id. Furthermore, this court has held that the attorney is responsible for filing the record and cannot shift that responsibility to another. Id. Because Ms. Rawlins fails to accept responsibility for not filing the record within the required time, appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit in this case accepting full responsibility for not timely filing the record in this case, and upon filing same, the motion for rule on the clerk to accept the record will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

Motion denied.


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    Sheri Lynn LANGSTON a/k/a Sheri Lynn Smith v. STATE of Arkansas
    CR 00-401
    25 S.W.3d 431
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      Robert L. Depper, Jr., for appellant.
    No response.
   Per Curiam.

Counsel Robert L. Depper, Jr., on behalf of his client, Sheri Lynn Langston, petitions this court for a writ of certiorari. He states in his petition that this court ordered him to file a petition, setting forth the procedural facts in this matter and requesting that a belated appeal be granted. Presumably, he has reference to this court’s per curiam opinion in Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000) (per curiam).

Mr. Depper misconstrues our June 22, 2000 per curiam opinion in Langston v. State, supra. In that opinion, we granted Langston a belated appeal and appointed Mr. Depper to represent her. We further directed Mr. Depper to file within thirty days a petition for writ of certiorari to bring up the record in this matter for the appeal.

Though Mr. Depper misstates the purpose of the petition for writ of certiorari, we grant the writ and direct the court reporter to file the record in this case with the Clerk of the Supreme Court within thirty days of this order.


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    Carlos Anthony McFERRIN v. STATE of Arkansas
    CR 00-922
    25 S.W.3d 429
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      John H. Bradley, for appellant.
    No response.
   Per Curiam.

John H. Bradley, a state-salaried, full-time public defender for the Second Judicial District, Mississippi County, was appointed by the trial court to represent appellant Carlos Anthony McFerrin, an indigent defendant, in this criminal case. McFerrin was convicted of capital murder and sentenced to life without parole. A notice of appeal from the judgment of conviction was timely filed, and the record has been lodged with our clerk.

Mr. Bradley now asks this court to relieve him as counsel for McFerrin and to appoint new counsel for McFerrin in this criminal appeal. In support of his motion to be relieved, Mr. Bradley asserts that he will not be compensated by the Arkansas Public Defender Commission for work performed in the appeal of this matter. Fie further asserts that he is ineligible for compensation by this court pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). Under these circumstances, we grant Mr. Bradley’s motion to be relieved for good cause shown. See Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam). John Cone will be substituted as attorney for appellant Carlos Anthony McFerrin.


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    Brenda THIEL, President of the League of Women Voters of Arkansas, Inc. v. Sharon PRIEST, In Her Official Capacity as Secretary of State of Arkansas and Ex-Officio Secretary of the State Board of Election Commissioners
    00-1041
    26 S.W.3d 784
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      Robert D. Smith, III, and Tom Tanner, for appellant.
    No response.
   Per Curiam.

Appellant moves to expedite this appeal from the lower court’s decision denying her request for declaratory judgment, writ of mandamus, and injunction challenging the constitutionality and sufficiency of the ballot title and popular name of proposed constitutional amendment number 2. Appellant seeks to declare proposed amendment 2’s popular name and ballot title insufficient and to enjoin their placement on the November 7, 2000, General Election ballot. Because of constraints in obtaining a decision prior to the General Election, appellant and appellee ask for an expedited briefing schedule and date for oral argument.

Based on this court’s docket and the parties’ schedules, we grant appellant’s motion and set the following briefing dates:

Appellant’s brief due on September 15, 2000.
Appellee’s brief due on September 22, 2000.
Appellant’s reply brief due on September 26, 2000.

In addition, oral arguments in this matter will be set for Thursday, October 5, 2000, at 9:00 a.m.


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    Frank WILLIAMS, Jr. v. STATE of Arkansas
    99-1221
    25 S.W.3d 429
    Supreme Court of Arkansas
    Opinion delivered September 14, 2000

      Alvin Schay, for appellant.
    No response.
   Per Curiam.

By per curiam opinion delivered April 27, 2000, Alvin Schay, counsel for appellant Frank Williams, Jr., was ordered to appear before this court on May 11, 2000, to show cause why he should not be held in contempt for his failure to file appellant’s brief by the final-extension deadline in a Rule 37 appeal in a death case. The final extension deadline set was March 28, 2000. On March 24, 2000, Mr. Schay filed a motion for another extension of time until April 17, 2000, and on April 12, 2000, he requested still another extension of time until April 27, 2000. He filed the Williams brief on April 27, 2000.

Mr. Schay appeared before this court on May 11, 2000, and entered a plea of not guilty to the contempt citation. We appointed a master, Hon. Jack Lessenberry, to determine the facts in this case. On August 2, 2000, Judge Lessenberry issued his Report and Findings of Master in which he found that Mr. Schay was busy on a major case, Damien Echols v. State, No. CR 99-1060, and lost income as a result of work on that case and the instant case. He further found that Mr. Schay had expressed sorrow and regret concerning the delay in filing the Williams brief.

Based on the foregoing, we hold that Mr. Schay is in contempt of court for failing to file a brief on behalf of Frank Williams, Jr., by the final-extension deadline. We assess a fine of $250.00. A copy of this order will be forwarded to the Committee on Professional Conduct.


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    Arnell “Buck” WILLIS and Phillips County Board of Election Commissioners v. CIRCUIT COURT of PHILLIPS COUNTY, Arkansas
    00-1033
    27 S.W.3d 346
    Supreme Court of Arkansas
    Opinion delivered September 15, 2000

      Rieves, Rubens & Mayton, by: Kent J. Rubens and L. Ashley Wiggins, for petitioners.

      Mark Pryor, Att’y Gen., by: Colette D. Honorable, Ass’t Att’y Gen., for respondent.
   Per Curiam.

Petitioners Arnell “Buck” Willis and the Phillips County Board of Election Commissioners have filed, alternatively, petitions for writ of certiorari, writ of prohibition, or writ of mandamus, asking this court to prevent the Phillips County Circuit Court from hearing a petition for declaratory relief brought by Eddie O’ Neal and James E “J. F.” Valley. O’ Neal and Valley petitioned the circuit court to declare that (1) Valley was the winner of the May 23, 2000 primary election for the position of State Representative, District 99, or (2) that the primary election was void for the failure of a certified winner to garner the majority number of legal votes cast.

Petitioners assert that the issue of Valley’s eligibility to be a candidate for State Representative, District 99, has already been decided adversely to Valley by the Pulaski County Circuit Court. Petitioners thus ask this court to grant a temporary stay of the proceedings in Phillips County until the issues raised can be fully briefed in this court. We hereby grant a temporary stay of the proceedings pending in the Phillips County Circuit Court, and we order both Petitioners and Respondent to file all necessary pleadings and responses in connection with this matter with the Clerk of the Supreme Court by noon on Tuesday, September 19, 2000. The attorneys in this matter are further ordered to appear at motion time at 9:00 a.m. on Thursday, September 21, 2000, so that this court may consider whether the stay should be continued.

It is so ordered.