author: Annabelle Clinton Imber, Jbefore us on review from the Arkansas LAVENSKI R. Smith, Justice,

text:
    Gerald Dean FOWLER v. STATE of Arkansas
    CR 99-802
    5 S.W. 3d 10
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      Benton D. Bryant, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Jbefore us on review from the Arkansas

This case is before us on review from the Arkansas Court of Appeals. Mr. Gerald Fowler appealed his conviction of harassment in Washington County Circuit Court. He argued that the trial court erred in permitting the State to cross-examine him and another witness about their attendance at a meeting and about certain beliefs they shared concerning the authority of the Washington County Circuit Court over them. The Court of Appeals agreed with Mr. Fowler and reversed. We granted the State’s petition for review. It is well setded that upon a petition for review, we consider the case as though it were originally filed in this court. Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

The victim, Helen Wright, worked as a receptionist at the Jones Center in Washington County, Arkansas. She became acquainted with Mr. Fowler as a result of his regular visits to the Jones Center to attend meetings of a community-improvement group. Mrs. Wright testified that Mr. Fowler became very demanding of her during his visits to the center. Specifically, she testified that Mr. Fowler began talking to her on a daily basis about religion and that his unprovoked discussions with her interfered with the performance of her job. In September of 1997, she reported Mr. Fowler to security at the center, at which time two security officers spoke to him about his behavior.

On September 13, 1997, Mr. Fowler telephoned Mrs. Wright at her home and asked her to write down his name and phone number. She reported that incident to security officers at the Jones Center. The following week, Mr. Fowler telephoned Mrs. Wright at the Jones Center. After she informed a security officer about the call, .he picked up the phone and told Mr. Fowler to leave Mrs. Wright alone. Five minutes later, Mr. Fowler arrived at the Jones Center and approached Mrs. Wright. At that point, she called the police. When they arrived, they spoke with Mr. Fowler and directed him not to harass Mrs. Wright. As a result of this incident, the Municipal Judge for the City of Springdale issued an order on October 7, 1997, that prohibited Mr. Fowler from approaching or communicating with Mrs. Wright or her family.

The charge of harassment that forms the basis of this appeal arises out of an incident that is alleged to have occurred on October 9, 1997. According to the testimony of Mrs. Wright and her daughter, they left the Jones Center at about 10:00 p.m. that day. During their drive home, they stopped at a red light at the intersection of Mountain Road and Highway 265. Mr. Fowler pulled up beside them in a minivan and made eye contact with Mrs. Wright and her daughter. After the red light turned green, Mr. Fowler proceeded to follow Mrs. Wright and her daughter for several miles. Mrs. Wright testified that the minivan driven by Mr. Fowler followed her after she turned left onto Randall Wobbe Road. She then turned right onto Lowell Road and turned around at the first business. After she pulled back onto Lowell Road and headed south, she again saw Mr. Fowler as he traveled north on Lowell Road. She then turned back onto Randall Wobbe Road and traveled west toward Highway 71. After making a right turn onto Highway 71, she drove north for a distance of about two miles. At the intersection of Highway 71 and Apple Blossom Road, Mrs. Wright turned right onto Apple Blossom Road, and again turned around at the first business. She then drove back to the intersection of Apple Blossom Road and Highway 71. As she was preparing to turn and go back south on Highway 71, she again saw Mr. Fowler driving .the minivan north on Highway 71.

This testimony by Ms. Wright and her daughter was controverted by several witnesses for the defense. Mr. Fowler testified that he attended a meeting at the Jones Center on October 9, 1997, left the center at approximately 9:45 p.m., and then arrived at a local pizza restaurant at about 10:10 p.m. or 10:15 p.m. His testimony was corroborated by three witnesses who attended the meeting that evening and also met him at the pizza restaurant. According to Mr. Fowler and his roommate, Mr. Fowler was at their home between the time he left the Jones Center and the time he arrived at the restaurant, that is, between 9:45 p.m. and 10:10 p.m. or 10:15 p.m. On cross-examination by the State, Mr. Fowler and one of his alibi witnesses, Mr. Nick Herrington, were asked about the meetings they attended at the Jones Center and the beliefs they shared concerning the court’s authority over them. The trial court ruled that these inquiries by the State were relevant to the issue of each witness’s credibility. At the conclusion of the trial, the jury found Mr. Fowler guilty of the crime of harassment and imposed a sentence of one year in the Washington County Jail and a fine of $1000.

Mr. Fowler asserts on appeal that the trial court erred when it allowed the State to question him and Mr. Herrington about their political beliefs. A defendant’s political beliefs are ordinarily irrelevant in a criminal prosecution. However, the particular question presented in this appeal is whether the beliefs that this defendant and his alibi witness shared about the Washington County Circuit Court’s authority over them were relevant to the issue of their credibility.

The admission of evidence is a matter that fies within the discretion of the trial court. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). In order to determine whether the trial court abused its discretion in permitting the challenged inquiry by the State, we first examine the relevant portions of Mr. Fowler’s and Mr. Herrington’s cross-examination by the State. After Mr. Fowler’s testimony on direct examination, the State cross-examined:

Q Let me ask you, do your meetings, do you have discussions or talk about or deal with government matters at your meetings?
A No.
Mr. Bryant: Objection, irrelevant, beyond the scope of direct examination.
Mr. Franco: I think if I’m allowed to flush this out I’ll try to be as absolutely brief as possible but I think that I can get to a point that will deal directly with his credibility.
The COURT: Well, I think if this goes to credibility then I’ll permit it for at least the time being. Overruled.
Continuing Cross-Examination by Mr. Franco:
Q Do you deal with matters relating to the government?
A No, sir, we deal with matters relating to constitutional documents.
Q Okay, do these, do you have discussions regarding the authority that governments or more specifically courts have over you?
A No, sir, we discuss citizen’s rights.
Q All right. In the realm of dealing with the court system, more specifically the criminal justice system?
A 'Well, it’s mainly the exercise of your rights, citizen’s rights.
Q What are those citizen’s rights?
A Well, that would be too much to enumerate.
Q Please answer the question?
Mr. BRYANT: Your Honor, it’s beyond me how this can have anything to do with the credibility of a witness.
The Court: Well, again, Counsel, I have addressed the objection. I’m going to permit it up to a point so overruled. Now, you may proceed.
Continuing Cross-Examination by Mr. Franco:
Q What are those citizen’s rights which you deal with — I’ll narrow it for you, dealing just with the criminal justice system and the court system?
A Well, we don’t confine it to that.
Q I want — let’s just confine the topic to that for purposes of your answering the question?
A Well, it’s — you know and I don’t know if I can quote it exactly, one of your founding fathers said, vigilance, and I can’t quote it exacdy but vigilance is the exercise of freedom to keep a nation’s citizens free so it’s to make people aware of what the constitution is for and how that it is to work as a restraint against governmental abuses.
Q What governmental abuses?
A Well, I don’t know, I feel strange you’d ask me that question as if you don’t think there’s ever been any governmental abuses.
Q Do you feel that you’ve ever been abused by the government yourself?
A I feel like that there has been an excess of it by the government, that and of course they’re discussing this every day in the newspapers and this is what the courts are for is to try to work out the differences of people’s opinions as to what is correctly judicial and what is not.
Q That flag right there has gold stripes on it; is that correct?
Mr. BRYANT: Objection, Your Honor, may I approach please?
The Court: You may.
Mr. BRYANT: Your Honor, the only thing the Prosecutor is trying to do in this case is prejudice the Jury against my client because of his political beliefs. There’s no way this has anything to do with the ability to tell the truth or not. This is an outrageous attempt on the Prosecutor’s part to prejudice my client and I’d ask that he not be permitted to do that.
Mr. FRANCO: Throughout the entire prosecution of this matter Mr. Fowler has objected to the flag with gold stripes on it and stated it’s military and doesn’t have the authority over him, it’s my understanding from his statement. I think if that’s the belief here today I think it goes to, directly to the fact of if he thinks they have authority.
The COURT: Well, you can narrow your question down to that particular issue which goes to credibility. I’m going to permit it but we need to narrow the scope of the inquiry and get on with it. All right. You may proceed.
By Mr. Franco:
Q What’s the significance of the gold stripes on that flag right there?
A It shows that it’s a military flag.
Q In your opinion, and?
A According to the studies that we have had, that’s correct.
Q All right. What’s that mean in your opinion if it’s a military flag?
A Well, if— now under, I’m quoting from the studies, all right.
Q Yes, sir, yes, sir?
A U.S.C. § 1, I believe 4D, denotes the U.S. constitutional flag of America.
Q What type of flag is that supposed to be, what’s the gold mean?
A It does not have a symbol on top.
Q The gold fringe means it’s a military flag; is that correct?
A Yes, sir, according to army regulations, according to certain codes.
Q Is it your belief that if it’s a military flag then there — isn’t it true that you’re —it’s your belief that since we have military flag in the courtroom this is basically a military court and we don’t have jurisdiction over you in this court, is that your belief?
A I understand that Reed versus Calvert says no U.S. citizen shall be tried in a military court.
Q Yes, sir?
A And President George Bush, and I don’t remember the date right now, signed an executive order that all courts in the United States are military courts.
Q He did?
A He did.
Q Do you consider this to be a military court?
A I’m just telling you what the record is.
Q I’m asking do you consider this to be a military court?
A I don’t know as I have an opinion. I’m telling you that’s what I have read by executive order of a U.S. Supreme Court ruling.
Q One more question on this topic. Based upon your studies and the fact that’s a military flag, you’re not in the military; correct?
A Not now.
Q Do you feel that you are in the wrong court here today to be tried for the charges that have been brought against you?
A I’m here.
Q Do you feel by — based upon your belief and your study that —
A Let me ask — may I ask you a question?
The COURT: Now wait a minute, wait a minute. This process is not going to work at all unless we follow some basic rules. Mr. Franco, you ask the questions and you respond to the questions if possible with either a yes or no and if you don’t understand the question simply tell him and he will restate the question and maybe sometime before sunset this matter will come an end. Please try again to repeat the question and you just answer, you ask the question and you respond as briefly and succinctly as you possibly can hopefully with a yes or no and then we’ll move ahead.
By Mr. Franco:
Q Based upon your study and your understanding of this executive order, do you feel that you are in the proper court yourself for the charges that have been filed against you?
A To the best of my study until I’m shown differently or can be proved differently I’m a U.S. citizen in one of the fifty states, I’m under the U.S. Constitution of America as a free citizen, I’m not in the military and if it’s correct according to the study that’s a military flag, that flag denotes what court I’m under in this room.
Q So you, based upon your study you believe this to be a military court?
A According to George Bush.
Then, on redirect by Mr. Bryant:
Q Gerald, are you nervous about being here today?
A I’m totally relaxed.
Q Even though you may have a disagreement about whether or not that particular flag is the proper flag to be displayed in a courtroom, do you fully accept — I mean what’s your thoughts about this Court’s jurisdiction over you, do you accept that?
A Yeah, I have accepted it.
Q And what are your thoughts about the role of the Jury here today?
A I think that’s a great American way.

Later in the trial, Mr. Nick Herrington was cross-examined by the State:

Q Your meetings out there, what type meeting is that?
Mr. BRYANT: Object, Your Honor, beyond the scope of direct examination.
Mr. FRANCO: He said he was at the meeting. I think he opened the door.
The COURT: "Well, I really fail to see how it’s relevant to these proceedings, Counsel. If you can tie it into something, I’ll permit a few questions.
Mr. FRANCO: It’s just like when we did Mr. Fowler, I’ll get right to the point.
By Mr. Franco:
Q You notice the flag over there?
A Yes, sir.
Q What sticks out on that flag to you?
A A variety of things.
Q What about the gold fringe around the flag?
A Indicates military law.
Q What does that mean to you?
A It’s not common law.
Q Okay, it’s not common law?
A No, sir it’s not.
Q The law that we’re doing in court here today, the trial we have is a criminal trial?
A Yes, sir.
Q What type of law is this we’re doing here today?
A That flag indicates military law.
Q In your opinion is this a military court?
A Not my opinion.
Q Whose opinion?
A Tide 4, U.S. Code, Section 102, which defines the flag, Tide 36, U.S. Code 71-73, which goes further into the flag, Army Regulation 840-10, that really gets into it, Chapter 8.
Q Do you believe that Mr. Fowler is in the right court today for the charges for, he’s been charged with, a violation of state law—
MR. BRYANT: Your Flonor, this is all very interesting.
The COURT: Overruled, it goes to credibility. I’m going to permit it. Overruled.
By Mr. Franco:
Q You believe Mr. Fowler is in the correct court today based upon the flag that’s here and he’s charged with a crime under the laws of the State of Arkansas?
A How you define a crime—
Q The crime of harassment, he’s charged with the crime of harassment?
A Well—■
Q It’s a yes or no question, do you believe he’s in the right court?
A I don’t know.
Q Do you — you’re here as a witness in this court today and I think you took an oath, you were sworn in; is that correct?
A Yes, sir.
Q Does the fact that you’re under that flag, you don’t — let me back up just a second, you believe that that’s the wrong flag to be in this courtroom, correct?
A We don’t have a complete set of flags here, let’s put it that
way.
Q What other flag is missing then if that flag is flying?
A The American flag of peace means Old Glory is present, do you see it?
Q So we have the right flag?
A You don’t have a complete set.
Q Based upon that do you believe that you’re bound by the authority of this court here today?
A I’m a witness here.
Q Well, do you believe based upon your belief that Mr. Fowler is bound by the authority of this court?
A Yes, he’s got an attorney.
Q No, let me restate my question. Do you believe that Mr. Fowler is bound by the authority of this court, that he comes under the authority of this court based upon what you have talked about, the flag and stuff—
Mr. BRYANT: Your Honor, how is the witness supposed to testify as to what Mr. Fowler believes? I believe that’s improper.
The COURT: That wasn’t the question. The question was does this witness believe that Mr. Fowler is bound by the authority of this court, which I assume goes to his belief in this system which to some extent has something to do with his credibility. I think if he can narrow the issue to one of credibility I’m going to permit the inquiry and please, let’s move along.
Mr. Franco: That’s the last question I have, Your Honor, and that’s exactly what I’m asking about.
By Mr. Franco:
A If he didn’t believe he was bound he wouldn’t be here.

Then, on redirect by Mr. BRYANT:

Q Mr. Herrington, understand what it means to take an oath to tell the truth?
A Yes, sir.
Q Are you bound by that oath here today?
A Yes, sir.

On appeal, Mr. Fowler argues that Rule 608(b) of the Arkansas Rules of Evidence governs the admissibility of the challenged testimony. This argument misses the mark. Rule 608(b) pertains to the impeachment of a witness’s credibility by proving specific instances of conduct. Here, there was no attempt by the State to impeach either witness’s credibility by- proving specific instances of conduct. Rather, the State sought to establish that Mr. Fowler and Mr. Herrington did not believe the Washington County Circuit Court had authority to try the case and thus cast doubt on their obligation to tell the truth under oath. Rule 608(b) is simply not applicable. The United States Supreme Court rejected a similar argument in United States v. Abel, 469 U.S. 45 (1984), and recognized that impeachment by conduct under Rule 608(b) is a separate matter from impeachment by proof of bias.

As a general rule, all relevant evidence is admissible. Ark. R. Evid. 402. Relevant evidence is any evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Ark. R. Evid. 401. A witness’s credibility is always an issue, subject to attack by any party. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999); Ark. R. Evid. 607. The scope of cross-examination extends to matters of credibility. Ark. R. Evid. 611. A matter is not collateral if the evidence is relevant to show bias, knowledge, intent, or interest. See Dansby v. State, supra; Arthur v. Zearley, supra; Pyle v. State, 314 Ark. 165, 862 S.W.2d 833 (1993); Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). Proof of bias is “almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” United States v. Abel, supra, at 52. In other words, matters affecting the credibility of a witness are always relevant.

In this case, Mr. Fowler testified at trial and denied harassing the victim. He also presented alibi witnesses in his defense. On the other hand, the victim and her daughter testified that they were harassed by Mr. Fowler. The credibility of Mr. Fowler and his alibi witnesses were crucial to the resolution of this case. The issue presented, then, is whether the State’s fine of questioning was relevant to the issue of their credibility. We conclude that, in this particular instance, it was.

The State successfully elicited from Mr. Fowler his view that the flag in the courtroom was a military flag; that Reed v. Calvert says that no United States citizen shall be tried in a military court; and that President Bush signed an executive order that all courts in the United States are military courts. From Mr. Herrington, the State elicited his view that the flag in the trial court was not “common law” but indicated military law; that the United States Code stated that the trial court was a military court; and that Mr. Herrington was uncertain that Mr. Fowler was in the right court. The jury could have concluded from this evidence that the witnesses questioned the authority of the court to hear the case, and that their commitment to tell the truth in a court whose authority they questioned might be doubtful. Thus, the evidence elicited was circumstantial evidence bearing on the witnesses’s credibility.

The man who believes that he is under no legal or moral obligation at all times and under all circumstances to tell the truth under the sanction of an oath has destroyed the only test by which he can claim credit at the hands of men.

Wigmore, Evidence § 957 (Chadbourn Rev. 1970) (quoting from Anonymous, 19 S.C.L. (1 Hill) 251, 252 (1833)). The evidence of Mr. Fowler’s and Mr. Herrington’s beliefs concerning the Washington County Circuit Court’s authority over them would have a tendency to make the facts to which they testified less probable in the eyes of the jury than they would be without the evidence. Hence, that evidence was relevant to the issue of their credibility.

The testimony at issue in this case was admitted during the State’s cross-examination of Mr. Fowler and Mr. Herrington. This court has traditionally taken the view that the cross-examiner should be given wide latitude because cross-examination is the means by which to test the truth of the witness’s testimony and the witness’s credibility. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). Similarly in Davis v. Alaska, 415 U.S. 308 (1974), the United States Supreme Court reiterated that:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.... The cross-examiner is not only permitted to delve into the [witness’s] story to test the [witness’s] perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

Davis v. Alaska, supra. We have stressed the importance of allowing wide latitude with regard to the admission of evidence relevant to the bias of a witness. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Also, the trial court is given wide discretion in evidentiary rulings, and we will not reverse unless the trial court has abused its discretion. Jones v. State, supra. Under these circumstances, we cannot say that the trial court’s evidentiary ruling was an abuse of discretion.

The dissenting opinion relies on Ark. R. Evid. 403, which makes otherwise relevant evidence inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. However, the Rule 403 weighing issue was not preserved for appeal because it was neither raised at trial by Mr. Fowler nor was it ruled upon by the trial court. While Mr. Fowler mentioned the word “prejudice,” he never put the trial judge on notice that he was asking him to balance probative value against prejudice. Also, the trial court never specifically ruled on the prejudice objection. We have previously held that merely mentioning the word “prejudicial” without obtaining a ruling by the trial court results in a failure to preserve the Rule 403 issue for appeal. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992). Therefore, we are precluded from considering Rule 403. Id.; Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995). The dissenting opinion also argues that Dawson v. Delaware, 503 U.S. 159 (1992), is controlling because there “the Court, in essence, determined that the admission of the stipulation was more prejudicial than probative....” We note, however, that Mr. Dawson did not argue for a weighing of probative value versus prejudice. Additionally, the Supreme Court did not base its decision on the prejudicial effect of the evidence. Rather, the Court determined that the evidence had “no relevance to the sentencing proceedings in this case.” Id. at 166. In contrast, the evidence in this particular case concerning Mr. Fowler’s and Mr. Herrington’s beliefs about the Circuit Court’s authority over them was relevant to the issue of their credibility.

Affirmed.

Glaze, Thornton, and Smith, JJ., dissent.

LAVENSKI R. Smith, Justice,

dissenting. The majority holds that Fowler’s political opinions are relevant evidence in his prosecution for harassment. The majority does so by stating that a witness’s credibility is always an issue and by pointing out that proof of bias goes to credibility and is therefore admissible. The majority thus affirms the trial court’s decision to permit the prosecution to enquire into the defendant’s political beliefs in order to discredit his testimony that he did not follow the victim in his vehicle on October 9, 1997. In particular, the majority takes the position that Fowler’s beliefs regarding United States flags and miliary courts called into question his respect for the authority of the court. Thus, if he might question the court’s authority he might also not honor his oath as a witness to speak truthfully. The majority further holds that Fowler’s objection to the questioning failed to raise an issue of prejudice under Ark. R. Evid. 403. I disagree.

Evidence of bias is clearly admissible and for good reason. However, there are limits. Bias evidence, just like any other relevant evidence, is subject to limitations under Ark. R. Evid. 403, should an objection be made. The majority holds that Fowler failed to make this objection. I believe Fowler preserved objections to the evidence both as to its ultimate relevance and as to its potential prejudice under Rule 403.

As the majority quoted above, during Fowler’s cross-examination, Fowler’s attorney in his third of six objections to the line of questioning, stated:

Mr. Bryant: Objection, Your Honor, may I approach please?
The Court: You may.
Mr. Bryant: Your Honor, the only thing the Prosecutor is trying to do in this case is prejudice the Jury against my client because of his political beliefs. There’s no way this has anything to do with the ability to tell the truth or not. This is an outrageous attempt on the Prosecutor’s part to prejudice my client and I’d ask that he not be permitted to do that.
THE COURT: Well, you can narrow your question down to that particular issue which goes to credibility. I’m going to permit it but we need to narrow the scope of the inquiry and get on with it. All right. You may proceed.

The court then allowed the prosecutor to proceed with the questioning on the basis of credibility, in effect denying the objection.

While Fowler’s objection does not specifically cite Rule 403 as the basis for the objection, his objection clearly addresses “prejudice” as a ground for exclusion of the evidence. Specificity in making objections is important, but not-always essential.

Because the purpose of a trial objection is to avoid error, an objection to a question should be specific enough to inform the trial court of the particular problem, so that the court can realize what rule of evidence is being invoked, and why that rule would exclude a responsive answer, and can then rule intelhgendy thereon, and so that the party offering the testimony is given an opportunity to confront the- objection. ... But all that is required of any objection to evidence is that the objection be sufficiently clear and definite so that the court will understand the reason for the objection and so that the basis of the objection is apparent to the trial court. Thus, even if inartfully stated, the courts will allow an objection that apprises the trial court of the reason for the objection.

75 Am. JUR.2d Trial § 424 (1998). Accordingly, Fowler’s objection on the grounds of “prejudice” sufficed to alert the trial court that although possibly relevant, the evidence the prosecutor was attempting to elicit regarding Fowler’s political beliefs was substantially more prejudicial than probative. In addition, a specific ground for an objection need not be stated where the error is clear from the context. See Ark. R. Evid. 103; Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995). Because a sufficient objection was raised, we should review the prejudicial impact of the prosecutor’s line of questioning in this case.

As the majority noted, the United States Supreme Court considered the admissibility of similar evidence for bias purposes in Abel, supra, and under a Rule 403 analysis in Dawson v. Delaware, 503 U.S. 159 (1992). While the Court found that evidence of the tenets of the “Aryan Brotherhood” in Abel was properly developed, in Dawson, the Court found that it was reversible error to allow such information into evidence. The distinctions between Abel and Dawson are crucial. The instant case is much more similar to Dawson than to Abel.

In Abel, the defendant and two cohorts were indicted for bank robbery. At Abel’s trial, the prosecution called a witness who had also been a member of this gang. One of Abel’s witnesses, Mills, had testified that he had no knowledge of the gang or its tenets, and the prosecution then offered for rebuttal another gang member who testified that he, Abel, and Mills were all members of this gang. This witness testified that the gang had sworn to perjure themselves to protect one another. The Ninth Circuit Court of Appeals found that the testimony could not be offered to show that Mills was lying because he was a member of the gang. The United States Supreme Court reversed, holding that Abel’s and Mills’ membership in the gang was sufficiendy probative of Mills’ possible bias towards Abel to warrant its admission into evidence.

In the opinion, the Court discussed how bias applies to a witness’ testimony for or against a defendant. Because of the “common law of evidence” concept under which this testimony came in, the Court applied Rule 403 regarding the probative value of the evidence versus its prejudicial effect to determine in part whether the evidence was admissible to the issue at hand. The Court determined that its probative value outweighed its prejudice because of the common bond and shared beliefs Mills and Abel had through the gang in which they were involved, and specifically because these beliefs included a willingness to pegure themselves. Abel is also important because of the discussion the Court gave to the common membership that Abel and the two other witnesses shared. The Court specifically noted that “a witness’s and a party’s common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.” Abel, 469 U.S. at 52. Flowever, the Court qualified this broad statement by stating:

[T]he type of organization in which a witness and a party share membership may be relevant to show bias. If the organization is a loosely knit group having nothing to do with the subject matter of the litigation, the inference of bias arising from common membership may be small or nonexistent. If the prosecutor had elicited that both respondent and Mills belonged to the Book of the Month Club, the jury probably would not have inferred bias even if the District Court had admitted the testimony. The attributes of the Aryan Brotherhood - a secret prison sect sworn to perjury and self-protection - bore direcdy not only on the fact of bias but also on the source and strength of Mills’ bias. The tenets of this group showed that Mills had a powerful motive to slant his testimony towards respondent, or even commit perjury outright.

Abel, 469 U.S. at 54.

By contrast, in Dawson, the Court reversed a first-degree murder sentence in the sentencing stage of trial based on the admission of a stipulation that Dawson was involved with the Aryan Brotherhood. The stipulation apparently proved only the group’s abstract beliefs without proving that the group had committed any unlawful conduct or violent acts. As such, the Court found that it was not relevant to help prove any aggravating circumstances, or to rebut any mitigating evidence because membership in the group, in and of itself, cannot be considered sinister. In Dawson, the Court, in essence, determined that the admission of the stipulation was more prejudicial than probative because the stipulation was not sufficient to prove any aggravating circumstances. There was no foundation for finding that membership in the Aryan Brotherhood in and of itself proved anything relevant. The Court stated:

Delaware might have avoided this problem if it had presented evidence showing more than mere abstract beliefs on Dawson’s part, but, on the present record, one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. Because Delaware failed to do more, we cannot find the evidence was properly admitted as relevant character evidence.

Dawson, 503 U.S. at 167. However, in Abel, the prosecution laid the foundation by offering its own witness who was a member of the group who testified regarding the tenets of the group, including that they would lie for one another. The Court allowed that testimony in order to show that Mills, Abel’s witness, was possibly biased in Abel’s favor.

In the instant case, there is no evidence that the group to which Fowler belonged espouses perjury in defense of other members before the courts. Nor is there any clear connection made between the witness’s abstract belief regarding indicia of court authority and a propensity for dishonesty. In fact, the record reflects very little about the group in question called “Community Improvement”. The prosecutor began with a general inquiry concerning the subject matter of the group’s meetings. He progressed to inquire into Fowler’s beliefs about constitutional documents, citizen’s rights, governmental abuses, the U.S. flag and concluded with a query about whether Fowler believed he was in a military court. On redirect, Fowler acknowledged his submission to the court’s jurisdiction and reaffirmed his obligation to speak truthfully. Certainly, Fowler and any alibi witness who testified that he was elsewhere during the commission of the offense was fair game for cross-examination. But, what little, if anything, the prosecution’s questions may have proved of bias was outweighed by the prejudice of stigmatizing Fowler as one with uncommon political beliefs. Those who have views, whether political, religious, moral, or philosophical, not generally embraced by the majority should not find those views so easily used to their detriment in our courts. Mr. Fowler may well have committed the offense for which he was charged and if so should endure the appropriate consequences. However, evidence of his abstract beliefs, without more than shown in the instant case, should not have been admitted into evidence. I, therefore, respectfully dissent.

Thornton, J., joins.

GLAZE, J., dissents separately.

        Reporter’s note: See Fowler v. State, 67 Ark. App. 114, 992 S.W.2d 804 (1999).


source: Caselaw Access Project

author:
      RAY THORNTON, Justice.
      DONALD L. Corbin, Justice,

license: Public Domain

text:
    Roy Allen SKELTON v. Kathy Diane SKELTON
    99-152
    5 S.W. 3d 2
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      Pettus Law Firm, by: Donna C. Pettus and E. Lamar Pettus, for appellant.

      Smith Law Firm, by: Donna Hayden Lyles, for appellee.
   RAY THORNTON, Justice.

This appeal arises out of a stice. involves the distribution of a pension plan and disability benefits as marital property. Appellant raises three points on appeal. First, he argues that the trial court erred in including his fireman’s pension as 'marital property for distribution purposes. Second, he argues that Ark. Code Ann. § 9-12-315 (Repl. 1998), either by itself or in combination with Administrative Order No. 10: Arkansas Child Support Guidelines, violates the Equal Protection Clause of the Fourteenth Amendment. Third, he argues that the chancellor did not err in exempting his disability benefits from marital property. We affirm the trial court.

Roy Skelton and Kathy Skelton were married on September 6, 1974. At the time of the marriage, Mr. Skelton had been working for the Fayetteville Fire Department for approximately eight years. Ms. Skelton filed for divorce on May 5, 1998. The divorce hearing was held on October 14, 1998. The parties had settled all issues except the division of Mr. Skelton’s fireman’s pension.

The Fireman’s Relief and Pension Fund is a retirement program established under Ark. Code Ann. § 24-11-101 (Repl. 1996), and allowed ’by federal law. Under the rules of the pension fund, Mr. Skelton was prohibited from making contributions to or paying taxes for social security based upon his employment by the city. Although Mr. Skelton is ineligible for social security benefits, he is covered under the Fayetteville Firefighters Pension Fund.

Mr. Skelton retired from the fire department after twenty-three years and four months of service. At the time of his retirement, a fireman could retire at fifty percent of his regular salary plus twenty dollars per month for each year served beyond the twentieth year of service. If retirement resulted from a disability, the disability benefit was an additional fifteen percent of the fireman’s regular salary. In January 1990, Mr. Skelton was awarded regular retirement benefits in the gross amount of $1,264.63 per month. The City of Fayetteville contested Mf. Skelton’s entitlement to disability retirement, and on January 31, 1991, the circuit court of Washington County found that Mr. Skelton was entitled to continue to receive disability benefits as a result of a service-related, line-of-duty. disability resulting from an anxiety disorder. Since February 15, 1990, Mr. Skelton has received $1,264.63 in regular retirement and $361.38 in disability retirement for a total monthly benefit of $1,626.01. Mr. Skelton still receives these benefits.

Arkansas follows the well-established rule that retirement benefits earned during marriage are considered marital property. See Day v. Day, 281 Ark. 261, 663 S.W.2d 374 (1986); Meinholz v. Meinholz, 283 Ark. 509, 678 S.W.2d 348 (1984). Based upon the reasoning of Allard v. Allard, 708 A.2d 554 (R.I. 1998), the trial court treated Mr. Skelton’s retirement plan as a marital asset under Arkansas’s equitable-distribution statute. The chancery court determined that Mr. Skelton’s pension was marital property and awarded Ms. Skelton $417.80 per month, or one-half of that portion of Mr. Skelton’s gross regular retirement monthly benefit that resulted from contributions to the plan during the marriage. The chancellor declined to award Ms. Skelton any portion of the retirement benefits that was awarded for Mr. Skelton’s line-of-duty disability. We note that $417.80 per month is approximately twenty-six percent of Mr. Skelton’s monthly gross retirement benefit of $1,626.01.

Congress has excluded from its definition of marital property any benefits from social security. The Social Security Act provides:

The right of any person to any future payment under this sub-chapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

42 U.S.C. § 407 (a) (1994). The United States Supreme Court has adopted the position that this section imposes “a broad bar against the use of any legal process to reach all social security benefits.” Philpott v. Essex County Welfare Bd., 409 U.S.413 (1973). We held that the attempt to make future assignment of one spouse’s social security benefits was preempted by the provisions of 42 U.S.C. § 407 (a) in Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997).

We first address the question of whether contractual retirement plans that replace social security benefits should be exempted from marital property. The courts are sharply divided on this point. Florida, North Dakota, Utah, West Virginia, Wisconsin, Connecticut, Minnesota, and Rhode Island take the majority view, holding that retirement plans that replace social security benefits are included in marital property distribution. See Jefferies v. Jefferies, 895 P.2d 835 (Utah Ct. App. 1995); Loudermilk v. Loudermilk, 397 S.E.2d 905 (W Va. 1990); Olson v. Olson, 445 N.W.2d 1 (N.D. 1989); Mack v. Mack, 323 N.W.2d 153 (Wis. Ct. App. 1982) .

Pennsylvania and Ohio take the minority view, allowing social security replacement plans to be exempt from marital property. See Cohenour v. Cohenour, 696 A.2d 201 (Pa. 1997); McClain v. McClain, 693 A.2d 1355 (Pa. 1997); Walker v. Walker, 677 N.E.2d 1252 (Ohio 1996); Endy v. Endy, 603 A.2d 641 (Pa. 1992); Schneeman v. Schneeman, 615 A.2d 1369 (Pa. 1992); Cornbleth v. Cornbleth, 580 A.2d 369 (Pa. 1990).

Mr. Skelton relies heavily upon Cornbleth, supra, in which the court held that the part of the husband’s pension that was considered to be in lieu of social security benefits was exempted from the marital estate. The Cornblethcase stands for the proposition that once a social security replacement plan becomes a part of the marital estate, “there will be no Social Security benefit waiting to cushion this financial pitfall.” Id. The Cornbleth court, relying solely upon Pennsylvania law, sought to balance the equities between the husband and the wife, who both had pension plans.

We recognize that Mr. Skelton appears to be placed at a disadvantage because he was prohibited from contributing to social security under his fireman’s pension plan; however, the minority view on which he relies does not take into account the fundamental difference between social security and pension plans. A Florida court makes this distinction in Johnson v. Johnson, 726 So. 2d 393 (Fla. Dist. Ct. App. 1999). Florida’s equitable distribution statute provides that “[a] 11 vested and non-vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” Fla. Stat. Ann. § 61.076(1) (West 1997). In Johnson, the court held that the husband’s social security replacement plan was a marital asset. Id. The Johnson court, persuaded by the decision in Mack v. Mack, supra, further reasoned that social security replacement pension plans were not so similar to federal social security benefits as to render them exempt from the Florida statutes.

In the Mack case, the Wisconsin Court of Appeals provided the following rationale:

Although an employee’s social security account increases in relative value over his working life, social security is not a property like a pension. It is a system of social insurance. ‘To engraft upon the social security system a concept of accrued property rights would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands.’

Id. (citing Flemming v. Nestor, 363 U.S. 603 (I960)).

Since the courts are divided on this issue, we further examine the purposes behind social security benefits and pension plans. In the United States Supreme Court case of Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979), a railroad-benefits case, the Court discussed the contractual nature of pension plans vis-a-vis the non-contractual nature of social security. Writing for the majority, Justice Blackmun states:

Like Social Security, and unlike most private pension plans, railroad retirement benefits are not contractual. Congress may alter, and even ehminate, them at any time. This vulnerability to congressional edict contrasts strongly with the protection Congress has afforded recipients from creditors, tax gatherers, and all those who would ‘anticipate’ the receipt of benefits....

Id. The possibility of changes in benefits is expressly stated in the Social Security Act: “The right to alter, amend, or repeal any provision of this [Act] is reserved to Congress.” 42 U.S.C. § 1304 (1994). This language emphasizes the difference between social security benefits and pension plans. As the Mack case points out, social security benefits are a type of public welfare, or social insurance. Social security benefits provide revenue or income; however, social security is not contractual in nature and does not become a property interest. It is subject to change by congressional act at any time.

According to Hisquierdo, most private pension plans are contractual agreements between the employer and employee. In Mr. Skelton’s case, the contributions to his pension plan were made during the marriage and became a property interest during the marriage. See Ark. Code Ann. § 9-12-315; Day, supra. Mr. Skelton’s pension was not designed to replace noncontractual social security benefits; rather, it provided a pension benefit which exceeded that of the social security system. We note that Ms. Skelton, by foregoing compensation which would otherwise have been received during marriage, contributed indirectly to the pension plan. Because the purposes of social security and the retirement plan are fundamentally different, they are not interchangeable. Therefore, we affirm the trial court on this issue.

In his second point on appeal, Mr. Skelton argues that Ark. Code Ann. § 9-12-315 and the administrative order governing child support violate his rights to equal protection. He asserts that an impermissible classification exists between state employees who must forfeit social security benefits and those employees who do not. He expressly asserts “that there is no rational basis for depriving one class of individuals of two-thirds of their retirement pay when the statute allows one-half to be taken as marital property and another one-third for child support.” As we have previously stated, Ms. Skelton’s award of $417.80 per month is approximately twenty-six percent of Mr. Skelton’s pension benefits. After the deductions of Ms. Skelton’s award of $417.80 per month of the pension and an award of $340.00 per month for child support, Mr. Skelton still retains $868.21 per month of his $1626.01 in pension benefits. The assertion that he is deprived of two-thirds of his retirement pay is not true.

All doubts pertaining to a statute in question are resolved in favor of constitutionality. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). Where a constitutional construction is possible, we are compelled to uphold the validity of the statute under attack. Id. We have previously addressed the constitutionality of Ark. Code Ann. § 9-12-315 in Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994). In Hamilton, an elective share case, we held that this statute does not violate the Equal Protection Clause, either facially or as applied. Id. We declined to strike down Ark. Code Ann. § 9-12-315 because we could easily discern a rational basis behind the General Assembly’s handling of the class of spouses disputing the division of property. Id. We also noted that any effort to amend the treatment of the class is more appropriately addressed to the General Assembly. Id. Similarly, Ark. Code Ann. § 9-12-315 is not violative of the Equal Protection Clause in this case.

Mr. Skelton argues that Ark. Code Ann. § 9-12-315 (R.epl. 1998) is unconstitutional as applied to the classification of his pension plan as marital property. We disagree. Mr. Skelton correctly cites the rational basis test for an equal protection challenge to a statute, as established in Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998) and Arkansas Hosp. Ass’n. v. Arkansas State Bd. of Pharmacy, 297 Ark. 454, 763 S.W2d 73 (1989). The burden to prove the unconstitutionality of the statute was upon Mr. Skelton. See Citizens Bank v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984). Mr. Skelton correctly states that he has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. See Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).

Mr. Skelton’s argument fails because he does not meet this burden. In determining whether a statute violates equal protection principles, we consider several factors: (1) the character of the classification; (2) the individual interests asserted in support of the classification; and (3) the governmental interests asserted in support of the classification. See Arnold, supra; In the Matter of the Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984). The Equal Protection Clause does not preclude all statutory classifications. Indeed, statutory classifications which have a rational basis and are reasonably related to the purpose of the statute are permissible. See Urrey Ceramic Tile Co. v. Mosley, 304 Ark. 711, 805 S.W.2d 54 (1991).

On the first and second factors, Mr. Skelton mischaracterizes his pension plan as a replacement for social security. Social security benefits are based upon computations that consider age, retirement status, including the amount of outside income, adjusted for cost-of-living increases, and many other factors. By contrast, Mr. Skelton’s pension provided for payment of fifty percent of his regular salary plus $20.00 per month for each year served beyond the twentieth year of service. We have noted that he is not deprived of two-thirds of his retirement pay, as he argues. Accordingly, Mr. Skelton is not disadvantaged, either individually or as a member of a class.

We have concluded that Ark. Code Ann. § 9-12-315 is rationally related to several legitimate governmental purposes, one of which is to give marriage partners an equal, share of pension benefits earned during the marriage. We have stated:

[I]t is not our role to discover the actual basis for the legislation. Instead we are merely to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose.

Streight, supra. The statute recognizes that money earned during the marriage belongs to the partnership. It also recognizes that both spouses have contributed to the pension plan during the marriage and balances the distribution accordingly. There is a rational basis for the statutory determination that pension rights acquired during marriage should be treated as marital property. With regard to the allowance of child support, this benefit reflects his responsibility for the support of his minor children, and will end when they become adults. There is a rational basis for this treatment. Accordingly, we hold that Ark. Code Ann. § 9-12-315 and the Administrative Order do not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In the last point on appeal, Ms. Skelton argues that disability benefits are marital property. On October 14, 1998, the trial court ruled that these monthly disability benefits are nonmarital property and shall- remain the sole and separate property of Mr. Skelton. Mr. Skelton filed his notice of appeal on November 13, 1998. Pursuant to Ark. R. App. P.—Civ. 3 and 4, a notice of Ms. Skelton’s cross-appeal was timely filed on November 19, 1998.

Arkansas exempted disability benefits from marital property in the 1987 amendment to Ark. Code Ann. § 9-12-315 (b)(6) (Repl. 1998). The statute reads:

(b) For the purposes of this section, “marital property” means all property acquired by either spouse subsequent to the marriage except:
* * *
(6) Benefits received or to be received from a ... personal injury claim . . . when those benefits are for any degree of permanent disability or future medical expenses....

Id. In Clayton v. Clayton, 297 Ark. 342, 760 S.W.2d 875 (1988), we emphasized that Act 676 of 1987 “excepted from marital property only those benefits from an unliquidated personal injury claim that would be for any degree of permanent disability or future medical expenses.” We further stated that “the remaining benefits or elements of damage from one’s personal injury claim are subject to division as marital property pursuant to Ark. Code Ann. § 9-12-315(a)(1)(A).” Id.

Later, in Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995), we implemented a two-prong test to determine whether a claim as a “personal injury” satisfies the requirement for an exemption from marital property. First, the claim must be for a degree of permanent disability or future medical expenses. Second, the injury must be sustained while on the job or in consequence of a tortious act. In the Mason case, we held that Mr. Mason’s claim for his physical condition did not constitute a claim for “personal injury” as contemplated by Ark. Code Ann. § 9-12-315 (b)(6) because the ultimate source of his disability could be traced back to the wounds he suffered during World War II. Id. Mr. Mason’s injury did not satisfy the second prong of the test, as it was a preexisting condition that was exacerbated by an on-the-job fall. Therefore, his disability benefits did not fall within the statutory marital-property exemption.

This case is distinguishable from Mason. Here, the question is whether Mr. Skelton’s injury reflected a degree of permanent disability and whether it was job-related. We note that the Washington County Circuit Court’s finding in 1991 that Mr. Skelton suffers from an anxiety disorder is not disputed. Approximately eight years after the issue of his disability was adjudicated, Mr. Skelton continues to be compensated for this disability. His continued compensation reflects that he still suffers a degree of permanent disability. Additionally, there is no dispute that the disability was job-related. On the basis of the evidence before the trial court, we do not find reversible error in the chancellor’s determination that these disability benefits are not marital property. Accordingly, we affirm the decision of the trial court.

Affirmed.

CORBIN, J., concurring in part; dissenting in part.

DONALD L. Corbin, Justice,

concurring in part; dissenting spart. tice, I believe that the chancellor faded to properly balance the equities in dividing the parties’ marital property. The facts of this case demonstrate that during Roy Skelton’s twenty-three-year employment with the Fayetteville Fire Department, he was required to and did contribute to the Fireman’s Relief and Pension Fund established by the City of Fayetteville. The chancellor specifically found that Roy’s contribution to the pension fund was in lieu of social security. The chancellor found further that Roy never made contributions to social security and is thus not entitled to receive social security benefits as a result of his employment with the city. In other words, Roy was essentially forced to give up his rights to collect social security benefits in exchange for his employment as a Fayetteville fireman, an arrangement that undoubtedly benefitted the city.

Despite the foregoing findings, the chancellor ruled that the entire pension, minus that earned prior to the marriage, was marital property. In so ruling, the chancellor refused to inquire whether and to what extent Kathy Skelton is entitled to receive social security benefits. In my opinion, this was error.

Although this is an issue of first impression, I believe that this court should adopt the approach used by the courts in Pennsylvania and Ohio. See Neel v. Neel, 680 N.E.2d 207 (Ohio App. 8 Dist. 1996); Cohenour v. Cohenour, 696 A.2d 201 (Pa. Super. 1997); Schneeman v. Schneeman, 615 A.2d 1369 (Pa. Super. 1992); Endy v. Endy, 603 A.2d 641 (Pa. Super. 1992); Cornbleth v. Cornbleth, 580 A.2d 369 (Pa. Super. 1990). Collectively, those cases hold that because social security benefits are exempted from marital property, a spouse who receives a pension but no social security benefits may be entitled to have exempted from the marital property that portion of the spouse’s pension that might figuratively be considered in place of social. security benefits. The rationale for this position is best stated in Cornbleth:

One of our goals with regard to equitable distribution must be to treat different individuals with differing circumstances in a fashion so as to equate them to one another as nearly as possible, thus, eliminating a bias in favor of, or against, a class of individuals. To the extent individuals with Social Security benefits enjoy an exemption of that “asset” from equitable distribution we believe those individuals participating in the [civil service retirement programs] must, likewise, be so positioned. Consider for example an individual being divorced at approximately age fifty. Assuming a normal work history, that person will likely have accrued a substantial pension as well as a right to Social Security. When the pension is divided in equitable distribution there will be a diminution of the expected retirement income. However, the presence of Social Security will help offset the diminution. In contrast, an individual who was a civil service participant for many years will, if the trial court’s approach is approved, be dealt a double blow of sorts. The pension will become part of the marital estate and, thus, divided, yet there will be no Social Security benefit waiting to cushion this financial pitfall.

580 A.2d at 371-72 (emphasis added).

Thus, in order to reach an equitable distribution of marital property, it is necessary to consider the individual spouses’ eligibility for social security benefits. This does not, however, require the chancellor to automatically exempt the figurative social security benefits. Rather, it requires the chancellor to conduct an inquiry to determine whether such an exemption is equitable under the circumstances. See McClain v. McClain, 693 A.2d 1355 (Pa. Super. 1997) (holding that the husband was not entitled to set aside part of 'his federal pension benefits in lieu of social security benefits because the wife had no appreciable social security benefits of her own to balance against such a credit).

Chancery courts are courts of equity. The chancellor clearly has the power to divide marital property other than one-half to .each party when it is equitable to do so. See Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 1998); Brown v. Brown, 332 Ark. 235, 962 S.W.2d 810 (1998); Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986). Indeed, section 9-12-315(a)(l)(A)(iv) specifically allows the chancellor to consider the amount and sources of income for each party. In my opinion, this court should remand this case to the chancellor to determine the extent of Kathy’s-entitlement to social security benefits from her current full-time employment at Wal.Mart, as well as from any previous jobs she has held. Once that determination is made, the chancellor should fashion an equitable distribution of Roy’s pension. To allow the chancellor to blindly view the entire pension as marital property is patently inequitable. For this reason, I dissent.

Additionally, I concur with the majority’s holding that section 9-12-315 does not violate the Equal Protection Clause; however, I disagree with the analysis used to reach that conclusion. In my opinion, section 9-12-315 is not unconstitutional because it does not distinguish between those persons receiving social security retirement benefits and those receiving a retirement pension in lieu of social security benefits. In fact, the statute does not, on its face, exempt social security retirement benefits from marital property; rather, only those social security benefits paid for permanent disabilities and future medical expenses are exempted. This is evident from the language of the statute, which provides in pertinent part:

(b) For the purpose of this section, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(6) Benefits received or to be received from a workers’ compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses[.] [Emphasis added.]

Because there is no differential treatment of the two classes of persons, there can be no equal-protection violation. Moreover, Roy’s disability benefits were exempted from the marital property by the chancellor. Thus, he cannot argue that he is being treated differently under the statute.

Roy also argues that section 9-12-315 in combination with this court’s Administrative Order No. 10 is unconstitutional because his pension is deemed both marital property and income for purposes of child support. Though this argument is somewhat confusing, it appears to be premised on the notion that it is unfair to consider his pension benefits as both marital property and income. In this respect, the argument appears to be a duplication of that raised in the first point. If, however, Roy is arguing that the statute and administrative order exempt from the definition of income social security benefits, but not pension benefits, the argument is without merit. Both types of benefits are properly considered as income for purposes of determining child support. See Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997) (recognizing that federal law allows social security benefits to be reached by a former spouse for alimony or child support, but not for property division). Thus, true social security benefits are not any more exempt than pension benefits from the definition of income in determining child support.

In sum, section 9-12-315 does not afford protection to either “class” of persons, i.e, those receiving social security retirement benefits and those receiving pension benefits. As such, Roy’s equal-protection argument is without merit. Moreover, section 9-12-315 and Administrative Order No. 10 are not unconstitutional, as they do not differentiate between those persons receiving true social security benefits and those receiving pension benefits in lieu of social security. Both classes of benefits may be viewed as income for purposes of determining child support. Accordingly, for the reasons herein stated, I concur in the result reached by the majority on this issue.

Concurring in part; dissenting in part.


author: AVENSKI R. SMITH, Justice.

text:
    Kay DOBIE v. Larry R. ROGERS and Elizabeth H. Snipan
    99-531
    5 S.W.3d 30
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      Karen Pope Greenaway, for appellant.

      David H. Williams, for appellees.
   AVENSKI R. SMITH, Justice.

Appellant, Kay Dobie (“Dobie”), appeals . judgment of the Faulkner County Circuit Court in which a jury awarded Appellees, Larry Rogers (“Rogers”) and Elizabeth Snipan (“Snipan”), a total of $125,250.00 in damages. The damages represent the cost to repair the house Appellees bought from Dobie and her ex-husband, Ron Dobie. The jury found Dobie, her ex-husband, and Bob Kordsmeier (“Kordsmeier”), individually and as an agent for Conway Home Inspection Service, Inc., jointly and severally hable for the damages. Dobie raises four issues on appeal. First, she asserts that the trial court erred in failing to grant her motion for directed verdict. Second, she contends that the jury’s verdict was not supported by substantial evidence. Third, she contends that the court erred in ruling that the defendants were jointly and severally hable. Finally, she contends that the court erred in instructing the jury on a theory of liability that had previously been eliminated in a partial grant of summary judgment. We affirm.

Facts

Dobie and her ex-husband commissioned the construction of the house in question in 1986. The couple, who were still married at the time, hired Don Mallory (“Mallory”), a general contractor, to build the house for them. During construction, the subcontractor who laid the foundation loaded fill dirt for the foundation from the pond located on the property. This accomplished two objectives in that it enlarged the pond, and it provided inexpensive dirt for the foundation. Construction on the house was completed in December, 1986, and the Dobies moved into the house at that time.

The Dobies lived in the house until 1991 when they listed it for sale. The appellees first saw the house in February, 1992, and ultimately made an offer on the house. Before the sale was final, the appellees hired Kordsmeier, a house inspector, at the suggestion of the realtor. Kordsmeier inspected the house and met with the appellees to review his findings with them. Overall, Kordsmeier found the house to be in good condition. Fie did note that he saw an oddity in the laundry room in that Dobies had attached a vacuum cleaner hose to the washing machine’s water-outlet hose, and ran it to the outside yard through the dryer vent, instead of the through the in-house plumbing to the septic system. Kordsmeier noted this on his report and advised the appellees of this situation. Snipan later asked the real-estate agent about this situation. In response, the agent apparently told Snipan that by-passing the plumbing was not unusual. He said that people using septic tanks often did not run their wash water through the septic system in order to not overtax the system.

The sale of the house ultimately went through, and the appellees moved in. Upon moving in, the appellees ran their washing-machine outlet hose through the outlet drain to the septic system. Approximately one year later, the appellees began experiencing problems with the plumbing in the house. Snipan testified at trial that she first noticed water coming from under the house one day as she walked towards the back of the house. She testified that she crawled under the house and found that water was running from beneath it. She told her husband about her discovery, but he disregarded her observations.

Thereafter, in May of 1993, the appellees operated several appliances simultaneously including the dishwasher and clothes washer, which used the same in-house plumbing outlet pipes. Snipan testified that when she looked at the side of the house, she saw water running out of the bricks at approximately three or four places. Snipan testified that there was water all over the yard, so she called a repairman to come to the house. Once the repairman arrived, he ran a water hose down the washing-machine drain and turned it on. They then saw water running through the bricks.

Appellees called the builder and an inspector, who found that the foundation had collapsed under the laundry room crushing the outlet pipes and causing water to run under the house. Appellees ultimately had several inspections done. The inspections revealed that the £01 dirt used to create the base for the house’s foundation had retracted because it was wet when it was originally laid down. As such, the concrete slab foundation no longer rested on solid ground. The crushed pipes allowed the outlet water to seep under the house and erode the soil foundation further exacerbating the problem. Appellees requested estimates on repair, and these estimates ranged from $132,000 to $190,000 for a full repair.

On August 30, 1994, Appellees filed their lawsuit against the Dobies, Kordsmeier, Century 21 and various real-estate agents. Appellees’ claims against Dobie included negligence, breach of implied warranty of fitness for a particular purpose and habitability, misrepresentation and constructive fraud. The trial court dismissed Appellees’ claims against the real-estate agents by an agreed order, and granted summary judgment in favor of Mallory, the builder of the home, based on the applicable statute of limitations. We upheld that summary judgment on appeal.

The case proceeded to trial with the remaining defendants on July 30, 1998. Following jury selection, the trial court considered various motions filed by the parties, including a motion for summary judgment filed by Dobie on May 29, 1998. Dobie’s attorney argued that the claims against Dobie should be dismissed. Regarding the negligence and breach-of-the-implied-warranties claims, Dobie’s counsel argued that Dobie was not the builder, and had no control over the construction of the house. Furthermore, regarding the claims of constructive fraud and misrepresentation, Dobie’s attorney argued that the appellees stated in their depositions that they never actually spoke with Dobie, nor did they rely on the seller’s disclosure statement when buying the house. Dobie’s attorney also argued that these claims were not properly supported by appropriate affidavits and documentation in the pleadings before the court. The trial court granted Dobie’s motion for summary judgment on the issues of negligence and breach of the implied warranties, finding that Dobie was not the builder/vendor of the home. Flowever, the court allowed the claims of constructive fraud and misrepresentation to go to trial.

During trial, the appellees testified regarding their experience with the purchase of the house, as well as their discovery of the defect in the foundation. The appellees also presented evidence from several experts and inspectors regarding the process involved-with the breakdown of the house’s foundation. First, they presented Carl Garner (“Garner”), a civil engineer with and vice-president of Grubbs, Garner and Hoskyn Engineers in Little Rock. That firm’s main area of focus is primarily in soil and foundation engineering, construction material, concrete, asphalt, steel and soils. Garner was contacted to inspect the house because of the problems discovered with the foundation. Garner visually inspected the site, including the laundry room and kitchen where the main' area of settlement was centered. Garner and his firm then drilled a hole in the concrete floor in the laundry room to get a core sample of the foundation, and found that the slab settlement was a result of saturation of the fill soils and subsequent setdement due to the sewer break under that part of the house. Largely, Garner testified that while he could not state whether the defect in the concrete slab existed at the time the house was sold, he could say that the there was a problem with the fill soil under the slab, and that the wash-’ ing-machine hose more than likely was positioned outside of the dryer vent to relieve the water that was going to the broken pipe.

Appellees next presented Tom Allen (“Allen”), a real-estate structural and mechanical inspector. Allen inspected the house in October of 1995, and noted that the waste system had failed beneath the kitchen and laundry. Allen testified that the initial inspection report issued by Kordsmeier indicated that these failures existed at the time of that inspection, but that the report failed to summarize or conclude what had happened. Allen noted that the washing-machine hose presented an “absolute oddity,” and was a compensation for a problem that was ongoing and existing at the time of Kordsmeier’s inspection. Allen concluded that it was his opinion that the defective conditions existed at the time the Dobies, owned the house and when Kordsmeier made his inspection.

Appellees next questioned Frank Moore (“Moore”), vice-president and general manager of Hills of Arkansas, a general contracting firm specializing in concrete foundation repairs and waterproofing. Moore testified regarding the type of repairs required to fix the foundation problems, and noted that the two types of repairs suggested for this house cost between $132,000.00 and $193,000.00. The appellees final witness, Reese Michael Pearce (“Pearce”), a real-estate appraiser, determined that the value of the home and property on November 11, 1997, without considering the structural damages, was $183,000.00. However, taking into account the structural problems, Pearce estimated the value of the property between $0 and $50,900.00, indicating a loss of $132,000.00 to $183,000.00.

At the close of the appellees’ case, Dobie moved for a directed verdict, arguing that appellees did not present any proof that there was anything wrong with the house at the time of the sale or before the sale in 1991. Instead, she contended that the evidence presented indicated that the problems with the house occurred from 1993 and beyond. The court denied this motion. Dobie later renewed her motion for directed verdict at the close of the defendants’ case, and again the court denied that motion.

In the defendants’ case, the defense presented testimony from several witnesses including the Dobies, Kordsmeier, two structural repair engineers, and several other witnesses who had seen the house on several occasions. Defendants first presented John T. Wright (“Wright”), owner of a foundation repair company, who inspected the house at Kordsmeier’s request. Wright testified that he determined that only the kitchen and laundry room needed structural repair, and noted that the laundry room had a failure in the slab causing the sinkage in that room. Wright’s estimate to repair these two areas was approximately $9,224.00, plus another $1,500.00 for the plumbing repairs.

The defendants also called Marcia Lacy (“Lacy”) and Victor Schingle (“Schingle”), real-estate agents with Century 21, the realtor that listed the house. Lacy testified that when she was in the house during the time that it was on the market, she saw no problems with the floors in the kitchen and laundry room. Schingle testified that he did not recall having a conversation with Snipan about the washing-machine hose or the condition of the floors.

Defendants presented several other inspectors and repairmen besides Wright, including James Lee (“Lee”), a technician with Midstate Termite & Pest Control, Paul Mudersback (“Mudersback”), a general repairman, John Camp (“Camp”), a general contractor, John Lawrence (“Lawrence”), a structural-damage civil engineer, Don Louden (“Louden”), a home inspector, and Ed Hoezleman (“Hoezleman”), a remodeler. Lee testified that he did not observe any problems with the flooring during the times that he serviced the house. Mudersback, who performed general repairs on the house at the request of Lacy in preparation for the sale of the house, testified that he saw nothing out of the ordinary with the condition of the house nor any problems with the condition of the floors. Camp, who was called by the appellees to inspect the condition of the floors and foundation, determined that the problem with the house was with the plumbing under the kitchen and laundry room, and estimated the cost of those repairs at $10,000.00 to $11,000.00. Lawrence, a foundation specialist, noted that the slab foundation had moved significantly in the localized area of the laundry room and kitchen, but testified that such a condition could occur over a short period of time. Lawrence noted that the problem could have stemmed from inadequate fill compaction when the house was first built. Louden noted the problems with the flooring on his inspection, and provided general information regarding what an inspector, such as Kordsmeier, should review. Louden stated that with the condition of the house at the time that he saw it, he would have advised the buyers to get a more extensive inspection, but that there was no way to tell what the condition of the house was when Kordsmeier inspected it in 1992. Finally, Hoezleman noted the problems with the flooring, and estimated the cost of repair at $26,000.00.

At the close of the case, the trial court instructed the jury on the individual causes of action, and presented the jury with a general verdict with interrogatories. The jury returned a verdict for the appellees. This judgment was finally entered on October 15, 1998, and Dobie timely appealed on November 13, 1998.

Sufficiency of the Evidence

Dobie asserts in her first point on appeal that there was not sufficient evidence to support the jury’s verdict finding constructive fraud by Dobie because there was no evidence of misrepresentation by Dobie and no evidence of detrimental reliance by the appellees on any representation made by Dobie. Dobie notes that the appellees purchased the home from her in “as is” condition, and that the appellees never had any conversations with Dobie about the condition of the house. Furthermore, Dobie argues that despite the fact that she signed a seller’s disclosure statement in which she asserted that the house was in good condition, the appellees’ testimony at trial revealed that they did not rely on this statement, nor did they recall even seeing this statement, when deciding to buy the home and property.

The appellees argue in response that Dobie’s grounds for contesting the denial of her directed-verdict motion on appeal are different from the ground argued at trial; therefore, this court can not consider the new grounds for the first time on appeal. In response to the ground raised at trial, the appellees note that substantial evidence existed to support the jury’s verdict. Appellees cite the testimony from Garner and Allen who both testified that the defective condition existed at the time the Dobies owned the house and at the time Kordsmeier made his inspection. Regarding the issues on appeal, appellees argue that Dobie’s signature on the seller’s disclosure form as well as the testimony that the problems existed at the time Dobie signed that form are sufficient to provide substantial evidence of constructive fraud.

While Dobie argues in her brief that there were no genuine issues of material fact with regard to appellees’ claims against her, this case does not come to us in the posture of an appeal from a denial of a motion for summary judgment. The trial court denied Dobie’s motion for summary judgment on the issues of constructive fraud and misrepresentation, and this court has held that the denial of that motion is neither appealable or reviewable. Amalgamated Clothing & Textile Workers Int'l Union v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994). Flowever, Dobie also made a motion for a directed verdict at the close of the plaintiff’s case, and at the close of trial, and a denial of that motion can be reviewed on appeal. Ark. R. Civ. P. 50(a). The standard of review of the denial of a directed-verdict motion is whether the jury’s verdict is supported by substantial evidence; substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture; when determining the sufficiency of the evidence, the supreme court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf the judgment was entered. D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999).

In her motion for directed verdict, Dobie argued that appellees were unable to show any proof that there was anything wrong with the home while Dobie lived there or when she signed the seller’s disclosure statement. Dobie argued that any damage was established from 1993 forward, which does not prove the state of the home in December, 1991, while Dobie lived there. However, on appeal, Dobie argues that appellees did not prove any reliance upon any alleged representation made by Dobie, specifically noting that Snipan testified that she did not rely on the seller’s disclosure statement at trial. We will not consider arguments raised for the first time on appeal. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995). In Quinney, the appellant stated grounds for his directed-verdict motion, arguing that the evidence was not sufficient to support the causes of action, and the trial court denied that motion. On appeal, the appellant attempted to argue additional grounds, but because those arguments were not brought to the attention of the trial court, we refused to consider the arguments on appeal. Such is the case here, in that Dobie specifically argued below that there was no evidence before 1993 that there was anything wrong with the house. However, here on appeal, she now argues that there is no evidence that appellees relied on Dobie’s representations in the seller’s disclosure statement. Because this argument was not raised in the directed-verdict motion, it cannot now be raised on appeal.

Joint and several liability

Dobie next argues that the trial court erred in ruling that she and the other defendants were jointly and severally liable for the entire judgment of $125,250.00. Dobie first contends that if the jury found that she was guilty of constructive fraud, then appellees are not entitled to a monetary recovery under that theory because constructive fraud is based on the breach of a legal or equitable duty. Therefore, the proper remedy, Dobie argues, is rescission as illustrated by South County, supra. Second, Dobie argues that if the jury found that Dobie was guilty of breach of the implied warranties, as one of the verdict interrogatories notes, there can be no joint and several liability because the jury would have found that Dobie breached a contract. The Uniform Contribution Among Tortfeasors Act only applies to torts. Finally, Dobie argues that the final judgment is fatally flawed because it does not set out the apportionment found by the jury regarding each defendant’s percentage of fault.

Appellees argue in reply that first, Appellees elected to - maintain an action for money damages instead of rescission, the jury awarded money damages, and money damages have been recovered in other Arkansas constructive-fraud cases. Next, appellees argue that Dobie’s motion for summary judgment was granted with regard to the breach of the implied warranties and, therefore, the jury’s verdict had to apply to the constructive-fraud claim since the other cause of action was excluded. Finally, appellees note that juries may apportion among joint tortfeasors, but that apportionment is only for the purpose of determining contribution and indemnity among joint tortfeasors and does not affect the plaintiffs’ rights.

Dobie fails to persuade us that the trial court erred. Dobie offers no controlling legal authority to support her contentions that money damages are unavailable in constructive-fraud cases nor does she demonstrate that joint and several liability is improper in this case. This court has said in the past that it will not do research for an appellant and will affirm a trial judge’s decision when the appellant’s argument is neither supported by legal authority nor apparent without future research. See Farm Bureau Policy Holders v. Farm Bureau Mut. Ins. Co., 335 Ark. 285, 300-01, 984 S.W.2d 6 (1999). While Dobie cites South County, Inc. v. First Western Loan Co., 315 Ark. 722, S.W.2d 325 (1994) and Miskimins v. The City Nat’l Bank, 248 Ark. 1194, 456 S.W.2d 673 (1970), she fails to explain how these cases support her argument.

In addition, Dobie’s attorney failed to object at trial to the court’s verdict interrogatory submitted to the jury on the issue of joint and several liability. While the appellees’ attorney and Kordsmeier’s attorney discussed the issue with the judge, and Kordsmeier’s attorney lodged an objection to the instruction after the jury returned its verdict, Dobie’s attorney did not object or otherwise raise any concerns regarding the apportionment of damages where joint and several liability is found. Accordingly, we affirm the trial court’s joint and several liability ruling.

Implied Warranties

Dobie argues that the trial court erred in submitting a verdict interrogatory to the jury which included not only the constructive-fraud cause of action, but also the breach-of-implied-warranties cause of action, without instructing the jury that the breach-of-implied-warranties issue had been excluded as to Dobie. Dobie argues that the instructions were highly prejudicial to her, and that it is impossible to tell from the interrogatory which causes of action applied to Dobie, and on which cause of action the jury relied in finding Dobie liable.

Appellees respond by noting that Dobie did not object at trial to the submission of these interrogatories to the jury, and that Dobie is now barred from raising this issue on appeal. In addition, they contend the instruction was proper because the breach-of-the-implied-warranties cause of action was still a viable cause of action against Dobie’s ex-husband and, therefore, it was properly before the jury in that interrogatory.

Again, it should be noted that Dobie provides no legal authority for her argument. As previously stated, we will not do research for an appellant and will affirm a trial judge’s decision when the appellant’s argument is neither supported by legal authority nor apparent without future research. Farm Bureau Policy Holders, supra. Nor does the record reflect an objection to the court’s ruling. It is well settled that no party may assign as error the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection. Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 183, 952 S.W.2d 658 (1997); See also, Ark. R. Civ. P. 51. In essence, Dobie makes merely an abstract fairness argument without citing a case regarding jury instructions or verdict interrogatories in general. Appellant has not proven error in the record below, and, accordingly, we affirm.

Affirmed.

        Rogers v. Mallory, 328 Ark. 116, 941 S.W.2d 421 (1997).


author: LAVENSKI R. SMITH, Justice.

text:
    Terrick Terrell NOONER v. STATE of Arkansas
    CR 98-577
    4 S.W.3d 497
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      Jeff Rosenzweig, for appellant.

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

Terrick Terrell Nooner (“Nooner”) appeals ce. Pulaski Circuit Court’s denial of bis Petition for Rule 37 relief. Nooner alleges that fundamental errors and ineffective assistance of counsel in the penalty phase of his trial entide him to a new trial. Specifically, Nooner contends that allowing testimony under the state’s victim-impact statute violated the constitutional prohibition against ex post facto laws. He also contends that Arkansas’s victim-impact statute is unconstitutional as written. Additionally, Nooner asserts that two decisions of his trial counsel rendered that counsel ineffective in violation of his Sixth Amendment rights. These decisions consisted of trial counsel’s election not to seek a mental evaluation prior to trial and counsel’s choice not to bring a purportedly mitigating circumstance to the attention of the jury. We find no error and affirm.

I. Facts

We affirmed Nooner’s conviction and sentence in Nooner v. State, 322 Ark. 87, 907 S.W. 2d 677 (1995) (“Nooner I”). Nooner I recites the underlying facts, and they will only be briefly summarized here. On March 16, 1993, Scott Stobaugh, a college student, washed clothes at the Funwash Laundromat on West Markham street in Little Rock. An assailant, in an apparent robbery attempt, shot Stobaugh seven times at close range with a .22 caliber pistol, causing his death. A surveillance camera captured a portion of the incident on videotape. The videotape showed the assailant and Stobaugh as Stobaugh raised his hands. Two witnesses identified the person on the Laundromat video as Nooner, by clothing and appearance. Other testimony and ballistics evidence tied Nooner to the murder weapon. A Pulaski County Circuit Court jury convicted Nooner of capital murder and sentenced him to death for the murder of Scott Stobaugh.

II. Standard of Review

Postconviction proceedings under Rule 37 provide a remedy against unjust imprisonment. The rule enables our courts to correct a manifest injustice. As we have stated, Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void. Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989). Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999). We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997).

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. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). Even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988).

III. Ex Post Facto and Vagueness

Nooner attacks the constitutionality of Arkansas’s victim-impact evidence statute. Ark. Code Ann. § 5-4-602(4). He challenges the law both as written and as applied. Nooner argues that imposition of the death sentence in his case violated the U.S. Constitution and the Arkansas Constitution because it was enacted after the murder of Scott Stobaugh but before his trial. Nooner alleges that as an ex post facto law, the statute could not be used to allow victim-impact testimony in his trial. Nooner also contends the victim-impact evidence statute is void for vagueness. In response, the State argues that neither of Nooner’s constitutional claims were raised below and that both were resolved by this court in Nooner I. We agree.

Nooner, in fact, concedes that the victim-impact issue was not litigated in the Rule 37 pleadings or hearings below. We have routinely held that we will not hear arguments raised for the first time on appeal. Moreover, Nooner I expressly rejected appellant’s constitutional challenges to Ark. Code Ann. § 5-4-602(4). Nooner I, 322 Ark. at 109. If an issue has already been decided on appeal it cannot be reargued under Rule 37. Blakely v. State, 283 Ark. 138, 671 S.W. 2d 183 (1984); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). See also, Trimble v. State, 336 Ark. 437, 986 S.W. 2d 392 (1999). This court, in Neal, supra, stated:

Neal and his attorneys also seem to have a total misconception of the purpose and role of Rule 37. It is not meant to function as a substitute for appeal, as a method of review of mere error in the conduct of the trial, or as a second opportunity to petition for a rehearing. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934; Austin v. State, 264 Ark. 318, 571 S.W.2d 584; Clark v. State, 255 Ark. 13, 498 S.W.2d 657. It is not intended to permit the petitioner to again present questions which were passed upon on direct appeal. Hulsey v. State, supra. Nor does it permit a petitioner to raise questions which might have been raised at the trial or on the record on direct appeal, unless they are so fundamental as to render the judgment void and open to collateral attack. Hulsey v. State, supra.

Neal, 270 Ark. at 447. Hence, it is improper to consider this issue under Rule 37.

IV Ineffective Assistance of Counsel

Nooner’s remaining issues are based upon alleged ineffective assistance of counsel. Where effective assistance of counsel is at issue, the considerations are well established. As we stated in Dillard, supra,

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced his defense. See Clemmons, 334 Ark. 440, 976 S.W.2d 923; Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). 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. Id. In other words, 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 in that the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Herred, 332 Ark. 241, 964 S.W.2d 391; Slocum, 332 Ark. 207, 964 S.W.2d 388.

Applying these standards to the instant case, we hold the trial court did not err in denying Nooner’s claim for relief.

A. Psychiatric evidence

Nooner alleges ineffective assistance of counsel because defense counsel did not request a mental evaluation as allowed under Ark. Code Ann. § 5-2-309. Nooner contends the results could have produced evidence that may have gone toward establishing some mitigating circumstance in sentencing. He argues that his counsel’s failure to request an evaluation prevented the judge and jury from having critical evidence showing a limited capacity. Competency to stand trial has not been raised as an issue. Nooner’s counsel did not request a mental evaluation. At the hearing below, Nooner’s trial counsel testified that they saw no reason for an evaluation at the time of trial. They reported that Nooner involved himself intimately in his defense. He did legal research, participated in strategy discussions, and was articulate and able to convey his concerns and wishes. They also reported that Nooner behaved significantly differently in the Rule 37 hearing than he did during his trial. Nooner offered testimony from his mother that he had behavioral and emotional problems which they had shared with his trial counsel. However, she acknowledged that although he had been treated at Rivendale, he had not been treated at a psychiatric facility nor prescribed anti-psychotic medication.

Our review of the record indicates that the trial court thoroughly evaluated Nooner’s claim and reasonably believed the testimony of trial counsel that they carefully considered whether to request an evaluation but discerned no good-faith basis for doing so. Nooner’s trial counsel also presented evidence that they had adduced evidence of Nooner’s troubled past and treatment through his stepfather during the penalty phase of his trial. We hold Nooner has not established that trial counsel’s decision not to request a psychiatric evaluation constituted ineffective assistance.

B. Prior Charge

Finally, Nooner also alleges ineffective assistance of counsel for counsel’s decision not to elicit testimony in the penalty phase that Nooner had a prior charge of aggravated robbery which was reduced to robbery because Ke had prevented his co-defendant from raping the robbery victim. The prosecution introduced the prior robbery as one of the aggravators in the penalty phase. At the Rule 37 hearing, both defense counsel testified that they did not recall the reduction in charge being due to saving the victim from rape. They did recall a prior conviction as an aggravator. Nooner alleges he told his counsel of the reduction in charge based on his protection of a victim he and his co-defendant were robbing. Even assuming counsel were told, Nooner cannot prevail on the issue. To prevail, he must demonstrate that there is a reasonable probability that, but for counsels’ errors, the decision reached would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Dillard, supra. As a mitigating circumstance, Nooner’s alleged rescue is dubious at best. We hold that there is no reasonable probability that the outcome would have been different had trial counsel sought to introduce the evidence.

Affirmed.