author: Robert L. Brown, Justice.

text:
    J.D. STEWART v. STATE of Arkansas
    CR 93-478
    870 S.W.2d 752
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994

      Thomas A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is a first degree murder case where the appellant, J.D. Stewart, was sentenced to 40 years. He raises three issues on appeal: (1) whether the trial court erred in refusing to give his proffered instruction on duress to the jury; (2) whether the trial, court erred in granting the State’s motion in limine to prevent expert testimony concerning Stewart’s intent and culpability; and (3) whether the trial court erred in refusing to allow defense counsel to delve into specific instances of the victim’s alleged propensity for violence. We hold that the trial court did not err in the three rulings, and we affirm.

On March 17, 1990, at about 4:30 p.m., Stewart entered the Citizen’s Cafe in Texarkana. It was Stewart’s birthday, and the restaurant was preparing food for a party. The victim, Percy Ragland, was seated on a stool inside the cafe. Ragland and Stewart exchanged heated words, and when Stewart approached Ragland, Ragland pushed him away. Stewart then pulled a large caliber pistol and pointed it at Ragland, who got up and started walking towards the door. Stewart fired his pistol once, striking Ragland in the upper right back and killing him.

Shortly after the shooting, Stewart turned himself in at the Texarkana Police Station. Detective John Gann took a statement from him where he said that he did not know what happened and was just holding the gun when it went off. He added, “I didn’t mean to kill anyone.” He also said that Ragland tried to get him to buy him a beer and would not leave him alone when he refused. He said that he had had trouble with Ragland in the past. Stew-' art admitted that Ragland did not have a weapon and had not threatened him. Stewart was charged with first degree murder.

At the request of his defense counsel, Stewart was then examined by Dr. James R. Blackburn, a clinical psychologist with the Southwest Arkansas Counselling and Mental Health Center in Texarkana. Dr. Blackburn’s July 31, 1990 report stated that at the time of the shooting Stewart realized the criminality of his conduct. The report also noted that Stewart was discharged from the Marines after serving two years and six months in Vietnam in 1969 and that he was suffering from emotional stress. On July 24, 1991, Dr. Blackburn issued a second report where he concluded that Stewart, though not psychotic at the time of the shooting, had a mental defect caused by stress and fear that rendered him unable to conform his behavior at that time. Blackburn was of the opinion that under physical threat or aggression, Stewart would overreact and panic as the result of impaired judgment. The doctor also opined that he had a greater than average lack of ability to delay his reaction to threats or aggressiveness.

Dr. Marianne Seidel, a psychiatrist in Texarkana, also examined Stewart at the request of the trial court to determine his sanity at the time of the slaying. In her report, she stated that while he may have suffered some psychotic symptoms immediately after Vietnam, those symptoms were resolved very early on in his stay at Oakland Naval Hospital in 1969 when he was put on psychotic medications. She was also of the opinion that he “probably was not ever truly schizophrenic,” and that at the time of the shooting, he was not suffering from any psychotic illness. Dr. Seidel specifically stated that in her opinion his behavior was not the result of a momentary psychosis that rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. In the latter respect, she disagreed with Dr. Blackburn’s second report.

Stewart filed a motion for acquittal due to mental incapacity which was denied. The day of the trial the State filed a motion in limine to prohibit defense counsel from asking expert witnesses whether Stewart had the purposeful intent to commit murder at the time of the killing. The motion was granted.

At trial, Carrie Newton testified that she was a barmaid in the cafe and viewed the altercation between Stewart and Ragland and the murder. She testified that Ragland did not have a pistol and had walked eight to ten feet toward the front door when he was shot. On cross examination, defense counsel asked her whether the victim had a reputation for violence in the community. She answered that she had not known Ragland to be violent. The State objected on grounds of relevance, and the objection was sustained.

Robert Nelson, who also worked at the cafe, described the shooting at trial. He stated that he did not see Ragland make any threatening moves toward Stewart. Ragland, he testified, was almost at the door of the cafe when he was shot.

Stewart took the stand as part of his defense and testified that his aunt had a relationship with Ragland and that he had seen them have disagreements. The State objected to this on grounds of relevance, and a bench conference was conducted. The State argued that what the defense was trying to offer was evidence of prior bad acts of Ragland which was not relevant. Defense counsel argued that evidence that Stewart observed Ragland hit his aunt established that Stewart had reason to fear Ragland. The trial court ruled that if the defense could show that Ragland had placed Stewart in actual fear by past actions, defense counsel could inquire into prior acts of aggression on the part of Ragland.

Dr. Blackburn then testified as a defense witness that Stewart told him that he was afraid of Ragland because of Ragland’s relationship with his aunt. The state objected again, and the trial court sustained the objection. Dr. Blackburn added that Stewart gave him no other reason why he was afraid of Ragland. The doctor posited that Stewart’s “mental defect” prevented him from being able to conform his conduct and formulate the requisite intent at the time he shot Ragland. The doctor was of the opinion that Stewart suffered from a “paranoid personality disorder.”

Dr. Marianne Seidel testified on rebuttal that after examining Stewart and reviewing his medical records, she was of the opinion that he appreciated the nature of his conduct and was able to conform his conduct on the day he shot Ragland. On cross examination, the defense asked Dr. Seidel about her report which contained a reference to Stewart’s intent at the time of the shooting. The State objected, and a bench conference ensued. The court instructed the defense that it could not ask Dr. Seidel to read to the jury that part of her report which stated that Stewart’s behavior did not “appear to have been premeditated but rather a reaction to a perceived threat to his own safety and well-being.” The trial court did allow the full report to be proffered.

After the jury retired and per an agreement among counsel and the trial court, defense counsel objected to the trial court’s failure to instruct the jury on the affirmative defense of duress. That requested instruction was not proffered and is not part of the record in this appeal. The jury found the appellant guilty of murder in the first degree and sentenced him to 40 years.

I. DURESS INSTRUCTION

Stewart first asserts that the trial court erred in refusing to instruct the jury on the affirmative defense of duress. Specifically, he contends that there was evidence that at the time of the shooting he suffered from an impairment which rendered him unable to control his conduct.

We do not reach this issue because it was not preserved for appeal. The instruction in question was not proffered into the record, and we do not have it before us for our review. This court has stated that it is the appellant’s duty to bring up a record sufficient to show that the trial court erred. Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993). In order to preserve an objection to an instruction for appeal, the appellant must make a proffer of the instruction to the judge. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). That proffered instruction must then be included in the record and abstract to enable the appellate court to consider it. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986). An instruction that is not contained in the record is not preserved and will not be addressed on appeal. Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989). We further note that objections made to the instructions given or based on an instruction not given are untimely after the jury retires. See Young v. Johnson, 311 Ark. 551, 845 S.W.2d 509 (1993).

11. EXPERT TESTIMONY ON INTENT

Stewart’s next claim of error is that the trial court erred in granting the State’s motion in limine which prevented his attorney from questioning the mental health experts on his intent and culpability.

The standard of review for a trial court’s ruling on the admissibility of expert testimony is abuse of discretion. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Expert testimony is admissible when it will aid the jury to understand evidence presented or to determine a fact in issue. Ark. R. Evid. 702; Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). In determining whether expert testimony will aid the trier of fact, the question becomes whether the subject is beyond the ability of a lay person to understand. Utley v. State, supra.

Stewart was charged with first degree murder for purposely causing the death of Ragland under Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1990). Following his examination by Dr. Blackburn and Dr. Seidel, he moved for acquittal on grounds that he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law. The motion was denied. The prosecutor then moved in limine to prevent either Dr. Blackburn or Dr. Seidel from testifying as to whether Stewart acted with purpose to cause Ragland’s death or, stated another way, whether he lacked the specific intent to do so at the time of the murder. The trial court granted the motion which limited this expert testimony.

Jurisdictions in this country have split over the issue of whether expert testimony on the ability of a defendant to form specific intent to murder is admissible. See Admissibility of Expert Testimony As To Whether Accused Had Specific Intent Necessary For Conviction, 16 ALR 4th 666 (1982). The better view, in our judgment, is that it is not. We recognize that psychiatric testimony concerning whether a defendant has the ability to conform his conduct to the requirements of law at the time of the killing as part of an insanity defense may seem in some cases to approximate testimony on whether the defendant had or did not have the required specific intent to commit murder at a precise time. We draw a distinction between the two categories of testimony, however. A general inability to conform one’s conduct to the requirements of the law due to mental defect or illness is the gauge for insanity. It is different from whether the defendant had the specific intent to kill another individual at a particular time. Whether Stewart was insane certainly is a matter for expert opinion. Whether he had the required intent to murder Ragland at that particular time was for the jury to decide.

Other jurisdictions have held that expert testimony on specific intent to murder is inadmissible. See, e.g., Haas v. Abrahamson, 910 F.2d 384 (7th Cir. 1990); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (Neb. 1990); State v. Clements, 789 S.W.2d 101 (Mo. App. 1990); State v. Bouwman, 328 N.W.2d 703 (Minn. 1982). According to the Nebraska Supreme Court, expert testimony on homicidal intent is merely an expression of an expert on how the jury should decide the case. State v. Reynolds, supra. We agree. We further agree that the issue of whether the defendant formulated intent to kill is within the capability of lay jurors to decide. State v. Clements, supra. While expert testimony on whether a defendant lacked the capacity to form intent is probative, we question whether opinion evidence on whether the defendant actually formed the necessary intent at the time of the murder is. State v. Bouwman, supra.

Nor do we believe that Ark. R. Evid. 704 allowing opinions embracing an ultimate issue controls this matter. The threshold question under Rule 704 is whether the testimony is otherwise admissible. Under Ark. R. Evid. 702 expert testimony must assist the trier of fact to be probative. Under Ark. R. Evid. 401-403, it must be relevant and not misleading or confusing to the jury. Expert opinion on whether Stewart killed Ragland purposely on March 17, 1990, at least had the potential for being misleading and confusing to the jury.

The trial court did not abuse its discretion in refusing to permit the expert opinion concerning the ability of Stewart to form the requisite mental intent at the time he shot Ragland. We affirm its ruling on this point.

III. INQUIRY INTO VIOLENT ACTS

Stewart’s final point is that the trial court erred in refusing to allow an inquiry into specific instances of violent or aggressive conduct on the part of Ragland, after the State had introduced evidence of Ragland’s propensity for peacefulness. Ragland claims that the State’s witnesses, Carrie Newton and Robert Nelson, testified as to Ragland’s character trait for peacefulness and argues that this testimony was premature because the defense had not offered evidence that Ragland was the aggressor. At the very least, Stewart contends, this testimony opened the door for contravening testimony on Ragland’s aggressiveness.

Under Ark. R. Evid. 404 (a)(2), evidence of a pertinent trait of a victim’s character is admissible. The State, however, is limited in character evidence about the victim under 404(a)(2) to rebutting what the defense has presented. In cases where the character of the victim is an essential element of the defense, Ark. R. Evid. 405(b) permits inquiry into specific instances of the victim’s conduct. The trial court concluded that it did not believe that evidence of the victim’s character trait for aggressiveness was relevant under these facts. This ruling was a matter for the trial court’s discretion and is supported by the facts.

Here, the victim was shot in the back by Stewart. Irrespective of any penchant for violence that Ragland may have had, there was testimony that he was walking away from Stewart when he was shot. We have held that where a victim was shot in the back, a trial court did not err in refusing to permit defense counsel to delve into prior acts of aggression by the victim. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992). The same rationale applies to the case at bar. The fact that the State may have first “opened the door” regarding the victim’s character does not overcome the problem of relevancy under these circumstances. Nor do we consider the testimony of Newton and Nelson on Ragland’s propensity for peacefulness to be sufficiently prejudicial under these circumstances to warrant a new trial due to its irrelevancy.

There was no error in the trial court’s ruling.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Kenneth Thomas TRIMBLE v. STATE of Arkansas
    CR 93-196
    871 S.W.2d 562
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994
    [Rehearing denied March 28, 1994.]

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is a capital murder case arising out of the theft of hunting dogs belonging to Raymond Jacobs and the murder of Jacobs. The appellant, Kenneth Thomas Trimble, and John Young were both charged with capital murder. Trimble was tried first, convicted of the crime, and sentenced to life imprisonment without the possibility of par.ole. He.appeals, raising seven points, none of which has merit. The judgment of conviction is affirmed.

The procedural history of this case involves both Trimble and John Young and is somewhat convoluted, which is part of the basis for Trimble’s appeal. Raymond Jacobs raised hunting dogs at his home in Benton. On April 28, 1992, Young delivered four or five dogs to Jacobs, and Jacobs’s records indicate that Young sold the dogs to him. On the evening of May 8, 1992, Jacobs’s body was found in his bam at his residence. He had been stabbed multiple times with a pitchfork and bludgeoned with a hammer. Blood was found on the ground leading to the dog pens. Several of his dogs were missing.

Following the initial crime scene investigation, Saline County Sheriff’s deputies travelled to Young’s residence in Missouri and talked with him. At the time Young was not a suspect. Young told the investigators that he and Trimble had been at Jacobs’s residence on May 8, 1992, and that he had picked up four dogs. Young said that Jacobs was alive when he left.

On May 11, 1992, Young was interviewed again. This'time, he was informed that he was a suspect and was read his Miranda rights. On May 12, 1992, an information was filed charging Trimble and Young with theft of property, to wit, the dogs. On June 1, 1992, the charge was amended to capital murder and robbery. On June 4, 1992, Young was granted immunity on the capital murder charge by the circuit judge in return for his agreement to supply “complete and truthful information and data” to those investigating Jacobs’s death.

After Young was granted immunity, he gave a statement about events surrounding Jacobs’s murder and stated that it was Trimble who killed Jacobs. Afterwards, Young took investigators to various locations in North Central Arkansas to recover physical evidence which included the blood-stained clothing of Young and Trimble, the collars of the stolen dogs, and the hammer used in the slaying. Young told investigators that he and Trimble had purchased new clothing at a Wal-Mart store in Clinton. This enabled the investigators to locate Crystal Shaffer, a Wal-Mart employee who sold the clothing.

Following Young’s immunity grant and statement, Trimble was advised by his attorney to give his own statement. On June 23, 1992, Trimble gave a videotaped statement to Saline County Sheriff’s deputies in which he admitted going to the Jacobs residence with Young and that Young intended to steal the dogs. He further admitted registering in a motel under a false name. He denied, though, that he participated in the murder of Jacobs and claimed that the murder was committed solely by Young. Trimble said that Young had been in the bam alone with Jacobs and came out with blood on his clothing. He also said that he got blood on his clothes after Young grabbed him. On the drive back to Missouri, Trimble told the deputies that Young threw the bloody clothes, dog collars, and hammer out the window. Trimble said he bought new clothes at a Wal-Mart store.

Following a hearing on August 24, 1992, Young’s immunity was revoked by the circuit judge for inconsistent statements to the prosecutor and for failure to cooperate. Trimble then filed a motion to suppress his statement, claiming that it had been coerced because he only gave it after Young had been granted immunity and had made a statement implicating him and raising the issue of ineffective counsel.

On August 17, 1992 — the day before the trial began — a motion requesting that the circuit judge recuse because his son, John Lee Cole, was employed by the prosecuting attorney’s office was heard. The judge concluded that his son, age 20, was working merely as an errand boy in the hot checks division during the summer and did not live at home. On that basis, he denied the motion.

Also at that hearing, the circuit judge brought up the matter of the State’s revoking the grant of immunity to Young. The prosecutor stated that Young would not be called as a witness against Trimble and that the State would not use any physical evidence recovered from Young after he was granted immunity on June 4, 1992.

The circuit judge then heard Trimble’s motion to suppress his statement on grounds of coercion effected by Young’s grant of immunity and statement and by ineffective counsel. Trimble testified that under these circumstances his attorney advised him that he had no choice but to give a statement. The circuit judge found no coercion and denied the motion.

The case was tried over two days on August 18-19, 1992. Trimble was convicted of capital murder and sentenced to life without parole.

On September 14, 1992, Trimble filed a motion for new trial alleging juror misconduct, the failure of Circuit Judge John Cole to recuse, and an improper grant of immunity to Young. In support of his motion, Trimble offered four affidavits: (1-2) Mark Marcus and David Hunter, who stated that they saw the son of the victim, Jeff Jacobs, talking with members of the jury; and (3-4) Kenneth Trimble and Lora Trimble, who stated that they were seated behind a person who was later selected as jury foreman, Michael Brown, and who said that Trimble looked “old enough to know better.” Testimony was taken from the jury foreman and the son of the victim, both of whom denied the allegations.

On October 21, 1992, the circuit judge ordered Trimble to testify at Young’s trial, which commenced that date. Trimble did so and testified essentially to what he said in his videotaped statement which was used against him at his own trial. Young was convicted of capital murder.

On October 26, 1992, Trimble filed an amended motion for new trial and a petition for writ of error coram nobis on grounds that at his trial, the State introduced his statement against him and labeled it as false. At Young’s trial, however, he was ordered to testify. Trimble contended that if the State believed his statement was a lie at his trial, it either offered false testimony at Young’s trial or learned after the first trial that Trimble’s statement was true.

On November 9, 1992, the circuit judge denied Trimble’s motion for a new trial and petition for a writ of error coram nobis.

I. SUFFICIENCY OF THE EVIDENCE

We first consider whether the evidence was sufficient to support the verdict. The standard of review for determining the sufficiency of the evidence is clear and was recently set out in Sheridan v. State, 313 Ark. 23, 30-31, 852 S.W.2d 772, 775-776 (1993):

On appeal, the appellate court does not weigh evidence on one side against the other; it simply determines whether the evidence in support of the verdict is substantial. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992); Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992); Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). Circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). This becomes a question for the fact finder to determine. Id. In determining whether there was substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). Guilt may be proved, even in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984). See also Standridge v. State, 310 Ark. 408, 837 S.W.2d 447 (1992); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

It is readily apparent that the evidence in support of the verdict was substantial, albeit circumstantial. Trimble was familiar with the dealings between Jacobs and Young and Young’s dealings with three prior dog owners. He accompanied Young to Jacobs’s house knowing, by his own admission, that Young intended to steal the dogs from Jacobs. He later checked into a motel with Young, using a false name. His statement also supports the verdict with respect to the planning and travel to Benton, the initial attempt to steal the dogs, and later the attempt of the two men to get rid of their bloody clothes, the dog collars, and the murder weapon as well as Trimble’s purchase of new clothes at the Wal-Mart store. His contention that the murder was perpetrated by one person is contrary to the physical evidence which reveals multiple blows from two weapons. Dr. William Sturner, Chief Medical Examiner for the Arkansas Crime Lab, found as many as 40 blows inflicted on Jacobs. The wounds were lacerating wounds and blunt force wounds suggesting two different weapons. A pitchfork was found under Jacobs’s body. Trimble, in his statement, referred to a hammer as the weapon used by Young. The jury clearly was not bound by Trimble’s version of the murder itself and based on the evidence presented could have concluded that Trimble was lying when he said he was not involved in the murder. See Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985). We find no basis for reversal on this point.

II. PROSECUTORIAL MISCONDUCT

Trimble’s next asserted error is that the circuit judge abused his discretion in refusing to grant his motion for new trial due to prosecutorial misconduct. Specifically, Trimble points out that in closing arguments, the prosecutor labeled his version of Jacobs’s death as “hogwash” and added that Trimble “lied to save his life.” However, then the prosecutor obtained a court order that Trimble testify at Young’s trial, where Trimble gave the same version of events as he did at the first trial. Trimble argues that the prosecutor either knew that his statement was the truth and lied when he labeled it as untrue or, alternatively, that between Trimble’s trial and Young’s trial, the prosecutor learned that Trimble had been telling the truth and failed to support his motion for a new trial. Trimble adduces Rule 3.3 of the Rules of Professional Conduct prohibiting a lawyer’s introduction of false evidence in support of his argument.

In reading the prosecutor’s closing argument at the Trimble trial, it is clear that it was the claim that Young acted alone in killing Jacobs which the prosecutor contended was a lie. The prosecutor, nevertheless, believed that portion of Trimble’s statement concerning the planning of the crime and the events leading up to the murder and the aftermath of the murder as well. We know of no reason why a prosecutor should be foreclosed from contesting part of a defendant’s statement which the prosecutor believes to be untrue. What Trimble advocates is that whenever a defendant gives a statement detailing a crime but denying ultimate culpability, the prosecutor when using the statement at trial cannot contest that denial. Such a ruling would unduly hamstring prosecutors and place them in the untenable position of gauging credibility on all aspects of a witness’s statement before offering that witness’s testimony. We know of no law requiring such. Trimble’s argument has no merit.

III. ILLEGAL GRANT OF IMMUNITY TO YOUNG

Trimble also contends that the circuit court erred in refusing to grant his motion for new trial due to the acquisition of evidence against him occasioned by an illegal grant of immunity to Young. In support of this point, he offers that the grant of immunity to Young was improper because it was “full transactional immunity” while the applicable statute, Ark. Code Ann. § 16-43-601 (1987), only permits “use immunity.” In addition, he argues that had this grant of immunity not been made to Young, Young would not have cooperated with the authorities and without Young’s help, the police would not have amassed the evidence which was necessary to convict Trimble. The precise items of evidence listed in Trimble’s brief which were gathered from Young are the name of the Wal-Mart store in Clinton, the clerk’s name at the Wal-Mart store, and the name of the motel in Benton. No other contested evidence is listed in Trimble’s brief. Trimble concludes by advancing the argument that this evidence is tainted irrespective of Trimble’s later statement which covers the same ground. Trimble notes on this point that the prosecutor assured the circuit court that he would not use any evidence or testimony gleaned from Young after the grant of immunity.

As a threshold matter, we conclude that Trimble has no standing to contest the kind of immunity granted to Young. See generally Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992). Information gathered by virtue of Young’s immunity, however, is a different matter, at least with respect to the use of such evidence against the person who was granted immunity. See United States v. Brown, 801 F.2d 352 (8th Cir. 1986). Here, that person is Young. Yet, the prosecutor also advised the circuit judge that he would not use the Young evidence against Trimble. According to Trimble, he did exactly that when he used the evidence gathered at the Wal-Mart store and the Benton motel.

We do not consider this circumstance, though, to be a basis for reversal. Trimble made no objection to the evidence alleged to be dubious when offered so as to alert the circuit judge to its questionableness and to preserve the matter for appeal. See Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Heywood v. State, 297 Ark. 218, 760 S.W.2d 218 (1988). The point, accordingly, is not reviewable.

IV. RECUSAL

Trimble’s third point is that the circuit judge erred in not recusing because his son worked for the prosecutor during the summer of the trial. According to statements made by counsel at hearing, the judge’s son, John Lee Cole, who was age 20 at the time, worked in the hot check division of the prosecutor’s office during the summer of 1992. He was an errand boy and did not live in the judge’s home. Trimble argues that even if the judge’s initial decision not to recuse was proper, the judge should have recused after allegations of the prosecutor’s misconduct in this case were brought to light. Trimble further posits that the situation was such that it was reasonable to question the judge’s impartiality under these circumstances which violates Canons 2 and 3C(1) of the Arkansas Code of Judicial Conduct. He concludes that the judge’s refusal to disqualify prevented him from receiving a fair trial.

Canon 2 provides generally that a judge should avoid the appearance of impropriety. Canon 3C(1) of the Judicial Code is more specific:

A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(c) he knows that he, individually or as.a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

That canon does not precisely cover the conduct complained of here.

We agree with Trimble that the appearance generated by the employment of a judge’s son at the prosecutor’s office is none too good. At the same time, we are not prepared to say that the canons have been violated or that the conviction must be reversed. Other jurisdictions have considered the bias occasioned by the employment of a judge’s son, but have not found that that sole circumstance was sufficient to reverse a conviction on grounds of lack of fairness. Wilmington Towing Co. v. Cape Fear Towing, Co., 624 F.Supp. 1210 (EDNC 1986) (judge not disqualified by son’s summer internship in law firm representing a party); State v. Loera, 530 So.2d 1271 (La.App. 2 Cir. 1988) (judge not required to recuse in criminal cáse where his daughter was an assistant district attorney in the office prosecuting the case but was not involved in this specific case); State v. Logan, 236 Kan. 79, 689 P.2d 778 (1984) (trial judge’s son was an attorney in the district attorney’s office but this fact did not require reversal).

Disqualification matters under Canon 3C(1) are discretionary with the trial judge. Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992). The son’s summer employment in and of itself does not warrant reversal. No additional basis for recusal or prejudice to Trimble is presented apart from his general disagreement with some of the judge’s rulings. We find no abuse of discretion in the circuit judge’s refusal to disqualify.

V. INEFFECTIVE COUNSEL

For his next point, Trimble urges that his statement should have been suppressed because it was obtained as the result of coercion and ineffective assistance of counsel. Because the issue of ineffective counsel was raised as part of the pretrial motion to suppress, we will consider it.

We do not agree, however, with Trimble’s contention. We have no doubt that the advice of Trimble’s counsel to give a statement after Young’s grant of immunity and statement was tactically made. We have made it clear in the past that we will not make a finding of ineffectiveness when a strategic decision is questioned on review. Missildine v. State, supra; Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992). Moreover, trial counsel had no way of knowing that Young’s immunity would later be revoked.

We also observe that the mere fact that Young was given immunity and made a statement did not force Trimble to do the same. Indeed, he was free not to do so but decided, on advice of counsel, to tell his side of the story. Young’s immunity was subsequently revoked but that has no bearing on the validity of Trimble’s statement. Young’s cooperation may have been a catalyst for Trimble’s own statement but this does not translate into coercion or ineffectiveness on the part of counsel.

VI. MANSLAUGHTER INSTRUCTION

Trimble further argues that the circuit court erred in refusing to instruct the jury on manslaughter as a lesser included offense of capital murder under Ark. Code Ann. § 5-10-104(a)(4) (1987). The rational basis asserted by Trimble for giving this instruction is that the jury could have found him criminally negligent because he went to Jacobs’s house with the knowledge that Young was going to steal dogs, and he allowed Young to go into the barn with the victim.

We agree with Trimble that whenever there is a rational basis for giving an instruction, it must be given. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992); Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991). But we cannot agree that the manslaughter instruction premised on Trimble’s negligence is appropriate under these facts. The evidence did not suggest that Jacobs was killed for any purpose other than to facilitate the theft of his dogs. Trimble, by his own admission, knew about the proposed theft in advance and drove with Young to Jacobs’s house for that purpose. Theft is an intentional act from which violence might easily follow. There is no factual basis to support a crime based on negligence. The circuit court correctly refused to give the instruction.

VII. JUROR MISCONDUCT

Trimble claims juror misconduct in that after trial four individuals came forward and offered affidavits stating that one member of the jury expressed opinions about the case before he was selected and that at least one member of the victim’s family had talked with a juror during trial. Trimble concedes that the jury foreman, Michael Brown, and the victim’s son, Jeff Jacobs, denied the allegations of misconduct under oath, but argues that the circuit judge’s decision to deny the motion for new trial was tainted by his refusal to recuse.

Jury misconduct is a basis for granting a new trial under Rule 59 (a)(2). See Hacker v. Hall, 296 Ark. 571, 759 S.W.2d 32 (1988). The decision whether to grant a new trial under Rule 59 (a)(2) is discretionary with the trial judge who will not be reversed absent an abuse of that discretion. Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993). The burden of proof in establishing jury misconduct is on the moving party. Id. The moving party must show that the alleged misconduct prejudiced his chances for a fair trial and that he was unaware of this bias until after trial. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); Hendrix v. State, 298 Ark. 568, 768 S.W.2d 546 (1989).

While we have some doubt that the information surrounding the allegations of misconduct were only discovered after trial, we will address the merits of the argument. The issue of misconduct was contested. The juror alleged to have made a biased statement about Trimble denied it, and one of the victim’s sons testified that he did not shake a juror’s hand or talk to jurors. We further note that the four affiants making the charges were either family of Trimble or related by marriage.

Under these circumstances, we have no hesitancy in deferring to the decision of the circuit judge. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992).

The record has been examined for other error in accordance with Ark. Sup. Ct. R. 4-3(h), and no reversible error has been discovered.

Affirmed.


author: Per Curiam.

text:
    Alvin McKEE v. STATE of Arkansas
    CR 93-1151
    871 S.W.2d 351
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994

      Green & Henry, by: J. Bradley Green, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Alvin McKee was charged with theft of property, a Class C felony, in that he exercised unauthorized control over property in the excess of $200.00 but less than $2500.00. It was also alleged that he should be sentenced as an habitual offender.

In addition to the Class C theft of property charge, there were numerous other charges pending against Mr. McKee, including four counts of escape. Mr. McKee pleaded guilty to the one count of Class C theft of property and four counts of escape. In exchange for the plea agreement several other charges against Mr. McKee were dropped. He was sentenced to twenty years imprisonment for the theft of property and five years for the four counts of escape, for a total of twenty-five years imprisonment. He was not sentenced as an habitual offender. He filed a petition to correct an illegal sentence which was denied without comment. Mr. McKee brings this appeal.

Mr. McKee was sentenced as though his theft of property were a Class B felony. Although the information and judgment and commitment order classifies the theft of property as a C felony, Mr. McKee’s signed guilty plea statement characterized the theft of property as a Class B felony with a possible sentence of five to twenty years imprisonment. At the plea hearing, the court called the charge a “B felony” and told Mr. McKee that he could be sentenced from five to twenty years. The court said, “And you know that you are charged with a count of theft which is a B felony, and carries five to twenty years.” Mr. McKee answered, “Yes, sir.”

A circuit court may correct an illegal sentence at any time pursuant to the provisions of Ark. Code Ann. § 16-90-111(a) (Supp. 1993). An illegal sentence is one that is illegal on its face. Blanks v. State, 300 Ark. 398, 779 S.W.2d 168 (1989). The judge never made an official pronouncement of sentence orally. The judgment and commitment form reflected that Mr. McKee was convicted of a Class C felony, and that is what he was charged with in the information. Since Mr. McKee was not charged with a Class B felony, he could not have been convicted of one. As this court stated in Hedrick v. State, 292 Ark. 411, 730 S.W.2d 488 (1987), “Conviction upon a charge not made would be sheer denial of due process.” See also Hagen v. State, 315 Ark. 20, 864 S.W.2d 854 (1993). Mr. McKee should have been sentenced for a Class C felony, the maximum sentence being ten years. Ark. Code Ann. § 5-4-401(4). Therefore, his sentence for theft of property is reduced to ten years.

Reversed.

Corbin, J., not participating.


author: Per Curiam. Jack Holt, Jr.,

text:
    MEMPHIS PUBLISHING COMPANY v. Honorable C. David BURNETT, Judge of the Circuit Court of Crittenden County
    94-201
    871 S.W.2d 359
    Supreme Court'of Arkansas
    Opinion delivered March 1, 1994

      Banks, Dodson & Goodhart, by: Charles A. Banks', and Stephen P. Hale, for petitioner.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Per Curiam.

Petitioner Memphis Publishing Company petitions this court to issue a writ of mandamus to Circuit Judge C. David Burnett to conduct voir dire of prospective jurors and all other proceedings in open court. The allegation is made that voir dire has been closed to the public. Counsel for the parties argued the matter before this court on this date. At oral argument this court was advised that voir dire was now completed. Memphis Publishing stated that it desired a release of the court reporter’s voir dire tapes or, alternatively, a transcription of the tapes. No request for the tapes or transcriptions was made in Memphis Publishing’s petition.

We have previously decided that a member of the news media, though not a party to the litigation, has standing to question an exclusion from voir dire. Commercial Printing Co. & Tosca v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977). We have also determined that we have jurisdiction to decide the issue, though voir dire is concluded, because the issue may well occur again and yet entirely evade review. Id.

The question of an open voir dire has been resolved by this court. Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984); Commercial Printing Co. & Tosca v. Lee, supra. We have premised our decisions on the guarantee of a public trial in the state and federal constitutions and in our statutory law. U.S. Const, amend. 6; Ark. Const, art. 2, § 10; Ark. Code Ann. § 16-10-105 (1987). In Lee, we discussed what occurs at voir dire and why it should be an open process:

Normally, lawyers ask prospective jurors if they know anything about the facts of the case — if they have talked with any person concerning the facts who purports to be a witness — if they are represented by one of the attorneys involved — their feelings about the possible punishment that might be imposed — or if there is any reason why they could not give both the state and the defendant a fair and impartial trial.
Certainly members of the public, probably including members of a victim’s family, have the right to hear the voir dire examination of individual jurors. This may well have a salutary effect. Cases have been reversed in this court because of answers given by prospective jurors on voir dire which subsequent investigation established were false, or at least incorrect, and which might have well disqualified the prospective juror.
As stated previously, we have only one question before us, viz, was the court’s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic “No!”

262 Ark. at 93-95, 553 S.W.2d at 273-274.

The State cites Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983), to bolster its position that this is a matter of discretion in the trial court. We disagree that Tedder applies. That case concerned a pretrial suppression hearing, not jury selection which we have emphasized to be a stage of the proceedings where openness is particularly appropriate for the reasons already stated. Commercial Printing Co. v. Lee, supra.

The trial court was in error in excluding the public and Memphis Publishing from voir dire in this trial. We do not hold that it was error to conduct voir dire out of the presence of other members of the venire.

Error declared.

Holt, C.J., dissents.

Corbin, J., not participating.

Jack Holt, Jr.,

Chief Justice, dissenting. Under the facts before us, the right to a fair trial should take precedence over the public’s right to access to voir dire proceedings, and for this reason I dissent.

The Petitioner has requested that this Court issue a writ of mandamus to Circuit Judge C. David Burnett to conduct voir dire of prospective jurors and all other proceedings in open court and has presented a partial transcript of the court proceedings in support of its petition. Granted, the question of open voir dire has been passed upon by this Court on several occasions. Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984) and Commercial Printing Co. & Tosca v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977). In these cases, we oversimplified the issues and gave short shrift to a defendant’s right to receive a fair trial, creating what appears to be an absolute right to open hearings regardless of the circumstances.

The petition before us presents in the starkest terms the opposition of two values of immeasurable worth in our national history and our legal culture — the right of a free press to observe and report criminal trials and the right of a criminal defendant to a fair trial. Both concepts are deeply rooted in the Anglo-American experience, but when they conflict, one must yield to the other.

In my opinion, this court has made the wrong decision in declaring error and, in so doing, has once again elevated a qualified right into an absolute right. As the United States Supreme Court declared in Sheppard v. Maxwell, 384 U.S. 333, 362 (1966): “Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.”

The United States Supreme Court has, in the past decade, recognized the qualified right of the press to observe criminal trials. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Court held that open judicial proceedings were implicit in the First Amendment guarantee of the freedom of the press. And in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), the Court, considering the right of access to preliminary hearings, ruled that a judge must have evidence of an overriding interest — such as a defendant’s right to a fair trial — that cannot be effectively protected except by closing the courtroom.

Such a case is now before us. This court should not follow the absolute rule laid down in Commercial Printing Co. & Tosca v. Lee, supra, but should apply a more flexible, nuanced balancing test as set forth in “closed court cases.” In Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983), we held that, with regard to reviewing a decision by the circuit court to close pretrial proceedings in criminal cases, such as a suppression hearing, the appropriate standard to apply is a flexible balancing test. We emphasized that the right of public access is not absolute but must be balanced against the defendant’s right to a fair trial. To protect the two competing interests, we held that the proponent of closure must demonstrate a substantial probability that irreparable damage to the defendant’s fair trial will result from an open hearing and that alternatives to closure will not adequately protect the right to a fair trial. See also Arkansas Newspaper, Inc. v. Patterson, 281 Ark. 213, 622 S.W.2d 826 (1984). Although these cases pertain to pretrial proceedings, I believe that the same balancing test is appropriate for other phases of a criminal trial.

Here, both the State and the defendant sought closure of the trial, mindful of the fact that there was a substantial probability that irreparable damage to the defendant’s fair trial could result from an open proceeding and that alternatives to closure would not adequately protect his right to a fair trial. The court agreed and noted that “I had a couple of jurors express concern about — anonymity requesting that they remain anonymous or their identity not be revealed in the media.” The trial court further remarked:

It would be my finding based upon the test laid down in Tedder, a two-prong test that one, irreparable damage will occur to the defendant’s right to a fair trial. There is absolutely no question but what if I allowed the 60 odd representatives of the media to crowd into a small room in the back to hear voir dire questions, extensive voir dire questions, the space alone, the carnival atmosphere would just be enhanced. Further, the sensitive nature of the questions that are being asked of prospective jurors in this case simply should not be printed or publicized to the public at large. It is difficult at best. It’s almost impossible at this time to find 12 people that can honestly set aside what they might have read, heard or seen about this case in the press. The right of a fair trial as far as this Court is concerned supersedes by far the right of the press to access. And I think counsel will join with the Court. This is not a one-sided deal. I would even prefer to conduct the voir dire as we normally do in the presence of every one here. It would have been a lot simpler for me, we wouldn’t have had to set up two pieces of equipment. We wouldn’t have to move back and forth. We wouldn’t have to take near as much time. But the defendants, in my estimation, would receive irreparable harm from an open voir dire where every member of the potential jury panel would repeatedly hear questions that may reinforce biases or prejudice that may reinforce preconceived notions or ideas, and it’s absurd.
And point two, in my estimation, I bet there are no adequate alternatives for closure of the voir dire at this time. And those will be my findings. Gentlemen, if you care to add anything to it that you see facilitates the voir dire in this fashion, I’ll be glad to hear your comments.
I’m also going to add that the method and manner that we have selected to conduct the very sensitive voir dire in a case of this magnitude I’ve never encountered one like this. In fact, I’ve never encountered the multitudes of motions and side issues in any case I’ve ever handled. We have elected to conduct the voir dire in this fashion to relieve the prospective jurors of that normal anxiety that all of them have in an ordinary simple case.
With this case the remedy sought by the state, the penalties that are being sought, to ask laypeople to come in from their work, their home, their normal pursuits and to be bombarded by very sensitive questions, to where they have to verbalize their innermost feelings in front of 200 people, the eyes of the cameras, the eyes of the world, to me that is simply unreasonable to even expect people to have to respond under those circumstances. And I am very strongly finding that the Tedder test is easily met by the circumstances of this case.

Simply put, the trial court did not abuse its discretionary powers when it applied an appropriate balancing test, weighing the defendant’s right to an open trial against the public’s right to access, and rightfully found in favor of a fair trial. For these reasons, I respectfully dissent.


author: Jack Holt, Jr., Chief Justice.

text:
    Bill D. HENDRICKSON v. STATE of Arkansas
    CR 93-898
    871 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered March 7, 1994

      Meredith Wineland, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Bill D. Hendrickson, was found guilty of possession of cocaine with intent to deliver and was fined $50,000 and sentenced to life imprisonment. He was also found guilty of possession of marijuana with intent to deliver, possession of LSD, possession of drug paraphernalia, and being a felon in possession of a firearm, for which he was fined a total of $105,000 and sentenced, respectively, to twenty, ten, ten, and six years in prison. The trial court ordered that the terms run consecutively.

• On appeal, Hendrickson raises three points for reversal: (1) whether the trial court erred in refusing to sever the firearms charge from the drug offenses; (2) whether the evidence was sufficient to sustain his convictions; (3) whether the trial court erred in failing to strike the testimony of a defense witness and to admonish the jury regarding an improper prosecutorial implication. None of Hendrickson’s arguments has merit, and we affirm the judgment of the trial court. .

On February 19, 1993, Director Roger Walls of the Drug Task Force for the Seventh Judicial District of Arkansas, accompanied by Task Force agents and Saline County sheriff’s deputies,, executed a warrant at Hendrickson’s residence in Benton. When the authorities arrived, Hendrickson was in the house, along with his son, Billy, Jr.; his daughter, Mandi Lewis; her minor child; and Hendrickson’s companion, Marsha Pinson.

A room-by-room search was made, and, according to the affidavit filed by Drug Task Force Supervisor John Garner, the agents located and seized the following:

a large quantity' of green vegetable material, consistent with marijuana, in excess of ten (10) pounds, a lighted terrarium which contained several live plants consistent with marijuana, a quantity of white powder' believed to be cocaine, in excess of five (5) ounces, a Bible containing seventy-nine squares containing LSD,- twenty-two (22) firearm's (pistols, rifles, semi-automatic machine pistols, and shotguns), one of which had been defaced by having the serial number filed off, and a quantity of drug-related paraphernalia, i.e., smoking devices, hemostats, cigarette papers, syringes, vitamin B, plastic bags, a vacuum sealing machine, mirrors with razor blades and short straws on them, and scales.

Upon Hendrickson’s arrest, the affidavit noted,-.a substance believed to be cocaine was found on his person. When the officers ran a check on the suspect, the report showed that Hen- . drickson was a convicted felon, having been convicted in 1984 of a violation of the Uniform Controlled Substance Act and sentenced to seven years in the Arkansas Department of Correction. The report also indicated that he had been arrested on drag-related charges in Texas in 1990.

At a hearing before the trial began on April 15, 1993, counsel for Hendrickson urged that, in order to avoid prejudice with respect to the felon-in-possession charge, it would be “proper” to conduct “two jury trials and two separate hearings.” The State maintained that “bifurcation is always required,” and the trial court agreed, ruling that the felon-in-possession charge would not be presented to the jury until after the return of verdicts on the drug charges.

Twenty-five firearms that had been seized in Hendrickson’s house were introduced during the State’s case-in-chief, but no mention of the felon-in-possession charge was made. Following the return of guilty verdicts on the drug charges, the trial court informed the jury of its duty to consider the felon-in-possession charge, and that portion of the trial proceeded. Again, the jury rendered a verdict of guilty. Hendrickson was sentenced to the terms set forth above and filed a notice of appeal.

/. Sufficiency of the evidence

Although Hendrickson has raised the issue of sufficiency of the evidence.as his second point for reversal, this court must consider it before addressing other points on appeal. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993). The issue was preserved by timely motions for a directed verdict, which amount to challenges to the sufficiency of the evidence. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, either direct or circumstantial. Langley v. State, 315 Ark. 472, 868 S.W.2d 81 (1993). Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other and that goes beyond suspicion or conjecture. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994).

In his argument, Hendrickson offers various purportedly exculpatory “facts” to be weighed against the evidence presented at trial by the State. This court, however, views only the evidence that is most favorable to the jury’s verdict and does not weigh it against other conflicting proof favorable to the accused. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993).

Hendrickson insists that there was “absolutely no evidence” to link him to the drugs and guns seized at the house other than a billfold and driver’s license discovered in a downstairs bedroom and that it was “absurd speculation” to conclude that the location of those items indicated that the bedroom was his. At most, he contends, all that was established by the State was the fact that he was present along with four other persons at the time the premises were searched, yet he concedes in his brief that the building to which the search warrant was delivered was “Bill Hendrickson’s house.”

The State presented overwhelming evidence at trial of Hendrickson’s guilt. Both Randy Lewis and Mandi Hendrickson Lewis, his son-in-law and daughter, testified that the house that was raided by Drug Task Force agents was the appellant’s residence. Task Force Director Robert Walls stated that when he and his team of officers entered the house on February 19, 1993, Hendrickson was in the house together with two females, a young man, and a small child.

Director Walls personally conducted a search of the front bedroom on the ground floor of the house and found, in addition to the billfold and driver’s license, men’s clothing and certificates hanging on the wall bearing Hendrickson’s name. Further, Mandi Lewis testified that the downstairs front bedroom was her father’s and that he used and had clothing hanging in that room. She said, as well, that Hendrickson also used the entire upstairs of a new addition to the house as a bedroom.

In the downstairs front bedroom, Director Walls discovered scales, a green vegetable substance, a cylinder of some sort containing what appeared to be marijuana, a vacuum sealer, a bong pipe, a white powder substance, a bag containing a substance, two loaded pistols, and a rifle. Officer Henry Efird testified that he found a tray with white powder residue in the bedroom closet. Officer Tim Osborne stated that in the bedroom he discovered a grinder used for reducing rock cocaine to powder form, insulin syringes, and seventy-nine doses of LSD inside a New Testament Bible.

In the upstairs bedroom, Officer Efird found two loaded shotguns, a heater and grow-lights shining on “fully green and growing” marijuana plants estimated to be about three or four months old, twelve bags of green vegetable matter, a tray with a straw and two razor blades on it, scales used for weighing marijuana, and a marijuana seed separator. In a compartment beneath the floor at the top of the stairs, Officer Efird testified, he discovered a tool box containing several vacuumed bags of green vegetable matter and a number of guns.

The Saline County jailer, Lee Lobbs, stated that, upon frisking Hendrickson on his arrival at the jail, he found a small bag of white or yellowish powdery substance and $2,800 in cash. Added to the cash discovered in the house, the total amount seized was $3,573.

Nick Dawson, a drug chemist with the Arkansas State Crime Lab, testified about his analyses of substances found at Hendrickson’s house. He concluded that each item tested was a controlled substance. For instance, forty pounds of marijuana were seized at the house. One bag Mr. Dawson examined contained 1.275 grams of cocaine hydrochloride; another contained 0.0185 grams of cocaine; and another contained 112.6 grams of the substance. Under Ark. Code Ann. § 5-64-401(d) (Repl. 1993), the amounts of tested marijuana and cocaine seized more than satisfied the rebuttable presumption that Hendrickson possessed the controlled substances with intent to deliver.

On the other hand, Mr. Dawson testified that the LSD found in the New Testament only amounted to 2.844 micrograms, which is less than the presumptive amount. This court, however, has upheld a conviction for trafficking when less than the presumptive amount was found in the possession of the accused but where other proof Of intent to deliver was present. Conley v. State, 308 Ark. 70, 821 S.W.2d 783 (1992). In Conley, the appellant was charged with possession with intent to deliver, but the percentage of cocaine detected was .141 grams, which was less than the presumptive amount. This court held that the testimony of two detectives who observed Conley as he engaged in a transaction involving the sale of cocaine sufficed to prove intent. In the present case, the testimony of the law enforcement officers and the jailer established a connection between the controlled substances seized and the large amount of cash found in the house and on Hendrickson’s person.

In order to prove that a defendant is in possession of a controlled substance, constructive possession is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession can be implied when the controlled substance is in the joint control of the accused and another. Id. Joint occupancy, though, is not sufficient in itself to establish possession or joint possession. There must be some additional factor linking the accused to the contraband. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993); Plotts v. State, 297 Ark. 66, 729 S.W.2d 793 (1988). The State must show additional facts and circumstances indicating the accused’s knowledge and control of the contraband. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991).

Here, testimony revealed that a bag containing a white or yellowish powdery substance was found on Hendrickson’s person and that numerous items, such as drugs and drug paraphernalia were found in two rooms identified as Hendrickson’s bedrooms in the house that Hendrickson acknowledges was his.

As previously noted, the evidence was more than sufficient to support Hendrickson’s conviction. We hold that the trial court did not err in refusing to grant his motions for directed verdict.

II. Trial court's refusal to sever drug and firearms charges

Hendrickson contends that the felon-in-possession charge should have been severed from the drug charges and that the trial court erred in simply bifurcating the trial. Part of his point for reversal is apparently based on arguments presented at a pre-trial suppression hearing of which no transcript has been lodged on appeal.

The record reflects that, at a hearing held just before the trial in this matter, counsel for the appellant and the State declared their positions regarding the propriety of severance as opposed to bifurcation. The trial court then announced its intention to employ a bifurcated procedure, presenting the felon-in-possession charge after delivery of the jury verdicts in the drug charges.

Although the reading of the information is not included in the record, it would appear, nevertheless, that no allusion was made to the felon-in-possession charge until the jury returned guilty verdicts on the drug charges. When the court instructed the jury on the drug charges, it made no reference to the issue of possession of firearms. Only after the verdicts on the drug charges had been read did the trial court inform the jurors that another charge was pending.

Hendrickson also claims to have been prejudiced by the introduction of firearms during the portion of the trial devoted to his drug charges. However, the record shows that the issue of his status as a convicted felon was never broached prior to the second phase of the trial. No prejudice, therefore, was possible as a consequence of the introduction of the guns as evidence.

Indeed, when an accused is charged with possession of a controlled substance with intent to deliver, evidence of the possession of firearms is relevant to prove intent. Leonard v. State, 265 Ark. 937, 582 S.W.2d 15 (1979). See also United States v. Brett, 872 F.2d 1365, 1370 (8th Cir. 1989), where the Eighth Circuit Court of Appeals held that “the presence of a firearm, generally considered a tool of the narcotics dealer’s trade, also is evidence of intent to distribute.”

In addition, Hendrickson asserts that the trial court erred in failing to give a limiting instruction on the question of firearms. There is, however, no record of Hendrickson having requested such an instruction. It was clearly his responsibility to do so, and his act of omission will not be allowed to inure to his benefit on appeal. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993).

The decision to sever offenses is committed to the discretion of the trial court. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). Hendrickson has failed to show any abuse of that discretion.

III. Trial court’s refusal to strike testimony and admonish jury

At trial, the following exchange occurred during the prosecutor’s cross-examination of defense witness Robert Zimmerman, who had stated that the guns seized at Hendrickson’s house were his rather than the appellant’s:

Q. Robert, would it surprise you to know that most of these guns were reported stolen?
A. No, sir.
Q. It wouldn’t surprise you?
A. Because they are not.
[DEFENSE COUNSEL]: Your Honor, I object and ask it be stricken.
[THE PROSECUTOR]: He is on cross-examination. He said they were his guns.
THE COURT (At the Bench): You can cross-examine if he knows they are stolen or not. If he denies it, you can prove it on rebuttal.

Questioning resumed, and the witness continued to insist that the guns belonged to him and were not stolen. No further objection was registered by counsel for the defense.

Hendrickson argues that the jury was prejudiced by the prosecutorial implication that the guns had been stolen by a key defense witness and that the trial court should have given a limiting instruction to the jury. Yet Hendrickson never sought such a limiting instruction. Thus, the court’s failure to give an admonitory instruction was not prejudicial error in the absence of a request. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The issue was not preserved for appeal.

Affirmed.

Corbin, J., not participating.


text:
    Phyllis V. WILLIAMSON v. Robert MISEMER, et al.
    93-772
    871 S.W.2d 396
    Supreme Court of Arkansas
    Opinion delivered March 7, 1994
    [Rehearing denied April 18, 1994.]

      Ben E. Rice, for appellants.

      Paul A. Schmidt, for appellees.
   Jack Holt, Jr., Chief Justice.

The appellants, Phyllis V. Williamson and Glenda Haney, appeal a decision of the Lonoke County Chancery Court finding that, under a subdivision’s covenants and restrictions, they may keep no more than four dogs on their lot and must remove tarps from structures, modify a travel trailer, and maintain a daily and nightly presence on the property. In his order, however, the chancellor failed to rule upon the appellants’ counterclaim or upon the appellees’ motion to dismiss the counterclaim. Unfortunately, the record is silent on the question of the disposition of the counterclaim. Therefore, the order is not final and appealable, and this appeal must be dismissed. Ark. R. Civ. P. 54(b).

Ms. Williamson and Ms. Haney are twin sisters who maintain residences in Heber Springs and Cabot, respectively. In May 1991, Ms. Williamson purchased a lot in the Trailwood Subdivision in Lonoke County for the purpose of providing a shelter for an undetermined number of dogs. She and her sister placed a travel trailer on the property for their use when attending to the animals.

On August 23, 1991, the appellees, property owners in the Trailwood Subdivision, filed a complaint in Lonoke County Chancery Court, seeking monetary damages and enforcement of the covenants and restrictions filed as a bill of assurance for the subdivision. They alleged that Ms. Williamson and Ms. Haney had failed to comply with the subdivision’s covenants and restrictions by moving the travel trailer on the lot and acquiring and keeping stray dogs.

Ms. Williamson and Ms. Haney filed an answer and counterclaim on September 12, 1991, admitting that the covenants and restrictions had been filed but denying that they were aware of the requirements. The appellants declared that the complaint had no basis in law or in fact but was premised on speculation regarding how the property might be used. Moreover, they asserted that “the filing of this matter is premature and constitutes harassment.” Alleging consequential “mental anguish and expense,” the appellants asked for damages in their counterclaim and for other proper relief.

A temporary agreement was reached between the parties, supported by a temporary order entered on October 3, 1991, which provided that Ms. Williamson and Ms. Haney could keep two dogs each, or a total of four dogs, on the property. It was agreed that the dogs would be cared for on a daily basis and that the sisters would take turns staying on the property. No additional animals were to be placed on the premises, and if any of the four dogs died, no other dog would be allowed as a replacement. The temporary order specifically noted that “It was further agreed by the parties that all other issues set forth in the Plaintiffs’ Petition and the Defendants’ Counter-Petition would be reserved for a final hearing.”

On May 12, 1992, the appellees answered the appellants’ counterclaim and prayed that it be dismissed. A hearing was held on June 19, 1992, before the Lonoke County Chancery Court. Nowhere in the record of that proceeding is there so much as a whisper of a reference to the counterclaim. The testimony focused on the dogs and the trailer, as well as the covenants and restrictions of the subdivision.

In its order, filed of record on March 31, 1993, the chancery court found that (1) the covenants and restrictions run with the land, and the appellants had notice of the covenants and restrictions at the time of closing; (2) the appellants are limited to four dogs, which are to be properly cared for at all times; (3) the structures built for the dogs may remain standing, but the blue tarps must be removed; (4) the trailer used by the appellants is a “travel trailer” which must be modified to comply with restrictions by removing the tongue and placing the vehicle on a permanent foundation or else must be removed; and (5) at least one of the appellants must be on the property daily and must spend the night. No finding was made with respect to the appellants’ counterclaim. In fact, the counterclaim was not mentioned in the court’s order.

This court will only review final matters on appeal. Ark. R. App. R 2(a). A judgment that adjudicates fewer than all of the claims of all of the parties does not terminate the action. Ark. R. Civ. P. 54(b). The failure to comply with Rule 54(b) through the absence of an order adjudicating the rights of all parties is a jurisdictional issue that we are obligated to raise on our own. State Farm Mutual Auto Ins. Co. v. Thomas, 312 Ark. 429, 850 S.W.2d 4 (1993). We have repeatedly held that it is not enough to dismiss some of the parties or to dispose of some of the claims; to be final and appealable, an order must cover all of the parties and all of the claims. Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992).

We hold that there is no final, appealable order before us, and we accordingly dismiss the appeal for failure to comply with Ark. R. Civ. P. 54(b).

Dismissed.