author: Ray Thornton, Justice.

text:
    Raymond Clinton MARSHALL v. STATE of Arkansas
    CR 00-019
    27 S.W.3d 392
    Supreme Court of Arkansas
    Opinion delivered September 28, 2000

      William R. Simpson, Jr., Public Defender; Steve Abed, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Raymond Clinton Marshall, a habitual offender with a prior child-molestation conviction in another state, pleaded guilty to multiple child sexual-abuse charges in Arkansas, and following his conviction on those charges, a sentencing hearing was held to develop evidence of other factors, including aggravating and mitigating circumstances, relating to the imposition of sentences for these two new convictions. The issue in this case is whether appellant’s status as a fugitive from an indictment for sexual solicitation of a child in that other state could appropriately be considered by the trial court as an aggravating circumstance in determining the sentence of appellant for multiple child sexual-abuse convictions in Arkansas. We con-elude that, because the trial judge specifically stated that he would not be considering the indictment for purposes of a conviction or as evidence of guilt, appellant has not met his burden to overcome the presumption that the trial court will only consider competent evidence. Finding no error in the rulings of the trial court, we affirm.

Appellant Raymond Clinton Marshall was a twenty-seven-year-old employee of Skate Connection in Sherwood when he befriended a twelve-year-old boy who will be referred to as H.K. Sometime in the early part of July, 1997, appellant was allowed by H.K.’s grandmother to spend the night in the family home, where he performed oral sex on the child. For this crime, appellant was charged with the crime of rape.

Similarly, appellant met another twelve-year-old boy, D.S., at Skate Connection. On May 17, 1998, appellant offered to show the child pornography, rubbed his own genitals in the child’s presence, and also rubbed D.S.’s genitals under his clothing. For this crime, appellant was charged with committing the act of sexual abuse in the first degree.

When these instances were reported to the Sherwood Police Department, their investigation uncovered a video camera that appellant had installed to videotape boys at the urinals in the restroom at the skating rink. Tape recordings of these scenes were found in appellant’s living quarters in a backroom of the skating rink.

On May 4, 1999, appellant changed his plea to guilty on the charges alleged against these two victims, and the State introduced evidence of eleven prior felony convictions from the state of Georgia for purposes of establishing his status as a habitual offender. In 1990, on a charge of burglary, appellant received a sentence of twenty years, with seventeen years suspended. Also in 1990, in two different cases, appellant pleaded guilty to two additional counts of burglary and entering an automobile with intent to commit theft. He was sentenced to five years with three suspended for these charges. Again in 1990, appellant pleaded guilty to two counts of theft of a motor vehicle and received a sentence of ten years with seven suspended, and entered a plea to four counts of burglary, for which he was sentenced to five years, with two suspended. Then, in 1992, he was sentenced to twenty years in prison, with seventeen suspended, for committing the crime of child molestation. The defense offered no objection to the introduction of evidence of appellant’s prior convictions.

A sentencing hearing was held on June 7, 1999, and appellant was sentenced to life in prison for the rape of H.K. and to thirty years for the abuse of D.S., to be served concurrently. Appellant brings this appeal, seeking resentencing on the grounds that the trial court improperly considered inadmissible evidence and based his sentence on this evidence, in contravention of this court’s holding in Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999). We do not agree that Walls v. State, supra, which concerned a trial judge’s statement at sentencing that he was holding the appellant responsible for crimes committed by another person, not a defendant before the court, should be extended to prohibit the admission of evidence of aggravating circumstances relating to appellant’s status as a fugitive from a pending indictment in another state.

When sentencing is by the court, as was the case here, Ark. Code Ann. § 16-97-102 (Supp. 1999) provides that “when either party requests to present evidence relevant to sentencing, the court shall hear or receive such evidence and any rebuttal by the opposing party. . . .” Id. Evidence relevant to sentencing may include, but is not limited to, prior convictions of the defendant, victim-impact evidence or statements, relevant character evidence and evidence of aggravating and mitigating circumstance. Ark. Code Ann. § 16-97-103 (Supp. 1999). In sum, it is anticipated that the trial judge, when sitting as the sentencing body, will accept all relevant evidence on the question of sentencing. Id. It is presumed that a trial judge will only consider competent evidence. Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980). This presumption can be overcome only when there is an indication that the judge gave some consideration to inadmissible evidence. Id. The introduction of evidence during this stage must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

Specifically, appellant charges that the trial court erred in allowing the State to introduce evidence that appellant had been indicted by a grand jury in Georgia for the crime of enticing a child for indecent purposes, accusing him of soliciting oral sex from a young boy, and that a bench warrant was outstanding for his return to Georgia to answer to these charges. Defense counsel objected to these documents when the State offered them for proof of his state of mind in fleeing the charges and as relevant to any possibility of rehabilitation. The trial court overruled the objection and noted that, “The court accepts it not as a conviction or not for purposes of guilt.” Appellant contends on appeal that the trial court erred in admitting the evidence and then improperly relied upon it in pronouncing sentence.

Appellant bases his contention that the trial court improperly considered inadmissible evidence on the judge’s comments at sentencing:

Mr. Marshall, at this point this isn’t even about you. It’s at this point so far out of hand that it’s about the kids. And the court is especially troubled by the fact that you had a case pending in Georgia at the time you left there. You fled rather than facing it, where you might have gotten some help or at least you would have been kept away from [D.S.] and [H.K.] But you consciously left the state of Georgia and you came here and you did these things with these children. And, therefore, the court has to make a determination. Not that the court has any malice towards you, period; but it’s not about you at this point. It’s about what we do to protect these children. Your interests no longer are on an even keel or of concern at this point.
* * # *
But at this point, since you will not even subject yourself to the jurisdiction of the state of Georgia by leaving there — that’s why the court asked you that — this court has no choice but to take the steps to protect children — not you, but children.

In Hill, supra, this court held that a trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed on appeal absent an abuse of that discretion. Id. This is consistent with the United States Supreme Court’s ruling in Nichols v. State, 511 U.S. 738 (1994):

As a general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to kind of information he may consider, or the source from which it may come. Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant.

Id.

Appellant relies for reversal on our holding in Walls v. State, supra, where we remanded for resentencing following the trial court’s admission of victim-impact testimony concerning the murder of the Stocks family by their son, Heath, who had been a victim of sexual abuse by Walls. The trial judge in Walls, in pronouncing sentence on the appellant, said:

I do not have to believe Heath Stock’s testimony that you told him to kill his [family] to know that he was your finest creation, and perhaps most vulnerable victim, and to know that he became what you taught him to be. I only know that, in the very least, you are indirectly responsible for the deaths of Joe, Barbara, and Heather Stocks.

Id.

The key difference between the trial court’s pronouncement of sentence in the case sub judice, and the statements by the trial judge in Walls, was that in Walls, the court clearly stated that it was holding the appellant responsible for the deaths of the three members of the Stocks family, who were victims of murders committed by Heath Stocks. While Heath Stocks was a victim of sexual abuse at the hands of Walls, there was no assertion that Walls was the perpetrator of the crime of murder against the Stocks family. The trial court, in sentencing Walls, openly and clearly relied upon his belief that the murder of the Stocks family by Heath Stocks was attributable to Walls. By so ruling, the trial court erroneously considered evidence of crimes committed by Heath Stocks in sentencing Walls. This court held that evidence of a crime committed by another person was not proper victim-impact evidence and reversed.

Here, however, the statement of the trial judge in sentencing appellant makes it clear that the court only considered appellant’s status as a fugitive in admitting the evidence that appellant fled the grand jury’s indictment in Georgia. With regard to that evidence of flight, the trial judge specifically noted that: “The court accepts it not as a conviction, or not for purposes of guilt.” As this court noted in Walls, citing U.S. v. Nichols, supra, past criminal behavior proven by a preponderance of the evidence may be considered by a sentencing court even where no conviction resulted. Id. See also Buckley v. State, 341 Ark. 803, 20 S.W. 3d 331 (2000) (at sentencing, evidence generally admissible under the Rules of Evidence concerning alleged prior drug-related activity by the appellant would be relevant as providing proof of the appellant’s character, and as an aggravating circumstance under Ark. Code Ann. § 16-97-103(6); once guilt has been determined, additional evidence, even evidence regarding attempted crimes, may be admissible if it gives the sentencing body as much information as possible when it makes its sentencing decisions)). The State’s introduction of the order from the Georgia Superior Court moving his pending case to the “dead docket” due to appellant’s outstanding bench warrant proves by a preponderance of the evidence that the grand jury’s charge of child solicitation was not resolved. As the trial judge noted contemporaneously with the admission of the evidence, the evidence was accepted not for purposes of establishing a conviction or guilt or innocence, but for determining his prospects for rehabilitation. We further note that in previous cases we have held the evidence of flight is admissible as evidence of guilt. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993).

The validity and relevance of such evidence in the sentencing phase is borne out by appellant’s own answers to the judge’s questioning. When asked why he had left Georgia knowing that his presence was sought by the authorities there, appellant responded that he was “scared of prison” and “didn’t want to go back” because the sex-offender treatment therapy offered there “didn’t help me the first time.” Appellant’s own statement to the court that his previous treatment for pedophilia had been unsuccessful, as indicated by his repetition of the offense for which had previously been convicted, was relevant to the trial court’s determination of the appropriate sentence; and, here, the trial court observed that life imprisonment was the only suitable sentence for the protection of others. We conclude that the trial court did not commit error by allowing evidence of appellant’s status as a fugitive to be considered as an aggravator in the sentencing phase.

On appeal, appellant also challenges the admission at sentencing of photographs taken of his video surveillance equipment used to observe the children in the skating rink restroom and testimony that there were other victims here in Arkansas against whom appellant committed sexual abuse that were not named in the charges against him. The photographs the State offered into evidence were taken at Skate Connection, depicting appellant’s system for observing the boys’ bathroom at the facility. Defense counsel objected on the grounds that these photographs were more prejudicial than probative, and the trial court overruled his objection. However, when the State moved to admit the photographs into evidence as State’s exhibits, appellant responded, “No objection.” While this was a bench sentencing, and as such is not subject to our usual requirements of contemporaneous objection because of the diminished risk of prejudice, see Walls v. State, supra, appellant here withdrew his prior objection with regard to the State’s submission of the evidence. An argument is not preserved for appeal unless there has been an objection in the trial court. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).

Similarly, appellant has failed to preserve his argument regarding testimony as to the existence of other victims. At the sentencing hearing, the State asked the investigating officer whether she had learned of other children molested by appellant at the skating rink. Defense counsel objected to this question, and the objection was sustained. It is a basic principle of law that where the appellant received the only relief he requested, he has no basis upon which to raise the issue on appeal. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). When the State returned to that line of questioning, the prosecutor asked if there were other victims, and the officer answered, without objection by appellant, that there were other unnamed victims who had declined to come forward. When a party objects to a question when it is asked, but fails to object when it is repeated, the matter is not preserved for appeal. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999).

Because we have determined that appellant has not met his burden to overcome the presumption that the trial court considered only competent evidence in pronouncing sentence upon him for convictions of rape and sexual abuse, we affirm.

Affirmed.


source: Caselaw Access Project

author: Ray Thorton, Justice.

license: Public Domain

text:
    Marcus RAY v. STATE of Arkansas
    CR 99-1419
    27 S.W.3d 384
    Supreme Court of Arkansas
    Opinion delivered September 28, 2000

      Witt Law Firm, PC., by: Ernie Witt, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   Ray Thorton, Justice.

Appellant Marcus Ray appeals his conviction of first-degree murder for which he was sentenced to life imprisonment by a Yell County jury. Appellant argues that the trial court erred in refusing to grant a mistrial because of an apparent inconsistency of the guilt-phase verdict forms. He also argues that the trial court erred in allowing the State a rebuttal argument in the sentencing phase. We find no merit in appellant’s argument, and we affirm the trial court’s rulings.

Because appellant does not challenge the sufficiency of the evidence to support his conviction, we will briefly summarize the facts. Appellant and his four codefendants (Walter D. “Philip” Jones, Tommy Jermiane Wimbush, Foster Riley, and James Hutts) were at Riley’s home on the afternoon ofjanuary 12, 1999. Appellants and his codefendants were in need of some quick cash, and Riley and Jones initiated a conversation about robbing Reuben Moore, who was known for carrying a large roll of cash on his person. The codefendants asked appellant if he had a gun because they would need a gun to carry out their plan. Appellant, Riley, Jones, and Hutt agreed to meet after dark.

Appellant and his three codefendants picked up Wimbush, who was needed to lure Moore out of his house. When they arrived at the landfill where Moore lived, Jones asked appellant for his gun, which was loaded with five or six rounds, and Jones, Riley, and Wimbush executed their plan while appellant waited in the car. Appellant heard them yell, “Reuben,” and he heard one gunshot. The three returned to the car, and one of them said, “We didn’t get the money.” When appellant asked abut the gunshot, he was told, “We shot him.” Appellant and his codefendants then left the scene.

Appellant and the four codefendants were arrested on January 13, 1999. The gun was recovered by police officers that evening as well. Appellant and the other codefendants were charged with capital murder by felony information filed January 14, 1999. At the State’s request, the trial court severed the trials of the codefendants. Foster Riley entered into a plea bargain, and pleaded guilty to first-degree murder for which he received a forty-year sentence in return for testifying against the remaining codefendants.

After a two-day trial, appellant was found guilty of first-degree murder and was sentenced to life imprisonment. The trial court instructed the jury to complete one of the verdict forms provided. However, at the conclusion of the jury’s deliberations in the guilt phase, the jury completed all three verdict forms, each signed by the jury foreman. The first form stated that appellant was “not guilty” of capital murder. The second form stated that appellant was “guilty” of first-degree murder. The final form stated that appellant was “not guilty” of second-degree murder. Defense counsel moved for a mistrial on the grounds that the jury verdicts were inconsistent. The trial court denied the motion and ruled that the jury’s intent to find appellant guilty of first-degree murder was clear.

After the jury returned its guilty verdict, appellant moved to prohibit the State from having a rebuttal argument during the sentencing phase of the trial. Specifically, appellant moved that the State argue first, then the defendant, and then the matter be submitted to the jury. The trial court ruled that the State would be allowed to present rebuttal argument during the sentencing phase.

Appellant first argues that the trial court erred in refusing to grant a mistrial due to an apparent inconsistency of the guilt-phase verdict forms, contending that the verdict forms were inconsistent because the jury found him guilty of first-degree murder and not guilty of capital and second-degree murder, a lesser-included offense of first-degree murder. We have said that a mistrial is an extreme remedy that should only be used when the error is beyond repair and cannot be corrected by any curative relief. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). A trial court’s decision to grant or deny a mistrial will not be disturbed absent a showing of an abuse of discretion. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997).

We have noted that “inconsistency” is generally understood to mean some logical impossibility or improbability implicit in the jury’s findings as between jointly charged defendants. Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1998). In the present case, the jury’s verdict does not meet our definition of inconsistency. The intent of the jury to convict appellant of first-degree murder and not to convict of either capital murder or second-degree murder was made clear by the return of all three forms.

Appellant further argues that the trial court erred in allowing the jury to disregard its instruction to complete only one verdict form. While the jury erred in returning all three forms instead of one form as instructed, there was no inconsistency between the three forms, and any error was harmless error. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997). The trial court read all three verdict forms because all three verdict forms were signed. The trial court properly reasoned that the intent of the jury was to convict appellant of first-degree murder. Accordingly, we hold that the trial court did not abuse its discretion by denying appellant’s motion for mistrial.

As his second allegation of error, appellant argues that he was prejudiced in the sentencing phase because the trial court permitted the State a rebuttal following the appellant’s closing argument. Appellant argues that in the sentencing phase, there is no burden of proof in either the State or the defense, and consequently, the State is unduly favored by having the last word in its rebuttal argument.

Appellant asks us to overrule Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995). In Caldwell, we held that permitting the State to have rebuttal argument in the sentencing phase is within the trial court’s broad discretion in the management of trial proceedings. Id. Act 353 of 1993, which established new bifurated sentencing procedures in criminal trials, contemplates that the State will introduce relevant evidence to the issue of sentencing, including prior convictions, delinquency adjudications, and aggravating circumstances, but it is also silent on the procedures for argument in the sentence phase at jury trials. See Ark. Code Ann. § 16-97-103 (Supp. 1999).

In the present case, appellant’s motion to disallow the state a rebuttal argument was denied. The trial court followed the format in criminal cases by allowing the State to present its closing argument, the defense to respond, and the State to rebut. See Ark. Code Ann. § 16-89-123(a) (1987). However, appellant did not make a specific objection at the time of the State’s rebuttal. While there is much to commend the argument that the presentations during sentencing should be made by one presentation for each side without any rebuttal, there is also a strong presumption of validity of prior decisions. See McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). Appellant has the burden of showing that our refusal to overrule Caldwell would result in injustice or great injury. Id.

The decision whether to admit relevant evidence, opinion testimony or otherwise, rests in the sound discretion of the trial court, and our standard of review of such a decision is whether the trial court has abused its discretion. Marts II v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). In Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997), we noted there was no abuse of discretion because defense counsel could have objected to any misstatements made by the prosecutor in his rebuttal argument. Id. Based on Caldwell, we hold that the trial court did not abuse its discretion by allowing the State to present a rebuttal argument during the sentencing phase.

The record has been reviewed in accordance with Ark. Sup. Ct. R. 4-3 (h) which requires, in case in which there is a sentence of life imprisonment or death, that all prejudicial errors be reviewed in accordance with Ark. Code Ann. § 16-91-113(a). No such errors have been found.

Affirmed.


author: Per Curiam.

text:
    Robert LEWIS v. STATE of Arkansas
    CR 00-1031
    26 S.W.3d 585
    Supreme Court of Arkansas
    Opinion delivered September 28, 2000

      Sandra S. Cordi, for appellant.
    No response.
   Per Curiam.

Appellant, Robert Lewis, by his attorney, Sandra Cordi, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on her part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979)(per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, supra.


author: W.h. "Dub" ArnoldChief Justice. Robert L. Brown, Justice,

text:
    Stacey Eugene JOHNSON v. STATE of Arkansas
    CR 98-743
    27 S.W.3d 405
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000
    [Petition for rehearing denied November 2, 2000.  ]

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., and Michael C. Angel, Ass’t Att’y Gen., for appellee.

       Brown, J., would grant.

   W.h. "Dub" ArnoldChief Justice.

In 1994, appellant Stacey Eugene Johnson was convicted of capital murder in Sevier County Circuit Court in the death of Carol Heath. He was sentenced to death. In Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), hereinafter referred to as Johnson I, this Court reversed his conviction on the ground that the trial court had improperly admitted an out-of-court statement allegedly made by six-year-old Ashley Heath, daughter of the victim, in which Ashley claimed she had witnessed the murder of her mother and purported to identify appellant as the murderer. Ashley Heath had been found incompetent to testify at that trial.

A retrial was held in November 1997 in Pike County, venue having been changed. In this trial, Ashley Heath was found competent to testify and did testify. Appellant was again sentenced to death. It is from that conviction and sentence that the instant appeal is brought. Appellant raises multiple bases for reversal, which are as follows:

1) The trial court erred in denying Johnson access to the records of examination and treatment of the child witness conducted after the first trial;
2) The trial court erred in permitting introduction of victim-impact evidence;
3) The trial court erred in denying Johnson the right to present evidence that another person may have committed the offense;
4) The trial court erred in permitting introduction of the child’s out-of-court statements;
5) The trial court should have suppressed Johnson’s statements.

We disagree with appellant that the trial court erred and affirm the judgment of conviction and death sentence imposed.

Carol Heath was brutally murdered in her duplex apartment in DeQueen on either the night of April 1, 1993, or the early morning hours of April 2, 1993. She was beaten, strangled, and had her throat slit while her two young children, Ashley, age six, and Jonathan, age two, were home. The facts regarding the murder and its aftermath are gleaned from pretrial and trial testimony. At approximately 6:45 a.m. on April 2, 1993, Rose Cassidy, the victim’s sister-in-law, knocked on the victim’s door but did not receive an answer. Because the door was unlocked, she entered and found Carol Heath’s partially nude body lying on the living room floor in a pool of blood. She ran across the street to call the police and then returned to check on her niece (Ashley) and nephew (Jonathan), whom she saw looking out the bedroom window. Cassidy testified that she asked Ashley what had happened. Ashley responded, according to Cassidy: “[SJomebody had broke in, and I said who, and she (Ashley) said a [bjlack man.” The victim was white.

Sergeant Keith Tucker of the DeQueen Police Department testified that he found Carol Heath’s body nude except for a t-shirt that had been pushed up around her neck. He stated that her body was located between a couch which was tilted up on its back legs and a coffee table which had apparently been moved toward the middle of the room. DeQueen Chief of Police James Smith arrived at the apartment later. He testified that when he pulled the t-shirt away from the victim’s neck, he saw that her throat had been slashed.

Dr. Frank Peretti, an associate medical examiner for the State Crime Laboratory, testified that Carol Heath’s death was caused by cutting her neck, strangulation, and blunt-force head injuries. He stated that her attacker left a four-inch by two-inch cut wound on her neck that went one-quarter inch into her spine. He observed that she had several bruises and abrasions on her head and face, that she had injuries on her hands and arms consistent with defensive wounds, that she had a bite mark on the nipple of her right breast and an abrasion on her left breast, and that there was a one-quarter-inch contusion on her right labia minora. Dr. Peretti could not conclude, based on the physical evidence, that she had been either sexually assaulted or raped.

Officer James Behling, a criminal investigator with the DeQueen Police Department, testified that he observed a pair of panties next to Carol Heath’s right thigh. He noted an area of lighter-colored liquid between and around the legs and below the genital area of the victim. An empty douche bottle and an empty “Lifestyles” condom box were found in the bathroom sink.

On April 5, 1993, Kenneth Bryan found a purse in the woods between DeQueen and Horatio which he later realized belonged to the victim. He took Officer Behling to the location. Officer Behling examined the area and found a bloody pullover green shirt, a bloody white t-shirt, and a bloody towel. Lisa Sakevicius, an expert with the State Crime Laboratory’s trace evidence section, testified that hairs microscopically similar to the victim’s hair were found on all three of these items. She further testified that hairs retrieved from under the victim’s left breast, from the floor by the victim, and from the white t-shirt were of Negroid origin. Jane Parsons, a forensic serologist, testified for the State that no semen was found in connection with the victim. She admitted that the finding of semen would be unlikely, if the perpetrator used a condom and douched the victim.

DNA evidence was introduced at trial. Melisa Weber, a staff molecular biologist at Cellmark Diagnostics, conducted a Restriction Fragment Length Polymorphism [RFLP] test on the green shirt for the State and testified that to a reasonable degree of scientific certainty the blood matched that of Carol Heath. She also conducted a Polymerase Chain Reaction [PCR] test on several items, including the white t-shirt found in the park, a cigarette butt found in the green shirt, and hairs taken from the body of Carol Heath and near to where the body was located. With respect to the white t-shirt, Weber testified that the victim could not be excluded as the source of the blood and that the probability of this DNA having come from another Caucasian was 1 in 12,000. With respect to the cigarette butt and hairs, Weber opined that Johnson could not be excluded and that the probability that another African-American was the donor of the DNA in question was 1 in 250.

Officer Hayes McWhirter, an investigator with the Arkansas State Police, talked with the victim’s daughter, Ashley Heath, on the afternoon of April 2, 1993. Also present at the time was Cynthia Emerson, a supervisor with the Department of Human Services. Officer McWhirter made the following notes from that conversation and used these notes to refer to when he testified at the pretrial hearings and at trial:

Ashley stated her mother and I were on the couch when someone knocked on the door. She got up and opened the door. The picture No. 3, Stacey Johnson, is the one that came in the door. Ashley looked at six different pictures of black males. Mother likes Branson. He works at In Your Ear. The black male asked where Branson was. The black male used a girl sounding name. He had on a black hat with something hanging down in the back. He had on a green shirt and sweater. When they were talking, the black male said he had just got out of jail. The black male was mad at mother for dating Branson. He had been over two other times, but it was a while or a long time ago. The black male had about as much hair as [McWhirter]. I saw them fighting. Then I saw mother laying on the floor. I saw the black male leave and he got up and he got in a brown truck, I think. I saw a knife and a gun. The brown truck was parked beside the house. Mother looked out the window. When he knocked, then she let him in. While mother was laying on the floor, the black male walked into the bathroom. We were hiding in the closet. I came out the door to the bathroom and the black male had a knife in his hand beside mommy. She was on the floor bleeding. After he left, I went in and saw momma bleeding. Jonathan looked at mommy twice. She was covered in blood. We went to bed and then this morning when someone knocked on the door, I was scared to open the door. When Rose screamed, I knew she saw mommy with blood all over her. Every time I saw the black male, he had clothes on.

Officer McWhirter testified that he handed Ashley a stack of seven photographs, and she picked Johnson out of the photo lineup twice. Johnson was subsequently arrested in Albuquerque, New Mexico.

I. Privilege and Waiver.

Prior to the first trial in this matter, child eyewitness Ashley Heath had waived the psychotherapist/patient privilege, thereby allowing the defense access to the records obtained by and through her psychotherapist at the time, Dr. Carnelle Barnes. However, subsequent to the reversal of the first conviction, and prior to retrial of the matter, Ashley Heath obtained a new therapist, Jill Smith, for the purpose of treating the emotional condition brought on by her mother’s death. At the second trial, Ashley’s attorney ad litem asserted the psychotherapist/patient privilege on Ashley’s behalf, thereby denying access to the defense of any records of any therapy she received subsequent to the first trial.

Appellant moved for access to these records, contending that such discovery was necessary for him to adequately present his defense. The trial court denied appellant’s motion, ruling that said information was privileged. Appellant asserts that the refusal of the trial court to permit access to this evidence denied him his right to present his defense by depriving him of the ability and tools:

a) to challenge the witness’s competency at the competency hearing;
b) to challenge her competency and veracity before the jury, both in cross-examination and in presentation of impeachment evidence; and
c) to make an adequate demonstration of the need for access to a defense expert.

We disagree.

The child was deemed incompetent as a witness at the first trial because the court was unable to even get her into the courtroom, much less conduct a hearing to test her competency by asking her questions, directly, regarding her ability to appreciate telling the truth on the witness stand. The trial court, in the first trial, relied heavily on the testimony of Dr. Carnelle Barnes, who testified at the competency hearing about the psychological trauma Ashley had experienced and what further trauma she would experience if she were compelled to testify.

Due to Ashley’s unavailability as a witness at that competency hearing, the trial court based its determination that Ashley was incompetent to testify on Dr. Barnes’s testimony and the prosecutor’s statements to the court that Ashley would not answer any questions for the purposes of that hearing. Ashley was deemed incompetent and Dr. Barnes’s records were made available. Further, appellant had every opportunity and indeed did cross-examine Dr. Barnes heavily regarding both issues of Ashley Heath’s competency as well as her veracity.

The defense had in this case, prior to the second trial, the opportunity to cross-examine the child herself at the competency hearing, as the child u>as present and available for questioning at that time. The trial judge, in his discretion, deemed Ashley to be competent at the second trial based on her availability and willingness to be present for the hearing and her demonstration to the court of an understanding of the obligation of the oath and the consequences of false swearing, as well as her capacity to transmit to the factfinder a reasonable statement of what was seen or heard. See Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989); Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982). Access to the requested records of her second therapist would have in no way aided the defense in challenging whether or not the child was able to appreciate telling the truth on the witness stand, as the child was herself present and available for cross-examination on this point. Therefore, in regard to the issue of the child’s competency, the records sought were clearly irrelevant and therefore inadmissible for the purpose of challenging her competency at the second trial.

Next, although the information sought could certainly be deemed relevant for purposes of challenging the witness’s veracity both in cross-examination and in presentation of impeachment evidence, the question is whether the records were admissible. The trial court found that it was not admissible because it was privileged under Ark. R. Evid. 503. Appellant contends that because the witness had waived the psychotherapist/patient privilege prior to the first trial, then the privilege is forever waived and the witness may not now claim the privilege. The appellant further contends that the witness’s assertion of the privilege interfered with his right to present a complete defense at trial. We hold these arguments to be without merit for the following reasons.

Ark. R. Evid. 503(b) (1999) states:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

The foregoing privilege applies in both criminal and civil cases, e.g., Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), and is inapplicable only when proceedings are initiated to hospitalize the patient for mental illness, when a mental examination is ordered by the court, or when the patient relies on his or her physical, mental, or emotional condition as an element of his or her claim or defense. Ark. R. Evid. 503(d)(1),(2), and (3) (1999).

The appellant contends that this privilege was inapplicable pursuant to Rule 503(d)(3)(A) because Ashley’s emotional condition was an element of her claim or defense. However, Rule 503(d)(3)(A) clearly anticipates that the privilege is inapplicable only as to a party to a proceeding who brings his or her own physical, mental, or emotional condition into issue. See Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993). Ashley was not and is not a party to the proceedings below, and therefore could not assert a claim or defense. If this Court were to follow appellant’s reasoning, a third party could always circumvent Rule 503 by calling into question any witness’s mental or emotional condition. Such a result is clearly not intended by this rule, the purpose of which is to limit access to confidential communications. We therefore hold that because Ashley Heath was not a party to the proceedings and did nothing to bring her own emotional condition into issue, she properly asserted her psychotherapist/patient privilege.

The appellant further argues that because the privilege was waived by the witness at the first trial, it must be deemed “waived” at the second trial. This Court has long held that waiver of the privilege in one proceeding does not constitute waiver of the privilege at subsequent proceedings. See Maryland Casualty Co. v Maloney, 119 Ark. 434, 178 S.W. 387 (1915). Although the Maloney decision was rendered long ago, this Court’s ruling in that case is dispositive of the waiver issue. There, it was held that the patient’s waiver at the first trial did not serve as a waiver at retrial, even as to the privileged material that was disclosed at the first trial. Id. at 441, 178 S.W. at 389.

From the holding in Maloney, it logically follows that if a patient is entitled to assert the privilege at a subsequent proceeding as to previously disclosed material, then a patient with a new body of privileged material may also assert the privilege. After all, the privilege exists between the patient and the psychotherapist, not between the patient and an issue in the case. The facts present in the instant case are even stronger on this point than Maloney, as the previously disclosed material in this case, that being the records of Dr. Barnes, were still made available at the second trial and were not asserted to be privileged; only the new body of material from the new therapist was asserted by the witness to be privileged and not subject to disclosure.

Between the appellant’s first trial and his retrial, Ashley Heath obtained a new psychotherapist, thus creating a new set of privileged therapy records and communications. Indeed, in light of Maloney, the trial court could have properly ruled that the records made prior to the appellant’s first trial were subject to the privilege at retrial as well. However, to the appellant’s benefit, it applied the privilege only to the material created after his first trial. Clearly, applying the holding in Maloney, this was not error.

The appellant further makes several arguments which, taken together, essentially allege that the assertion of the privilege interfered with his right to present a complete defense. Specifically, the appellant contends that the privileged material was admissible evidence of bias, knowledge, or interest of the witness, that the material was discoverable under Ark. R. Crim. P. 17.1 and 17.4 (1999), and that the constitutional right to present his defense superseded Ashley Heath’s right to the psychotherapist/patient privilege. Contrary to appellant’s arguments, however, it has been established that said privilege preempts the need to discover all admissible evidence.

The United States Supreme Court established in Jaffee v. Redmond, 518 U.S. 1 (1996), that the psychotherapist/patient privilege is paramount to the need to gain access to the privileged material for evidentiary purposes. There, the Court stated the following:

Exceptions from the general rule disfavoring testimonial privileges may be justified ... by a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. Guided by these principles, the question we address today is whether a privilege protecting confidential communications between a psychotherapist and her patient promotes sufficiently important interests to outweigh the need for probative evidence .... Both reason and experience persuade us that it does
In contrast to the significant public and private interests supporting recognition of the privilege, the likely evidentiary benefit that would result from the denial of the privilege is modest. If the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation. Without a privilege, much of the desirable evidence to which litigants . . . seek access ... is unlikely to come into being. This unspoken “evidence” will therefore serve no greater truth-seeking function than if it had been spoken and privileged.

Id. at 9-10, 11-12 (citations and quotations omitted). Although the decision in Jaffee acknowledged the federal privilege, it soundly rejected arguments such as the appellant’s present contention that his constitutional right to present a defense supersedes the psychotherapist/patient privilege. Jaffee explicitly states that the privilege is more important than “the need for probative evidence.” Id. at 9-10.

The appellant argues that Ashley’s psychotherapy records were discoverable pursuant to Ark. R. Crim. P. 17.1 and 17.4 and Brady v. Maryland, 373 U.S. 83 (1963). However, that argument presupposes that the State had access to or knowledge of the records and their contents. Ark. Rule Crim. P. 17.1 places a duty on the State to disclose to the defense relevant or exculpatory material “which is or may come within [its] possession, control, or knowledge^] ” Here, the appellant has not shown that the State had access to the records sought. In fact, Ashley’s assertion of her privilege would have precluded disclosure to the State as well as to the appellant. In the absence of a showing by the appellant that the State had access to the records, we hold that no Brady violation occurred.

Finally, the appellant attempts to lend support to his arguments by referring to the contents of the privileged records. This reference will not be considered. According to the plain language of Rule 503, records made during the course of treatment and not falling under one of the enumerated exceptions are subject to absolute privilege without regard to their content. As the appellant can not claim that the records were not made in the course of treatment, his references to their content is irrelevant to the determination of this case.

In short, Ashley Heath’s psychotherapy records were not relevant for a determination of her competency to testify at the second trial and were subject to the psychotherapist/patient privilege; she did not waive the privilege simply because she had waived it in the first trial; and the privilege outweighs the appellant’s right to present a defense. Therefore, we hold that the trial court’s decision to deny the appellant access to these records was proper and shall be affirmed.

II. Victim-impact evidence.

For his next point on appeal, appellant asserts that the trial court erred in overruling his objection to Warren Eckert’s victim-impact testimony regarding the victim’s religious activities. The appellant also contends that, although no objection was made at trial, Carolyn Pullen should not have been allowed to read into evidence the statement of Ashley Heath. Finally, the appellant argues that the introduction of victim-impact evidence in the sentencing phase of his trial “violated prohibitions against ex post facto evidence.” The State contends that the appellant’s victim-impact arguments are barred, or alternatively, are without merit. We agree with the State and affirm the trial court on this point, as well.

A. Testimony of Warren Eckert.

During the sentencing phase of the trial, the State elicited victim-impact testimony from Warren Eckert. In response to a question posed by the State to Mr. Eckert regarding the victim’s religious activities, the appellant simply stated, “Your Honor, I object to any introduction with religion.” The trial court overruled the objection, allowing Mr. Eckert to testify regarding Ms. Heath’s involvement in her church. During Mr. Eckert’s subsequent testimony, the appellant requested a bench conference, where he made the following objection:

Your Honor, I object to this entire line of testimony. This is not permissible under any circumstances. It’s not an aggravating circumstance of any statute and its [sic] not a victim-impact statement by law. This is just him telling the jury about the victim and her tactics and such.

After a brief discussion, the trial court again overruled the appellant’s objection. Mr. Eckert then testified that Ms. Heath regularly rode to church with her children on the church bus and that she had volunteered to substitute for an absent Bible class teacher on more than one occasion.

The appellant now contends that the trial court erred when it allowed Mr. Eckert to testify about Ms. Heath’s religious activities because such evidence was irrelevant under Ark. R. Evid. 401, 402, and 403 (1999) and inadmissible pursuant to Ark. R. Evid. 610 (1999). However, the appellant did not make the specific arguments below that he now advances. It is well settled by this Court that parties are bound on appeal by the scope and nature of their objections at trial. E.g., Ayers v. State, 334 Ark. 258, 264, 975 S.W.2d 88, 91 (1998). Because appellant’s arguments on appeal clearly exceed the scope and nature of his objections at trial, his arguments in this regard are barred.

B. Carolyn Pullen’s reading of statement.

Appellant next asserts that the court erred when it allowed a purported hearsay statement to be read into evidence. However, the appellant admits first that he failed to object to this statement at trial. This Court will not reverse in the absence of an appropriate contemporaneous objection in the trial court. E.g., Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Although there are four narrow exceptions to the contemporaneous-objection rule, e.g. Camargo v. State, 327 Ark. 631, 640, 940 S.W.2d 464, 469 (1997), none are applicable in this regard, and the appellant’s failure to object precludes appellate review.

Moreover, appellant has failed to offer any argument or authority in support of his assignment of error in this regard. Because assignments of error unsupported by convincing argument or apposite authority will not be considered on appeal, e.g., Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997), appellant’s point in this regard is barred from this Court’s consideration.

C. Ex post facto evidence.

For his final argument regarding victim-impact evidence, the appellant asserts that the ex post facto clause of the United States and Arkansas constitutions precluded the use of victim-impact evidence at trial because Ark. Code Ann. § 5-4-602 (4) (Repl. 1997) was enacted after Ms. Heath’s murder but prior to the appellant’s trial. However, appellant admittedly failed to object to the victim-impact testimony on this ground at trial; as such, this argument is, likewise, barred on appeal. See Ayers v. State, supra.

Moreover, this Court previously rejected this argument by appellant in Johnson I; therefore, the law-of-the-case doctrine precludes further review. Johnson I, 326 Ark. 450, 934 S.W.2d at 189. In Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999), this Court stated the following:

The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. The doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals.

337 Ark. at 109-10, 987 S.W.2d at 683 (citations and quotations omitted).

In Johnson I, we held that by expanding the scope of permissible evidence during the penalty phase, the General Assembly has not expanded the scope of punishment or added a new aggravating circumstance. Therefore, we held that permitting this testimony did not constitute an ex post facto law. Here, the appellant reasserts his ex post facto clause challenge to the admission of victim-impact evidence. Yet, there have been no substantive changes in the law nor material variances in the evidence between the appellants first appeal and this appeal. Therefore, the law-of-the-case doctrine precludes review of this argument.

III. Evidence that another person may have committed the offense.

For his third point on appeal, the appellant contends that the trial court erred when it refused to allow him to introduce the testimony of Cordelia Vinyard, ex-wife of Branson Ramsey, as evidence that Ramsey murdered Ms. Heath. The evidence adduced at trial showed that Ms. Heath had bite marks on her breasts. Further, the appellant elicited testimony from Dr. Carnelle Barnes, indicating that Ashley Heath may have seen Ramsey and Johnson together at Ms. Heath’s home on the night of the murder. Based on that evidence, the appellant attempted to introduce Vinyard’s testimony that Ramsey had physically abused her, including biting her breast, while the two were married. The trial court refused to allow Ms. Vinyard to testify, and the appellant now challenges that ruling.

It is well settled that a trial court is vested with wide discretion in admitting evidence, and this Court will not reverse in the absence of an abuse of that discretion. E.g., Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999). In addressing the admissibility of evidence that a third party committed a particular crime, this Court has held as follows:

A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible.

Zinger v. State, 313 Ark. 70, 75, 852 S.W.2d 320, 323 (1993) (quoting State v. Wilson, 367 S.E.2d 589 (N.C. 1988)) (emphasis added). This Court went on to state:

. . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.

Zinger, 313 Ark. at 76, 852 S.W.2d at 323 (quoting People v. Kaurish, 802 P.2d 278 (Cal. 1990)).

The appellant sought to have Vinyard’s testimony introduced for the purpose of proving that Ramsey had previously bitten her breast. Although Ms. Heath’s autopsy revealed that she had bite marks on her breast, the fact that Ramsey had bitten Vinyard on a previous occasion created at most only an inference of Ramsey’s guilt. Indeed, it is untenable to assert that Vinyard’s testimony directly implicated Ramsey in the murder of Ms. Heath, which is the prerequisite for admitting any evidence of a third party’s guilt. Clearly, the trial court did not abuse its discretion in refusing to allow Ms. Vinyard’s testimony.

IV Introduction of out-of-court statements.

For his fourth point on appeal, the appellant contends that the trial court erroneously permitted the State to introduce Ashley Heath’s statement to Hayes McWhirter and Cynthia Emerson as an excited utterance. However, the appellant’s allegation is again barred from appellate review because it is unsupported by argument or authority. The appellant has not included in his brief any argument or legal support for his contention that the statement was hearsay and did not fit under the excited-utterance exception to the hearsay rule. Instead, appellant makes the bare assertion that the statement in question was impermissible hearsay evidence and did not constitute an excited utterance. That assertion alone is insufficient.

More importandy, however, this issue also is precluded from appellate review because it was decided in Johnson I. There, in response to the appellant’s argument that Ashley’s statement to McWhirter and Emerson was hearsay, this Court held that we do not view the statement by Ashley made more than nine hours after her mother’s body was discovered and she was removed from the apartment as inconsistent with the spontaneity and impulsiveness associated with an excited utterance. Johnson I, 326 Ark. at 443, 934 S.W.2d at 185. Again, the law-of-the-case doctrine precludes review of issues concluded in a prior appeal unless there has been an intervening material change in the evidence. See Camargo, supra.

Here, there has been no such change in the evidence. Recognizing that fact, appellant makes an unpersuasive attempt to convince this Court to ignore the law-of-the-case doctrine and review this issue again. We decline to do so.

V. Suppression of appellant’s statements.

For his final point on appeal, appellant asserts that the trial court should have suppressed his confession. However, the appellant admits that his argument is not preserved for appellate review and “must await retrial or a Rule 37 hearing.” Therefore, because the appellant does not argue for reversal, and this Court will not reverse for plain error, see Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997), it cannot be held that the trial court erred in refusing to suppress the appellant’s confession.

VI. Rule 4-3(h) Compliance.

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3 (h), and no reversible errors were found.

For all of the above reasons, we hereby affirm the conviction and death sentence of appellant Stacey Eugene Johnson on the charge of capital murder.

Affirmed.

Brown, Imber, and Thornton, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The pivotal issue in this death case is the waiver of the medical privilege by Ashley’s guardian ad litem for Dr. Carnelle Barnes’s records and testimony and whether this waiver extended to the records of a second therapist, Jill Smith. Under these facts, I conclude that the waiver does apply to Smith. The alternative would be to allow Ashley’s guardian and the State to pick and choose which therapist will be most helpful at trial and prevent a less favorable therapist from testifying. The guardian for the key State witness and the State should not be permitted to use the waiver of the medical privilege as a sword to allow the testimony of one therapist and as a shield to prevent that of another. That is what was done at the second trial of Stacey Johnson, and for that reason, I respectfully dissent.

Prior to the first trial in 1994, the guardian ad litem for Ashley waived the medical privilege for Dr. Carnelle Barnes, a psychologist, and permitted her to testify. At the competency hearing, Dr. Barnes testified that Ashley would suffer mental damage if she were compelled to testify. She also testified that Ashley could not accurately recall what happened a year ago and that there was a strong possibility her memory was contaminated and diluted by what she had heard and by her dreams. She further stated that Ashley was embellishing on the truth and telling different stories. Based on Dr. Barnes’s testimony and that of the prosecutor, the trial court ruled Ashley incompetent to testify. The prosecutor went to trial with a battery of hearsay witnesses who told the jury what Ashley had told them the day of the murder. Johnson was convicted and sentenced to death. This court reversed that judgment in 1996 and remanded for a new trial because of unreliable hearsay testimony stemming from Ashley’s selection of Johnson from a photo lineup. Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996).

Ashley began seeing a new therapist, Jill Smith of the Southwest Arkansas Counseling and Mental Health Center, on November 12, 1996. Her treatment lasted through the second trial which took place in November 1997 and up until April 9, 1998. The guardian ad litem refused to waive the medical privilege for Smith over defense counsel’s strong objection. Indeed, defense counsel even subpoenaed Smith for the retrial, but the trial court quashed the subpoena based on the privilege. The result was that Johnson’s counsel was denied access to Smith’s record and evaluations, while Dr. Barnes was again allowed to testify at the second trial.

Why was the Smith information so critical? The short answer is that the prosecution only called Ashley as a witness at the competency hearing before the second trial, and the trial court deemed her competent to testify. Had defense counsel been privy to Jill Smith’s records, he would have been able to delve into Smith’s conclusions that Ashley’s stories were profoundly inconsistent and that she had been under considerable pressure from her family and the prosecutor to convict Stacey Johnson. A sampling of Smith’s notations after therapy sessions with Ashley before the second trial reveals the following:

• The DA says she’s the only one who can “keep him behind bars.”
• So much of what Ashley says is parroting other family members. For example, she says, “I’m the only one who can put him behind bars.”
• Her grandmother told Ashley that she “has to keep him behind bars,” because if he gets out he’ll try to kill Ashley next.
• Her grandmother emphasized how much responsibility was on her, and if Johnson’s sentence is overturned, Ashley will feel total responsibility.
• Ashley kept wanting to elaborate on what she saw. Atty emphasized to her that all she has to say is that she saw Jason (sic) murder her mom, period.

Because he was denied access to Smith’s records, defense counsel was unable to confront and cross-examine Ashley on duress and bias due to considerable family and prosecutorial pressure, much less emphasize her unreliability due to inconsistent stories.

The majority opinion gives short shrift to the waiver issue. Yet that issue represents the crux of Johnson’s appeal. Rule 510 of the Arkansas Rules of Evidence provides:

A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.

By its opinion the majority endorses the State’s position that Ashley’s guardian should be able to pick and choose which therapist will testify and be made available to the defense. That should not be. It stands to reason that if Ashley’s guardian waives the privilege for one key psychotherapist, that waiver should apply to a successive therapist who also treated her to cope with her mother’s savage murder before the second trial. Here, the defense was thwarted in its quest to review the records of Jill Smith, who had conducted the more recent therapy sessions with Ashley and who, without question, would have had a better grasp of her current mental state.

The sole support cited by the majority for the State’s unique position is a 1915 civil case in which the issue was the disclosure of privileged information at retrial. See Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S.W. 387 (1915). In Maloney, which was a medical malpractice case, the plaintiff/widow did not object to the testimony of certain defense witnesses who were doctors and who testified about her husband’s cause of death. The widow did assert the privilege at the second trial, and we upheld it. Apart from the fact that a civil case does not call into play the fundamental rights and policy considerations inherent in a capital murder trial, Maloney did not involve the State’s waiver of the privilege to shore up grounds for Ashley’s incompetence at the first trial, and then the invocation of the privilege at the second trial to prevent the damaging testimony of a second psychotherapist. The Maloney case is simply not controlling authority.

This court has upheld the waiver of a privilege in two recent cases. See Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999) (Dansby waived husband-wife privilege by communicating privileged matter to a third party); Anthony v. State, 332 Ark. 595, 967 S.W.2d 552 (1009) (defendant waived her privilege against self-incrimination by testifying on the matter at the first trial and her prior testimony was admissible at retrial even though the defendant invoked her right to silence at the second trial). Certainly, the Anthony rationale should extend the waiver to Ashley’s second psychotherapist prior to retrial.

Nor can it be argued that any error in excluding Jill Smith’s records was harmless error beyond a reasonable doubt. See Chapman v. State of Calfornia, 386 U.S. 18 (1967). Jill Smith did agree with Dr. Barnes that Ashley’s stories were inconsistent, but her notations also support an entirely new basis for attacking Ashley’s credibility. That basis is premised on bias and duress resulting from intense pressure brought to bear on her by family and the prosecutor to convict Johnson.

Some jurisdictions have weighed the confidentiality of the privileged information against the right to cross-examine the credibility of a State witness to decide which policy should yield, even when no waiver is involved. See, e.g., Schaefer v. State, 695 So.2d 656 (Ala. Ct. Crim. App. 1996); Bobo v. State, 256 Ga. 357, 349 S.E.2d 690 (1986); State v. McBride, 213 N.J. Super. 255, 517 A.2d 152 (1986). In McBride, the New Jersey Superior Court held that the psychologist-patient privilege may be defeated when common notions of fairness clearly compel at least limited disclosure of otherwise confidential information. And in a case where waiver of the privilege was involved and used as a strategic tool, the Washington Court of Appeals had this to say:

In adopting a rale for this jurisdiction we must weigh two varying public policies. On the one hand, the very reason behind the physician-patient relationship is to create an atmosphere of confidence. If the law were otherwise, many needing medical attention might go untreated for fear that what they told the doctor might not remain confidential. On the other hand, if a patient is allowed to pick and choose between physician witnesses and can, by claim of privilege, prevent impeaching testimony from being disclosed to the court, a mockery might be made of justice.

State v. Tradewell, 9 Wash. App. 821, 824, 515 P.2d 172, 174 (1973). That “picking and choosing” is exactly what occurred in the case before us.

Certainly the extent of any waiver of a privilege must be reviewed by this court on a case-by-case basis for an abuse of discretion. See Schaefer v. State, supra; State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983). But in this case, the waiver of the privilege for Dr. Barnes and then the assertion of it for Jill Smith seem largely a matter of trial strategy. Here, the trial court apparently conducted an in camera review of Smith’s records for mitigating evidence. See State v. McBride, supra. But then the court ordered that Jill Smith’s records be excluded in their entirety. That was an abuse of discretion in my opinion. Under these facts I can only conclude that Johnson was hamstrung in his cross-examination of Ashley and in his defense in general and, thus, was denied his right to a fair trial.

Imber and Thornton, JJ„ join.

       This- statement was the basis of the reversal of Johnson I. However, no objection was made to such statement at the appellant’s second trial in this matter.

       I acknowledge that these notations of Jill Smith were submitted to this court under seal. Nevertheless, in my judgment these parts of the Smith records should have been made available to Johnson’s counsel for the reasons stated in my dissent.


author: W.h. "Dub"Arnold, Chief Justice.

text:
    Richard Allen TERRELL v. STATE of Arkansas
    CR00-138
    27 S.W.3d 423
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000

      Robert L. Herzfeld, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   W.h. "Dub"Arnold, Chief Justice.

Appellant Richard Allen Terrell appeals the judgment of the Saline County Circuit Court finding him guilty of first-degree murder for the February 19, 1999, death of Kalob Allen Terrell, appellant’s ten-week-old son. Medical testimony established that the child died from “shaken baby syndrome,” as evidenced by the extent and type of injuries sustained by the victim.

Appellant was tried by a jury and sentenced to fife imprisonment, which gives rise to our jurisdiction to review this matter under Ark. Sup. Ct. R. l-2(a)(2). As his only point for reversal, appellant asserts that there was insufficient evidence that he knowingly caused the child’s death to support a conviction on the charge of first-degree murder and that this Court should, therefore, either remand for a new trial or reduce the appellant’s sentence to reflect a lesser-included offense which could be supported by the evidence. We affirm appellant’s conviction and sentence.

I. Sufficiency of the Evidence

At trial, the court denied appellant’s timely directed-verdict motions. Appellant now challenges the sufficiency of the evidence to support his first-degree murder conviction. Appellant claims that his conviction must be reversed because the State failed to present sufficient evidence that he acted “knowingly” in causing the death of Kalob Terrell, as required by Ark. Code Ann. § 5-10-102(a)(3) (Repl. 1997), which provides that a person commits murder in the first degree if he knowingly causes the death of a person fourteen years of age or younger at the time the murder was committed.

A motion for directed verdict is a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

In his argument, appellant offers various purportedly exculpatory facts to be weighed against 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. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). A criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

On February 18, 1999, ten-week-old Kalob Terrell was left in the care of his father, the appellant, at approximately 7:30 a.m. Both Kalob’s mother, Tracy Crow, and the appellant testified that at the time, Kalob was a normal, healthy baby. Crow told appellant that the baby needed to be changed and fed. Rather than changing and feeding Kalob, appellant instead fell asleep and slept until he was awakened by Kalob’s crying at approximately 9:15 a.m. Appellant testified that although he fed Kalob, the child kept crying, so appellant shook him. Kalob eventually went back to sleep. Later that day, at approximately 1:00 p.m., appellant was again awakened by Kalob’s crying. Appellant testified that he fed and burped Kalob and when the child still would not stop crying, he shook him until his body went limp.

After a period of ten to fifteen minutes, during which time appellant claims he attempted some CPR on the child, appellant’s roommate, Chad Caple, arrived at the residence and called 911. It was 2:10 p.m. when paramedics were called. Kalob was taken to the emergency room of Southwest Hospital and subsequently transported to Arkansas Children’s Hospital in Little Rock, where he died on February 19, 1999. Although appellant admitted at trial that he had shaken Kalob twice on February 18, 1999, and once previously in January, he never apprized any of the doctors, paramedics, family members, or authorities of this information. Instead, he repeatedly maintained, until his testified at trial, that he had no explanation for what might have caused Kalob’s death, other than a fall from the couch the day before he was hospitalized.

Medical evidence adduced from the medical examiner and the treating physicians at Children’s Hospital provides substantial evidence that the massive, mortal injuries that Kalob suffered occurred as the result of the fact that appellant shook him. Dr. Charles Kokes, a medical examiner at the Arkansas State Crime Lab, performed an autopsy on Kalob and testified that he died as the result of multiple head and chest injuries and that the death was a homicide. Specifically, he suffered from a swollen brain, a subdural hematoma, retinal hemorrhages, and fractured ribs. Dr. Kokes opined that these injuries were classic symptoms of shaken-infant syndrome.

Dr. Kokes further testified that Kalob’s chest injuries were an indication of what occurred at the time that the head injuries took place. Six of Kalob’s ribs had fresh fractures and one of the ribs was completely fractured in two parts. Fractured ribs are caused by excessive, compressive force and are an indication of the amount of force placed on the body of the infant prior to death. Dr. Kokes testified that another indication of the severity with which Kalob was shaken is the fact that his left eyeball had separated from the optic nerve. The doctor testified that he had never seen or heard about such a severe injury, which was a further indication of the severity with which Kalob was shaken. In addition, Kalob had bruises on the sides of his chin and the upper right front of his chest. Bruises are also indicative of applied blunt force.

Dr. Richard Leithiser, a pediatric radiologist at Children’s Hospital, testified that in his opinion, Kalob’s injuries were the result of a major trauma, probably a “shaking” or “squeezing” injury to the chest with a “forward-and-backward shaking” injury to the head that caused blood vessels in the head to break and major swelling of the brain, so severe, in fact, that the child had brain death. Dr. Michelle Moss, a specialist in pediatric intensive care at Children’s Hospital, testified that the severe and repeated shaking was the only explanation for the type of injuries that Kalob suffered.

Dr. Jerry Jones, a pediatrician at Children’s Hospital who specializes in child maltreatment, testified that Kalob was the victim of abuse and that his injuries were consistent with injuries that were typical of children who have been shaken. He also testified that Kalob’s rib fractures were an indication that he had been grasped around his chest and then violently shaken while the chest was compressed, which caused his ribs to fracture.

We hold that the foregoing evidence is clearly substantial evidence that appellant committed first-degree murder. A person commits first-degree murder if “[h]e knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed.” Ark. Code Ann. § 5-10-102(a)(2).

According to Ark. Code Ann. § 5-2-202 (Repl. 1997), “A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.” Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). As stated above, a criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. E.g., Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000). Appellant’s own conduct in giving different versions of the incidents of February 18, 1999, to medical and other authorities from what he testified to at trial defies the assertion that although he did shake Kalob to death, he did not do so “knowingly.” In fact, appellant’s failure to disclose the shaking incidents to authorities basically amounts to an attempt to cover up his connection to the crime. This attempt was before the jury, and the jury could have properly considered evidence of cover-up as proof of a purposeful mental state. See, Steggall v. State, supra; Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999). A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. See e.g., Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Steggall v. State, supra.

Clearly, the evidence was sufficient to show that appellant shook the child knowing that it was practically certain that his conduct would result in the child’s death. As such, we affirm the first-degree murder conviction and life sentence of Richard Allen Terrell.

II. Rule 4-3(h) Compliance.

The transcript of the record before us has been reviewed in accordance with Ark. Sup. Ct. R. 4-3 (h). No prejudicial errors have been found.

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Stephen W. MILLER and Janette Elaine Miller v. STATE of Arkansas
    CR 00-336
    27 S.W.3d 427
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000

      Bassett Law Firm, by: Woody Bassett; and Charles L. Stutte, for appellants.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellants Stephen and Janette Miller were charged in the Washington County Circuit Court with manufacturing marijuana and possession of drug paraphernalia. Following the trial court’s denial of the Millers’ motion to suppress evidence seized pursuant to a search warrant, they both entered conditional pleas of guilty pursuant to Ark. R. Crim. P. 24.3. The Millers then appealed the trial court’s decision regarding the motion to suppress to the Arkansas Court of Appeals. The court of appeals affirmed the trial court’s ruling in a 5-4 decision. See Miller v. State, 69 Ark. App. 264, 13 S.W.3d 588 (2000). We granted the Millers’ petition for review of that decision pursuant to Ark. Sup. Ct. R. l-2(e)(i).' When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999), cert. denied, 120 S. Ct. 1558 (2000); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). We find no error and affirm.

The record reflects that during the morning hours of October 22, 1998, the Millers were stopped for speeding on U.S. Highway 75 near Denison, Texas, by Officer Sharalin Fichtl. Upon stopping the Millers, Fichtl activated the video camera mounted on her patrol car’s dash that recorded the events of the stop and search. Fichtl asked Mr. Miller to step out of his vehicle so that she could talk to him. According to Fichtl, Mr. Miller appeared to be nervous and answered her questions in a rambling manner. Fichtl ran a warrants check on Mr. Miller and discovered that he had prior convictions for the sale of marijuana, possession of LSD, and possession of a weapon. She then inquired as to whether Mr. Miller was in possession of any weapons, drugs, or other contraband. Mr. Miller stated that he was not. Ficthl then asked if she could take a look in his car, and Mr. Miller agreed. He thereafter stated that he would like to be on his way, and Fichtl responded that if she did not find any contraband, he would be on his way shortly.

Fichtl went around to the driver’s side of the vehicle and immediately popped the latch to open the trunk. The search was interrupted, however, when Fichtl observed Mr. Miller reach into the trunk. Fichtl ordered him to back away from the vehicle, and she closed the trunk. Fichtl then called for backup before completing the search. She explained to the Millers that she had called for backup and would complete the search once another officer arrived on the scene. Once the backup officer arrived-, Fichtl resumed the search. Within about thirty seconds, she located a tin can under the front passenger seat of the car. An inspection of the can revealed that it contained marijuana. Fichtl then placed the Millers under arrest and advised them of their Miranda rights. After placing the Millers in her patrol car, Ficthl continued to search the vehicle. In the trunk, she found a wrapped package. She asked the Millers what was in the package, and they replied that it was a gift for Mrs. Miller’s sister. Fichtl then asked Mrs. Miller if she could open the box, and Mrs. Miller consented. Inside the box was approximately three pounds of marijuana. The Millers were then transported to the Grayson County Sheriff’s Office.

On October 23, 1998, Fichtl contacted Detective Mike Henderson of the Fourth Judicial District Drug Task Force in Fayetteville. Fitchl explained to Henderson that she had arrested the Millers the previous day. She told him about the marijuana and explained that it was found in a box with an address label containing' Mr. Miller’s name and address. She also told Henderson that there was an Amazing Grace newspaper from Fayetteville, dated October 21, 1998, in the box with the marijuana. Finally, Fichtl told Henderson that while in the police cruiser, Mrs. Miller stated that a friend had brought the package to their residence in Fayetteville and had given it to her to deliver.

After receiving this information, Henderson contacted Sergeant Kenny Yates and Detective Mike Reynolds who went to the Millers’ home. According to Yates, he and Reynolds went to the Millers’ residence to determine if the friend mentioned by Mrs. Miller or anyone else was at the home. The officers knocked several times on the front door. After receiving no response, the officers went around to the back door of the residence and knocked again. According to Yates, when he stepped onto the back porch, he smelled the strong odor of marijuana coming from the home. He also noticed small pots, potting soil, and plant food on the back porch. While Yates and Reynolds left to obtain a search warrant, Detectives McCarville and Huddler were assigned to watch the residence.

While conducting surveillance from a parking lot next door to the Millers’ residence, McCarville observed a garden in the Millers’ backyard with six marijuana plants growing in the garden. McCarville contacted Yates with this information, who in turn notified Henderson, who was preparing the affidavit in support of a search warrant. After reviewing the affidavit, Judge Ray Reynolds issued a search warrant for the Millers’ residence. Upon executing the search warrant, police discovered marijuana in a sealed container in the kitchen, marijuana growing in the attic, as well as the six marijuana plants growing in the garden. Several weapons and drug paraphernalia were also seized from the residence. The Washington County Prosecuting Attorney charged the Millers with manufacturing marijuana and possession of drug paraphernalia. The Millers filed a motion to suppress the evidence seized from their home, and the denial of that motion is the subject of this appeal.

For reversal, the Millers argue that the trial court erred in denying their motion to suppress the evidence seized from their home because such items were the fruit of an illegal search and seizure. Specifically, they contend that the search of their vehicle was illegal, and therefore, the information given to the police in Fayetteville was tainted and could not support the search warrant. Appellants further contend that the police searched their home without probable cause in violation of the Fourth and Fourteenth Amendments of the United States Constitution, as well as Article 2, § 15, of the Arkansas Constitution.

When reviewing a trial court’s ruling on a motion to suppress, we view the evidence in a light most favorable to the State, make an independent determination based on the totality of the circumstances, and reverse only if the ruling was clearly against the preponderance of the evidence. Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648, cert. denied, 120 S. Ct. 321 (1999); Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998).

Search of Vehicle in Texas

We address the validity of the vehicle search first. The Millers do not challenge that Officer Fichtl lacked a valid reason to stop them; rather, it is their contention that Fitchl conducted a warrantless search of their vehicle, and that none of the exceptions to the warrant requirement were present. They argue that any consent given for the search was the result of coercion by Fichtl. The United States Supreme Court has held that the test for a valid consent to search is that the consent be voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances.” Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973)). The Court in Robinette stated that it would be unreasonable to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.

Flere, when Officer Fitchl was questioning Mr. Miller, the following exchange took place:

[FICHTL]: Okay. Do you mind if I look in your vehicle, make sure you don’t have any illegal substances or large sums of cash or weapons, or ...
[Miller]: No, no.
[Fichtl]: ... contraband?
[Miller] : Yeah, you can go ahead. I just wish we could go.
[FICHTL]: Okay, well if I can look, if there’s nothing in there, then it will take me a couple of minutes — five minutes — and I will let you be on your way.
[Miller]: Okay.

Now, Appellants attempt to argue that the only reason Mr. Miller gave consent is because Fichtl implied that she would not let them leave until she could search the car. The circumstances surrounding this stop do not support this argument. Mr. Miller clearly gave his consent to the search and then stated that he would like to be on his way. Fichtl never intimated that the only way she was going to allow the Millers to leave, was if they let her search their car. Moreover, at the suppression hearing, Fichtl testified that she knew that she did not have probable cause to search the vehicle, and that if the Millers had not given their consent to the search, she would have let them go immediately.

Appellants also argue that even if we find that the Millers’ consent was valid, such consent was limited to the car’s interior, thus the scope of Officer Fichtl’s search exceeded the permissible bounds. In Florida v.Jimeno, 500 U.S. 248, 251 (1991), the United States Supreme Court held that the standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness — what the typical reasonable person would have understood by the exchange between the officer and the suspect. The Court held that once the respondent gave the police officer permission to search his vehicle, it was objectively reasonable for that officer to believe that such permission extends to opening containers found in the vehicle. Finally, the Court pointed out that a reasonable person may be expected to know that narcotics are generally carried in some form of a container.

Here, Mr. Miller consented to a search of the vehicle for the specific purpose of searching for any illegal substances, money, weapons, or other contraband. The Millers placed no limits on Officer Fichtl and what she could search. When she discovered the tin can containing the marijuana, neither of the Millers attempted to stop her from opening the can. It was reasonable for Officer Fichtl to conclude that the permission granted by the Millers included a search of any containers found in the car’s interior. Therefore, the scope of Fichtl’s search did not exceed reasonable bounds.

In sum, the Millers were properly stopped for speeding. They, in turn, gave consent to a search of their vehicle. Contrary to the Millers’ assertion, there is no evidence in the record to indicate that such consent was the product of police coercion. As the result of a lawful search of the Millers’ vehicle, marijuana was discovered and the Millers were arrested. Accordingly, there were no abnormalities stemming from the search- of their vehicle that would render the information given to Arkansas authorities tainted.

Search of the Fayetteville Residence

Having determined that the search of the Millers’ vehicle was valid, we now turn to the validity of the search of their residence. The Millers argue (1) that the pohce had no right to go to their residence; (2) that it was improper for the police to go to the back of their house; and (3) that it was improper for the police to view their house from a neighbor’s property. They contend that the conduct of the pohce violated their constitutional rights, and therefore, any evidence seized from the home was the fruit of an illegal search.

We disagree with the Millers’ assertion that the pohce had no right to go to their home knowing that they were incarcerated in Texas. The Fayetteville authorities received information from another law enforcement officer that the Millers had been arrested for possession of a large quantity of marijuana. Moreover, that marijuana was discovered in a box labeled with Mr. Miller’s name and address. Also in that box was a FayetteviUe newspaper printed the day before the Millers were arrested. Finally, the FayetteviUe authorities were told that Mrs. MUler mentioned that a friend had possibly been involved in the delivery of the marijuana. Under these circumstances, we cannot say that the FayetteviUe authorities acted unreasonably in going to the MiUers’ residence to determine if there was anyone there to interview as part of their investigation of any drug-related activity.

With that said, we must determine whether the police’s action of entering the MiUers’ back porch area violated any Fourth Amendment principles. While Arkansas has never addressed an issue such as the present one, the Eighth Circuit Court of Appeals has considered it and found that the Fourth Amendment is not implicated when police approach the common entryways of residences, including the rear of a home, for legitimate purposes. See United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977). The issue in Anderson was whether the police’s action of proceeding to the backyard of a home after receiving no response at the front door, violated Fourth Amendment principles. The court determined that the police had entered an area in which there was a reasonable expectation of privacy, but went on to state that the initial intrusion was justified by legitimate police objectives, namely questioning a suspect. In so holding, the court stated:

We cannot say that the agents’ action in proceeding to the rear after receiving no answer at the front door was so incompatible with the scope of their original purpose that any evidence inadvertently seen by them must be excluded as the fruit of an illegal search.

Id. at 1300.

Here, the facts and circumstances also support a finding that the police acted reasonably in going to the rear of the home. The police entered the Millers’ property as part of a legitimate police investigation to determine if anyone was at the home that they could interview. The record here indicates that the Millers’ property was not fenced, and there was a litde path leading around the house. Following that path, the police entered the back porch to again knock on the door. This conduct by the police did not so exceed the scope of their purpose for going to the residence as to render their conduct an unlawful search.

Finally, even if the police’s conduct of entering the rear of the Millers’ residence had resulted in an illegal search, it was proper for the trial court to deny the Millers’ motion to suppress the evidence seized from their home under the “inevitable discovery” doctrine. See Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998); Brunson v. State, 296 Ark. 220, 753 S.W.2d 859 (1988). In Thompson, this court held that suppressed evidence is otherwise admissible if the State proves by a preponderance of the evidence that the police would have inevitably discovered the evidence by lawful means.

Here, we are satisfied that the State proved that the marijuana seized from the home would have been inevitably discovered. The evidence indicates that the marijuana growing in the backyard could be viewed by anyone from the adjoining property. Detective McCarville testified that while he was standing in a parking lot next to the Millers’ residence, he observed the marijuana growing in the their backyard. We reject the Millers’ argument that it was improper for the police to view their residence from their neighbor’s property. The Millers lack standing to complain about any invasion of their neighbor’s property. Rights protected by the Fourth Amendment are personal in nature. Rakas v. Illinois, 439 U.S. 128 (1978); Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). This observation would have supported a search warrant for the Millers’ property, and would have inevitably led to the discovery of the evidence in the Millers’ residence. Accordingly, the trial court did not err in denying the motion to suppress.

Affirmed.