author: DAVID NEWBERN, Justice.

text:
    Brandon Anthony ISBELL v. STATE of Arkansas
    CR 96-517
    931 S.W.2d 74
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Dennis R. Molock, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   DAVID NEWBERN, Justice.

Brandon Anthony Isbell shot and killed Lois Wallace in the course of a robbery of a grocery store in Stuttgart. He was convicted in a jury trial of capital murder for causing the death of Ms. Wallace in furtherance of the robbery and under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-101(a)(l) (Supp. 1995). Mr. Isbell was sentenced to life imprisonment without parole. We affirm the judgment.

The murder occurred October 28, 1994, when Brandon Isbell was aged 14 years. The sufficiency of the evidence is not at issue, so we need not recite the facts in great detail. In a pretrial statement given to the police and again in his testimony at the trial, Mr. Isbell said he and two friends, Clint Lammers and Sean Smith, planned to rob the store to get money to run away from home. Clint Lammers had a .357 pistol. On the day of the crime they acquired a second weapon by taking a .22 pistol from the home of Mr. Isbell’s grandmother. They walked to the grocery store and spoke of using the .22, which was the quieter of the two weapons, to shoot the grocery check-out clerk so she could not identify them. Mr. Isbell had fired the .22 pistol previously and knew that the double action did not work, so the hammer would have to be cocked to fire it. The three first purchased some batteries and then continued to mill about the grocery store. Mr. Isbell then approached Ms. Wallace, the store clerk, and pointed the .22 pistol at her head. The gun discharged, and Ms. Wallace went down. Mr. Isbell stood up on the counter, attempting unsuccessfully to get the cash register open. They ran from the store, taking only the batteries, some cigarettes, and a pair of gloves. They went to Clint Lammers’ home from which they phoned the police to turn themselves in. In relating the story to the police, Mr. Isbell said, “It didn’t turn out like it does in the movies.”

1. Admissibility of pretrial statement

In his first point of appeal, Mr. Isbell contends the Trial Court erred in overruling his motion to suppress his pretrial statement. When he was taken into custody, Mr. Isbell was questioned by a police officer after executing a waiver form indicating his knowledge and understanding of his rights and declining the assistance of counsel. Although his mother was present in the police station and had expressed her wish to speak with Mr. Isbell, she was not allowed to do so until the interrogation had been completed.

The officer who interrogated Mr. Isbell confirmed that he had told Mr. Isbell of his rights, including the right to an attorney, but the officer admitted at the suppression hearing that he did not give any extra explanation as he did not wish Mr. Isbell to have an attorney or parent present because that would have hindered the effort to obtain a confession.

Citing Ark. Code Ann. § 9-27-317, Mr. Isbell argues as follows:

a waiver of the right to counsel shall be accepted only upon a finding by the court from clear and convincing evidence, after questioning the juvenile, that (1) the juvenile understands the full implications of the right to counsel; (2) the juvenile freely and voluntarily and intelligently wishes to waive the right to counsel; and (3) the parent ... for the juvenile has agreed with the juvenile’s decision to waive the right to counsel.

The argument made in Mr. Isbell’s brief to this Court is not that the State has failed to show that the waiver was involuntary or not intelligently made; rather, it is that Mr. Isbell was not given the benefit of the requirement that his parent enter an agreement to the execution of the waiver of the right to counsel.

Previously, § 9-27-317(f) provided that, “All waivers of the right to counsel shall be in writing and signed by the juvenile and his parent, guardian, or custodian.” The General Assembly removed the requirement that the parent sign by Acts 67, § 1, and 68, § 1, of the Second Extraordinary Session of 1994 which became effective August 26, 1994, some two months before Mr. Isbell’s offense occurred. By amending the opening subsection of § 9-27-317, those same acts made it clear that its provisions, at least subsections (a) through (f), apply in “a delinquency or family in need of services hearing.” Subsection (g)(2)(A) of the statute provides:

No law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he:
(i) Does not wish to be questioned;
(ii) Wishes to speak with a parent or guardian or to have a parent or guardian present; or
(iii) Wishes to consult counsel before submitting to any questioning.

If the provisions of subsection (g) apply beyond the juvenile forum, they were not invoked here. There is no showing or argument that Mr. Isbell, when taken into custody, asked to consult with his parent. Mr. Isbell’s argument on appeal includes a remark to the effect that the burden should not have been placed on a 14-year-old to ask to consult with his parent, but that is precisely where subsection (g) places it.

Our Rule 4-3 (h) requires that we examine the transcript in a case in which there has been a sentence to death, life imprisonment, or life imprisonment without parole to determine any errors prejudicial to the appellant. Mr. Isbell’s motion to suppress his confession was not limited to the failure to give him the protection of the Juvenile Code. Rather, it was couched in general terms as well, stating the confession was involuntary and not intelligently given.

When a person in police custody makes a statement after executing a waiver of rights, the law makes admissibility in evidence of the statement dependent upon a showing that the waiver was made voluntarily and intelligently. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994); Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994). That requirement obtains regardless whether the person said to have executed the waiver is entitled to the protection of the Juvenile Code. In deciding whether we are convinced, according to the totality of the circumstances, that a confession was voluntarily and intelligently given, we consider whether the special rights accorded to a juvenile by statute were observed by the authorities taking the statement. Rouw v. State, 265 Ark. 797, 581 S.W.2d 313 (1979).

Our conclusion on this point is that even if the confession should have been suppressed, the error was harmless beyond a reasonable doubt in view of the fact that Mr. Isbell testified at his trial and repeated every material aspect of his pretrial statement.

In Fulminante v. Arizona, 499 U.S. 279 (1991), the Supreme Court considered a case in which two pretrial confessions had been given. The first was found to have been coerced and thus not admissible. The issue was whether the error could be considered harmless and the conviction affirmed in view of the second confession. Although the reversal of the conviction by the Arizona Supreme Court was ultimately affirmed, the majority of the members of the Supreme Court applied a harmless-error analysis to the issue, holding that the error was not harmless.

In his trial testimony, essentially repeating his earlier confession, Mr. Isbell clearly admitted having committed every element of capital-felony murder. Unlike the facts in the Fulminante case (which need not be recited), there were no factors tending to make Mr. Isbell’s second statement unreliable. No argument is made pursuant to Michigan v. Long, 463 U.S. 1062 (1983), that this Court should consider independent and adequate state grounds for holding that the error, if any, in admitting the first confession should be considered harmful per se. See Note, Arizona v. Fulminante: Should Arkansas Courts Apply Harmless Error Analysis to Coerced Confessions, 45 Ark. L. Rev. 995 (1983).

Certainly there was no argument presented to the Trial Court suggesting that Mr. Isbell was forced to testify because his earlier statement was admitted, nor is that argued here. We assume his testimony was given to emphasize his contention that he did not consciously pull the trigger and that the officer who testified about his pretrial statement was not being truthful when he pointed out that Mr. Isbell did not seem to be upset. Apparently the decision to testify and give a “judicial confession” was solely that of Mr. Isbell and his counsel.

2. Gunshot-residue testimony

The State presented the testimony of Gary Lawrence, of the Trace Evidence Section of the Arkansas State Crime Laboratory. Mr. Lawrence testified as an expert that a gunshot-residue kit containing a swab used to test Mr. Isbell showed gunshot residue on both Mr. Isbell’s hands. Counsel objected to the testimony because the test had been administered without the use of control swabs, and Mr. Lawrence’s report stated it was incomplete and thus its result severely jeopardized.

After hearing the arguments of counsel, the Trial Court correctly admitted the evidence, having concluded the objection would go to weight to be given to Mr. Lawrence’s testimony rather than its admissibility. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995); Redman v. St. Louis S.W. Ry. Co., 316 Ark. 636, 873 S.W.2d 542 (1994). In view of our ruling on Mr. Isbell’s statement, including his admission of having shot the victim, any error in admitting the gunshot-residue testimony would have been harmless.

3. Failure to provide witness statement

Jevon Buder, a friend of Mr. Isbell, testified about two conversations between them. The first conversation occurred prior to the commission of the crime. Information about that conversation was provided to the defense in the form of Mr. Butler’s written statement given to the police on the day the crime occurred. Mr. Butler said Mr. Isbell and Mr. Lammers discussed with him their plan to commit crimes and run away. On the witness stand, he spoke of what “they,” referring to Isbell and Lammers, told him. Counsel for Mr. Isbell objected, contending that any statement as to what Mr. Lammers had said was hearsay because Mr. Lammers was not present and testifying at the trial and thus subject to cross-examination. In response, the Prosecutor refined the questions to assure that the testimony related only statements made by Mr. Isbell. In effect, the objection was sustained.

Mr. Butler also testified about a conversation during a telephone call made to him by Mr. Isbell from jail. He said Mr. Isbell told him in that conversation that he had kicked Ms. Wallace in the head as her head lay on the counter after the shooting. The argument on appeal is that the State violated its obligation, provided in Ark. R. Crim. P. 19.7, to inform the defense about Mr. Butler’s oral statement.

When the testimony was presented, counsel for the defense merely said “objection.” The Prosecutor responded that he did not know of any basis for the objection other than that the defense did not want to hear the evidence. The Court said “overruled,” and counsel did not mention a ground of objection or any authority for it. The Trial Court was thus not informed as to the nature of the objection. Absent a specific objection informing the Trial Court of the nature of the error alleged on appeal, we do not reverse. Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995).

4. Surprise rebuttal witness

After Mr. Isbell testified and the defense rested its case, the Prosecutor announced he wanted to present two witnesses of whose testimony he had learned the previous evening at the jail. Both were to testify about statements Mr. Isbell had made while in jail. The first witness was a police officer, and the Trial Court disallowed his testimony on the ground that the knowledge of the officer was imputed to the prosecution and should have been provided earlier to the defense.

The second witness was Fate Childress, an inmate in the jail. Defense Counsel objected on the ground that he could have been informed by the Prosecutor the night before or earlier in the trial about Mr. Childress’s prospective testimony. The Prosecutor responded that he had assumed Mr. Isbell would not testify and that Mr. Childress was a rebuttal witness who would rebut Mr. Isbell’s testimony about being “shaken” by the crime and sorry that it had happened. It would, he said, also rebut Mr. Isbell’s statement that an investigator “lied” when he said Mr. Isbell did not seem to be upset about the crime on the day it occurred and he was taken into custody.

The objection was overruled, but court was recessed a short time to allow Defense Counsel to confer with the witness. When he returned to the courtroom, Defense Counsel renewed his objection. He pointed out that Mr. Childress would testify about what Mr. Isbell had said in the presence of Mr. Childress and seven or eight other prisoners and Defense Counsel could not possibly interview them all in the middle of the trial to learn what the other prisoners may have heard.

Mr. Childress testified (as abstracted, omitting record page references):

Mr. Isbell came in and was telling us about how he went in after the money. He said the bitch was moving too slow and after she got up to the counter he said I just pulled — shot her and let her know that I wasn’t playing. He said you should have seen the glasses fly from her face. He acted like nothing had happened. He just said you know “The bitch deserved to die.” All of us was standing around there, yes sir.

Obviously, the Rules of Criminal Procedure do not require the State to provide the defense with the names of rebuttal witnesses because until the defense case has been presented the State cannot know of witnesses needed for rebuttal. Wainright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). The argument here is that the State did not tell the defense about the oral statement of Mr. Isbell to Mr. Childress as it was required to do pursuant to Ark. R. Crim. P. 17.1(a)(ii) which requires disclosure by the prosecution to the defense of “any oral statements” made by the defendant. Although we have some doubt whether the Trial Court was informed of this argument with respect to Mr. Childress’s statement, we will address the issue on its merits.

The only specific case authority cited on this point by Mr. Isbell is Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), in which a ground upon which we reversed the conviction was the failure to disclose rebuttal testimony of which the Prosecutor purportedly learned only minutes before it was presented. There we referred to Ark. R. Crim. P. 19.2, which requires the prosecution to notify the court and opposing party of information discovered during the trial if disclosure of it is required by the Rules. In the Bennett case, no such disclosure was made, and the witness’s testimony was a complete surprise to the Trial Court and to the defense. In this case there was disclosure, albeit later than the defense would have liked, in accordance with Rule 19.2, and the Trial Court was thus permitted to consider whether it was proper rebuttal or not.

If the prosecution had known during its case-in-chief of the evidence to be presented by Mr. Childress, it might properly have been presented then, but that does not mean the evidence was not proper for rebuttal. In Pyle v. State, 314 Ark. 165, 862 S.W.2d 821 (1992), we said rebuttal evidence may overlap the State’s casein-chief. It must, however, be responsive to the defense evidence. In Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986), we disallowed evidence presented as rebuttal because the prosecution had elicited on cross-examination the evidence it then sought to rebut. We pointed out that it is within the Trial Court’s discretion to decide the propriety of evidence offered in rebuttal. See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996): Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995). There was no abuse of discretion in this instance.

5. Judicial confession

In response to all four of the points argued by Mr. Isbell and discussed above, the State’s brief responds only that there can be no prejudice resulting from any of the errors alleged in view of Mr. Isbell’s “judicial confession.” We agree, as noted above, that Mr. Isbell’s testimony admitted every element of capital-felony murder. The only arguable exception might be a lack of evidence that he caused the death “under circumstances manifesting extreme indifference to the value of human life.” That element is provided by the mere fact of pointing a loaded gun at the deceased in the course of a robbery, whether or not there was an intent to shoot. See Davis v. State, 325 Ark. 96, 925 S.W.2d 402 (1996).

The only case from this Court cited by the State for the proposition that the judicial confession cured the alleged errors is Towe v. State, 304 Ark. 239, 801 S.W.2d 42 (1990). In the Towe case we agreed, in an obiter dictum, with the decision of our Court of Appeals in Pool v. State, 29 Ark. App. 234, 780 S.W.2d 350 (1989). There the Court of Appeals declined an invitation to throw out a judicial confession on the ground that it had been induced by the presentation of physical evidence which should have been suppressed.

Beginning with Hays v. State, 268 Ark. 701, 597 S.W.2d 821 (Ark. App. 1980), in which it was said that evidence rules could be “relaxed” when a defendant had confessed in open court, our Court of Appeals has developed a line of cases dealing with the effect of judicial confessions. Perhaps the strongest statement came in Barlow v. State, 28 Ark. App. 21, 770 S.W.2d 186 (1989), in which it was said that “allegedly improper evidence was of no consequence to the appellant and not prejudicial.” That may be so when the evidence has to do solely with the elements of the crime and whether they were committed. In a case, however, where the evidence alleged to have been received in error may have further consequences, such as influencing the jury with respect to the sentence to be received, prejudice may occur.

While it may be said in the case now before us that there was no possibility of prejudice from, for example, the testimony of Mr. Childress as the jury imposed the lesser of the only two possible sentences, we remain unwilling to make a statement that a judicial confession universally cures trial error. We have thus addressed the merits of the issues even though the State declined to do so.

6. Other errors

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

Affirmed.

Glaze, J., concurs solely because the errors submitted by appellant on appeal are harmless in view of his judicial confession during his case-in-chief.


source: Caselaw Access Project

author: DAVID Newbern, Justice.

license: Public Domain

text:
    James Edward REED v. STATE of Arkansas
    CR 96-310
    929 S.W.2d 703
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Jon A. Williams, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

James Edward Reed was convicted of two counts of burglary, two counts of theft, and one count of arson. All of the offenses alleged occurred on a day when Mr. Reed, Eric Thul, and Scotty Lewis skipped school, did not have enough money to spend their holiday as they wished, and decided to burglarize houses as they rode about in an automobile. Mr. Reed was tried jointly with Eric Thul. Mr. Reed’s sole point of appeal concerns the Trial Court’s refusal to give a non-AMCI instruction to the jury concerning accomplice responsibility. The refused instruction was proffered by Mr. Thul, and the proffer was joined by Mr. Reed who asked that the instruction apply to him as well. We hold that the Trial Court properly declined the proffered instruction in favor of AMCI 2d 401.

The evidence showed that the three young men burglarized several homes including that of Mr. and Mrs. Orin Tritch. The Tritch home was set afire. Mr. Thul testified he saw Mr. Reed set fire to curtains and a sofa cushion there. He also testified that Mr. Reed asked him if they should burn the house and Mr. Reed later indicated regret for having done so. Mr. Reed testified he only stood on the Tritch porch and served as a “lookout.” Scotty Lewis corroborated Mr. Reed’s testimony that Reed remained on the porch, and he further testified that when Mr. Thul emerged from the Tritch home he said, “Let’s go, it’s getting hot.” Testimony from others indicated that Mr. Thul admitted to setting the fire without Reed or Lewis knowing about it.

The instruction proffered by Mr. Thul and joined by Mr. Reed stated as follows:

An accomplice is criminally responsible for the acts of others only to the extent he has a shared criminal purpose with the others. If you ultimately find that Eric Thul [James Edward Reed] was an accomplice, you may find him guilty only of a crime you determine he had a conscious object to engage in, or a conscious object to cause such a result.

In proffering the instruction, Mr. Thul’s counsel stated it was based upon this Court’s decision in Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993).

In the Fight case, Louis Fight was convicted of manslaughter, leaving the scene of an accident, and aggravated assault resulting from his having been a passenger in an automobile driven by another person in such a manner as to have committed those offenses. The evidence against Mr. Fight was that he was present at the scene when the crimes were committed and that he had supplied the errant driver with a marijuana cigarette sometime prior to the tragic events. We held the evidence insufficient to prove that Mr. Fight was an accomplice to the driver as the term “accomplice” is defined in Ark. Code Ann. § 5-2-403(a) or (b) (Repl. 1993).

Section 5-2-403 is as follows:

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

The instruction on accomplice responsibility given by the Trial Court was AMCI 2d 401, which, as adapted to the facts of this case, stated as follows:

In this case the State does not contend that Eric Paul Thul and James Edward Reed acted alone in the commission of the offenses of two counts of burglary, two counts of theft, and one count of arson. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense. An accomplice is one who with the purpose of promoting or facilitating the commission of an offense solicits, advises, encourages or coerces the other person to commit the offense, or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense.
Purpose is defined as a person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature, or to cause such a result.

Arson is defined, in relevant part, in Ark. Code Ann. § 5-38-301 (Repl. 1993) as follows: “(a) A person commits arson if he starts a fire ... with the purpose of destroying or otherwise damaging: (1) An occupiable structure ...”

Mr. Reed’s argument is that the proffered instruction should have been given because the State, in order to convict Mr. Reed as an accomplice to arson, was required to show that it was Mr. Reed’s “conscious object” to commit arson. We considered, and rejected, a similar proffered instruction in Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Mr. Misskelley asked the Trial Court to instruct the jury that it could not convict him as an accomplice to murder unless it determined that it was his “conscious object” to commit murder. Mr. Misskelley, as Mr. Reed in the case at bar, claimed this instruction was based on our decision in Fight v. State, supra. Over Mr. Misskelley’s objection, the Trial Court gave an accomplice instruction based on AMCI 401, and we affirmed.

As we stated in the Misskelley case, “[i]f an AJVLCI is available on the subject, a non-AMCI instruction should not be used unless the AMCI does not state the law.” 323 Ark. at 477, 915 S.W.2d at 717. We concluded that AMCI 401 is a proper statement of the law because it accurately tracks the language of our accomplice statute at § 5-2-403(a).

In the Misskelley case, we rejected the argument that the State, to sustain its accomplice-liability count, was required to prove that it was Mr. Misskelley’s “conscious object” to commit murder. Likewise, we reject today Mr. Reed’s argument that the State had to show that it was his “conscious object” to commit arson. Section 403(a) permitted the jury to impose accomplice liability on Mr. Reed if the State merely showed that he aided Mr. Thul “with the purpose of... facilitating the commission of” arson. The instruction given by the Trial Court said exacdy that.

Affirmed.


author: DONALD L. Corbin, Justice.

text:
    James CUPPLES v. STATE of Arkansas
    CR 96-339
    929 S.W.2d 150
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Dennis R. Molock, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant, James Cupples, appeals the order of the Arkansas County Circuit Court convicting him of two counts of rape and one count of sexual abuse. Appellant was tried by the court and sentenced to consecutive prison terms, respectively, of thirty-three years, thirty-three years, and four and one-half years. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant’s sole point for reversal of the judgment concerns the denial of his motion to dismiss based on an alleged violation of his right to a speedy trial. We find no merit and affirm.

It is not disputed that charges were filed against Appellant on May 24, 1994, and that according to A.R.Cr.P. Rule 28.1(a), he should have been tried within twelve months “excluding only such periods of necessary delay as are authorized in Rule 28.3.” The dispute is over excludable periods. Appellant was tried on June 19, 1995, which is twenty-six days beyond the twelvemonth constraint of Rule 28.1. Thus, Appellant established a prima facie case that a speedy-trial violation occurred, and the burden shifted to the State to show that the delay was the result of Appellant’s conduct or otherwise legally justified. Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996).

The trial court ruled that there were any number of excludable periods including Appellant’s delay in hiring counsel, his filing of a motion to suppress evidence, and his waiver and then withdrawal of his right to a jury trial. On appeal, the State contends any one of these three delays is sufficient alone to constitute an excludable period.

The State contends that Appellant’s withdrawal of his waiver of the right to a jury trial resulted in an excludable period under either Rule 28.3(a) as a “period of delay resulting from other proceedings concerning the defendant,” or Rule 28.3(c) as a “period of delay resulting from a continuance granted at the request of the defendant or his counsel.” The docket contains numerous entries concerning Appellant’s waiver of jury-trial right. These entries indicate the case was first set for jury trial, then nonjury trial, then jury trial, and then nonjury trial. These entries are without explanation. Because these docket entries do not expressly state that Appellant ever reasserted his right to be tried by a jury, he contends any time relating to this issue should not be charged against him. The State responds by relying on a letter from the trial court to Appellant’s counsel, which was filed on November 7, 1994, resetting the case for jury trial at the defendant’s request for December 20, 1994. The law is well established that if a defendant discovers a docket error that affects his speedy-trial rights, or if a defendant takes exception to the wording of an order, it is his burden to bring the matter to the trial court’s attention or to affirmatively request trial. E.g., Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981).

In this case, not only does the trial court’s letter, which was filed of record, state that the trial date was reset at Appellant’s request, but the corresponding docket entry of November 7, 1994, also states that the jury-trial date was reset for December 20, 1994, at Appellant’s request. The record in this case does not reveal that Appellant objected to either the docket entry or the letter. Thus, consistent with Clements and Anderson, we conclude that, having waited until after his speedy-trial time has expired, Appellant did not timely call his objection to the trial court’s attention. Accordingly, the period from November 7, 1994, to December 20, 1994, constitutes an excludable period.

Because the period from November 7, 1994, to December 20, 1994, is excludable from the twelve-month period ending May 24, 1995, we conclude Appellant was timely tried on June 19, 1995, and that the trial court did not err in denying the motion to dismiss. Accordingly, we need not address the remaining arguments concerning Appellant’s delay in hiring counsel and the filing of the motion to suppress.

The judgment of conviction is affirmed.


author: Donald L. Corbin, Justice. Robert H. Dudley, Justice,

text:
    Dashujuahn DANZIE v. STATE of Arkansas
    CR 95-1309
    930 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Janet L. Thornton, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Dashujuahn Danzie, was convicted of capital murder for the death of Loice M. Houser and was sentenced by the Union County Circuit Court to life imprisonment in the Arkansas Department of Correction without the possibility of parole. This court has jurisdiction over the appeal pursuant to Ark. Sup. Ct. R. l-2(a)(2). On appeal, Danzie challenges the sufficiency of the evidence presented at trial, the composition of the petit jury and jury venire, and the trial court’s denial of the use of expanded juror questionnaires. We find no merit to any of these arguments and affirm the judgment of conviction.

On October 27, 1994, the body of Loice M. Houser was found lying facedown in a ditch full of water, alongside a Union County road near Huttig, Arkansas. There was a cut above the victim’s left eye, and the victim’s left pants pocket was turned inside out and empty. The victim’s pickup truck was found in the ditch near the body, in gear with the motor still running. Appellant’s thumb print was discovered on the quarter panel of the truck, immediately behind the left door. Two witnesses observed Appellant near the scene of the crime around the time of death.

Appellant admitted that he had been at the crime scene and had looked inside the truck, but denied seeing the victim’s body lying in the ditch nearby. In contrast, the two men who discovered the body stated that, upon walking near the truck, they immediately noticed the victim’s body in the ditch. Officers later learned that the victim had approximately $275.00 cash in his possession shortly before he was killed. Upon his arrest, Appellant had approximately $216.00 cash. Appellant was charged with capital murder pursuant to the felony-murder provision, and the State sought the death penalty at trial.

I. SUFFICIENCY OF THE EVIDENCE

Appellant argues there was insufficient evidence presented at trial to demonstrate either that the victim died as the result of a criminal act or that he caused the victim’s death. We do not reach this argument as Appellant did not properly preserve the issue for appeal. At the close of the State’s case, Appellant made a motion for directed verdict on the grounds that there was insufficient evidence to prove that the victim died as a result of a homicide and that Appellant in any way caused the victim’s death. The court denied Appellant’s motion. Appellant renewed his motion at the close of all the evidence; however, he did not obtain a ruling from the court. His failure to obtain a ruling on the renewed motion is fatal.

This court has held numerous times that the burden of obtaining a ruling is on the movant, and objections and questions left unresolved are waived and may not be relied upon on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). In Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992), a case very similar to this one, the appellant moved for a directed verdict at the close of the State’s case, and the motion was denied. Donald renewed his motion at the close of all the evidence, as required by Ark. R. Crim. P. 36.21(b), but he failed to obtain a ruling from the court. In that decision, we held that, “the burden of obtaining a ruling is on the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal.” Id. at 198, 833 S.W.2d at 771 (citations omitted). Because Appellant failed to obtain a ruling from the court on his renewed motion for directed verdict, he has not preserved the issue of sufficiency of the evidence for appeal.

II. EXPANDED JUROR QUESTIONNAIRES

Appellant next argues that the trial court erred in refusing his request to provide jurors with an expanded questionnaire. Appellant reasons that because the trial court refused to allow the use of such questionnaires, and because the trial court later cut short Appellant’s voir dire examination, he was denied a fair trial. Appellant’s argument fails on both grounds.

In the first instance, Appellant is incorrect in his assertion that the trial court interrupted his counsel during voir dire because counsel’s examination of the potential jurors was too lengthy. The record clearly reflects that the only time counsel was “interrupted” was when the State made an objection to the form of a question being asked by Appellant’s counsel. In ruling on the objection, the trial court admonished counsel about asking improper questions and questions that had already been asked. The trial court further informed counsel that the court would interrupt her if she continued to ask improper or repeated questions. We are not at all persuaded that the trial court’s actions restricted Appellant’s voir dire examination. Moreover, Appellant has not demonstrated how he was prejudiced by this admonishment.

Similarly, we are not persuaded that the trial court erred in refusing to allow the use of expanded pretrial juror questionnaires. Appellant’s argument in support of the use of expanded juror questionnaires is correlative to that normally relied upon in support of a motion for individually sequestered voir dire. Appellant argues that in cases of capital murder where the death penalty is sought, jurors will undoubtedly be questioned extensively about their positions on the death penalty. Appellant further argues that in this particular case there were also concerns about the jurors’ feelings of racial bias or prejudice, as Appellant is a black man and the victim was a white man. Appellant asserts that because feelings about the death penalty and race are strong and personal, jurors would feel more comfortable answering questions about them privately. Appellant further reasons that if jurors feel more comfortable they will be more truthful and forthcoming in their answers.

Appellant made his motion for expanded juror questionnaires during a pretrial hearing. The trial court initially denied Appellant’s motion, reasoning that it was the court’s experience that jurors felt more comfortable as a group fielding attorneys’ questions and listening to responses from other jurors than they did being examined individually. The trial court did, however, state that it may reconsider the ruling once Appellant submitted a sample questionnaire. Appellant did submit a sample questionnaire, but he did not obtain the trial court’s ruling on the issue. The State argues that Appellant’s failure to ultimately obtain a ruling on the issue bars his argument on appeal. We believe, for purposes of this appeal, that the trial court’s initial denial was a final ruling, and as such, sufficiently preserves this issue for appeal.

The State additionally argues that this issue is nonetheless procedurally barred because Appellant failed to abstract the proposed juror questionnaire submitted to the trial court. Our recent case law does not, however, support the State’s position. In Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995), we held that the appellant’s failure to abstract that portion of the record revealing the terms of his motion for directed verdict did not preclude this court from reviewing the issue on appeal. We concluded that, “[w]e would not address this point of appeal but for our Rule 4-3 (h) which requires that we examine the record of trial in life imprisonment cases and review all errors prejudicial to the appellant.” Id. at 524, 905 S.W.2d at 839. Likewise, in Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996), we held that for cautionary reasons, pursuant to Rule 4-3(h), we would address appellant’s challenge to the trial court’s refusal to give a jury instruction even though the appellant failed to abstract the instruction given, as the case involved a sentence of life imprisonment. In the case at hand, the omission from the abstract of the proposed questionnaire does not inhibit our inquiry, as we are convinced that the decision to allow the use of expanded juror questionnaires lies within the sound discretion of the trial court.

Arkansas Rule of Criminal Procedure 32.1 provides:

The circuit court shall require members of petit jury panels to complete written questionnaires setting forth the following information:
(i) age;
(ii) marital status;
(iii) extent of education;
(iv) occupation of juror and spouse; and
(v) prior jury service.
Upon request, such questionnaires shall be made available by the clerk of the court to the defendant or his counsel and the prosecuting attorney. Upon a showing of good cause, additional information may be furnished regarding jurors by order of the court.

Rule 32.2 provides for voir dire examination of potential jurors and specifically grants the trial judge the power to “permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.” (Emphasis added.) We have consistently interpreted that Rule as providing trial judges with wide latitude in conducting and monitoring voir dire. In Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992), we held that the extent and scope of voir dire is generally within the sound discretion of the trial court, and that we will not reverse absent a clear abuse of this discretion. See also Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991); Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989). Furthermore, in Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983), we held that sequestration of the jury for purposes of voir dire is also within the discretion of the trial court.

We are convinced that Rule 32.2 is controlling of this issue since the concept of expanded juror questionnaires is merely a written form of voir dire examination, and as such, the decision to deny Appellant’s motion was well within the trial court’s discretion. We are further satisfied that Appellant was given ample opportunity to thoroughly examine potential jurors during voir dire. Because the trial court’s ruling was discretionary, and because Appellant has failed to demonstrate that he was prejudiced or that the trial court abused its discretion, we affirm the trial court’s ruling.

IU. MOTION TO QUASH JURY

Appellant’s final argument is that the trial court erred in denying his motion to quash the petit jury and the jury venire on the grounds that blacks were systematically excluded from jury participation. Appellant argues that the Arkansas system of using voter-registration records to summon potential jurors results in the deprivation of a fair cross-section of the community, depriving an accused of a trial by a jury of his peers. Appellant acknowledges in his brief that this court’s previous rulings have consistently upheld our system of selecting potential jurors, but he urges us to abandon those holdings and declare the system unconstitutional. This we are unwilling to do.

The selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. Taylor v. Louisiana, 419 U.S. 522 (1975). There is no requirement, however, that the petit jury actually seated in a defendant’s case mirror the community and reflect the various distinctive groups in the population. Id; Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989). Appellant puts much emphasis on the fact that, although there were blacks on the jury venire, there were none seated on his petit jury. Appellant urges this court to conclude that this demonstrates a systematic exclusion of black jurors. Our case law does not support this position. In Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983), we held that, “[mjerely because no member of a party’s race is on a jury is not in itself cause to quash a jury.” Id. at 202, 650 S.W.2d at 235 (1983) (citing Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977)). Further, in Mitchell, we stated that the mere fact that there were no black persons on the jury panel from which Mitchell’s jury was selected did not mean the jury was selected in a way that would not result in a fair cross-section of the community. Thus, the fact that no black jurors were seated in Appellant’s case is of little significance, provided that potential jurors were selected in a nondiscriminatory way.

Pursuant to the Equal Protection Clause of the United States Constitution, a defendant in a criminal case is entitled to require that the State not deliberately or systematically deny to members of his race the right to participate, as jurors, in the administration of justice. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989); Waters v. State, 271 Ark. 33, 607 S.W.2d 336 (1980). Nevertheless, the Equal Protection Clause is not violated unless the State has engaged in the purposeful or deliberate denial to blacks, on the bases of their race, of participation in the administration of justice by selection for jury service. Sanders, 300 Ark. 25, 776 S.W.2d 334. Correspondingly, it is well established that the appellant carries the burden of proving the systematic exclusion of black jurors from the venire. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993).

The United States Supreme Court set the standard for such cases in Duren v. Missouri, 439 U.S. 357 (1979), and this court has adhered to that standard. See, e.g., Walker, 314 Ark. 628, 864 S.W.2d 230; Sanders, 300 Ark. 25, 776 S.W.2d 334. In Duren, the Court stated that in order to establish a prima facie violation of the fair-cross-section requirement of the Sixth Amendment, an appellant must show the following: (1) The group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren, 439 U.S. at 364. Once the appellant makes a prima facie showing of racial discrimination in the jury-selection process, the burden shifts to the State to justify its procedure. Sanders, 300 Ark. 25, 776 S.W.2d 334.

In the case at hand, the first prong of the Duren test is clearly met, as blacks represent a distinctive group in the community. As for the second prong of the test, Appellant has failed to offer any proof, other than counsel’s conflicting assertions before the trial court and several judicially noticed facts concerning the composition of the population and the number of registered voters in Union County. Appellant has not provided this court with any credible evidence as to the composition of the jury venire called in his case, let alone the entire jury pool or master list from which each venire is chosen.

The test provided in Duren requires a fair and reasonable representation of the distinctive group in every venire from which juries are selected, not just the particular venire summoned at a defendant’s trial. 439 U.S. at 364-66. Without such data, we are left to speculate as to the number of blacks on every jury venire in Union County, and we decline to do so. Lastly, Appellant has produced no evidence which demonstrates that the alleged under-representation of blacks is due to a systematic exclusion in the jury-selection system itself. To the contrary, Appellant argues that it is the nature of the charge of capital murder and the fact that the death penalty is an available punishment that systematically excludes blacks from jury participation.

Appellant argues that black persons as a group are more inclined to oppose the death penalty than white persons. Appellant did not provide the trial court, nor does he provide this court, with any evidence or data in support of this argument; he merely points to the fact that each black person called during voir dire was not seated on the petit jury due to concerns about the death penalty. During voir dire, eight blacks were selected to participate in the examination process, seven of which were ultimately excused for cause (without objection from Appellant) because of their inability to consider the death penalty as a punishment. The remaining black person was peremptorily struck by the State because she expressed some hesitancy to impose the death penalty. Appellant made a Batson challenge to the juror struck; however, the trial court was convinced that the State had struck the juror for racially neutral reasons concerning her personal opposition to the death penalty.

Excusing jurors because of their refusal to consider the death penalty in capital cases is not evidence of systematic exclusion of a distinctive group in the community. The United States Supreme Court held:

“Death qualification,” unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the State’s concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.”

Lockhart v. McCree, 476 U.S. 162, 175-76 (1986). Thus, even had Appellant provided this court with persuasive authority that blacks as a group more often refuse to impose the death penalty in capital cases, we would nonetheless affirm the trial court’s ruling because of the State’s legitimate interest in seating only those jurors who can follow the provisions of the law, including the consideration of imposition of the death penalty. Appellant has failed to meet his burden of demonstrating that his constitutional rights were violated, and therefore, we conclude the trial court did not err in refusing to quash Appellant’s jury.

We have further reviewed the record in accordance with Ark. Sup. Ct. R. 4-3 (h), and we have found no errors with respect to rulings on objections or motions adverse to Appellant.

Affirmed.

Dudley, Brown, and Roaf, JJ., concur.

Robert H. Dudley, Justice,

concurring. I concur in affirming the trial court, but would reach appellant’s argument involving the sufficiency of the evidence. Appellant made a specific motion for a directed verdict at the close of the State’s case. The trial court denied the motion. Appellant renewed his motion at the close of all of the evidence, but the trial court did not announce a ruling. Rather, the trial court charged the jury. The majority opinion cites valid precedent for its holding that appellant failed to obtain a ruling on the motion and, as a result, did not preserve the issue of sufficiency of the evidence.

I have no disagreement with the well-established rule that the failure to obtain a ruling constitutes a waiver of an issue, but it does not seem appropriate to apply the rule under the facts of this case. When a lawyer renews a motion for a directed verdict at the close of all the evidence and the trial judge turns away from him, faces the jury, and begins to instruct the jury, the trial judge has denied the motion by his actions.

The real difficulty with the holding of the majority opinion and its precedent is that it applies to all cases, civil as well as criminal. Consequently, in all cases when a trial judge does not make a ruling aloud but rather begins the charge to the jury, it is necessary for the attorney who made the motion to immediately interrupt the charge to the jury and obtain a ruling aloud. Motions for directed verdict have traditionally been made and ruled upon outside the hearing of the jury; now, the interruption must necessarily take place in front of the jury with prejudice possibly resulting to the movant.

For this reason, I would hold that the trial judge denied the motion when he said nothing, but began to charge the jury. Even so, the result of this case would be the same, for there was more than sufficient evidence to prove that appellant was guilty of capital murder.

BROWN and Roaf, JJ., join in this concurrence.

       The abstract reflects that during voir dire, appellant’s counsel first stated to the trial court that there were fifteen blacks on the jury panel, and at a later time, counsel stated that there were thirteen blacks on the panel.

       Pursuant to appellant’s motion, the trial court took judicial notice of the following: (1) Union County has a population of 46,719, of which 33,905 are over age eighteen; (2) Union County has 23,070 registered voters; (3) thirty-two percent of the population of Union County who would be eligible to register to vote have not done so; (4) Union County has 14,061 black residents; and (5) thirty percent of Union County’s population is black.


author: ROBERT L. Brown, Justice. Glaze, JJ.,

text:
    Bennie Lamar CLEVELAND v. STATE of Arkansas
    CR 96-186
    930 S.W.2d 316
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Alvin Schay, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Neuman, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

This is the third time that we have considered matters relating to appellant Bennie Lamar Cleveland’s crimes committed on December 29, 1991. We first affirmed the judgments against Cleveland for capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property. See Cleveland v. State, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292 (1993). The United States Supreme Court, however, vacated our decision and requested that we reconsider the appeal in light of J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419 (1994). We did so and reversed the judgments and remanded the matter for a new trial. See Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994). In July 1995, Cleveland was retried and convicted of first-degree murder, attempted capital murder, and theft of property. He was sentenced to life in prison for first-degree murder, twenty years for attempted capital murder, and five years on the theft-of-property charge, with all sentences to run consecutively. Cleveland now raises one issue on appeal: that the trial court erred in failing to declare a mistrial based on his Batson objection. We hold that there is no basis for reversal, and we affirm.

On December 29, 1991, at approximately 9:00 p.m., Wendall Moten got out of a car driven by Cleveland and entered Cash’s Quick Check, a convenience store in McGehee. Moten later testified that his purpose was to determine whether Paula Easter, who was employed as a cook at Cash’s, was there. Moten returned to the car, informed Cleveland that Easter was in the store, and shortly thereafter, Cleveland entered Cash’s brandishing a loaded .22 caliber pistol. Moten accompanied him armed with a shotgun, which was fired into the wall. Easter, Michelle Nagle, who was a cashier at Cash’s, and a customer named Willard Blackmon were in Cash’s at the time.

Cleveland approached the booth where Easter, Nagle, and Blackmon were talking and said: “I told you that no police could keep me away from you.” By the time the three realized what was happening, he fired a single shot at Michelle Nagle. The bullet entered her right arm and exited into her upper chest, which caused her to die almost immediately. The State’s firearms expert testified that, in his opinion, the shot was fired from a distance of two to four feet.

Willard Blackmon attempted to escape through a door at the rear of Cash’s, but Cleveland prevented this by shooting Blackmon in the back and in the arm. Blackmon testified that he lay silent and still on the floor to feign death and avoid being shot again. He also stated that he saw Cleveland attempting to open the cash register with a key, but that Cleveland failed to do so.

Easter attempted to escape too but did not succeed. She testified that she ran to the kitchen to get hot grease to throw on Cleveland but that the grease was cold. She stated that she threw a trash can at him and then ran and hid in the store’s cooler. Easter came out of the cooler after Cleveland told her that if she did not do so, she would never see her daughter again. Easter, Moten, and Cleveland then left Cash’s and went to the car parked in front of the store. Cleveland returned to the store and came back to the car with Easter’s purse and a metal box from Cash’s that contained money and food stamps. The testimony was unclear as to whether he also returned with a .357 magnum pistol taken from the store.

After leaving Cash’s, the three went to Little Rock, where they stopped for crack cocaine and later checked into a Motel 6. Moten left Easter and Cleveland and did not return. The next morning, Cleveland stole a truck and drove with Easter to Tennessee, Ohio, New York, and New Jersey. They were arrested in New Jersey. Easter told the arresting state trooper that she had been kidnapped. The trooper recovered two .22 caliber pistols from the truck and found Easter in possession of cocaine.

The pair were returned to Arkansas, and Cleveland was charged with capital felony murder or first-degree premeditated murder, attempted capital felony murder or attempted first-degree murder, aggravated robbery, kidnapping, and theft of property. On retrial, after reversal by this court, Cleveland defended himself pro se. He was convicted as set out above and sentenced.

For his sole point on appeal, Cleveland argues that the State violated the mandate of the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), by exercising six peremptory strikes against six black members of the venire. He contends that he made a prima facie showing of racial discrimination injury selection, and that, with the exception of one of the six explanations, the prosecutor’s reasons “could well be characterized as implausible or fantastic.” He concludes that the State did not meet its burden of providing racially neutral explanations.

The State initially emphasizes in its brief: (1) Cleveland is black; (2) the State used only seven of its ten peremptory strikes; (3) the resulting jury consisted of eight black and four white members; and (4) the two alternate jurors were black. The State further argues on appeal that no prima facie case was made and that a prima facie case is a necessary first step for mounting a Batson objection. See Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993). The State’s argument, however, was never made to the trial court. When Cleveland objected to the six peremptory strikes by the prosecutor, the trial court immediately asked the prosecutor for a racially neutral explanation. The prosecutor proceeded to explain his strikes, and the trial court subsequently denied Cleveland’s motion for a mistrial. The prosecutor never argued that a prima facie case was not made, and, thus, the issue was not developed below.

This court addressed this identical point in Prowell v. State, supra, when we stated:

Although the defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge, here, the prosecutor volunteered explanations for the challenges; the trial court made no rulings on whether a prima facie case was made. In Hernandez v. New York, 500 U.S. 352 (1991), the Court stated that once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. Id.; see also Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995).

324 Ark. at 345, 921 S.W.2d at 591. That is what occurred in the instant case. We hold that where no challenge to a prima facie case is waged and where the trial court proceeds to hear the prosecutor’s race-neutral explanations and then denies the Batson motion, the issue of a prima facie showing is moot.

The relevant inquiry then becomes whether the trial court was correct in denying the mistrial motion based on the reas'ons given. Our standard of review in such matters is whether the court’s finding of satisfactory reasons was clearly against the preponderance of the evidence. Prowell v. State, supra; Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). We, therefore, turn to the six challenges and individually examine the reasons given.

The prosecutor stated that he struck Jacqueline Wade because a deputy sheriff with the Desha County Sheriff’s Department had seen her making eye contact and “mouthing words” to Cleveland during voir dire. Though the trial court, the prosecutor, and Cleveland all assumed in their discussions about Batson explanations that members of the venire were initially asked whether they knew Cleveland, this precise question does not appear in the record. Nevertheless, we conclude that this communication between a prospective juror and the defendant provided ample justification for a peremptory strike. The prosecutor challenged Clementine Martin because he had previously charged her with second-degree battery and believed that she was prejudiced against the State. Yvette Anderson was struck because she was seen by the prosecutor “mouthing words” to Cleveland when her group walked by Cleveland’s table in the courtroom. The prosecutor argued that it was appropriate to strike Sharon Pickett because she knew members of Cleveland’s family and the victim’s family. And the prosecutor struck two ministers, Charles Taylor and Donnie Burns. Reverend Taylor was seriously concerned about sitting in judgment of others. Reverend Burns contended that it would be a hardship to serve on the Cleveland jury, vote to convict him, and then counsel other prisoners at the state penitentiary, including Cleveland. We find no fault in the trial court’s acceptance of these reasons as satisfying the requirements of Batson v. Kentucky, supra.

As a final point, this court has noted that one of the best answers to a challenge of racial discrimination is to point to a jury that is comprised of members of the race in question. See Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Tucker v. State, supra. In Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994), we held that the State gave a sufficient racially neutral explanation after noting not only the composition of the jury, which contained black members, but also that the State had not used all of its peremptory strikes. See also Tucker v. State, supra. In the case at bar, the State used only seven of its ten peremptory strikes. When these two elements are combined with the explanations given by the prosecutor at trial, this case must be affirmed.

The record in this case has been examined pursuant to Ark. S. Ct. R. 4-3 (h), and no rulings adverse to Cleveland which constitute prejudicial error have been found.

Affirmed.

Glaze, JJ.,

concurs. I concur. I disagree only with the conclu-

sion that this court on review cannot decide the prima facie issue and, therefore, reach the same result as the trial court, but for a different reason. Newbern, J., joins in this concurrence.


author: ROBERT L. BROWN, Justice.

text:
    Joel Keith TABOR v. STATE of Arkansas
    CR 96-400
    930 S.W.2d 319
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Donald J. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   ROBERT L. BROWN, Justice.

On April 22, 1996, this court granted the State's petition to review the decision of the Arkansas Court of Appeals to remand this case to settle the record. The question before this court is whether a failure to comply strictly with the terms of Arkansas Rule of Criminal Procedure 24.3(b) regarding conditional pleas of guilty divests the appellate courts of jurisdiction. We conclude that it does, and we dismiss this matter for lack of appellate jurisdiction.

In an information filed on April 14, 1994, the State charged appellant Joel Keith Tabor with criminal conspiracy to deliver a controlled substance (marijuana), criminal conspiracy to deliver a controlled substance (cocaine), and delivery of a controlled substance (cocaine). Tabor filed a motion to suppress his statements given to police officers because at the time he was allegedly acting under the direction and immunity of the FBI and the Harrison Police Department. After a hearing on the issue, the trial court denied the motion.

On May 12, 1995, Tabor pled guilty to the offenses charged, and the trial court sentenced him to serve a term of six years. On June 1, 1995, Tabor filed a notice of appeal. The State moved to dismiss the appeal from the guilty plea because Tabor did not reserve his right to appeal under Ark. R. Crim. P. 24.3(b) by filing a signed statement to that effect. The Court of Appeals granted that motion. Tabor thereafter moved to reinstate the appeal on grounds that he had preserved his right to appeal the suppression issue even though he failed to file the appropriate plea statement. Counsel for Tabor and the Deputy Attorney General stipulated to the existence of the plea statement, and the prosecuting attorney filed an affidavit in which he stated that Tabor’s plea was conditioned on his right to appeal any adverse ruling that might be entered on his motion to suppress evidence. The prosecutor further averred that a plea statement, though unsigned and not filed, was used when Tabor pled guilty and that the trial court reporter made a record of this.

The Court of Appeals, in an opinion joined by three judges with two others concurring and four dissenting, remanded the case to the trial court to settle the record concerning the conditional plea of guilty. The Court of Appeals further stated:

The trial court and parties are further directed to ensure that all material portions of the record that pertain to the purported conditional plea of guilty be included in the record, including all orders by the trial court pertaining to appellant’s claim that he entered a conditional plea of guilty. Upon compliance with these directives, the motion for reinstatement of the appeal may be renewed.

The concurring judges agreed that the record should be setded but added that their preference was simply to reinstate the appeal outright because counsel for Tabor and the Attorney General had stipulated to the existence of the conditional plea agreement. The dissenting judges argued that the majority’s course of action was procedurally barred in that Rule 24.3(b) required that the right of review be reserved in writing. In the view of the dissenting judges, the fact that the State and Tabor stipulated to the existence of the plea agreement does not satisfy the requirements of Rule 24.3(b) or confer jurisdiction on the appellate courts.

On March 13, 1996, the Court of Appeals’s decision was handed down. On April 22, 1996, this court granted the State’s petition for review. On May 9, 1996, the Clerk of the Supreme Court received a letter from the Boone County Circuit Clerk with an order from the trial court filed on April 18, 1996. The trial court’s order states in part:

3.
That, pursuant to an agreement between the defense and the State, upon the denial of the defense motion, the Defendant pled guilty to all three counts directly to the Court without any agreement on sentencing, but reserving the right to appeal the Court’s adverse ruling on the motion to suppress.
4.
That on April 17, 1995, the State wrote up a plea statement reflecting the agreement of the parties, including the reservation of the right to appeal in writing; [hjowever because sentencing was postponed no order was entered that day and the plea statement was neither signed nor filed of record.
5.
That on May 12, 1995, the Court formally sentenced the Defendant to twelve years in the Department of Corrections, suspending six years, with six years to be served concurrently on each count; [sentencing was entered upon the standard forms which contain no written reservation of the right appeal.
7.
That the plea statement prepared but not signed or filed should be signed and filed to supplement the record and document the written agreement of the parties on April 17, 1995.

A copy of a plea statement signed by Tabor and dated April 17, 1996, was attached to the April 18, 1996 order and, according to the trial court’s order, made a part of the record in this appeal.

The State contends in its appeal that no appellate court has jurisdiction over the matter because the requirements of Rule 24.3(b) were not followed. The State further argues that the remand by the Court of Appeals to settle the record has no effect on the jurisdictional issue because there is no provision that allows a trial court to cure a jurisdictional defect following a guilty plea after the time for filing the notice of appeal has expired. In response, Tabor complains that the issue is one of fairness and that the denial of his appeal would violate his Sixth Amendment right to effective assistance of counsel.

We turn first to Rule 24.3(b) which reads:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

The law is well setded that a defendant ordinarily does not have a right to appeal a guilty plea except as provided in Rule 24.3(b). See Ark. R. App. P.—Crim. 1; Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994); Eckl v. State, 312 Ark. 544, 851 S.W.2d 428 (1993). Appeals from guilty pleas are typically dismissed for lack of jurisdiction. Scalco v. City of Russellville, supra. Rule 24.3(b) provides the only procedure for an appeal from a guilty plea. Eckl v. State, supra. But if the express terms of Rule 24.3(b) are not complied with, the appellate court acquires no jurisdiction to hear an appeal from a conditional plea. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Scalco v. City of Russellville, supra; Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). Accordingly, this court requires strict compliance with Rule 24.3(b) to convey appellate jurisdiction. Burress v. State, 321 Ark. 329, 902 S.W.2d 225 (1995).

Two analogous cases have addressed whether the requirements of Rule 24.3(b) were met and the effect of noncompliance: Bilderback v. State, supra, and Burress v. State, supra. In Bilderback v. State, this court refused to reach the merits of Bilderback’s suppression issue because the conditional guilty plea was not reserved in writing by the defendant despite the fact that both the trial court and prosecutor had proceeded as if the plea were conditional. Similarly, in Burress v. State, the trial court made reference to “a document entitled Guilty Plea Statement,” but that document was not contained in the record on appeal. This court, as a result, dismissed the appeal for want of jurisdiction.

In the case now before us, there was no contemporaneous writing by Tabor reserving his right to appeal. Hence, Rule 24.3(b) was not strictly followed, and the Court of Appeals obtained no jurisdiction of the matter. Without jurisdiction, the Court of Appeals had no authority to remand the case to the trial court to settle the record. Moreover, the subsequent order by the trial court with the attached signed plea statement by Tabor entered after remand cannot breathe life into a moribund appeal where no jurisdiction originally vested. The appeal must be dismissed for Tabor’s failure to follow the terms of Rule 24.3(b).

Appeal dismissed.


author: Andree Layton Roaf, Justice.

text:
    Alfonzo BROWN v. STATE of Arkansas
    CR 96-432
    931 S.W.2d 80
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Jeffrey A. Weber, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Alfonzo Brown was convicted of first-degree battery, possession of a firearm, aggravated assault, and failure to appear; the jury sentenced Brown as an habitual offender to forty years’, fifteen years’, fifteen years’, and thirty years’ imprisonment, respectively. The trial court ordered that the sentences be served consecutively for a total sentence of 100 years’ imprisonment. Brown’s sole point on appeal is that the decision to run his sentences consecutively was made arbitrarily and without discretion. As Brown did not make this argument to the trial court, we affirm.

On June 2, 1993, David Stewart of the Newport Police Department was shot in the leg. Stewart and other police officers were responding to a report that shots had been fired in the area of the “Bridge Station.” Sergeant Larry Dulaney testified that six or seven shots were fired at his patrol unit. Dulaney said that, after he and Stewart exited their vehicles, three or four shots hit very close to their position. Stewart testified that “you could see gravel kicking up around us.” Ms. Folanda Peel testified that she witnessed Alfonzo Brown shoot Officer Stewart. At trial, Brown denied that he fired any shots; however, in a statement made to the police, Brown admitted that he had a gun and that he was shooting at the officers. Brown said that Richard Williams and Tyrone Ellis were also shooting at the police officers. Brown’s statement was admitted into evidence at trial.

In addition, Investigator James Duvall of the Newport Police Department testified that Brown escaped from custody on April 19, 1994. Brown was captured in California, and he was returned to Arkansas in March of 1995. Finally, James Brock of the Jackson County Sheriff’s Department testified that Brown did not appear for a trial scheduled for July 7, 1994.

On appeal, Brown contends that the trial court failed to exercise discretion in ordering that his sentences run consecutively. Brown argues that the trial court made its decision to “stack” the sentences before the trial began, and that he is consequently entided to a new sentencing hearing before a different judge.

Prior to trial, an in camera hearing was held to discuss a plea offer of twenty years’ imprisonment made by the State. The following colloquy occurred:

Trial Court: I just want to make sure you understand what I’m telling you. You’re charged as an habitual, and that means you’re going to get, if you get convicted, you’re going to get a greater enhancement of time. Have you figured it up. . . .
Prosecuting Attorney: Well, wait. It’s forty years on the battery, it’s fifteen, no, thirty on the aggravated assault, fifteen, let’s see, forty, he’s looking in excess of seventy something years.
Trial Court: Okay, now here’s what I want to tell you now. Listen to me now, Alfonzo. I want you to, I want you to, first of all, I want you to, I want you to trust me that what I’m telling you is true. If they convict you for shooting the chief and shooting at a police officer, which is pretty serious, if they give you everything that they can give you, which they may do, you’re looking at the rest of your life. That’s why I got you in here. This is real serious. You’re looking at a life sentence is what you’re looking at. Alfonzo, you ain’t going to get out if they, if they convict you and give you a bunch of time, give you the maximum, which they can do. I want you to know that, okay?
Now he has offered you twenty years. If they convict you and give you more than twenty years under a jury trial, you’re going to do a whole ton of it because you are an habitual criminal, okay?
* * *
Trial Court: Because, Alfonzo, we’re talking about the rest of your life here, okay? That can happen to you today. All right? Now do you want to talk to your lawyer?
Brown: Yeah.
Trial Court: You really need to think about this real hard, and I know it’s kind of quick but I mean that’s just the way the law works and when it gets down to it, that’s, that’s what happens; and you’re looking at some real hard time and you’re probably not going to be able to get out of the penitentiary if you get convicted for a long, long time. You’re looking at the rest of your life. Certainly the better portion of your life. Okay?

At the conclusion of a short recess, Brown’s attorney informed the trial court that Brown wanted to go to trial. After the verdict was announced, the State moved that the sentences be served consecutively. The following colloquy then occurred:

Attorney for Brown: Your Honor, we would object to that. That’s in essence a life sentence for this, for Mr. Brown. I think it’d be cruel and unusual punishment to give him that much time when there has been no capital offense. . . .
Jury Foreman: We, the jurors, wanted to make a statement that we will not tolerate somebody shooting our police officers.
Trial Court: Well, that’s obvious, Mr. Temple. You don’t have to tell me that. I can just look at the verdict form.
Jury Foreman: Well, a hundred years ain’t enough.
Trial Court: I mean the Court’s not going to take that into consideration but that’s obvious because he got the maximum on everything.
Let me tell you something, Mr. Brown, you’re, you are so vulnerable in many ways. The thing that has troubled me in this case more than anything else was one statement by Officer Dulaney, even more than, even more than the chief of police getting shot, and that was when he said, “When that gravel started popping all around me,” or something to that effect. That just curled the hair on my neck, and for that reason, and other reasons, I’m going to run these sentences consecutive.

Counsel for Brown did not make any further objection.

In order to preserve an argument for appeal there must be an objection in the trial court that is sufficient to apprise that court of the particular error alleged. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). Further, this court will not address arguments raised for the first time on appeal. Id. In this instance, the alleged error should have been called to the attention of the trial court by timely objection or inquiry so that the trial court could be given the opportunity to correct the error. This court has specifically stated that where an appellant did not object to his terms of imprisonment being imposed consecutively, the court would not address the argument on appeal. Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993).

In the instant case, the appellant’s only objection was that consecutive sentences constituted cruel and unusual punishment. A party cannot change the grounds for an objection on appeal; he is bound on appeal by the scope and nature of the objections and arguments presented at trial. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995).

Moreover, even if the point had been preserved, it lacks merit. It is well established that the question of whether sentences should run consecutively or concurrently lies solely within the province of the trial' court. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). Further, the appellant assumes a heavy burden of showing that the trial judge failed to give due consideration to the exercise of his discretion in the matter of the consecutive sentences. Id. Brown contends that, based upon the in camera hearing, the trial court did not exercise discretion because he determined that the sentences would be stacked prior to trial. However, the trial court was simply informing Brown of the possible consequences he faced by refusing to accept the plea offer. Under Ark. R. Crim. P. 24.4(c), before accepting a plea of guilty, a trial judge must address the defendant personally and inform him regarding the maximum possible sentence on the charge, including that possible from consecutive sentences. Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989).

Affirmed.


author: ANDREE LAYTON Roaf, Justice.

text:
    John JONES, Jr. v. STATE of Arkansas
    CR 96-247
    931 S.W.2d 83
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Christopher C. Mercer, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   ANDREE LAYTON Roaf, Justice.

Appellant John Jones, Jr., was sentenced to thirty-six years in prison for aggravated robbery and theft. Jones raises several grounds for appeal, including sufficiency of the evidence and four evidentiary issues. We find no error and affirm.

On the evening of January 26, 1995, Carol Reed was robbed at gunpoint in a Kroger parking lot in Little Rock. The assailant held a gun to Reed’s face, took her purse containing approximately $200, and fled the scene in a white Chevrolet Blazer. Reed was able to give the police a description of her assailant and the clothing he wore.

Jeana Stout, a customer who was sitting in her car approximately 10-20 feet from the scene of the crime, witnessed the robbery and was able to provide the police with a description of the assailant. Roy Biles, the store manager, heard Reed’s screams and came outside the store and into the parking lot just as the assailant was taking Reed’s purse. Biles chased the assailant through the parking lot and saw him enter the white Blazer; he was able to give the police the license plate number of the vehicle.

A few minutes after the robbery, the police located a white Chevy Blazer with the license tag described by Biles parked outside a house on Grant Street. The police took Ms. Reed and Ms. Stout to the Grant Street residence to see if they could identify the assailant. Approximately ten to twenty people were gathered in the front yard of the residence at the time the police arrived with the two witnesses. Both Reed and Stout positively identified Jones as the assailant from the group gathered outside the house. The police arrested Jones and found approximately $457.00 in his pockets.

Jones’s first argument on appeal is that there was insufficient evidence to support his conviction of aggravated robbery and theft. This court has said on numerous occasions that in order to preserve this issue for appeal, motions for a directed verdict must be made at the close of the State’s case-in-chief and again at the close of all the evidence. Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994); Jackson v. State, 316 Ark. 405, 871 S.W.2d 591 (1994); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992). Jones never made a motion for a directed verdict at any point during the trial; consequendy, this issue is waived on appeal.

Jones also contends that it was error for the State to use a gun similar to the weapon used during the robbery as demonstrative evidence in the trial. Jones filed a motion in limine to suppress the use of the gun, and the court reserved ruling on the matter until trial. Later, during the trial, the court held that the gun could not be used by the State as demonstrative evidence. The gun was never used during the trial. Jones received the relief requested, and accordingly he has no basis for appeal. Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995); Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994).

For his third point on appeal, Jones asserts that the out-of-court identification constituted a violation of his right to due process because it was unduly suggestive and was the result of an illegal arrest. At trial, the victim, an eyewitness, and a police officer testified about the out-of-court identification of Jones. Both the victim and the witness identified Jones as the assailant at trial. Jones did not file a motion to suppress the out-of-court identification. At no time during the trial testimony of any of the witnesses did Jones object to the admissibility of the identification evidence. Instead, Jones waited until the close of the State’s case-in-chief to object. The trial court found that the objection was not timely and that, in any event, the “lineup” was not suggestive. Error may not be predicated upon a ruling admitting evidence unless there is a timely objection. Bohannan v. Underwood, 300 Ark. 110, 776 S.W.2d 827 (1989); Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984). To be timely, an objection must be contemporaneous, or nearly so, with the alleged error. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995); Mills v. State, 321 Ark. 621, 906 S.W.2d 674 (1995). The trial court correcdy found that waiting until the close of the State’s case to object to the identification of Jones was not timely.

Jones also asserts that the jury improperly ignored his exculpatory evidence. At trial, Jones and another defense witness testified that Jones was at the house on Grant Street at the time the robbery was committed. In contrast, the victim and an eyewitness unequivocally testified that Jones was the perpetrator of the crime. On appeal, Jones asserts that the jury improperly ignored his exculpatory evidence. It is the sole province of the jury to judge the credibility of the witnesses. Callahan, supra. As such, the jury was free to believe the testimony of the State’s witnesses and to discount that of Jones and his witness.

Jones finally contends that the trial court erred when it excluded portions of Norman Lewis’s testimony because it contained inadmissible hearsay. According to Lewis’s proffered testimony, Ronnie Russell told him that the crime was committed by Michael Daniels while Russell waited in the Blazer. At trial, the defense argued that the testimony was admissible under the “statement against interest” exception to the hearsay rule which requires the proponent to prove that: 1) the declarant is unavailable to testify in court; and 2) the declarant’s statement, at the time it was made, was so contrary to the declarant’s interest that he or she would not have said it unless he believed it to be true. Ark. R. Evid. 804(a) & (b)(3).

Clearly, the second prong of the test was satisfied because Russell implicated himself in his statement, and thus it was a statement against his penal interest. Ark. R. Evid. 804(b)(3); See also, Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995). However, it is the first prong of the test that is at issue in this case. According to the Arkansas Rules of Evidence, a witness is “unavailable” only if he:

is absent from the hearing and the proponent of his statement has been unable to procure ... his attendance or testimony... BY PROCESS or OTHER REASONABLE MEANS.

Ark. R. Evid. 804(a)(5) (emphasis added). The proponent bears the burden of proving the unavailability of the declarant by showing that he or she made a “good-faith effort” to procure the attendance of the missing declarant by use of process, such as a subpoena, or by other reasonable methods. Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993). Mere inquires about the declarant’s whereabouts may not be sufficient. Id. In Register, this court held that “makfing] some phone calls” and speaking to “who I think [was] his family” were not reasonable efforts to locate the defendant. Id.

In this instance, the trial judge asked Jones if the declarant, Ronnie Russell, was available to testify at trial. The following exchange transpired:

DEFENSE COUNSEL: I haven’t been able to find him. Well, hold on, your Honor. It’s possible. There was a Ronnie Russell that may have been on your docket, but I don’t know if it’s the same person.
THE COURT: So, you’re not even saying that his witness is unavailable?
DEFENSE COUNSEL: Well, the people that I’ve spoke to don’t know how to find him.

The trial court found Jones failed in good faith to use “reasonable efforts” to locate Russell. On appeal, we will overrule that decision only if the trial judge abused his or her discretion. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986). Here, we cannot say that the trial court abused its discretion when Jones stated only that he had spoken to some people about Russell and admitted that Russell possibly could have been located. Because Jones failed to show that the declarant was unavailable under Rule 804(a)(5), Norman Lewis’s testimony was properly excluded.

Moreover, Jones testified at the trial that he had seen Russell and Daniels jump out of the Blazer, and that Russell told him that Daniels had committed a robbery. This court has stated that evidentiary error is harmless if the same or similar evidence is otherwise introduced at trial. Williams v. Southwestern Bell Telephone, 319 Ark. 626, 893 S.W.2d 770 (1995); Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990). Thus, the exclusion of Lewis’s testimony, if improper, was at the most harmless error.

On appeal, Jones now argues that Russell’s statement was an “excited utterance” and thus an exception to the hearsay rule. Ark. R. Evid. 803 (2). However, Jones did not make this argument to the trial court, and we have said on numerous occasions that we will not consider an argument for the first time on appeal. Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).

Affirmed.


author: Robert L. Brown, Justice.

text:
    Sandra Lee BOLIN and Nathan A. Bolin v. William L. GRIGGS, M.D., and Robert S. Heusinkveld, M.D.
    95-1286
    928 S.W.2d 339
    Supreme Court of Arkansas
    Opinion delivered September 23. 1996
    Dissenting opinion delivered September 23, 1996
   Robert L. Brown, Justice.

The case involves two identical orders of summary judgment &emdash; one signed by the trial court on May 16, 1995, and filed on that same date, and the second signed by the trial court on May 15, 1995, and filed on May 19, 1995. The Bolins, as appellants, filed their notice of appeal on June 16, 1995, which is timely only if the order filed on May 19, 1995, is valid. On January 16, 1996, we remanded the case for correction of the record for the purpose of having the trial court determine which of the two orders of summary judgment is the valid order. On June 5, 1996, the trial court entered an order which appears to state that both orders are valid.

This court first denied a motion for rule on the clerk on July 8, 1996, on the basis that the notice of appeal was untimely, and now a motion for reconsideration has been filed. I would grant the motion for reconsideration and the motion for rule on the clerk. First, I can find no law that illuminates which order takes priority under these circumstances. Secondly, I perceive no manipulation at work here. This is not a case where an identical order was filed later in order to extend the period of appeal. Rather, here the May 19 order was actually signed by the trial court a day earlier than the May 16 order.

It is entirely reasonable to conclude that when the identical May 19 order was entered, it superseded and took precedence over the order filed three days earlier. Again, we have no case law on this point. If the trial court is unable to give guidance as to which of its orders takes precedence, how is the appellants’ counsel to know? I respectfully dissent.

ROAF, J., joins.


author: PER CURIAM.

text:
    Kim BURGE, Terry Wallace, and Eric Jackson, Individually and On Behalf of the Committee Against the Loss of Arkansas Jobs, and All Others Similarly Situated v. Sharon PRIEST, Secretary of State
    96-1017
    928 S.W.2d 338
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray, Walter

      M. Ebel III, and Jonann Coniglio Roosevelt, for petitioners.

      Ann Purvis, for respondent.
   PER CURIAM.

On Auguest 2, 1996, respondent Sharon Priest, Secretary of State for the State of Arkansas, certified Proposed Amendment 6 bearing the popular name “Amendment to Prohibit Gambling on Contests or Games of Chance and Skill and Specifically Prohibiting Gambling on Horse Racing and Dog Racing” for the ballot for the general election on November 5, 1996. In doing so, the Secretary of State declared that Proposed Amendment 6 satisfied constitutional requirements.

On August 30, 1996, petitioners Kim Burge, Terry Wallace, and Eric Jackson, individually and on behalf of the Committee Against the Loss of Arkansas Jobs, and all others similarly situated (the “Committee”) filed an original-action petition in this court under Amendment 7 of the Arkansas Constitution, challenging the validity of the signatures appearing on the initiative petition and the adequacy of the ballot title of the proposed amendment.

On the same date, August 30, 1996, the Committee filed a motion for an expedited scheduling order, for appointment of a special master, and for leave of the court to take depositions.

On September 6, 1996, the Secretary of State filed a response to the motion for expedited scheduling order in which she stated that the issue was moot, because her September 6, 1996 answer to the original-action petition consented to judgment removing Proposed Amendment 6 from the November 5, 1996 ballot.

On September 9, 1996, a “Stipulation of Parties” was filed by the Secretary of State, the Committee, and the Attorney General, in which it was agreed that 1) Proposed Amendment 6 lacked sufficient signatures to qualify for the ballot, 2) the proponent of the amendment, the Christian Civic Action Committee, had informed the Secretary of State that it could not meet its burden of establishing the authenticity of the signatures, and 3) further litigation of this cause would result in Proposed Amendment 6 being struck from the ballot.

By per curiam order in a related case, Southland Racing Corporation v. Sharon Priest, No. 96-1016, dated September 18, 1996, this court has directed the Secretary of State to remove Proposed Amendment 6 from the November 6, 1996 general election ballot. Entry of this per curiam order on September 18, 1996, has rendered the original-action petition and motion filed by the petitioners herein moot.

Motion and original-action petition dismissed as moot.


author: Per Curiam.

text:
    Monty SCOTT, Bob Wheeler, Bill Goodwin, Eric Jackson, and Bill Walmsley, Individually and On Behalf of the Committee Against Amendment 8, and All Others Similarly Situated v. Sharon PRIEST, Secretary of State of the State of Arkansas
    96-1077
    928 S.W.2d 337
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray and Jonann Coniglio Roosevelt, for petitioners.

      Kaplan, Brewer, & Maxey, P.A., by: Silas Brewer and Phil Kaplan, for respondent.
   Per Curiam.

On September 13, 1996, an original action was filed in this court for an order to invalidate a proposed initiated constitutional amendment offered under Amendment 7 to the Arkansas Constitution; to enjoin placement of the proposed initiated constitutional amendment on the November 5, 1996, general election ballot; and to direct that any votes cast thereon not be counted or certified because the petition contained invalid signatures and other irregularities and because the ballot title is defective.

This original action filed by the parties raises issues of fact. Arkansas Supreme Court Rule 6-5 (b) provides that evidence on issues of fact will be taken by a Master to be appointed by this court. Therefore, we appoint the Honorable Jack Lessenberry as Master and direct him to conduct such proceedings and hearings subject to and in accordance with our Rule 6-5 (a) and RULE 53, Arkansas Rules of Civil Procedure, as are necessary to determine whether the allegations contained in the petition are true and to file his report with this court by October 9, 1996.

We also direct the Master to attend to the parties’ additional motions for the taking of depositions and the establishment of bifurcated briefing schedules and such other matters as are necessary to discharge his duties.

Arkansas Supreme Court Rule 6 — 5(b) provides in pertinent part:

As a condition to the appointment of a master, the Court may require both parties to file a bond for costs to be approved by the Clerk. Upon the filing of the master’s findings, the parties shall file briefs as in other cases.

All costs are to be shared equally between the petitioners and the intervenors, as the respondent, Sharon Priest, Secretary of State, is not subject to payment of costs because of sovereign immunity. Bailey v. McCuen, 319 Ark. 369, 891 S.W.2d 797 (1995) (per curiam). Petitioners and intervenors are directed to file a bond, to be approved by the clerk, to secure payment of costs adjudged against them incurred in taking and transcribing the proof, including the Master’s fee.

In addition, the Master is instructed to work with the Supreme Court Clerk and respective counsel in expediting a briefing schedule so that this court will receive the parties’ briefs in sufficient time to consider the issues and render its decision as to whether or not this measure is to remain on the ballot to be printed for the November 5, 1996, general election.