author: David Newbern, Justice.

text:
    SALINE MEMORIAL HOSPITAL and Terry Whittington as Administrator of Saline Memorial Hospital v. Jackie L. BERRY, as Administrator of the Estate of Toni Berry, Deceased
    95-123
    906 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      Friday, Eldredge & Clark, by: Diane S. Mackey and Gregory D. Taylor, for appellants.

      Patton Law Offices, by: Nicholas H. Patton, for appellee.
   David Newbern, Justice.

The issue in this appeal is whether the Trial Court erred by disqualifying the law firm Friday, Eldridge, and Clark (Friday firm) from representing Saline Memorial Hospital in an action brought pursuant to the Freedom of Information Act (FOIA). Ark. Code Ann. §§ 25-19-101 through 25-19-107 (1992 Repl. and Supp. 1995). The Trial Court held that the Friday firm had a conflict between its interest in representing the hospital in the FOIA litigation and its interest in representing St. Paul Fire and Marine Insurance Company (St. Paul) in other litigation. We hold that, to the extent there was a conflict, it was not of such a nature as to require disqualification in the circumstances presented. We reverse and remand the case to the Trial Court for further proceedings.

Appellee Jackie Berry alleged that the hospital and certain of its employees committed medical malpractice. Pursuant to the law which permits an action to be brought directly against the insurer of a publicly owned hospital, Ark. Code Ann. § 23-79-210 (Repl. 1992), she sued St. Paul. Ms. Berry brought an FOIA action against the hospital and its administrator, Terry Whittington, for the release of certain documents and records. The Friday firm represents St. Paul in defense of Ms. Berry’s malpractice claim and the hospital in defense of Ms. Berry’s FOIA claim.

In her motion to disqualify the Friday firm in the FOIA case, Ms. Berry argued that the hospital and St. Paul had adverse interests. Her contention was that the hospital, as a public institution, had an interest in divulging as much information as possible, but that St. Paul’s concern was directly opposite in that it wished to conceal as much information as possible about hospital procedures and records in its defense of the malpractice claim. During oral argument of this case before us, counsel for Ms. Berry agreed that the real interest contended to be adverse to that of St. Paul was not so much that of the hospital but that of the public.

Ms. Berry’s FOIA request to the hospital was extensive. She listed 20 categories of information, including such items as all records of insurance coverage and claims correspondence, memoranda, investigations, etc., over a three-year period, records of witness statements in the malpractice suit, all records with respect to other lawsuits against the hospital from 1985 onward, records of any meetings concerning the incidents subject to Ms. Berry’s malpractice claim, and records of medical staff meetings over a four-year period.

The hospital’s board of directors held a meeting to discuss and respond to the FOIA request. The directors were advised of a letter from the local prosecutor, apparently acting as attorney for Saline County, the hospital’s parent political entity, to turn over every document requested. The prosecutor informed the directors that failure to do so could result in criminal liability of the directors under the FOIA but that so long as the matter was being litigated they would not be prosecuted.

Also present at the directors’ meeting were representatives of the Friday firm who advised the directors of the importance of confidentiality of patient records. They also pointed out that giving up all the records requested without having the matters determined by a court could threaten the hospital’s accreditation with medical organizations and would cause a risk of increased insurance premiums if not indeed the hospital’s very insurability against malpractice claims. The lawyers discussed with the directors the difference between information subject to discovery under the Arkansas Rules of Civil Procedure and the broader requirements of the FOIA. They said the hospital should turn over anything required by the FOIA but not materials exempted from its coverage. They acknowledged the risks involved in withholding some of the items requested by Ms. Berry. Their recommendation was to seek a protective order from a court with respect to the items considered privileged.

Various directors, including physician members of the board, spoke to the need for confidentiality, especially with respect to hospital peer review programs in which absolute candor in closed discussions was required in an effort to improve the hospital’s performance. One physician said he would refuse to participate in any such program unless it were to remain confidential.

A motion was made “to take the necessary steps to protect those records and documents from disclosure to the extent they are protected by Arkansas law.” The motion passed unanimously.

In its response to the FOIA request, the hospital agreed to release some of the information requested but asserted specific statutory exemptions with respect to some requests, see Ark. Code Ann. §§ 16-46-105(a) (Repl. 1994) and 20-9-503 (Repl. 1991), and the attorney-client and attorney work product privilege as to others. It refused to release medical staff meeting minutes, asserting a specific statutory privilege. As to some items, the hospital refused the requests on the ground that the items were not in its possession but were in the possession of St. Paul or its attorneys.

In response to Ms. Berry’s motion to disqualify the Friday firm, Mr. Whittington submitted an affidavit in which he stated that the hospital’s interest was to protect its quality assurance and peer review programs and that those programs would fail if records were subject to public scrutiny. Upon failure of such programs, he said, the hospital would lose its accreditation, licensure, medicare reimbursement and, likely, its insurability. He stated his interest and that of the hospital to be to keep those events from occurring. He stated further that the interests of the hospital and those of St. Paul were not adverse, but, “If the interests are deemed to be adverse, the hospital and I consent to the representation by the Friday Firm in this matter.”

The primary reference in any modern day disqualification case is to Rule 1.7 of the Model Rules of Professional Conduct which provides:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

1. Adverse interests

One client’s interest is “directly adverse” to that of another client when, according to the comment to Rule 1.7, a lawyer acts as an advocate against a client whom he represents in another matter. That is not the situation in this case. The comment states, “Paragraph (a) prohibits representation of opposing parties in litigation.” Were it not for the hospital’s immunity and our direct-action statute, cited above, the hospital would be the defendant in Ms. Berry’s malpractice claim and presumably St. Paul would be providing its defense. They would have an identity of interests in defending against the claim.

The question thus becomes whether the Friday firm’s representation of the hospital may be “materially limited,” in the words of subsection (b) of the rule, by its representation of St. Paul in Ms. Berry’s malpractice claim. If that is the case, then what of Mr. Whittington’s consent, on behalf of himself and the hospital, and the expression in his affidavit of his desire for such representation?

2. Material limitation

Consent becomes important if we determine there is the sort of material limitation of the Friday firm’s representation of the hospital to which Rule 1.7(b) refers. To determine the extent, if any, of a limitation on the Friday firm’s representation of the hospital’s interest in the FOIA case by virtue of its representation of St. Paul, we must assess and define the hospital’s interest.

The criminal liability which can be incurred by negligently refusing to honor an FOIA request is a misdemeanor fine of “not more than two hundred dollars ($200) or thirty (30) days in jail or both or a sentence of appropriate public service, or both.” § 25-19-104. Costs and other litigation expenses might be assessed against the hospital “unless the court finds that the position of the defendant was substantially justified.” § 25-19-107(d).

No doubt the hospital and its personnel have an interest in not being found guilty of a misdemeanor or assessed costs. The broader, long-range interests of the hospital, however, as expressed by the directors in their vote on the issue and by Mr. Whittington’s affidavit, obviously supersede, in the collective mind of the directors and their administrator, the fear of prosecution and the costs. According to them, the interest of the hospital is in protecting itself by declining to release some of the items requested.

We cannot say that the Friday firm will be “materially limited” in its representation of the hospital’s interest as it is so much the same as that of St. Paul. Obviously, there may be conflicting public interests at stake. The policy of the FOIA in making available to the public information about a publicly owned institution may conflict with the public interest in having a hospital capable of conducting quality assurance and peer review programs in confidence to assure good and improving performance. To the extent the dispute over release of the requested items involves matters not protected by statute or other privilege from disclosure, or in which the hospital may have no legitimate confidentiality interest, the interest to be protected is, again, that of the public in freedom of information. While the hospital and its personnel have, as does any citizen, a duty to follow the FOIA, there is nothing to prevent its following the advice of counsel in weighing that duty against other legal duties it may have. The arbiter who will protect the public’s interest with respect to information as to which there is a dispute is the Trial Court, and the issues are the same as are found in any garden-variety FOIA dispute.

Even if we were to say the Friday firm’s representation of the hospital might be “materially limited” by its relationship with St. Paul, v/e could not justify the disqualification on that basis because the hospital has given its consent to the Friday firm’s representation of it after consultation as provided in Rule 1.7(b)(2). That does not end the matter, however, as Ms. Berry contends, and the Trial Court apparently agreed, that the conflict in this case presents such an appearance of impropriety that it cannot be consented to.

3. Appearance of impropriety

The Trial Court articulated his reason for holding in favor of disqualification as follows:

There could be a very clear conflict there if there were records which under the [FOIA] should be released which could be damaging to [St. Paul] in the [malpractice] case. Then there’s the appearance that the Friday Firm might say, “Wait a minute. We’ll hold these back.” And just that appearance, I think, is enough to disqualify the Friday Firm.

The hospital points out that the concept of appearance of impropriety is not discussed in the Model Rules of Professional Conduct as it was in the predecessor Code of Professional Responsibility. We first recognized that fact in First Am. Carriers, Inc. v. The Kroger Co., 302 Ark. 86, 787 S.W.2d 669 (1990). While the Model Rules, as stated above, furnish guidance in disqualification matters, not all the law of disqualification is found there.

In the First Am. Carriers, Inc., case we based our affirmance of a disqualification holding, in part at least, on the appearance of impropriety arising from a law firm representing a client against a party which had been, although only fleetingly, its client in the same litigation. One lawyer in the firm did not know that another had consulted in a very minimal way with the party which became the firm’s client’s adversary.

We reasserted the appearance-of-impropriety standard forcefully in Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990). There we held an appearance of impropriety was presented when a lawyer switched firms and participated in litigation on behalf of a client against a client for whom he had worked in his former firm on the very case at issue.

In Heathcoat v. Santa Fe Intern. Corp., 532 F.Supp. 961 (E.D. Ark. 1982), a question of disqualification arose with respect to a law firm which represented a client against a woman for whom it had, some 16 years earlier, prepared a will and to whom it had sent a letter more recently advising that the will might be outdated due to tax law changes. The Court found no substantial relationship between the firm’s work with respect to the will and the litigation at hand which had to do with fraud in a sale of stock but then discussed the appearance of impropriety as follows:

The discussion set forth above of Canons 4 and 5 [of the Code of Professional Conduct] clearly illustrate that a “reasonable possibility” of the public’s perceiving some impropriety in the instant situation simply does not exist. When evaluating the public’s view, “we must be careful not to accept the view of the most cynical as the true voice of the public.” . . . Rather, “the Court must consider what it believes would be the view of the average layman.” . . . Considering the average layman’s perception of this case, the Court believes “that such an individual would not be troubled by the current posture of the parties and counsel in this suit.” ....
Further, due consideration must also be given to a client’s interest in retaining the counsel of his choice, an interest which the courts have not regarded as insignificant. ... In the present case, since the defendants have expressed great interest in retaining the services of their challenged counsel, and since the alleged conflicts of interest are more technical than real, the Court concludes Canon 9 does not mandate the disqualification of any of the attorneys for the defendants. [Citations omitted.]

We too have alluded to the importance of the right of the client to choose counsel and to the balancing which must be done between that right and protection against conflicts of interest. For example, in the Burnette case we said:

In applying these rules of conduct to a particular situation, we must do so with caution when considering disqualification of counsel. Disqualification is an absolutely necessary measure to protect and preserve the integrity of the attuiiiey-client relationship; yet it is a drastic measuic to be imposed only where clearly required by the circumstances. We must never forget that a disqualification, though aimed at protecting the soundness of the attorney-client relationship, also interferes with, or perhaps destroys, a voluntary relationship by depriving a litigant of counsel of his own choosing — oftentimes affecting associations of long standing. The role of the court is to balance the current client’s right to counsel of choice with the former client’s right to protection of confidences transmitted, or likely to have been acquired, during the prior representation.

All of these cases involve instances of representation of a client against a former client. The matter now before us is different. Ms. Berry has had no association with the Friday firm. She is not asserting any interest she may have as a litigant about confidences she may have bestowed upon the attorney of her adversary in this FOIA litigation. To the extent she has standing to complain about the Friday firm’s representation of the hospital, it must be as a member of the public. We have not decided a case directly on point. In our unsuccessful search of the law of other jurisdictions for a case such as this one, we found language such as the following from BML Group, Inc. v. U.S. Pizza, Inc., 1992 WL 114958 (E.D. Pa.), which seems applicable here:

As Judge Ditter held in Hamilton v. Merrill Lynch, 645 F. Supp. 60, 61 (E.D. Pa. 1986): “Plaintiffs’ choice of counsel is entitled to substantial deference. The court should not quickly deprive plaintiffs of their freedom to choose the advocate who will represent their claims, nor lightly dismiss the trust and confidence plaintiffs have placed in their chosen counsel. Additionally, the court must prevent litigants from using motions to disqualify opposing counsel for tactical purposes. For these reasons, motions to disqualify counsel generally are not favored.”

The lay person, of whom the opinion in the Heathcoat case speaks, who understands (1) the fact that there are divergent public policies to be served in making the FOIA decisions the Trial Court must make in this case; (2) the consent and desire of the hospital to be represented by the Friday firm, and (3) the fact that, but for our direct-action statute, there would be no issue whatever, will very likely conclude that no impropriety exists in the Friday firm’s representation of Saline Memorial Hospital.

Even if there were an appearance of that which a lay person might consider somewhat improper, when we balance the right of a party to choose counsel against our duty to protect the administration of justice from such an alleged appearance of impropriety, we must conclude that disqualification of the Friday firm in this litigation is not warranted.

Reversed and remanded.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Tytus Antwion HOUSTON v. STATE of Arkansas
    CR 95-158
    906 S.W.2d 286
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Tytus Antwion Houston, appeals the judgment of the Pulaski County Circuit Court convicting him of attempted first-degree murder, burglary, and misdemeanor theft of property. Appellant was tried by a jury and sentenced to consecutive terms of eighteen years for the attempted murder and fifteen years for the burglary, with the misdemeanor merging into the felonies, resulting in a cumulative sentence of thirty-three years imprisonment. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). The sole point of error urged for reversal is the exclusion at trial of luminol test results. We find no error and affirm the judgment.

The evidence produced at appellant’s trial showed that appellant entered a residence through a window and attacked the victim while she was sleeping. Appellant beat the victim with his fists, stabbed her with a kitchen knife, and beat her with a hammer. There was testimony that the victim was covered with a large amount of blood and that blood was in her bedroom and in other rooms of her house. In anticipation of this blood evidence, appellant sought to introduce evidence that a luminol test for the presence of blood on the leather jacket he purportedly wore during the attack yielded negative results. The sole issue presented in this appeal is whether the trial court abused its discretion in denying the admission of that evidence.

Our law is well-settled that luminol test results indicating the presence of blood are inadmissible without follow-up tests confirming the presence of human blood related to the crime. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994); Palmer v. State, 315 Ark. 696, 870 S.W.2d 385 (1994); Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). Because luminol testing can return false positive results by reacting with substances other than human blood, and because luminol testing is not time-specific, luminol test results are not relevant per se and their admission without additional factors that relate that evidence to the crime would confuse a jury. Id.; accord Young, 316 Ark. 225, 871 S.W.2d 373; Palmer, 315 Ark. 696, 870 S.W.2d 385.

In announcing these rules on the admissibility of positive luminol test results, this court applied the relevancy approach to the admission of novel scientific evidence enunciated in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Brenk, 311 Ark. 579, 847 S.W.2d 1. Under that approach, the trial court must conduct a preliminary inquiry to determine the reliability of the novel process used to generate the evidence, the possibility of confusing or misleading the jury if the evidence is admitted, and the connection between the proffered evidence and the disputed factual issues in the particular case. Id., citing Prater, 307 Ark. 180, 820 S.W.2d 429.

In the present case, the trial court heard, in chambers, the testimony of Stan Wilhite, the member of the crime scene investigation unit of the Little Rock Police Department who conducted the luminol test on the leather jacket. Mr. Wilhite testified that luminol tests produce positive results for many substances other than human blood. When the trial court effectively asked if luminol discloses negative results in the presence of blood, Mr. Wilhite responded that he could not answer the question. The trial judge then ruled that, given the focus of the Brenk and Palmer cases on the possibility of false positive results, he could not allow the evidence since he had no testimony indicating luminol tests did not also produce false negative results.

On the record before us, we cannot say the trial court abused its discretion in so ruling. There was no evidence of the reliability of the luminol test for proving the absence of human blood. Reliability is the critical element in the relevancy approach to admissibility of novel scientific evidence. Prater, 307 Ark. at 186, 820 S.W.2d at 431. The proponent of the novel scientific evidence carries the burden of proof on the reliability issue. See id.; cf. Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986), vacated on other grounds, 483 U.S. 44 (1987) (staling that proponent of testimony by witness who has undergone hypnosis bears burden of proving reliability). It follows that, as the proponent of the negative luminol test results, appellant bore the burden of demonstrating the reliability of the luminol test for showing the absence of human blood. It is clear from this record that appellant failed to carry that burden, as Mr. Wilhite could not testify to the accuracy of luminol tests for proving the absence of human blood. Therefore, we cannot say the trial court abused its discretion in denying the admission of the negative luminol test results.

The judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    Douglas James CLAYTON v. STATE of Arkansas
    CR 94-1446
    906 S.W.2d 290
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      Ralph M. Cloar, Jr., for appellant.

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

Appellant Douglas James Clayton appeals from judgments of conviction for first-degree murder, criminal attempt to commit first-degree murder, and aggravated assault. He received concurrent sentences totalling 32 years. He now asserts that the trial court erred in denying his motions for a mistrial and for a new trial and that he was precluded from participation during substantial steps in his trial. We find no merit in the points argued, and we affirm.

The facts involve a drive-by shooting that occurred on Roosevelt Road in Little Rock on July 13, 1992. Kenneth Johnson was driving west on Roosevelt Road. The car belonged to his girlfriend, Sharonda Abdullah (also shown in the record as Shiranda Abdullah). Abdullah and the young son of Johnson and Abdullah were in the car. As Johnson approached the entrance to the Pulaski County Sheriff’s Department on Roosevelt Road, a green Ford Mustang automobile which had been following Johnson’s vehicle passed it left of center. As the Mustang passed, both the driver and passenger in the Mustang fired guns into Johnson’s vehicle. Abdullah was killed by the gunfire. Clayton was charged with first degree murder, criminal attempt to commit first-degree murder, and aggravated assault in connection with the shooting.

At trial which commenced on May 18, 1994, Kenneth Johnson testified as one of the State’s principal witnesses. He stated that he saw Clayton driving the green Mustang but that he could not identify the passenger who was shooting because he had a red rag covering his head and a red rag covering his mouth. After the State rested, Kenneth Johnson contacted Clayton’s defense counsel and advised him that he wanted to recant his earlier testimony. He retook the stand as a defense witness and testified that he had made a mistake in identifying Clayton and that he could not say whether Clayton was in the car. This time he testified that both the driver and the passenger had red rags covering their faces.

After instructions and arguments of counsel, the jury began its deliberations on Clayton’s guilt. After approximately an hour and a half of deliberations, a note from juror Kevin Russell was delivered from the jury room to the trial court asking whether he could tell the other jurors what he had seen during a trial recess. The trial court and counsel for the State and Clayton discussed the matter, and counsel for Clayton recommended that the trial court question the juror outside the presence of counsel or Clayton. He added that counsel’s being present might intimidate the juror. A conference between the trial court and the juror commenced. Juror Russell advised the trial court that he saw Clayton’s attorney give money to a “tall, grey haired man with a beeper” who had brought Kenneth Johnson back to the courtroom immediately prior to the time that he recanted his testimony. The juror added that he had not apprised the other jurors of what he observed.

Following the interview with Russell, the trial court related the circumstances to counsel. Defense counsel moved for a mistrial on the basis that the jury was tainted. After more discussion about the problem and how to salvage the trial, a second mistrial motion was made by the defense for the same reason. More discussion was had among the trial court and counsel, following which the trial court stated:

What I’m willing to do is this. Call him (juror Russell) in here in the presence of the attornies (sic) and ask him, and I will tell him this, I have looked into your observation and I have satisfied by my investigation that what you felt you saw did not occur. Based upon that can you set that aside and render a verdict based solely upon the evidence and the law. And the only thing that I will accept is that he says that he can. If he says anything less like I will try or whathave (sic) you I will declare a mistrial. But if he assures me tha[t] he can we’ll go forward.

Defense counsel opposed this procedure and again moved for a mistrial. The trial court then called juror Russell to the stand and told him that the court was satisfied that the exchange did not take place as Russell thought it had. The court inquired whether Russell could set his observation aside and decide the case based on the evidence and the law as instructed. Russell answered “yes.” The trial court requested the bailiff to escort the juror back to the jury room to continue deliberations.

During this entire proceeding in the courtroom with counsel and then with juror Russell, Clayton was not present. At one point, he sought to enter the courtroom, and the trial court stated that he thought Clayton did not need to be present. Clayton’s counsel concurred and said to his client: “Jamie we need you to stay out, okay?”

The jury subsequently returned guilty verdicts. After the sentencing phase, Clayton received sentences of 20 years for criminal attempt to commit murder and 6 years for aggravated assault to run consecutively, but the 26-year sentences would run concurrently with a 32-year sentence assessed for first-degree murder.

Ón June 1, 1994, Clayton filed a motion for a new trial, alleging that several jurors had observed defense counsel pay money for Kenneth Johnson to alter his testimony and that this “bribe” tainted their verdict. Also on this date, a deputy prosecuting attorney advised the trial court that another juror, Katherine Hatcher, had told him when the trial was over that several jurors conversed about the payment of money by one of Clayton’s attorneys to Kenneth Johnson before he changed his testimony. This conversation took place after the jury’s decision. The trial court stated that it appeared that some jurors, apart from juror Russell, had seen something that aroused suspicion. Defense counsel, Ralph Cloar, informed the court that the only money paid by him during trial was to a bail bondsman on behalf of one of his other clients.

On June 15, 1994, a hearing was held by the trial court on its own motion in which all of the jurors except one were examined by the court. Juror Russell testified that he had not discussed his concerns with any other juror until after the jury had agreed on Clayton’s punishment. Other jurors confirmed that nothing was said about the exchange of money until after the jury had voted on the sentence, though several jurors related to the court that they believed more than one juror had seen the incident. One juror was absent from the hearing. Another juror did testify that the matter may have been brought up after the guilt phase and before sentencing but that he could not be certain. At the conclusion of the hearing, the trial court found that the jurors testified that nothing happened outside the courtroom which influenced their decisions. The court further found that Clayton had not met his burden of proof for a mistrial or for a new trial, and denied both motions.

Clayton first contends in his appeal that the trial court erred in denying his motion for a mistrial as well as his motion for a new trial because the jury verdicts were tainted. On this point, we initially address the State’s contention that no ruling was obtained on any of counsel’s motions for a mistrial. We disagree with the State. The trial court clearly advised counsel of what it was willing to do after much discussion surrounding counsel’s mistrial motions. The court stated that it would tell juror Russell there was nothing to what he thought he saw. Then the court would inquire whether Russell could set aside the incident and decide the case based on the evidence and law. The court told the prosecutor and defense counsel that it would grant the motion for a mistrial, if Russell responded that he could not put the matter out of his mind. In the ensuing colloquy with the court, juror Russell responded that he could maintain his objectivity, and the court permitted the jury deliberations to proceed. We have no doubt that the mistrial motion was denied. We note, in addition, that at a post-trial hearing on Clayton’s motion for a new trial, the deputy prosecuting attorney referred to the fact that the trial court had ruled on the mistrial motion.

Turning to the merits, we observe as we often have that a mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Bullock v. State, 317 Ark. 204, 205, 876 S.W.2d 579, 580 (1994); Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994). A trial court has broad discretion in deciding whether to grant or deny a mistrial, and we will not reverse the trial court’s decision in this regard absent an abuse of that discretion or manifest prejudice to the complaining party. Bullock v. State, supra. Here, the trial court questioned juror Russell regarding what he saw, and he responded clearly and unmistakably that he could set aside his observation and decide the case objectively. He further testified that he had not and would not discuss his observations with the rest of the jury panel during deliberations. The subsequent hearing on June 15, 1994, bears out that he did not do so until after the jury had decided the appropriate sentences. In sum, the trial court’s ruling rests on solid footing. We find no basis for a holding that the trial court abused its discretion in deciding that the mistrial motion should not be granted.

Clayton next urges that the trial court erred in denying his motion for a mistrial because the court violated Ark. Code Ann. § 16-89-125(e) (1987), when it examined juror Russell in camera and outside the presence of counsel, Clayton, or the other jurors. This precise objection was never made to the trial court, and this court has been steadfast in holding that an argument cannot be raised for the first time on appeal. See, e.g., Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994).

Clayton urges, however, that we should presume prejudice for a violation of § 16-89-125(e), even when no objection has been made. We disagree. This is not a case where the judge entered the jury room, with consent of counsel and with both counsel present, to answer questions about concurrent sentences and parole. See Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). In Tarry, we alluded to caselaw where we held that noncompliance with this statute gives rise to a presumption of prejudice. We held in Tarry that the State had not met its burden and that the trial court’s violation of the statute by answering questions of law in the jury room must be deemed to be prejudicial. But in the case before us there was no disagreement among the jurors as to any part of the evidence and no request to be informed as to a point of law, which are the twin circumstances that trigger the applicability of § 16-89-125(e). Rather, juror Russell wanted to know whether he could impart what he had seen to the other jurors. The inapplicability of § 16-89-125(e) is further illustrated by the fact that had the trial court brought in the entire jury to hear Russell’s inquiry, every juror would have known what Russell saw. This might well have led to a mistrial. We hold that § 16-89-125(e) was not apposite to the facts of this case.

We further observe that defense counsel did not raise an objection to the in camera interview on any other ground such as a deprivation of Clayton’s participation in a substantial step in the trial proceedings. See Ark. Code Ann. § 16-89-103(a)(1); Latham v. State, 318 Ark. 19, 883 S.W.2d 461 (1994); Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993); Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988). In fact, he urged that a one-on-one interview take place and added that he did not want to be in chambers with the trial court and Russell. As he failed to object, this court will not address the argument. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995); Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). In addition, defense counsel cannot be heard to complain of an event for which he was partially responsible. Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992); Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983); Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982).

In an analogous point, Clayton asserts that the trial court erred in excluding him from the courtroom when the court and trial counsel discussed Russell’s observations and the motions for mistrial and when the trial court questioned juror Russell. Clayton claims that these were also substantial steps in his trial and that he was entitled to be present. Clayton’s counsel, however, instructed Clayton to remain outside the courtroom during the discussion of the jury problem and never objected to his absence. Again, counsel cannot raise an issue in this court when he did not object at the trial court level and, indeed, helped to precipitate the absence of his client from the proceedings.

Clayton finally argues that the trial court erred in denying his motion for a new trial. A decision on whether to grant or deny a motion for a new trial lies within the sound discretion of the trial court, and this court will not reverse that decision absent an abuse of that discretion. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993). As with other factual findings, a trial court’s factual determinations on a motion for a new trial will not be reversed unless clearly erroneous. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992).

Here, the trial court personally interviewed each juror save one under oath and found that each juror testified that nothing occurred outside of the courtroom that influenced his or her decision. One juror was not present at the hearing but that absence was waived by Clayton. Clayton bore the burden of proving that the extraneous information of a bribe had filtered into the jury room and resulted in prejudice. See Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993). He failed to do this, and we will not presume prejudice in this context. The trial court’s findings were not clearly erroneous, and the court did not err in denying the motion for a new trial.

Affirmed.

       This is the second time this matter has been before us. In Clayton v. State, 321 Ark. 217, 900 S.W.2d 537 (1995), we dismissed the appeal on grounds that the notice of appeal was filed prematurely. We subsequently reversed our position due to an error in dismissing the matter and reinstated the appeal. See Clayton v. State, 321 Ark. 416, __S.W.2d_(July 17, 1995) (per curiam).


author: Andree Layton Roaf, Justice.

text:
    Demetrius “Dee Dee” EDWARDS v. STATE of Arkansas
    CR 95-183
    906 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      Barker & Selby, by: Paul D. Selby, for appellant.

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

The appellant was convicted of burglary and sentenced to forty years imprisonment. He raises five issues to be addressed on appeal. He charges the trial court with error for requiring him to wear leg restraints during trial, for refusing to grant a continuance and requiring him to proceed to trial with counsel he claimed was ineffective, for allowing a videotape of the crime scene into evidence, and for allowing police officers to remain in the courtroom after testifying. He charges his counsel with ineffectiveness for failing to object to the use of the leg restraints and to request a cautionary jury instruction regarding the restraints. Appellant’s points are either procedurally barred or have no merit, and we affirm.

Appellant, Demetrius “Dee Dee” Edwards, was arrested along with another individual, and charged with the burglary of Sharpe’s Department Store in Crossett, Arkansas, on June 30, 1993. Police came to the store in response to a silent alarm activated by a brick thrown through the front window of the store. The officers apprehended appellant inside the store after a struggle in which he was subdued with pepper spray.

By the time of trial in July 1994, appellant had previously been convicted of four felonies. Robert Remet was appointed counsel for appellant on the burglary charge, as well as for a May 1994 trial on a charge of escape. Appellant could not be represented by the Public Defender’s Office on the burglary charge because that office had represented a co-defendant on the same charge.

Immediately before trial, the court, in a proceeding outside the presence of appellant and the jury, decided the appellant would be required to wear leg restraints during the trial. The reasons given by the court were that appellant was a rather large and strong individual, he had already received a twenty-five year prison sentence in the May 1994 trial, he had numerous other felony charges pending in both Arkansas and Louisiana, the court had been repeatedly cautioned by sheriff’s department personnel that he might attempt to escape, and he had allegedly been involved in a number of violent acts, including a shoot-out with police in Louisiana. The sheriff’s department had also expressed concern about security because they were short-handed and had several new employees. Appellant’s counsel did not object to appellant wearing leg restraints and actually agreed as long as the restraints were not obvious to the jury.

During the trial court’s voir dire of the jury, Mr. Remet passed two notes to the judge indicating that appellant had advised him that he did not want Remet as his attorney and therefore did not want to go to trial that day. The jury was excluded, and a lengthy hearing was held in which the court considered the issues raised by appellant of ineffective assistance of counsel, his request for continuance, request for new counsel, and his refusal to waive counsel and represent himself. The court asked appellant what in his mind made counsel ineffective. Appellant replied that counsel got him twenty-five years in the previous felony and that “he ain’t doing nothing.” The appellant did admit, however, that he had not given counsel any names of individuals to call as witnesses and had not asked counsel to do anything. The court ruled that defendant had not shown that his counsel was ineffective, and that since he refused to represent himself at trial, Mr. Remet would remain as his counsel and the untimely motion for continuance would be denied.

During trial, appellant objected to the admission of a videotape of the crime scene, arguing there was insufficient evidence on chain of custody. This objection was overruled. The jury found appellant guilty of the burglary and imposed a maximum sentence of forty years under the habitual offender’s sentencing provisions.

The appellant’s first point for reversal, that the trial court erred in requiring him to wear ankle chains before the jury, is not properly preserved for review. It is well established that in order to preserve an argument for appeal, the appellant must make an objection at the first opportunity. Williams v. State, 304 Ark. 218, 800 S.W.2d 713 (1990). Issues not raised at the trial court level will not be considered by this court on direct appeal. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989).

Not only did counsel not make a timely objection to appellant wearing leg restraints, he agreed with the court’s decision as long as the chains were not obtrusive or obvious to the jury. This court has repeatedly held that a person cannot agree with a ruling by a trial court and then attack it on appeal. Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992); See also Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990).

Appellant next argues that his counsel was ineffective in failing to object to the use of the leg iron restraints during the trial, and in failing to request a jury instruction that such restraint not be considered in assessing the proof and determining guilt. This court will not consider ineffective assistance of counsel as a point on direct appeal unless the issue has been considered by the trial court. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995). Here, appellant has raised the issue by requesting during trial that the court relieve Mr. Remet from representing him. See Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). However, he complained only of the sentence he received in the prior trial, of not being allowed to select the jury, and made other general statements expressing dissatisfaction with his counsel. Because appellant made no mention of the use of leg restraints when the trial court afforded him the opportunity to specify his complaints about Mr. Remet, this issue has not been properly preserved for direct appeal. See Tisdale, supra.

We also do not consider the charge of ineffectiveness in this case because the facts were not fully developed at the pretrial hearing or at any other stage of the trial. See Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995). Nor do the trial court’s pretrial findings on the issue of ineffectiveness preclude appellant from bringing an A.R.Cr.P. Rule 37 petition in the trial court at the conclusion of this appeal.

Appellant next maintains that the trial court erred in requiring him to proceed to trial with an attorney whom he claimed was ineffective and in failing to grant a continuance. The trial court was first made aware of appellant’s request for a new attorney after voir dire of the jury had begun. This court has repeatedly held that such a motion to change counsel is properly treated as a motion for continuance since a change of attorneys so close to trial would require the granting of one. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). The refusal to grant a continuance in order for the defendant to change attorneys rests within the discretion of the trial judge, and the decision will not be overturned absent a showing of abuse. Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). The burden of establishing such abuse rests squarely on the shoulders of the appellant. Leggins, supra.

We have long recognized that the right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Leggins supra. If change of counsel would require the postponement of trial because of inadequate time for a new attorney to properly prepare a defendant’s case, the court may consider such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant has acted diligently in seeking the change, and whether the denial is likely to result in any prejudice to defendant. Leggins supra. The trial court determined that appellant did not give adequate reasons for requesting a new attorney, and that there was nothing in the record to indicate that Mr. Remet’s performance was incompetent, unprofessional, or ineffective. The court further noted that appellant had not identified another attorney to represent him although he had ample opportunity between the trial in May and the day of his burglary trial to do so, and found that his request was not timely. We cannot say that the trial court abused its discretion in not granting appellant’s continuance and request for new counsel in these circumstances.

For his next point, appellant contends the trial court erred in allowing the admission into evidence of a videotape of the crime scene. The videotape was made by an officer as he walked through the store immediately after the burglary.

The record on appeal is confined to that which is abstracted, and failure to abstract a critical issue precludes this court from considering the issue on appeal. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). The appellant in this instance has failed to suggest what parts, if any, of the videotape are prejudicial to him. He has also failed to suggest how the tape might be prejudicial other than to declare that prejudice is apparent from the sentence meted out to appellant. Even so, it is appellant’s burden to produce a record exhibiting prejudicial error, and he has failed to do so. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). Not only is the tape not abstracted, it is also not included in the record. Any argument challenging the admission of the videotape is therefore procedurally barred due to appellant’s failure to include it in the abstract or record on appeal.

Appellant finally argues that the trial court erred in allowing police witnesses to remain in the courtroom after testifying. Appellant’s counsel requested a bench conference to relay to the court that defendant did not want two officers who had already testified to remain in the courtroom. Counsel went on to state that he had explained to appellant that since the officers had been excused, they could remain in the courtroom as spectators, and that he wanted to “put this on the record that that (the officers’ presence) disturbs him.” The trial court agreed with appellant’s counsel that the public had a right to be in the courtroom, stating, “Well, your advice was correct.” The State then asked that the record reflect that the officers were in the spectator section and not in the bar area. Here, counsel merely informed the court of the appellant’s displeasure with the officers’ presence and with his advice. This colloquy does not amount to an objection, and is thus not a matter that we can address on appeal. See Williams, supra; Taylor, supra.

Affirmed.


author: Per Curiam.

text:
    Jimmy L. KING v. STATE of Arkansas
    CR 95-884
    906 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      Thomas A. Potter, for appellant.
    No response.
   Per Curiam.

Jimmy L. King moves for a rule on the clerk to file the record in his appeal. In the circumstances presented, we treat the motion as one for a belated appeal. The record has been refused because the notice of appeal was not filed in a timely manner. It was more than 30 days after a new trial motion was deemed denied pursuant to Ark. R. App. P. 4(c).

Mr. King’s counsel Thomas A. Potter acknowledges that the notice of appeal was untimely and by affidavit he assumes full responsibility for the error. The failure of counsel to perfect an appeal in a criminal case constitutes a denial of effective assistance of counsel and is good cause for granting a belated appeal. Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Jim Guy TUCKER, et al. v. LAKE VIEW SCHOOL DISTRICT, et al.
    95-471
    906 S.W.2d 295
    Supreme Court of Arkansas
    Opinion delivered September 25, 1995

      Winston Bryant, Att’y Gen., by: Tim Humphries and Elizabeth Boy ter, Asst. Att’ys Gen., for appellant.

      Clayton R. Blackstock, for appellee Arkansas Department of Education.

      Jimmie Lee Wilson, Roy C. Lewellen, and Don Trimble, for appellee Lake View School District.
   Per Curiam.

On May 17, 1995, the Lake View School District of Phillips County filed a motion to vacate and set aside its briefing schedule and to remand the matter to chancery court for a determination of various motions. We denied that motion on June 5,1995. The School District now requests reconsideration of the denial. That motion also is denied.

Two of the attorneys for the School District, Roy C. Lewellen and J.L. Wilson, were members of the Arkansas General Assembly during the 1995 Regular Session. Under Rule 40(c), suits in which members of the General Assembly are attorneys are stayed for a time not to exceed 15 days before the session begins and not less than 30 days after adjournment. The 1995 session of the General Assembly began on January 9, 1995, and adjourned on April 28, 1995.

On November 9, 1994, the chancery court’s order with findings of fact was entered in this case. Any motion for judgment notwithstanding the verdict under Ark. R. Civ. P. 50, or motion to amend findings of fact under Ark. R. Civ. P. 52, or motion for a new trial or amendment of judgment under Ark. R. Civ. P. 59 had to be filed within ten days of entry of the chancery court’s order, that is, by November 19, 1994, which fell on a Saturday, thus making the deadline November 21, 1994. The School District’s motion to modify findings of fact, however, was not filed until December 6, 1994. We have held that a request for findings of fact filed after an order has become final cannot be used as a means of resurrecting a claim already barred by finality. See Majors v. Pulaski County Election Comm’n, 287 Ark. 208, 697 S.W.2d 535 (1985). The trial court decided the School District’s motion on December 21, 1994, and entered an order accordingly. Nevertheless, the School District’s motion was clearly untimely, and the trial court’s order regarding it appears to have been a nullity based on what we have before us. Moreover, as the School District’s motion was filed on December 6, 1994, it was unaffected by Rule 40(c) because it was filed prior to the prescribed period. In short, the School District’s motion to modify findings of fact was untimely and was not salvaged by Rule 40(c) because it was filed sufficiently in advance of the legislative session.

We also note that the School District filed a motion for attorney’s fees which was entered on January 10, 1995, and which fell within the Rule 40(c) period. That motion was signed by J.L. Wilson. On March 6, 1995, the trial court concluded by order that the motion was untimely. On April 28, 1995, the School District apparently filed objections to the trial court’s order, also within the Rule 40(c) time frame. Though the prescribed stay is fixed by Rule 40(c), counsel for the School District chose to file a motion and participate in the litigation during the legislative session. Counsel cannot participate in the litigation during the period of the stay, receive an adverse decision, and then urge that the matter was stayed and seek a second hearing on the matters previously resolved. This would place the opposing party in a dilemma, not knowing whether the matter was stayed or ongoing during a legislative session. If a legislator is to avail himself or herself of Rule 40(c), participation in the litigation pending the stayed period should not transpire.

The School District also asserts that appellant Tucker’s appeal was not timely and that no final order has been entered by the chancery court. Appellant Tucker’s notice of appeal appears to have been timely because he filed it on January 18, 1995, which was within the appropriate time frame since it was an appeal from a modified order entered on December 21, 1994, following a motion to modify findings of fact filed on November 21, 1994. We further discern, based on what is before us, no reason to remand for lack of finality.

The motion for reconsideration is denied.


author: Robert H. Dudley, Justice.

text:
    John MILLS v. STATE of Arkansas
    CR 95-428
    906 S.W.2d 674
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of committing the crimes of rape and sexual abuse against two young boys. He was sentenced to concurrent terms of life imprisonment and ten years. His point of appeal is procedurally barred. A review of the transcript in accordance with Rule 4-3(h) of the Rules of the Supreme Court discloses no rulings adverse to appellant that constitute reversible error.

Appellant contends that a witness, Tamara Pelton, was allowed to give hearsay testimony. The issue came about as follows. After the prosecuting attorney asked Ms. Pelton a number of preliminary questions such as where she lived, where the victims lived, whether she knew the victims, and how she knew the victims, the prosecutor asked Ms. Pelton if she made a report to the police. She answered that she had. The prosecuting attorney then started to ask his next question, but got only as far as: “What took place —”. Appellant’s attorney objected and stated, in material part: “Tamara’s relating what the boys told her . . . would be pure hearsay . ...” The prosecutor responded, in material part: “We’re not relating what they told her for the proof of the facts related, but to show how and when it was reported and the circumstances that the police became involved.” The trial court overruled the objection. In the point of appeal, appellant does not seem to contend that this ruling was in error, but because we have some question about the extent of his argument, we hold that the ruling was not in error. The question apparently was to be asked so that the jury could learn when and why Ms. Pelton contacted the police department. The testimony was admissible to show the date and basis of her act, but not to prove the truthfulness of any hearsay assertions she might make. Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981). There were no further objections.

Six questions later, the prosecuting attorney was attempting to correlate the dates Ms. Pelton saw a change in the boys and the dates the boys spent the night with appellant, and asked, “Now, was this the same period of time you felt like the boys had made this change?” Ms. Pelton gave an answer that first began about the change in the boys. She then volunteered that she asked the boys’ stepmother about the change, and Ms. Pelton then testified to the stepmother’s statements. She next volunteered that the stepmother told the boys they would be in trouble if they did not tell her what was wrong and why they had changed. Finally, she said: “And that’s when they started telling what happened. And that’s when I called the authorities. And they told in graphic detail what happened.”

Appellant now argues that the testimony of Ms. Pelton was hearsay, but for a number of reasons, the argument is not preserved for appeal. The only ruling made by the trial court was a preliminary ruling that the witness could tell when and why she notified the police department. A number of questions later the witness volunteered additional evidence but there was no objection, and there was no motion to strike the unresponsive part of the answer. Under these facts the issue is not preserved for appeal. Byrum v. State, 318 Ark. 87, 93-94, 884 S.W.2d 248, 252 (1994). The objection must be contemporaneous, or nearly so, with the alleged error. See Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). Here there was a considerable lapse of time between appellant’s objection and the witness’s volunteered testimony.

In addition, even if appellant’s objection might be said to reach the testimony later volunteered by Ms. Pelton, it was waived. When a defendant successfully objects to a question on the basis of hearsay and the same or a similar question is later asked, the defendant must renew his objection or else the initial objection is waived. Marvel v. Parker, 317 Ark. 232, 878 S.W.2d 364 (1994). There is no affirmative duty on a trial court to subsequently make evidentiary rulings on its own motion. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993).

Finally, we do not reverse a trial court on evidentiary matters unless there is an erroneous and prejudicial ruling. Since there was no ruling about Ms. Pelton’s volunteered testimony, there can be no reversible error. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995).

Affirmed.


text:
    STATE of Arkansas v. Charles Timothy BEALL
    CR 95-401
    906 S.W.2d 676
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., for appellant.

      Dan J. Krohn, for appellee.
   Robert H. Dudley, Justice.

The defendant was charged in one information with four felony counts of controlled substance violations. He filed a pretrial motion to suppress all of the evidence seized from him at the time of his arrest. The trial court granted the motion. The State dismissed the charges and attempts to appeal the ruling as an interlocutory appeal. We dismiss the appeal.

The State has no right to appeal other than in those cases authorized by the Constitution of Arkansas and the Rules of Criminal Procedure. State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). Appeals by the State are authorized only in the narrowest of circumstances because the State has considerable resources that can place defendants at a disadvantage. State v. Bickerstaff, 320 Ark. 641, 899 S.W.2d 68 (1995). In this case, the State contends that it can appeal from the trial court’s suppression ruling under A.R.Cr.P. Rule 36.10(a). That rule governs interlocutory appeals by the State, but an attempted appeal from a dismissed case is not an interlocutory appeal.

The words “interlocutory appeal” are defined as: “An appeal of a matter which is not determinable of the controversy, but which is necessary for a suitable adjudication of the merits.” Black’s Law Dictionary 815 (6th ed. 1990). In conformity with that general definition, A.R.Cr.P. Rule 36.10(a) contemplates that there will be a subsequent final disposition of the case. The rule provides that the State must certify that the interlocutory appeal is not taken for purposes of delay of the case and that the pretrial ruling substantially prejudices the prosecution of the case. A.R.Cr.R Rule 36.10(a). Further, the rule provides that the trial court shall stay the case pending determination of the appeal. Id. If the appellate court reverses the pretrial order appealed, the stay is to be dissolved and the case is to proceed to trial. A.R.Cr.R Rule 36.10(a). However, if the appellate court sustains the order appealed, further proceedings are barred on the charge. A.R.Cr.R Rule 36.10(d). These certifications and stay order necessarily refer to a pending case. See also A.R.Cr.P. Rule 16.2(d). Thus, the State cannot perfect an interlocutory appeal after it has dismissed the case.

We allow interlocutory appeals by the State because, if the State ultimately loses on the merits, it is without an effective appeal while the defendant has an effective appeal with respect to the conviction. Burrow v. State, 301 Ark. 222, 783 S.W.2d 52 (1990). However, Rule 36.10 does not give the State a right to ask for an opinion on an issue which is purely abstract in nature. State v. Spear, 123 Ark. 449, 185 S.W.2d 788 (1916).

Appeal dismissed.


author: Tom Glaze, Justice. Robert L. Brown, Justice,

text:
    Joseph O’NEAL v. STATE of Arkansas
    CR 95-148
    907 S.W.2d 116
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      Haddock & Mazzanti, by: Joseph P. Mazzanti, III, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Joseph O’Neal and Charles McGehee were charged with capital murder of a ninety-two-year-old woman, Louisa M. Johnson. The state alleged that O’Neal and McGehee killed Johnson while in the course of and in furtherance of committing the offenses of robbery, burglary and rape. In a trial separate from McGehee, O’Neal was found guilty of first degree murder, robbery and burglary. He was sentenced to life imprisonment on the murder conviction and twenty years each on the robbery and burglary offenses.

O’Neal first argues the trial court erred in denying his motion for directed verdict. In reviewing such motions on appeal, the test is whether there is substantial evidence to support the verdict, and in doing so, we review only the evidence that supports the convictions and do not weigh it against other conflicting proof favorable to the accused. Robinson v. State, 318 Ark. 33, 883 S.W.2d 469 (1994).

Here, O’Neal admitted that, on the night of April 19, 1993, he and McGehee went to the back of Johnson’s house, where they smoked crack and drank two cans of Colt 45 Malt Liquor which were found later by officers who investigated Johnson’s homicide. O’Neal said that he gave McGehee a knife purportedly to cut rope, but instead McGehee used it to cut a window screen on the side of the Johnson home. Evidence also showed O’Neal admitted that, after McGehee kicked down Johnson’s back door, both he and McGehee entered the Johnson house. O’Neal further related that he saw McGehee hold Johnson on the floor with her hands and feet tied with neckties; McGehee also had his hand up Johnson’s gown. O’Neal told McGehee to prevent Johnson from seeing O’Neal’s face because Johnson knew him; O’Neal had mowed Johnson’s yard. O’Neal added that he pilfered Johnson’s purse while McGehee held Johnson on the floor. He related further that he saw McGehee taking Johnson’s television but McGehee abandoned it after O’Neal warned that someone might see them with it when they left. O’Neal said that, after they left the Johnson home, McGehee displayed a twenty dollar bill, but O’Neal claimed “he did not know where it came from.”

Johnson was found dead at her house the next morning, April 20, 1993. Her hands and feet were bound with neckties. An autopsy was performed on Johnson and a medical examiner opined Johnson had been strangled. Officers investigating Johnson’s homicide found cut television and telephone cables, a television out of place and apparently abandoned in the kitchen, Colt 45 beer cans later examined revealing O’Neal’s fingerprints, a purse and men’s ties on the floor of the crime scene, all of which corroborated O’Neal’s statement of what occurred on the night of April 19th.

A person commits murder in the first degree if, acting alone or with one or more persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-102(a)(l) (Repl. 1993). This court has repeatedly held that to be convicted of a felony murder, it is not necessary that the defendant be shown to have taken an active part in the killing as long as he was an accomplice and had the requisite intent for the underlying felony. Dixon v. State, 319 Ark. 347, 891 S.W.2d 159 (1995).

In the nature of an affirmative defense, O’Neal claimed that, although he was present during the robbery and had witnessed McGehee hold Johnson to the floor, he was unaware of Johnson’s death. And while he admits having pilfered $ .80 from Johnson’s purse, knowing McGehee intended to steal her television and asking McGehee to prevent Johnson from identifying O’Neal, he argues he in no way “solicited, commanded, induced, procured, counseled or aided in the homicidal act.” Ark. Code Ann. § 5-10-102(b)(l) (Repl. 1993). Also, as a part of his defense, he claims the evidence sufficiently reflects that he did not reasonably believe McGehee intended to engage in conduct which could result in Johnson’s death or her serious physical injury. § 5-10-102(b)(4). It is settled law that an affirmative defense is established as a matter of law only if there are no factual issues to be resolved by the trier of fact. Owens v. State, 300 Ark. 73, 797 S.W.2d 205 (1989).

From O’Neal’s admissions and other evidence discussed previously, we conclude the state met its burden of proof as to the elements of the offense of first-degree murder, and O’Neal fell short of establishing an affirmative defense to that crime. Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992). Although O’Neal suggests he in no way counseled or induced Johnson’s murder, the jury could have reasonably concluded O’Neal counseled or even aided in Johnson’s death since it was he, not McGehee, who knew Johnson and could have been identified by her. In addition, from O’Neal’s own description of what occurred and the other evidence corroborating it, a jury, too, could have reasonably believed O’Neal was fully aware that his and McGehee’s conduct could cause Johnson’s death or serious physical injury.

In his second point for reversal, O’Neal states the trial court instructed the jury on capital murder, giving the underlying felonies of burglary, rape and robbery, and then on the lesser included offense of first-degree murder, listing only the underlying felony of theft of property valued at more than $200.00. He points out that, in returning a first-degree murder verdict and separate verdicts for burglary and robbery, the jury found no theft of property because the state proved only that O’Neal stole $ .80 from Ms. Johnson’s purse the night she was killed. Because the theft was less than $200.00, he asserts the first-degree murder charge should be dismissed.

In defining capital murder, § 5-10-101(a)(l) sets out seven felonies, including the burglary, rape and robbery felonies named in O’Neal’s charges. When defining first-degree murder, the statutory law set out in § 5-10-102(a)(l) mentions the words “a felony” without listing specific felonies. In Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980), this court explained it was unwilling to say the reference in § 5-10-102(a)(1) to “a felony” was meant to exclude the seven felonies specified in the capital murder statute, § 5-10-101(a)(l). The court further explained that the actual wording of the first-degree murder statute may have been chosen to lighten the possible punishment that might be imposed for conduct falling within the strict definition of capital murder — a consequence that might be acceptable both to the prosecution and to the defense. The Cromwell court also held that no constitutional infirmity existed in the overlapping of the two statutes, because there is no impermissible uncertainty in the definitions of the offenses.

Here, in instructing the jury on capital murder, the trial court very clearly defined the predicate crimes of rape, robbery and burglary, and in giving the first-degree murder instruction, the judge defined the offense of theft of property valued at more than $200.00. Significantly, the judge also gave AMCI2d 1006 which is used when the subject offenses are being submitted to a jury in a case involving a homicide which occurred during the commission of another crime. That instruction reads as follows:

Now, when a death occurs during the commission or attempted commission of another crime, capital murder is proved only if that crime constituted rape, robbery, or burglary, and all other elements of capital murder are proved. Murder in the first degree is also proved if the other crimes committed to or attempted constituted rape, robbery, burglary or theft of property over $200 in value. And all other elements of murder in the first degree are proved. (Emphasis added.)

In sum, we conclude that the jury here was permitted to find guilt of first-degree murder where the associated crime committed was one of the felonies named in the capital murder statute, Cromwell, 269 Ark. 104, 598 S.W.2d 733. In the circumstances presented, the trial court clearly instructed the jury that it could find O’Neal guilty of first-degree murder if the crimes of rape, robbery, burglary, or theft of property over $200 in value were proved. Because the jury found O’Neal was guilty of robbery and burglary, O’Neal’s first degree murder verdict should be sustained.

Before leaving O’Neal’s second point, we mention his reference to having been convicted of robbery and burglary when those crimes were charged as underlying felonies to his murder charge. He contends that his sentences violate the Double Jeopardy Clause. See Ballew v. State, 298 Ark. 175, 766 S.W.2d 14 (1989) (when a criminal offense by definition cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses).

In reviewing the record, it appears O’Neal was never separately charged with burglary and robbery, yet he was convicted of first-degree murder with the underlying felonies being burglary and robbery and convicted separately of burglary and robbery as well. O’Neal failed to obtain a ruling below on these burglary and robbery convictions, so we will not consider that alleged error for the first time on appeal. Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). However, he is not precluded from raising this issue in a separate Rule 37 proceeding if he chooses. Id.

In his final argument, O’Neal states that, after he was convicted and sentenced, he moved that his sentence should be vacated because the jury had never been sworn in accordance with Ark. Code Ann. § 16-89-109 (1987). He claims the trial court erred in denying his motion. O’Neal is wrong. In order to preserve objections regarding any irregularities affecting the selection or summoning of the jury panel, a timely objection must be made. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994); see also Edens v. State, 235 Ark. 996, 363 S.W.2d 923 (1963). Here, O’Neal waited too late.

For the reasons above, we affirm. We add that the record has been examined and the court has determined that there are no rulings adverse to O’Neal which resulted in prejudicial error.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I concur in the result but disagree that the underlying felonies for the first-degree felony murder conviction were robbery and burglary. The jury was instructed:

Well, then, ladies and gentlemen, if you have a reasonable doubt of the defendant (sic) guilt on the charge of capital murder, you will then consider the charge of murder in the first degree. And T will (sic) like to give you an instruction on first degree murder. To sustain the charge of murder in the first degree, the State must prove the following things beyond a reasonable doubt:
First: The State must prove that Joseph O’Neal acting along (sic) or with one or more other person (sic), committed or attempted to commit theft of property valued at more than $200.00 hundred dollars; and
Secondly: That in the course of and in the furtherance of that crime or attempted crime, Joseph O’Neal or a person acting with him caused the death of Louisa Johnson under circumstances manifesting extreme indifference to the value of human life.
As the charge of the lesser included offense of murder in the first degree, and the lesser included offense of manslaughter. The State tends (sic) that the death of Louisa Johnson occurred during the commission or attempted commission by Joseph O’Neal of the crime of theft of property value (sic) at more than $200 dollars or an immediate light therefrom.
To prove the crime of thief (sic) of property, the State must prove beyond a reasonable doubt that the defendant, Joseph O’Neal knowingly took unauthorized control over the property of another person, with the purposes of depriving the owner there of. If the crime of theft of property is not proven to have been committed or attempted by Joseph O’Neal or any accomplice, he is not guilty of the offense of murder in the first degree or manslaughter.

In my opinion, theft or attempted theft was the underlying felony for the murder conviction.

It is true, as the majority opinion relates, that in instructing the jury on the difference between capital felony murder and first-degree felony murder, the court referred generally to the underlying felonies for both categories of murder as being rape, robbery, burglary, and theft. But the appellant does not dispute that theft was the underlying felony. In fact, he argues as his second point the following:

II.
The Trial Court Erred In Refusing To Dismiss Appellant’s Conviction of First Degree Murder Where The State Failed To Prove The Underlying Felony of Theft of Property

He then states in his brief that it was clear from the instruction that the underlying felony used to support his first-degree murder conviction was theft. He only challenges his separate robbery and burglary convictions should it be contended that they are the predicate felonies in lieu of theft. His primary contention on appeal is that $0.80 was taken, not more than $200.

At this stage, I can only conclude that theft or attempted theft was the underlying felony for the murder and that the convictions of robbery and burglary must stand. Whether the robbery and burglary convictions are subject to collateral attack, as offenses that were never charged, remains to be seen.


text:
    Landis WILLIAMS, Jr. v. STATE of Arkansas
    CR 95-322
    906 S.W.2d 677
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      Willard Proctor, Jr, for appellant.

      Winston Bryant, Att’y Gen., by; Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Landis Williams, Jr., appeals the judgment of the Pulaski County Circuit Court convicting him of the first-degree murder of Lamont Cullins and sentencing him to imprisonment for sixty years. The sole point of error raised in this appeal is the denial of appellant’s motion for directed verdict. The motion was based on two grounds; the evidence of appellant’s intent to cause the victim’s death was insufficient, and the evidence established justification for appellant’s act. Neither ground has merit and we affirm the judgment.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). When reviewing the sufficiency of the evidence on appeal, the appellate court does not weigh the evidence but simply determines whether the evidence in support of the verdict is substantial. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id. In determining whether there is substantial evidence, the appellate court reviews the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Id.

PROOF OF APPELLANT’S PURPOSE

The premise of the first ground of appellant’s motion is that the state was required to prove appellant acted with the purpose of killing the victim. Such proof was not required in this case. The statutory definition of first-degree murder pursuant to which appellant was charged by felony information provides that a person commits murder in the first degree if, with a purpose of causing the death of one person, he causes the death of another. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993); Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987). The state’s burden, then, was to prove that appellant, with the purpose of causing the death of another person, caused the death of the victim.

Arkansas Code Annotated § 5-2-202(1) (Repl. 1993) provides: “A person acts purposely 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[.]” The law is well settled that a defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the killing. Robinson v. State, 318 Ark. 33, 883 S.W.2d 469 (1994). The fact that the victim died of a single gunshot fired by appellant is uncontested. Three witnesses to the shooting, other than appellant, testified at the trial. Their testimonies reveal substantial evidence that, with the purpose of causing the death of the victim’s cousin, Maurice London (also referred to in the record as “Maurice Lawson” and “Toby”), appellant caused the victim’s death.

The first witness to the shooting, Henry White, the victim’s former brother-in-law, aged twenty-three years, testified he was living with the victim and his family at 5027 Buford in North Little Rock on November 4, 1993, the day of the shooting. White testified that, on that afternoon, he was returning to the Buford residence in his vehicle when he noticed a vehicle following him that was driven by appellant and contained three passengers. White testified the passengers were “throwing up little gang signs and stuff like that out the windows.” White testified he drove into the driveway of the Buford residence, whereupon appellant asked if he (White) was “throwing gang signs” and White answered no. White testified that Maurice London, a cousin of the victim who was living at the Buford residence, also had words with appellant at that time.

White testified appellant and his passengers slowly drove past the Buford residence at least twice more that afternoon “looking towards us.” White testified nine other family members were in the front yard. White testified that, at one point after appellant drove by, London asked why appellant kept trying to bother them, and London fired one or two shots in the air. White testified appellant’s vehicle turned around and stopped in front of the residence whereupon appellant said: “Oh, y’all were shooting at me?” or words to that effect. White testified London replied: “[YJeah, nigger, I was shooting at you[.]” White testified he then saw appellant go “into the drawer,” point his gun and shoot. White testified he did not know where appellant aimed the gun. White testified he ducked, heard three shots and then saw the victim bleeding on the ground beside White’s vehicle parked in the front yard of the Buford residence. White testified London then fired one more shot at appellant.

White testified that, at the time of the shooting, he was standing on the driver’s side of his vehicle parked in the front yard, approximately two feet away from London who was standing on the front porch. White testified that when he last looked at the victim prior to the shooting, the victim was sitting on the back of White’s vehicle. White testified that when appellant shot his gun, appellant’s vehicle was in the street near a big tree in front of the residence.

The second witness to the shooting, London, aged eighteen years, testified that, when he observed appellant talking to White in the front yard on the day of the shooting, he (London) told appellant “to get off the front of my yard with that troublef.]” London testified appellant drove past the Buford residence at least six times more that day. London testified that, after he (London) shot his gun twice into the air, he held it in his left hand pointing towards the porch upon which he stood. London testified that appellant then drove back before the residence, asked “[W]as y’all shooting at me?” and London replied, “[N]o, I didn’t.” London testified appellant then acted as though he was going to drive away, but stopped his vehicle and fired three times. London testified: “I heard one bullet hit in front of me, hitting the house. I jumped back. A second bullet hit behind me, between the door panel.” London testified the third bullet hit the victim, who was leaning against White’s vehicle parked in front of the porch. London testified the victim was between him and appellant’s vehicle. London testified appellant’s vehicle was completely stopped when appellant fired the three shots and that appellant “was aiming his gun towards me.” London testified that, after the three shots were fired, he (London) shot once more, aiming at appellant’s vehicle that was then moving away.

The third witness to the shooting, April Cullins, a thirteen-year-old cousin of the victim, testified she was on the front porch of the Buford residence on the day of the shooting when someone told her to go inside. Cullins testified she went inside and, after a few seconds, looked out the front window and saw London, the victim, and White outside. Cullins testified she saw a vehicle come by, saw some “translating back and forth,” and saw London shoot his gun “up in the air to scare them off.” Cullins testified she saw the vehicle drive down the road and turn around, and that she heard more conversation. Cullins testified she saw appellant shoot. She testified: “[A]fter they got past the tree, they shot, and my cousin turned his head, and a bullet caught him in his left eye[.]” Cullins testified London stood on the front porch and the victim was standing against White’s vehicle on the side facing the residence.

Appellant testified he followed White home on November 4, 1993 after White “started throwing up some gang signs,” and that the two of them resolved the matter there without conflict. Appellant testified the second time he came by the Buford residence that day was after playing basketball when he heard shots and drove over to investigate. Appellant testified he saw White and the victim in the front yard and London on the front porch, asked White if he was shooting at appellant’s vehicle, and heard the victim answer: “Yeah, I’m shooting at your car, nigger.” Appellant testified he and the victim then exchanged obscenities and “a shot fired.” Appellant testified he shot twice out the back window of his vehicle, without aiming at the victim or White or London, and then left.

Pulaski County Sheriff’s Department Detective Terry Ward testified that the murder weapon, a 0.38-caliber automatic pistol, was recovered. Ward testified two fresh bullet holes were located on the Buford residence, one on each side of the front door. Ward testified the bullets were not recovered because they penetrated the walls of the residence too deeply.

The evidence of the verbal altercations between appellant and London on the afternoon of the shooting, of the “warning” shots fired by London as appellant drove by, of London’s armed presence on the front porch of the residence, of appellant’s demand to know if he was being shot at, of the proximity of London’s position on the porch to the fresh bullet holes in the door of the residence, of the proximity of appellant’s vehicle to the residence at the time of the shooting, of the 0.38-caliber automatic pistol used by appellant, and of the victim’s position between appellant’s vehicle and London is substantial evidence that appellant caused the victim’s death with the purpose of causing the death of London. Conflicts and inconsistencies in the evidence were for the jury to resolve, as factfinder, and not for the trial court to resolve on a directed verdict motion. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992).

PROOF OF JUSTIFICATION

With respect to appellant’s assertion that the evidence established justification for his act, we observe the jury was instructed on self-defense, but chose not to accept the defense. Consistent with the fact that, on review of the denial of a motion for directed verdict, this court need only consider that evidence that supports the guilty verdict, and irrespective of appellant’s evidence of justification, this court concludes the proof of appellant’s guilt is substantial. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). The trial court did not err in denying the motion for directed verdict.

Affirmed.