author: W. H.“Dub” Arnold, Chief Justice.

text:
    Asa D. STEWART v. STATE of Arkansas
    CR 99-728
    999 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered September 30, 1999

      John H. Bradley, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   W. H.“Dub” Arnold, Chief Justice.

Appellant, Asa D. Stewart, was found guilty of aggravated robbery and first-degree murder in connection with the death of Russell Hinkle at a rest stop outside Blytheville, Arkansas. Stewart was sentenced to consecutive terms of twenty-five years’ imprisonment in the Arkansas Department of Correction for the murder conviction and forty years’ imprisonment for the robbery offense. In the first appeal of this matter to the Arkansas Court of Appeals, Stewart challenged (1) the trial court’s decision permitting the State to amend the felony information two days prior to trial to add the offense of aggravated robbery, (2) the sufficiency of the evidence supporting his aggravated-robbery conviction, and (3) the trial court’s admission into evidence of three photographs. The appellate court reversed and dismissed appellant’s aggravated-robbery conviction, affirmed the trial court’s admission of the photographs, and affirmed appellant’s first-degree murder conviction. See Stewart v. State, 67 Ark. App. 1, 992 S.W.2d 147 (1999). In light of its decision reversing and dismissing the robbery conviction, the court declined to address Stewart’s objection to the amended information.

Subsequently, we granted review of the Court of Appeals’ decision. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 2-4 (1999). When we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)). In the instant appeal, Stewart again challenges the amendment of the felony information shortly before trial, the sufficiency of the evidence supporting the aggravated-robbery conviction, and the trial court’s admission of three photographs. We find no merit in appellant’s arguments, and we affirm the trial court. Further, we reverse in part and affirm in part the Court of Appeals.

I. Amendment of felony information

The appellants’ first point on appeal contends that the trial court erred by permitting the State to file an amended information alleging aggravated robbery, pursuant to Ark. Code Ann. section 5-12-103, as a separate count from the capital-felony-murder count in the original, December 20, 1996, felony information. Specifically, Stewart argues that he was prejudiced by the amended information because he was taken by “surprise” immediately prior to trial. However, during the pretrial conference, defense counsel acknowledged:

Also, the State has filed an amended information yesterday. I was told about it last Friday. I really don’t have any objection to the amendment on the capital murder. [The prosecutor] has made me aware that he was going to do that sometime ago, so I’m not really surprised, but I am objecting to the addition of the charge which my client was not charged with, which is aggravated robbery. I can’t say I don’t know how to defend an aggravated robbery case. I’ve done lots of them, but at this late stage, the day before the trial, to be charged with another Class Y felony, I think violates his due process rights.

In any event, the State is entitled to amend an information at any time prior to the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. See Manning v. State, 318 Ark. 1, 4, 883 S.W.2d 455, 457 (1994) (citing Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993)). Significantly, the mere fact that an amendment authorizes a more severe penalty does not change the nature or degree of the crime. See id.

In support of its position that the prosecutor changed the nature of the charge by amending the information, appellant cites Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982). However, the prosecutor in Harmon amended the information by adding a different underlying felony without adequate notice to the defendant. Harmon, 277 Ark. at 269-70, 641 S.W.2d at 23-24. Here, the original information set out all the elements of aggravated robbery. The December 20, 1996, felony information alleged that Stewart committed capital murder with premeditation and deliberation and in the course of and in the furtherance of a robbery during which the victim was shot multiple times.

Given that the language of the original information contemplates the elements for aggravated robbery and, more importantly, that defense counsel acknowledged his awareness that the State would be amending the information, we cannot say that the appellant was prejudiced by surprise. Accordingly, we hold that the trial court did not err by permitting the State to amend the information to include the aggravated-robbery charge.

II. Sufficiency of the evidence

At the close of the State’s case-in-chief and at the close of evidence, Stewart moved for a directed verdict of not guilty on the aggravated-robbery charge. The trial court denied the motions. On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Freeman v. State, 331 Ark. 130, 131, 959 S.W.2d 400, 401 (1998) (citing Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997)). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is any substantial evidence to support it, when viewed in the light most favorable to the State. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401.

Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401. Notably, the evidence may be either direct or circumstantial. Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

In the instant, case, the State theorized that appellant acted as an accomplice in Hinkle’s robbery and murder. Although appellant does not attack the sufficiency of the murder conviction, he suggests that the evidence is insufficient to support the State’s theory that a robbery occurred. Notably, during a statement to the police, appellant implicated DeAshley Wright in Hinkle’s death, and the parties later stipulated that Wright shot Hinkle with a .45 caliber semiautomatic pistol.

We have stated that the presence of an accused in the proximity of a crime in a manner suggestive of joint participation is a relevant factor in determining an accomplice’s connection to a crime. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Relevant factors include (1) the presence of the accused in proximity of a crime, (2) the opportunity to commit the crime, and (3) an association with a person involved in the crime in a manner suggestive of joint participation. Britt v. State, 334 Ark. 142, 974 S.W.2d 136 (1998); Harrell v. State, 331 Ark. 232, 962 S.W.2d 325 (1998). Moreover, flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt. Passley, 323 Ark. at 306, 915 S.W.2d at 251; Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996).

Here, appellant admitted in his statement to police that it was DeAshley Wright’s intent to rob someone on the evening of November 14, 1996. Wright, appellant, and others discussed the possibility of robbing someone, but appellant claimed that he replied “no.” However, he admitted to accompanying his associates to the rest stop with knowledge of their intent. According to appellant, prior to Hinkle’s shooting, he accompanied three other youths, armed with weapons, to the rest stop. Wright backed their vehicle, with a towel-covered license plate, into a parking spot. The group then loitered at the rest stop about thirty minutes, and, when Hinkle, an elderly man, entered the bathroom alone, two of appellant’s group also entered the bathroom. Stewart admitted that he was armed with a handgun that evening but contended that he did not have the gun in the bathroom. While in the bathroom, appellant heard four shots and saw Hinkle fall to the ground. Stewart suggested that he was unaware that Wright had prepared for a quick getaway, but, nevertheless, he fled with the others following the shooting and attempted to conceal his identity.

Later that evening, appellant accompanied Wright to Steven Edwards’s home. Edwards testified that he saw appellant with a .38 caliber weapon and that he observed Wright and Stewart attempting to clean a possible blood stain from the car seat. Additionally, following the arrests of Tyrell Pulley and Steven Edwards, Sergeant Ross Thompson recovered a cache of weapons, including appellant’s .38 caliber handgun.

Other witnesses testifying for the State provided additional evidence of appellant’s participation in a botched robbery attempt. First, Michele Kinaan, the victim’s daughter, testified that when she and her parents stopped at the rest stop, she saw “two black young males standing outside the door of the men’s room, just standing there, and then as we got closer, they both . . . quickly went in the rest room.” Once inside the women’s room, Kinaan heard four shots, came out of the restroom, and saw her father lying on the ground.

Kenneth Stark, a truck driver, also testified that he was at the rest stop at the time of the shooting. He observed “a group of youths, probably in their mid to late teens . . . three African Americans and one Caucasian male.” Stark noted that the men were all wearing “rather large bulky shirts.” He also observed an elderly gentleman, his wife, and daughter, go into the restrooms. He then heard four loud bangs and saw four youths run from the restroom and sprint around the corner of the building.

Another State’s witness, Charles Meyers, testified that he saw four people come running out from the restroom area following the shots, pass in front of him, and get in a red car, which was parked “opposite the way the parking spaces were lined out” and was “backed in.” He noted that he could not see any of the group’s faces because they had heavy winter jackets pulled up over their heads. He described the group as “younger people.” Significantly, Meyers was unable to see the license plate because it was covered with “a towel or something.”

Daniel Roy Holm testified that on the day of the shooting he went to Steven Edwards’s house, and Edwards, DeAshley Wright, Tyrell Pulley, and appellant soon arrived in a red car. Hohn noted that the foursome acted “pretty nervous.” He also observed that Wright had a .45 caliber gun and that Stewart had a .38 caliber gun. Then, he saw Wright, Edwards, and appellant outside cleaning the driver’s seat of the car with mustard.

Finally, Katherine Crigger, a former girlfriend of Edwards, testified that she saw appellant and the others in Edwards’s bedroom on the day of the shooting. Among other things, she observed appellant pull a handgun “from the mattress and [stick] it in his pants.”

We have long held that the trier of fact is free to believe all or part of a witness’s testimony. Freeman, 331 Ark. at 134, 959 S.W.2d at 402 (citing Mosley v. State, 323 Ark. at 250, 914 S.W.2d at 734). The credibility of witnesses is an issue for the jury and not for this court. Marta v. State, 336 Ark. 67, 74, 983 S.W.2d 924, 928 (citing Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998)). Further, the jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). We have also stated that a defendant’s improbable explanation of suspicious circumstances may be admissible as proof of guilt. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Bennett v. State, 297 Ark. 115, 754 S.W.2d 799 (1988).

Given appellant’s knowledge that his associates contemplated a robbery, his admission that he arrived at the rest stop armed and loitered for about thirty minutes, his acknowledgment that he was in the bathroom at the time Hinkle was shot, and testimony that appellant covered his head, fled with the group, and was later seen with a weapon, the jury had substantial evidence to conclude that appellant participated in a botched robbery attempt. Viewed in the light most favorable to the State, we conclude that there is sufficient evidence to support appellant’s aggravated-robbery conviction.

III. Admission of photographs

Arguing that three images are “gruesome,” “bloody,” “inflammatory,” and “prejudicial,” appellant objects to the trial court’s admission of (1) a photograph depicting the victim at the crime scene as he was discovered by the police, and (2) two autopsy photographs. Ark. R. Evid. 403 (1999) permits the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Accordingly, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ark. R. Evid. 403.

This court will not reverse a trial court for admitting photographs absent an abuse of discretion. Jones v. State, 329 Ark. 62, 65, 947 S.W.2d 339, cert. denied, 118 S. Ct. 574 (1997). In Jones, we discussed the guidelines for determining whether a trial court has abused its discretion by admitting photographs. For example, although we are highly deferential to a trial court’s discretion, we have rejected a carte blanche approach to the admission of photographs. Jones, 329 Ark. at 65, 947 S.W.2d at 340 (quoting Camargo v. State, 327 Ark. 631, 940 S.W.2d 631 (1997) (internal citations omitted)). In making the admission determination, we require a trial court to consider, first, whether the relevant evidence creates a danger of unfair prejudice, and, second, whether the danger of unfair prejudice substantially outweighs its probative value. Jones, 329 Ark. at 66, 947 S.W.2d at 341 (quoting Camargo v. State, 327 Ark. 631, 940 S.W.2d 631 (1997) (internal citations omitted)).

Significantly, after applying the Rule 403 balancing test, we have held that even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand the testimony. Other acceptable purposes are to show the condition of the victim’s body, the probable type or location of the injuries, and the position in which the body was discovered. Obviously, when a photograph serves no valid purpose and could only be used to inflame the jury’s passions, it should be excluded. Jones, 329 Ark. at 66, 947 S.W.2d at 341 (quoting Camargo v. State, 327 Ark. 631, 940 S.W.2d 631 (1997) (internal citations omitted)).

Here, Stewart argued that the first photograph, showing the victim lying in a pool of blood near the men’s restroom, was too gruesome and that verbal descriptions adequately described the crime scene. However, the trial court determined that the photograph was probative because it showed the victim’s location in relation to the restroom doors and to pay telephones. Given the acceptable purposes for admitting photographs, we cannot say that the trial court abused its discretion by admitting this crime-scene photograph.

Similarly, appellant claimed that two autopsy photographs, showing metal rods inserted through the victim’s gunshot wounds, were inflammatory and prejudicial. Appellant suggested that the photographs depicted Hinkle’s arms “pinned in sort of an odd position which would be grotesque.” In response, the trial court noted that the autopsy photographs reflected a natural arm position resulting from the arms being up and the hands being toward the face. Moreover, the trial court remarked that the photographs showed the nature and direction of the wounds and the path of the bullet “probably in the most descriptive manner that [the trial court has] ever seen. . . .” Consequently, the trial court found that the photographs’ probative value relating to the nature of the wounds was not substantially outweighed by any danger of unfair prejudice. In light of the acceptable purposes for admitting photographs, we conclude that the trial court did not abuse its discretion by admitting these autopsy photographs.

In conclusion, we affirm the trial court and the Court of Appeals with respect to appellant’s first-degree-murder conviction and the admission of photographs. However, we reverse the Court of Appeals’ decision reversing and dismissing appellant’s aggravated-robbery conviction. Accordingly, we affirm appellant’s first-degree-murder and aggravated-robbery convictions.


source: Caselaw Access Project

author: Donald L. Corbin, Justice. Ray Thornton, Justice,

license: Public Domain

text:
    Bruce Earl WARD v. STATE of Arkansas
    CR 98-657
    1 S.W.3d 1
    Supreme Court of Arkansas
    Opinion delivered September 30, 1999

      William R. Simpson, Jr., Public Defender, by: Tammy L. Harris and Julia B. Jackson, Deputy Public Defenders, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Bruce Earl Ward was convicted of the capital murder of eighteen-year-old Rebecca Doss and sentenced to death by lethal injection. This is the third appeal of this matter. In the first appeal, this court affirmed Ward’s capital-murder conviction, but reversed the death sentence and remanded for resentencing. See Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied, 506 U.S. 841 (1992) (Ward I). The resentencing trial was held on February 9, 1993, resulting in Ward’s being sentenced to death again. On appeal to this court, it was discovered that the court reporter responsible for transcribing the second trial had failed to record a number of the bench conferences. Attempts to reconstruct the record proved unsuccessful. As a result, this court reversed the death sentence and remanded the matter for a new sentencing trial. See Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam) (Ward II). A third sentencing trial was held on October 27, 1997, in the Pulaski County Circuit Court. The jury sentenced Ward to death, and he appeals. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Ward raises two points for reversal. We find no error and affirm.

As Ward’s conviction has already been affirmed by this court, it is not necessary to recite the facts of this crime in great detail. Suffice it to say that on August 11, 1989, Little Rock Police Sergeant Michael Middleton was patrolling the area near the Jackpot convenience store on Rodney Parham Drive. Upon puffing into the parking lot, he noticed that the store’s clerk was not at her normal work station. He then went into the store to try and locate the clerk. After he had looked through the store and was unable to find the clerk, Middleton called other officers to assist in the search. In the meantime, Middleton began to check outside the store, near the restrooms. He observed Ward walking from the restrooms toward a motorcycle that was parked nearby. Middleton spoke to Ward and told him that he was looking for the store’s clerk. Ward told the officer that the clerk was inside the store, stocking. Ward stated that he had just had a cup of hot chocolate with the clerk and that she had given him the key to the restroom. Moments later, Sergeant Scott Timmons discovered Doss’s body lying on the floor of the men’s restroom. She had been strangled to death. Ward was arrested and subsequently convicted of the murder.

The State submitted only one aggravating circumstance to the jury, that Ward had previously committed a felony offense involving the use or threat of violence to another person. See Ark. Code Ann. § 5-4-604(3) (Repl. 1997). The prior violent act relied upon by the State was the 1977 homicide of Janet Needham in Erie, Pennsylvania, for which Ward was convicted of the crime of voluntary manslaughter. In addition to a certified copy of Ward’s manslaughter conviction, the State introduced photographs of the crime scene and testimony from Detective David Bagnoni, one of two Erie police officers that investigated Mrs. Needham’s death.

Ward argues that the trial court erred in allowing the State to present the testimony of Detective Bagnoni and the photographs of the crime scene in lieu of the fact that Ward did not dispute nor challenge his prior conviction of voluntary manslaughter. Ward objected on the grounds that the evidence was not relevant and was highly prejudicial and inflammatory. Relying on this court’s holding in Ward I, the trial court allowed the State to present the evidence. We agree that this court’s previous ruling decided this issue and is now the law of the case.

The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). The doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue raised in a prior appeal from being raised in a subsequent appeal “unless the evidence materially varies between the two appeals.” Id. at 110, 987 S.W.2d at 683 (quoting Kemp v. State, 335 Ark. 139, 142, 983 S.W.2d 383, 385 (1998) (quoting Fairchild v. Norris, 317 Ark. 166, 170, 876 S.W.2d 588, 590, cert. denied, 513 U.S. 974 (1994))). The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. Id.; Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997).

Ward’s current argument is merely a duplication of that previously argued. In the first appeal, Ward argued that the trial court erred in allowing the State to introduce photographs and police testimony concerning Ward’s prior manslaughter conviction. He argued that undue prejudice resulted from the admission of the photographs and police testimony because the State could conclusively prove the aggravating circumstance with the prior conviction alone. This court rejected Ward’s argument, holding:

In Johnson v. Mississippi, 486 U.S. 578 (1988), the Supreme Court held that a finding of aggravating circumstances based on a prior felony conviction could not stand if the prior felony conviction was later overturned. The Supreme Court noted that the prosecutor in Johnson had relied solely on the document of conviction, and had not introduced any evidence relating to the prior felony itself. Id. at 585. We recently relied on the Johnson holding in Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), to remand a death sentence for resentencing. In the Sanders case, the state relied solely on the defendant’s prior conviction to establish the aggravating circumstance of a previous felony.
In this case, if the state did not introduce evidence regarding the circumstances of appellant’s prior manslaughter conviction, the validity of the jury’s aggravating circumstances finding would remain contingent upon Pennsylvania not reversing appellant’s prior conviction. In light of the Johnson holding, the probative value of the extraneous evidence increases significantly.

Ward I, 308 Ark. at 423, 827 S.W.2d at 114 (emphasis added). This court went on to analyze the evidence under Ark. R. Evid. 403 and concluded that the trial court did not abuse its discretion in allowing the evidence, as “the photographs and testimony were relevant in establishing the aggravating circumstances of a previously committed felony, and in illuminating the facts for the jury’s consideration.” Id. at 424, 827 S.W.2d at 114.

The record reflects that the evidence presented at each sentencing trial was materially the same. The photographs introduced at the first trial “depicted the body of a young woman, naked from below the torso, lying in a wooded area with the contents of her purse strewn out beside her.” Id. at 423, 827 S.W.2d at 114. The photographs introduced at the last trial depicted the same scenes. The substance of the police testimony introduced at both trials was substantially the same, though given by different persons. In the first trial, the testimony was given by Detective Dominick DiPaolo, while the testimony in this trial was given by Detective Bagnoni. There is no dispute that the officers jointly investigated the Pennsylvania homicide. Both officers described the crime scene, the victim’s injuries and cause of death, and the circumstances connecting Ward to the homicide. Accordingly, because this court considered and decided in Ward I the same argument raised in the instant appeal, our prior decision with regard to that matter is binding in this appeal.

Ward also asserts that the trial court erred in refusing to grant a mistrial when Detective Bagnoni testified concerning missing credit cards belonging to Mrs. Needham. He argues that the testimony was unfairly prejudicial to him because it amounted to an unsubstantiated allegation of criminal activity, i.e., robbery or theft, for which he was never charged or convicted. The record reflects the following pertinent testimony from Bagnoni.

Q. And did you find anything at the scene that led you to an arrest in this case?
A. Yes, I did. Our ID division was called and at that time they responded to the scene. They took photographs and they were there to collect evidence. After everything had been processed by them, we began to go through the items in the purse to determine what was there and what was not there and we came upon a picture of Bruce Earl Ward with his phone number on the back of it. I believe it was his phone number.
Q. Detective, do you see Bruce Earl Ward in the courtroom today?
A. Yes, I do. He’s sitting at the — defendant in the sort of blue and pink or purple shirt with the beard.
Ms. Larue: Let the witness — let the record reflect that this witness has identified the defendant, Bruce Ward.
Ms. Larue continuing:
Q. After finding that photograph, did you continue your investigation?
A. Yes, I did.
Q. And did you — what other evidence did you locate that morning or did you find out about that morning concerning the contents of Ms. Needham’s purse?
A. That morning when we looked at the body originally, the ligature marks around the neck were comparative to the purse strap. They were — we compared it and we had asked that the ID division transport the purse along with the body so they could be compared at a later time.
Q. But did you compare them yourself at the crime scene?
A. Yes.
Q. Did you later make contact with a gas station attendant— A. Yes, I did.
Q. —there in Erie, Pennsylvania? And what was the result of that meeting?
A. We had determined that out of her purse there were some credit cards missing and eventually we determined that one of the credit cards had been used.

At that point in the questioning, Ward moved for a mistrial on the ground that the jury had heard evidence of a crime for which he was not tried or convicted. Ward explained that he had been originally charged with the robbery of the victim, but that the charge was dismissed by the Pennsylvania prosecutor prior to his trial. The State argued that the evidence was being offered to show how the police came to arrest Ward for the crime. The trial court denied the motion for mistrial, but instructed the prosecutor to move along with that line of questioning. No admonition or cautionary instruction was ever requested by Ward. Ward now urges that the trial court’s ruling was erroneous.

We note at the outset that the trial court has wide discretion in admitting evidence, including that presented during the penalty phase of the trial, and we will not reverse the trial court’s ruling absent an abuse of discretion. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999) (citing McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998); Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998)). Moreover, a mistrial is a drastic remedy and should only be declared when there has been an error so prejudirial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999); Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Id. We defer to the trial court, as it is in a superior position to determine the effect of the remark on the jury. Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998); Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998).

In support of his argument, Ward relies on this court’s holding in Ward I involving the trial court’s admission of a collection of Pennsylvania documents relating to Ward’s prior manslaughter conviction. Among the documents admitted at the first trial were a felony information charging Ward with the murder of Mrs. Needham and a police affidavit alleging that he had committed the additional offenses of rape and robbery. This court held:

We agree with appellant that the admission of these unsubstantiated allegations was prejudicial error in the penalty phase of the trial.
The state offered no proof that appellant had previously committed the offenses of murder, rape, and robbery. While we stated earlier that the state is not limited to admission of a prior conviction in proving that a defendant previously committed a prior felony, mere allegations do not constitute proof. In this case, the prejudicial effect of the rape and robbery allegations was compounded by the photographs depicting an unclothed victim and the testimony regarding the strewn contents of the victim’s purse.

308 Ark. at 424, 827 S.W.2d at 115 (citation omitted). Ward now asserts that this ruling mandates a reversal in this instance. We disagree.

Arkansas Code Annotated § 5-4-602(4) (Repl. 1997) provides in part that “[i]n determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in § 5-4-604[.]” Our aggravating-circumstances statute “is concerned with disclosing whether the defendant’s history establishes such a propensity for violence that it will reoccur.” Whitmore v. State, 296 Ark. 308, 316, 756 S.W.2d 890, 894 (1988). One such aggravating circumstance is that the defendant previously committed another felony, an element of which was the use or threat of violence. This circumstance may be proved regardless of whether the prior violent felony resulted in a conviction against the defendant. See Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). Obviously, when the prior violent felony has not resulted in a conviction, the State must present evidence showing that the defendant committed the act. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). Even when a conviction exists, however, it may well be folly for the State to rely solely on the prior conviction. See Ward I, 308 Ark. 415, 827 S.W.2d 110. Ward’s argument raises the question of what evidence the State may present to prove the defendant’s prior commission of a violent felony that resulted in a conviction. Pursuant to section 5-4-602(4), we conclude that the State may present “any matters relating to” the prior violent felony, including the circumstances surrounding the commission of the prior crime.

It is fundamental that all the circumstances surrounding a particular crime may be shown, even if those circumstances would constitute a separate criminal act or acts, provided that the criminal acts are intermingled and contemporaneous with one another. See McGehee, 338 Ark. 152, 992 S.W.2d 110; Brown v. State, 305 Ark. 53, 805 S.W.2d 73 (1991). The relevance of circumstances that tie the perpetrator to the victim and raise a possible motive for the killing is patently obvious. Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), cert. denied, 520 U.S. 1242 (1997). In short, the State is entitled to present evidence showing circumstances that explain the act, show a motive for killing, or illustrate the defendant’s state of mind. McGehee, 338 Ark. 152, 992 S.W.2d 110. Moreover, when the purpose of the evidence is to show a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Id. Though the foregoing holdings pertain to evidence used during the guilt phase of the trial, we have recently upheld the admission of other criminal acts to prove the aggravating circumstance that the defendant committed a prior violent felony. See Williams v. State, 338 Ark. 97, 991 S.W.2d 605 (1999) (holding that to prove a prior conviction of kidnapping, the State was permitted to introduce testimony from the victim that the defendant raped her, as engaging in deviate sexual activity is one of the stated purposes of the crime of kidnapping).

Here, Detective Bagnoni testified as to the violent circumstances of Mrs. Needham’s death, namely that she was strangled and that the marks on her neck compared favorably to the strap of her purse. This testimony was corroborated by the victim’s death certificate, which indicated that she had been strangled. Bagnoni described the crime scene, using two black and white photographs to assist him, and pointed out how the contents of the victim’s purse had been strewn about the area of her body. He stated that near the contents of the purse was a photograph of Ward with a telephone number written on the back. He indicated that he subsequently came into contact with an attendant at a local gas station, and that as a result of that contact, he made the determination that some of Mrs. Needham’s credit cards were missing and that one had been used.

We conclude that Bagnoni’s testimony was relevant, as it linked Ward to the crime of which he was ultimately convicted, that of voluntary manslaughter. Although Bagnoni’s testimony was preempted by Ward’s objection, the obvious implication was that Ward used the stolen credit card at the gas station, and that this act led police to arrest him for Mrs. Needham’s death. Such testimony is clearly probative of Ward’s actual participation in the victim’s death. As this court explained in Ward I, had the State not presented evidence of the circumstances of the prior crime, the validity of the jury’s finding of an aggravating circumstance would remain contingent upon Pennsylvania not reversing Ward’s prior conviction. See Johnson v. Mississippi, 486 U.S. 578 (1988). Furthermore, unlike the offensive documents introduced in Ward I, there was no mention to the jury that Ward was charged with or otherwise accused of the theft or robbery of Mrs. Needham.

Additionally, we conclude that an admonition to the jury, that Ward was not convicted of any crime other than voluntary manslaughter and that the testimony may only be considered in explaining the circumstances of the manslaughter conviction, would have been sufficient to cure any prejudice that may have resulted from the testimony. See Kimble, 331 Ark. 155, 959 S.W.2d 43 (holding that an admonition is sufficient to cure a witness’s reference to a defendant’s previous record during the guilt phase of the trial). An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Id. It is the defendant’s obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal. Id. Because Ward did not request such an admonition, we cannot say that the trial court abused its discretion in denying his motion for mistrial.

In accordance with Rule 4-3 (h), the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such reversible errors were found. For the aforementioned reasons, the judgment is affirmed.

Thornton, J., dissents.

Ray Thornton, Justice,

dissenting. Bruce Earl Ward has been convicted of capital murder. The only remaining issue is whether the penalty for that crime should be life imprisonment without parole, or death. In the original appeal, Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992) (Ward I), we remanded the case for resentencing because we found that the State committed reversible error by introducing unproven allegations of other crimes during the sentencing phase of the trial.

In Ward I, the offending evidence was presented by way of a document, specifically, Exhibit 18, attached to a Pennsylvania conviction of voluntary manslaughter. That exhibit suggested the possibility of other crimes that Ward was neither charged with nor convicted of committing. In this case, the tainting material was presented in testimony. In Ward I, we stated that, “We agree with appellant that the admission of these unsubstantiated allegations was prejudicial error in the penalty phase of the trial.” Id. Because I believe that the State made the same error during this resentencing hearing, I respectfully dissent and suggest that the State be required to conduct a resentencing hearing for the purpose of presenting evidence of the Pennsylvania crime of voluntary manslaughter without enhancing it with evidence that suggests, but does not prove, an additional crime that Ward was not charged with committing.

I respectfully dissent.


author: Robert L. Brown, Justice.

text:
    William J. McCUEN v. STATE of Arkansas
    CR 97-1520
    999 S.W.2d 682
    Supreme Court of Arkansas
    Opinion delivered September 30, 1999

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant William J. McCuen appeals from a judgment entered nunc pro tunc which corrected an earlier judgment and commitment order by adding a fine of $30,000. McCuen contends in this appeal that the omission of the $30,000 fine in the first judgment is a judicial error which cannot be corrected after appeal. We disagree and affirm.

On April 29, 1996, McCuen was sentenced by the trial judge in open court to seventeen years imprisonment and a $30,000 fine, following guilty pleas entered previously. The next day, the trial judge signed the judgment and commitment order, but that judgment did not include the $30,000 fine which had been imposed.

On May 3, 1996, McCuen filed a petition to vacate his sentence and to allow withdrawal of his pleas. On approximately July 23, 1996, he filed a pro se motion to correct sentences imposed in an illegal manner. Both of these petitions were denied by the trial judge, and this court affirmed those denials in the first appeal of this matter. See McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997) (McCuen 1). The mandate was issued in this case on April 25, 1997.

On September 9, 1997, McCuen filed a petition for writ of habeas corpus in federal district court and asserted for the first time that the State could not collect the $30,000 fine, because the fine was not part of the written judgment entered against him. The day after McCuen filed his habeas petition, the State filed a motion for correction of judgment and commitment order and sought to have the original judgment amended to include the $30,000 fine. On September 11, 1997, McCuen filed a response to the State’s motion and contended that the trial judge had lost jurisdiction to amend the original judgment, because the case had already been appealed to this court and a mandate had been returned.

On September 18, 1997, the trial judge entered a judgment and commitment order nunc pro tunc in which he stated that the $30,000 fine had been “inadvertently omitted” from the original judgment.

McCuen appeals from the corrected judgment and maintains that the trial judge was without jurisdiction to amend the original judgment and commitment order because it occurred after the date of the first appeal and after the mandate was issued. Though he makes this argument, McCuen agrees that there is no dispute that the trial judge sentenced him in open court to pay $30,000 and serve seventeen years in prison. It is the omission of the fine in the judgment signed by the trial judge and entered the following day that McCuen claims constitutes a judicial error that cannot be corrected after the mandate is returned.

McCuen discusses several theories in support of his argument which we will discuss seriatim. He first contends that once a sentence is placed into execution, it cannot be modified, and he cites three cases in support of his position. See Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996); Redding v. State, 293 Ark. 411, 783 S.W.2d 410 (1987); Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984). None of these cases, however, involved a fact situation where there was no dispute over the correctness of the oral sentence pronounced in open court, or where a second judgment was entered nunc pro tunc to reflect the truth of that sentence.

For example, in Glick v. State, supra, the trial judge did not state as part of the sentencing whether the multiple sentences would run concurrently or consecutively, and the first judgment was silent on that point. It was only in a later, amended judgment that the trial judge stated that there had been a clerical error and that the sentences should run consecutively. We observed on appeal that a judgment could be corrected subsequently to speak the truth and to correct a clerical mistake but not to modify a judicial act. We cited McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933), for that proposition, and held that the trial judge was attempting to modify an earlier judgment and had no authority to do so.

The instant case is different factually from the Glick case. Here, there is no dispute over whether the trial judge's sentence in open court included the fine. Furthermore, it is' clear that there was a clerical error that omitted the fine in the-judgment signed the next day, which led to the trial judge’s later judgment entered nunc pro tunc. That later judgment was manifestly for the purpose of correcting the judgment so that it would speak the truth and was not a belated modification of a judicial act. Even McCuen acknowledges in his brief that mistakes occur due to the volume of precedents for judgments and orders which a judge must sign. We affirm on this point.

McCuen next urges that Rule 60(a) of the Arkansas Rules of Civil Procedure requires that clerical mistakes be corrected before an appeal is docketed, and after that, if the appeal is pending, clerical mistakes may only be corrected with leave of the appellate court. We know of no case where this court has held that this civil rule applies to criminal cases, and McCuen adduces none. We hold that Rule 60(a) does not govern a nunc pro tunc judgment entered to make the original judgment in a criminal case speak the truth such as we have before us in the instant case.

For his third argument, McCuen claims that correcting the judgment after the appeal in McCuen I was simply too late. Again, we disagree. It is true that we said in Fletcher v. State, 198 Ark. 376, 379, 128 S.W.2d 997, 998 (1939), that judgments could be corrected to speak the truth “in aid of the jurisdiction of the appellate court.” Nevertheless, we do not view this clause as foreclosing the correction of a clerical mistake after an appeal or after the mandate’s issuance. Certainly, that was not the issue considered and resolved by the court in Fletcher v. State, supra.

For his final point, McCuen questions whether what occurred in this case was mere clerical error. Fie contends that clerical error may have been involved in the preparation of the precedent, but when the trial judge signed the judgment and commitment order, it became a judicial act. This argument overlooks the fact that the previous day in open court the trial judge sentenced McCuen to seventeen years in prison and the $30,000 fine. When the matter of the fine was subsequently brought to his attention, the trial judge promptly corrected the omission and described it as “inadvertent.” There is nothing before us to suggest that this is not what happened. We conclude that this is precisely the kind of clerical error meant to be corrected by a judgment entered nunc pro tunc.

In sum, a subsequent judgment entered nunc pro tunc to correct an erroneous judgment to speak the truth was the appropriate course for the trial judge to take. See Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Lovett v. State, 267 Ark. 912, 591 S.W.2d 683 (1979); Harrison v. State, 200 Ark. 257, 138 S.W.2d 785 (1940). Our standard of review in such cases is abuse of discretion, and we hold that in this case, the trial judge acted well within the bounds of his discretion. See Lovett v. State, supra; Richardson v. State, 169 Ark. 167, 273 S.W.2d 367 (1925). As an additional point, we note that there was no showing that McCuen was inconvenienced or prejudiced by the nunc pro tunc judgment, because he was present in open court when the fine was meted out by the trial judge as part of his sentence. See Lovett v. State, supra.

Affirmed.


author: Lavenski R. Smith, Justice.

text:
    Stephanie Deeanna MOON (Hamilton) v. David MARQUEZ
    99-201
    999 S.W.2d 678
    Supreme Court of Arkansas
    Opinion delivered September 30, 1999

      Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Brian Rat-cliff, for appellant.

      Harrod Law Offices, by: David W. Harrod, for appellee.
   Lavenski R. Smith, Justice.

Appellant, Stephanie Deeanna Moon (“Moon”), seeks reversal of a chancellor’s order modifying the surname of her daughter, “M.M.”, to that of the child’s natural father, Appellee David Marquez (“Marquez”). The chancellor entered the order following a hearing on appellee’s Petition to Modify Paternity Order. On appeal, appellant contends that the doctrine of res judicata should apply to bar a name-change petition subsequent to the initial paternity-determination proceeding. The court of appeals found that res judicata did not apply. It also upheld the chancellor’s order changing M.M.’s surname. Moon v. Marquez, 65 Ark. App. 78, 986 S.W.2d 103 (1999). Moon filed a Petition for Review to this court under Ark. Sup. Ct. R. l-2(e). We affirm.

Moon and Marquez met in California in 1992. At one time, the parties were engaged to be married. Over time, the relationship deteriorated, and Moon moved back to Arkansas, her home state, while Marquez moved to Alaska with the military. However, prior to moving apart, Moon conceived a child by Marquez. The child, M.M., was born on February 24, 1993. After receiving a birth announcement from Moon, Marquez sought legal representation and filed a Complaint to Establish Paternity on May 18, 1993, in Ashley County Chancery Court. In that complaint, among other things, Marquez requested that the child’s surname be changed from Moon to Marquez. On June 22, 1994, the court entered a Paternity Order finding that Marquez was the child’s father. This order resulted from the parties agreement, and Marquez dropped his request for name change as part of the settlement. The Chancellor’s order reflected that the child’s surname would be Moon.

Two-and-a-half years later, on December 9, 1996, Marquez filed a Petition to Modify the Paternity Order. Marquez sought to modify custody or, in the alternative, gain greater visitation with the minor child. Once again he requested that the child’s surname be changed to Marquez. In response, Moon filed an answer, and then filed a Motion to Dismiss on May 9, 1997, at which time she raised the affirmative defense of res judicata, arguing that the doctrine bars the claim for name change because it could have been litigated in the original paternity action but was abandoned by Marquez. In his response to the Motion to Dismiss, Marquez argued that the chancellor made no specific finding that M.M.’s last name would be Moon instead of Marquez. Instead, the parties reached an agreement on the issue, but it was never decided by the court.

The chancellor heard the modification petition on July 1, 1997. The parties announced at trial that they had reached agreement on all issues except the question of the name change. Trial proceeded with that as the sole issue. Testimony revealed that since the initial paternity order, Marquez had married and moved to San Antonio, Texas. Moon also had married , and she and M.M. resided with her husband, James Hamilton, in Crossett. In his testimony, Marquez stated that he originally agreed that M.M. should use the surname Moon, but now, after Moon’s marriage, the child was using the surname Hamilton, as well. Marquez stated that the child’s dance-recital program, tap shoes, and backpack all identified her as Hamilton. Additionally, Marquez testified that he sought the change so that he could have a bond with his daughter and avoid confusion for the child as she grows older.

Moon testified and acknowledged she now personally used her husband’s surname of Hamilton. However, she denied that they purposely changed her daughter’s name to Hamilton. She stated that her daughter was registered at school, the doctor’s office, and on her birth certificate as Moon. Moon testified that the dance teacher must have mistakenly put the name “Hamilton” on the dance-recital program. Moon stated she did not know how the name “Hamilton” got on the child’s belongings.

On April 1, 1998, the chancellor issued an order modifying the original paternity order. The court approved the parties stipulated agreement as to custody, support, and visitation. On the same date, the chancellor issued a second order finding that Marquez had paid all required child support and more; that he had provided health insurance for the child; that he had “vigorously pursued” visitation with his child; that he had not shirked is responsibilities to the minor child and had made every effort to be a part of her life; that he had met with considerable resistance from Moon; that the mother no longer used the last name “Moon”; that the child was being referred to both as Moon and Hamilton; that using a different name than the mother’s maiden name makes it less evident that the child was born out of wedlock; that the natural father desires to have the child bear his name; that the “name change from ‘Moon’ to ‘Marquez’ will help strengthen and enhance the parent-child bond between the biological father” and the child; and that it would be in the child’s best interest to bear the surname of Marquez. Moon filed a timely notice of appeal, arguing that res judicata bars this claim for a name change.

Standard of Review

Upon a Petition for Review, we review the case as though it had been originally appealed to this court. Ark. Sup. Ct. R. l-2(e); Huffman v. Fisher, 337 Ark. 58, 63, 987 S.W.2d 269, 271 (1999). Also, we review chancery cases de novo on the record, but do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Office of Child Support Enf. v. Eagle, 336 Ark. 51, 53, 983 S.W.2d 429, 430 (1999).

Res judicata

The single issue in this appeal is whether the doctrine of res judicata applies to bar a claim for name change in a petition to modify a paternity order where the claim had been made in the initial paternity petition but not decided by the court. We hold it does not.

Res judicata bars relitigation of a claim in a “subsequent” lawsuit when five factors are present. These include: (1) the first suit resulted in a final judgment on the merits, (2) the first suit was based upon proper jurisdiction, (3) the first suit was fully contested in good faith, (4) both suits involve the same claim or cause of action, and (5) both suits involve the same parties or their privies. See, e.g., Looney v. Looney, 336 Ark. 542, 546-47, 986 S.W.2d 858, 861 (1999); Office of Child Support Enforcement v. Williams, 338 Ark. 347, 350, 995 S.W.2d 338, 339 (1999). Furthermore, res judicata bars not only the relitigation of claims that were actually litigated in the first suit, but also those that could have been litigated. Kulbeth v. Purdom, 305 Ark. 19, 22, 805 S.W.2d 622, 623 (1991). The purpose of res judicata is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Id.

We have applied this doctrine even in the context of family law. In Williams, we held that res judicata applied to bar a man from contesting his paternity of his children when the issue had already been decided in a divorce proceeding. However, with respect to child custody and support, we apply a modified res judicata, i.e., one that is subject to changed circumstances and the best interest of the child. In Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987), we declined to use an unmodified version of the doctrine of res judicata in a child-support matter. Instead, we followed Clifford v. Danner, and stated:

[N]o order for child support is ever res judicata or so final that the obligations of a parent to the child are not subject to modification. The decisions of this Court have for many years adopted the rule that a trial court always has the right to review and modify child support payment in accordance with changing circumstances and may increase or reduce the payments as warranted in each case. Johnston v. Johnston, 241 Ark. 551, 408 S.W.2d 885 (1966) and Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953).

Thurston, 292 Ark. at 390.

In custody matters, we have taken a similar view for over sixty years. In Tucker v. Turner, 195 Ark. 632 (1938), we stated:

The judgment of a chancery court in this state, awarding the custody of an infant child to one of the parents, or to any other person, is a final judgment, from wHch an appeal lies, but it is not res judicata in the same or another court of this state involving the custody of the same child, where it is shown that the conditions under which the former decree was made have changed and that the best interest of said child demand a reconsideration of said order or decree.

Tucker, 195 Ark. at 636. Relying upon Tucker, Justice George Rose Smith stated in Fulks v. Walker, 224 Ark. 639, 642, 275 S.W.2d 873, 875 (1955), “By the decided weight of authority the decree is final, reviewable, and, in the absence of changed conditions, res judicata of the issues.” In sum, although res judicata can apply in domestic-relations matters, with respect to custody and support, we have unequivocally held that it is subject to changed circumstances and the best interest of the child.

We now turn to the application of this doctrine to the change of a child’s name. We have long held that chancery courts of this state have the power, either by statute or by common law, to change a minor’s name when it is in the best interest of the minor to do so. See Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952); Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). Appellant contends that res judicata should apply to bar a name-change claim in a modification petition even where changed circumstances and best interest support the change. However, appellant presented no authority for the proposition. Indeed, appellant acknowledges that no such authority exists. Instead, appellant merely argues that there is no authority to the contrary. Without question, we have made the best interest of the child the paramount consideration in cases involving name change of a minor. See Huffman, supra; McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991); Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992). Given that fact, we decline to embrace an inflexible rule that would entirely discount the child’s best interest.

The chancellor below heard testimony from the parties for and against the name-change petition and decided that the evidence warranted changing the child’s surname. The chancellor assessed the credibility of the witnesses, weighed various relevant factors, and made explicit findings in the order based upon evidence of changed circumstances and the best interest of the child. We cannot say the chancellor was clearly erroneous.

Affirmed.

       241 Ark. 440, 409 S.W.2d 314 (1966)

       It should also be noted that in McCullough, the father brought the petition for name change several months after paternity was established. Res judicata was not raised as an affirmative defense in that case.


author: Per Curiam.

text:
    James SLACK v. STATE of Arkansas
    CR 99-809
    999 S.W.2d 668
    Supreme Court of Arkansas
    Opinion delivered September 30, 1999

      Kenneth G. Fuchs, for appellant.
    No response.
   Per Curiam.

Appellant James Slack has filed a motion for belated appeal. We previously denied the motion due to Appellant’s failure to file an affidavit in support of his motion, pursuant to Ark. R. App. P.—Crim. 2(e). See Slack v. State, 338 Ark. 512, 999 S.W.2d 667 (1999) (per curiam). We directed Appellant to submit the required affidavit, demonstrating good reason for failing to timely file the notice of appeal, within thirty days of the date of our per curiam opinion.

Appellant’s attorney, Kenneth G. Fuchs, filed an affidavit on September 16, 1999, asserting that the notice of appeal was not filed by him because he never received a copy of the judgment and conviction order, and, therefore, he was never made aware that the order had been filed. Mr. Fuchs stated that Appellant informed him of his desire to appeal the conviction immediately following the jury trial, and that he had agreed to pursue the appeal on Appellant’s behalf.

This court has long held that we will grant a motion for belated appeal when the attorney admits that the notice of appeal was untimely filed due to an error on his part. See Guynn v. State, 332 Ark. 434, 961 S.W.2d 35 (1998) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). Here, the attorney has not assumed responsibility for failing to verify when the judgment and commitment order was filed. A statement that it was someone else’s fault or no one’s fault will not suffice. Guynn, 332 Ark. 434, 961 S.W.2d 35; Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986) (per curiam). The responsibility for the timely filing of appeals must rest upon the litigant and his attorney. Christopher v. Jones, 271 Ark. 911, 611 S.W.2d 521 (1981). We must “put the responsibility where it belongs, on the shoulders of the lawyer who is at fault[.]” In Re: Belated Appeals in Criminal Cases, 265 Ark. 964, 965 (1979) (per curiam).

Because the affidavit does not demonstrate good cause to grant the motion for belated appeal, we must again deny the motion. If Appellant’s attorney files an affidavit accepting full responsibility for failing to file a timely notice of appeal, then the motion for belated appeal will be granted.


author: Per Curiam. Annabelle Clinton Imber, Justice, Glaze, J. agrees.

text:
    David M. WALSTON v. Karen R. WALSTON
    CR 99-808
    999 S.W.2d 676
    Supreme Court of Arkansas
    Opinion delivered September 30, 1999

      Cochran, Schneider & Croxton, P.A., by: Mary M. White Schneider, for appellant.
    No response.
   Per Curiam.

Appellant David M. Walston moves this court for a rule on clerk and shows this court as follows. The parties were divorced in 1995, and the decree was entered by the Howard County Chancery Court. There was one child of the marriage, Brittne Nicole Walston, who was born in 1986. Custody was awarded to Karen Walston, now Simmer. In 1998, Ms. Simmer filed a-motion for contempt and modification of decree in Howard County Chancery Court. On March 3, 1999, following a hearing, the Howard County Chancery Court found David Walston in contempt of court and ordered him to pay $2,000 as child-support arrearage, $237 for medical expenses, and $305 for attorney’s fees and costs. Those funds were to be paid directly to Simmer within ninety days of the date of the order. The chancellor refused to change visitation, except for visitation over the spring break, or to change the amount of child support. The chancery court then, on motion by David Walston, transferred the matter to Benton County Chancery Court pursuant to Ark. Code Ann. § 9-12-320 (Repl. 1998), for enforcement purposes because Benton County is where the parties and their daughter now reside. Under § 9-12-320, the chancery clerk of the court of original jurisdiction transfers certified copies of all case records to the county where the matter has been transferred.

On March 8, 1992, the Howard County Chancery Court order was filed in Benton County Chancery Court and given case number E 99-426-2. On April 5, 1999, David Walston filed his notice of appeal in Benton County Chancery Court from the order originally entered in Howard County but subsequently filed in Benton County. The notice of appeal contained the Benton County Chancery Court case number.

The Supreme Court Clerk refused to file the record in this appeal because the notice of appeal in Benton County Chancery Court was filed more than thirty days after entry of the Howard County Chancery Court order.

Appellant David Walston urges in support of his motion for rule on clerk that the notice of appeal was timely from entry of the order in Benton County and that Howard County is no longer the venue for this matter. Karen Simmer filed no response to the motion. We agree that the appeal was appropriately taken from the date the order was entered in Benton County. That, presently, is the venue for the case, because the parties and their daughter live there and because the matter has been transferred to that county in accordance with § 9-12-320. There has been no objection by either party to the transfer of venue, and though the order was framed by the Howard County Chancery Court, Benton County is where certified copies of the case records are and where the order will be enforced. We grant the motion for rule on clerk and direct the Clerk of the Supreme Court to accept the record in this case, as the notice of appeal is timely when calculated from the date the order was entered in Benton County.

Glaze and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. I must respectfully dissent because the record in this case does not support granting Appellant David M. Walston’s motion for rule on the clerk. For the reasons outlined below, I believe that the motion for rule on the clerk filed by Mr. Walston should be denied.

The Howard County Chancery Court held a hearing on Appellee Karen R. (Walston) Simmer’s motion for contempt and modification of decree on February 10, 1999. At that hearing, the parties advised the chancellor that they were both residents of Benton County. David Walston orally moved to have the case transferred to Benton County for resolution of the motion filed by Karen Simmer. The chancellor declined to transfer the case with reference to the pending motion, but announced that the case would be transferred after he took testimony and ruled on Ms. Simmer’s motion. The chancellor’s rulings on the merits of Ms. Simmer’s motion for contempt and modification are reflected in the order filed in the Chancery Court of Howard County on March 3, 1999. That same order also transferred the case to the Benton County Chancery Court pursuant to Ark. Code Ann. § 9-12-320 (Rep. 1998), which provides that “the court of original jurisdiction shall enter an order transferring the case and charging the chancery clerk of the court of original jurisdiction to transmit forthwith certified copies of all records pertaining to the case.”

The notice of appeal and designation of record filed by David Walston on April 5, 1999, referenced the order entered by the Howard County Chancery Court on March 3, 1999. So as to overcome the filing of an untimely notice of appeal, he now seeks to adopt the date of March 8, 1999, when the Howard County Chancery Court’s order was refiled in the Benton County Chan-eery Court. This effort, however, ignores the fact that the transfer of a case to another venue under Ark. Code Ann. § 9-12-320 does not involve the entry of an order in the receiving court. Furthermore, it is not the Benton County Chancery Court’s order that is being appealed. Rather, Mr. Walston is appealing the Floward Chancery Court’s ruling on Ms. Simmer’s motion for contempt and modification that was filed of record by that court on March 3, 1999.

Under these circumstances, the notice of appeal should have been filed in the Benton County Chancery Court within thirty days after March 3, 1999, the effective date of the Howard County Chancery Court’s order. David Walston’s notice of appeal and designation of the record was filed more than thirty days after entry of the Howard County Chancery order. Hence, the Supreme Court Clerk properly refused to file the record in this appeal, and the motion for rule on the clerk filed by Mr. Walston should be denied.

Glaze, J. agrees.

Mr. Walston’s motion for rule on the clerk should be denied, but is of the view that to effect an appeal from the Howard County Chancery Court, Mr. Walston should have filed his notice of appeal from the order filed in Howard County on March 3, 1999. Neither the parties nor the Howard County Chancery Judge possess the power to transfer a case to another territorial district for appeal purposes.

       At the hearing, she spelled her name “Simer,” but the notice of appeal refers to “Simmer.”

       This statute was amended by Act 1491 of 1999 but that Act was not in effect at the time of the transfer.


text:
    James WINDSOR v. STATE of Arkansas
    CR 99-207
    1 S.W.3d 20
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999

      Kenneth G. Fuchs, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   W. H.“Dub” Arnold, Chief Justice.

The appellant, James W. Windsor, was found guilty of two counts of first-degree murder for the July 17, 1997, murders of Donald Moser and Rebecca Smith and was sentenced to two life terms of imprisonment. Seeking revenge over a drug deal gone awry, appellant, along with Marshall Ramsey and Dena Tucker, drove a red pickup truck, previously reported stolen, to the victims’ home, planning to burn the victims’ house down with Moser and Smith inside. After threatening the victims, a struggle ensued, wherein Donald Moser was shot in the chest and repeatedly beaten in the head.

Dena Tucker then stabbed Rebecca Smith approximately twenty times in the neck with a butcher knife; appellant joined in by beating Smith in the head several times with the barrel of a shotgun. Fires were then started throughout the victims’ home. Leaving the victims for dead, the three then left the scene. Appellant and Ramsey dropped Tucker off at her home in Perry County, then returned to their homes in Texas.

Both victims died. The medical examiner testified at trial that Donald Moser died as a result of both the gunshot wounds and the head beatings, although either one alone would have caused his death. He further testified that Rebecca Smith died as a result of the stabbing and head beatings, although either one alone would have caused her death, as well.

Marshall Ramsey entered into a plea agreement with the State wherein he pleaded guilty to two lesser charges of second-degree murder, as well as arson, and received a much-reduced sentence. This offer was made available to him only in exchange for his truthful testimony against appellant at appellant’s trial. Marshall Ramsey testified against appellant.

Although appellant was charged with two counts of capital felony murder, as well as arson, appellant was found guilty at trial of two counts of murder in the first degree and was found not guilty of arson. He was sentenced to two terms of life imprisonment. He now brings this appeal.

For his appeal, appellant asserts the following:

(1) The trial court erred in not suppressing Marshall Ramsey’s testimony due to witness bribery;
(2) The evidence at trial was insufficient to convict him on first-degree murder charges;
(3) The trial court erred in disallowing the defendant from testifying about what Dean Tucker and Marshall Ramsey stated in furtherance of the conspiracy.

I. Witness bribery

In reviewing a trial judge’s ruling on a motion to suppress, this Court makes an independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State; we reverse only if the ruling is clearly against the preponderance of the evidence. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998); Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).

Prior to trial, appellant filed a motion in limine, requesting that Marshall Ramsey’s testimony at appellant’s trial be excluded, alleging that it would be the result of witness bribery in violation of Ark. Code Ann. § 5-53-108 (Repl. 1997). Marshall Ramsey had entered into a plea agreement with the State wherein he pleaded guilty to two lesser charges of second-degree murder, as well as arson, and received a much-reduced sentence of forty years for each of the second-degree murders, with fifteen years suspended on each count, and a thirty-year sentence on the charge of arson, which was suspended in its entirety. This offer was made available to him only in exchange for his truthful testimony against appellant at appellant’s trial. Marshall Ramsey testified against appellant at appellant’s trial. Appellant’s motion in limine sought to exclude this testimony as illegal due to the inducement to influence Marshall Ramsey’s testimony. The motion was denied by the trial court.

Appellant contends that the trial court erred in not excluding the testimony of Marshall Ramsey, the State’s central witness against appellant. As he did below, appellant now argues that the State engaged in witness bribery by granting Mr. Ramsey leniency in his sentence in exchange for his testimony at appellant’s trial. As authority for this contention, appellant cites United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), wherein the Tenth Circuit Court of Appeals found that the prosecutor in that case, who offered a co-conspirator a downward departure from his sentence if he testified against Singleton, had violated the federal witness bribery statute. The court therein suppressed the co-conspirator’s testimony.

While the Singleton case might otherwise be compelling to support appellant’s argument, the Tenth Circuit later vacated this decision on July 10, 1998, and, on its own motion, granted rehearing era banc. The case was overruled upon rehearing era banc on January 8, 1999. United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999), cert. denied, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). Therefore, appellant’s reliance on the Singleton case is erroneous.

Further, even if Singleton had not been overturned, appellant’s reliance on same is still erroneous because the law in Arkansas regarding witness bribery is different from the federal law on which Singleton was based. Federal law requires no intent or purpose to influence, while Arkansas does. See Ark. Code Ann. § 5-53-108 (Repl. 1997).

It is routine in criminal prosecutions for the State to use accessories to testify under a plea bargain that promises a request for a reduced sentence. See United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987). After all, because the trial court is the sentencing entity, the prosecutor may only request a reduced sentence; the trial court does not have to accept any plea agreement or its terms. Each criminal defendant is expressly asked whether he or she understands this at the time he or she is entering a plea of guilty. To suggest, as appellant does, that the prosecutor in this case has violated Ark. Code Ann. § 5-53-108 and should, therefore, be subject to criminal prosecution for entering into a plea agreement with Mr. Ramsey is nonsense. This Court will not interpret a statute, even a criminal one, so as to reach an absurd conclusion that is contrary to legislative intent. See Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994).

Appellant was given ample opportunity to cross-examine Ramsey concerning his plea agreement with the State; in fact, appellant did cross-examine Ramsey on this issue quite extensively. In short, appellant’s contention that Mr. Ramsey’s testimony should have been excluded altogether has no basis in the law. We, therefore, hold that the trial court correctly denied his motion in limine to suppress Ramsey’s testimony.

II. Sufficiency of the evidence

At trial, appellant moved for a directed verdict at the conclusion of the State’s case and argued two points: (1) that there was no evidence that he committed the murders; (2) that there was insufficient evidence to corroborate the testimony of Marshall Ramsey, a purported accomplice. The trial court denied his motion. Appellant renewed his directed-verdict motion at the close of all the evidence and the trial court once again denied it.

On appeal, appellant argues first that because the cause of death of the two victims, as testified to by the medical examiner, was both a gunshot wound and head injuries as to Mr. Moser, although either alone would have caused his death, and both stab wounds and head injuries as to Ms. Smith, although either alone would have caused her death, it is impossible to deem appellant’s infliction of the head injuries as the cause of death of the victims. Further, appellant contends that because Marshall Ramsey testified that he (Ramsey) shot Moser and that Dena Tucker stabbed Smith, appellant’s alleged infliction of head beatings on the victims was “inconsequential,” and does not amount to “substantial evidence” in order to support a conviction on two counts of first-degree murder.

Second, appellant argues that there was no evidence to corroborate Marshall Ramsey’s testimony, and because Ramsey was an accomplice, his testimony alone is insufficient to establish the commission of the offense and to connect the appellant with same. Appellant cites Ark. Code Ann. § 16-89-111 (e)(1) (1987), which states, “A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence, tending to connect the defendant with the commission of the offense.” Appellant further argues that Dena Tucker’s testimony may not be used to corroborate Marshall Ramsey’s testimony because she, too, was an accomplice.

Motions for directed verdicts are treated as challenges to the sufficiency of the evidence. Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998); McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997) . The test on appeal is whether there is substantial evidence to support the verdict. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993); Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997); McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997).

Appellant’s arguments fail for several reasons. First, taking his arguments in reverse order, appellant’s argument that Dena Tucker was an accomplice and therefore cannot corroborate Marshall Ramsey’s testimony was never argued below. Therefore, this Court may not address this point, as it is well settled that we will not address arguments raised for the first time on appeal. See, e.g., McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).

Second, appellant never requested at trial that Marshall Ramsey be declared an accomplice as a matter of law, nor did he request that his status be submitted to the jury for determination. In addition, appellant did not even request a jury instruction to the effect that the testimony of an accomplice requires corroboration. This Court has clearly held that the appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). A defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995).

When the trial court does not find a witness to be an accomplice, and the defendant fails to request that accomplice instructions be submitted to the jury for consideration, the issue is not preserved for appellate review. Lloyd v. State, supra; Rockett v. State, supra. As a result, appellant’s failure to have Ramsey declared an accomplice or to have the jury consider it precludes him from raising the witness-corroboration rule on appeal. Lloyd v. State, supra; Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).

Finally, in regard to appellant’s challenge to the sufficiency of the evidence to convict him of two counts of first-degree murder, the trial court properly denied this motion, as well, as substantial evidence existed to support his convictions for first-degree murder. At trial, the testimony revealed that on July 17, 1997, Rodney Sanders, a fireman in Conway, responded to a report of a house fire in rural Faulkner County. When Sanders arrived at approximately 7:15 a.m. he found that an older wood-frame house had been destroyed by a fire. Sanders noticed a car in the front yard and was therefore concerned that someone might have died in the fire. He sifted through the remains of the house and found two bodies. Patrick Moore, the Faulkner County Coroner, identified the bodies, which had been found in separate bedrooms, as Donald Moser and Rebecca Smith.

Dr. Stephen Erickson, a medical examiner for the Arkansas State Crime Laboratory, testified that he performed autopsies on both victims. He found that Donald Moser died of a gunshot wound to the chest, although he also suffered multiple skull fractures and head trauma consistent with being hit with a heavy object. Dr. Erickson also found that Rebecca Smith had been stabbed in the heart and lungs, and that she also suffered severe cranial cerebral injuries similar to those sustained by Mr. Moser. He testified that the skull fractures the victims received were severe enough alone to cause death.

Dena Tucker testified that her son had asked appellant and Marshall Ramsey, who were living in Texas at the time, to pick him up in Arkansas and drive him to Texas so he could be with his pregnant girlfriend. Appellant and Ramsey agreed, drove to Arkansas, and stayed at Dena Tucker’s house. While at her house, appellant and Ramsey met Donald Moser, who was, at the time, having an affair with Ms. Tucker.

Testimony continued that appellant had struck a deal with Moser, a methamphetamine dealer, in which appellant would drive to Texas to obtain chemicals that were to be processed by Moser into methamphetamine. In return, appellant was to receive $8,000 from Moser for the chemicals and $250 in expense money. However, when appellant returned from Texas with the chemicals, he learned that Moser could not afford to pay him. In addition, Moser had stopped seeing Dena Tucker and appellant’s repeated efforts to locate him failed.

Appellant and Ramsey spent three days looking for Moser. Tucker testified that once, she and appellant went to Moser’s home and appellant began to beat on the door with a baseball bat in an attempt to get Moser to come outside. However, Rebecca Smith was the only one home at the time; she called out to appellant to leave her alone, and she eventually called the police. A recording of Smith’s call to police was played for the jury.

Eddie Lee testified that on July 17, 1997, appellant came to his house at approximately 4:30 a.m. and accused Lee of hiding Moser. Appellant informed Lee that Moser owed him $250 and that he and a “buddy” were looking for him. Appellant left Lee’s house after they engaged in a protracted argument concerning Moser’s whereabouts. Lee recalled that the day before he witnessed appellant beating on Moser’s door with a baseball bat.

Eddie Schafer testified that at approximately 5:30 the same morning, he drove to Moser’s home to collect money that Moser owed him. Schafer noticed a red pickup truck parked outside Moser’s home. Schafer asked the driver if Moser was home, but the driver replied that he did not know. Schafer left, returned a short time later, and observed that the red truck had moved and that nobody was in the car. Schafer heard Moser inside the house cursing; he said it sounded like a “fight breaking out.” When he heard Rebecca Smith scream, Schafer left and drove to a nearby corner store. A short time later, he observed the same red truck speeding down the road near the store. The red truck had been reported stolen out of a garage the night before.

Sherry Martin, an employee of the corner store, testified that she noticed a suspicious unoccupied car with a Texas license plate parked outside the building when she opened the store around 6:00 a.m., the morning of July 17, 1997. Ms. Martin searched in vain for the owner of the car and then noticed a red truck speeding around the side of the store. When she saw appellant exit the red truck, Martin confronted him about whether he owned the car; appellant said that the car was his, apologized, and drove away.

Obviously, the State produced sufficient evidence to establish that a crime had been committed through the testimony of the State medical examiner. While it is true that the medical examiner testified that either the gunshot wound or the head injuries alone could have caused Mr. Moser’s death, and that either the stab wounds or the head injuries alone could have caused Ms. Smith’s death, the trial court found that the victims’ cause of death in this case was a question for the jury. We agree.

Further, Sherry Martin’s unequivocal testimony placing appellant in proximity to the crime scene on the morning the murders took place was confirmed by appellant’s own trial testimony, wherein he admitted that he had parked his vehicle at the corner store. Schafer’s testimony also placed the red truck at Moser’s home shortly before Ms. Martin saw appellant exit the red truck at the corner store. Further, appellant testified that he did, in fact, have a deal to supply Moser with chemicals for the manufacture of methamphetamine. Appellant’s testimony that Moser refused to pay him for the chemicals could very well have been a motive for the murders.

Finally, there was ample evidence adduced at trial showing that, prior to the murders, appellant acted in concert with Marshall Ramsey, who confessed to shooting Moser. Ramsey and appellant both went to Texas to obtain chemicals; they returned to Arkansas to deliver them to Moser; and, in the days prior to the murders, they both earnestly searched for Moser. Moreover, as stated above, appellant admitted at trial that he accompanied Ramsey to the corner store, which was near the scene of the murders.

In sum, these facts, taken in the light most favorable to the State, amount to sufficient evidence to convict appellant of the first-degree murders of both victims. Accordingly, the trial court properly denied appellant’s directed-verdict motion.

III. Cumulative evidence

At trial, during the direct examination of appellant, the trial court sustained a hearsay objection made by the State. Appellant made a proffer at the close of the evidence that Mr. Ramsey told him that Dena Tucker wanted to burn down the victims’ house with them inside, in order to kill them. As he did below, appellant now argues that the trial court erred in excluding that evidence pursuant to the co-conspirator exception to the hearsay rule, Ark. R. Evid. 801(d)(2) (1999). Appellant claims that Rule 801 would have allowed the testimony in as a statement made by a co-conspirator during the course and in furtherance of the conspiracy.

This Court has repeatedly held that prejudice is not presumed and that we will not reverse the trial court’s ruling absent a showing of prejudice. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). In this case, appellant has failed to demonstrate any prejudice from the exclusion of this evidence because Marshall Ramsey had already testified that Dena Tucker wanted to burn down the victims’ house. We, therefore, hold that as appellant simply sought to introduce cumulative evidence, he was not prejudiced by the trial court’s ruling in this regard. See Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987) (finding that testimony that merely cumulative cannot effect the substantial rights of a defendant).

IV. Rule 4-3 (h) Compliance

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

V. Conclusion

For all of the above-stated reasons, we hereby affirm the convictions and life sentences of appellant James W. Windsor on both first-degree murder charges.

Affirmed.