As readers of this blog know, I have a tremendous respect and admiration for Judge Hart. With that said, I do not think anyone is above criticism when their decisions trample on the rights of all Arkansans.
In Clark v. State, Appellant, a police officer, was arrested on a charge of misdemeanor second-degree assault on allegations of choking an arrestee during the booking process. Appellant argued that the trial court erred in preventing him from putting on testimony from a police officer that determined Appellant did not commit a criminal act, and was, in fact, using defensive tactics on the arrestee.
Special Agent Phillip Hydron of the Arkansas State Police conducted an independent investigation to determine whether appellant committed any criminal act in his handling of the arrestee. The State filed a motion in limine to preclude SA Hydron from stating whether the charges were appropriate. Appellant argued that, due to the exculpatory nature of Special Agent Hydron’s opinion and expertise, the exclusion of his opinion that Appellant did not commit a criminal offense violated his right to due process. The trial court granted the State’s motion in limine.
In addition, Appellant called SA Hydron to testify regarding Appellant’s hand placement on the alleged victim to establish he was using a defensive tactic. The trial court sustained the State’s objection. Therefore, Appellant proffered the testimony.
The majority affirms the trial court’s ruling because the testimony would invade the province of the jury. Judge Hart, however, in her concurring opinion, affirms solely on the basis of lack of preservation.
Two problems arise. One, Judge Hart is incorrect. The argument was preserved. The argument was preserved in the motion in limine. A motion in limine does not require additional objections at trial to be preserved, and it allows the party filing the motion to actually broach the subject it sought to exclude. Therefore, the issue was preserved. Second, and more troubling, Judge Hart made a promise to the people of Arkansas when running for Supreme Court that her preservation rules would be more, not less, strict than other judges. Judge Hart stated that she would rule on an issue if it was clear that it was argued to the trial court. Here, it was.
I have the utmost respect for Judge Hart; however, nothing limits the achievement of justice in Arkansas more than the strict preservation rules.