Recent lessons from the Arkansas Court of Appeals

20 02 2014

There are two lessons from recent decisions regarding the practice of criminal law in Arkansas.

First, in Keisha Gregory v. State of Arkansas, the circuit court dismissed the defendant’s appeal to circuit court from district court because she failed to appear at a pre-trial hearing.  The Arkansas Court of Appeals noted that A.C.A. 16-96-508 does not permit the dismissal of an appeal to circuit court for not attending a pre-trial hearing.  The law only permits the dismissal of an appeal to circuit court for not attending trial.  Circuit courts in this state frequently dismiss appeals when defendants fail to attend the first setting in circuit court whether it was because they did not receive notice or simply chose not to attend.  This case again reiterates that there is no basis in the law for doing so.

Second, in Joe King v. State of Arkansas, the Court made it clear that merely requesting a mental evaluation will not preserve the issue for appeal in any real sense if the trial court denies an evaluation.  The Court made it clear that it would expect the defendant to file a notice of intent to rely on mental disease or defect.  In addition, the Court of Appeals seems to desire some explanation of the reason counsel desires a mental evaluation in the event the request is denied.


Lesser Included Instructions Not Given – Reversal

20 02 2014

In Shaun Washington v. State, the Arkansas Court of Appeals reversed and remanded for a new trial because the trial court did not give an applicable lesser included instruction.  Washington was accused of battery in the first degree for causing injury to his infant’s head.  The doctors for the State testified that the injuries were caused by abusive head trauma.  The doctors for the defense, along with the defendant, testified that the injuries were from the defendant accidentally dropping the infant.  The jury convicted the defendant of battery in the first degree for purposefully causing serious physical injury.  The trial court refused to offer the jury the possibility of choosing battery in the third degree, which requires proof of recklessly causing injury.  The Court of Appeals found that a reasonable juror could have believed the defendant acted recklessly in dropping the infant; thus, the Court of Appeals found error in not instructing the jury on battery in the third degree.

Forfeiture presumption does not apply to dog sniffs

20 02 2014

In $70,000 v. State, the Arkansas Court of Appeals reversed the trial court for applying a presumption in a forfeiture hearing.  Under A.C.A. 5-64-505(a), State has the ability to claim any money that is used or intended to be used in a transaction involving illegal controlled substances (subject to a few exceptions).  In deciding whether the money should be forfeited, the legislature has created a rebuttable presumption in favor of forfeiture that applies if the money is in close proximity to the illegal substances.  The trial court applied the presumption in this case; however, no illegal substances were ever found.  The trial court relied on a drug dog alert on the money to invoke the presumption.  The Arkansas Court of Appeals relied on the plain language to insist that there had to be actual drugs in close proximity to the money to invoke the presumption.  Thus, the case was reversed and remanded for a new determination.

Big Win and Tough Loss at the Arkansas Court of Appeals

8 11 2012

It was an extremely bittersweet week at the Arkansas Court of Appeals.  I won an appeal that required the judges to reject both an arrest warrant as justification for entering a home and exigent circumstances; however, I lost one that simply required the judges to follow the law and not create new law to affirm.

In Gutierrez v. State, the Arkansas Court of Appeals reversed and remanded the convictions and suppressed the evidence discovered as a result of an unlawful search and seizure.  DEA officers used an arrest warrant for Appellant’s nephew to enter the residence and discovered guns and drugs along with Appellant in the residence.  The State argued that the arrest warrant permitted them to enter the house because they had seen Appellant’s nephew at the house the day before.  The trial court rejected this contention because there was no indication that he was there on the day of entry.  Of particular importance was the lack of vehicle at the residence.  The State then contended that exigent circumstances permitted entry because one of the windows was broken and an agent testified that methamphetamine traffickers will kidnap and torture individuals.  The Arkansas Court of Appeals rejected this as mere speculation and conjecture, and not based upon the facts of this case.

In Todd v. State, the Arkansas Court of Appeals rejected six claims of error.  Most notably, the Court rejected Appellant’s contention that the trial court erred excluding a psychologist from testifying that Appellant is not a pedophile; therefore, he is less likely to have gone to meet the underage female for sexual purposes.  In doing so, the Court of Appeals was unclear what rationale it actually adopted as a basis for its decision.  It appears as though the Arkansas Court of Appeals affirmed based upon the Arkansas Supreme Court holdings that psychiatric testimony that attempts to establish a defendant’s state of mind at the time of a particular crime is not admissible.  There are two primary problems with this ruling.  First, these holdings have NEVER been applied outside of the context of murder.  Second, the psychologist here was not going to say Appellant’s state of mind at the time of the crime, rather, he was simply going to say he is not a pedophile and it’s less likely he went for sex.  It is unbelievable that the learned judges could come to such an absurd ruling.  It simply goes to show the lengths some judges will go to make sure “justice” is done in their eyes, even if it means disregarding the law.

Daugherty v. State: Justice When It Matters Least

21 09 2012

My boss, Bill James, always says it’s easy to do justice when it does not matter.  Daugherty v. State is certainly an example of that principle.

In Daugherty, Appellant challenged a conviction for speeding mph over the speed limit.  The radar gun clocked Appellant at 51 mph in a 35 mph zone.  The manual showed that the radar gun had an error rate of plus or minus 1 mph.  Therefore, Appellant argued that only 15 mph over fell within the range of error.

The Arkansas Court of Appeals agreed, and reversed and dismissed the conviction.  I give a lot of credit to the willingness of Appellant to pay attorney fees to appeal to circuit court then to the Arkansas Court of Appeals to fight a speeding ticket.

Clark v. State: Judge Hart Rules on Preservation?

21 09 2012

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.

Robelo is Denied

14 09 2012

After a month, the Arkansas Court of Appeals came back with a decision denying Robelo relief on his Petition for Rehearing.  The irony is that it went to a five judge panel, and a new opinion was written; however, the result was the same.  At least the judges on the Court of Appeals realized their obvious oversight of the critical facts.  Yet, with their ingenuity, they contrived a new way to deny Robelo justice. The new opinion held that, because a search warrant was obtained for Apartment A, the jury could reasonable conclude that a drug transaction with the confidential informant took place in Apartment A.

This is more ridiculous than the original opinion, which simply overlooked the operative facts.  Instead, this opinion creates more questions than answers.  Essentially, the Court is stating that a jury can infer that the search warrant was based on what happened on a particular day in a particular place for a particular reason, yet there be no evidence of that in the record.  SHOCKING?  No.  This is simply another case where judges desired a result and were willing to say anything to get to it.

The one honest judge:  Judge (soon to be Justice) Jo Hart.  Judge Hart concurred, and stated that there was NO EVIDENCE that a transaction occurred in Apartment A.  However, my problem with Judge Hart’s concurrence, is that it does not detail what the additional linking factor is if it is not the transaction in Apartment A.

It is getting to the point with the Arkansas Court of Appeals that I am more amused at the unbelievable reaches made in the criminal opinions than I am shocked or outraged.  I look forward to the new batch of judges to appear at the Court.  Hope is all I have, something Jomy Robelo was robbed of.