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.

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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.





Back in Session

30 08 2012

The Arkansas Court of Appeals got back in session this week after an extended summer break.  They started off easy by deciding several no-merit appeals that had been sitting on their docket for some time.  As for me, this new session has some promise.

The Arkansas Court of Appeals has actually taken a long look at the Petition for Rehearing filed in Robelo v. State.  The Petition was submitted on August 15, along with several other petitions.  All other petitions have been denied except for Robelo’s.  Typically, but not always, the longer the decision takes to come down the more likely it is that the Court will reverse.  So I will keep my fingers crossed for a reversal in Robelo’s case.

Currently, I have 10 cases awaiting decision at the Arkansas Court of Appeals and Arkansas Supreme Court.  I also have three cases with pending oral argument requests.  This is shaping up to be a busy and exciting session on this blog.





Robelo v. State: Did the Arkansas Court of Appeals Read the Transcript?

10 07 2012

In Robelo v. State, the Arkansas Court of Appeals appears to have invented facts to make their decision easier to make.  The case revolved around the sufficiency of evidence linking Robelo to drugs found in a jointly occupied residence.  The State must prove additional linking factors other than mere presence to connect Robelo to the drugs.  The State attempted to show a drug deal took place between Robelo and a CI.  However, neither officer that followed the CI and Robelo back to an apartment complex could see where they went or if they went to the same place.

Fortunately for the State, the Arkansas Court of Appeals went ahead and decided that not only did a drug deal take place, but also that it took place between Robelo and the CI in apartment A.  Then of course found that to be a sufficient link to connect Robelo to the drugs.  It is incredible that the Court of Appeals could determine that a drug deal took place in apartment A between Robelo and the CI when the officers could not.  Officer Holmes stated, “I was able to look back at the apartment, but I didn’t see anything until the informant left. ”  Then later testified, “I didn’t see anyone going in and out of apartment A.”  Investigator Medina simply said that he was at the park and could not get close.

So I ask once more, how did the Court of Appeals see Robelo and/or the CI go into apartment A if the officers did not?





Jordan v. State: Arkansas Supreme Court Not Playing Fair

25 06 2012

The Arkansas Supreme Court affirmed the trial court’s decision to admit a prior conviction and the facts underlying the conviction into evidence.  The Court ruled that trial counsel failed to preserve the argument that the underlying facts should not have come into evidence.  There are two massive problems with this ruling.

First, the argument was preserved.  Trial counsel objected to any evidence of the conviction being admitted under Rules 401, 402, 403, 404, and 609 in addition to objecting as a violation of due process.  The opinion does not state what the objection should have been, which is likely because there is nothing else to object to.  It appears the Court would have liked trial counsel to file the motion, and then after the trial court ruled, to then object again.  This have never been a rule and is baffling that the Court found the argument unpreserved.

Second, and more troubling, is that the State never argued the issue was not preserved.  Essentially, the Arkansas Supreme Court is now playing on the State’s team and formulating arguments for them.  The Arkansas Supreme Court rejects arguments by the defense when they are in reply briefs, underdeveloped, or do not cite to convincing authority.  However, the Court appears willing to create arguments for the State.  How is that not a due process violation?  Jordan was never given a chance to respond to the Court’s argument that the issue was not preserved.  This is a flagrant violation of the Court’s rules, due process, and gives the utmost appearance of impropriety.  I would let it all go if the Court could show one time where they crafted an argument for the defendant to reverse his conviction!





Eastin v. Hobbs: Eighth Circuit Oral Argument

13 06 2012

As opposed to my last visit for oral argument, I was the final argument of the morning.  I had the privilege of watching three other arguments before it was my turn.  I saw numerous, experienced orators become befuddled by the intense questioning of Judge Loken.  He certainly takes oral argument seriously and makes sure his position on your argument is known immediately.  Numerous advocates were told quickly that they were advancing a position he was not inclined to agree with.  I was no exception.

Judge Loken stated that he would not assume the Arkansas Supreme Court only accepted review on Eastin’s direct appeal because of the preservation issue.  Instead, he claimed that was an enormous assumption.  He went so far as to claim he was prevented from even addressing the issue, although I believe in his own questioning he talked himself out of that position.

In the end, I emphatically argued that it was a far greater assumption to believe there were other grounds for review and the Arkansas Supreme Court would have taken the case up on review for another reason.  I think my biggest problem with the entire argument is that this issue had NEVER been brought up by any other court nor had the State ever argued that the Supreme Court would have still granted review on another issue.  It’s always fun to have the judge’s play for the State as well as if the deck wasn’t stacked against you enough.





New Appeal on the Pedophile Exception

25 05 2012

I just filed the initial brief in Craigg v. State in the Arkansas Supreme Court.  It involves the admission of evidence under the “pedophile exception” to Arkansas Rule of Evidence 404(b).

The case involved allegations of oral sex on a sleeping 14 year-old boy during a camping trip.  The jury convicted the defendant and gave him life in prison.  The jury also heard about the defendant’s prior conviction for lewd molestation out of Oklahoma 17 years prior.

The defense fought to keep evidence of the prior crime out because it did not meet the requirements of the “pedophile exception.”  The prior crime was not similarly committed, it was remote in time, and there was no intimate relationship between the defendant and the victim.  The prior crime involved oral sex on a 4 year-old girl while other individuals were in the residence.  There was no testimony regarding the relationship of the defendant to the girl or to the girl’s parent.  In addition, it was committed 17 years prior.

The trial court admitted the prior offense to show “plan, motive, or intent.”  Besides the fact that the  “pedophile exception” should not apply, there was another huge problem with this ruling.  The State only offered the judgment and commitment order from Oklahoma.  The order had no facts other than the conviction was for lewd molestation.  There was no testimony explaining the facts or what constitutes as lewd molestation.  Consequently, all the jury had was a conviction.  How would that show plan, intent, or motive?  How would that show anything except that the defendant was a bad person?  It was certainly an error and under the law the testimony of the victim alone cannot constitute overwhelming evidence.  Therefore, harmless error will not apply.  It will be interesting to see what the State responds with.