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.


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Categories : Arkansas Court of Appeals

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.


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Categories : Arkansas Court of Appeals, My Appeals

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.


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Categories : Arkansas Court of Appeals, My Appeals

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?


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Categories : Arkansas Court of Appeals, My Appeals

Update on Rule 4.7

10 07 2012

Dr. Jay Barth, politician and professor of politics at Hendrix College, recently weighed in on Arkansas Rule of Criminal Procedure 4.7.  He noted that 15 other states have enacted legislation or rules requiring the recording of interrogations and argues that Arkansas should have done the same.  The full article can be accessed here.  This issue was addressed a few blog posts ago with my sentiments closely mirroring those of Dr. Barth.


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Categories : Uncategorized

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!


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Categories : Arkansas Supreme Court, My Appeals

Hobbs v. Jones: Death Penalty Statute in Arkansas

22 06 2012

The Arkansas Supreme Court decided a rather significant case a mere week after hearing oral arguments.    The decision came down with a five justice majority finding the Arkansas death penalty statute unconstitutional based on separation of powers.  The crux of the opinion was that the statute gave far too much leeway to the executive branch, in this case ADC, to determine how to implement the death penalty.  Justice Baker and Special Justice Freeland dissented from the majority and argued that the statute gave adequate guidelines for selecting the chemicals and process for effectuating the death penalty.

After reading the opinion multiple times I am left with a firm conviction that the difficulty in the opinion stems from the justices’ failure to define the issue.  The majority and dissent differ on whether the statute gives unfettered discretion to ADC in implementing the statute.  The problem is that the two sides are arguing two completely different issues.  The majority, although they do not say it, argued that the statute gave unfettered discretion in selecting the drugs to be used.  The dissent argued that the statute gave guidance in effectuating the death penalty.  Both are absolutely correct.  The rub, as it is in most constitutional arguments, is in defining the issue.

From a purely legal standpoint, I would have to say the dissent is correct.  The issue is the statute’s unconstitutionality and whether it gives unfettered discretion in carrying out the death penalty.  The statute clearly gives considerations and suggestions in determining the chemicals and makes clear that death should be the final result due to a mixture of chemicals injected into the vein.  This is guidance.

From a public policy perspective, I cannot be more enamored with the majority.  Do we really want ADC making the decision of how to kill someone or do we want our elected legislators making that call?  I think for all of our well-being it would be prudent to leave as little discretion as possible to an executive entity, especially one well-known for the severe mistreatment of inmates and inhumane living conditions.

For a different analysis of the ramifications of the opinion please read this news article.

Finally, kudos to Joshua Lee on an excellent oral argument.  Once again I think oral argument can push defendants over the top in a tightly contested appeal.


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Categories : Arkansas Supreme Court

New Rule: Arkansas Rule of Criminal Procedure 4.7

22 06 2012

The Arkansas Committee on Criminal Practice proposed Rule 4.7 and the Arkansas Supreme Court adopted it.  It states that all interrogations at a jail or police station should be recorded.  The penalty for not recording them is that the judge is now permitted by the rule to take this into consideration in determining the admissibility of a statement.

Although I do not doubt the good intentions and hard work performed by the committee, Rule 4.7 might be the most useless rule of them all.  I have no doubts that it will be frequently cited by defense attorneys, but the practical ramifications will be nil for a few reasons.  First, if judges are not already considering the failure to record interrogations then they have been neglecting their oath for years.  Second, the rule does nothing to inform judges how they are to consider the failure to record the interrogation.  Does failure to record alone permit a judge to suppress the statement?  How about if the officer is credible in his testimony but he did not record the statement, does that suppress the statement?  The failure to give any guidance at all will render this rule either arbitrary in its application or useless.  Finally, the rule is simply stating the obvious.  It is tantamount to stating the court should consider the abuse the police officer inflicted in determining the admissibility.

This rule will change nothing.  It is expressing a public policy statement preferring that interrogations be recorded; however, it has no enforcement.  Without enforcement it is the equivalent to having the Fourth Amendment without the exclusionary rule.  It just won’t help.


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Categories : Arkansas Supreme Court

Scamardo v. State: Third Time Is The Charm

20 06 2012

After a few rebriefing orders justice was finally done in Scamardo v. State.  The Arkansas Court of Appeals not only reversed and remanded the case, but also issued an extremely straightforward and well-written opinion.  As is typical in sexual assault cases, the young victim recanted her allegation that Scamardo touched her private area.  The victim told her aunt that she was being made to lie about the incident.

At trial, the court refused to allow the aunt to testify to the statement and deemed it inadmissible hearsay.  Scamardo argued that it was only being offered to impeach the alleged victim’s credibility and not for the truth of the matter asserted.  Under Arkansas Rule of Evidence 613(b) evidence of a prior inconsistent statement of a witness is admissible if the witness was given an opportunity to admit or deny the statement.

Here, the victim was asked about the statement and denied making it.  The victim was therefore given an opportunity to admit or deny the statement.  Consequently, the aunt should have been permitted to testify regarding the statement.  The Court of Appeals found it was not harmless because the outcome of the trial necessarily turned upon the victim’s credibility.

The Court of Appeals also found error because the trial court allowed the victim’s father to testify to what he was told regarding the incident approximately one month after it occurred.  The Court of Appeals decided that this could not be deemed an “excited utterance” and was too far removed to be admitted into evidence.


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Categories : Arkansas Court of Appeals

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.


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Categories : My Appeals

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