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.


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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.


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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.


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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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