{ "id": 6138288, "name": "Rodney Frances PHARO v. STATE of Arkansas", "name_abbreviation": "Pharo v. State", "decision_date": "1990-01-24", "docket_number": "CA CR 89-6", "first_page": "94", "last_page": "104", "citations": [ { "type": "official", "cite": "30 Ark. App. 94" }, { "type": "parallel", "cite": "783 S.W.2d 64" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "661 S.W.2d 390", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1742387, 1742299 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/281/0112-01", "/ark/281/0160-01" ] }, { "cite": "281 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742387 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/281/0112-01" ] }, { "cite": "293 Ark. 422", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869699 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0422-01" ] }, { "cite": "298 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889869 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0091-01" ] }, { "cite": "770 S.W.2d 653", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1888395, 1888358 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0025-01", "/ark/299/0024-02" ] }, { "cite": "299 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888395 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0025-01" ] }, { "cite": "14 Ark. App. 122", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138745 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/14/0122-01" ] }, { "cite": "289 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875442 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0069-01" ] }, { "cite": "268 Ark. 282", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715403 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0282-01" ] }, { "cite": "412 S.W.2d 478", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10133929 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/sw2d/412/0478-01" ] }, { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "285 Ark. 77", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877658 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0077-01" ] }, { "cite": "267 Ark. 830", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719927 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/267/0830-01" ] }, { "cite": "26 Ark. App. 268", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141332 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/26/0268-01" ] }, { "cite": "723 S.W.2d 373", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6644947, 1872702 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/20/0035-01", "/ark/291/0197-01" ] }, { "cite": "20 Ark. App. 35", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6644947 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/20/0035-01" ] }, { "cite": "277 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750191 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0271-01" ] }, { "cite": "290 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873670 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0440-01" ] }, { "cite": "291 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872647 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0060-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "7 Ark. App. 175", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139557 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/7/0175-01" ] }, { "cite": "18 Ark. App. 125", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139277 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/18/0125-01" ] }, { "cite": "18 Ark. App. 115", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138909 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/18/0115-01" ] }, { "cite": "290 Ark. 589", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873701 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0589-01" ] }, { "cite": "264 Ark. 596", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1669086 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0596-01" ] }, { "cite": "717 S.W.2d 784", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1873673, 1873755 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0129-01", "/ark/290/0130-01" ] }, { "cite": "290 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873755 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0130-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-13-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 5-3-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "272 Ark. 493", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174835 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/272/0493-01" ] }, { "cite": "260 Ark. 303", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616802 ], "weight": 2, "year": 1976, "opinion_index": 1, "case_paths": [ "/ark/260/0303-01" ] }, { "cite": "287 Ark. 456", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876607 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/ark/287/0456-01" ] }, { "cite": "278 Ark. 250", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748424 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark/278/0250-01" ] }, { "cite": "648 S.W.2d 444", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1748113 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/ark/278/0516-01" ] }, { "cite": "278 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "year": 1983, "opinion_index": 1 }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/us/426/0610-01" ] } ], "analysis": { "cardinality": 966, "char_count": 20679, "ocr_confidence": 0.915, "pagerank": { "raw": 1.6016873920807048e-07, "percentile": 0.6839885259719776 }, "sha256": "facf044d61f4ba8a3341407df3f3d731f6301547b0c6b3df9152b6a9790b7254", "simhash": "1:27dedca42729dbda", "word_count": 3525 }, "last_updated": "2023-07-14T17:22:12.310921+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cooper, J., dissents." ], "parties": [ "Rodney Frances PHARO v. STATE of Arkansas" ], "opinions": [ { "text": "Judith Rogers, Judge.\nThe appellant, Rodney Frances Pharo, was initially charged by information with criminal attempt to commit murder in the first degree, a violation of Ark. Code Ann. \u00a7\u00a7 5-3-201 (1987) and 5-10-102 (Supp. 1987). The appellant was found guilty by a jury of battery in the first degree, a violation of Ark. Code Ann. \u00a7 5-13-201 (Supp. 1987). From this conviction, the appellant received a ten year sentence and a $5,000 fine. On appeal, the appellant raises the following three issues for reversal: (1) that the trial court\u2019s ruling excluding expert testimony on the physiological effects of alcohol consumption was a violation of the \u201cdue process\u201d clause of the Fourteenth Amendment; (2) that the trial court\u2019s ruling denying a jury instruction regarding battery in the third degree was error; and (3) that the prosecutor\u2019s comments on the appellant\u2019s exercise of his post-Miranda right to remain silent was a violation of the Fifth and Fourteenth Amendments. We find no reversible error and affirm.\nThe record reveals that the appellant was employed as an area superintendent for Texas Contractors at the Fayetteville Sewage Treatment Plant construction site. The appellant regularly carried a gun while on the job as it was customary for him to transport the payroll. After work on the evening of January 27, 1988, the appellant frequented three clubs in the Fayetteville area. Over the course of the evening, the appellant consumed an excessive amount of alcohol. As he was leaving the last club the appellant was involved in an exchange which resulted in the bouncer, David Smart, being shot in the abdomen.\nThe appellant argued below, and now on appeal, that the shooting was accidental. The appellant contends that the exchange between himself and Smart did not reach volatile proportions, that there were no threats or raised voices, and that after the shooting, the appellant appeared to be stunned and confused.\nThe appellant\u2019s first argument is that the trial court erred in excluding expert testimony as to the physiological effects of alcohol consumption. The appellant sought to introduce the testimony of Carol Tucker, as an expert in the field of alcoholism, who would testify that the appellant did not possess the requisite mental state for the crime charged. The appellant argues that the exclusion of the witness deprived him of \u201cdue process\u201d of law citing In re Winship, 397 U.S. 358 (1970), which held that the \u201cdue process\u201d clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. The appellant\u2019s argument is that by excluding testimony that would tend to negate the specific intent requirement, the state was effectively relieved of its burden of proving this element of the offense beyond a reasonable doubt. The trial judge denied the admission of said evidence citing the recent supreme court decision of White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).\nThe appellant contends that the trial court misapplied the White case because the court failed to make a distinction between voluntary intoxication as a defense and evidence of voluntary intoxication to negate the existence of a specific element of a crime. The appellant\u2019s argument mirrors the common law rule that evidence of voluntary intoxication, while no excuse for a crime, could be admitted to show the defendant was incapable of forming the specific intent necessary for the crime. This rule was discussed in White where the court overruled the holding in Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). The court in Varnedare had stated that by amending \u00a7 41 -207 to remove self-induced intoxication as a statutory defense, the legislature, in effect, reinstated any prior Arkansas common law on the subject. The court in White stated that \u201cwe are now convinced that our court was wrong in Varnedare when we held that the common law defense of voluntary intoxication was reinstated.\u201d By saying the common law defense had not been reinstated, the court in White effectively held that voluntary intoxication is no longer available as a defense or admissible for the purpose of negating specific intent. Inasmuch as the appellant sought to introduce this testimony to show that he lacked the requisite mental state for the crime charged, this position is contrary to the holding in White. We believe the trial court properly applied the rationale of the White case to the facts of the case at bar and did not err in excluding this testimony.\nThe appellant contends that the trial judge erred in denying his request that the jury be instructed on battery in the third degree. The state argues that since the appellant did not prepare and offer a proper written instruction on battery in the third degree and have it placed in the records, he is precluded on appeal from a decision on the merits. In order to properly preserve an objection to the court\u2019s failure to give an instruction, the appellant must proffer the requested instruction. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); Henry v. State, 18 Ark. App. 115, 710 S.W.2d 849 (1986). This procedure expedites trial and facilitates compliance with the Arkansas Constitution, Art. 7 \u00a7 23, and Ark. R. Crim. P. 33.3, which make it mandatory that the trial judge, when requested by a party or a juror, deliver to the jury a typewritten copy of the oral instructions given by the judge. Id.; Willett v. State, 18 Ark. App. 125, 712 S.W.2d 925 (1986). In this case the text of the proposed instruction does not appear in the abstract or in the transcript. In Green v. State, 7 Ark. App. 175, 646 S.W.2d 20 (1983), we held that where a requested instruction does not appear in either the abstract or the transcript, we would not consider it error for the refusal to give the instruction. Therefore, we find no error on this issue.\nThe appellant\u2019s third contention is more troublesome. The appellant argues that the prosecutor\u2019s comments upon his post-arrest silence constitute prejudicial error. The appellant cites Doyle v. Ohio, 426 U.S. 610 (1976), for the proposition that the use for impeachment purposes of petitioner\u2019s silence, at the time of arrest and after receiving Miranda warnings, violated the \u201cdue process\u201d clause of the Fourteenth Amendment. As the court explained in Doyle:\nWhen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.\nOur supreme court has discussed and made reference to the rationale of the Doyle decision in concluding that the prosecution is on dangerous ground and courting prejudicial error when any reference is made concerning an accused\u2019s election to remain silent. See Jarreau v. State, 291 Ark. 60, 722 S.W.2d 565 (1987); Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982).\nIn the case at bar, the following colloquy occurred on cross examination of the appellant:\nQ: Okay. You told them exactly what happened?\nA: I assume I have the right to a defense. I don\u2019t have to give the evidence that\u2019s going to convict me of the crime until I got a defense.\nQ: Well, did you tell them about that?\nA: I didn\u2019t tell the police department nothing. I have a right not to.\nQ: Did you ever tell them it was an accident that you shot this person?\nA: I just told you that they said I had a right to remain silent and I chose the right to remain silent.\nQ: So therefore you did . . .\nA: Is that wrong?\nQ: Not mention to them that it was an accidental shooting?\nA: If I chose the right to remain silent, I don\u2019t have to mention to them that. That\u2019s my legal right.\nQ: Did you at any point in time tell the police that the shooting was accidental?\nA: No.\nQ: Did you tell the police that you were in such a daze that you didn\u2019t even realize that you\u2019d shot somebody?\nA: No.\nQ: Did you ever tell the police that you didn\u2019t even know the person and couldn\u2019t identify him if you saw him again, the person that you might have shot?\nA: No.\nQ: Did you ever tell the police that you were so intoxicated that you didn\u2019t know what you were doing on that night?\nA: No.\nQ: But you never thought about going to the police station the following day, did you?\nA: Not when I found the gun in my pocket and the hole.\nQ: There was nothing stopping you, was there, Mr. Pharo, on that next day instead of going down to the hospital going down to the police station and bringing the jacket and gun and saying, \u201cHey, I must have shot somebody. I\u2019m sure sorry about it.\u201d?\nA: Yes, the thing that was stopping me, the intelligence enough to know that I ought to talk to a lawyer before I go to the police department.\nQ: Didn\u2019t you think the police would believe you?\nA: Well, I\u2019m here now to tell what happened. You don\u2019t believe me now so what would make you think the police would believe me?\nQ: You think this jury\u2019s going to believe you today, so why didn\u2019t you think the police and prosecutor might have believed you back on January 28?\nA: It\u2019s a simple fact ....\nWe do not disagree with the appellant\u2019s contention that the prosecutor\u2019s repetitive comments implicated the exercise of his right to remain silent, and was thus clearly in error. However, we do not believe this constitutes reversible error for the following reasons: (1) the appellant did not object at the first opportunity; (2)the appellant did not request or receive a definitive ruling on his objection; and (3) the appellant neither requested nor received any curative relief.\nInitially, we note that the appellant did not make a timely objection to the prosecutor\u2019s comments regarding the exercise of his right to remain silent. An argument for reversal will not be considered in the absence of an appropriate objection in the trial court. To be considered appropriate, an objection must be made at the first opportunity. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). The objection must be timely, affording the trial court an opportunity to correct the asserted error. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989); see also, Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980).\nIn Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985), a case remarkably similar to the present case, the appellant\u2019s objection concerning his right to remain silent was held untimely as the impermissible questioning had been asked in various forms without an objection. Although admittedly the questioning in this case was more extensive than that in Hill, and it does without a doubt constitute error, the appellant failed to object at a time when perhaps the error could have been avoided, or the prejudice removed. We have consistently held that \u201cwe require a timely objection made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.\u201d Gustafson, supra.\nIn addition, we note that in Arkansas our courts do not have a \u201cplain error\u201d rule. As stated in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980):\nSome courts, especially the federal courts, have a \u201cplain error\u201d rule, under which plain errors affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Federal Rules of Criminal Procedure, Rule 52(b); State v. Meiers, 412 S.W.2d 478 (Mo., 1967). In Arkansas, however, we do not have such a rule. Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980). To the contrary, in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.\nIn the absence of a \u201cplain error\u201d rule, it is incumbent upon an appellant to make a timely objection in the trial court to preserve the issue on appeal. In the case at bar, the appellant failed to object at the first opportunity, thereby allowing repeated questioning on this subject.\nSecondly, the appellant neither requested nor received a definitive ruling on his objection. The objection and ruling were as follows:\nMS. HANSON: Your Honor, I\u2019m going to object to this line of questioning. I think it\u2019s argumentative. And I believe it goes to the perview [sic] of Mr. Pharo\u2019s right to remain silent.\nTHE COURT: Well I think the problem is we\u2019re beginning to get a little argumentative and repetitious. We\u2019ve covered this pretty much.\nThe trial court\u2019s ruling only addressed the argumentative aspect of the appellant\u2019s objection. The appellant never requested or received a ruling regarding the exercise of his right to remain silent. The burden of obtaining a ruling is upon the movant and objections and questions left unanswered are waived and may not be raised on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Young v. State, 14 Ark. App. 122, 685 S.W.2d 823 (1985). In addition, one final question was asked of the appellant at which time he again failed to object.\nFurthermore, the appellant failed to request any curative relief. Apparently, the appellant was satisfied with the trial judge\u2019s ruling since he failed to seek any curative relief and subsequently failed to object during closing argument when further comment was made. Since the appellant requested neither an admonition nor a mistrial, no reversible error occurred. Vick v. State, 299 Ark. 25, 770 S.W.2d 653 (1989); Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989); Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987). Where theappellant was given all the relief he requested, he has no basis upon which to raise the issue on appeal. Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983).\nAfter a careful and thorough consideration of the record and briefs filed by both parties, we find no reversible error in the points raised on appeal. We therefore affirm the appellant\u2019s conviction of battery in the first degree.\nAFFIRMED.\nCooper, J., dissents.", "type": "majority", "author": "Judith Rogers, Judge." }, { "text": "James R. Cooper, Judge,\ndissenting. I agree with the majority opinion, with the exception of its holding concerning the appellant\u2019s post:arrest silence. I dissent on that point because I believe that the merits of the appellant\u2019s argument should be addressed and this case should be reversed and remanded. While it is clear that the objection by the appellant\u2019s attorney was too late, I believe that the appellant himself raised an adequate objection.\nIn order to preserve an issue for appeal, a timely objection, made at the first opportunity, must be made. Robinson v. State, 278 Ark. 576, 648 S.W.2d 444 (1983). In the present case, immediately after the first question concerning his silence, the appellant asserted that he had a right not to talk to the police until he had an attorney. An objection must also be made to the trial court with sufficient clarity to give the trial judge a fair opportunity to discern and consider the argument. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983). After the first question, the prosecutor continued to question the appellant as to why he did not tell the police that the shooting was an accident. The appellant continued to reply that he \u201cchose his right to remain silent,\u201d and that he did not have to \u201ctalk to them.\u201d Although the appellant\u2019s remarks were not artful, a reading of the record makes it plain that the appellant did assert his right to remain silent and did not intend to directly answer the prosecutor\u2019s questions. The issue was placed squarely before the trial court. Furthermore, I believe that the appellant did obtain a ruling to his objection when, after fifteen such questions and answers, the trial court ordered the appellant to give a more responsive answer to the State\u2019s questions.\nBecause we do not have a \u201cplain error\u201d rule in the State, we place upon defendants the heavy burden of requiring an objection before an alleged error will be reviewed. Although I agree with the rule in its general principles; I do not believe that it should be construed so rigidly that this appellant, who valiantly attempted to register his objection while his attorney stood idly by, is summarily denied appellate review of an error which the majority concedes is prejudicial.\nI am not unmindful of the general rule that a client is bound by the actions his attorney takes at trial. See 7A C.J.S. Attorney and Client, \u00a7 208 (1980). However, counsel\u2019s decisions regarding trial strategy may not be binding where there are exceptional circumstances, or evidence of fraud, gross negligence, or incompetence on the part of the attorney. C.J.S., \u00a7 208, supra.\nClearly the case at bar constitutes exceptional circumstances. The appellant raised the fact that he (had a right to remain silent fifteen times before being ordered by the trial court to be more responsive. The State then asked nine more questions regarding what he told the police before the appellant\u2019s attorney finally objected. The State asked three more questions on this subject and then referred to it again during closing arguments. Given the appellant\u2019s numerous attempts to object to the improper questioning and given the repetitiveness of the State\u2019s questioning, I believe that an exceptional circumstance has arisen in which we should recognize the appellant\u2019s objection for appellate review purposes.\nFurthermore, I assert that this State has placed a duty on defendants to make their own objections known when counsel has failed to object. It has been said many times that ineffective assistance of counsel cannot be raised for the first time on appeal, see Orsini v. State, 287 Ark. 456, 701 S.W.2d 114 (1985), and it is unlikely that a defense attorney will object on the basis that his own assistance was ineffective. This leads me to conclude that the defendant himself must take affirmative steps in order to preserve the issue for appeal; by hiring new counsel to file a post-trial motion or to raise the issue himself during trial.\nThis duty to object does not apply only to allegations of ineffective assistance of counsel. In Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976), the last names of the trial judge and the prosecutor were the same. On appeal, the appellant asserted that the trial judge should have recused because of his relationship with the prosecutor. In refusing to address the issue because it was not raised on appeal the Supreme Court noted that the attorneys had refused the trial judge\u2019s offer to disqualify himself and that the appellant failed to object. In another case, Irons v. State, 272 Ark. 493, 615 S.W.2d 374 (1981), there was an unreported bench conference immediately following the jury selection. After discussing the fact that the appellant had not demonstrated how he was prejudiced, the court noted that the appellant had not objected below.\nIn both Dyas and Irons, the defense attorneys took actions which the defendant later complained of on appeal. In both cases the Supreme Court mentioned the lack of an objection, and inferred that had the appellant himself objected the alleged error would have been addressed. I maintain that Irons, Dyas and the present case constitute exceptional circumstances in which the appellant himself must register his own objection to preserve the error for appellate review. Where counsel, for whatever reason, fails to object, it is clear that the only way appellate review can be had is to recognize an objection made by the defendant himself.\nIn closing I would note that the majority concedes that the questioning by the State constituted prejudicial error, and with that conclusion I concur. Doyle v. Ohio, 426 U.S. 610 (1976). To hold otherwise would render the right to remain silent meaningless because the State could, as it did in this case, use the defendant\u2019s post-arrest silence to imply that the defendant was hiding his guilt. I would recognize the appellant\u2019s objections and reverse and remand on the merits of this issue.", "type": "dissent", "author": "James R. Cooper, Judge," } ], "attorneys": [ "Law Office of Ronald E. Bumpass, by: Laurie A. Hanson, for appellant.", "Steve Clark, Att\u2019y Gen., by: Lynley Arnett, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Rodney Frances PHARO v. STATE of Arkansas\nCA CR 89-6\n783 S.W.2d 64\nCourt of Appeals of Arkansas En Banc\nOpinion delivered January 24, 1990\n[Rehearing denied March 14, 1990.]\nLaw Office of Ronald E. Bumpass, by: Laurie A. Hanson, for appellant.\nSteve Clark, Att\u2019y Gen., by: Lynley Arnett, Asst. Att\u2019y Gen., for appellee.\nCooper, J., would grant rehearing." }, "file_name": "0094-01", "first_page_order": 118, "last_page_order": 128 }