{ "id": 6137254, "name": "Kevin KELLEHER v. CITY OF RUSSELLVILLE", "name_abbreviation": "Kelleher v. City of Russellville", "decision_date": "1994-12-21", "docket_number": "CA CR 94-72", "first_page": "58", "last_page": "63", "citations": [ { "type": "official", "cite": "48 Ark. App. 58" }, { "type": "parallel", "cite": "891 S.W.2d 802" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "289 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875374 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0050-01" ] }, { "cite": "42 Ark. App. 150", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139122 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0150-01" ] }, { "cite": "36 Ark. App. 133", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138748 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/36/0133-01" ] }, { "cite": "272 Ark. 140", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174859 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0140-01" ] }, { "cite": "286 Ark. 421", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721738 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0421-01" ] }, { "cite": "300 Ark. 300", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886845 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/ark/300/0300-01" ] }, { "cite": "286 Ark. 421", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721738 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/ark/286/0421-01" ] } ], "analysis": { "cardinality": 489, "char_count": 10889, "ocr_confidence": 0.887, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.174863476596512 }, "sha256": "187164f8ac8ebab535f535df7e49b220269af916bf43983f60a792e9c0923f37", "simhash": "1:06f0c1425242f9f4", "word_count": 1843 }, "last_updated": "2023-07-14T19:13:19.358055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cooper and Mayfield, JJ., dissent." ], "parties": [ "Kevin KELLEHER v. CITY OF RUSSELLVILLE" ], "opinions": [ { "text": "John B. Robbins, Judge.\nOn June 8, 1993, appellant Kevin Kelleher was convicted of resisting arrest and driving on a suspended driver\u2019s license. He was sentenced to two weeks and two days, respectively, in the Pope County Jail. Appellant contends on appeal that the trial court erred in bifurcating the guilt and punishment stages of the trial proceedings on these charges. We find no error and affirm.\nAppellant was tried before a jury on the charges of DWI second offense, resisting arrest, and driving on a suspended driver\u2019s license. During discussions with counsel concerning the jury instructions, the court made it known that the jury deliberations would be bifurcated, i.e., the jury would first be instructed to determine guilt or innocence on each of the three charges, and after the jury rendered a verdict on guilt or innocence the court would further instruct them to decide upon a sentence on each offense for which the jury had returned a guilty verdict. Appellant\u2019s counsel argued against the court bifurcating the proceedings. Appellant argued that the trial court should allow the jury to decide the guilt and sentence on the charges of resisting arrest and driving on a suspended driver\u2019s license at the same time the jury decided guilt or innocence on the DWI. Consequently, appellant\u2019s previous DWI conviction would not be disclosed to the jury until only sentencing for the DWI conviction remained. Counsel\u2019s argument was stated as follows:\nDefense Counsel: I think it would be prejudicial because if they found him guilty of the DWI and then came back they might increase the punishment on the other two offenses whereas if they go out now then they might find him guilty or they might find him not guilty of the DWI as an option and go ahead and find him guilty of resisting arrest and on the other charge.\n* * *\nI think that will be prejudicial, Your Honor, because I think it puts the Jury \u2014 it \u2014 if they find him guilty of the DWI, then they are going to increase the punishment on the other two. . . .\n* * 4=\nThey might just because they want to throw the book at him. I think they ought to be able to find guilty or not guilty of the DWI on the first and then go ahead and decide the sentence and the guilt on the other two.\nThe trial court rejected appellant\u2019s argument and bifurcated the proceedings on all of the charges, reserving sentencing on all charges for the second phase of the proceedings. The jury dead-locked on the charge of DWI, which resulted in a mistrial on this charge, but found him guilty on the charges of resisting arrest and driving on a suspended license.\nAppellant\u2019s concern revolved around the possibility that he could be prejudiced during the sentencing phase for DWI 2nd because the jury might sentence him to more time on the other two misdemeanor charges after the jury learned of appellant\u2019s prior DWI conviction. This simply did not occur. Therefore, appellant\u2019s specific argument before the trial court became moot at that point. The argument appellant raises now on appeal is not the same specific argument he raised before the trial court. He now argues that bifurcation was error because there is simply no authority for a circuit judge to bifurcate misdemeanor charges.\nThe supreme court in Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985), held that in felony DWI cases the proceeding should be bifurcated, separating the guilt or innocence stage from the sentencing stage. The supreme court held that this procedure protects the defendant from prejudice by preventing the jury from considering the prior convictions during their initial determination of guilt or innocence. See also, Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981). We believe the same rationale would apply to protect a defendant from possible prejudice in a DWI 2nd trial.\nAppellant alleges that he was somehow prejudiced by the court bifurcating the two misdemeanor charges along with the DWI 2nd charge. However, appellant fails to support his contention with any convincing argument or authority. We do not consider assignments of error which are unsupported by convincing argument or citation to proper authority. Womack v. State, 36 Ark. App. 133, 819 S.W.2d 306 (1991). Appellant is simply speculating that he was prejudiced somehow by the bifurcated proceedings. When error is alleged, prejudice must be shown because we do not reverse for harmless error. Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993). We cannot presume some impropriety on the bare allegation that the procedure was unusual. See Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). Because the appellant was not found guilty of DWI in the first stage, and therefore the fact of his earlier DWI was not made known to the jury during the sentencing phase on the other two misdemeanors, there could have been no prejudice to appellant.\nAppellant also alleges that the city attorney was allowed to make an additional argument between the two phases. However, appellant failed to abstract any such argument, and failure to abstract precludes review of any such error. Rules of Supreme Court and Court of Appeals 4-2(6). Appellant was sentenced to only a minimal time in jail for the two violations. Because the appellant was not found guilty of DWI, we conclude that appellant was not prejudiced in any way as a result of the bifurcated proceeding.\nAffirmed.\nCooper and Mayfield, JJ., dissent.", "type": "majority", "author": "John B. Robbins, Judge." }, { "text": "Melvin Mayfield, Judge,\ndissenting. I would reverse the appellant\u2019s convictions for resisting arrest and driving on a suspended driver\u2019s license and remand for a new trial on those charges.\nThe majority opinion concedes that the appellant objected to the trial court\u2019s bifurcation of the guilt and punishment phases of the trial on these charges. Moreover, the majority opinion does not contend that there is any legislative statute or judicial rule which authorizes such procedure.\nTo justify the procedure used in this case the majority opinion points out that our supreme court held in Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985), that the trials of felony DWI cases should be bifurcated into guilt and punishment phases so that the jury would not know of previous DWI convictions before determining the guilt issue in the case being tried. Therefore, the majority opinion says, \u201cWe believe the same rationale would apply to protect a defendant from possible prejudice in a DWI 2nd trial.\u201d This, however, does not answer the argument made by the appellant in this appeal. On pages 32-33 of appellant\u2019s brief he states:\nAt the time Appellant was tried for the misdemeanor charges of resisting arrest and driving on suspended driver\u2019s license, both misdemeanors, the proper procedure would have been for the Court to instruct the jury to find guilt or innocence and fix punishment the first time they retired to deliberate. This is exactly what Appellant requested.\nTurning to appellant\u2019s abstract, at page 14 of his brief, I find where he told the trial court:\nNow I think it would be inappropriate to give them just a guilty or not guilty on the DWI; but on the other two, they are not bifurcated so they should already have the benefit of knowing what the punishment is and they should decide guilt or innocence and the punishment for the two offenses that aren\u2019t DWI\u2019s. I don\u2019t think you can bifurcate the other two offenses.\nIt therefore seems clear to me that the appellant raised the same question in the trial court that he argues on appeal, but the majority opinion says the argument on appeal \u201cis not the same specific argument he raised before the trial court.\u201d The majority opinion does not contend that the appellant did not use the words I have quoted above; the majority opinion deals with what it views as the appellant\u2019s \u201cconcern.\u201d It states that \u201cappellant\u2019s concern revolved around the possibility that he could be prejudiced during the sentencing phase for DWI 2d because the jury might sentence him to more time on the other two misdemeanor charges after the jury learned of appellant\u2019s prior DWI conviction.\u201d\nIt is true that the appellant did tell the trial court that this was a way in which he could be prejudiced by the bifurcation of his trial on the charges of resisting arrest and driving on a suspended driver\u2019s license. However, he also told the trial judge that \u201cI don\u2019t think you can bifurcate the other two offenses. I just don\u2019t think the law allows for it.\u201d Furthermore, as it turned out, the procedure used by the trial court \u2014 unauthorized by statute or rule and over appellant\u2019s objection \u2014 resulted in the opportunity for those jurors who wanted to find him guilty of DWI to vote for more punishment for the other two offenses than they would have if he had been found guilty of DWI.\nThe scenario that appellant described to the trial judge was only slightly different than the one actually played out. The majority opinion thinks the appellant \u201cis simply speculating that he was prejudiced\u201d by the bifurcated proceedings but faults him for not speculating correctly about the exact scenario that could cause him prejudice. Also, the majority opinion says that the $500 fine and two weeks in jail fixed by the jury were \u201cminimal.\u201d Apparently the appellant \u2014 who must pay the fine and serve the time \u2014 regards the sentence so harsh that he has appealed. And while I have no way to scientifically measure the prejudice to appellant, it is difficult for me to believe that those jurors who wanted to convict appellant for DWI were completely able to fix his punishment for the other two offenses without giving some thought to the fact that he was not getting any punishment for the DWI of which they thought he was guilty.\nThe state\u2019s brief in this case recognizes that Holt v. State, 300 Ark. 300, 778 S.W.2d 928 (1989), stated that in an appropriate case it would decide whether its decision in Peters v. State, supra, was sound. But regardless of whether that decision was sound, the appellant in the present case is not complaining of the bifurcation of the DWI charge. The appellant in this case contends that it was error to bifurcate his trial on the other two charges. Although the majority opinion suggests that the procedure used by the trial judge protected appellant from \u201cpossible prejudice,\u201d I do not think this was factually true in this case and do not think we should approve the trial court\u2019s use of an unauthorized procedure to submit, over appellant\u2019s objection, his case to the jury.\nI am authorized to state that Judge Cooper joins in this dissent.", "type": "dissent", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "Jonathan P. Shermer Jr., for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Kevin KELLEHER v. CITY OF RUSSELLVILLE\nCA CR 94-72\n891 S.W.2d 802\nCourt of Appeals of Arkansas En Banc\nOpinion delivered December 21, 1994\n[Rehearing denied January 18, 1995.]\nJonathan P. Shermer Jr., for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee.\nCooper and Mayfield, JJ., would grant rehearing." }, "file_name": "0058-01", "first_page_order": 80, "last_page_order": 85 }