{ "id": 9158408, "name": "Kimberly L. SMITH v. STATE of Arkansas", "name_abbreviation": "Smith v. State", "decision_date": "1996-04-01", "docket_number": "CR 94-1300", "first_page": "74", "last_page": "81", "citations": [ { "type": "official", "cite": "324 Ark. 74" }, { "type": "parallel", "cite": "918 S.W.2d 714" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-13-510", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1994, "opinion_index": 0 }, { "cite": "288 Ark. 255", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719348 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0255-01" ] }, { "cite": "322 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447517 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0008-01" ] }, { "cite": "319 Ark. 739", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453673 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0739-01" ] }, { "cite": "320 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451310 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0329-01" ] }, { "cite": "318 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455814 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0182-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "888 S.W.2d 663", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6136424, 1453586, 1453630 ], "year": 1994, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark-app/48/0033-01", "/ark/319/0051-01", "/ark/319/0050-01" ] }, { "cite": "319 Ark. 51", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453586 ], "year": 1994, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/319/0051-01" ] } ], "analysis": { "cardinality": 594, "char_count": 12478, "ocr_confidence": 0.801, "pagerank": { "raw": 8.415980416303352e-08, "percentile": 0.4834820485673103 }, "sha256": "575d366ee6f7d0889323549b22d69325c554ef851d8d81eaf982e46b91c69d35", "simhash": "1:cb7eda60744ecffa", "word_count": 2134 }, "last_updated": "2023-07-14T16:22:54.921906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kimberly L. SMITH v. STATE of Arkansas" ], "opinions": [ { "text": "DONALD L. Corbin, Justice.\nAppellant, Kimberly L. Smith, appeals the judgment of the Mississippi County Circuit Court entered on August 24, 1993, pursuant to a jury verdict, convicting her of one count of first-degree murder and sentencing her to imprisonment for forty years at the Arkansas Department of Correction. This court previously granted appellant\u2019s motion for belated appeal. Smith v. State, 319 Ark. 51, 888 S.W.2d 663 (1994) (per curiam). Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). For reversal, appellant asserts two points of error. We find no error and affirm.\n1. Sufficiency of evidence\nAppellant\u2019s first argument for reversal is that the state failed to present substantial evidence that it was her purpose to cause the victim\u2019s death. Ark. Code Ann. \u00a7 5-10-102 (a)(2) (Repl. 1993). The state contends this point is procedurally barred because appellant\u2019s trial motion was not sufficiently specific to apprise the trial court of her argument. We agree that the sufficiency argument is procedurally barred, but for a different reason than that argued by the state.\nAt the close of the state\u2019s case, appellant moved for a verdict of acquittal \u201con the grounds that the prosecution has failed in their burden of proof with the charge of murder in the first degree.\u201d After hearing the state\u2019s response, the trial court ruled that a prima-facie case of first-degree murder was made. Then the defense presented its sole witness, appellant, and both sides rested. No motions were made or renewed by appellant at the close of all the evidence.\nAppellant\u2019s motion for a verdict of acquittal at the close of the state\u2019s case is equivalent to a motion for a directed verdict challenging the sufficiency of the evidence. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994). Our rules of criminal procedure provide that, in a jury trial, the defendant\u2019s failure to move for a directed verdict because of insufficiency of the evidence at the close of the state\u2019s evidence and at the close of the case constitutes a waiver of any question pertaining to sufficiency of the evidence to support the jury\u2019s verdict. Ark. R. Crim. P. 36.21(b). In this case, appellant failed to move for a directed verdict because of insufficiency of the evidence at the conclusion of all the evidence and thereby waived the issue on appeal. Davis v. State, 320 Ark. 329, 896 S.W.2d 438 (1995); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995).\n2. Settlement of record\nAppellant\u2019s second argument for reversal is that the trial court committed reversible error by failing to record or transcribe three specific incidents at the trial that cannot be reconstructed and therefore render the record on appeal insufficient to permit a full review of the trial proceedings. Pursuant to a writ of certiorari to complete the record, Mississippi County Circuit Court Judge David Burnett, who presided over the trial on August 23 and 24, 1993, conducted a hearing on August 16, 1995, to settle the record of the trial proceedings. Appellant\u2019s appellate counsel, Ms. Sandra Berry, appellant's trial counsel, Ms. P. J. Maddox-Cook, the deputy prosecuting attorney who tried the case, Mr. Bruce Harlan, and the trial court reporter, Ms. Barbara J. Fisher, attended the hearing. The certified transcript of the hearing is included in the record on appeal.\nThe first incident concerns appellant\u2019s request for a transcription of a comment that she alleges was made to her prejudice by Judge Burnett regarding the length of time for trial. At the hearing to settle the record, Ms. Cook recalled the comment as follows:\nTHE COURT: Ms. Cook, what is it you\u2019re asking? I want you to \u2014\nMS. COOK: If it please the Court, it is my recollection that after the jury had been selected, your Honor gave \u2014 ah, made comments to the jury regarding, ah, your expectations of them and then \u2014\nTHE COURT: Now wait a minute. Be specific please.\nMS. COOK: To my recollection you had said that there was \u2014 that we have two days for the trial and that on the third day you had another trial scheduled and they had two days for this trial and that they would reach a verdict in the case if they had to stay here all night, something to that effect.\nAt the hearing, Judge Burnett, Mr. Harlan, and Ms. Fisher each stated that it was common for Judge Burnett to preliminarily inquire as to the expected length of trial. Although neither Mr. Harlan nor Ms. Fisher recalled the comment described by Ms. Cook, when Mr. Harlan asked Ms. Fisher if she would have transcribed the comment had it been made as described by Ms. Cook, Ms. Fisher answered affirmatively and stated: \u201cI don\u2019t recall him saying we\u2019ll be here all night.\u201d Ms. Fisher testified that if the comment was made during the jury \u201cindoctrination,\u201d she would not have recorded it, and that if the comment was made during voir dire, she would not have transcribed it because no objections were made during voir dire and no party had requested a transcription of voir dire. At the hearing, Ms. Berry confirmed that appellant is not requesting a transcription of the jury impanelment or voir dire.\nOur rules of appellate procedure provide that if no report of the trial proceedings was made or a difference arises as to whether the record truly discloses what occurred in the trial court, the parties\u2019 proposed statement of the unreported proceedings or the parties\u2019 difference, respectively, shall be submitted to and settled by the trial court. Ark. R. App. P. 6(d) and (e). At the hearing, Judge Burnett settled the record as follows:\nTHE COURT: Well, I made no statements similar to what Ms. Cook said \u2014\u2022 period. This Court is not going to agree to it. Y\u2019all can agree to put in the record whatever you want to, but I certainly didn\u2019t say anything of the kind. I might have made the comment about having three days to try the case. Seems like I do recall having something about another case, but that fell through and the attorneys were made aware of that, that they had a full additional day if they needed it.\nTHE COURT: I don\u2019t think it happened the way you said at all. I am willing to concede that I might have inquired of counsel as to how long the trial would take. I probably did, if that helps your record and if the State\u2019s agreeable to it, I\u2019ll say that I said that whether I did or not.\nMS. COOK: I understand that \u2014\nTHE COURT: I\u2019m sure I made an inquiry as to the length of time of the trial. I don\u2019t know whether I made that before the first juror was called or after they were all there. In all probability if I did it, it was when the whole panel was out in the courtroom before we called the jury. I don\u2019t even remember if I did it.\nMS. BERRY: It\u2019s on the record now.\nTHE COURT: Okay.\nThus, the trial court reconstructed this incident consistent with the rules of procedure. As to the prejudicial effect, if any, of Judge Burnett\u2019s comment, we find that appellant may not argue this issue for the first time before this court. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). Appellant admits that she failed to object below to Judge Burnett\u2019s comment, but citing Russell v. State, 288 Ark. 255, 704 S.W.2d 161 (1986), she argues that no objection should be required where it would have been futile. This argument is not persuasive. In Russell, this court reversed a conviction by bench trial and remanded the case for retrial where the trial judge announced the accused\u2019s guilt and then commented about his failure to testify, thus indicating to this court that the trial judge found there was no alternative to a finding of guilt. In Russell, this court dismissed the state\u2019s argument that no objection was raised below because it was obvious that an objection would have been futile. On the facts of the present case, however, Russell is not controlling because there is no indication here that a timely objection to Judge Burnett\u2019s comment at the commencement of the jury-trial proceedings as to the expected length of the trial would have been futile.\nThe second incident concerns appellant\u2019s request for a transcription of an in-chambers conference regarding proposed jury instructions. It is undisputed that the conference was not recorded. Appellant contends that, at the in-chambers conference, she objected to the proposed jury instructions and proffered alternate instructions. Consistent with the trial court\u2019s responsibility to make a complete record of the trial proceedings, appellant argues her in-chambers objection and proffered instruction should have been recorded and transcribed.\nWe agree that the trial court\u2019s failure to make a verbatim record of the in-chambers conference was error. That failure violated our Administrative Order No. 4, which provides:\nUnless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.\nAccord Ark. Code Ann. \u00a7 16-13-510 (Repl. 1994). Had the trial court followed this procedure, we would not have this issue before us. However, in this case, the record was settled by the trial court.\nAt the hearing to settle the record, the following colloquy occurred concerning the in-chambers conference:\nTHE COURT: In an effort to settle the record \u2014 and, Mr. Harlan, you listen too. As I recall, when the jury \u2014 when the presentation to the jury was completed by both the prosecution and the defense, we took a recess. We went to the back. I looked at submitted instructions from both parties, sorted them out. We might have discussed them off the record back there. I don\u2019t recall. That\u2019s not uncommon to do. And then we came back in here and an opportunity was made for a record on any objections to the instructions that were to be given to the jury. I don\u2019t know whether Ms. Cook made any objections or not.\nDid you? I don\u2019t remember.\nMS. COOK: Your Honor, I don\u2019t believe I made an objection at the time. But we had had a heated discussion on \u2014 I had tendered my own instructions regarding first degree murder. And then we \u2014 the prosecution had another instruction and we had argued for some time on those instructions, and then the prosecuting attorney proffered a new instruction which included accomplice liability, and we had a heated argument about whether that was appropriate, and your Honor determined that ah \u2014 to use the prosecution\u2019s ah \u2014 ah \u2014 ah instruction rather than \u2014 and I did object at that time.\nBut . . . when we came back in here, your Honor had already made your rulings on all the instructions.\nMR. HARLAN: Oh, I understand that [the court reporter wasn\u2019t even present], your Honor. I\u2019m assuming as your Honor is like we normally do, go back there and talk about them and then come out here and \u2014\nTHE COURT: Then both sides are given an opportunity to state objections for the record, and then I give my instructions.\nJudge Burnett settled the record as follows: \u201cI don\u2019t remember any heated discussions on jury instructions in this case.\u201d Appellant concedes that, outside the in-chambers conference, she did not raise any objection to the jury instructions nor did she proffer any alternate instruction.\nThe third incident concerns appellant\u2019s request for a transcription of a couple of questions that appellant contends were put to Judge Burnett by the jury after it had retired to deliberate, together with the trial court\u2019s response. Ms. Cook testified that she could not recall exactly the jury\u2019s questions, but believed part of it dealt with the purpose to cause death or the burden of proof. Ms. Cook testified that she could not recall exactly what had been Judge Burnett\u2019s response, but part of it was that he had reread the instruction. Neither Judge Burnett nor Mr. Harlan recalled the incident, and Ms. Fisher testified that such an incident was already in the transcript or it did not occur.\nWe conclude that appellant has not demonstrated that the state of the record has prejudiced her.\nThe judgment is affirmed.\nRepealed and replaced, effective January 1, 1996, with Ark. R. App. P. Crim. 5(a) incorporating Ark. R. App. P. Civ. 6(d) and (e), which track former Appellate Rule 6 without change.", "type": "majority", "author": "DONALD L. Corbin, Justice." } ], "attorneys": [ "Sandra Tramck Berry and BJ. Maddox-Cook, for appellant.", "Winston Bryant, Att\u2019y Gen., by; Clint Miller, Deputy Att\u2019y Gen. and Sr. Appellate Advocate, for appellee." ], "corrections": "", "head_matter": "Kimberly L. SMITH v. STATE of Arkansas\nCR 94-1300\n918 S.W.2d 714\nSupreme Court of Arkansas\nOpinion delivered April 1, 1996\nSandra Tramck Berry and BJ. Maddox-Cook, for appellant.\nWinston Bryant, Att\u2019y Gen., by; Clint Miller, Deputy Att\u2019y Gen. and Sr. Appellate Advocate, for appellee." }, "file_name": "0074-01", "first_page_order": 98, "last_page_order": 105 }