{ "id": 3489779, "name": "Marcus Lance RACKLEY v. STATE of Arkansas", "name_abbreviation": "Rackley v. State", "decision_date": "2007-11-08", "docket_number": "CR 06-385", "first_page": "438", "last_page": "444", "citations": [ { "type": "official", "cite": "371 Ark. 438" }, { "type": "parallel", "cite": "267 S.W.3d 578" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "361 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5682723 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "99" }, { "page": "536" }, { "page": "99-102" }, { "page": "536-38" } ], "opinion_index": 0, "case_paths": [ "/ark/361/0091-01" ] }, { "cite": "55 S.W.3d 355", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 2001, "opinion_index": 0 }, { "cite": "346 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111379 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0118-01" ] }, { "cite": "354 Ark. 404", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36043 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "a defendant cannot agree with the trial court's ruling and later attack the ruling on appeal" }, { "parenthetical": "a defendant cannot agree with the trial court's ruling and later attack the ruling on appeal" } ], "opinion_index": 0, "case_paths": [ "/ark/354/0404-01" ] }, { "cite": "368 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3798918 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/368/0344-01" ] }, { "cite": "357 Ark. 260", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5403010 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/357/0260-01" ] }, { "cite": "246 S.W.3d 858", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 3800771, 3800716 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/368/0441-01", "/ark/368/0387-01" ] }, { "cite": "368 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3800716 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/368/0387-01" ] }, { "cite": "347 Ark. 708", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683260 ], "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "considering an ineffective-assistance, conflict-of-interest argument on direct appeal where appellant raised the issue in a motion for new trial" }, { "parenthetical": "considering an ineffective-assistance, conflict-of-interest argument on direct appeal where appellant raised the issue in a motion for new trial" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0708-01" ] }, { "cite": "350 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404490 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0198-01" ] }, { "cite": "357 Ark. 27", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5405444 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "this court will not consider ineffective assistance as a point on direct appeal unless that issue has been considered by the trial court" }, { "parenthetical": "this court will not consider ineffective assistance as a point on direct appeal unless that issue has been considered by the trial court" } ], "opinion_index": 0, "case_paths": [ "/ark/357/0027-01" ] }, { "cite": "76 Ark. App. 447", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142968 ], "weight": 9, "year": 2002, "pin_cites": [ { "page": "453" }, { "page": "312-13" }, { "page": "313" }, { "page": "454" }, { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/ark-app/76/0447-01" ] }, { "cite": "362 Ark. 257", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3559466 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "277" }, { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ark/362/0257-01" ] }, { "cite": "353 Ark. 384", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155514 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "395" }, { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/ark/353/0384-01" ] }, { "cite": "368 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3798454 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "261" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/ark/368/0256-01" ] }, { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "786" }, { "page": "369-70" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-27-221", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2006, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-42-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1999, "pin_cites": [ { "parenthetical": "b" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-27-206", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 2006, "opinion_index": 0 } ], "analysis": { "cardinality": 633, "char_count": 12322, "ocr_confidence": 0.783, "pagerank": { "raw": 1.3396684612127407e-07, "percentile": 0.63087191569856 }, "sha256": "4750ffc112bba01aade43ae2b7bafbf9f8dfbdbc6d183b3fabb6d9c4490995cf", "simhash": "1:29ea85ea604d4d3d", "word_count": 2055 }, "last_updated": "2023-07-14T22:33:16.265391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Marcus Lance RACKLEY v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant Marcus Rackley was tice. thirty-seven various sex offenses in Faulkner County; the charges, which included rape, incest, second-degree sexual assault, and first-degree sexual abuse, stemmed from allegations that Rackley had repeatedly sexually molested his step-daughter, T.W., between 2001 and 2004. Cynthia Rackley, Marcus Rackley\u2019s wife and T.W.\u2019s mother, was also charged with permitting abuse of a minor, a misdemeanor violation of Ark. Code Ann. \u00a7 5-27-206 (Repl. 2006).\nPrior to trial, Rackley filed a motion pursuant to the Arkansas rape-shield statute, Ark. Code Ann. \u00a7 16-42-101 (Repl. 1999), seeking permission to introduce an \u201cinstant message,\u201d or IM, conversation in which T.W. had engaged with her boyfriend. Following a hearing on Rackley\u2019s motion, the trial court entered an order on June 7, 2005, finding that the evidence was irrelevant to the proceedings as it was not \u201cevidence directly pertaining to the act upon which the prosecution is based or evidence of the victim\u2019s prior sexual conduct with the defendant or any other person.\u201d Just prior to trial, however, the court determined that, if T.W. denied having a relationship with the boy with whom she was communicating, Rackley could introduce a redacted version of the transcript of the IM conversation to impeach her.\nThe case proceeded to trial on June 22-23, 2005. A Faulkner County jury convicted him on all counts and sentenced him to a total of thirty-seven years in the Arkansas Department of Correction. Rackley filed a timely notice of appeal, and now raises two arguments for reversal.\nAs mentioned above, Rackley\u2019s wife, Cynthia, also faced charges stemming from Rackley\u2019s sexual abuse of T.W. According to a footnote in Rackley\u2019s brief, Cynthia was initially charged with permitting abuse of a minor, a felony violation of Ark. Code Ann. \u00a7 5-27-221 (Repl. 2006); however, the charge was subsequently reduced to the misdemeanor offense of endangering the welfare of a minor, Ark. Code Ann. \u00a7 5-27-206 (Repl. 2006). The same attorney, Max Horner, represented both Rackleys. In his first point on appeal, Marcus Rackley argues that the trial court should have taken it upon itself to inquire into this \u201cjoint representation\u201d situation.\nRackley concedes at the outset of his argument that it \u201cmay be that the resolution of this matter will occur in Rule 37 proceedings [as] indeed, many of the relevant decisions on the point have come in postconviction proceedings.\u201d Nonetheless, he insists that his counsel\u2019s conflict was \u201cso egregious\u201d that he \u201cposits a valid jurisprudential basis for its consideration now.\u201d In essence, Rackley asserts that the conflict inherent in his attorney\u2019s representation of both himself and his wife was so conspicuously offensive that the trial court should have \u201cintervene[d], without an objection, to correct a serious error either by an admonition to the jury or by ordering a mistrial.\u201d See Wicks v. State, 270 Ark. 781, 786, 606 S.W.2d 366, 369-70 (1980).\nThis third of the so-called Wicks exceptions is a narrow one and, since Wicks, it has rarely been applied. See Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). The exception applies when \u201cthe error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly.\u201d Springs, 368 Ark. at 261, 244 S.W.3d at 687 (quoting Anderson v. State, 353 Ark. 384, 395, 108 S.W.3d 592, 599 (2003)). Indeed, this court has held that the third Wicks exception \u201chas only been applied to cases in which a defendant\u2019s fundamental right to a trial by jury is at issue.\u201d Id. (quoting McKenzie v. State, 362 Ark. 257, 277, 208 S.W.3d 173, 184 (2005)).\nRackley cites to no cases in which a claim of ineffective assistance of counsel due to a conflict of interest has been considered by this court on direct appeal in the absence of an objection in the trial court. However, our court of appeals has rejected such an argument in Cook v. State, 76 Ark. App. 447, 68 S.W.3d 308 (2002). In Cook, the same attorney represented two co-defendants, Cook and Burris. On appeal, Cook argued that because his attorney also represented his co-defendant, his defense was prejudiced by creating a conflict of interest, thereby denying his right to effective assistance of counsel. Even though Cook had not raised this argument to the trial court, he argued on appeal that it should fall within the third Wicks exception, and that the trial judge should have been obligated to make an inquiry into the conflict on his own motion. Cook, 76 Ark. App. at 453, 68 S.W.3d at 312-13.\nThe court of appeals noted that the crux of Cook\u2019s argument was that he had been denied the effective assistance of counsel, and that such claims are typically raised in Rule 37 proceedings, where the parties have an opportunity to develop a record on the conduct of defense counsel, and counsel can testify on his or her own behalf. Id., 68 S.W.3d at 313. However, Cook had not raised his conflict-of-interest argument in the trial court, and the court of appeals concluded that his argument was one of ineffective assistance of counsel, which was not \u201can immediate and egregious trial error\u201d that warranted application of the third Wicks exception. Id. at 454, 68 S.W.3d at 313. Accordingly, the court of appeals concluded that Cook\u2019s ineffective-assistance argument was not preserved for appellate review. Id.\nOur research has not revealed a single case where this court has considered an ineffective-assistance, conflict-of-interest argument on direct appeal in the absence of a proper objection in the trial court. Certainly, an ineffective-assistance argument can be raised on direct appeal, but it may only be done if 1) the issue was first raised during trial or in a motion for new trial, and 2) the facts and circumstances were fully developed either during trial or during other hearings conducted by the trial court. See, e.g., Ratchford v. State, 357 Ark. 27, 159 S.W.3d 304 (2004) (this court will not consider ineffective assistance as a point on direct appeal unless that issue has been considered by the trial court); Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002); Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002) (considering an ineffective-assistance, conflict-of-interest argument on direct appeal where appellant raised the issue in a motion for new trial). Here, Rackley failed to raise his conflict-of-interest argument in the trial court. Accordingly, we hold that he has failed to preserve this argument for review.\nIn his second point on appeal, Rackley argues that the trial court erred in finding that evidence of sexual conversations between the victim and her boyfriend were encompassed by the rape-shield statute. Under Arkansas\u2019s rape-shield statute, Ark. Code Ann. \u00a7 16-42-101, evidence of a victim\u2019s prior sexual conduct is inadmissible by the defendant to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Ark. Code Ann. \u00a7 16-42-101 (b) (Repl. 1999); see also Rapp v. State, 368 Ark. 387, 246 S.W.3d 858 (2007). The trial court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the trial court\u2019s decision unless it constitutes a clear error or a manifest abuse of discretion. See Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004).\nAs mentioned above, prior to trial, Rackley argued that he should be permitted to introduce a transcript of an instant-message conversation between T.W. and her boyfriend. In his rape-shield motion, Rackley alleged that the conversation \u201cincluded statements of [a] sexual nature,\u201d and he urged that the material should be admitted at trial in order to challenge the credibility of the victim.\nThe trial court held an in camera hearing on Rackley\u2019s rape-shield motion on June 5, 2005. At that time, Rackley argued that the instant messages went to show T.W.\u2019s motives and credibility. In addition, he contended that the instant messages were not \u201csexual conduct\u201d that would be covered by the rape-shield statute. The trial court did not rule on the motion at the time, but entered an order two days later on June 7, 2005, finding that the evidence offered was not evidence pertaining to the act upon which the prosecution was based or evidence of the victim\u2019s prior sexual conduct with the defendant or any other person, and was thus not relevant to the proceedings.\nOn the morning of trial, Rackley changed his tack slightly and asserted to the court that he wished to introduce the instant message conversation \u201cto establish that [the victim] was speaking with this boy [whom] she wasn\u2019t supposed to. Her parents had forbidden her to do this.\u201d He also averred the \u201cpart about the sex\u201d could be redacted, because that was \u201cnot really [his] interest in using that piece of evidence.\u201d The trial court ruled that, if T.W. denied speaking to the boy, Rackley would be permitted to use the transcript of the conversation, with the references to sexual conduct redacted from it. Rackley further noted that the messages went \u201cto her motivation behind her making these accusations, in that she is having this relationship with this boy that her parents have forbidden her to have.\u201d The following colloquy then occurred:\nThe Court: Well, the question is going to be, I presume, were you forbidden to have a relationship or any conversation or contact with this young man, and did you violate that? If she says no, then you could use \u2014\nRackley: And I would say specifically, \u201cwere you instant messaging him when you were not supposed to on the computer?\u201d\nThe Court: All right.\nRackley: And that would really be the gist of it, and I think we could \u2014 I mean, and there is also another part in there where she talks about skipping school, which again is something that goes to her credibility.... And ... I mean, if she admits it, then that will be that, I mean, and there\u2019s no need to \u2014\nProsecutor: But the document itself, just to be clear, is inadmissible into evidence.\nRackley: In its present state.\nProsecutor: No judge, the document, to make clear, is inadmissible as evidence.\nRackley: Oh, yes.\nThe Court: At this point, yes. If she denies that she did that, then it could be introduced as impeachment evidence, and then we\u2019ll redact that part that needs to be done.\nOn appeal, Rackley acknowledges that the trial court permitted him to cross-examine T.W. regarding her bias and also allowed him to redact the messages to omit the sexual discussion. Nonetheless, he asserts that the \u201cproblem\u201d with the trial court\u2019s ruling was that the sexual content of the instant messages was the \u201cintegral part\u201d of the evidence. Our difficulty with Rackley\u2019s argument is that he represented to the trial court that the \u201cpart about the sex\u201d was \u201cnot really [his] interest in using that piece of evidence,\u201d and he agreed that using the redacted version of the instant-message transcript would be sufficient to challenge the victim\u2019s credibility. A party may not attack and appeal from a decision to which he agreed. See Brown v. State, 368 Ark. 344, 246 S.W.3d 414 (2007); Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003) (a defendant cannot agree with the trial court\u2019s ruling and later attack the ruling on appeal); Camargo v. State, 346 Ark. 118, 55 S.W.3d 355 (2001). Accordingly, we do not reach the merits of Rackley\u2019s second point on appeal.\nAffirmed.\nNeither the record nor the addendum contains documents that indicate the crimes with which Cynthia was charged.\nIn Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005), Cook\u2019s appeal from the circuit court\u2019s denial of his petition for postconviction relief pursuant to Ark. R. Crim. P. 37, this court noted the court of appeals\u2019 treatment of this issue and voiced no concerns with it. Cook, 361 Ark. at 99, 204 S.W.3d at 536. Moreover, this court rejected Cook\u2019s multiple claims that his attorney\u2019s joint representation had caused counsel to labor under a conflict of interest. Id. at 99-102, 204 S.W.3d at 536-38.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Lisa C. Ballard, for appellant.", "Dustin McDaniel, Att\u2019y Gen., by: Vada Berger, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Marcus Lance RACKLEY v. STATE of Arkansas\nCR 06-385\n267 S.W.3d 578\nSupreme Court of Arkansas\nOpinion delivered November 8, 2007\nLisa C. Ballard, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Vada Berger, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0438-01", "first_page_order": 464, "last_page_order": 470 }