Summary
ordering rebriefing where two adverse evidentiary rulings were abstracted but not discussed by counsel in appellant's brief
Summary of this case from Reynolds v. StateOpinion
No. CACR12-670
02-20-2013
JAMES COLLIER III APPELLANT v. STATE OF ARKANSAS APPELLEE
Cecilia Ashcraft, for appellant. Dustin McDaniel, Att'y Gen., by:
APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [No. CR-2011-23-1]
HONORABLE BERLIN C. JONES, JUDGE
REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED
LARRY D. VAUGHT , Judge
Appellant James Collier III was convicted by a Jefferson County jury of aggravated assault on a family or household member and of committing the assault in the presence of a child. He was sentenced to a six-year term of imprisonment for the former conviction and a two-year term of imprisonment for the latter, to be served consecutively. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k) (2012), Collier's counsel filed a motion to be relieved as counsel. The motion is accompanied by an abstract and addendum of the proceedings below, and a brief in which counsel asserts that there is nothing in the record that would support an appeal. Collier has filed a pro se statement of points for reversal, and the State has filed a response to Collier's statement. Because Collier's counsel has failed to comply with our rules for no-merit cases, we order rebriefing.
On January 13, 2011, the State filed a criminal information against Collier alleging that on January 4, 2011, he committed the offense of aggravated assault on a family or household member pursuant to Arkansas Code Annotated section 5-26-306 (Repl. 2006). On February 3, 2012, the State amended the information, restating the aggravated-assault allegation and adding a sentencing enhancement, pursuant to Arkansas Code Annotated section 5-4-702 (Supp. 2011), for committing the offense in the presence of a child.
While dated February 3, 2012, the amended information was not filed of record until February 8, 2012, the day after Collier's jury trial that was held February 7, 2012.
At Collier's jury trial, Tanicha Collier and her three children, eighteen-year-old Akemia and fifteen-year-old twins James IV and Jamie testified that Collier (Tanicha's ex-husband and the father of the three children) argued with Akemia about dirty dishes and grabbed a hammer, stating that "he was going to take care of her." James IV tried to grab the hammer and was pushed away by Collier. Tanicha also tried to intervene and grab the hammer. While James IV and Tanicha struggled with Collier, Jamie retrieved a gun and shot Collier in the back. Tanicha and her children testified that they were frightened that Collier was going to harm Akemia with the hammer. Collier and Jamie were arrested following the incident.
At the conclusion of the trial, the jury found Collier guilty of aggravated assault of a family or household member and guilty of committing the offense in the presence of a minor. During the sentencing phase of trial, the State offered into evidence four documents reflecting Collier's prior guilty pleas and convictions. Thereafter, the defense presented character evidence from two of Collier's friends. Finally, Collier testified that he loved his family and had learned his lesson. After deliberating, the jury returned with a six-year sentence for the aggravated-assault conviction and an additional two-year sentence for committing the offense in the presence of a minor. This no-merit appeal followed.
Those documents were (1) an order of probation filed July 15, 1992, resulting from Collier's plea of guilty to a felony hot-check offense; (2) an order of probation filed December 10, 1992, resulting from Collier's plea of guilty to a felony hot-check offense; (3) a judgment-and-disposition order filed June 2, 1999, convicting Collier of second-degree domestic battery; and (4) a judgment-and-commitment order filed April 16, 2003, convicting Collier of two counts of third-degree domestic battery.
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In motions to withdraw as counsel and no-merit briefs filed pursuant to Anders and Arkansas Supreme Court Rule 4-3(k), it is imperative that counsel follow the appropriate procedure. Forster v. State, 2013 Ark. App. 34, at 2. In furtherance of the goal of protecting constitutional rights, it is both the duty of counsel and of this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Id.
Collier's counsel, in her no-merit brief, abstracted and discussed several rulings that were adverse to Collier, including but not limited to, the sufficiency of the evidence supporting the aggravated-assault conviction, the trial court's decision to allow the State to amend its information just days before trial, and one adverse evidentiary ruling. However, our review of the record reveals two additional adverse evidentiary rulings that counsel abstracted but failed to discuss in the no-merit brief.
The first omitted adverse evidence ruling occurred during Jamie's cross-examination. Collier's counsel asked Jamie two times about the distance between Akemia and the group (Tanicha, James IV, and Collier) struggling with the hammer. Jamie testified that he did not know. When asked a third time, the State objected, stating "asked and answered," and the trial court sustained the objection.
The second adverse evidentiary ruling occurred during the sentencing phase. After the State offered into evidence four documents establishing Collier's prior guilty pleas and convictions, the State questioned Tanicha about the details of those incidents in an effort to convey to the jury that Tanicha had been the victim of Collier's prior domestic-abuse convictions. Counsel for Collier objected, claiming that it was of no significance who was the victim of the domestic abuse for purposes of sentencing. The trial court sustained the objection. In response to the ruling, the State asked the trial court if it could, without referring to the prior convictions, ask Tanicha if she had been involved with prior incidents of domestic abuse with Collier and whether her children had witnessed the incidents. Counsel for Collier again objected. The trial court ruled that the children would be permitted to testify about domestic-abuse incidents that they witnessed because "it's a motive for their action in this case."
A no-merit brief that fails to address an adverse ruling does not satisfy the requirements of Rule 4-3(k)(1) and must be rebriefed. Williams, 2011 Ark. App. 35, at 6. We cannot affirm an appellant's conviction and allow an attorney to withdraw without adequate discussion as to why a particular adverse ruling by the trial court could not be meritorious grounds for reversal. Id. Accordingly, we order Collier's counsel to file a substituted brief and abstract containing and addressing all adverse rulings within fifteen days from the date of this opinion.
Rebriefing ordered; motion to withdraw denied.
HARRISON and WOOD, JJ., agree.
Cecilia Ashcraft, for appellant.
Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.