Eric Burgie v. State of Arkansas

cr02-090

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 20, 2003

ERIC BURGIE

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-90

APPEAL FROM THE CIRCUIT COURT OF GARLAND COUNTY, NO. CR 2000-366, HONORABLE JOHN HOMER WRIGHT, JUDGE

AFFIRMED

Appellant Eric Burgie was convicted by jury of capital murder and aggravated robbery, and was sentenced to life imprisonment without parole. Pursuant to Anders v. California, 386 U.S. 738 (1976), and Ark. Sup. Ct. R. 4-3(j)(1), appellant's counsel has filed a motion to withdraw on the ground that there is no merit to the appeal previously filed with this court. Counsel's motion was accompanied by a brief including an abstract and an argument section that addresses all rulings adverse to appellant at trial.

Pursuant to Rule 4-3(j)(2), appellant was provided a copy of his counsel's brief and notified of his right to file a list of points on appeal within thirty days. Appellant responded by filing points that he wished the court to consider. The State agrees that there is no merit to the appeal, and has filed a brief addressing the points raised by appellant. Based on our review of the issues presented, together with our consideration of the entire record pursuant to Ark. Sup. Ct. R. 4-3(h), we concludethat there are no errors with respect to rulings adverse to appellant and that there is no merit to the issues raised by appellant. Accordingly, we grant the motion to withdraw and affirm appellant's convictions and sentences. Facts The State charged appellant as an accomplice to capital murder and aggravated robbery. At trial, the State first presented Susan Curtsinger. She testified that on June 27, 2000, her home was burglarized. She reported stolen a four-ten (410) shotgun, shotgun shells, cash, and personal checks. She provided the investigating officer, Sergeant Steve Cooley of the Hot Springs Police Department, with the shotgun's serial number. Sergeant Cooley testified that he entered the serial number into the Arkansas Crime Information Center and National Crime Information Center Stolen Articles database.

Ms. Curtsinger also testified that a few days before the burglary she arrived home to find a bicycle near the back door of her house. She questioned her daughter about the bicycle, but her daughter knew nothing about it. When Ms. Curtsinger again went to the back door, she saw appellant sitting on the bicycle holding a box in his hand. Appellant apologized for trespassing and then rode off on the bicycle.

Jenny Pitts testified that on July 7, 2000, she was visited by appellant, Rodney Holly, and Jason Anderson at her apartment in Hot Springs. Ms. Pitts described the three men as being "hyped up," and appellant stated to her that they were going "to hit a lick and rob a guy" for five pounds of marijuana. Appellant asked her for some shotgun shells he had left at her apartment a few days earlier. She saw Mr. Holly holding a shotgun wrapped in a t-shirt when the men left.

They returned an hour and a half later. Ms. Pitts described them as nervous and hyper. She testified that appellant stated that he had just killed someone. Ms. Pitts later found more shells thatwere left at her apartment, and she turned them over to the police.

Karen Hale testified that she was a friend of appellant's victim, Jack Wright. She stated that she occasionally purchased marijuana from Mr. Wright, and that he did not attempt to hide the fact that he sold marijuana. She said that Mr. Wright was expecting a delivery of five pounds of marijuana on July 7, 2000.

Ms. Hale testified that on that day she was watching a movie with Mr. Wright when three young black men kicked open the door to Mr. Wright's apartment. One of them was armed with a shotgun and wore a handkerchief over his lower face. One man wore a black stocking over his head and the other man also wore a handkerchief; at some point, they armed themselves with a long sword and a pearl-handled knife, respectively. The men demanded money and marijuana from Mr. Wright, and the gunman threatened him. The men ransacked Mr. Wright's apartment, and Mr. Wright gave them a key to his safe. Eventually, the men armed with the sword and the knife stood to either side of Mr. Wright and patted him down, finding a pocket knife. Ms. Hale testified that she then heard a gunshot. She covered herself, heard the assailants saying "come on, come on," and then heard Mr. Wright telling her to dial 911. Mr. Wright thereafter lost consciousness and died.

Officer Charles Winton of the Hot Springs Police Department testified that he helped in securing the crime scene. He found a sword and knife inside Mr. Wright's apartment, and throwing knives, identified as belonging to Mr. Wright, were found outside the apartment. Officer Winton and other officers found a four-ten (410) shotgun underneath a building adjacent to Mr. Wright's apartment. It housed a spent shell.

Detective Paul Norris of the Hot Springs Police Department investigated the crime. His investigation led him to Ms. Pitts, and after speaking with her, arrest warrants were issued for appellant and Mr. Holly.

Detective Norris arrested appellant on July 10, 2000. When arrested, appellant possessed a check issued to a bank account belonging to Ms. Curtsinger. The check had been dated "7-7-2000". Detective Norris verbally advised appellant of his Miranda warnings upon arrest, and upon arrival at the police department. Appellant initialed a form stating that he understood each of his rights. Appellant then waived his rights in writing and gave the following statement to Detective Norris and Lieutenant Steve Hill:

I was riding around with Rodney, Jason and another guy I don't know. The guy I don't know was a tall skinny dark skinned black guy wearing a white jersey with stripes. We met Shannon at the Phillip's 66 station at Grand and Central. Shannon told Rodney about this guy that was getting a lot of dope. I think Shannon had the idea of stealing the dope from the old man and I was just listening. We went riding around after that and Rodney, Jason and the other guy were talking about doing the guy for the dope and the money. We went over to Jenny's house later in the evening. They said they did not want to go in to this guy's house without the heat so Rodney got the gun. He wrapped a shirt around it and took it to the car. I was talking to Jenny when he took the gun out. We went back to the Phillip's station where we picked up the other guy then we went to hit the old man. Jason parked in the lot next to the apartment building and he stayed in the car. The other guy, Rodney and I went to the old guy's apartment. Rodney kicked open the door and the other guy rushed in with the gun. The other guy was yelling at the old man and the girl to give us the dope and the money. The old man was in the bedroom and the girl was in the first room. I grabbed the long sword and just stood there for a while. Then Rodney and I started ran sacking the place looking for the dope and the other guy was holding the gun. We were about finished so I took off out the back door and was running hard out the back door when I heard the shot. We all got back in the car and took off. The other guy got out of the car right down the street.

The other guy was not wearing any thing over his face, I don't know what Rodney was wearing over his face but I was wearing a hat down over my face. I was wearing dark colors.

Detective Norris's investigation confirmed that some of the shotgun shells Ms. Pitts turned over to the police matched the spent shell housed in the shotgun found next to the victim's apartment. Also, the serial numbers on the shotgun matched those of the gun reported stolen by Ms. Curtsinger, and she identified the shotgun as hers.

Dr. Frank Peretti of the State Crime Laboratory testified that Jack Wright died from a shotgun wound. The pellets recovered from the body were consistent with those in a four-ten (410) shotgun shell.

Sufficiency of the Evidence

Thus, the first adverse ruling that we must address is the denial of appellant's motion for a directed verdict. This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence, and we consider arguments on the sufficiency of the evidence prior to the review of any other claims of trial error. Dodson v. State, 341 Ark. 41, 46, 14 S.W.3d 489, 492 (2000). Also, appellant alleges in his points for reversal that he did not commit the crimes for which he was convicted. We consider appellant's argument as a challenge to the sufficiency of the evidence as well.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Davis v. State, __ Ark. __, __, 86 S.W.3d 872, 877 (2002). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id. at __, 86 S.W.3d at 878.

Appellant was charged with capital murder and aggravated robbery. A person commits capital murder if acting alone or with one (1) or more other persons, he commits or attempts to commit robbery, and in the course of and in furtherance of the robbery, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1997). A person commits aggravated robbery if he commits robbery while armed with a deadly weapon orby representing by word or conduct that he is so armed. Ark. Code Ann. § 5-12-103(a) (Repl. 1997). A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1997).

Appellant's criminal liability is based upon his status as an accomplice. See id. A person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402 (Repl. 1997). Under Ark. Code Ann. § 5-2-403 (Repl. 1997), an accomplice is defined as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense he:

(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or

(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

The determination of the status as an accomplice is ordinarily a mixed question of law and fact. As in Davis, supra, the issue was submitted to the jury. A criminal defendant is an accomplice where the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of the fact that the defendant was not present at the murder scene and did not directly commit the murder. Davis, __ Ark. at __, 86 S.W.3d at 878. When two persons assist one another in the commission of a crime, each is an accomplice and criminally liable for theconduct of both. Id. A participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Id.

At the conclusion of the State's case, appellant's counsel made a motion for a directed verdict on both charges against him. First, counsel requested a directed verdict on the charge of capital murder, arguing that the State failed to prove a prima facie case and that the State failed to prove that appellant was actually in the room at the time Mr. Wright was murdered. Second, counsel requested a directed verdict on the charge of aggravated robbery, contending that the State failed to prove that appellant used any force or threat of force in an attempt to take property from his victims. At the conclusion of the presentation of all evidence, however, appellant's counsel failed to renew his motion for directed verdict. After the jury found appellant guilty of capital murder and aggravated robbery, but prior to sentencing, the circuit court noted that it "failed to give the Defendant opportunity to renew his motions for directed verdict," but that had it considered any renewed motions, it would have denied them.

Our rules prohibit our review of appellant's sufficiency argument because his attorney failed to renew the directed verdict motion at the close of all of the evidence. Ark. R. Crim. P. 33.1; Grady v. State, 350 Ark 160, 166-67, 85 S.W.3d 531, 533 (2002). We have explained that the language in Rule 33.1 is stated in the conjunctive, clearly requiring that a motion for directed verdict be made at the close of the State's case and again at the close of all of the evidence. Grady, 350 Ark at 167, 85 S.W.3d at 533. We have also explained that the failure to challenge the sufficiency of the evidence at both the close of the State's case and the close of all of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict on appeal. Grady, 350 Ark at 167, 85 S.W.3d at 533-34. An "attempt to renew a motion for directed verdict after the jury has been charged is not timely and is not in compliance with the rule." Rankinv. State, 329 Ark. 379, 386, 948 S.W.2d 397, 401 (1997). Accordingly, we decline to address the merits of any argument concerning the sufficiency of the evidence because the issue is not preserved for appellate review.

Motion to Suppress Custodial Statement

Appellant's counsel filed a motion to suppress appellant's custodial statement in which he admitted to his crimes. The circuit court denied the motion after conducting a hearing. In reviewing a ruling denying a defendant's motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. State v. Fountain, 350 Ark. 437, 443-44, 88 S.W.3d 411, 415 (2002). We reverse only if the trial court's ruling is clearly against the preponderance of the evidence. Id. Moreover, we defer to the trial court in assessing witness credibility. Latta v. State, 350 Ark. 488, 496, 88 S.W.3d 833, 837 (2002).

In this case, appellant was arrested after the issuance of an arrest warrant. Detective Norris arrested appellant on July 10, 2000, and verbally advised him of his Miranda warnings at that time. Upon arrival at the police department, Detective Norris again went over appellant's rights, and appellant initialed a form stating that he understood each of his rights. Appellant then waived his rights in writing and gave an inculpatory statement to Detective Norris and Lieutenant Hill. Appellant presented no evidence or testimony of promises, threats, or use of force that induced him to sign and initial the waiver of rights form or his statement. Based upon our standard of review, we cannot say that the circuit court's denial of appellant's motion to suppress was clearly against the preponderance of the evidence.

Prior Bad Acts Evidence

As detailed in the facts section above, Susan Curtsinger's home was burglarized on June 27,2000. The shotgun and shells taken from her home were connected to appellant and the crimes for which he was convicted. Ms. Curtsinger, however, was the victim of a second robbery on July 10, 2000, the day of appellant's arrest. In the second burglary, a twenty-five (25) caliber pistol and personal checks were stolen from Ms. Curtsinger's home.

When arrested, appellant had a check belonging to Ms. Curtsinger in his possession. Ms. Curtsinger was unable to identify whether the check in appellant's possession was taken in the first burglary or the second burglary. Appellant's counsel objected to any evidence of the second burglary being introduced at trial, arguing that such evidence would be prejudicial and would constitute proof of the commission of other crimes by appellant.

The circuit court ruled that evidence of the first burglary and the check found in appellant's possession were admissible during the guilt phase of appellant's trial because of their probative value in relation to the charges underlying appellant's trial. The court further concluded that the probative value of evidence relating to the second burglary was outweighed by the potential for prejudice, and that witness testimony concerning the check should be free of mention of the second burglary.

Prior to sentencing, the State informed the circuit court that it planned on presenting evidence that appellant had a prior conviction in Louisiana, and that when he was arrested, he possessed the twenty-five (25) caliber pistol reported stolen in the second burglary. Appellant's counsel again objected to the introduction of any evidence relating to the second burglary. The circuit court allowed the introduction of evidence of the second burglary, and the evidence of appellant's prior conviction.

Arkansas Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of theissues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Arkansas Rule of Evidence 404(b) states:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Cook v. State, 345 Ark. 264, 270, 45 S.W.3d 820, 824 (2001). The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Id. A circuit court has broad discretion in deciding whether to admit evidence pursuant to Rule 404(b). Arnett v. State, 342 Ark. 66, 78, 27 S.W.3d 721, 728 (2000).

Moreover, evidence of other crimes is admissible under the res gestae exception to 404(b) to establish the facts and circumstances surrounding the alleged commission of the offense. Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000), reh'g denied Gaines v. State, CR 99-88 (Ark. March 2, 2000)(unpublished). Under the res gestae exception, the State is entitled to introduce evidence showing all circumstances which explain the charged act, show a motive for acting, or illustrate the accused's state of mind if other criminal offenses are brought to light. Id. Specifically, all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Id. Where separate incidents comprise one continuing criminal episode or an overall criminal transaction, or are intermingled with the crime actually charged, the evidence is admissible. Id.

The circuit court did not abuse its discretion in its evidentiary rulings adverse to appellant. The evidence of the first burglary of Ms. Curtsinger's home was independently relevant to the murder and aggravated robbery of appellant's victims. The four-ten (410) shotgun stolen from Ms. Curtsinger's home in the first burglary was found adjacent to the murder scene, and it housed a spent shell consistent with those reported stolen and those given to the police by Ms. Pitts. The shotgun pellets removed from Mr. Wright's body were consistent with those contained in a four-ten (410) shotgun shell. Appellant's trespass upon Ms. Curtsinger's property three days before the first burglary and his possession of one of her personal checks formed a connection between him and the murder weapon. This connection made it more probable that appellant was an accomplice to the capital murder and aggravated robbery that occurred on July 7, 2000.

Certainly, the jury may have inferred that appellant committed the first burglary of Ms. Curtsinger's home. But the evidence was offered to show the circumstances connecting the first burglary to the murder of Mr. Wright, not to prove that appellant committed the burglary. Under the res gestae exception to Rule 404(b), the State was entitled to show that appellant was linked to a gun taken in a burglary, and that the gun was later used to commit a homicide.

Also, the circuit court did not abuse its discretion in allowing the admission of evidence of the second burglary during sentencing. In the absence of prejudice, Arkansas law permits the introduction of "additional evidence relevant to sentencing." Skiver v. State, 336 Ark. 86, 99, 983 S.W.2d 931, 938 (1999)(citing Ark. Code Ann. § 16-97-101(2) (Supp. 1997)). Evidence relevant to sentencing may include, but is not limited to, prior convictions of the defendant, victim-impact evidence or statements, relevant character evidence and evidence of aggravating and mitigating circumstances. Marshall v. State, 342 Ark. 172, 175, 27 S.W.3d 392, 394? (2000)(citing Ark. Code Ann. § 16-97-103 (Supp. 1999)). We cannot say that the circuit court abused its discretion inallowing testimony during sentencing that appellant possessed a handgun containing a fully loaded clip and a watch, both reported stolen from Ms. Curtsinger's home in the second burglary, when he was arrested. The jury could reasonably infer from appellant's possession of the loaded handgun that he had a propensity for future violence. Combined with his prior conviction, appellant's possession of the gun also made him a felon in possession of a firearm, which is itself a felony. Criminal behavior proven by a preponderance of the evidence may be considered by a sentencing court even where no conviction resulted. Marshall, 342 Ark. at 177-78, 27 S.W.3d at 395. We conclude that the circuit court did not abuse its discretion in allowing the introduction of any of the discussed evidence of prior bad acts.

Evidence of Escape Attempt

While awaiting trial, appellant attempted to escape from jail. Jail personnel discovered a pillow and pillowcase draped over a razorwire fence near the recreation yard wall. A lockdown and headcount revealed appellant missing from his assigned cell. He was found a short time later hiding in a fan exhaust vent on the jail's roof. Over appellant's objection, the State introduced testimony at trial concerning his attempted escape. The circuit court cautioned the jury that the testimony was only to be considered as circumstantial evidence reflective of defendant's guilt.

Arkansas case law is replete with the proposition that the flight of a person charged with the commission of a crime has some evidentiary value on the question of his probable guilt. E.g. Elliott v. State, 342 Ark. 237, 241, 27 S.W.3d 432, 435 (2000). Evidence of appellant's attempted escape was admissible as circumstantial evidence of his guilt, especially when the circuit court gave a cautionary instruction to the jury.

Batson Challenge

The State utilized a peremptory strike on Ms. Tamara Finney, a black female jury panelist. Appellant raised an objection under Batson v. Kentucky, 476 U.S. 79 (1986). Upon questioning by the circuit court, the State explained that it was striking Ms. Finney because she answered during voir dire that she did not have a close relative that had been prosecuted in the county. The prosecuting attorney expressed personal knowledge that Ms. Finney's son had been prosecuted by his office, and that her son had been a victim of attempted capital murder that had been nol-prossed due to a lack of evidence. The prosecutor feared that Ms. Finney would be biased against the State. The circuit court then overruled appellant's objection.

We have delineated a three-step process to be used in the case of Batson challenges. Hinkston v. State, 340 Ark. 530, 538, 10 S.W.3d 906, 911 (2000)(citing MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)). First, the strike's opponent must present facts to raise an inference of purposeful discrimination; that is, the opponent must present a prima facie case of racial discrimination. Id. at 538-39, 10 S.W.3d at 911-12. Second, once the strike's opponent has made a prima facie case, the burden shifts to the proponent of the strike to present a race-neutral explanation for the strike. Id. at 539, 10 S.W.3d at 912. If a race-neutral explanation is given, the inquiry proceeds to the third step, wherein the trial court must decide whether the strike's opponent has proven purposeful discrimination. Id. Here, the strike's opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, is the product of discriminatory intent. Id.

We will reverse a trial court's ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Id. We accord some measure of deference to the trial court in that it is in a superior position to make these determinations because it has the opportunity to observe the parties and determine their credibility. Id.

As we discussed in Hinkston, we have previously concluded that explanations similar tothose by the State in appellant's case were racially neutral:

For example, in Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997), we held that the State had provided a race-neutral explanation for striking two jurors, one of whom had been in the prosecutor's office "in connection with serious crimes" and had an ex-husband who had been charged with past crimes by the same prosecutor. Similar explanations have been upheld as being race neutral by the federal courts. See United States v. James, 113 F.3d 721 (7th Cir. 1997) (finding peremptory strikes to be racially neutral based on information that potential jurors had relatives who had been involved with drugs.); United States v. Johnson, 54 F.3d 1150 (4th Cir. 1997) (holding the peremptory strike to be racially neutral based on the fact that the potential juror's husband had been involved in criminal activity); United States v. Lewis, 40 F.3d 1325 (1994) (upholding as race neutral a peremptory strike based on the fact that the potential juror's employer was under investigation by the federal government for possible firearms offenses).

340 Ark. at 540, 10 S.W.3d at 912. We hold that the reasons articulated by the State for exercising a peremptory challenge against Ms. Finney were racially neutral.

After the prosecutor gave his reason for striking Ms. Finney, appellant offered no evidence or argument to rebut the racially neutral explanation. "If the strike's opponent chooses to present no additional argument or proof but simply to rely on the prima facie case presented, then the trial court has no alternative but to make its decision based on what has been presented to it, including an assessment of credibility." Hinkston, 340 Ark. at 540, 10 S.W.3d at 913 (quoting MacKintrush v. State 334 Ark. at 399, 978 S.W.2d at 297). The circuit court's denial of appellant's Batson challenge was not clearly against a preponderance of the evidence.

Admission of Victim's Photograph

A single photograph of the body of the victim showing the gunshot wound that caused his death was admitted into evidence over appellant's objection that it had no other purpose than to inflame the jury. The circuit court overruled the objection, ruling that the photograph was not inflammatory.

The admissibility of photographs lies in the sound discretion of the trial judge and will notbe reversed absent an abuse of discretion. Edmond v. State, CR 01-1050 (Ark. 1-23-2003). When photographs are helpful to explain testimony, they are ordinarily admissible. Id. The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Id. Even the most gruesome photographs may be admissible if they tend to shed light on any issue, are useful in enabling a witness to testify more effectively or by corroborating testimony, or by enabling jurors to better understand the testimony. Id. Other acceptable purposes are to show the condition of the victims' bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Id.

The circuit court did not abuse its discretion in admitting the victim's photograph. The photograph was offered into evidence during the testimony of the state medical examiner as he explained the cause of death. The photograph thus corroborated the medical examiner's testimony. Accordingly, the probative value of the victim's photograph outweighed its prejudicial effect, and we cannot say that the circuit court abused its discretion.

Objections to Victim-Impact Testimony and Evidence

The victim's mother, Ms. Dessie Prince, gave victim-impact testimony during the sentencing phase of appellant's trial. Appellant objected, asserting that "the Rule" had been invoked but that Ms. Prince had been in the courtroom for the guilt-phase of the trial. The circuit court overruled the objection, concluding that the Rule did not apply to Ms. Prince because she was a victim representative and not a fact witness. Appellant also objected during sentencing to the introduction into evidence of a photograph of Ms. Prince's son when he was eighteen years old, showing him in his United States Air Force uniform. The circuit court overruled that objection as well.

Arkansas Code Annotated § 16-90-1112 (Supp. 2001) states that before imposing sentence, a trial court shall permit the victim of a crime to present a victim impact statement, either in writingor under oath at the sentencing proceeding, concerning the effects of the crime on the victim, the circumstances surrounding the crime, and the manner in which the crime was perpetrated. Arkansas Code Annotated § 16-97-103 (Supp. 2001) provides that victim-impact evidence or statements are relevant to sentencing by a court or by a jury. Finally, Arkansas Code Annotated § 16-97-103 specifically provides that victim-impact evidence may be presented to the jury in sentencing after finding a defendant guilty of capital murder. See Copeland v. State, 343 Ark. 327, 334, 37 S.W.3d 567, 571 (2001). Such evidence is not an additional aggravating circumstance, but rather is relevant evidence which informs the jury of the toll the murder has taken on the victim's family, and is admissible unless it is so prejudicial that it renders the trial fundamentally unfair. Id. (citing Noel v. State, 331 Ark. 79, 93, 960 S.W.2d 439, 446 (1998); Kemp v. State, 324 Ark. 178, 205, 919 S.W.2d 943, 957 (1996); Payne v. Tennessee, 501 U.S. 808 (1992)). This court recently once again upheld the underlying constitutionality of victim-impact testimony. See Kemp v. State, 348 Ark. 750, 766, 74 S.W.3d 224, 232 (2002).

This circuit court erred in concluding that Ms. Prince was not subject to the mandates of Ark. R. Evid. 615. Rule 615 governs the exclusion of witnesses from the courtroom so that they may not hear the testimony of other witnesses. See Clark v. State, 323 Ark. 211, 216, 913 S.W.2d 297, 300 (1996). The provisions of Rule 615 are mandatory. Id. Nonetheless, pursuant to exceptions set forth in Rule 615 and in Ark. R. Evid. 616, certain persons, including the victim of the crime, have the right to remain in the courtroom. The victim of the crime language in Rule 616, however, refers only to the primary victim or the parent, guardian, or custodian of a minor victim. See Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996); Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).

We do not find, however, that the circuit court's error requires us to reverse its judgment because no prejudice resulted to appellant. Prejudice is not presumed and we do not reverse absenta showing of prejudice. Clark, 323 Ark. at 216-17, 913 S.W.2d at 300. The purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and "`to prevent the possibility of one witness's shaping his or her testimony to match that given by other witnesses at trial.'" Id. at 217, 913 S.W.2d at 300 (citations omitted).

Ms. Prince did not testify during the guilt phase of appellant's trial. Her only testimony was victim-impact testimony, and she was the only victim-impact witness presented by the State. Although Ms. Prince's presence during the guilt phase of appellant's trial and her subsequent testimony during the sentencing phase constituted a violation of Rule 615, her victim-impact testimony did not contravene the purpose of the sequestration rule. Accordingly, appellant suffered no prejudice and we will not find reversible error on this issue.

Likewise, the circuit court did not err in admitting the photograph of the victim in his military uniform at the age of eighteen into evidence as part of Ms. Prince's victim-impact testimony. This court has approved the use of a video statement in Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997), and the reading of a poem in Noel, supra, during victim-impact testimony. The photograph of appellant's victim was consistent with the purpose of the victim-impact statutes, which are "designed to show each victim's uniqueness as an individual human being, and that the victim's death represents a unique loss to society and, in particular, to his family." Hicks, supra. We cannot say that the photograph was so prejudicial that appellant's trial became fundamentally unfair.

Appearance Before the Jury in Shackles

The circuit court granted the State's request that appellant remain shackled and cuffed during sentencing. Jail personnel had expressed concern because of appellant's demeanor after being found guilty and because of his prior escape attempt. Appellant's counsel objected, arguing that appellanthad sat through the trial without any outburst and without trying to escape. The circuit court overruled the objection, concluding that appellant would remain shackled and cuffed in light of the fact that the only sentence he could receive for capital murder was life imprisonment without parole (because the State waived the death penalty).

It is not prejudicial, per se, when the defendant is brought into the courtroom handcuffed. Jefferson v. State, 328 Ark. 23, 31, 941 S.W.2d 404, 409 (1997). Restraints may be used where it is essential to maintain dignity, order, and decorum in the courtroom. Id. "Moreover, this court in Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985), upheld the use of restraints where the defendant has been charged with violent offenses, engaged in disruptive behavior, or attempted escape." Id.

Appellant had just been convicted of a violent offense, and had previously attempted to escape from jail. The shackles added nothing to the trial that was not already apparent from the nature of the case. Id. In these circumstances, we conclude that any general prejudice caused by the presence of the shackles could have been cured by the trial court's admonishment to the jury to disregard the shackles, but appellant failed to request such an admonition. Id. Moreover, appellant's sentence for capital murder was not submitted to the jury for consideration because it was mandated to be life imprisonment without parole. As such, no prejudice resulted from this alleged error.

Other Points for Reversal

In his points for reversal, appellant contends that he did not receive a fair trial as the court, prosecutors, and his counsel were biased against him. He further argues that his counsel failed to adequately abstract the record in his brief, alleging that his counsel neglected to abstract testimony that would show an inconsistency in the testimony of the State's witnesses.

We find no merit in these arguments. Appellant does not provide any examples of thealleged bias, nor allege how he was prejudiced by any alleged bias. Appellant had not identified any specific deficiencies in his counsel's brief, and we note that counsel's brief meets the requirements of Anders v. California, Ark. Sup. Ct. R. 4-3(j)(1), and our abstracting rules. Finally, the credibility of witnesses is an issue for the jury and not this court. Turner v. State, 349 Ark. 715, 723, 80 S.W.3d 382, 388 (2002). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

Supreme Court Rule 4-3(h) Review In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found. From the review of the record and the briefs before us, we conclude that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Imber, J., not participating.