Vera Arnold v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-675

NOT DESIGNATED FOR PUBLICATION

VERA ARNOLD

APPELLANT

VS.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered November 18, 2004

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-692, HONORABLE WILLARD PROCTOR, JR., JUDGE

PETITION FOR REHEARING DENIED

PER CURIAM

Appellant appealed the denial of her petition for postconviction relief pursuant to Ark. R. Crim. P. 37 by the Circuit Court of Pulaski County. On September 16, 2004, we affirmed the circuit court's order. Arnold v. State, CR 03-675 (Ark. Sept. 16, 2004). Appellant now petitions for rehearing.

Rule 2-3(g) of the Rules of the Arkansas Supreme Court provides that "[t]he petition for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain." Ark. Sup. Ct. R. 2-3(g) (2004). Under the rule, "the brief on rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the Court." Id.

On April 10, 2003, the circuit court entered an order denying appellant's Rule 37 petition. On April 17, 2003, appellant filed a petition to modify order and/or correct clerical errors nunc pro tunc. On April 21, 2003, appellant filed a notice of appeal. On April 25, 2003, the circuit court denied appellant's petition to modify on the ground that it lacked jurisdiction to consider the petition due to appellant's filing of the notice of appeal. Appellant filed an amended notice of appeal on May 5, 2003.

On rehearing, appellant first claims that this court erred by finding that the circuit court did not rule on her claim that counsel was ineffective for failing to discover the three affidavits used in her arrest. Appellant argues that the filing of her post-order petition to modify order and/or correct clerical errors, in which she requested a ruling on this issue, did in fact, preserve the issue for appellate review. She also claims that this court erred by relying on the testimony of the Pulaski County District Court Clerk regarding the date the affidavits were signed.

We find no merit to appellant's argument that the filing of the post-order petition rendered the claims in the petition subject to appellate review. The mere filing of a petition to modify order and/or correct clerical errors was not sufficient to preserve the issue because there was no ruling by the circuit court. Moreover, the "deemed denied" provision of Ark. R. App. P.-Civ. 4(c), applicable to criminal appeals through Ark. R. App. P.-Crim. 2(a)(3), does not apply to Rule 37 appeals. See Chavis v. State, 328 Ark. 251, 253, 942 S.W.2d 853, 854 (1997) (citing Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996)). Accordingly, rehearing is not warranted on this point.

As for any error regarding this court's reliance on the testimony of the Pulaski County District Court Clerk, we decline to grant rehearing. We did not address the clerk's testimony in the Rule 37 portion of our opinion as there was no ruling below on counsel's ineffectiveness as to the affidavits. The clerk's testimony was discussed in the portion of our opinion in which we denied appellant's petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis, which is not the basis for her petition for rehearing.

Appellant goes on to claim that this court erred when it focused on the submission of a false insurance claim to determine the sufficiency of the evidence as opposed to focusing on the State's failure to connect appellant with a false affidavit, any alleged overt act, or any conspiracy using evidence other than the uncorroborated testimony of Tommy Smith. However, there were no rulings by the circuit court on these issues.

Appellant admitted in her petition to modify and/or correct clerical errors that the circuit court did not rule on the following claims regarding counsel's failure to preserve her challenge to the sufficiency of the evidence: (1) that the State failed to prove that appellant committed one or more overt acts in violation of Ark. Code Ann. § 16-89-112(b); (2) that the State failed to prove the existence of a conspiracy; (3) that the State failed to prove the existence of an affidavit; (4) that the State failed to prove any overt act alleged in its indictment; (5) and that the State failed to connect any of these to appellant or her pending insurance claim with any evidence other than the uncorroborated testimony of Smith, in violation of Ark. Code Ann. § 16-89-111(e). Again, without rulings from the circuit court, these issues are not preserved for appeal. Therefore, we find no ground for rehearing.

Finally, appellant claims that this court erred by finding that at trial, the original tape of her attempt to hire a hit man was played in conjunction with an enhanced version. As stated in our opinion, the State retained Rick Harper of Boomtown Productions to enhance the original tape by simply increasing the volume of appellant's voice. There were portions of the original tape that were not enhanced simply because they contained conversations between police officers that were not relevant to the State's case. The omitted portions were available to appellant for use at trial and had been available to counsel for some time.

Our statement in the opinion that the original tape was played in conjunction with the enhanced version needs clarification. The original tape was recorded at a higher rate of speed and required a speed variable tape player in order to be played for the jury. Such a machine was not available. The machine available at trial could only play the enhanced version, the version with the increased volume and omitted portions. As a compromise, a slowed down version of the original tape was played in conjunction with the enhanced version. This was done by playing the beginning of the slowed down original tape to the jury, then stopping that tape and picking up with the enhanced version. At the conclusion of the enhanced tape, the ending portion of the slowed down original tape was played. The result was that the jury heard the contents of the original tape, at a slower speed, and the enhanced version. Because the jury heard the contents of both tapes, appellant suffered no prejudice.

As stated, Rule 2-3(g) provides that a petition for rehearing should be used to call attention to specific errors of law or fact contained in the opinion and not to repeat arguments already considered by this court. Appellant's claim regarding the authenticity of the enhanced tape is simply a repetition of the argument already rejected by this court. Accordingly, appellant's petition is denied.

Petition for rehearing denied.