David Corey Turner v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION II

DAVID COREY TURNER

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-723

MAY 14, 2003

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[CR 2000-487]

HONORABLE JOHN NELSON FOGLEMAN, CIRCUIT JUDGE

AFFIRMED

A Crittendon County jury found appellant, David Corey Turner, guilty of manslaughter and sentenced him to ten years' imprisonment in the Arkansas Department of Correction. His sole point on appeal is that the trial court erred by allowing the State to reopen its examination of Dr. Michael Muhlbauer to testify that his testimony and medical opinion were given "to a reasonable degree of medical certainty." He argues that during Dr. Muhlbauer's examination by the State, Dr. Muhlbauer did not testify that all of his opinions were to a reasonable degree of medical certainty, and that the Rules of Evidence require inclusion of that statement to be admissible. He asserts that this failure required the trial court to strike the testimony from the record as inadmissible. We find no merit to this argument and affirm.

The determinative factor in this case is whether the trial court had authority to allow additional testimony. Appellant's point of error asserts that the prosecution re-opened its case to present the additional evidence, while the State avers that the court merely allowed the prosecution

further redirect. Even if appellant were correct, that the court had allowed the case to be re-opened for additional testimony, the court was within its authority to do so. The re-opening of the case-in-chief for the taking of additional evidence is a matter within the sound discretion of the trial judge, and his decision will not be reversed absent an abuse of that discretion. Sanders v. State, 838 S.W.2d 359, 310 Ark. 510 (1992); see also Curtis v. State, 279 Ark. 64, 648 S.W.2d 487 (1983); Williams v. State, 262 Ark. 219, 555 S.W.2d 231 (1977). Here, Dr. Muhlbauer's testimony was relevant and not cumulative. The court properly exercised its discretion in allowing the state to reopen its examination of Dr. Muhlbauer.

Appellant further argues that even after re-opening the testimony, the State failed to elicit testimony that all of the medical opinions given were to a reasonable degree of medical certainty. Appellant cites no authority supporting the proposition that a medical expert's opinion as to the cause of death must be stated to a reasonable degree of medical certainty in order to be admissible under Arkansas Rule of Evidence 702 (2002). Appellant cites cases expounding upon statutes governing workers' compensation laws and other areas of civil law, but those cases do not apply to expert medical evidence in a criminal case. Moreover, his argument fails to cite convincing authority to support it. We will not consider an argument when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 179, 55 S.W.3d 756, 759-60 (2001); Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Neither did the court err in refusing to strike Dr. Muhlbauer's testimony. Once an expert isqualified, any lack of foundation for the expert's opinion goes to the weight of the evidence, not its admissibility. See e.g., Sera v. State, 341 Ark. 415, 17 S.W.3d 61, 80 (2000). A trial court's ruling on the admission or rejection of evidence will not be reversed absence an abuse of discretion. Marts v. State, 332 Ark. 628, 642-43, 968 S.W.2d 41, 48 (1998). Under Arkansas Rule of Evidence 702, an expert's testimony is admissible if his scientific, technical, or specialized knowledge will aid the trier of fact in understanding the evidence, and it is not error to allow a doctor to testify as to the manner of death. Brown v. State, 60 Ark. App. 215, 218-19, 991 S.W.2d 137, 139-40 (1999).

Accordingly, we find no error and affirm.

Hart and Griffen, JJ., agree.