Kevin Rowe v. State of Arkansas

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CACR 03-959

MAY 26, 2004


[NO. CR 2002-3061, CR 2002-3100]




Terry Crabtree, Judge

The appellant, Kevin Rowe, pled guilty to four counts of aggravated robbery and four counts of theft of property in the Pulaski County Circuit Court. The jury sentenced him to thirty years' imprisonment on each count of aggravated robbery. The jury also sentenced him to fifteen years' imprisonment on each count of theft of property. Additionally, the trial court revoked appellant's probation on a prior conviction and sentenced him to two years' imprisonment for the revocation. The trial court ran all sentences concurrently. On appeal, appellant asks that we remand his case for resentencing. He asserts that the trial court violated Arkansas Rule of Evidence 610 (2003) by asking an inappropriate question during his sentencing proceeding. We affirm.

Immediately after accepting the guilty pleas, the trial court empaneled a jury for sentencing purposes. Six witnesses testified during the sentencing proceeding. First, John

Ryan and David Butler testified to the circumstances under which appellant robbed them. These men testified that they were on the side of the road repairing a tractor-trailer truck when appellant approached them, drew a gun, and demanded their wallets. Next, the State presented Gina Hobbs and Kara Drown as witnesses. They testified to the circumstances under which appellant robbed them. They stated that they had gone to the Park Plaza Mall at around two o'clock in the afternoon. According to the women, they were in the parking garage when appellant approached them in a vehicle, drew a gun, and demanded their purses. Officers Jason Follett and Elliot Young testified to the circumstances of appellant's high-speed chase before being apprehended. Elois Rowe, appellant's aunt who raised him, testified about appellant's difficult childhood. Lastly, appellant testified about his remorse and his efforts at rebuilding his life, such as taking Bible study courses while in the Pulaski County Jail.

Appellant contends that the trial judge violated Arkansas Rule of Evidence 610 by asking appellant a question posed by the jury, "How has Jesus Christ inspired you to respect yourself and other people?" Arkansas Rule of Evidence 610 provides, "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impared [impaired] or enhanced." After examining the record, we recognize that the trial judge did not ask appellant that specific question. Rather, the trial judge made it clear that he could not ask the question and explained his reason to the jury. As a result, the trial judge modified the original question posed by a juror to conform to what appellant had already testified about on direct examination. The trial judge asked appellant how the Bible studies that he had attended while in jail had inspired him. Appellant answered the modified question and did not object to it. Therefore, we must consider whether appellant made a contemporaneous objection. Appellate courts in Arkansas we will not consider arguments on appeal in the absence of a specific, contemporaneous objection at trial. Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002). The purpose of the contemporaneous-objection rule is to give the trial court a fair opportunity to consider an allegation of error and to correct it, if the allegation is meritorious. Id.

During the sentencing portion of the trial, the following exchange took place between the court and counsel regarding questions that the jury had of appellant after he had testified and had been cross examined by the State:

Prosecutor: I object to the Jesus Christ question.

Defense Counsel: I object because I just believe that is, we do not need to inject into this sentencing . . .

The Court: He brought it up, though, about the Bible classes. But, you know . . .

Prosecutor: I just don't think it's an area we need to get into, Judge. I think he said he is going to Bible classes.

The Court: I'll tell them about the law about religion; we can't inject that.

The trial judge then explained to the jury how it was going to handle the questions that had been submitted. He said, "Some of the questions I am going to ask and some I can't and I am going to explain why as I go through. This first question, I am going to ask it as it is written, and then I am going to ask it as I have to because of the law." The first question dealt with whether appellant knew that his charge would be less if the gun was not loaded. The trial judge explained that whether the gun was loaded did not matter under Arkansas law. Then, after a few more questions, the judge addressed the religion question as follows: The Court: Okay. And this question I am going to read as asked, and then I will explain why I can't ask it as it is. But the question is: "How has Jesus Christ inspired you to respect yourself and other people?" There is a rule that you can't somewhat inject religion into the process of sentencing, but I will ask it like this since [appellant] brought this up. "How has the Bible studies that you have gone - that you have testified to that you have gone to - inspired you to respect yourself and other people?

Appellant: I realize that - me personally, I know for sure that I got to do the right thing. You know I have been having a hard life, and I just want God to come into my life and show me the right way and the right road.

Appellant did not object to the trial judge's modified question about the Bible studies that he attended, and now he is unable to claim error on appeal. Appellant previously objected to the potential asking of a question from the jury about religion that included "Jesus Christ." However, that objection did not serve as a challenge to the modified question about Bible studies ultimately asked by the trial court. In addition, the trial judge expressly told the jury that he could not ask appellant the question that had been previously challenged. Appellant's failure to specifically object to the modified question that the trial judge posed deprived the trial judge of the opportunity to consider the allegation of error and correct it.

In any event, because appellant had raised the issue of religion through his testimony, he cannot claim any error from the court asking him a question regarding a subject about which he had already testified. Our supreme court has held under the doctrine of invited error that one who is responsible for error cannot be heard to complain of that for which he was responsible. See Anderson v. State, ___ Ark. ___, 118 S.W.3d 574 (2003).

During the sentencing portion of his trial, appellant testified that while he had been incarcerated in the county jail awaiting his trial he had been going to Bible study "trying to get his life right." Appellant then admitted into evidence a certificate of baptism from April 26, 2003, apparently in an effort to support his claim. Appellant testified on the theme of spiritual rebirth in the following exchange between him and his counsel.

Defense Counsel: Do you understand that you have made some bad choices?

Appellant: Yes, ma'am.

Defense Counsel: And in the space of about a week, you changed your life dramatically?

Appellant: I been [sic] trying to change my life. I finally got saved and trying to do the best thing for me and for my family.

Appellant went on to make an issue of his involvement in a Bible study, his baptism, and his being saved in an effort to demonstrate that he had turned his life around since his last arrest. For him to then allege on appeal that it was error under Rule 610 for the trial court to ask him a question about his involvement in the Bible study runs counter to caselaw holding that we will not allow an appellant to benefit from an error that he invited. Consequently, appellant's claim is without merit because he already saturated the sentencing hearing with testimony of his religious beliefs and practices.


Bird and Vaught, JJ., agree.