Wendell Gaddy v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

WENDELL GADDY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-532

March 2, 2005

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY

[NO. CR-01-796-2]

HONORABLE H.A. TAYLOR,

JUDGE

REBRIEFING ORDERED

Terry Crabtree, Judge

This is an appeal from appellant's first-degree murder conviction and sentence of twenty-six years in prison. This is the second time that this appeal has been before this court. It was first submitted to us as a no-merit appeal pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. In an unpublished opinion, we denied counsel's motion to be relieved and instructed counsel to present a merit brief on two issues. Gaddy v. State, CACR 03-532, unpub. opin. June 30, 2004. After discussing the standards applicable to no-merit appeals, we said:

Our review of this case and appellant's brief reveals two issues that we cannot regard as being wholly frivolous. The first involves the trial court's granting of the State's motion to exclude juror Charles Bridges for cause pursuant to Ark. Code Ann. § 16-31-102(b)(1) (Repl. 1999). See, e.g., Mitchell v. Goodall, 297 Ark. 332, 761 S.W.2d 919 (1988). The second issue involves the trial court's granting of the State's motion to exclude prospective juror Doris Ramick for cause under Ark. Code Ann. § 16-31-102(b)(5). These two rulings present arguable issues that should be presented in adversary form. Therefore, we deny counsel's motion to be relieved and order rebriefing.

Counsel for appellant has now filed another brief. However, instead of following our directive to present a merit brief on the two issues involving jurors who were excluded for cause, appellant has merely reprinted his former no-merit brief with minor, inconsequential alterations. Counsel has made no attempt to address the two issues we ordered to be briefed in adversarial form. Therefore, we once again instruct counsel to file a merit brief discussing those two issues. Counsel should understand that this court no longer considers this a no-merit appeal.

Rebriefing ordered.

Bird and Baker, JJ., agree.