Davis v. State

Lynn O. DAVIS v. STATE of Arkansas

CR 95-645                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 24, 1996


1.   Evidence -- motion for directed verdict a challenge to
     sufficiency of evidence -- factors on review of denial of
     motion. -- A directed verdict motion is a challenge to the
     sufficiency of the evidence; sufficient evidence means
     substantial evidence to support the jury's verdict;
     substantial evidence is that which is forceful enough to
     compel a conclusion one way or another and which goes beyond
     speculation and conjecture; the court reviews the evidence in
     a light most favorable to the appellee and considers only that
     evidence which supports the verdict.

2.   Criminal law -- elements of capital murder -- "knowingly" and
     "under circumstances manifesting extreme indifference to human
     life" defined. -- A person acts "knowingly" with respect to
     his conduct or attendant circumstances when he is aware that
     his conduct is of that nature or that such circumstances
     exist; he acts "knowingly" with respect to a result of his
     conduct when he is aware that it is practically certain that
     his conduct will cause such a result; a person acts "under
     circumstances manifesting extreme indifference to the value of
     human life" when he engages in deliberate conduct which
     culminates in the death of some person.

3.   Criminal law -- case inapplicable -- capital murder does not
     require proof of premeditation and deliberation. -- The
     appellant, citing Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), argued that the State was required to prove
     premeditation and deliberation, but that was not so; capital
     murder does not require proof of premeditation and
     deliberation. 

4.   Criminal law -- substantial circumstantial evidence of child
     abuse may be sufficient to sustain conviction for capital
     murder -- evidence here sufficient to support conviction. --
     Substantial circumstantial evidence of a cruel, malicious, and
     continuous course of child abuse culminating in a violent act
     that causes the child's death is sufficient to sustain a
     conviction for knowingly causing the death of a person age
     fourteen or younger under circumstances manifesting a cruel
     and malicious indifference to human life; here, the evidence,
     though circumstantial, was sufficient to support the
     appellant's conviction for capital murder where the State's
     proof contained evidence that appellant threw the child to the
     floor in a forceful manner; strong medical testimony of
     recent, significant head trauma and other serious abuse; a
     neighbor's testimony regarding appellant's animosity toward
     the boy; appellant's abuse of another child; and proof that
     appellant and the child's mother took flight to avoid arrest.

5.   Witnesses -- jury not required to believe all or even part of
     witness's testimony -- verdict may be based upon common sense.
     -- A jury is not required to believe all or any part of a
     defendant's or witness's statement and is entitled to draw
     upon common sense and experience in reaching its verdict.

6.   Trial -- mistrial a drastic remedy -- trial judge's denial of
     mistrial not disturbed absent an abuse of discretion. -- A
     mistrial is a drastic remedy that should be resorted to only
     when there has been error so prejudicial that justice cannot
     be served by continuing the trial; a trial judge's denial of
     a mistrial will not be disturbed on appeal absent an abuse of
     discretion. 

7.   Evidence -- evidence of previous battery charge properly
     admitted -- no abuse of discretion in trial judge's denial of
     mistrial motion. -- The admission of appellant's videotaped
     statement, in which he admitted that battery charges had
     previously been filed against him, and the trial court's
     subsequent denial of appellant's motion for a mistrial, was
     not an abuse of discretion where appellant had agreed to let
     his videotaped statement come into evidence in its entirety;
     appellant's prior child abuse charge was admitted to show
     absence of mistake or accident, not method of operation; the
     probative value of the evidence was not outweighed by the
     danger of unfair prejudice; the trial judge is accorded
     discretion in ruling on A.R.E. 404(b) questions.

8.   Trial -- law of the case inapplicable -- during the course of
     a single trial, judge may reconsider his prior rulings. --
     Appellant's attack of the judge's ruling on the ground that
     the original order in limine should have been honored and his
     reliance on the law of the case doctrine was meritless; law of
     the case was inapplicable; it ordinarily arises in the case of
     a second appeal and requires that matters decided in the prior
     appeal be considered concluded; during the course of a single
     trial, the judge is at liberty to reconsider his or her prior
     rulings.  

9.   Evidence -- admission of photographs discretionary -- no abuse
     of discretion found. -- The admission of photographs is within
     the trial court's discretion; the mere fact that photos are
     inflammatory will not render them inadmissible; if they enable
     a witness to testify more effectively or tend to corroborate
     testimony, they have evidentiary value which outweighs their
     inflammatory effect; here, during the course of testimony by
     appellant's ex-wife, four photographs of her badly bruised
     daughter were introduced into evidence; the ex-wife's
     testimony showed that she sufficiently explained her statement
     to the police or, at the least, presented the jury with a
     question as to her credibility; the photographs themselves
     illustrated to the jury the extent of the abuse in a way that
     her words could not; in addition, they corroborated the ex-
     wife's accusations; the trial court did not abuse its
     discretion in admitting the photos.  

10.  Remedies -- when writ of error coram nobis is appropriate --
     petition for writ denied. -- Error coram nobis is a rare
     remedy that is available only where there is an error of fact
     extrinsic to the record, such as insanity at the time of
     trial, a coerced guilty plea, or material evidence withheld by
     the prosecutor that might have resulted in a different
     verdict; the writ has also been used in cases in which a third
     party confessed to the crime during the time between
     conviction and appeal; here, the court declined to extend the
     use of the error coram nobis remedy to a case involving a
     juror's allegedly misleading responses during voir dire.


     Appeal from Fulton Circuit Court; John Dan Kemp, Judge;
affirmed.
     Larry Dean Kissee, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Bradley D. Jesson, Chief Justice.             

June 24, 1996  *ADVREP*SC2*





LYNN O. DAVIS,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,




CR95-645


APPEAL FROM THE FULTON COUNTY
CIRCUIT COURT,
NO. CR94-115A,
HON. JOHN DAN KEMP, JUDGE,




AFFIRMED.



                BRADLEY D. JESSONS, CHIEF JUSTICE


     
     Shortly after midnight on March 4, 1994, the appellant, Lynn
Davis, and his girlfriend, Michelle Wilson, arrived at the
emergency room of the Cleburne County Memorial Hospital.  With them
was Michelle's twenty-three-month-old son, Michael.  Michael was in
a state of cardiac arrest and was not breathing.  His heartbeat was
initially revived by use of CPR but he never regained
consciousness.  Two days later, he died.  The medical examiner
ruled Michael's death a homicide.  In particular, he noted that
Michael showed signs of having been shaken and otherwise abused.  
     The authorities began to search for Wilson and Davis but the
couple had left the state and their whereabouts were unknown.  With
the assistance of the FBI, they were apprehended in California on
March 16, 1994.  They returned to Arkansas to face capital murder
charges in Michael's death.  Wilson was tried in Independence
County.  She was convicted of second-degree murder and received a
sentence of eighteen years.  The appellant was tried in Fulton
County.  He was convicted of capital murder and sentenced to life
without parole.  
     In this appeal, the appellant challenges the sufficiency of
the evidence to support his conviction, challenges two of the trial
court's evidentiary rulings, and argues that the court should have
granted his petition for a writ of error coram nobis.  After a
careful review of the issues, we find no error and affirm. 
Additionally, in accordance with Arkansas Supreme Court Rule 4-
3(h), we have examined the full record for rulings on objections or
motions which were adverse to the appellant.  None involves
prejudicial error.
  
                   Sufficiency of the Evidence
     Our review of the sufficiency of the evidence requires a
detailed recitation of the facts.  Lynn Davis and Michelle Wilson
began dating seriously in December of 1993.  Wilson had two
children:  Kaite, age four, and Michael, almost two.   She and
Davis maintained separate residences, but spent virtually every
night at Davis's apartment.  Michael was almost always with them. 
Kaite often spent the night with her grandparents.  Davis had
worked for seven and a half years at the same company.  Wilson was
temporarily unemployed.  
     Davis and Wilson, together with Michael, spent the night at
Davis's apartment on Wednesday, March 2, 1994.  The next morning,
Davis dropped them off at Wilson's residence and went to work. 
Wilson and her next door neighbor, Ruby Holt, spent the day running
errands with Michael in tow.  Michael, normally an active,
temperamental child, was uncharacteristically sleepy during the
day. 
     Later that afternoon, the errands completed, Holt, Wilson and
Michael returned home.  At some point, Kaite returned home as well. 
Wilson was cooking dinner in Holt's apartment when Davis arrived
between 4:00 and 5:00 p.m.  According to Holt, Michael was lying on
the floor whining and crying.  Davis was sitting at the table with
Holt and said to her, "I hate that kid".  Holt was sure he was
referring to Michael.  Davis, Wilson and the two children left
shortly thereafter to go to Davis's apartment.
     What happened next is known only to Davis and Wilson. 
According to them, they watched television with the children. 
Kaite fell asleep on the couch.  At approximately 11:00 p.m.
(according to Wilson) or 11:30 p.m. (according to Davis), they
decided to take a shower.  They noticed that Michael had a dirty
diaper.  Wilson went ahead and got in the shower.  Davis followed,
holding Michael, intending to clean him up in the shower.  Michael
began struggling and "throwing a fit" because he didn't want to be
in the shower.  Davis took him out of the shower, laid him on the
bedroom floor, and told him to go ahead and throw his fit.  He was
preparing to diaper the boy when he noticed his eyes were staring
fixedly.  Davis "popped him on the butt" a couple of times,
thinking Michael was holding his breath on purpose, but Michael did
not move.  Davis checked Michael's heartbeat and it was faint.  He
called to Wilson to get out of the shower.  They grabbed the
children, threw their clothes on and headed for the hospital.     
     Michael presented at 12:10 a.m. in a state of cardiac arrest. 
He was not breathing and his color was blue.  The physician on
duty, Dr. Parker Jain, developed the impression that Michael had
suffered a subdural hematoma and possibly had been the victim of
abuse.  Based upon his suspicion, he notified the authorities.    
     Detective Mark Baugh of the Heber Springs Police Department
arrived at the hospital at 1:34 a.m.  He learned from Dr. Jain that
Michael had suffered not only a head injury but had bruises and
sores on his body.  He obtained a statement from Wilson in which
she attempted to account for Michael's injuries.  She attributed
Michael's bruises to fighting with his sister.  The sores, she
claimed, were from shoes that fit too tight.  The head injury, she
explained, was the result of Michael slamming his own head against
the refrigerator during one of his "fits."
     Arrangements had been made for a helicopter to transport 
Michael to the Arkansas Children's Hospital in Little Rock.  It
arrived shortly after 2:00 a.m.  Wilson and Davis made arrangements
to have Ruby Holt take care of Kaite.  They then drove to
Children's Hospital, arriving about 4:00 to 4:30 a.m.  Michael had
a heartbeat, but was still not breathing on his own.  Davis and
Wilson stayed at the hospital until approximately 12:00 noon that
day then drove back to Heber Springs to shower and pick up a change
of clothes.  They returned to Little Rock later that afternoon. 
Upon their return, Davis was refused entry to the hospital. 
Security personnel told Davis that Michael's father was on the
premises and they wanted to avoid trouble.  Wilson stayed at the
hospital while Davis returned to Heber Springs.  He was en route
when he received a call from Wilson on his mobile phone.  She
informed him that she was being accused of inflicting Michael's
injuries, that the Department of Human Services had taken custody
of her children, and that she had been "kicked out" of the
hospital.  Davis immediately returned to Little Rock and picked her
up.  
     The two then decided, for reasons unexplained, to go to
Conway, where they spent the night in a motel.  They spoke by phone
with Ruby Holt who informed them that the police were looking for
Wilson.  The next day, Saturday, March 5, 1994, they left the state
of Arkansas.  
     In the meantime, Detective Baugh continued his investigation. 
During the day on March 4, he spoke with the physicians at
Children's Hospital and discovered the full extent of Michael's
injuries.  Dr. Michael Avant, a pediatric intensive care physician
at Children's, would later testify that he made note of twenty-
seven injuries, including a subdural hematoma, massive brain
swelling caused by trauma and oxygen depletion, retinal
hemorrhaging, a pulmonary contusion, a broken rib, burns consistent
with being inflicted by a cigarette and a car cigarette lighter, a
swollen and bruised testicle and scrotal sac, including a bruise in
this area which was just a few hours old.  Upon receipt of this
information, Baugh attempted to locate Davis and Wilson.  He was
unsuccessful.  
     Michael died on March 6.  Baugh received an autopsy report
from Dr. Frank Peretti which concluded that Michael's death was the
result of homicide.  Causes of death were listed as craniocerebral
trauma and chest injuries with the contributing factors of thermal
burns and testicular contusions.  Based upon this information,
charges were filed against Wilson and Davis for capital murder.   
     Baugh continued to search for Davis and Wilson.  He became
convinced that they were no longer in the state, and enlisted the
assistance of the FBI in locating them.  Davis and Wilson were, in
fact, on the run.  After leaving Conway, they had driven to
Louisiana, through Texas, and into New Mexico.  When they learned
that Michael had died, they abandoned Davis's car at the El Paso
airport and flew to San Diego.  There, they took a train to Los
Angeles where they visited the beach, the zoo and planned to visit
Disneyland.  Their trip had been financed with Davis's credit
cards.  
     On March 16, 1994, the FBI caught up with Davis and Wilson in
Los Angeles.  They were turned over to the Santa Monica Police
Department.  There, they were interviewed at length by Detective
Steve Rosenfeld.  The interviews were videotaped and were admitted
into evidence at trial.  In her interview, Wilson once again
attempted to explain Michael's injuries in ways that did not
implicate either herself or Davis.  She said that on the Tuesday
before Michael was admitted to the hospital, he had become angry
because she wouldn't let him have a piece of cake.  He began to
slam his head against the refrigerator and the wall.  The next day,
which was Davis's day off, the three of them went to the mall and
to eat pizza.  Michael became angry again and hyperventilated to
the extent that he made himself sick.  Wilson said that the sores
on Michael's toes were from tight shoes.  When confronted with the
possibility that the sores were in fact cigarette burns, she
admitted that she may have accidentally burned Michael.  She
explained the injuries to his testicles by saying that, two months
previously, he had fallen from a small bicycle and six days before
his death, he had fallen in the bathtub.  But ultimately, after a
lengthy interrogation, she admitted that, on the Wednesday before
Michael's death, she had shaken him hard and "probably" caused his
death.  
     Wilson claimed that Davis was not involved in Michael's death. 
Detective Rosenfeld questioned her intently on whether Davis had
merely laid the boy on the floor after getting out of the shower,
or had thrown him to the floor.  He asked her to demonstrate
Davis's actions.  Her demonstration indicated that Davis was upset
and, at the least, dropped Michael to the floor with some force.  
     In Davis's interview, he denied any involvement in Michael's
death and denied awareness of any abuse which may have been
inflicted by Wilson.  Both his story and Wilson's were remarkable
for their presentation of detail.  For example, both mentioned,
without being asked, the number of crackers Michael ate on Thursday
evening.  Additionally, both of them asked, without prompting, if
they might begin their explanation of events starting with the
Tuesday before Michael's death.  The stories also contained some
inconsistencies.  In Wilson's statement to Baugh, she was clear
that the three of them began their shower just after 11:00 p.m.  In
the Rosenfeld interviews, Davis and Wilson indicate that the time
is 11:30 p.m.  Wilson told Baugh that she did not see Davis spank
Michael after he was taken out of the shower.  She told Rosenfeld
that she did.  Both Wilson and Davis said that Michael hated to
take a bath or get his hair wet.  Yet when Davis was explaining
that Michael's testicle was injured while getting out of the
bathtub, he stated that both kids loved playing in the water. 
     Further evidence was presented to the jury in the form of Dr.
Peretti's testimony, complete with autopsy pictures.  The
photographs revealed with disturbing clarity the scars and sores on
the child's belly button, calf, thigh and toes which Dr. Peretti
characterized as cigarette burns.   They also revealed bruises
around the child's neck and head and the fact that the child's
scrotal sac was obviously bruised and very swollen.  Dr. Peretti
testified that some of the cigarette burns were less than ten days
old.  Other injuries characterized by the doctor as "recent" were
the subdural hematoma, the hemorrhaging along the optic tracks, the
fractured rib, and the bruised scrotal sac.  The doctor testified
that Michael's injuries and were consistent with being shaken and,
two days later, being subjected to a significant trauma within a
short time before his admission to the hospital.  Dr. Avant
concurred that Michael had been subjected to significant trauma
prior to being admitted to the hospital.  He stated that the trauma
would had to have been caused by something more than the child
banging his head against a wall or being hit by his sister.  He
characterized the type of trauma necessary to inflict such a head
injury as a "violent force."  He said the brain swelling was of the
type that might be seen in a car accident.
     Finally, the jury was presented with the testimony of Angel
Attendorn, Davis's ex-wife.  Attendorn testified that in June of
1993, Davis had administered severe beatings to her four-year-old
daughter.  She produced four photographs which revealed serious
bruising on the child's back, buttocks and upper thighs.  
   The appellant was charged with committing capital murder in the
manner described by Ark. Code Ann.  5-10-101(a)(9) (Supp. 1995): 

     A person commits capital murder if:

     Under circumstances manifesting extreme indifference to
     the value of human life, he knowingly causes the death of
     a person fourteen (14) years of age or younger at the
     time the murder was committed, provided that the
     defendant was eighteen (18) years of age or older at the
     time the murder was committed.


     The State was required to prove four elements to convict the
appellant:  that Michael was age fourteen or younger, that the
appellant was age eighteen or older, that the appellant knowingly
caused Michael's death, and that Michael's death was caused under
circumstances manifesting extreme indifference to the value of
human life.  The third and fourth elements are in controversy.  
     At the close of the state's evidence and at the close of all
evidence, the appellant moved for a directed verdict on the ground
that the state had not proven he acted knowingly or under
circumstances manifesting extreme indifference to the value of
human life.  A directed verdict motion is a challenge to the
sufficiency of the evidence.  Sufficient evidence means substantial
evidence to support the jury's verdict.  Substantial evidence is
that which is forceful enough to compel a conclusion one way or
another and which goes beyond speculation and conjecture,  We
review the evidence in a light most favorable to the appellee and
consider only that evidence which supports the verdict.  Misskelley
v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).
     A person acts "knowingly" with respect to his conduct or
attendant circumstances when he is aware that his conduct is of
that nature or that such circumstances exist.  He acts "knowingly"
with respect to a result of his conduct when he is aware that it is
practically certain that his conduct will cause such a result. 
Ark. Code Ann.  5-2-202(2) (Repl. 1993).  A person acts "under
circumstances manifesting extreme indifference to the value of
human life" when he engages in deliberate conduct which culminates
in the death of some person.  Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988);  Pruett v. State, 287 Ark. 124, 697 S.W.2d 872
(1985).  
     The appellant, citing Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), argues that the State did not meet its burden of
proof.  He implies that the State was required to prove
premeditation and deliberation, but that is not so.  A brief
historical review is helpful at this point.  We decided Midgett in
1987.   The case involved the death of an eight-year-old boy at the
hands of his father.  The father was convicted of first-degree
murder, which required proof of premeditation and deliberation.  We
recognized that state law, at that time, did not permit a
conviction of first-degree murder for child abuse or torture in the
absence of premeditation and deliberation.  We therefore reduced
Midgett's conviction to second-degree murder. 
    Approximately one month later, the legislature responded to our
decision in Midgett.   The definition of first-degree murder was
amended to include knowingly causing the death of a person age
fourteen or younger under circumstances manifesting cruel and
malicious indifference to the value of human life.  See Act 52 of
the First Extraordinary Session of 1987.  In 1991, the legislature,
with a slight revision in language, converted that definition of
first-degree murder into a type of capital murder.   The words 
"under circumstances manifesting cruel and malicious indifference
to the value of human life" were deleted from the first-degree
murder statute.  A category of capital murder was created which
exists today as Ark. Code Ann.  5-10-101(a)(9) (Supp. 1995).  See
Act 683 of 1991. 
     The Midgett case, thus, is not applicable here.  The crime
charged does not require proof of premeditation and deliberation. 
More on point is the case of Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992).  Although it was a first-degree murder case, the
offense was committed at a time when the first-degree murder
statute contained language virtually identical to today's  5-10-
101(a)(9).  In Porter, we held that substantial circumstantial
evidence of a cruel, malicious and continuous course of child abuse
culminating in a violent act that causes the child's death is
sufficient to sustain a conviction for knowingly causing the death
of a person age fourteen or younger under circumstances manifesting
a cruel and malicious indifference to human life.  As in Porter, we
hold in this case that the evidence, though circumstantial, is
sufficient to support the appellant's conviction.  It is clear that
the jurors did not embrace Davis's and Wilson's explanation of the
events surrounding Michael's death.  They might well have found
their testimony so totally at odds with the medical evidence as to
be a fabrication.  See Porter v. State, supra.  Additionally, the
obvious and graphic nature of Michael's injuries as depicted by the
autopsy photos belies Davis's claim that he was unaware that
Michael had been abused.  A jury is not required to believe all or
any part of a defendant's or witness's statement,  Patterson v.
State, 306 Ark. 385, 815 S.W.2d 377 (1991), and is entitled to draw
upon common sense and experience in reaching its verdict.  Owens v.
State, 283 Ark. 327, 675 S.W.2d 834 (1984).  The State's proof
contained evidence that Davis threw Michael to the floor in a
forceful manner; strong medical testimony of recent, significant
head trauma and other serious abuse;  Ruby Holt's testimony
regarding Davis's animosity toward Michael;  Davis's abuse of
another child, see Limber v. State, 264 Ark. 479, 572 S.W.2d 402
(1978); and Wilson's and Davis's flight to avoid arrest (which
included stringent efforts to hide from the authorities,
abandonment of Davis's automobile, and the fact that Davis, in
order to flee, left a job of long standing).  See Cooper v. State,
317 Ark. 485, 879 S.W.2d 405 (1994).  These facts, along with all
others set forth in this opinion, constitute sufficient evidence of
Davis's guilt of capital murder.

                       Evidentiary Errors
     Prior to trial, Davis moved in limine to prohibit the State
from mentioning a charge of battery filed against him in 1993.  The
charge stemmed from his alleged beating of the child of his ex-
wife, Angel Attendorn.  In a pretrial hearing, the State agreed
that the motion should be granted and agreed not to mention the
charge in their case-in-chief.  Without further discussion, the
trial court granted the motion.
     During opening statements, the prosecutor told the jury that,
in Davis's videotaped statement, Davis would admit that battery
charges had previously been filed against him.  Davis moved for a
mistrial and an in camera hearing was conducted.  The prosecutor
explained that, since Davis had agreed to let his videotaped
statement come into evidence in its entirety, the in limine order
was no longer operative.  The trial judge, considering the merits
of the issue for the first time, decided to allow admission of the
evidence.  He agreed to give a cautionary instruction, which was
done just before Davis's videotape was played.  
     Davis argues on appeal, as he did at trial, that admission of
the evidence violated A.R.E. Rule 404(b) and Rule 403.  Rule 404(b)
reads as follows:

     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.


     Davis cites Diffee v. State, 319 Ark. 669, 894 S.W.2d 564
(1995) in support of his argument.  In Diffee, the State was
attempting to prove that the method used by the appellant to commit
murder -- an ice pick -- was her "method of operation."  In doing
so the state offered evidence of another ice pick attack committed
by the appellant.  We held that the evidence was inadmissible and
set forth a test for using prior acts to show method of operation. 
But Diffee is not applicable in this case.  Davis's prior crime was
admitted here to show absence of mistake or accident, not method of
operation.
     The trial judge cited Limber v. State, supra, in ruling that
Davis's 1993 battery charge was admissible.  Limber is
representative of a number of cases involving child victims in
which we have permitted evidence of crimes committed by the
defendant against other children.  See Clark v. State, 323 Ark.
211, 913 S.W.2d 297 (1996);  Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992);  George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991),
all involving sexual abuse.  In Limber, the appellant and his wife
were charged with the murder of the wife's son.  They claimed, as
did Davis and Wilson, that the child's injuries resulted from
accidents.  Evidence was admitted that another child in the
appellants' household had suffered two broken arms.  We allowed the
evidence as being probative of absence of mistake or accident.  The
case is virtually on point with the case at bar.  Davis attempts to
distinguish it by arguing that, in Limber, the appellant and the
two abused children were members of the same household.  While
Michael might not have been an official or legally recognized
member of Davis's household, the evidence shows that he was a de
facto member.  Michael and his mother routinely spent every night
with Davis.  Davis was an omnipresent adult in Michael's life, much
as he might have been if they had been living under one roof.
     The trial judge is accorded discretion in ruling on 404(b)
questions.  Fry v. State, supra.  A mistrial is a drastic remedy
which should be resorted to only when there has been error so
prejudicial that justice cannot be served by continuing the trial. 
Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).   A trial
judge's denial of a mistrial will not be disturbed on appeal absent
an abuse of discretion.  Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996).  We hold that the trial judge did not abuse his
discretion in denying a mistrial in this case.  We also hold that
the probative value of the evidence was not outweighed by the
danger of unfair prejudice.  A.R.E. 403.
     Davis also attacks the judge's ruling on the ground that the
original order in limine should have been honored.  To support his
argument, he relies on the law of the case doctrine.  That doctrine
is inapplicable here.  It ordinarily arises in the case of a second
appeal and requires that matters decided in the prior appeal be
considered concluded.  See Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588, cert. denied, ___ U.S. ___, 115 S. Ct. 448 (1994). 
During the course of a single trial, the judge is at liberty to
reconsider his or her prior rulings.  Hill v. State, 276 Ark. 300,
634 S.W.2d 120 (1982). 
     The second evidentiary ruling challenged by Davis is related
to the first.  As we have already mentioned, during the course of
Angel Attendorn's testimony, four photographs of her daughter were
introduced into evidence.  The photos depicted a badly bruised
child.  Davis argues that the photos were irrelevant or,
alternatively, unfairly prejudicial because they depicted injuries
suffered by the child in the course of her daily activities.  He
bases this claim on Attendorn's testimony on cross-examination. 
Attendorn had apparently told the police that some of her child's
bruises were from normal activity.  However, on the witness stand,
she said that any old bruises visible in the pictures were the
result of Davis's beatings.  She said that her child had bruises on
the front of her legs from ordinary activity.  The photographs did
not depict the front of the legs.
     The admission of photographs is within the trial court's
discretion.  Williams v. State, 322 Ark 38, 907 S.W.2d 120 (1995). 
The mere fact that photos are inflammatory will not render them
inadmissible.  If they enable a witness to testify more effectively
or tend to corroborate testimony, they have evidentiary value which
outweighs their inflammatory effect.  Weger v. State, 315 Ark. 555,
869 S.W.2d 688 (1994).  Our examination of Attendorn's testimony
shows that she sufficiently explained her statement to the police
or, at the least, presented the jury with a question as to her
credibility.  The photographs themselves illustrated to the jury
the extent of the abuse in a way that Attendorn's words could not. 
In addition, they corroborated Attendorn's accusations.  We hold
that the trial court did not abuse its discretion in admitting the
photos.  See Van Sickle v. State, 16 Ark. App. 143, 698 S.W.2d 308
(1985).

                        Error Coram Nobis
     Two months after his notice of appeal was filed, Davis
petitioned the court for a writ of error coram nobis.  He claimed
that the jury foreman, William Newton, had been misleading in his
responses during voir dire.  A hearing was held and the trial judge
denied the writ.
     Error coram nobis is a rare remedy.  It is available only
where there is an error of fact extrinsic to the record, such as
insanity at the time of trial, a coerced guilty plea or material
evidence withheld by the prosecutor, that might have resulted in a
different verdict.  Taylor v. State, 303 Ark. 586, 799 S.W.2d 519
(1990).  The writ has also been used in cases in which a third
party confessed to the crime during the time between conviction and
appeal.  Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).  We
decline to extend the use of the error coram nobis remedy to a case
involving a juror's allegedly misleading responses during voir
dire.
     Affirmed.
     Dudley, J., not participating.