Noel v. State

Riley Dobi NOEL v. STATE of Arkansas

CR 97-117                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 15, 1998


1.   Venue -- change-of-venue motion -- denial -- standard of review. -- The
     standard of review for denial of a motion for change of venue
     is whether there was an abuse of discretion by the trial
     court.

2.   Venue -- change-of-venue motion -- affidavits deficient. -- With respect
     to motions for change of venue, affidavits that cite little or
     nothing beyond an affiant's own convictions that a fair trial
     is not possible are insufficient; thus, while the two
     affidavits submitted to the trial court in support of a
     change-of-venue motion stated the conclusion that a fair trial
     could not be had in the county in question, the supreme court
     held that the affidavits were deficient.

3.   Venue -- change-of-venue motion -- denial not reversed if impartial jury
     selected -- jurors pledged to decide case on evidence. -- A denial of
     a change of venue motion will not be reversed if an
     examination of the jury selection shows that an impartial jury
     was selected and that each juror stated he or she could give
     the defendant a fair trial and follow the instructions of the
     court; all of the jurors in this case pledged that they could
     decide the case based solely on the evidence.

4.   Appeal & error -- argument not addressed for first time on appeal. --
     Where an appellant has failed to raise an argument to the
     trial court, the supreme court will not address it for the
     first time on appeal.

5.   Venue -- change-of-venue motion -- no abuse of discretion in denial. --
     The supreme court concluded that there was no abuse of
     discretion by the trial court in its ruling denying
     appellant's change-of-venue motion.

6.   Appeal & error -- cumulative error -- preservation of objection. -- To
     preserve a cumulative-error objection for appeal, defense
     counsel must not only object to each instance of error but
     also clearly present the cumulative-error point to the trial
     court and obtain a ruling.

7.   Appeal & error -- cumulative error -- when reversal based on appropriate.
     -- A reversal of a conviction based on cumulative error is
     only appropriate in rare and egregious cases.

8.   Appeal & error -- cumulative error -- objection sustained -- no request to
     admonish jury -- no abuse of discretion by trial court. -- Where, in
     each of the five instances of cumulative error complained of,
     appellant did not enter a proper objection, and where there
     was only one objection made that conceivably might have
     qualified as improper character evidence, but, in that
     instance, the trial court sustained defense counsel's
     objection, and appellant made no request that the jury be
     admonished, the supreme court could not say that this
     circumstance, standing alone, constituted reversible error or
     that the conduct of the prosecutor in toto was so egregious as
     to deny appellant a fair trial; there was no abuse of
     discretion by the trial court on this point.

9.   Trial -- mistrial -- extreme remedy. -- A mistrial is an extreme
     remedy  that should only be used when the error is beyond
     repair by any curative measure. 

10.  Trial -- closing arguments -- trial court's discretion to control counsel.
     -- The trial court is given broad discretion to control
     counsel in closing arguments, and the appellate court does not
     interfere with that discretion absent a manifest abuse of it;
     closing remarks that require reversal are rare and require an
     appeal to the jurors' passions; furthermore, the trial court
     is in the best position to evaluate the potential for
     prejudice based on the prosecutor's remarks.

11.  Trial -- closing arguments -- any prejudice from prosecutor's allusion to
     absent alibi testimony could have been cured by admonishment. -- Where
     the actions of defense counsel and appellant himself put
     appellant's credibility in issue, it was a fair inference to
     be argued to the jury that the failure of appellant to call
     any alibi witness to the stand undermined his credibility; any
     prejudice resulting from the prosecutor's allusion to absent
     testimony could have been easily cured by an admonishment,
     which defense counsel did not request.

12.  Trial -- closing arguments -- when party may respond with improper remarks.
     -- When one party uses improper closing remarks, the other
     party may respond with what would ordinarily be improper
     remarks.

13.  Appeal & error -- appellant cannot complain after obtaining relief
     requested. -- An appellant cannot complain on appeal when he
     obtained the relief requested at trial.

14.  Trial -- closing arguments -- failure to object to substance or
     effectiveness of admonishments -- trial court's rulings upheld. -- Where
     three incidents of alleged prejudicial prosecutorial comments
     could all have been cured by an admonishment to the jury, if,
     in fact, they were inappropriate in any respect; where the
     jury was admonished in two instances, and an admonishment was
     not requested in the third case; and where appellant did not
     object to the substance or effectiveness of the admonishments
     given, the supreme court affirmed the trial court's ruling in
     each respect.

15.  Criminal law -- victim-impact evidence -- relevant to decision regarding
     appropriate punishment. -- In the wake of the decision by the
     United States Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1992), which held that the states could determine that
     victim-impact evidence was relevant to the assessment of
     punishment in capital murder cases as a means of counteracting
     mitigating evidence and of showing that the victim's death
     represented a unique loss to society, the General Assembly, in
     Act 1089 of 1993, Ark. Code Ann.  5-4-602(4) (Repl. 1993),
     clearly expressed the policy of the State of Arkansas that
     victim-impact evidence is relevant to the decision of what
     punishment is appropriate.

16.  Criminal law -- victim-impact evidence -- not aggravating circumstance --
     not violative of statutory weighing process. -- The supreme court has
     specifically rejected the notion that victim-impact evidence
     was an aggravating circumstance or that it violated the
     statutory weighing process set out in Ark. Code Ann.  5-4-
     603 through 605 (Repl. 1993).

17.  Criminal law -- victim-impact evidence -- relevant to inform jury of toll
     on victim's family -- due process relief not applicable. -- The supreme
     court held that victim-impact evidence is not an additional
     aggravating circumstance but rather is relevant evidence that
     informs the jury of the toll the murder has taken on the
     victim's family; as a safeguard against excessive victim-
     impact evidence, when such evidence is so unduly prejudicial
     that it renders the trial fundamentally unfair, the Due
     Process Clause provides a mechanism for relief; that was not
     the situation in this case, where the State sought to show the
     human cost of the murders of her children on the mother, much
     the same as the defense sought to show, in mitigation, the
     human toll on appellant's mother in the event of a State
     execution; the trial court did not abuse its discretion in
     allowing this testimony.

18.  Criminal law -- death sentence -- justification is essential element for
     imposition of. -- Under Ark. Code Ann.  5-4-603(a)(3) (Repl.
     1993), a jury may impose the death sentence when the
     "[a]ggravating circumstances justify a sentence of death
     beyond a reasonable doubt"; thus, justification is an
     essential element for the imposition of a death sentence.

19.  Criminal law -- death sentence -- "mercy" instruction not offered by
     defense counsel -- issue not considered. -- Where appellant argued
     that a jury should be instructed that it may show mercy after
     considering all of the mitigating circumstances, but defense
     counsel neither offered a "mercy" instruction to the trial
     court nor obtained a ruling on the issue, the supreme court
     did not consider the issue for the first time on appeal;
     moreover, the court did not view the issue as one involving an
     error in a matter essential to the jury's consideration of the
     death penalty itself.

20.  Criminal law -- death sentence -- sentencing forms specifically allow for
     some jurors to weigh mitigating circumstance. -- The supreme court,
     rejecting appellant's contention that the statutory scheme
     precludes a juror from considering a mitigating circumstance
     unless it is unanimously found, noted that the sentencing
     forms completed by the jury in this case specifically allowed
     for some jurors to weigh a mitigating circumstance while
     others may not.

21.  Constitutional law -- trial court correctly ruled that sentencing statute
     was constitutional. -- The trial court correctly ruled that the
     sentencing statute, Ark. Code Ann.  5-4-603 (Repl. 1993), was
     constitutional.


     Appeal from Pulaski Circuit Court; John W. Langston, Judge;
affirmed.
     Wallace, Hamner & Hendry, by: Phillip M. Hendry, for
appellant.
     Winston Bryant, Att'y Gen., by:  Kelly K. Hill, Deputy Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     Appellant Riley Dobi Noel was convicted of three counts of
capital murder and one count of attempted capital murder following
an eleven-day trial.  He was sentenced to death on the capital
murder convictions and to sixty years on the attempted capital
murder conviction.  The killings occurred in Little Rock at the
home of the victims' mother, Mary Hussian, on the evening of June
4, 1995.  Her three children (Malak Hussian, age 10; Mustafa
Hussian, age 12; and Marcel Young, age 17) were shot by Noel in the
head as they lay on the floor in the front room of her house.  The
attempted capital murder was committed against Mary Hussian
herself, also in her house.  The murders were apparently in
retaliation for the assumed involvement of one of Hussian's
daughters in the murder of Noel's brother.  Noel appeals the
judgment on five grounds.  We hold that no reversible error
occurred at his trial, and we affirm.

                       I. Change of Venue
     Noel first contends that the trial court was in error in
refusing to change the venue of his trial.  He attached two
affidavits to his motion in which the affiants averred that they
did not believe Noel could receive a fair trial in Pulaski County
due to the excessive publicity caused by the television and
newspaper coverage.  In considering motions before the trial began,
the trial court denied the motion for a venue change and found that
the pretrial publicity had not been excessive.  The court further
observed that some of the publicity had been caused by Noel's
escape from the county jail.  The court did state that it would
consider the motion again at a later time, if that became
necessary.  Noel failed to renew his motion at any point in the
subsequent proceedings.
     The standard of review for denial of a motion for change of
venue is whether there was an abuse of discretion by the trial
court.  Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996).  Using
this standard, we turn to the two affidavits submitted to the trial
court in support of the motion.  State law provides for the removal
of a criminal cause to another county when the minds of the
inhabitants of the original county þare so prejudiced against the
defendant that a fair and impartial trial cannot be had in that
county.þ  Ark. Code Ann.  16-88-201 (1987).  In the instant case,
the two affidavits submitted state that conclusion.  Nevertheless,
this court has clearly held that þaffidavits that cite little or
nothing beyond an affiantþs own convictions that a fair trial is
not possible are insufficient.þ  Bell v. State, 324 Ark. at 263,
920 S.W.2d  at 823, citing Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989).  Under the Bell test, the affidavits are
deficient.
     Furthermore, this court has held that a denial of a change of
venue motion will not be reversed "if an examination of the jury
selection shows that an impartial jury was selected and that each
juror stated he or she could give the defendant a fair trial and
follow the instructions of the court."  Bell v. State, 324 Ark. at
264, 920 S.W.2d  at 824.  See also Rankin v. State, 329 Ark. 374,
948 S.W.2d 397 (1997).  All of the jurors in the instant case
pledged that they could decide the case based solely on the
evidence.
     Finally, Noel claims that a high percentage of prospective
jurors were successfully challenged for cause due to the publicity
surrounding the murders and that this fact evidenced the insidious
persuasiveness of the adverse publicity.  Noel, however, failed to
raise this argument to the trial court, and we will not address it
for the first time on appeal.  Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994).
     We conclude that there was no abuse of discretion by the trial
court in its ruling denying the change-of-venue motion.

            II. Noelþs Character and Cumulative Error
     Noel next claims that the trial court erred in failing to
grant his various motions for a mistrial based on the prosecutorþs
injection of his bad character into the trial.  There were five
instances of this, according to Noel.
     First, upon being shown a picture of Noel by the prosecutor,
the victims' mother, Mary Hussian, testified that Noel looked more
like "an animal" on the night of the murders.  The trial court did
not rule on Noel's objection to this testimony but denied his
motion for mistrial.  Second, when asked why she forged a
prescription for medication, Mary Hussian replied that she did so
because she had heard that Noel "was out" after being arrested for
the murder of her children.  The trial court again denied the
mistrial motion and concluded that the jury could just as easily
have determined that Noel was þoutþ on bail.  Third, when asked why
he had lied in his original statement, Curtis Cochran, a co-
defendant, replied that he was afraid of Noel because he knew about
his "reputation" and was trying to protect him.  Defense counsel's
objection was sustained, but the motion for a mistrial was  denied. 
Fourth, the prosecutor asked Curtis Cochran whether he knew that
Noel had taken the murder weapon from his house on the day of the
killings, which was a fact not then in evidence.  The objection was
sustained, the motion for a mistrial was denied, and the trial
court admonished the jury to disregard that question.  Fifth,
during cross-examination, the prosecutor began to question Noel "if
Terry Carroll's grandmother says you were over there looking for
him ...", which was a fact not in evidence.  Terry Carroll was also
a co-defendant.  The trial court sustained the objection and denied
the motion for a mistrial.
     The cumulative effect of this character evidence, according to
Noel, violated Ark. R. Evid. 404(a) and tainted his trial.  The
State counters in its brief on appeal that Noel's cumulative error
objection was not preserved for appeal.  We have held that in order
to preserve a cumulative error objection for appeal, defense
counsel must not only object to each instance of error but also
clearly present the cumulative error point to the trial court and
obtain a ruling.  Welch v. State, 330 Ark. 158, ___ S.W.2d ___
(1997); Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995).
     In addressing this issue, we first note that Noel moved for a
mistrial on each of the five claims of prejudicial error and
obtained a ruling.  He further moved for a directed verdict on the
cumulative effect of the errors at the end of the Stateþs case
after four of the instances had occurred, and the motion was
denied.  He renewed his cumulative error motion for a directed
verdict at the close of all of the evidence.  It, too, was denied. 
Thus, we conclude that the cumulative error issue was preserved for
our review.
     Turning then to the merits, we have stated that a reversal of
a conviction based on cumulative error is only appropriate in þrare
and egregiousþ cases.  Vick v. State, 314 Ark. 618, 863 S.W.2d 820
(1993); Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993).  An
analysis of the five instances complained of in the instant case
illustrates that neither individually nor collectively do they rise
to the level of reversible error.
     First, Mary Hussian's testimony that Noel looked like "an
animal" on the night of the murders is not a representation of his
character and was not objected to on that basis.  The trial court
properly denied the motion for mistrial, and defense counsel did
not request an admonishment.  Second, Hussian's statement that she
forged a prescription because she had heard that Noel "was out" was
made during defense counsel's cross-examination and was not
objected to on grounds of improper character evidence.  The trial
court correctly denied the mistrial motion because the jury could
just as easily have concluded that Noel was "out" on bail, and,
again, defense counsel did not ask for an admonishment.  Third,
Curtis Cochran's statement that he was afraid of Noel because he
knew about his "reputation" may well have reflected on Noelþs
character.  Yet, defense counsel's objection was sustained, and the
motion for a mistrial was denied.  There was no request that the
jury be admonished on this questioning.  The fourth and fifth
instances both dealt with the State's asking questions that assumed
facts not then in evidence.  On neither occasion did Noel object on
the basis of improper character evidence.  Additionally, on both
occasions, the trial court admonished the jury to disregard the
facts not in evidence, and Noel did not object to the form or
substance of the admonishment.
     In short, there was only one objection made that conceivably
might have qualified as improper character evidence, and that
related to Curtis Cochranþs fear due to Noelþs þreputation.þ 
However, in that instance, the trial court sustained defense
counselþs objection, and no request that the jury be admonished in
any form or fashion was made by Noel.  We cannot say that this
circumstance, standing alone, constituted reversible error or that
the conduct of the prosecutor in toto was so egregious as to deny
Noel a fair trial.  See Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Dillon v. State, supra.  Nor does the fact that
this is a death case require us to lower this standard, as Noel
contends.
     There was no abuse of discretion by the trial court on this
point.

          III. Prosecutorþs Shifting of Burden of Proof
     For his third point, Noel urges that the trial court should
have declared a mistrial based on the prosecutorþs comments in
closing argument that had the effect of shifting the burden of
proof to the defense.  Noel contends that there were three such
instances.
     A mistrial is an extreme remedy  that should only be used when
the error is beyond repair by any curative measure.  Bullock v.
State, 317 Ark. 204, 876 S.W.2d 579 (1994); Drymon v. State, 316
Ark. 799, 875 S.W.2d 73 (1994).  The trial court is given broad
discretion to control counsel in closing arguments, and we do not
interfere with that discretion absent a manifest abuse of it.  Lee
v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Mills v. State, 322
Ark. 647, 910 S.W.2d 682 (1995).  Closing remarks that require
reversal are rare and require an appeal to the jurors' passions. 
Lee v. State, supra.  Furthermore, the trial court is in the best
position to evaluate the potential for prejudice based on the
prosecutorþs remarks.  Bullock v. State, supra.
     The first remark questioned by Noel occurred during the
prosecutorþs closing argument in the guilt phase.  Noel had taken
the stand earlier and testified that he was not present when the
murders took place.  He gave the names of several alibi witnesses,
including his wife, whom he stated was in the courtroom.  None of
these witnesses had taken the stand.  During closing argument, the
prosecutor asked the jury to consider Noelþs credibility in light
of his alibi witnesses who did not testify.  Defense counsel
objected and moved for a mistrial.  The trial court sustained the
objection but denied the motion for mistrial.  Noel did not ask
that the jury be admonished to disregard that statement.
     We have dealt with similar issues in the cases of Bullock v.
State, supra, and Cook v. State, 316 Ark. 384, 872 S.W.2d 72
(1994).  In Bullock, this court affirmed the trial court's denial
of a motion for a mistrial when the State argued that the defense
had failed to provide a copy of a check that would corroborate the
defendant's alibi that he was working at the time.  We held:
     The trial court did not abuse its discretion in denying
     appellant's request for a mistrial.  The prosecutor's
     remarks were not a comment on appellant's failure to
     testify or to produce evidence, but an attempt to
     reiterate the attack on the credibility of appellant's
     testimony.  Such a review of the evidence is not
     prohibited given that appellant took the stand and
     offered the alibi testimony.  Appellant cannot testify on
     his own behalf and then expect the Fifth Amendment to
     prohibit the state from questioning the credibility of
     his testimony or from calling the lack of credibility to
     the jury's attention during closing argument.
Bullock, 317 Ark. at 206, 876 S.W.2d  at 580-81.
     In Cook v. State, supra, this court upheld the trial court's
denial of a motion for a mistrial when the prosecutor argued that
defense counsel had failed to call an additional alibi witness that
would corroborate the testimony of another alibi witness.  The
trial court denied defense counsel's motion for a mistrial but
admonished the jury.  This Court held that the trial court did not
abuse its discretion in denying defense counsel's motion for a
mistrial because:
     [T]he comment was not about the accused's failure to
     testify in violation of his Fifth Amendment privilege
     against self-incrimination.  Rather, it was about the
     trustworthiness of a witness's recollection of a date and
     her confirmation about that date.  At most, it was an
     attempt to shift the burden of proof, and we cannot say
     that the trial court erred in determining that the
     instruction remedied that wrong.
Cook v. State, 316 Ark. at 387, 872 S.W.2d  at 73-74.
     This case is no different from Bullock v. State, supra, or
Cook v. State, supra, in that it was the actions of defense counsel
and Noel himself that put his credibility in issue.  It was a fair
inference to be argued to the jury that the failure of Noel to call
any alibi witness to the stand undermined his credibility.  Any
prejudice resulting from the prosecutorþs allusion to absent
testimony could have been easily cured by an admonishment, which
defense counsel did not request.  Cook v. State, supra.
     The second instance of an alleged prejudicial comment occurred
during the State's rebuttal argument in the guilt phase.  It
concerned photo spreads used by the Little Rock police officers to
identify Noel.  In defense counsel's closing argument, he posited
the question of why the prosecutor had not introduced into evidence
the photo spreads used to identify Noel.  In rebuttal argument, the
prosecutor parried with the argument that defense counsel had
access to the photo spreads and could just as easily have cross-
examined the Stateþs witnesses about them.  The prosecutor further
hinted that defense counsel did not do so because he would not have
liked the response.  Defense counsel objected and argued that the
State was again trying to shift the burden of proof. The trial
court sustained the objection, denied a motion for a mistrial, and
admonished the jury to disregard the prosecutor's argument.
     This court has held that the trial court is given broad
discretion in controlling counsel in closing arguments, and we will
not disturb the trial courtþs decision absent a manifest abuse of
discretion.  See, e.g., Lee v. State, supra.  Remarks that are so
prejudicial as to mandate a reversal are rare and require an appeal
to the jurors' passions.  Id.  In addition, this court has
recognized that when one party uses improper closing remarks, the
other party may respond with what would ordinarily be improper
remarks.  See Calloway v. State, 330 Ark. 143, 953 S.W.2d 571
(1997); Larimore v. State, 317 Ark. 111, 977 S.W.2d. 570 (1994);
McFadden v. State, 290 Ark. 177, 717 S.W.2d. 812 (1986).
     Here, the argument presented by the prosecutor was the same as
that presented by the defense.  But even assuming that the
prosecutor's argument was not appropriate, any prejudice was cured
by the trial court's admonishment.  Although Noel now claims that
the admonishment was vague and ineffective, he did not object to
the manner of the admonishment at trial.  The issue of the
effectiveness of the admonishment, accordingly, is not preserved
for our review.
     Finally, during the prosecutorþs closing argument at the end
of the penalty phase, he referred to Noel as a "psychopath." 
Defense counsel objected, but not on grounds that this comment
shifted the burden of proof.  Nor did defense counsel move for a
mistrial or object to the trial court's subsequent admonishment of
the jury, which he requested.  This point also is not preserved for
appeal.  Moreover, Noel cannot now complain when he obtained the
relief requested.  Rankin v. State, 329 Ark. 379, 948 S.W.2d 397
(1997).  
     The three incidents cited by Noel could all have been cured by
an admonishment to the jury, if, in fact, they were inappropriate
in any respect.  The jury was admonished in two instances, and an
admonishment was not requested in the third case.  Noel did not
object to the substance or effectiveness of the admonishments
given.  We affirm the trial court's ruling in each respect.

                   IV. Victim-Impact Evidence
     For his fourth point, Noel appears to make two separate
arguments.  First, he claims that the statute permitting the use of
victim-impact evidence, [Ark. Code Ann.  5-4-602(4) (Repl. 1993)],
deprived him of due process of law because it improperly created a
new aggravating circumstance.  He next argues that this new
aggravating circumstance denied him due process protection because
it was considered by the jury outside of the statutory weighing
process required for aggravating and mitigating circumstances, all
of which contravenes Ark. Code Ann.  5-4-603 (Repl. 1993).  Noelþs
due process claim that victim-impact evidence under the statute
created a new aggravating circumstance was not argued to the trial
court and, thus, is not preserved for our review.  We turn then to
his argument that the victim-impact evidence presented was outside
of the statutory weighing process for aggravating and mitigating
circumstances.
     In 1992, the United States Supreme Court held that the states
could determine that victim-impact evidence was relevant to the
assessment of punishment in capital murder cases as a means of
counteracting mitigating evidence and of showing that the victim's
death represented a unique loss to society.  Payne v. Tennessee,
501 U.S. 808 (1992).  In the wake of the Payne decision, the
Arkansas General Assembly enacted Act 1089 of 1993, now codified at
 5-4-602(4) (Repl. 1993).  Section 2 of that Act provides:
     It is the express intention of this act to permit the
     prosecution to introduce victim impact evidence as
     permitted by the United States Supreme Court in Payne v.
     Tennessee ....
Act 1089 stated that during the penalty phase, in addition to
aggravating and mitigating circumstances, the jury may be presented
with þany other matter relevant to punishment, including, but not
limited to, victim impact evidence ....þ  Ark. Code Ann.  5-4-602
(4).  Thus, the General Assembly clearly expressed the policy of
this State that victim-impact evidence is relevant to the decision
of what punishment is appropriate.
     Our subsequent caselaw specifically rejected the notion that
victim-impact evidence was an aggravating circumstance or that it
violated the statutory weighing process set out in Ark. Code Ann.
 5-4-603 through 605 (Repl. 1993).  We stated in 1995:
     But by expanding the scope of permissible evidence
     [victim-impact evidence] during the penalty phase, the
     General Assembly has not expanded the scope of punishment
     or added a new aggravating circumstance.
Nooner v. State, 322 Ark. 87, 109, 907 S.W.2d 677, 689 (1995),
cert. denied, 116 S. Ct. 1436 (1995).
     In a later case, we expressly addressed the issue of whether
"because there is no place in the Arkansas statutory weighing
process for the jury to consider victim-impact evidence, our
victim-impact statute is violative of the Eighth and Fourteenth
Amendments to the United States Constitution and Ark. Const. art.
2,  9."  Kemp v. State, 324 Ark. 178, 204, 919 S.W.2d 943, 956
(1996), cert. denied, 117 S. Ct. 436 (1996).  In Kemp, we further
observed that the appellant's argument was that the victim-impact
statute conflicted with the statutes establishing aggravating and
mitigating circumstances.  We rejected Kemp's argument and held
that the victim-impact evidence involved, which consisted of
testimony by the sisters and a daughter of the victim, was not
unduly prejudicial.
     More recently, in Lee v. State, 327 Ark. 692, 942 S.W.2d 231
(1997), we again addressed the appellant's argument that there was
no place in the statutory weighing process for the jury to consider
victim-impact evidence.  We held in Lee that the issue was decided
by the Nooner and Kemp decisions and stated:
     Recognizing that there are virtually no limits placed on
     the relevant mitigating evidence that a defendant may
     introduce on his behalf, we noted that the State could
     legitimately conclude that the impact of the murder on
     the victim's family is relevant to the jury's decision as
     to whether to recommend that the death sentence be
     imposed.  Kemp, 324 at 205, citing Payne, 501 U.S.  at
     827.
Lee, 327 Ark. at 703, 942 S.W.2d  at 256 (emphasis added).  See also
Payne v. Tennessee, supra.
     In the instant case, the defense called Valery Ussery, Noelþs
mother, to the stand during the penalty phase.  She testified that
Noel was not disrespectful and had þa kind heart.þ  She also
identified three photographs of Noel as a child, which were offered
into evidence and which were clearly an effort to emphasize the
loss that would be associated with his execution.  In our judgment,
that is precisely the type of mitigating testimony that the Supreme
Court acknowledged could be offset by testimony relating to the
human toll of a murder on the victimþs family.  See Payne v.
Tennessee, supra.  Indeed, the Court in Payne said as much when it
explained that the states may now allow þthe prosecutor to
similarly argue to the jury the human cost of the crime.þ  Payne,
501 U.S.  at 827.
     At issue in this appeal is the testimony of Mary Hussian on
the impact the murders of her three children has had on her.  She
testified generally about her grief and revealed that the þlast
wordsþ of one of her children were, þPlease donþt hurt my mom.þ 
She also expressed her regret for the fact that her family would
þnever see the fruitþ that her children þwere capable of bringing
forth to this society.þ  Ms. Hussian added that she was þwithdrawnþ
from her family, that she often has sleepless nights and awakes þin
sweat and tears, crying and in emotional pain,þ and that she
initially dealt with her grief by consuming alcohol and abusing her
medication.  She further revealed that she is in counseling and
that she has been hospitalized for þstress related disorders.þ  She
stated that she has experienced problems in her employment due to
depression and stated that she sometimes þcheck[s] the childrenþs
bedrooms although theyþre not there.þ  Finally, she read a poem to
the jury titled þWishes from the Heartþ that she had written about
her children and that she þused as a tool to suppress the hurt and
pain because sometimes it is so overwhelming ....þ  According to
Ms. Hussian, her family has been þtotally destroyedþ by the loss of
her three children.
     We hold, once again, that victim-impact evidence is not an
additional aggravating circumstance but rather is relevant evidence
which informs the jury of the toll the murder has taken on the
victim's family.  Such evidence has been sanctioned by the Supreme
Court as relevant in Payne v. Tennessee, supra, and specifically by
the Arkansas General Assembly in Act 1089.  As a safeguard against
excessive victim-impact evidence, the Court observed in Payne v.
Tennessee, supra, that when such evidence is so unduly prejudicial
that it renders the trial fundamentally unfair, the Due Process
Clause provides a mechanism for relief.  That is not the situation
in the instant case.  Rather, the State sought to show the human
cost of the murders on Mary Hussian, much the same as the defense
sought to show, in mitigation, the human toll on Noel's mother in
the event of a State execution.
     There is one final point.  We view the case of State v. Gusek,
906 P.2d 272 (Or. 1995), which is cited by Noel, as inapposite.  In
Gusek, the people of Oregon, by initiated Act, voted in a victim-
impact law which did not speak directly to the relevancy of victim-
impact evidence and which the Oregon Supreme Court held to be at
odds with the General Assemblyþs statutory scheme.  In contrast,
the Arkansas General Assembly has enacted the victim-impact law at
issue in the instant case and has specifically stated that it is
relevant to the sentencing process.  The dissent cites Commonwealth
v. Fisher, 681 A.2d 130 (Pa. 1996); Lambert v. State, 675 N.E.2d 1060 (Ind. 1996); State v. Carter, 888 P.2d 629 (Utah 1995); Bivins
v. State, 642 N.E.2d 928 (Ind. 1994), in support of its position
that victim-impact evidence is irrelevant to the statutory scheme. 
But, again, the crucial distinction between those cases adduced and
the case at hand is that our General Assembly has enacted
legislation stating that such evidence is relevant.
     The trial court did not abuse its discretion in allowing this
testimony.

                   V. Mandatory Death Sentence
     For his final point, Noel contends that the Arkansas death
penalty statute is unconstitutional because it results in a
mandatory death sentence.  This court has addressed and rejected
this precise argument on several occasions.  See, e.g., Jackson v.
State, 330 Ark. 126, 954 S.W.2d 894 (1997); Nooner v. State, supra. 
In those cases, we noted that our statutory scheme provides that a
jury may impose the death sentence when the þ[a]ggravating
circumstances justify a sentence of death beyond a reasonable
doubt.þ  Ark. Code Ann.  5-4-603(a)(3) (Repl. 1993) (emphasis
added).  Thus, justification is an essential element for the
imposition of a death sentence.
     More specifically, Noel argues that a jury should be
instructed that it may show mercy after considering all of the
mitigating circumstances.  We initially observe that defense
counsel did not offer a þmercyþ instruction to the trial court.  In
addition, he did not obtain a ruling from the trial court on this
issue.  We will not consider the issue for the first time on
appeal.  See Watson v. State, 329 Ark. 511, 951 S.W.2d 304 (1997). 
Nor do we view this issue as one involving an error in a matter
essential to the jury's consideration of the death penalty itself. 
See Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997); Wicks v.
State, 270 Ark. 781, 606 S.W.2d 366 (1980).  In any event, we
resolved this issue against Noelþs position in Cox v. State , 313
Ark. 184, 853 S.W.2d 266 (1993), and Ruiz v. State, 299 Ark. 144,
772 S.W.2d 297 (1989).
     Finally, we do not agree with Noel's contention that our
statutory scheme precludes a juror from considering a mitigating
circumstance unless it is unanimously found.  The sentencing forms
completed by the jury in this case specifically allow for some 
jurors to weigh a mitigating circumstance while others may not.  In
Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), this court
expressly acknowledged that fact.
     The trial court, accordingly, correctly ruled that our
sentencing statute, Ark. Code Ann.  5-4-603 (Repl. 1993) , was
constitutional.

                     VI. Rule 4-3 (h) Review
     The record has been reviewed for other reversible error
pursuant to Ark. S. Ct. R.  4-3(h), and none has been found.
     Affirmed.
     Newbern, Imber, and Thornton, JJ., concur in part; dissent in
part.

     David Newbern, Justice, concurring in part; dissenting in part. 
In various oral and written motions filed prior to trial, Mr. Noel
sought to exclude or limit the admission of victim-impact evidence
during the sentencing phase of his trial.  He argued that the
sentencing phase is devoted only to the weighing of aggravating and
mitigating circumstances and that victim-impact evidence has no
bearing on these issues and thus "falls outside the mandate of the
weighing scheme."  The Trial Court denied some of the motions
relating to victim-impact evidence and ruled that others were moot. 
Mr. Noel renewed his objection to the use of victim-impact evidence
during the trial, and the objection was overruled.  
     The essence of Mr. Noel's argument to the Trial Court, and to
this Court, is that victim-impact evidence should not be admissible
in a capital-sentencing proceeding if it is irrelevant to any of
the issues that are properly before the jury in that part of the
trial.
     Mr. Noel's argument has merit.  Under our death-penalty
statutes, the only issues that are before the jury during the
sentencing phase are (1) whether aggravating circumstances exist
beyond a reasonable doubt; (2) whether aggravating circumstances
outweigh beyond a reasonable doubt all mitigating circumstances
found to exist; and (3) whether aggravating circumstances justify
a sentence of death beyond a reasonable doubt.  Ark. Code Ann.  5-
4-603 (Repl. 1997).  Thus, considering that "the evidence offered
must be probative of some issue to be properly considered in the
penalty phase," Hendrickson v. State, 285 Ark. 462, 466, 688 S.W.2d 295, 298 (1985), it follows that, for evidence to be admissible
during the penalty phase of a capital case, it should be directly
relevant to the questions posed by Ark. Code Ann.  5-4-603 (Repl.
1997).  See Lee v. State, 327 Ark. 692, 706-15, 942 S.W.2d 231,
238-43 (1997)(Newbern, J., concurring).  Ms. Hussian's testimony
was irrelevant to the issues that were before the jury during Mr.
Noel's sentencing phase, and thus it should have been excluded.
     In Payne v. Tennessee, 501 U.S. 808 (1991), it was held that
the Eighth Amendment does not prohibit the admission of certain
forms of victim-impact evidence during a capital-sentencing
proceeding.  The Court observed that the states "may legitimately
conclude that evidence about the victim and about the impact of the
murder on the victim's family is relevant to the jury's decision as
to whether or not the death penalty should be imposed."  Id. at
827.  However, as Justice O'Connor observed in a concurring
opinion, the Court in Payne did not hold "that victim impact
evidence must be admitted, or even that it should be admitted." 
Id. at 831 (O'Connor, J., joined by White and Kennedy, JJ.,
concurring)(emphasis added).  The Payne decision simply removed the
per se bar that prior cases had imposed, under the Eighth
Amendment, on the admission of victim-impact evidence and left it
to the states to decide for themselves, subject to the constraints
of the Due Process Clause, whether and how to use victim-impact
evidence in death-penalty cases.
     In Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we
were concerned with whether Ark. Code Ann.  5-4-602(4) (Repl.
1997) should be applied retroactively.  Although we discussed the
Payne decision and recited from it, our holding was limited to our
conclusion that "permitting this testimony ... did not constitute
an ex post facto law."  322 Ark. at 109, 907 S.W.2d  at  689.  
     In Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), we
again discussed  5-4-602(4) and dealt with three objections to the
admissibility of victim-impact evidence.  We held the statute was
(1) not void for vagueness, (2) not violative of the Eighth
Amendment, citing the Payne decision, and (3) not violative of Ark.
Const. art. 2,  9.  We added our conclusion that the admission of
the evidence was not, in that instance, so prejudicial as to be
violative of Mr. Kemp's right to due process of law.  Mr. Kemp's
argument concerning the conflict between the statute providing the
procedure for weighing aggravating and mitigating circumstances was
part of his constitutional argument.  Here is what we said about
it:

     He [Kemp] further contends that, because there is no place in
     the Arkansas statutory weighing process for the jury to
     consider victim-impact evidence, our victim-impact statute is
     violative of the Eighth and Fourteenth Amendments to the
     United States Constitution and Ark. Const. art. 2,  9. 
     Particularly, appellant contends that the victim-impact
     statute conflicts with Ark. Code Ann.  5-4-603 and -604
     (Repl. 1993), which direct the jury to determine whether
     aggravating circumstances exist, to weigh any aggravating
     circumstances against any mitigating circumstances, and to
     determine whether the aggravating circumstances justify a
     death sentence beyond a reasonable doubt.  Again, we find
     appellant's argument unpersuasive.

324 Ark. at 204; 919 S.W.2d  at 956.  We said nothing more about the
statutory conflict but proceeded to discuss the constitutional
arguments at some length.  We did not further address the issue
whether victim-impact evidence was relevant to the statutory
aggravating circumstances or should have been admissible in the
sentencing phase of a capital-murder trial sought so carefully to
be controlled by  5-4-603 and 5-4-604.
     No doubt we rejected Mr. Kemp's constitutional arguments
because they were foreclosed by the Payne decision.  If, as the
majority opinion in the case now before us suggests, we rejected
the basic statutory conflict argument at all, it was because the
argument presented by Mr. Kemp was "unpersuasive."  That hardly
means that an argument that is persuasive may not be considered in
this case.  
     In Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), we dealt
only with a due process challenge to the victim-impact evidence
statute.  There was no objection to the evidence on the basis that
it was not relevant to the aggravating circumstances presented at
the trial.   
     In this case, the objection raising the issue of the statutory
conflict was made on Mr. Noel's behalf.  The contention that the
basic capital-punishment procedure is violated by the admission of
victim-impact evidence is before us, not as a part of an Eighth
Amendment or other constitutional argument, but on its own, as a
purely statutory argument.  The question is one we have not
addressed directly, and we are confronted with an argument on the
point that is persuasive. 
     What, then, is the extent to which our General Assembly has
provided for the admission of victim-impact evidence in capital
sentencing proceedings and rendered "victim impact" a relevant
sentencing factor?
     Following the Payne decision, the General Assembly enacted
Ark. Code Ann.  5-4-602(4) (Repl. 1997), which provides in part
that

     "[i]n determining sentence, evidence may be presented to
     the jury as to any matters relating to aggravating
     circumstances enumerated in  5-4-604, any mitigating
     circumstances, or any other matter relevant to
     punishment, including, but not limited to, victim impact
     evidence . . . .

     The Act also contained the following language:  "It is the
express intention of this act to permit the prosecution to
introduce victim impact evidence as permitted by the United States
Supreme Court in Payne v. Tennessee . . . ." 
     Section 5-4-602(4) limits the evidence to be presented in
determining sentence to "any matters relating to aggravating
circumstances enumerated in  5-4-604, any mitigating
circumstances, or any other matter relevant to punishment,
including, but not limited to victim impact evidence...."  Evidence
of victim impact, therefore, must be relevant to aggravating
circumstances or mitigating circumstances, or it must be "relevant
to punishment."  The death-penalty punishment scheme appears in 
5-4-603(a) as follows: 

          The jury shall impose a sentence of death if it
     unanimously returns written findings that: 
          (1) Aggravating circumstances exist beyond a reasonable
          doubt; and
          (2) Aggravating circumstances outweigh beyond a
     reasonable doubt all mitigating circumstances found to exist;
     and
          (3) Aggravating circumstances justify a sentence of 
          death beyond a reasonable doubt.

The statutory aggravating circumstances at the time of the trial
were those now stated in Ark. Code Ann.  5-4-604(1) through (9)
(Repl. 1997). (A tenth aggravating circumstance, not relevant here,
was added in 1997.)  They are as follows:

          (1) The capital murder was committed by a person
     imprisoned as a result of a felony conviction;
          (2) The capital murder was committed by a person
     unlawfully at liberty after being sentenced to imprisonment as
     a result of a felony conviction;
          (3) The person previously committed another felony, an
     element of which was the use or threat of violence to another
     person or the creation of a substantial risk of death or
     serious physical injury to another person;
          (4) The person in the commission of the capital murder
     knowingly created a great risk of death to a person other than
     the victim or caused the death of more than one (1) person in
     the same criminal episode;
          (5) The capital murder was committed for the purpose of
     avoiding or preventing an arrest or effecting an escape from
     custody;
          (6) The capital murder was committed for pecuniary gain;
          (7) The capital murder was committed for the purpose of
     disrupting or hindering the lawful exercise of any government
     or political function;
          (8)(A) The capital murder was committed in an especially
     cruel or depraved manner.
          (B) For purposes of this subdivision (8), a  capital 
     murder is committed in an especially cruel manner when, as
     part of a course of conduct intended to inflict mental
     anguish, serious physical abuse, or torture upon the victim
     prior to the victim's death, mental anguish, serious physical
     abuse, or torture is inflicted.  "Mental anguish" is defined
     as the victim's uncertainty as to his ultimate fate.  "Serious
     physical abuse" is defined as physical abuse that creates a
     substantial risk of death or that causes protracted impairment
     of health, or loss or protracted impairment of the function of
     any bodily member or organ.  "Torture" is defined as the
     infliction of extreme physical pain for a prolonged period of
     time prior to the victim's death.  
          (C) For purposes of this subdivision (8), a capital
     murder is committed in an especially depraved manner when the
     person relishes the murder, evidencing debasement or
     perversion, or shows an indifference to the suffering of the
     victim and evidences a sense of pleasure in committing the
     murder; or
          (9) The capital murder was committed by means of a
     destructive device, bomb, explosive, or similar device which
     the person planted, hid, or concealed in any place, area,
     dwelling, building, or structure, or mailed or delivered, or
     caused to be planted, hidden, concealed, mailed, or delivered,
     and the person knew that his act or acts would create a great
     risk of death to human life.

     The victim-impact evidence in this case was not "relevant to
punishment" because the decision to "punish" a defendant with the
death penalty must be the result of the weighing procedure set
forth in  5-4-603.  The question thus becomes whether the victim-
impact evidence is relevant to the aggravating circumstances
contained in  5-4-604 or mitigating circumstances.  The statutory
aggravating circumstances are obviously and appropriately limited
to evidence of what the defendant did or did not do.  The victim-
impact evidence in this case clearly had nothing to do with any of
them; nor was it related in any way to any facts presented as
mitigating evidence.
     In State v. Gusek, 906 P.2d 272 (Or. 1995), the Supreme Court
of Oregon confronted the problem created by a victim-impact
evidence law that had been adopted as an initiated act.  The law in
Oregon, as our  5-4-603, required unanimous jury determination of
the existence of one or more specified aggravating circumstances as
a prerequisite to levying the death sentence.  The Supreme Court of
Oregon held the victim-impact evidence was inadmissible due to its
irrelevancy to the aggravating factors stated in the law.  The
Court said, 

          The statutory requirement that the state must prove
     beyond a reasonable doubt the issues concerning aggravation
     ... indicates that the legislature intended that the death
     penalty would be imposed only on the basis of the enumerated
     statutory aggravating factors that the state establishes
     beyond a reasonable doubt ....  Interpreting the "fourth
     question," on which neither party has the burden of proof, to
     allow proof of nonenumerated aggravating factors would allow
     the imposition of the death penalty on the basis of non-
     enumerated aggravating factors that were not established
     beyond a reasonable doubt.  Such an interpretation would be
     inconsistent with the legislature's intent to require proof
     beyond a reasonable doubt of the enumerated aggravating
     circumstances. 

906 P.2d  at 279 (emphasis original).  The "fourth question" in the
Oregon death penalty sentencing law is the general one asking the
jurors ultimately whether the death penalty should be imposed.
     Although  5-4-602(4) purports to sanction the use of victim-
impact evidence in capital cases if it is merely "relevant to
punishment,"  5-4-603 has not been amended to make "victim impact"
a relevant sentencing or "punishment" factor.  As the Oregon Court
found to be the case of the law enacted by the voters in that
State, nothing that our General Assembly has done in the wake of
the Payne decision has altered the basic framework of  5-4-603. 
The jury's decision whether to impose the death penalty still
depends entirely on the weighing of statutorily defined aggravating
factors and any relevant mitigating factors.  See Ark. Code Ann. 
5-4-604, 5-4-605.  Thus, insofar as  5-4-602(4) permits the
introduction of victim-impact evidence,  5-4-603 must be viewed as
limiting the admissibility of such evidence.  Section 5-4-603
requires that victim-impact evidence, before it can be admitted in
a capital sentencing proceeding, must be directly relevant to the
question whether aggravating or mitigating circumstances exist in
the case at hand.  
     In addition to the Supreme Court of Oregon, courts in other
states have reached similar conclusions. See, e.g., Commonwealth v.
Fisher, 681 A.2d 130 (Pa. 1996); Lambert v. State, 675 N.E.2d 1060
(Ind. 1996); State v. Carter, 888 P.2d 629 (Utah 1995); Bivins v.
State, 642 N.E.2d 928 (Ind. 1994).  The majority opinion criticizes
the reference to these cases on the ground that the states in which
they were rendered had not enacted statutes making victim-impact
evidence "relevant."  As noted above, our General Assembly has not
simply said that victim-impact evidence is "relevant."  Rather, it
provided in  5-4-602 (4) that "... any other matter relevant to
punishment, including, but not limited to victim impact evidence"
may be presented.  Again, the point here is that the victim-impact
evidence in this case was not related to any aggravating factor or
mitigating evidence presented and thus cannot be relevant to
"punishment," which is controlled by  5-4-603 and 5-4-604.
     In the case at bar, Ms. Hussian's testimony describing the
impact of Mr. Noel's crimes on her life and on the life of her
family did nothing to establish the existence or non-existence of
any aggravating or mitigating circumstances.  Her testimony was
thus erroneously admitted, and it was most assuredly not harmless
beyond a reasonable doubt.  The case should be remanded for a new
sentencing proceeding.
     I respectfully dissent.
     Imber and Thornton, JJ., join in this opinion.