Damien Echols v. State of Arkansas

Annotate this Case
Damien Wayne ECHOLS and Charles Jason Baldwin
v. STATE of Arkansas

CR 94-928                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 23, 1996


1.   Evidence -- standard of review -- substantial evidence. --
     Although the jury should be instructed, as it was here, that
     circumstantial evidence must be consistent with the guilt of
     the defendant and inconsistent with any other reasonable
     conclusion, this is not the standard by which the appellate
     court reviews the evidence; the appellate court's
     responsibility is to determine whether the verdict is
     supported by substantial evidence, which means whether the
     jury could have reached its conclusion without resorting to
     speculation or conjecture; the jury must be convinced of the
     accused's guilt beyond a reasonable doubt, but the appellate
     court, not having had the advantage of seeing and hearing the
     witnesses, is guided by the substantial evidence rule. 

2.   Evidence -- confession sufficient to sustain conviction if
     accompanied by other proof that offense was committed by
     someone. -- Where two witnesses testified that they overheard
     appellant Echols state that he killed the three boys, this was
     direct evidence; a confession is sufficient to sustain a
     conviction if it is accompanied by other proof that the
     offense was committed by someone.
3.   Evidence -- substantial evidence of appellant Echols's guilt.
     -- There was substantial evidence of the guilt of appellant
     Echols where, among other things, the testimony of witnesses
     placed him in dirty clothes near the crime scene at a time
     close to the murders; where two independent witnesses reported
     Echols's statement that he had killed the three boys and was
     direct evidence of the statement; where a criminalist from the
     State Crime Laboratory and a State Medical Examiner testified
     concerning the similarity of fibers found on the victim's
     clothes with clothing found in Echols's home and the serrated
     wound patterns on the three victims that were consistent with,
     and could have been caused by, a knife found in a lake behind
     appellant Baldwin's parents' residence; where, given the
     testimony of a witness that she had seen Echols carrying a
     similar knife and the testimony of the owner of a knife
     collector service regarding that type of knife, the jury could
     have reasonably concluded that Echols or Baldwin disposed of
     the knife in the lake; where Echols admitted on cross-
     examination that he had delved deeply into the occult and was
     familiar with its practices and where various items that had
     been found in his room supported the State's theory of motive
     that the killings were done in a satanic ritual; where an
     expert in occult killings testified that there was significant
     evidence of satanic ritual killings; where a detective
     testified that Echols had made a statement regarding the
     mutilation of one of the victims that the jury could have
     reasonably concluded he would not have known about unless he
     had been involved in some manner; and where Echols's testimony
     contained additional evidence of guilt.

4.   Criminal law -- mitigating circumstances -- no significant
     prior history of criminal activity -- weighed by jury. -- The
     mitigating factor in AMI Crim. 1509, which is set out at Ark.
     Code Ann.  5-4-605(6) (Repl. 1993) as "no significant prior
     history of criminal activity," does not refer to prior
     convictions; where the jury found that appellant Baldwin had
     no significant history of criminal activity but refused to
     make the same finding for appellant Echols, the fact indicated
     that the jury carefully weighed the evidence and determined
     that Echols should not be credited with the mitigating factor.

5.   Evidence -- mitigating circumstances -- jury not required to
     find. -- A jury is not required to find a mitigating
     circumstance just because the defendant puts before the jury
     some evidence that could serve as the basis for finding the
     mitigating circumstance.

6.   Evidence -- mitigating circumstances -- jury may generally
     refuse to believe defendant's mitigating evidence. -- A jury
     may generally refuse to believe a defendant's mitigating
     evidence, but when there is no question about credibility and,
     when, in addition, objective proof makes a reasonable
     conclusion inescapable, the jury can not arbitrarily disregard
     that proof and refuse to reach that conclusion; here, the jury
     was faced with neither indisputable credibility nor objective
     proof that made a reasonable conclusion inescapable; to the
     contrary, there was substantial evidence of appellant Echols's
     history of prior criminal activity.  

7.   Evidence -- mitigating circumstances -- jury did not
     arbitrarily refuse to find that appellant Echols had no
     significant history of criminal activity. -- The jury did not
     arbitrarily refuse to find that appellant Echols had no
     significant history of criminal activity where Echols admitted
     on cross-examination in the penalty phase of the trial that he
     had an altercation with his father in which a knife was
     involved and the police were called; where he admitted that he
     was hospitalized that same day and that when his father came
     to the hospital, "I told him I would eat him alive"; where he
     admitted that he tried "to claw the eyes out" of a student;
     and where a psychologist who testified for Echols admitted
     that Echols had "an all-powerful God-like image of himself,"
     that his parents were concerned with his satanism or devil
     worship, and that Echols's medical records included notations
     of statements by Echols pertaining, among other things, to his
     rage and the drinking of the blood of others.

8.   Criminal procedure -- joinder and severance -- when
     appropriate. -- Joinder and severance procedure is governed by
     Ark. R. Crim. P. Article VI; these rules are calculated to
     promote the expeditious disposition of criminal cases without
     putting undue strain on prosecutorial or judicial resources,
     but, at the same time, without causing prejudice to joint
     defendants; Ark. R. Crim. P. 21.2 provides for the joinder of
     defendants when the crimes were part of a joint scheme or plan
     and so the capital murder charges were properly joined; Ark.
     R. Crim. P. 22.3 provides that a trial court shall grant a
     severance if it is deemed appropriate to promote a fair
     determination of the guilt or innocence of one of the
     defendants. 

9.   Criminal procedure -- joinder and severance -- discretionary -
     - factors to be weighed. -- Trial courts have discretion to
     grant or deny a severance, and the appellate court will not
     disturb the ruling in the absence of an abuse of that
     discretion; in determining whether to grant a severance, a
     trial court should weigh: (1) whether the defenses of the
     defendants are antagonistic; (2) whether it is difficult to
     segregate the evidence; (3) whether there is a lack of
     substantial evidence implicating one defendant except for the
     accusation of the other defendant; (4) whether one defendant
     could have deprived the other of all peremptory challenges;
     (5) whether one defendant will be compelled to testify if the
     other does so; (6) whether one defendant has no prior criminal
     record and the other has; (7) whether circumstantial evidence
     against one defendant appears stronger than against the other;
     when defenses are antagonistic the trial court must be
     particularly careful that neither defendant is unduly
     jeopardized by a joint trial; the presence of any one of the
     factors does not necessarily require severance, as there are
     multiple factors to consider.

10.  Criminal procedure -- joinder and severance -- almost all
     factors weighed in favor of joint trial. -- Almost all of the
     factors clearly weighed in favor of a joint trial where the
     joint trial was lengthy, and separate trials perhaps would
     have taken twice as long and required twice as many jurors;
     the evidence was not difficult for the jury to segregate; the
     evidence was not significantly stronger against one defendant
     than the other; the testimony of one did not compel the other
     to testify; and there was no significant disparity in criminal
     records of the defendants; the trial judge made various
     comments when denying the severance motions, and those
     comments reflected that he thought the jurors could
     distinguish the evidence and apply the law intelligently to
     each offense and to each defendant.

11.  Criminal procedure -- joinder and severance -- antagonistic
     defenses discussed. -- Antagonistic defenses arise when each
     defendant asserts his innocence and accuses the other of the
     crime, and the evidence cannot be successfully segregated; the
     supreme court has held that when there was no reason the jury
     could not have believed both defenses, the defenses are not
     antagonistic.

12.  Criminal procedure -- joinder and severance -- alleged
     conflicting strategies did not subject either defendant to
     compelling prejudice. -- Unless conflicting strategies go to
     the essence of co-defendants' defenses, and the conflicting
     strategies are so great that both defendants' defenses cannot
     be accommodated by the jury, a trial court is not required to
     grant a severance; here, where the defense of each appellant,
     in effect, was that he did not commit the crimes, the alleged
     conflicting strategies did not subject either defendant to a
     compelling prejudice.

13.  Criminal procedure -- joinder and severance -- alleged
     difference in strategy did not mandate severance. -- The
     alleged difference in strategy did not go to the essence of
     either defense, did not prevent the jury from considering
     either defense, did not unduly jeopardize a fair trial, and
     did not mandate a severance.

14.  Appeal & error -- argument cannot be made for first time on
     appeal. -- Where appellant Baldwin did not ask for a severance
     because of the admission of a piece of paper with doodles
     drawn on it by appellant Echols, he could not make the
     argument for the first time on appeal.

15.  Criminal procedure -- joinder and severance -- no binding
     commitment to sever -- trial court did not abuse discretion in
     denying severance. -- Where, in pretrial, the trial court
     stated that in the event one of the appellants testified, the
     other might then be compelled to do so, and "There's case law
     on that, and the other defendant would be entitled to an
     immediate mistrial," the supreme court noted that, in a
     similar case, it had held that this kind of ruling does not
     amount to a "binding commitment" to sever; where appellant
     Echols did not implicate appellant Baldwin when he testified,
     the trial court did not abuse its discretion in denying the
     severance.

16.  Criminal procedure -- joinder and severance -- Ark. R. Crim.
     P. 22 gives trial court discretion to grant or deny severance
     in all cases. -- Although, before the Arkansas Rules of
     Criminal Procedure were adopted, the trial court had
     discretion to grant severance of defendants in all cases
     except capital cases, where they were granted severance as a
     matter of right under Ark. Stat. Ann.  43-1802 (Repl. 1977),
     the statute was superseded by Ark. R. Crim. P. 22, which gives
     the trial court discretion to grant or deny a severance in all
     cases; moreover, Ark. Stat. Ann.  43-1802 was repealed and
     not reenacted when the General Assembly adopted the Arkansas
     Code of 1987 Annotated by Act 267 of 1987.
17.  Search & seizure -- good-faith exception -- test for
     determining when warrant falls outside. -- The good-faith
     exception does not apply when the issuing magistrate was
     misled by an affiant who either knew the information given was
     false or acted in reckless disregard of its truth or falsity;
     the test for determining when a warrant falls outside the
     good-faith exception provides that a warrant should be
     invalidated if a defendant shows by a preponderance of the
     evidence that: (1) the affidavit contained a false statement
     which was made knowingly, intentionally, or recklessly by the
     affiant, and (2) the false statement was necessary to a
     finding of probable cause; further, if such a finding is made,
     the false material should be excised and the remainder of the
     warrant examined to determine if probable cause still exists;
     if the truthful portion of the warrant makes a sufficient
     showing of probable cause, the warrant will not be
     invalidated; the burden of showing that an affiant knowingly
     and recklessly included a false statement is upon the
     challenger of the affidavit.

18.  Search & seizure -- warrant -- standard for invalidating
     requires knowing intent to deceive or reckless disregard of
     truth. -- The standard for invalidating a warrant that falls
     outside the good-faith exception requires a knowing intent to
     deceive, or a reckless disregard of truth; matters omitted
     must be material circumstances that contradict or dispel the
     incriminating factors in the affidavit and that render what is
     in the affidavit effectively false because of their
     nondisclosure.

19.  Search & seizure -- rest of warrant contained sufficient
     showing for probable cause. -- Even if two statements by a
     detective in the affidavit were false in material matters, and
     even if the detective knew them to be false, the rest of the
     warrant still made a sufficient showing for probable cause;
     the warrant contained a sufficient showing of the facts that
     appellants's accomplice Misskelley said that he, appellant
     Baldwin, and appellant Echols committed the murders; that
     Misskelley had knowledge of details of the crime not known to
     the public; and the statement that evidence connecting them to
     the crime could be found in the homes.

20.  Search & seizure -- affidavit -- appellant did not meet burden
     of showing that detective knowingly and intentionally stated
     falsehood. -- Where appellant Baldwin argued that the
     detective knowingly and intentionally misrepresented the truth
     when he swore that Echols, Baldwin, and Misskelley were
     members of a cult, the supreme court summarily dismissed the
     argument because the accomplice Misskelley told a police
     inspector that the three were in a cult, and the detective
     testified at the suppression hearing that he had learned from
     other sources that the three were in a cult; thus, appellant
     Baldwin did not meet his burden of showing that the detective
     knowingly and intentionally stated a falsehood.

21.  Search & seizure -- trial court did not err in finding that
     issuing judge was neutral and detached. -- One of the errors
     that an officer's good faith will not cure is that which
     occurs when the magistrate who issues a warrant wholly
     abandons his detached and neutral judicial role; when a
     judicial officer becomes so involved in the investigation as
     to be deemed a participant, he has abandoned this role; here,
     the proof showed that the issuing magistrate stated the
     elements necessary for a valid warrant, and that included
     telling the officers to record on the warrant the actions they
     took when they executed the warrant; on such proof, the
     supreme court could not say that the trial court's ruling that
     the issuing judge was neutral and detached was clearly in
     error.
22.  Appeal & error -- finding that accomplice was reliable
     informant not clearly in error. -- The trial court's finding
     that the accomplice Misskelley was a reliable informant was
     not clearly in error where, even though the accomplice's
     initial statement was in error about the ligatures and the
     time of the killings, he corrected the latter and he clearly
     knew which of the victims had been castrated and that one of
     the victims had been cut in the face; where this information
     was not known by the public at the time he supplied it; where
     a detective corroborated these statements by his own knowledge
     gained at the crime scene, and through contacts at the state
     crime laboratory; and where the accomplice implicated himself
     in the murders because he admitted that one of the victims
     attempted to escape from the crime scene and that he chased
     and caught the boy and brought him back.

23.  Search & seizure -- warrant -- all items were described with
     particularity except fibers. -- The supreme court dismissed
     appellants' contention that the warrant did not describe with
     particularity the items to be seized, emphasizing that all of
     the items to be seized were described with particularity,
     except the fibers to be seized for the crime laboratory, and
     noting that it was difficult to think of a way the warrant
     could have been more specific than to describe, as it did, the
     blue, green, red, black, and purple fibers; blue, yellow, red,
     paint or plastic; and blue or red waxing-type substance.

24.  Search & seizure -- Fourth Amendment allows seizure of mere
     evidence if there is probable cause to believe it will aid in
     conviction. -- The Fourth Amendment allows the seizure not
     only of the implements of the crime but also of mere evidence
     providing there is a probable cause to believe that the
     evidence sought will aid in a conviction.

25.  Search & seizure -- nighttime search -- review of propriety. -
     - In reviewing whether the requirements of Ark. R. Crim. P.
     13.2, which governs nighttime searches, were met, the
     appellate court conducts an independent determination based
     upon the totality of the circumstances and reverses only if
     the trial court's ruling was clearly against the preponderance
     of the evidence; the evidence presented to the magistrate from
     whom a nighttime search is requested must be of facts
     justifying a warrant rather than mere conclusions.

26.  Search & seizure -- nighttime search justified. -- Where there
     were facts stated to support the conclusion that the evidence
     sought was in danger of imminent removal, the trial court's
     conclusion that the nighttime search was justified was not
     against the preponderance of the evidence.

27.  Witnesses -- expert witnesses -- qualification of. -- The
     qualification of expert witnesses is within the sound
     discretion of the trial court and will not be reversed absent
     a showing of abuse; if there is a reasonable basis to find
     that the witness has knowledge of a subject beyond that of
     ordinary knowledge, the witness may be qualified as an expert.

28.  Witnesses -- expert witness -- witness had much more than
     ordinary knowledge of nontraditional groups -- no abuse of
     discretion in allowing him to testify. -- Where a witness had
     much more than ordinary knowledge of nontraditional groups,
     the occult, and satanism, the trial court did not abuse its
     discretion in allowing him to testify as an expert witness.

29.  Evidence -- testimony that murders had "trappings of
     occultism" admitted as proof of motive. -- Where appellant
     Echols contended that an expert witness should not have been
     allowed to testify that the murders had the "trappings of
     occultism" as there was no testimony that the field of
     satanism or occultism is generally accepted in the scientific
     community, the supreme court held that the argument was
     without merit because the trial court did not allow the
     evidence to prove that satanism or occultism is generally
     accepted in the scientific community but admitted it as proof
     of the motive for committing the murders.

30.  Constitutional law -- First Amendment -- introduction of
     evidence of beliefs and associations does not violate rights
     when relevant to crime. -- The introduction of evidence of
     beliefs and associations violates a defendant's constitutional
     rights when there is no connection between those beliefs and
     associations and the crime; the United States Supreme Court,
     however, has expressly distinguished a case in which beliefs
     and associations were relevant to a murder, and this case
     falls within the ambit of the distinction.

31.  Appeal & error -- party cannot obtain relief from favorable
     ruling. -- A party cannot obtain relief from a favorable
     ruling.

32.  Evidence -- State entitled to produce evidence showing
     circumstances that explain act. -- When the purpose of
     evidence is to show motive, anything and everything that might
     have influenced the commission of an act may, as a rule, be
     shown; the State is entitled to produce evidence showing
     circumstances that explain the act, show a motive for killing,
     or illustrate the accused's state of mind.

33.  Evidence -- relevancy and prejudicial impact -- trial court's
     ruling afforded great deference. -- The trial court's ruling
     on relevancy, as well as prejudicial impact, is afforded great
     deference by a reviewing court and will not be disturbed
     absent an abuse of discretion.

34.  Juveniles -- Ark. Code Ann.  9-27-309(a) gives juvenile court
     discretion to open files. -- Arkansas Code Annotated  9-27-
     309(a) gives the juvenile court discretion to open juvenile
     court files; here, the juvenile court had, by order, opened
     appellant Echols's files for the State.

35.  Evidence -- relevance -- book on history of witches was
     relevant to show appellant Echols's interest in occult. -- A
     book on the history of witches, which was found in appellant
     Echols's room after the murders, was relevant to show
     appellant's interest in the occult.
36.  Evidence -- relevance -- testimony about clothing and staffs
     was relevant. -- Where the trial court ruled that the murders
     could have been committed with staffs and that they could have
     been occult murders, the supreme court held relevant the
     testimony of a witness that he had seen Echols, Baldwin, and
     Misskelley walking together six months before the murders,
     wearing long black coats, and carrying long sticks or staffs.

37.  Evidence -- relevancy requirement satisfied by evidence of
     occult practices. -- To be relevant, it is not required that
     evidence prove the entire case or even a single issue; all
     that is required, under Ark. R. Evid. 401, is that it have
     "any tendency" to make any fact that is of consequence to the
     determination of the action more or less probable; here, the
     State's theory was that the murders were cult-related, and
     there was additional evidence about occult practices; this
     evidence provided a circumstantial link and was therefore
     relevant.

38.  Evidence -- trial court correctly allowed evidence of
     appellant Baldwin's participation in occult activities. --
     Where one witness testified that appellant Baldwin had told
     him that he had dismembered one of the boys, sucked the blood
     from his penis and scrotum, and put the testicles in his
     mouth, and where an expert on ritual killings stated that one
     of the facts that led him to believe that the killings were
     cult-related was that one of the victims had been castrated
     and had had the blood sucked from his penis, there was
     sufficient evidence of appellant Baldwin's participation in
     occult activities, and the trial court correctly allowed the
     evidence.

39.  Evidence -- hearsay -- scholarly treatise exception --
     reliability must be established -- no foundation laid. -- The
     scholarly treatise exception to the hearsay rule, set forth at
     Ark. R. Evid. 803(18), applies to a particular statement from
     a particular treatise, not to a general opinion of another
     expert based upon a generalized familiarity with the expert;
     here, no foundation was laid about a particular treatise to
     which appellant Echols's expert witness on cult crimes could
     refer, and no foundation was laid about the reliability of the
     expert on the subject; before a treatise may be used, its
     reliability must be established; because the trial court was
     not apprised of a particular treatise or its reliability, the
     State's hearsay objection was correctly sustained; moreover,
     appellant Echols could not have suffered any prejudice from
     the ruling because the information was later given to the
     jury.

40.  Appeal & error -- law-of-the-case doctrine -- not applicable.
     -- Where appellant Echols argued that the law-of-the-case
     doctrine prohibited the trial court from making a different
     ruling on the same argument with respect to questions
     addressed to appellant's expert witness regarding two
     authorities on the occult, the supreme court held that the
     rulings were not inconsistent, but, even had they been
     inconsistent, the law-of-the-case doctrine was not applicable;
     while the doctrine is not limited to appeals and may be
     applied to issues raised in a continuing lawsuit, when applied
     in a continuing suit, the doctrine is different from when
     applied to subsequent appeals; when applied to the effect of
     previous orders on the later action of the court rendering
     them in the same case, the doctrine merely expresses the
     practice of courts generally to refuse to reopen what has been
     decided, not a limit to their power; in the present case, even
     had the same issue been involved, the trial court had the
     power to reconsider its ruling.

41.  Trial -- trial court did not arbitrarily stop appellant's
     counsel from asking proper questions of victim's stepfather. -
     - The trial court did not arbitrarily stop appellant Echols's
     counsel from asking proper questions of a victim's stepfather;
     the record showed that appellant's counsel was allowed to ask
     the questions that, on appeal, he complained he was not
     allowed to ask.

42.  Evidence -- appellant made sufficient offer of proof of
     questions for victim's stepfather. -- The supreme court held
     that appellant Echols made a sufficient offer of proof under
     Ark. R. Evid. 103(a)(2) where counsel stated the questions he
     wanted to ask a victim's stepfather and gave the answers he
     anticipated the witness would give.

43.  Evidence -- facts that witness may have been abused and may
     have committed unrelated bad acts created only reckless
     inference that he murdered victims. -- Evidence that a third
     party may have committed a crime is inadmissible unless it
     points directly to the guilt of the third party; if it creates
     no more than an inference or conjecture as to the third
     party's guilt, it is inadmissible; there should be sufficient
     connection between the evidence and the possibility of another
     person's guilt before it is admissible; here, the facts that
     the witness may have been abused and may have committed
     unrelated bad acts created no more than a reckless inference
     that he murdered his stepson and the other two victims.

44.  Evidence -- accused is not entitled to offer evidence of other
     suspects on wholly speculative basis. -- An accused is
     entitled to show that someone else committed a crime, but an
     accused is not entitled to offer evidence of other suspects on
     a wholly speculative basis and without linking the other
     suspects in some manner; here, there was nothing to indicate
     that anyone in the photospread of suspects committed the
     crimes, and the trial court correctly ruled that further
     questioning of a officer about the photospread was irrelevant.

45.  Evidence -- records of State Crime Laboratory -- evidence
     analysis -- purpose of governing statute. -- The purpose of
     Ark. Code Ann.  12-12-313(a), which provides that an evidence
     analysis made by the State Crime Laboratory shall be received
     as competent evidence subject to the applicable rules of
     criminal procedure, is to remove crime lab reports from
     exclusion under the hearsay rule, not to require that they
     always be admitted for any reason; the trial court correctly
     ruled that hearsay statements contained in a serologist's
     report were not admissible and that the names of suspects
     listed on the document would not be admitted unless there was
     some evidence to connect the suspects with the crimes;
     further, appellant Echols could not show prejudice because the
     jury was informed that a victim's stepfather was a suspect.

46.  Witnesses -- neither prosecution nor defense may call a
     witness knowing he will claim testimonial privilege. --
     Neither the prosecution nor the defense is permitted to call
     a witness knowing that the witness will claim his testimonial
     privilege; neither side should be permitted to build a case
     out of a series of invocations of the privilege, which would
     be the equivalent in the jury's minds of testimony.

47.  Evidence -- evidence of third-party guilt must have tendency
     to negate defendant's guilt -- sufficient nexus required. --
     Evidence that a third party may have committed the crime must
     have had a tendency to negate the defendant's guilt; this kind
     of evidence is inadmissible unless it points directly to the
     guilt of the third party; if it creates no more than an
     inference or conjecture as to the third party's guilt, it is
     inadmissible; there must be a sufficient nexus between the
     evidence and the possibility of another person's guilt;
     similarity and time connections are factors in determining the
     probativeness of the evidence, which must be weighed against
     the possibility of confusing the issues and wasting time;
     here, the trial court had heard a proffer and knew that an
     out-of-state witness's statement did not exculpate appellants.

48.  Evidence -- trial court did not abuse its discretion in
     refusing to allow appellants to call witness and make him
     claim testimonial privilege. --   The admission or rejection
     of evidence under Rule 404(b) is committed to the sound
     discretion of the trial court, which the appellate court will
     not disturb on appeal absent a showing of manifest abuse; the
     standard of review for both relevancy determinations and the
     decision to admit evidence by balancing the probative value
     against unfair prejudice or confusion of the issues is
     similar; the trial court did not abuse its discretion in
     refusing to allow appellants to call an out-of-state witness
     and make him claim his Fifth Amendment privilege in front of
     the jury.

49.  Witnesses -- expert witness -- qualification discretionary
     with trial court -- no error in allowing testimony regarding
     anal injuries. -- Whether to qualify a witness as an expert is
     a matter left to the discretion of the trial court, and the
     trial court will not be reversed absent an abuse of
     discretion; once a witness is qualified as an expert, any
     weaknesses in the bases for his opinions can be brought out on
     cross-examination, and it is then for the jury to determine
     the weight and credibility to give the testimony; the trial
     court did not err in allowing an expert's testimony regarding
     the conditions of the victims' anuses and the causes
     consistent with the conditions.

50.  Appeal & error -- specific and timely objection must be made
     to preserve issue for appeal. -- To preserve an issue for
     appeal, a specific and timely objection must be made in the
     trial court, apprising the trial court of the appellant's
     arguments; having failed to object to an expert witness's
     testimony on evidence of oral sex before the trial court,
     appellant Baldwin could not raise the issue on appeal.

51.  Witnesses -- expert witness -- any weaknesses in bases for
     opinions would go to weight and credibility rather than
     admissibility. -- Where an expert witness's qualification as
     a forensic pathologist was not questioned, any weaknesses in
     the bases for his opinions concerning oral sex, as they were
     developed on cross examination, would go to weight and
     credibility rather than admissibility

52.  Witnesses -- expert witness -- weight and credibility of
     testimony for jury to determine. -- Where an expert witness
     gave a thorough foundation for his opinion, which was not that
     sticks recovered at the scene caused the victims' injuries,
     but that the wounds were consistent with being caused by the
     sticks, and where he also testified that the wounds could have
     been caused by other objects, it was for the jury to determine
     the weight and credibility to give the witness's testimony
     concerning the sticks.

53.  Evidence -- no error to allow expert's testimony regarding
     knife wounds. -- The supreme court, noting that the issue had
     not been properly preserved for appeal, held that it was not
     error for the trial court to allow an expert witness's
     testimony regarding whether some of the wounds were consistent
     with having been caused by a knife of the type found behind
     appellant Baldwin's house where the witness's opinion was
     supported with a with a factual foundation and where any
     weaknesses in his opinion that some of the wounds were
     consistent with having been caused by the knife recovered from
     behind appellant Baldwin's house went to weight and
     credibility rather than to admissibility.

54.  Appeal & error -- no reversal for asserted leading question
     where appellant did not request sanction or other relief upon
     objection. -- Even if a question asked by the State on
     redirect examination had been a leading one, the supreme court
     would not reverse where appellant Echols did not request a
     sanction or other relief when he objected; even if the
     question had been a leading question, the error did not
     constitute reversible error.

55.  Trial -- trial judge's questions did not constitute unmerited
     rebuke of defense counsel. -- Although the trial judge asked
     about the relevancy of the continued questioning and seemed to
     be irritated with defense counsel's tactics, the questions did
     not constitute an unmerited rebuke of the attorney.

56.  Appeal & error -- even constitutional arguments are waived
     when not presented to trial court. -- Where appellant Baldwin
     did not make a Confrontation Clause argument to the trial
     court, the supreme court did not consider it on appeal; even
     constitutional arguments are waived when they are not
     presented to the trial court.

57.  Evidence -- character and conduct -- inquiry on cross-
     examination limited to specific instances of conduct probative
     of veracity. -- Rule 608 of the Arkansas Rules of Evidence
     provides that a witness may be cross-examined with specific
     instances of conduct, if probative of the witness's character
     for truthfulness; the rule limits the inquiry on cross-
     examination to specific instances of conduct clearly probative
     of truthfulness or untruthfulness. 

58.  Evidence -- trial court did not abuse discretion in finding
     evidence of alleged substance abuse not probative of veracity.
     -- The supreme court could not say that the trial court had
     abused its discretion in finding that the evidence of the
     alleged substance abuse of a witness who had heard appellant
     Baldwin make inculpatory statements was not clearly probative
     of veracity and, as such, would have been unfairly prejudicial
     where there was no showing that substance abuse relates to
     truthfulness or untruthfulness; where it did not appear that
     appellant Baldwin was attempting to show that a witness was on
     drugs or intoxicated when he heard appellant make an
     incriminating statement; where the questions and statements of
     the trial court indicated that there was nothing in the record
     to show that substance abuse had affected the witness's
     perception of reality or his ability to tell the truth; where
     the trial court asked appellant Baldwin's attorney if he had
     a good-faith basis for questions about the witness's drug and
     alcohol use, and counsel never responded with any fact
     indicating that the alleged substance abuse went to
     truthfulness or untruthfulness; and where the trial court
     applied the proper tests for admissibility, which are: (1)
     whether the question is asked in good faith; (2) whether the
     probative value outweighs the possibility of unfair prejudice;
     (3) whether it relates to the witness's truthfulness.

59.  Trial -- closing argument -- no abuse of discretion in
     allowing prosecutor to compare cuts made by two knives. --
     Some leeway is given in closing remarks and counsel are free
     to argue every plausible inference that can be drawn from the
     testimony; nevertheless, closing arguments must be confined to
     questions in issue, the evidence introduced, and all
     reasonable inferences and deductions which can be drawn
     therefrom; the trial court has a wide latitude of discretion
     in controlling the arguments of counsel, and its rulings in
     that regard are not overturned in the absence of clear abuse;
     the trial court did not abuse its discretion in allowing the
     prosecutor in closing argument to compare the cuts made in a
     grapefruit by a knife with a serrated blade and another with
     a regular blade.

60.  Appeal & error -- general objection cannot avail on appeal
     unless there was no reason to admit evidence. -- A general
     objection that was overruled cannot avail upon appeal unless
     there was no reason whatsoever to admit the evidence, because
     the trial judge had no way of knowing what was in counsel's
     mind; although appellant Echols argued on appeal that the
     trial court's ruling on his objection to questioning a witness
     about whether appellant had told her why he carried a knife
     was in violation of Ark. R. Evid. 404(b), he did not advance
     such an argument to the trial court; it is settled that a
     party cannot raise an issue for the first time on appeal; even
     if it could be said that the trial court should have sustained
     the objection under 404(b) or for any other reason, the
     supreme court would not reverse because the alleged error
     could not have had a substantial effect on the rights of the
     defendant; here, there was already ample evidence that
     appellant Echols owned knives, and the witness did not testify
     that appellant used the knife, only that he carried it because
     he did not feel safe.

61.  Witnesses -- defendant in criminal case -- credibility becomes
     issue. -- When a defendant takes the stand in a criminal case,
     his credibility becomes an issue.

62.  Evidence -- impeachment -- prosecutor properly brought up
     altercation between appellant Echols and his father. -- The
     prosecutor's questions on cross-examination had independent
     relevance with respect to appellant Echols's medication, mood
     swings, knife collection, and quick return from Oregon;
     further, where appellant responded on cross-examination that
     he did not become violent toward others when he was off his
     medication, the prosecutor properly questioned him about an
     altercation he had with his father in Oregon to impeach his
     truthfulness; while there are matters that cannot be used
     against an accused solely because he is a defendant, these
     same matters can be used against an accused when he becomes a
     witness; a witness always puts his credibility at issue when
     he takes the stand; here, the question was logically related
     to matters appellant had brought up himself: his manic-
     depressive illness and his immediate return to Arkansas.

63.  Evidence -- rebuttal evidence -- testimony of State's rebuttal
     witness was direct response to unexpected testimony of another
     State's witness on cross-examination -- name of witness did
     not have to be disclosed. -- The trial court was correct in
     allowing a second pathologist to testify about the time of the
     victims' deaths where the State could not anticipate that the
     forensic pathologist it had first called would change his
     testimony and, on cross-examination, give testimony that, when
     coupled with other evidence, would imply that appellant Echols
     could not have committed the murders because he was at home
     asleep at the time of the victims' deaths; the second
     pathologist's testimony that it was impossible to estimate the
     time of death was in direct response to the unexpected
     estimate of time given by the first pathologist on cross-
     examination; because the testimony was in response to
     testimony elicited by the defense, it was genuine rebuttal
     evidence, and the name of the witness did not have to be
     disclosed.

64.  Evidence -- relevance -- review of ruling. -- A trial court
     has discretion in determining relevance, and its ruling on
     relevance will be reversed only for abuse of discretion.

65.  Evidence -- relevance -- trial court did not abuse discretion
     in admitting knife into evidence. -- When evidence on an issue
     is circumstantial, it is never irrelevant to put in evidence
     any circumstance that may make the proposition at issue more
     or less probable; where the State offered testimony that the
     knife it introduced was like the one appellant Echols carried,
     that it was found forty-seven feet behind Baldwin's residence,
     and that it could have caused the injuries, the evidence
     provided a link to the crimes and made appellants' identities
     more probable than without the evidence; the trial court did
     not abuse its discretion in admitting the knife into evidence.

66.  Evidence -- relevance -- trial court did not abuse discretion
     in admitting two sticks found near bodies of victims. -- Where
     the trial court did not abuse its discretion in admitting into
     evidence two sticks found near the bodies of the victims where
     it stated that they were relevant and admissible because one
     of the sticks was jabbed down in the water and had a shirt
     belonging to one of the victims wrapped around it; the other
     was found near the bodies; one contained carving; and both had
     distinguishing marks because it appeared that someone had
     removed the bark; the trial court noted that the medical
     examiner testified that the victims' head injuries were
     consistent with blunt trauma similar to that which would have
     been caused by sticks like these; the reasons given by the
     trial court were sufficient to support its ruling on
     relevance. 

67.  Trial -- jury admonition was sufficient -- mistrial is extreme
     remedy. -- An admonition is sufficient to cure any possible
     prejudice that results from an inadvertent reference to a co-
     defendant's plea of guilty; appellant Echols made neither a
     showing nor a convincing argument that the trial court abused
     its discretion in finding sufficient its admonition to the
     jury to ignore a police officer's reference, elicited by
     defense counsel, to an accomplice's statement; a mistrial is
     an extreme remedy that should only be granted when justice
     cannot be served by continuing the trial.

68.  Jury instructions -- trial court correctly gave accomplice
     instruction -- supported by evidence. -- The trial court
     correctly gave the accomplice instruction because there was
     evidence from which the jury could reasonably find that both
     defendants said they had killed the three children; fibers
     from clothing found in both defendants' homes were similar to
     fibers found on the victims' clothing; the description of a
     person who was seen with appellant Echols the night of the
     murders, also fit the description of appellant Baldwin;
     appellants were best friends and spent two or three hours
     together a day; a knife similar to one Echols had owned was
     found near Baldwin's residence; sticks similar to the ones
     both had been seen carrying previously were found at the
     scene; two different types of knots were used to tie the
     victims; there were three victims, and there was sufficient
     evidence from which a jury could have concluded that the
     murders were not committed by one person; if there is some
     evidence to support an instruction, it is appropriate for a
     trial court to give it.

69.  Constitutional law -- death penalty is not cruel and unusual
     punishment. -- The supreme court adhered to its prior
     holdings, and those of the United States Supreme Court, that
     the death penalty is not cruel and unusual punishment;
     sentencing within the statutory limits is not cruel and
     unusual punishment.

70.  Constitutional law -- statutory-overlapping argument rejected.
     -- Adhering to its prior holdings, the supreme court rejected
     appellant Echols's argument that the elements of capital
     murder and first-degree murder entailed a statutory overlap.

71.  Criminal law -- death sentence -- Ark. Code Ann.  5-4-603
     does not contain binding instruction -- no error in denying
     motion to declare statute unconstitutional. -- Arkansas Code
     Annotated  5-4-603 does not require a mandatory death
     sentence but instead provides specified criteria that must be
     fully satisfied before the death sentence can be imposed; the
     wording of Ark. Code Ann.  5-4-603 and Arkansas case law
     applying the statute make it clear that the statute does not
     contain a binding instruction; consequently, the trial court
     did not err in denying appellant Echols's motion to declare
     Ark. Code Ann.  5-4-603 unconstitutional.

72.  Constitutional law -- statutory "especially cruel or depraved"
     aggravating circumstance not void for vagueness. -- The trial
     court correctly denied appellant Echols's motion to declare
     unconstitutionally vague Ark. Code Ann.  5-4-604(8), which
     concerns the aggravating circumstance of committing capital
     murder in "an especially cruel or depraved manner"; the
     statute included language substantially similar, if not
     identical, to language upheld as constitutional by the United
     States Supreme Court.
73.  Constitutional law -- statutory "especially cruel or depraved"
     aggravating circumstance not unconstitutional as applied to
     appellant Echols. -- The supreme court held that Ark. Code
     Ann.  5-4-604(8) was not unconstitutional as applied to
     appellant Echols where there was substantial evidence to
     support the jury's determination that the murders were
     committed in an especially cruel or depraved manner.

74.  Criminal law -- supreme court no longer conducts
     proportionality reviews of death sentences no longer
     conducted. -- The supreme court no longer conducts
     proportionality reviews of death sentences because comparative
     proportionality review is not constitutionally mandated in
     every case in which the death sentence is imposed; the
     bifurcated proceeding in which the jury is provided with
     information on aggravating and mitigating circumstances and
     with standards in the use of that information provides a
     statutory check on arbitrariness; additionally, appellate
     review includes a review of the aggravating and mitigating
     circumstances presented to the jury and a harmless-error
     review of the jury's findings.

75.  Attorney & client -- no showing that appellant was prejudiced
     by State's failure to pay his attorney's fees by time
     appellate brief was filed. -- Although the supreme court could
     have summarily dismissed, for failure to cite authority or
     make a convincing argument, appellant Echols's contention that
     the State's failure to pay his attorneys by the time the
     appellate brief was filed violated his right to counsel, due
     process, and equal protection, the court reached the merits
     because the penalty was death; the supreme court will not
     reverse a conviction on the basis of the constitutional
     inadequacy of the attorney's fee absent a showing that the
     defendant was prejudiced by the inadequacy of the fee; here,
     there was no showing that appellant was prejudiced in any
     manner by the State's failure to pay his attorneys' fees by
     the time he filed his appellate brief.

76.  Appeal & error -- cumulative-error argument not preserved --
     plain-error rule not employed. -- Although both appellants
     asserted that the trial court committed cumulative reversible
     error, neither preserved a cumulative-error argument because
     neither argued the issue to the trial court; even under Ark.
     Sup. Ct. R. 4-3(h), the supreme court does not employ the
     plain-error rule.

77.  Jury -- impartiality -- deference to trial court -- jurors'
     assurances of objectivity supported refusal to grant mistrial.
     -- In matters involving impartiality of jurors, the supreme
     court has consistently deferred to the trial court's
     opportunity to observe jurors and gauge their answers in
     determining whether their impartiality was affected; when the
     record reflects, as it did here, that the trial court received
     assurance from jurors that they could maintain their
     objectivity, the supreme court has held that refusal to grant
     a mistrial rests on solid footing; the trial court did not
     abuse its discretion in refusing to grant the extreme remedy
     of a mistrial.

78.  Appeal & error -- trial court erred in discussing reported
     threats with foreman and juror out of presence of counsel --
     no prejudice resulted. -- The trial court committed error in
     initially discussing reported threats with the jury foreman
     and a juror out of the presence of counsel, but, where the
     trial court subsequently notified counsel that the discussions
     had taken place and then had counsel present when the jurors
     were questioned, there was no prejudice.

79.  Appeal & error -- argument raised for first time on appeal not
     considered -- appellant Baldwin received requested relief. --
     Where appellant Baldwin contended that the trial court should
     have denied the State a continuance for completion of
     laboratory testing of a blood-spotted necklace because the
     prosecutor did not file an affidavit as required by Ark. Code
     Ann.  16-63-402(a), the supreme court noted that the argument
     was not made to the trial court and that it would not consider
     it for the first time on appeal; moreover, appellant Baldwin
     was allowed to poll the jury, thus receiving the relief he
     requested, and, in any event, he did not suffer prejudice
     because the necklace and evidence about the blood was not put
     before the jury.

80.  Criminal procedure -- prosecutorial subpoena power discussed -
     - appellant Baldwin made no showing of abuse. -- The
     prosecutor's subpoena power granted under Ark. Code Ann.  16-
     43-212 was passed by the General Assembly to implement the
     power of prosecutors to bring criminal charges by information;
     it was designed to take the place of questioning by a grand
     jury; the statute's emergency clause states that it was
     enacted to enable prosecutors to "properly prepare criminal
     cases"; the prosecutor may use the subpoena power to
     investigate and prepare for trial as long as the power is not
     abused; the supreme court will reverse a case in which a
     prosecutor abuses the subpoena power; appellant Baldwin made
     no showing of abuse where all he proved was that the
     prosecutor subpoenaed three witnesses who did not testify at
     trial and subpoenaed his school records; the trial court's
     finding that the subpoenas were for investigation and
     preparation and did not amount to an abuse of the power was
     not in error.

81.  Appeal & error -- hearing argument made for first time on
     appeal -- appellant not entitled to new trial because he did
     not get hearing. -- Appellant Baldwin advanced his new-trial
     argument that the trial court was required to hold a hearing
     under Ark. R. Crim. P. 36.22 for the first time on appeal, and
     a party cannot raise an argument for the first time on appeal;
     even had it been argued, appellant would not be entitled to a
     new trial solely because he did not get a hearing.

82.  Courts -- disqualification -- within trial court's discretion
     -- appellant showed neither bias nor prejudice. -- The
     decision to disqualify is within the trial court's discretion,
     and the supreme court will not reverse the exercise of that
     discretion without a showing of abuse; an abuse of discretion
     can be shown by proving bias or prejudice, but appellant
     Baldwin showed neither bias nor prejudice.


     Appeal from Craighead Circuit Court; David Burnett, Judge;
affirmed.
     Val P. Price and W. Scott Davidson, for appellant Damien Wayne
Echols.
     Ford & Wadley, by: Paul N. Ford and George R. Wadley, Jr., for
appellant Charles Jason Baldwin.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., and Vada Berger, Asst. Att'y Gen., for appellee.

     Robert H. Dudley, Justice.
     Damien Echols and Jason Baldwin were convicted of the capital
murders of Michael Moore, Christopher Byers, and Steve Branch.  For
each of the capital murders, appellant Echols was sentenced to
death, and appellant Baldwin was sentenced to life imprisonment
without parole.  Both appellants appeal from their convictions.
Echols separately appeals the death sentences imposed upon him.  We
affirm in full the judgments of conviction.
     Michael, Christopher, and Steve were eight years old, in the
second grade, in the same Cub Scout troop, and often played
together in their West Memphis neighborhood.  On the afternoon of
May 5, 1993, after school, Michael and Steve were riding their
bicycles while Chris was skateboarding.  Deborah O'Tinger saw the
three boys walking through her yard between 5:45 and 6:00 that
afternoon.  Her recollection was that they were pushing a bicycle. 
At about 6:00 p.m., Dana Moore, Michael's mother, saw the three
boys together.  At that time Michael was riding his bicycle. 
Between 6:30 and 6:45 Brian Woody saw four boys going into some
woods known as the Robin Hood woods.  He noticed that two of the
boys were pushing bicycles, one had a skateboard, and a fourth one
was just walking behind them.  Neither Michael, Christopher, nor
Steve returned to their homes.  Their parents called the police,
and a search was begun.
     The next morning, members of the Crittenden County Search and
Rescue Unit discovered a tennis shoe floating in a ditch just north
of Ten Mile Bayou.  The Robin Hood woods drain into Ten Mile Bayou,
and the members of the search unit knew the boys were last seen in
that area.  Detective Mike Allen walked along the ditch bank to the
place where the tennis shoe had been found.  He noticed that one
area of the ditch bank was cleared of leaves, while the rest of the
bank was covered with leaves and sticks.  He described the cleared
area on the bank as being "slick," but having "scuffs" in the
cleared-off area.  He got into the water, reached down to get the
shoe, and felt Michael Moore's body.  The corpses of Christopher
Byers and Steve Branch were subsequently found about twenty-five
feet downstream.  Policeman John Moore, who was also there, said
there was blood in the water, but none on the bank.  Detective Bryn
Ridge was also present and helped recover the boys' bodies.  He
collected the victims' clothes, three tennis shoes, and a Cub Scout
cap that was floating in the water.  He found a stick stuck in the
mud that had one of the boy's shirts wrapped around the end that
was stuck down in the mud.  He dislodged another stick as he was
removing the corpse of Michael Moore.      
     All three corpses had their right hands tied to their right
feet, and their left hands tied to their left feet.  Black shoe
laces and white shoe laces were used as ligatures.  Michael Moore's
body had wounds to the neck, chest, and abdominal regions that
appeared to have been caused by a serrated knife.  There were
abrasions over his scalp that could have been caused by a stick.
Dr. Frank Peretti, a State medical examiner, testified that there
was bruising and discoloring comparable to that frequently seen in
children who are forced to perform oral sex.  He testified that
there were defensive wounds to the hands and arms.  Moore's anal
orifice was dilated, and the rectal mucosa was reddened.  Dr.
Peretti testified this injury could have come from an object being
placed in the anus.  Finally, Dr. Peretti testified that there was
evidence that Moore was still alive when he was in the water, as
there was evidence of drowning.
     Steve Branch's corpse had head injuries, chest injuries,
genital-anal injuries, lower extremity injuries, upper extremity
injuries, and back injuries.  The body had multiple, irregular,
gouging wounds, which indicated that he was moving when he was
stabbed.  The anus was dilated.  Penile injuries indicated that
oral sex had been performed on him.  There was also evidence that
he, too, had drowned.
     Christopher Byers's corpse also had injuries indicating that
he had been forced to perform oral sex.  His head had scratches,
abrasions, and a punched-out area on the skin, and one eyelid had
a contusion.  The back of the neck had a scrape.  The inner thighs
had diagonal cuts on them.  The back of the skull had been struck
with a stick-like, broomstick-size, object.  The skin of the penis
had been removed, and the scrotal sac and testes were missing. 
There were cuts around the anus, and the hemorrhaging from those
cuts indicated he was still alive when they were made.  Many of the
cuts were made with a serrated blade knife.  Byers did not drown;
he bled to death.  
     The boys' bicycles were found nearby.    
     On May 10, four days after the bodies were found, the police
had not solved the cases.  When Detective Bryn Ridge questioned
Echols, he asked him how he thought the three victims died. 
Ridge's description of Echols's answer is abstracted as follows:
     He stated that the boys probably died of mutilation, some guy
     had cut the bodies up, heard that they were in the water, they
     may have drowned.  He said at least one was cut up more than
     the others.  Purpose of the killing may have been to scare
     someone.  He believed that it was only one person for fear of
     squealing by another involved. 
At the time Echols made the statement, there was no public
knowledge that one of the children had been mutilated more severely
than the others.  
     On June 3, or almost one month after the murders, Detective
Mike Allen asked Jessie Lloyd Misskelley, Jr., about the murders. 
Misskelley was not a suspect at the time, but Echols was, and it
was thought that Misskelley might give some valuable information
about Echols.  Detective Allen had been told all three engaged in
cult-like activities.  Misskelley made two statements to the
detective that implicated Echols and Baldwin, as well as himself. 
The statements can be found in Misskelley v. State, 323 Ark. 449,
459-61, 915 S.W.2d 702, 707-08 (1996). 
     Misskelley, age seventeen, Echols, age nineteen, and Baldwin,
age sixteen, were jointly charged with the capital murders of
Moore, Byers, and Branch.  Misskelley moved for a severance from
Echols and Baldwin, and the trial court granted the severance. 
Misskelley was tried and convicted of first-degree murder in the
death of Michael Moore, and second-degree murder in the deaths of
Steve Branch and Christopher Byers.  The judgments of conviction
were affirmed.  Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702
(1996).  Appellants Echols and Baldwin were jointly tried in this
case.  In the guilt-innocence phase of the trial, the jury found
both Echols and Baldwin guilty of the capital murders of all three
victims.  In the penalty phase of the trial, the jury imposed death
as the punishment for Echols and fixed life imprisonment without
parole as the punishment for Baldwin.  The trial court entered
judgments of conviction that imposed the sentences set by the jury. 
     Echols's and Baldwin's arguments together contain forty-four
points of appeal, and some of those points have subpoints.  Some of
the points of appeal are made jointly by both appellants, but many
are individual arguments.  For clarity, we group the arguments into
seven general categories.
              Sufficiency of the Evidence Arguments
     Echols questions the sufficiency of the evidence to convict
him of the three capital murders.  In one of his arguments, he
contends that for circumstantial evidence to be sufficient, it must
exclude every reasonable hypothesis, and cites as authority Traylor
v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).  Before narrating
the testimony of his guilt, we again emphasize, as we have often
done, that although the jury should be instructed, as it was here,
that circumstantial evidence must be consistent with the guilt of
the defendant and inconsistent with any other reasonable
conclusion, AMI Crim. 106, this is not the standard by which we
review the evidence.  Our responsibility is to determine whether
the verdict is supported by substantial evidence, which means
whether the jury could have reached its conclusion without
resorting to speculation or conjecture.  Cassell v. State, 273 Ark.
59, 616 S.W.2d 485 (1981).  The jury must be convinced of the
accused's guilt beyond a reasonable doubt, but we, not having had
the advantage of seeing and hearing the witnesses, are guided by
the substantial evidence rule.  Cassell, 273 Ark. at 62, 616 S.W.2d  
at 486-87.  
     Moreover, two witnesses testified that they overheard Echols
state that he killed the three boys, and this was direct evidence. 
A confession is sufficient to sustain a conviction if it is
accompanied by other proof that the offense was committed by
someone.  Ark. Code Ann.  16-89-111 (1987); Leshe v. State, 304
Ark. 442, 304 S.W.2d 522 (1991).  
     The substantial evidence of Echols's guilt is as follows.
Anthony and Narlene Hollingsworth were well acquainted with Echols
and testified that they saw Echols and his girlfriend, Domini Teer,
walking after 9:30 on the night of the murders near the Blue Beacon
Truck Stop, which is near Robin Hood woods where the bodies were
found.  The witnesses testified that Echols had on a dark-colored
shirt and that his clothes were dirty.  This evidence placed Echols
in dirty clothes near the scene at a time close to the murders. 
Although not material to this point, other evidence established
that Domini Teer might be confused with Baldwin as both had long
hair and were of slight build.
     Twelve-year-old Christy VanVickle testified that she heard
Echols say he "killed the three boys."  Fifteen-year-old Jackie
Medford testified that she heard Echols say, "I killed the three
little boys and before I turn myself in, I'm going to kill two
more, and I already have one of them picked out."  The testimony of
these two independent witnesses was direct evidence of the
statement by Echols.  These witnesses were cross-examined by
Echols's counsel, and it was the jury's province to weigh their
credibility.
     Lisa Sakevicius, a criminalist from the State Crime
Laboratory, testified that she compared fibers found on the
victim's clothes with clothing found in Echols's home, and the
fibers were microscopically similar. 
     Dr. Frank Peretti, a State Medical Examiner, testified that
there were serrated wound patterns on the three victims.  On
November 17, 1993, a diver found a knife in a lake behind Baldwin's
parents' residence.  The large knife had a serrated edge and had
the words "Special Forces Survival Roman Numeral Two" on the blade. 
Dr. Peretti testified that many of the wounds on the victims were
consistent with, and could have been caused by, that knife. 
     Deanna Holcomb testified that she had seen Echols carrying a
similar knife, except that the one she saw had a compass on the
end.  James Parker, owner of Parker's Knife Collector Service in
Chattanooga, Tennessee, testified that a company distributed this
type of knife from 1985-87.  A 1987 catalog from the company was
shown to the jury, and it had a picture of a knife like the knife
found behind Baldwin's residence.  The knife in the catalogue had
a compass on the end, and it had the words "Special Forces Survival
Roman Numeral Two" on the blade.  The jury could have made a
determination whether the compass had been unscrewed, and, in
assessing the probativeness of the location of the knife introduced
at trial, heard ample evidence that Echols and Baldwin spent much
time together.  Therefore, it could have reasonably concluded that
Echols or Baldwin disposed of the knife in the lake.
      The State's theory of motive was that the killings were done
in a satanic ritual.  On cross-examination, Echols admitted that he
has delved deeply into the occult and was familiar with its
practices.  Various items were found in his room, including a
funeral register upon which he had drawn a pentagram and upside-
down crosses and had copied spells.  A journal was introduced, and
it contained morbid images and references to dead children.  Echols
testified that he wore a long black trench coat even when it was
warm.  One witness had seen Echols, Baldwin, and Misskelley
together six months before the murders, wearing long black coats
and carrying long staffs.  Dr. Peretti testified that some of the
head wounds to the boys were consistent with the size of the two
sticks that were recovered by the police.  
     Dr. Dale Griffis, an expert in occult killings, testified in
the State's case-in-chief that the killings had the "trappings of
occultism."  He testified that the date of the killings, near a
pagan holiday, was significant, as well as the fact that there was
a full moon.  He stated that young children are often sought for
sacrifice because "the younger, the more innocent, the better the
life force."  He testified that there were three victims, and the
number three had significance in occultism.  Also, the victims were
all eight years old, and eight is a witches' number.  He testified
that sacrifices are often done near water for a baptism-type rite
or just to wash the blood away.  The fact that the victims were
tied ankle to wrist was significant because this was done to
display the genitalia, and the removal of Byers's testicles was
significant because testicles are removed for the semen.  He stated
that the absence of blood at the scene could be significant because
cult members store blood for future services in which they would
drink the blood or bathe in it.  He testified that the "overkill"
or multiple cuts could reflect occult overtones.  Dr. Griffis
testified that there was significance in injuries to the left side
of the victims as distinguished from the right side: People who
practice occultism will use the midline theory, drawing straight
down through the body.  The right side is related to those things
synonymous with Christianity while the left side is that of the
practitioners of the satanic occult.  He testified that the clear
place on the bank could be consistent with a ceremony. In sum, Dr.
Griffis testified there was significant evidence of satanic ritual
killings.      
     Lisa Sakevicius, the criminalist who testified about the
fibers, stated that Byers's white polka-dot shirt had blue wax on
it and that the wax was consistent with candle wax.   
     Detective Bryn Ridge testified that Echols said he understood
the victims had been mutilated, with one being cut up more than the
others, and that they had drowned.  Ridge testified that when
Echols made the statement, the fact that Christopher Byers had been
mutilated more than the other two victims was not known by the
public.  The jury could have reasonably concluded that Echols would
not have known this fact unless he were involved in some manner. 
     Echols took the witness stand, and his testimony contained
additional evidence of guilt.  When asked about his statement that
one victim was mutilated more than the others, he said he learned
the fact from newspaper accounts.  His attorney showed him the
newspaper articles about the murders.  On cross-examination, Echols
admitted that the articles did not mention one victim being
mutilated more than the others, and he admitted that he did not
read such a fact in a newspaper.
     The foregoing, together, constitutes substantial evidence of
the guilt of Damien Echols.  
     Jason Baldwin does not contend that there was insufficient
evidence of his guilt.  This is, perhaps, in part, because of the
testimony of Michael Carson, who testified that he talked to
Baldwin about the murders.  Carson's testimony, in pertinent part,
was abstracted as follows:
I said, just between me and you, did you do it.  I won't
say a word.  He said yes and he went into detail about
it.  It was just me and Jason [Baldwin].  He told me he
dismembered the kids, or I don't know exactly how many
kids.  He just said he dismembered them.  He sucked the
blood from the penis and scrotum and put the balls in his
mouth.  
     Echols, in another argument relating to sufficiency of the
evidence, contends that the verdict in the penalty phase was
erroneous because the jury refused to find, as a mitigating
circumstance, that he had no prior history of criminal activity.  
The jury was given AMI Crim. 1509, which included the mitigating
circumstance of no significant prior history of criminal activity. 
It is important to note that this mitigating factor is set out as
"no significant prior history of criminal activity," and not "no
significant prior history of prior convictions."  Ark. Code Ann. 
5-4-605(6) (Repl. 1993).  The jury found that Baldwin had no
significant history of criminal activity, but refused to make the
same finding for Echols.  This indicates that the jury carefully
weighed the evidence and determined that Echols should not be
credited with this mitigating factor.  Even so, Echols contends the
jury committed error in refusing to find that he had no significant
prior history of criminal activity.  
     Echols and the State are in dispute about our law on this
point, so we set out our applicable holdings. In Bowen v. State,
322 Ark. 483, 911 S.W.2d 555 (1995), the mitigating circumstance
sought by the defendant was mental illness.  Bowen adduced strong
evidence of mental illness, but the jury did not find mental
illness was a mitigating circumstance.  We held that even if the
evidence of the defendant's mental illness was uncontradicted, the
jury was not required to believe the defendant's evidence and was
not required to find such a mitigating circumstance.  "A jury is
not required to find a mitigating circumstance just because the
defendant puts before the jury some evidence that could serve as
the basis for finding the mitigating circumstance." Id. at 497, 917 S.W.2d   at 561. 
     In Hill v. State, 289 Ark. 387, 713 S.W.2d 223 (1986), we held
that the jury did not have to find an eighteen year old's youth was
a mitigating factor.  We quoted Giles v. State, 261 Ark. 413, 421,
549 S.W.2d 479, 483 (1977), and held that "[a]ny hard and fast rule
as to age would tend to defeat the ends of justice, so the term
youth must be considered as relative and this factor weighed in the
light of varying conditions and circumstances."  Id. at 396, 713 S.W.2d   at 237.   
     In Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977), the
jury found no mitigating circumstances.  We held that the jury did
not err in refusing to find that the defendant's youth was a
mitigating factor.  However, we held that the jury erred in failing
to find, as a mitigating factor,  the fact that the defendant
committed the crime while his capacity to conform his conduct to
the requirements of the law was impaired as a result of mental
disease or defect.  The record in Giles v. State was replete with
evidence that the defendant was an imbecile and had organic brain
syndrome "to the extent that the conclusion [was] inescapable that
the capacity of Giles to conform his conduct to the requirements of
law, when the capital felony was committed, was impaired as a
result of mental defect."  Id. at 424, 549 S.W.2d   at 485.  We
wrote, "The jury was not free to arbitrarily disregard reasonable
testimony, where other testimony is supportive, rather than
conflicting, and no questions of credibility are to be resolved,
and it cannot be said that it is physically impossible or that
there is no reasonable probability that it is true."  Id.         
     In summary, our holdings provide that a jury may generally
refuse to believe a defendant's mitigating evidence, but when there
is no question about credibility and, when, in addition, objective
proof makes a reasonable conclusion inescapable, the jury cannot
arbitrarily disregard that proof and refuse to reach that
conclusion.  Here the jury was faced with neither indisputable
credibility nor objective proof that made a reasonable conclusion
inescapable.  To the contrary, there was substantial evidence of
Echols's history of prior criminal activity.   
     Echols admitted on cross-examination in the penalty phase of
the trial that he had an altercation with his father in which a
knife was involved and the police were called.  He admitted he was
hospitalized that same day, and when his father came to the
hospital, "I told him I would eat him alive."  He admitted he tried
"to claw the eyes out" of a student.  Perhaps the most compelling
testimony on this point came from the cross-examination of  Dr.
James Moneypenny, a psychologist who testified for Echols.  Dr.
Moneypenny admitted that Echols had "an all powerful God-like image
of himself" and that his parents were concerned with his satanism
or devil worship.  Dr. Moneypenny admitted that Echols's medical
records contained the following notations of statements by Echols:
          I want to go where the monsters go.  Pretty much hate the
     human race.  Relates that he feels people are in two classes,
     sheep and wolves.  Wolves eat sheep.
          Echols explains that he obtains his powers by drinking
     blood of others.  He typically drinks the blood of a sexual
     partner or a ruling partner.  This is achieved by biting or
     cutting.  It makes me feel like a god.
          Echols describes drinking blood as giving him more power
     and strength ... He has also agreed to continue to discuss his
     issues with power and control as related to his practice of
     rituals. 
          I just put it all inside.  Describes this as more than
     just anger like rage.  Sometimes he does `blow up.' Relates
     that when this happens, the only solution is to hurt someone. 
     Echols reports being told in the hospital that he would be
     another Charles Manson or Ted Bundy.  When questioned on his
     feelings he states, "I know I'm going to influence the world. 
     People will remember me."
The jury, having heard the foregoing, did not arbitrarily refuse to
find that Echols had no significant history of criminal activity.
                       Severance Arguments
     The Prosecuting Attorney jointly charged Misskelley, Echols
and Baldwin with the three capital murders.  The trial court
granted a severance to Misskelley, and he was tried and convicted. 
That left Echols and Baldwin jointly charged.  Prior to their
scheduled trial, both moved for severance, and each renewed the
motions at various times during the trial, including at the close
of the State's case.  Neither argued for a severance of the three
capital murder charges; rather, each argued that he should be
granted a separate trial from the other.  The trial court denied
all of the motions.  Both Echols and Baldwin assign as error the
trial court's rulings denying them separate trials.  
     Joinder and severance procedure is governed by Ark. R. Crim.
P. Article VI.  These rules are calculated to promote the
expeditious disposition of criminal cases without putting undue
strain on prosecutorial or judicial resources, but, at the same
time, without causing prejudice to joint defendants.  Rule 21.2
provides for the joinder of defendants when the crimes were part of
a joint scheme or plan and so the capital murder charges were
properly joined.  The issue is whether the trial court erred in
refusing to grant a severance for the accuseds' trials.  Rule 22.3
provides that a trial court shall grant a severance if it is deemed
appropriate to promote a fair determination of the guilt or
innocence of one of the defendants.     
     Trial courts have discretion to grant or deny a severance and
on appeal we will not disturb the ruling in the absence of an abuse
of that discretion.  Hallman v. State, 264 Ark. 900, 575 S.W.2d 688
(1979).  In McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983),
we held that, in determining whether to grant a severance, a trial
court should weigh: (1) whether the defenses of the defendants are
antagonistic; (2) whether it is difficult to segregate the
evidence; (3) whether there is a lack of substantial evidence
implicating one defendant except for the accusation of the other
defendant; (4) whether one defendant could have deprived the other
of all peremptory challenges; (5) whether one defendant will be
compelled to testify if the other does so; (6) whether one
defendant has no prior criminal record and the other has; (7)
whether circumstantial evidence against one defendant appears
stronger than against the other. Id. at 638, 648 S.W.2d   at 57. 
Subsequently, in Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421
(1983), we said that McDaniel does not say that in every case, even
in capital cases, where antagonistic defenses are presented the
trial court must grant a severance, but merely that when defenses
are antagonistic the trial court must be particularly careful that
neither defendant is "unduly jeopardized" by a joint trial. Id. at
158-59, 655 S.W.2d   at 422.  More recently, we have written that the
presence of any one of the factors does not necessarily require
severance, as there are multiple factors to consider.  Rockett v.
State, 319 Ark. 335, 891 S.W.2d 366 (1995).       
     Almost all of the factors clearly weigh in favor of a joint
trial.  The joint trial was lengthy, lasting seventeen days, and
perhaps separate trials would have taken twice as long and required
twice as many jurors; the evidence was not difficult for the jury
to segregate; the evidence was not significantly stronger against
one defendant than the other; the testimony of one did not compel
the other to testify; and there was no significant disparity in
criminal records of the defendants.  The trial judge made various
comments when denying the severance motions, and those comments
reflect that he thought the jurors could distinguish the evidence
and apply the law intelligently to each offense and to each
defendant.  
     The only argument that is of any consequence is the argument
about antagonistic defenses.  Echols and Baldwin argue that they
had conflicting trial strategies, and, as a result, their defenses
were antagonistic.  The State's response is that antagonistic
defenses arise only when each defendant asserts his innocence and
accuses the other of the crime.  Certainly, we have held that
antagonistic defenses arise when each defendant asserts his
innocence and accuses the other of the crime, and the evidence
cannot be successfully segregated.  Cooper v. State, 324 Ark. 135,
140, 919 S.W.2d 205 (1996); Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990); and McDaniel v. State, supra.  But those are not
the facts before us.  Closer to the facts of this case, but not
wholly dispositive of the argument, we have held that when there
was no reason the jury could not have believed both defenses, the
defenses are not antagonistic.  Cooper v. State, 324 Ark. at 140,
919 S.W.2d   at 209.  Other courts have similarly held that where
there was an evidentiary basis for the jury to decide each
defendant's case separately, there is no error in denying severance
just because of inconsistent strategies.  E.g., United States v.
Jenkins, 496 F.2d 57, cert. denied, 420 U.S. 925 (1974); see also
Wade R. Habeeb, Annotation, Antagonistic Defenses as Ground for
Separate Trials of Codefendants in Criminal Case, 82 A.L.R.3d 245,
264 (1978).
     Correspondingly, the Fifth Circuit Court of Appeals has
written:
     [W]e hold that the defense of a defendant reaches a level of
     antagonism (with respect to the defense of a co-defendant)
     that compels severance of the defendant, if the jury, in order
     to believe the core of the testimony offered on behalf of that
     defendant, must necessarily disbelieve the testimony offered
     on behalf of this co-defendant.
United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. 1981).
     The Eleventh Circuit Court of Appeals followed the Fifth
Circuit's statement and applied it with the following four-step
analysis:
     (1) Do the alleged conflicts with co-defendant's defenses go
     to the essence of the appellant's defense?
     (2) Could the jury reasonably construct a sequence of events
     that accommodates the essence of both defendants' defenses?
     (3) Did the conflict subject the appellant to compelling
     prejudice?
     (4) Could the trial judge ameliorate the prejudice?
Smith v. Kelso, 863 F.2d 1564, 1568 (11th Cir. 1989).  
     In summary, unless conflicting strategies go to the essence of
co-defendants' defenses, and the conflicting strategies are so
great that both defendants' defenses cannot be accommodated by the
jury, a trial court is not required to grant a severance.  Here,
the alleged conflicting strategies did not reach that level.  The
defense of each, in effect, was that he did not commit the crimes. 
Echols presented an alibi defense that he was visiting friends with
his parents when the murders took place.  Baldwin likewise
presented an alibi defense that relied upon the fact that he was at
school the day of the murders, was at home by ten o'clock that
night, and was never placed near the scene.  Echols's arguments
about conflicting strategy because of pretrial publicity and the
reason he took the name "Damien" did not go to the essence of his
defense and did not conflict with Baldwin's defense.  Similarly,
Baldwin's complaints that Echols was placed near the scene, but he
was not seen there, do not go to the core of his defense that he
had nothing to do with the crimes.  The contention that Baldwin
could have possibly argued that Echols placed the knife behind his
trailer does not relate to the core of his general denial.  Baldwin
contends he was entitled to a severance because Echols testified at
trial, but nowhere in Echols's testimony did he implicate Baldwin. 
These alleged "conflicts in strategy" did not subject either
defendant to a compelling prejudice.  
     The only alleged conflicts in strategy that are of any
significance are Echols's allegation that Baldwin said that he was
under the influence of Echols, and the complaints of both
appellants that their strategy conflicted on how to deal with the
evidence of the occult activities.  Echols's argument about Baldwin
stating that he acted under his influence is factually inaccurate. 
That statement was made during counsel's closing argument, and
counsel actually said that Baldwin might be vulnerable to a finding
of guilt by association, since he and Echols were friends.  This
statement by counsel, apparently made in derision of the
prosecution, clearly did not cause a conflict with Echols to the
extent that it mandated severance.  Thus, we are left with only the
complaints about strategy in how to deal with the evidence of
occult activities.  Echols contends that his strategy would have
been to openly admit all evidence of satanic worship in order to
show its absurdity, while Baldwin contends that he wanted to
exclude all of the evidence.  Again, this alleged difference in
strategy did not go to the general denial.  Moreover, the jury
obviously did not think the proof of occultism was absurd, and it
is doubtful that Echols would have freely admitted satanic worship
as a matter of strategy, even if he had a real choice in the
matter.  Even had the trial court granted motions for severance,
the expert testimony would have been admitted in a trial against
Echols, and it also would have been admitted against Baldwin,
because of Michael Carson's statement that Baldwin told him he
sucked blood from Christopher Byers, a satanic-type act.  In sum,
this alleged difference in strategy did not go to the essence of
either defense, did not prevent the jury from considering either
defense, did not unduly jeopardize a fair trial, and did not
mandate a severance.
      Baldwin separately argues that the trial court erred in
refusing to grant a severance when the deputy prosecutor questioned
Echols about his doodles on a piece of paper.  The argument is
procedurally barred.  Baldwin's argument to the trial court was
that he was not notified, through discovery, of the paper.  He
argues to this court, as he did to the trial court, that the
questioning, coupled with the fact that he was not provided the
paper during discovery, entitled him to a severance.  At trial the
deputy prosecutor acknowledged that the State had inadvertently
violated the discovery rules.  Baldwin responded that he would be
satisfied with a cautionary instruction to the jury that the
testimony on this point could only be used against Echols.  The
trial court gave the requested cautionary instruction.  Baldwin's
counsel responded, "That satisfies us, Your Honor."  Baldwin's
counsel again requested a severance, but did not mention the piece
of paper with the doodles on it.  The trial court denied the motion
and again instructed the jury to consider the evidence only against
Echols, and not Baldwin.  Thus, Baldwin did not ask for a severance
because of admission of a piece of paper with doodles drawn on it
by Echols, and he cannot make the argument for the first time on
appeal.  Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995).  
     Baldwin next argues that his conviction should be reversed
because the trial court made a "binding commitment" to grant a
severance if Echols testified, and that Echols testified but the
trial court did not grant a severance.  In pretrial, the trial
court stated that in the event one of them testified, the other
might then be compelled to do so, and, "There's case law on that,
and the other defendant would be entitled to an immediate
mistrial." In a similar case, we held that this kind of ruling does
not amount to a "binding commitment." In Ruiz v. State, 299 Ark.
144, 772 S.W.2d 297 (1989), the trial judge told the defendants
that if a conflict developed in selection of jurors, a severance
would be granted, because "that's the law."  Id. at 151, 772 S.W.2d  
at 301.  This comment was made after the trial judge refused to
enlarge each defendant's number of peremptory challenges.  Later,
the defendants disagreed over some jurors, and moved for a
severance, which was denied.  Id.  We held that the trial judge had
not made a binding commitment, but had alluded to the law as set
forth in McDaniel v. State, which states that one factor favoring
severance is when one defendant deprives the other of peremptory
challenges.  We held that the trial court did not abuse its
discretion by denying severance when the facts had not developed to
that point.  Similarly, Echols did not implicate Baldwin when he
testified, and, as a result, the trial court did not abuse its
discretion in denying the severance. 
     Baldwin next insists that severance was required in these
capital cases as a matter of law.  Before the Arkansas Rules of
Criminal Procedure were adopted, the trial court had discretion to
grant severance of defendants in all cases except capital cases,
where they were granted severance as a matter of right under Ark.
Stat. Ann.  43-1802 (Repl. 1977).  Baldwin contends that the
statute, an initiated act, is still in effect.  To the contrary, in
McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), we held that
the cited statute had been superseded by Ark. R. Crim. P. 22, which
gives the trial court discretion to grant or deny a severance in
all cases.  Id. at 636, 648 S.W.2d   at 59.  In Hallman v. State, 264
Ark. 900, 575 S.W.2d 688 (1979), we held that since the adoption of
Ark. R. Crim. P. 22, capital defendants no longer have a right to
separate trials.  Id. at 904, 575 S.W.2d   at 691.  However, in
Clines v. State, 282 Ark. 541, 543, 669 S.W.2d 883, 885 (1984), in
dicta in a per curiam opinion, the court expressed doubt as to
whether the act had been superseded.  We should not have expressed
any doubt about the matter in Clines because our holdings in
McDaniel and Hallman are clear that the act has been superseded by
Ark. R. Crim. P. 22.  Moreover, Ark. Stat. Ann.  43-1802 has been
repealed.  The General Assembly adopted the Arkansas Code of 1987
Annotated by Act 267 of 1987.  Section 4(a) of Act 267, codified as
Ark. Code Ann.  1-2-103(a) (1987), specifically provides that
"[a]ll acts, codes and statutes, and all parts of them and all
amendments to them of a general and permanent nature in effect on
December 31, 1987 are repealed," with some exceptions not material
to this case.  Section 4(a) of Act 267 repealed Ark. Stat. Ann. 
43-1802 and did not reenact it.  Ninety-seven of the one hundred
members of the House voted for Act 267, and thirty-three of the
thirty-five members of the Senate voted for it.  2 Journal of the
House 1699 (1987); 3 Journal of the Senate 2134-35 (1987). Thus,
Act 267 had the two-thirds vote needed from each chamber of the
General Assembly to repeal an initiated act under Amendment 7.
                Suppression of Evidence Arguments
     Echols and Baldwin make a number of arguments contending that
the trial court erred in denying their motions to suppress
evidence. The facts underlying the arguments are recited as
follows.  On June 3, 1993, nighttime search warrants were executed
for the residences of Echols and Baldwin.  The warrants each
authorized a search for the following: 
black t-shirt; blue jeans with holes in knees; lace-up
boots; briefcase and contents of briefcase with
photographs of young white males; knives; any items
contained in a list of items to compare with Arkansas
Crime Lab Evidence, which consisted of "blue, green red,
black, and purple fibers, blue, yellow, red, paint or
plastic, and blue, red waxing type substance"; and cult
or Satanic materials.  
     A red robe, fifteen black t-shirts, and a white t-shirt were
seized from Baldwin's house.  Two notebooks that appeared to have
Satanic or cult writings in them, a red t-shirt, blue jeans, and
boots were taken from Echols's residence.
     Both appellants make a number of suppression arguments.  The
first of these is that Detective Bryn Ridge's affidavit and
testimony supporting the warrant were false, and consequently the
trial court erred in refusing to suppress the evidence seized from
the searches.  
     In United States v. Leon, 468 U.S. 897 (1984), the Supreme
Court held that the good-faith exception does not apply when the
issuing magistrate was misled by an affiant who either knew the
information given was false or acted in reckless disregard of its
truth or falsity.  Id. at 923.  Franks v. Delaware, 438 U.S. 154
(1978), provides the test for determining when a warrant falls
outside the Leon good-faith exception.  Under Franks v. Delaware,
a warrant should be invalidated if a defendant shows by a
preponderance of the evidence that: (1) the affidavit contained a
false statement which was made knowingly, intentionally, or
recklessly by the affiant; and (2) the false statement was
necessary to a finding of probable cause.  Id. at 155-56.  Further,
if such a finding is made, the false material should be excised and
the remainder of the warrant examined to determine if probable
cause still exists.  Id.  If the truthful portion of the warrant
makes a sufficient showing of probable cause, the warrant will not
be invalidated.  Id.  The burden of showing that an affiant
knowingly and recklessly included a false statement is upon the
challenger of the affidavit.  438 U.S.  at 171.
     In Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), we held
that the standard set out in Franks v. Delaware requires a knowing
intent to deceive, or a reckless disregard of truth.  Id. at 175,
862 S.W.2d   at 828.  "Matters omitted must be material circumstances
which contradict or dispel the incriminating factors in the
affidavit and which render what is in the affidavit effectively
false because of their nondisclosure."  Biggers v. State, 317 Ark.
414, 421, 878 S.W.2d 717, 721 (1994).  
     The affidavit of Detective Ridge contained the false
statements that appellants contend invalidate the warrant.  In the
affidavit, Detective Ridge stated that Jessie Misskelley told him
the victims were tied with brown rope when they were actually tied
with shoestrings, and that the killings took place in the
afternoon.  The latter statement is of no consequence because the
record reveals that the issuing magistrate, Judge Rainey, expressed
some concern about the time discrepancy, and, as a result,
Inspector Gary Gitchell testified under oath that he had taken an
additional statement from Misskelley, and, in it, Misskelley said
the crimes took place around 7:00 p.m.       
     Even if these two statements were false in material matters,
and even if Detective Ridge knew them to be false, the rest of the
warrant still made a sufficient showing for probable cause.  See
Franks v. Delaware, supra.  The warrant contained a sufficient
showing of the facts that Misskelley said he, Baldwin, and Echols
committed the murders; that Misskelley had knowledge of details of
the crime not known to the public; and the statement that evidence
connecting them to the crime could be found in the homes.
     Baldwin separately argues that Detective Ridge knowingly and
intentionally misrepresented the truth when he swore that Echols,
Baldwin, and Misskelley were members of a cult.  We summarily
dismiss this argument because Jessie Misskelley told Inspector
Gitchell that the three were in a cult, and Detective Ridge
testified at the suppression hearing that he had learned from other
sources that the three were in a cult.  Thus, Baldwin did not meet
his burden of showing that Detective Ridge knowingly and
intentionally stated a falsehood.  See Franks v. Delaware, supra.
     Echols and Baldwin next contend that the circuit judge erred
in finding that the municipal judge who issued the warrants was
neutral and detached in determining whether to issue the warrants.
Detective Bryn Ridge testified that Judge Rainey informed the
officers "as to the elements that needed to go in the affidavit in
order for it to be a legal document."  Judge Rainey testified that
he advised the officers that, after the search warrant had been
executed, they should make sure that they wrote out everything they
did on the affidavit. 
     The general rule for the application of the Fourth Amendment
exclusionary rule to evidence seized under an invalid warrant is
set out in United States v. Leon, 468 U.S. 897 (1984).  There, the
Court carved out the good-faith exception to the requirement of a
valid warrant.  Id. at 922.  One of the errors that an officer's
good faith will not cure is that which occurs when the magistrate
wholly abandons his detached and neutral judicial role.  Id.  When
a judicial officer becomes so involved in the investigation as to
be deemed a participant, he has abandoned this role.  Lo-Ji Sales,
Inc. v. New York, 442 U.S. 319 (1979).  For example, when a
magistrate accompanies the police to the scene and orders seizure
of items, his objectivity is lost.  Id. at 327.  Likewise, when a
magistrate gives the prosecutor directives about areas of inquiry
or grants immunity to witnesses, he has lost his objectivity.  See
State v. Guhl, 140 Ga. App. 23, 230 S.E.2d 22 (1976).  Here, the
proof showed that the issuing magistrate stated the elements
necessary for a valid warrant, and that included telling the
officers to record on the warrant the actions they took when they
executed the warrant.  On such proof we cannot say that the ruling
of the trial court was clearly in error.  Hudson v. State, 316 Ark.
360, 872 S.W.2d 68 (1994).
     Both Echols and Baldwin contend that the trial court erred in
ruling that Jessie Misskelley was a reliable informant.  Again, we
cannot say that the trial court's ruling was clearly against the
preponderance of the evidence.  Hudson v. State, supra.  Even
though Misskelley's initial statement was in error about the
ligatures and the time of the killings, he corrected the latter and
he clearly knew that Christopher Byers had been castrated and that
one of the victims had been cut in the face.  This information was
not known by the public at the time he supplied this information. 
Further, Detective Ridge corroborated these statements by his own
knowledge gained at the crime scene, and through contacts at the
state crime laboratory.  Even more important, Misskelley implicated
himself in the murders because he admitted that Michael Moore
attempted to escape from the crime scene, and he chased and caught
Moore and brought him back.  Thus, the finding that Misskelley was
a reliable informant was not clearly in error.  See Wilson v.
State, 317 Ark. 548, 878 S.W.2d 755 (1994), rev'd on other grounds,
115 S. Ct. 1914 (1995); Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).
     Both Echols and Baldwin next contend that the warrant did not
describe with particularity the items to be seized.  We quickly
dismiss the argument.  All of the items to be seized were described
with particularity, except the fibers to be seized for the crime
laboratory, and it is difficult to think of a way the warrant could
have been more specific than to describe, as it did, the blue,
green, red, black, and purple fibers; blue, yellow, red, paint or
plastic; and blue or red waxing-type substance.  
     Both appellants also contend that the warrant authorized a
"dragnet" fishing expedition for "mere evidence."  In Warden v.
Hayden, 387 U.S. 294 (1967), the Supreme Court held that the Fourth
Amendment allows the seizure of not only the implements of the
crime, but also allows the seizure of mere evidence providing there
is a probable cause to believe the evidence sought will aid in a
conviction.
     Echols and Baldwin next contend that the trial court erred in
refusing to suppress the evidence seized because it was a nighttime
search.
     The nighttime clause in the affidavit stated:
Your affiant prays that this SEARCH WARRANT be
approved for both night time and day time
service for the following reasons:
A. The objects to be searched for are in
imminent danger of removal, could be destroyed
or disposed of as suspects are close friends
and members of a close-knit cult group.  It is
extremely likely that information of the
detention of one of the cult members will
result in the immediate destruction of items
of evidence, or place such objects to be
seized in danger of imminent removal.  One of
the suspects is in custody at the time of the
execution of the affidavit.
     Rule 13.2 of the Arkansas Rules of Criminal Procedure provides
for nighttime searches as follows:
Except as hereafter provided, the search
warrant shall provide that it be executed
between the hours of six a.m. and eight p.m.,
and within a reasonable time, not to exceed
sixty (60) days.  Upon a finding by the
issuing judicial officer of reasonable cause
to believe that:
                   . . . .
     (ii) the objects to be seized are in
danger of imminent removal; . . . .
Ark. R. Crim. P. 13.2(c)(ii).  
     In reviewing whether the requirements of the rule were met, we
conduct an independent determination based upon the totality of the
circumstances and reverse only if the trial court's ruling was
clearly against the preponderance of the evidence.  Richardson v.
State, 314 Ark. 512, 863 S.W.2d 572 (1993).  The evidence presented
to the magistrate from whom a nighttime search is requested must be
of facts justifying a warrant rather than mere conclusions.  Neal
v. State, 320 Ark 489, 898 S.W.2d 440 (1995).
     Here, there were facts stated to support the conclusion that
the evidence was in danger of imminent removal.  Detective Ridge
testified at the hearing that his investigation revealed that
appellants and Misskelley were close-knit members of a cult, and,
upon Echols and Baldwin discovering that Misskelley had been taken
into custody, Echols and Baldwin were likely to destroy any
evidence that might be in their possession or at their residence,
such as photographs, knives, and clothing.  In light of this
testimony, the trial court's conclusion that the nighttime search
was justified was not against the preponderance of the evidence.
See Neal v. State, supra.
                       Evidence Arguments 
     Echols and Baldwin make numerous arguments about evidentiary
rulings throughout the trial.  Many of their objections concerned
admission of evidence regarding the occult.  The State sought to
prove that the murders were cult-related and that someone with
Echols's interest in the occult could have committed the murders. 
Baldwin argued throughout that the State had failed to connect him
with occult activity.  
     Occult activity  In one of these arguments, Echols contends
that the trial court erred when it ruled that Dr. Dale Griffis was
qualified as an expert in the field of occultism.  Echols contends
that Dr. Griffis was not qualified as an expert because he received
a Masters degree and Doctor of Philosophy degree from a university
that, although state certified, was not nationally accredited. 
Also, he wrote his dissertation with another person, and he did not
demonstrate that he had reputable training, education, and
experience.
     Qualification of expert witnesses is within the sound
discretion of the trial court and will not be reversed absent a
showing of abuse.  If there is a reasonable basis to find that the
witness has knowledge of a subject beyond that of ordinary
knowledge, the witness may be qualified as an expert.  Stout v.
State, 320 Ark. 552, 898 S.W.2d 457 (1995).  Here, proof showed
that Dr. Griffis holds an associate in arts degree and a bachelor's
degree from an accredited institution, but his advanced degrees are
from Columbia Pacific University, which is not nationally
accredited.  Another qualification was that his doctoral
dissertation was on mind control and cults and their effects on the
objectives of law enforcement.  His first experience with
nontraditional groups was in 1967, almost thirty years ago, and he
has twenty-six years of experience in law enforcement.  For short
periods of time, he worked for the Los Angeles and San Francisco
Police Departments, where he gained experience in nontraditional
groups.  He testified that he has talked to about 500 former
members of the occult and read about 300 books on the subject.  He
testified that he receives approximately sixty-five to seventy
calls a week regarding nontraditional groups, and about eighty
percent of those calls are related to satanism.  He has published
four books on the subject.  He has testified as an expert witness
in state courts in Georgia, Ohio, and Michigan; in federal court in
Ohio; and in two foreign countries.  He has lectured in twenty-
eight states and two other foreign countries.  Dr. Griffis had much
more than ordinary knowledge of nontraditional groups, the occult,
and satanism, and the trial court did not abuse its discretion in
allowing him to testify as an expert witness.     
     Echols next contends that Dr. Griffis should not have been
allowed to testify that the murders had the "trappings of
occultism" because there was no testimony that the field of
satanism or occultism is generally accepted in the scientific
community.  The argument is without merit, as the trial court did
not allow the evidence to prove that satanism or occultism is
generally accepted in the scientific community.  Rather, the trial
court admitted the evidence as proof of the motive for committing
the murders.
     In a related vein, Echols makes a two-fold argument that the
trial court erred in allowing evidence of his interest in the
occult.  He argues that the ruling violated his First Amendment
rights and that the trial court abused its discretion in
determining that the evidence was relevant and more probative than
prejudicial.
     The First Amendment argument can be quickly dismissed.  In
Dawson v. Delaware, 503 U.S. 159 (1992), the Supreme Court held
that the introduction of evidence of beliefs and associations
violates a defendant's constitutional rights when there is no
connection between those beliefs and associations and the crime. 
But the Court expressly distinguished Barclay v. Florida, 463 U.S. 939 (1983), in which it held that dissident beliefs and racial
hatred stemming from the defendant's membership in the Black
Liberation Army were relevant to the murder of a white victim, and,
as such, his First Amendment rights were not violated.  Dawson v.
Delaware, 503 U.S.  at 164.  The case at bar falls within the ambit
of Barclay v. Florida.
     Echols makes several relevancy arguments regarding physical
evidence of occult activity.  The trial court allowed the State to
introduce into evidence a journal that contained matters
handwritten and drawn by Echols.  The entries contain numerous
images of death, as well as references to rotting flesh and dead
children.  The State focused upon an entry that said "I want to be
in the middle.  In neither the black nor the white.  In neither the
wrong nor the right."  The State offered the statement to explain
the confusion expressed by the occult expert, Dr. Griffis, that
some of the symbols in one of Echols's books were from the Wiccan,
or "white magic" religion, and others from satanism, or "black
magic," and the two are not consistent.  Echols first objected on
the ground of the best-evidence rule, and the State responded that
it would supply the original.  Echols's counsel responded, "We
request that the entire book and all my client's writings be
introduced into evidence.  We object to part being taken out."  The
trial court ruled that the entire journal would be received.  Thus,
the trial court ruled in Echols's favor, and a party cannot obtain
relief from a favorable ruling.  Smith v. State, 316 Ark. 407, 872 S.W.2d 842 (1992). 
     The trial court also allowed in evidence, over Echols's
objection, items taken from Echols's room in a juvenile court
proceeding in 1992.  The items had been kept in his juvenile court
file.  These items included a dog's skull; a manual; a funeral
register upon which Echols had drawn a pentagram and upside-down
crosses and had copied various spells; a heavy-metal poster
depicting graveyards; a skateboard magazine; and pictures of
various posters.  On appeal, Echols contends that the items were
not admissible because they were not relevant and because they came
from his juvenile court file.
     The State's expert, Dr. Griffis, testified that the manner of
the killings, the age of the victims, the way the victims were
tied, the removal of genitals, and the evidence of bloodsucking
were indicative of occult activity, and he referred to five of the
exhibits from the juvenile court file during his testimony.  The
evidence was relevant to show motive.  We have said that when the
purpose of evidence is to show motive, anything and everything that
might have influenced the commission of the act may, as a rule, be
shown.  Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996).  The
State is entitled to produce evidence showing circumstances which
explain the act, show a motive for killing, or illustrate the
accused's state of mind.  Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).  Further, a trial court's ruling on relevancy, as well
as prejudicial impact, is afforded great deference by a reviewing
court and will not be disturbed absent an abuse of discretion. 
Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).  
     It is true that the items came from Echols's juvenile court
files, but Ark. Code Ann.  9-27-309(a) gives the juvenile court
discretion to open files.  The trial court noted that the juvenile
court had, by order, opened the files for the State.  
     A book, Never on a Broomstick, which is about the history of
witches, was found in Echols's room after the murders.  Again, it
was relevant to show Echols's interest in the occult.
     Echols and Baldwin make yet another relevancy argument.  In
its case-in-chief, the State called Jerry Driver, a juvenile
officer, to testify that he saw Echols, Baldwin, and Misskelley
walking together six months before the murders, and that they were
wearing long black coats and carrying long sticks or staffs. 
Echols and Baldwin each made an objection based on relevancy.  The
trial court ruled that the murders could have been committed with
staffs and that they could have been occult murders; therefore, the
evidence was relevant.
     To be relevant, it is not required that evidence prove the
entire case or even a single issue.  Ford Motor Co. v. Nuckolls,
320 Ark. 15, 894 S.W.2d 897 (1995).  All that is required is that
it have "any tendency" to make any fact that is of consequence to
the determination of the action more or less probable.  Ark. R.
Evid. 401.  Here, the State's theory was that the murders were
cult-related, and there was additional evidence about occult
practices.  This evidence provided a circumstantial link and was
therefore relevant.
     Baldwin argues that the occult evidence should not have been
admitted because there was "little if any" evidence to link him to
such activity, and the only reason for it to be admitted against
him was to inflame the jury.  Prior to trial, Baldwin filed a
motion in limine to prevent the State from eliciting testimony that
the crimes were occult-related without first conducting an in
camera hearing to determine that there was a sufficient basis to
find that he was involved in such activities and that the
activities were a motive in the homicides.  The trial court granted
the motion "until such time as the Court is convinced in an in
camera proceeding that there is competent evidence that [Baldwin]
was involved in occult and/or occultic type activities and/or that
this crime is indicative of a ritualistic occult killing."       
     The trial court subsequently found that Michael Carson's
testimony that Baldwin told him he had dismembered one of the boys,
sucked the blood from his penis and scrotum, and put the testicles
in his mouth was evidence by which a jury could conclude that he
was involved in occultic-type activities.  From the in camera
testimony of Dr. Dale Griffis, an expert on ritual killings, there
was evidence by which a jury could find that the crimes were a
ritual killing.  Dr. Griffis stated that one of the facts that led
him to believe that the killings were cult-related was that
Christopher Byers was castrated and had had the blood sucked from
his penis.  Thus, there was sufficient evidence of Baldwin's
participation in occult activities, and the trial court correctly
allowed the evidence.  See Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986).  In United States v. Mills, 704 F.2d 1553 (11th Cir.
1983), in affirming a trial court's decision to admit evidence that
the defendant was associated with the Aryan Brotherhood, a white
supremacist group that exists in prisons, the Eleventh Circuit
Court of Appeals said:
Such evidence ... is now considered proper if
it is linked together in time and
circumstances to the crime charged, or if it
forms an "integral and natural" part of the
account of the circumstances of the crime, or
is necessary "in order to complete the story
of the crime on trial."
Id. at 1559 (citations omitted). 
     Echols called Robert Hicks as an expert witness who has done
extensive studies and consulting about cult crimes.  Hicks
testified that the murders were not cult-related.  Echols's counsel
sought to question Hicks about the opinion of Ken Lanning, an FBI
expert on cult crimes.  Counsel asked Hicks if he was familiar with
Lanning's writings and if he knew Lanning's opinion on cult-related
crimes.  The State objected on the basis of hearsay, and the trial
court sustained the objection.  The court said that Hicks could
state his own opinion, but not the opinion of someone else.  Echols
assigns the ruling as error. 
     The scholarly treatise exception, Ark. R. Evid. 803(18),
provides:
Learned treatises.  To the extent called to
the attention of an expert witness upon cross-
examination or relied upon by him in direct
examination, statements contained in published
treatises, periodicals, or pamphlets on the
subject of history, medicine, or other science
or art, established as a reliable authority by
testimony or admission of the witness or by
other expert testimony or by judicial notice. 
If admitted, the statements may be read into
evidence but may not be received as exhibits.
Id. (emphasis added).  The rule applies to a particular statement
from a particular treatise, not to a general opinion of another
expert based upon a generalized familiarity with the expert.  Here,
no foundation was laid about a particular treatise to which the
witness could refer, and no foundation was laid about the
reliability of the expert on the subject.  Before a treatise may be
used, its reliability must be established.  Davies v. State, 286
Ark. 9, 688 S.W.2d 738 (1985).  Since the trial court was not
apprised of a particular treatise, or its reliability, the hearsay
objection was correctly sustained.  Moreover, Echols could not have
suffered any prejudice from the ruling because the information was
later given to the jury.  On redirect, Echols's counsel asked Hicks
if his book gave the following Lanning statement, "Bizarre crime
and evil can occur without organized satanic activity.  The law
enforcement perspective requires that we distinguish between what
we know and what we are not sure of."  Hicks said the statement was
in his book, and he agreed with it.
     On cross-examination, the State asked Hicks about the
philosophies of Aleister Crowley, a turn-of-the-century British
writer who supposedly condoned human sacrifice.  Echols objected on
the ground that he had not been allowed to ask about quotations
from Lanning.  Echols's counsel stated that both sides should be
treated equally.  The court responded that the witness could give
his own opinion, or testify about his familiarity with the works of
another person in the field, but he could not adopt the other
expert's opinion as his own.  After Hicks testified that he had
"mixed feelings" about whether Crowley espoused human sacrifice,
the State asked if Hicks was familiar with Crowley's book, Magic in
Theory and Practice, and he said that he was.  There was no attempt
to prove reliability, but Echols did not object to this lack of
foundation and does not complain of it on appeal.  Rather, in this
point, he argues that the law-of-the-case doctrine prohibited the
court from making a different ruling on the same argument.  The
argument is without merit.  The rulings were not inconsistent, but,
even had they been inconsistent, the law-of-the-case doctrine was
not applicable.  While the doctrine is not limited to appeals and
may be applied to issues raised in a continuing lawsuit, Fairchild
v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994), when applied in a
continuing suit, the doctrine is different from when applied to
subsequent appeals.  As Justice Holmes wrote in Messenger v.
Anderson, 225 U.S. 436 (1912), this doctrine, when applied to the
effect of previous orders on the later action of the court
rendering them in the same case, "merely expresses the practice of
courts generally to refuse to reopen what has been decided, not a
limit to their power."  Id. at 444; see also 18 Charles Alan
Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice
and Procedure  4478 (1996).  In the present case it is
questionable whether this was the "same issue," but even if it
were, the trial court had the power to reconsider its ruling.  In
any event, Echols suffered no prejudice because he got the Lanning
quotation in evidence.
     Other suspects  Throughout the trial, both appellants
attempted to put in front of the jury evidence of other suspects.
The following arguments involve rulings on evidence both appellants
sought to introduce to show that someone else committed the
killings.  
     Echols assigns as error a ruling that, he contends,
arbitrarily stopped him from examining John Mark Byers.  Echols
called John Mark Byers, the stepfather of victim Christopher Byers,
during his case-in-chief.  Byers was considered a suspect at one
time, and the police had questioned him about human blood of the
same type as Christopher's that was found on a Kershaw hunting
knife that belonged to John Byers.  Echols contends that his direct
examination of Byers was arbitrarily stopped by the trial court. 
The facts underlying the argument are as follows.  Earlier, during
Inspector Gary Gitchell's testimony, Echols's counsel asked
Gitchell if he had questioned Byers about the murders before
charges were filed against Echols.  Gitchell answered
affirmatively.  Echols asked Gitchell about some of the questions
he had asked Byers and about some of Byers's responses.  The trial
court ruled that the testimony was hearsay and that Echols's
counsel could ask the questions of Byers when he took the stand. 
Later, when he called Byers during his defense, Echols's counsel
began reading Byers the questions Inspector Gitchell had asked him. 
The court ruled that the form of Gitchell's questions was not
relevant and directed Echols's counsel to ask Byers about the
circumstances, and if Byers contradicted any statement he had given
Gitchell, then Echols's counsel could "read every word of [Byers's
statement to Gitchell] that is contrary to what his answers were." 
     On appeal, Echols assigns the ruling as error and contends
that he was not allowed to question Byers about the kind of knife
he had, if he had ever taken the knife hunting, if he used the
knife, and why DNA tests of the blood on the knife matched his
blood.  The trial court did not arbitrarily stop Echols's counsel
from asking proper questions.  In fact, the record shows that
Echols's counsel was allowed to ask the questions he complains that
he was not allowed to ask.  Echols's counsel showed Byers a Kershaw
hunting knife and asked if he could identify it and whether it
belonged to him.  Byers responded affirmatively to both questions. 
Echols counsel asked Byers if he had ever taken the knife deer
hunting, and he responded "no."  When asked if he had ever used the
knife, he said he had used it to trim his toenails and had
attempted to trim some venison with it.  At this point he impeached
Byers with his earlier answer to Gitchell in which he said that the
knife had not been used at all.  Finally, he asked Byers if, to his
knowledge, blood had been found on the knife.  He responded that he
had no idea how any blood could have gotten on the knife, except
that he remembered cutting his own thumb.  On each occasion when
one of Byers's answers was inconsistent with his statement to
Gitchell, Echols's counsel was allowed to read from Gitchell's
report.
     Echols also sought to ask Byers if he had been sodomized when
he was eighteen, whether he had prior drug arrests, and whether he
had ever been an informant.  The trial court ruled the questions
were not relevant to any issue in the trial.  On appeal, the State
contends that we should not reach the point because Echols did not
make a proffer.  We hold that Echols made a sufficient offer of
proof.  Counsel stated the questions he wanted to ask and gave the
answers he anticipated the witness would give.  That was a
sufficient offer of proof under Ark. R. Evid. 103(a)(2). 
       Here, Echols was attempting to show that Byers might be the
one who committed the murders because he had been abused as a young
man and had committed other bad acts.  We have held that evidence
that a third party may have committed the crime is inadmissible
unless it points directly to the guilt of the third party.  If it
creates no more than an inference or conjecture as to the third
party's guilt, it is inadmissible.  Zinger v. State, 313 Ark. 70,
852 S.W.2d 320 (1993).  We have also held that there should be
sufficient connection between the evidence and the possibility of
another person's guilt before it is admissible.  Larimore v. State,
317 Ark. 111, 124, 877 S.W.2d 570, 576 (1994).  Here, the facts
that the witness may have been abused and may have committed
unrelated bad acts created no more than a reckless inference that
he murdered his stepson and the other two victims.
     Echols's counsel questioned Detective Bill Durham of the West
Memphis Police Department about a photographic spread of suspects
he had shown to Aaron Hutcheson.  In response to questions, Durham
testified that he did not remember who was in the photospread and
did not know if Echols's photograph was included in the spread. 
Echols's counsel continued to pursue the inquiry, and Durham
responded a number of times that he did not know who was included
in the photospread.  Finally, over counsel's objection, the trial
court stopped questioning on the subject because it was not
relevant.  Echols's purpose in the questioning was to attempt to
show that there might be another suspect, or some other suspects. 
Certainly, an accused is entitled to show that someone else
committed a crime, but an accused is not entitled to offer evidence
of other suspects on a wholly speculative basis and without linking
the other suspects in some manner.  Here there was nothing to
indicate that anyone in the photospread committed the crimes, and
the trial court correctly ruled that further questioning of the
officer about the photospread was irrelevant.  See Zinger v. State,
supra.
     Echols next argues that the trial court erred when it refused
to allow him to introduce a serologist's report from the crime
laboratory.  Arkansas Code Annotated  12-12-313(a) (1987) provides
that an evidence analysis made by the State Crime Laboratory shall
be received as competent evidence subject to the applicable rules
of criminal procedure.  The purpose of the statute is to remove
reports from exclusion under the hearsay rule, not to require that
they always be admitted for any reason.  Hendrix v. State, 40 Ark.
App. 52, 842 S.W.2d 443 (1992).  Echols sought to introduce a copy
of the report, not to show the analysis made by the laboratory, but
to show the names of other people, primarily John Mark Byers, who
were listed as suspects in the murders.  The trial court ruled that
the hearsay statements contained in the report were not admissible
and that the names of suspects listed on the document would not be
admitted unless there was some evidence to connect the suspects
with the crimes.  The ruling was correct.  The statute removes
reports from exclusion under the hearsay rule, but that does not
mean that they are admissible for any reason.  Moreover, evidence
that a third party may have committed the crime is inadmissible
unless it points directly to the guilt of the third party.  If it
creates no more than an inference or conjecture as to the third
party's guilt, it is inadmissible.  Zinger v. State, 313 Ark. 70,
852 S.W.2d 320 (1993).  Further, Echols could not show prejudice
because the jury was informed that John Mark Byers was a suspect.
     Both Echols and Baldwin next contend that the trial court
committed error when it refused to allow them to call Chris Morgan
as a defense witness.  Morgan lived in the West Memphis area at the
time of the murders and moved to California four days afterwards. 
The trial court ruled Morgan could be called by appellants but,
when Morgan asked for a lawyer, the trial court instructed
appellants' counsel to put on another witness while Morgan
consulted with counsel.  After consulting with his lawyer, Morgan
stated that he would invoke the Fifth Amendment privilege against
self-incrimination.  Appellants argued that Morgan should not be
allowed to invoke a "blanket" Fifth Amendment privilege, but
instead would have to claim the privilege in response to each
question they chose to ask.   Morgan's lawyer stated that there
were federal charges pending against Morgan in Tennessee, and that
there were some overlapping facts in his statements regarding these
charges.  The trial court ruled that appellants could not call
Morgan because, under the provisions of Ark. R. Evid. 512, a
witness should not be compelled to invoke his privilege in front of
the jury, and that if he were forced to take the stand and invoke
the privilege against self-incrimination any probative value would
be substantially outweighed by the possibility of confusing the
jury.  See Ark. R. Evid. 403.    
     Rule 512(b) of the Arkansas Rules of Evidence provides, "In
jury cases, proceedings shall be conducted, to the extent
practicable, so as to facilitate the making of claims of privilege
without the knowledge of the jury."  Appellants argued to the trial
court that this rule applies only to the privileges delineated in
Ark. R. Evid. Article V, and not to the Fifth Amendment privilege. 
On appeal, appellants cite no authority for the argument, and, to
the contrary, Arkansas Rule of Evidence 501 states, "Except as
otherwise provided by constitution or statute or by these or other
rules promulgated by the Supreme Court of this State, no person has
a privilege to refuse to be a witness."  Ark. R. Evid. 501(a). 
This includes the Fifth Amendment, as it is a privilege "otherwise
provided by constitution."  The case of Hamm v. State, 301 Ark.
154, 782 S.W.2d 577 (1990), reflects the same rationale.  There, we
held that "neither the prosecution nor the defense is permitted to
call a witness knowing that the witness will claim his testimonial
privilege."  Id. at 159, 782 S.W.2d   at 580.  Our reasoning in that
case was that neither side should be permitted to build a case out
of a series of invocations of the privilege, which would be the
equivalent in the jury's minds of testimony.  Id. 
     Moreover, in addition to passing a Rule 403 balancing test,
the kind of evidence appellants sought to introduce must have had
a tendency to negate the defendant's guilt.  Larimore v. State, 317
Ark. 111, 877 S.W.2d 570 (1994).  This kind of evidence is
inadmissible unless it points directly to the guilt of the third
party.  If it creates no more than an inference or conjecture as to
the third party's guilt, it is inadmissible.  Zinger v. State, 313
Ark. 70, 852 S.W.2d 320 (1993).  There must be a sufficient nexus
between the evidence and the possibility of another person's guilt. 
Larimore v. State, supra.  Similarity and time connections are
factors in determining the probativeness of the evidence, which
must be weighed against the possibility of confusing the issues and
wasting time.  Id.  Here, the trial court had heard a proffer and
knew that his statement did not exculpate the appellants.  The
admission or rejection of evidence under Rule 404(b) is committed
to the sound discretion of the trial court, which this court will
not disturb on appeal absent a showing of manifest abuse.  Jarrett
v. State, 310 Ark. 358, 833 S.W.2d 779 (1992).  The standard of
review for both relevancy determinations and the decision to admit
evidence by balancing the probative value against unfair prejudice
or confusion of the issues is similar.  Larimore v. State, 317 Ark.
at 124, 877 S.W.2d   at 576.  In sum, the trial court did not abuse
its discretion in refusing to allow appellants to call Morgan and
make him claim his Fifth Amendment privilege in front of the jury.
     Miscellaneous rulings  Appellants also assign various
miscellaneous evidentiary rulings as error.  Baldwin argues that
the trial court erred in allowing Dr. Peretti, the state forensic
pathologist, to testify that in his opinion, the three victims had
been sodomized.  Prior to trial, Baldwin filed and argued a motion
in limine seeking to exclude evidence that the boys were sodomized. 
The trial court denied the motion.  On appeal, Baldwin argues that
Dr. Peretti's testimony concerning sodomy was mere guess and
conjecture because there was an absence of scientific evidence to
confirm his testimony.  He argues that an expert's testimony must
be that his opinion represents his professional judgment as to the
most likely or probable result.  This argument is easily disposed
of in that Dr. Peretti did not testify that it was his opinion that
the victims had been sodomized, but rather testified as to the
condition of the victims and the possible causes of the victims'
conditions.
     At trial, Dr. Peretti testified as to the injuries that the
victims received.  In discussing the injuries, he testified that
Michael Moore had anal dilatation and redness of the anal-rectal
mucosa.  When asked those findings would be consistent with some
sort of sexual trauma, Dr. Peretti testified:
     Well, you have dilatation of the anus.  It could be from
     putting an object in the anus.  But also it could be due
     to the fact that postmortem relaxation and the fact that
     the body was in water.  And that could alter things,
     also.
Dr. Peretti further stated that Steve Branch's anus was dilated and
the lining of the rectum and anus showed mild reddening, but that
no further injuries were noted to the anal and rectal mucosa.  He
testified that Christopher Byers had genital-anal injuries.
     Upon cross-examination, Dr. Peretti testified that the anuses
of the victims were swabbed to determine the existence of sperm and
that none was found.  He testified that, in his experience, when
someone was forcibly sodomized, he had always found injuries to the
anal regions.  He said that he would expect to find lacerations,
contusions, and abrasions, and that he would also expect to find
microscopic evidence of hemorrhage.  He noted that there was no
injury to the anal-rectal mucosa.  On redirect examination, Dr.
Peretti stated that anal dilatation and the bodies being submerged
in water could have caused any sperm to be washed away.  He
explained that if there was attempted penetration, and an object
did not actually enter the anus, he would not expect to find
lacerations.  He also noted that there could be a sexual attack
with no ejaculation and, therefore, no evidence of sperm.  He
further testified that the degree of lacerations and trauma to the
anal area would be based on the size of the object penetrating the
anus.  
     Baldwin's argument that the State elicited an opinion from Dr.
Peretti that the boys had been sodomized is incorrect.  Rather, Dr.
Peretti, who was qualified as an expert in forensic pathology,
testified regarding the condition of the bodies when he received
them.  His testimony was that the anuses were dilated and had
reddening or congestion of the mucosa.  When asked by the State if
this condition was consistent with sexual trauma to the anal area,
he answered that it would be consistent with that or postmortem
relaxation and the fact that the bodies were in the water.  Dr.
Peretti simply explained the injuries and testified as to possible
causation, consistent with his findings, as he was qualified to do.
     Whether to qualify a witness as an expert is a matter left to
the discretion of the trial court and the trial court will not be
reversed absent an abuse of discretion.  Suggs v. State, 322 Ark.
40, 907 S.W.2d 124 (1995).  Dr. Peretti was qualified as an expert
in forensic pathology without objection.  Once a witness is
qualified as an expert, any weaknesses in the bases for his
opinions can be brought out on cross-examination, and it is then
for the jury to determine the weight and credibility to give the
testimony.  Id.  In the present case, Dr. Peretti testified in
detail regarding possible causes of the dilatation of the anuses
and the congestion of the mucosa.  Though Dr. Peretti did not
testify that it was his opinion that the boys had been sodomized,
any strengths or weaknesses in the argument that they had been were
thoroughly explored through the direct and cross-examinations of
him.  The trial court did not err in allowing his testimony
regarding the conditions of the victims' anuses and the causes
consistent with the conditions.
     Baldwin next argues that the trial court erred in allowing Dr.
Peretti to testify that the victims had been forced to perform oral
sex.  Baldwin asserts that he objected to Dr. Peretti expressing
this opinion prior to the testimony coming before the jury.  His
argument regarding Dr. Peretti's testimony as to oral sex is
essentially the same as that he makes regarding sodomy -- that Dr.
Peretti's opinion was mere speculation and conjecture.  Baldwin
contends that scientific evidence that would confirm such an
opinion was absent; there were neither injuries to the inside of
the mouths nor evidence of sperm in the mouths.  The State
correctly responds that Baldwin did not preserve this point for
appeal because he neither moved in limine to exclude Dr. Peretti's
opinion concerning whether the victims were forced to perform oral
sex nor objected at trial to Dr. Peretti's testimony on the
subject.  In short, Baldwin failed to raise this issue before the
trial court.  In order to preserve an issue for appeal, a specific
and timely objection must be made in the trial court, apprising the
trial court of the appellant's arguments.  Love v. State, 324 Ark.
526, 922 S.W.2d 701 (1996).  Having failed to object to Dr.
Peretti's testimony on evidence of oral sex before the trial court,
Baldwin cannot raise the issue on appeal.
     Even if Baldwin had objected to this testimony, it was not
error for the trial court to allow it.  Dr. Peretti testified that
Michael Moore had injuries to the ears and the mouth and that he
generally sees this type of injuries in children who are forced to
perform oral sex.  He also said that the injuries to the mouth
could be caused by a punch or a slap.  He noted that Steve Branch's
injuries to his ears and mouth were similar to Michael Moore's, as
were Christopher Byers's.  Dr. Peretti, who was qualified to
testify concerning the wounds of the victims and causation,
testified that he generally saw the same type of wounds in child
victims that were forced to perform oral sex.  On cross-
examination, he testified that the boys could have the external
injuries, with no internal injuries or presence of sperm, and still
have been forced to perform oral sex.  He opined that if the oral
sex was forceful enough to cause the bruises to the outside of the
mouth, he would think that there would be bruising to the inside of
the mouth as well.  Dr. Peretti's qualification as a forensic
pathologist was not questioned; therefore, any weaknesses in the
bases for his opinions concerning oral sex, as they were developed
on cross examination, would go to weight and credibility rather
than admissibility.  Suggs, supra.    
     Baldwin asserts that the trial court erred in allowing Dr.
Peretti to give his opinion that the sticks recovered from the
crime scene were consistent with having caused some of the victims'
wounds.  Again, Baldwin argues that this testimony concerning the
sticks was mere conjecture and speculation.  Baldwin bases this
argument on the fact that Dr. Peretti testified that the sticks
could have caused the injuries, but a number of other objects could
have caused them as well.  Baldwin filed a motion in limine
requesting that the State not be allowed to make any reference to
the sticks without first laying an evidentiary foundation out of
the hearing of the jury.  He asserted that there was nothing to tie
two of the sticks to the murders.  At the hearing on the motions in
limine, Baldwin made specific reference to allowing Dr. Peretti to
testify that the injuries were consistent with having been caused
by the sticks.  The trial court denied the motion in limine
regarding the sticks.
     The State questioned Dr. Peretti regarding the various
injuries to the victims and asked him whether the injuries to the
victims' scalps that were consistent with being caused by an object
the size of a broom handle could have been caused by one of the
sticks that the State recovered from the crime scene.  Dr. Peretti
testified that the stick could have caused the injury.  The State
also asked whether the injuries caused by a larger blunt object
could have been caused by the larger stick recovered by the State
from the scene, and Dr. Peretti answered affirmatively.  On cross-
examination, Dr. Peretti testified that there were no wood
fragments on the bodies of the victims.  He also testified that he
would expect to find wood fragments, unless they were washed off in
the water.  He testified that the injuries could have been caused
by hundreds of items other than the sticks recovered at the scene.
     It was not error for the trial court to allow Dr. Peretti's
testimony.  He testified in detail concerning the size, shape, and
nature of the wounds and then opined that they could have been
caused by the two sticks shown him by the State.  Baldwin argues
that Peretti gave an opinion based on mere conjecture and asserts
that the foundation for an expert's opinion must not be nebulous. 
However, Dr. Peretti gave a thorough foundation for his opinion,
which was not that the sticks caused the injuries, but that the
wounds were consistent with being caused by the sticks.  He also
testified that the wounds could have been caused by other objects. 
It was for the jury to determine the weight and credibility to give
his testimony concerning the sticks.  Suggs, supra.
     Baldwin's final argument regarding Dr. Peretti's testimony is
that the trial court erred in allowing Dr. Peretti to testify that
some of the victims' wounds could have been caused by the knife
recovered from behind Baldwin's house.  The State responds that the
argument is not preserved for appeal because Baldwin only objected
to Dr. Peretti testifying that some of Steve Branch's injuries were
consistent with having been caused by the State's knife.  The State
then asserts that even if the argument is preserved, the trial
court should not be reversed.  From the record, it appears that the
State is correct that Baldwin only objected to Dr. Peretti
testifying that the injuries to Steve Branch depicted in one
photograph could have been caused by the knife found behind
Baldwin's house and, therefore, waived any broader argument on this
issue on appeal.  However, it was not error for the trial court to
allow Dr. Peretti's testimony regarding whether some of the wounds
were consistent with having been caused by a knife of the type
found behind Baldwin's house.  He stated that pictures of Steve
Branch's and Christopher Byers's wounds showed wounds consistent
with having been caused by a knife with a serrated blade.  He
testified that he had previously examined the knife recovered from
behind Baldwin's house and that he had examined the serrated
pattern of some of the wounds that he found on all three victims. 
He testified as follows:
     Q. Okay.  Did you find one pattern on the three victims
     that would be consistent with having been caused by a
     knife with that type of serrated pattern?
     A.  There are injuries consistent with a type of serrated
     pattern.
On cross-examination, Dr. Peretti testified that he had never
stated that the knife found behind Baldwin's house caused the
injuries, but rather had said that a knife of that type was
consistent with causing the injuries.  He also explained the
difference between the pattern left by knives with large serration
and small serration, as well as the distortion in the pattern that
is left, caused by the elasticity of the skin, the angle of the
blade, and the reaction of the body that is being scraped.  Dr.
Peretti supported his opinion that some of the wounds were
consistent with having been caused by the knife recovered behind
Baldwin's house with a factual foundation.  As previously
discussed, he was qualified as an expert on forensic pathology, and
there is no question that he was qualified to testify as to the
nature of the victims' wounds and the causes of the wounds.  Any
weaknesses in his opinion that some of the wounds were consistent
with having been caused by the knife recovered from behind
Baldwin's house went to weight and credibility, rather than
admissibility.  See Suggs, supra. 
     Echols argues that the trial court erred in overruling his
objection to asking a leading question of Dr. Peretti.  The
question, which was on redirect, was as follows:
     Q.  Okay.  Now, Dr. Peretti, let me -- Mr. Ford asked you
     about these weapons, if you could say positively that
     those weapons caused the injuries.  And if I understand
     your testimony yesterday, there was one weapon used on
     these three boys that was a sharp object such as a knife,
     correct?
     A.  That's correct.
               Mr. Ford [Baldwin's attorney]:  I'm going to
          object to the leading.  This is his witness.  He is
          leading his witness in an effort to rehabilitate
          him.
               The Court:  He is an expert witness.  Go
          ahead.  Overruled.
               Mr. Davidson [Echols's attorney]:  We join in
          that objection.
               The Court:  Overruled.
     Q.  There was one weapon that was a sharp object such as
     a knife?
     A.  That's right. 
     Even if the question were a leading one, an issue we need not
decide, we would not reverse.  Echols did not request a sanction or
other relief when he objected.  In Perry v. State, 277 Ark. 357,
642 S.W.2d 865 (1982), we wrote:
     The state's attorney asked a leading question and in
     effect testified.  This was error but it was not
     prejudicial.  Such matters are best handled by the trial
     court at the time of the improper statement or question. 
     There was no request by the appellant to strike this
     testimony nor that the jury be admonished.  Therefore, we
     will not consider it on appeal.  
Id. at 374, 642 S.W.2d   at 874.  Similarly, even if the question
here were a leading question, the error did not constitute
reversible error.
     Echols next argues that the trial judge commented on the
evidence when he asked defense counsel, "[A]re you getting
somewhere with something that is relevant?" and "You are going to
assure me of that?"  The argument came about as follows.  One of
Echols's attorneys was questioning Gary Gitchell, an inspector with
the West Memphis Police Department.  He attempted to show that the
police department failed to conduct the investigation in a
creditable manner.  The questions were designed to show that the
interviews with Echols should have been videotaped, that the photo
line-up should have been recorded and conducted differently, that
the evidence was not suitably collected and handled, that the tests
on a knife were inadequate, and that the audio surveillance of
Vickie Hutcheson's house was inappropriate.  The attorney asked
Gitchell whether he could find the permission slip allowing the
department to set up the audio surveillance.  Gitchell asked
whether counsel wanted him to try to find it and counsel answered
yes.  At this point, the trial court asked the two questions about
whether counsel was getting to something that was relevant. 
Echols's attorney answered in the affirmative, and the trial court
said, "All right."  After a bench conference, Echols's counsel
asked Gitchell if he had found the permission slip.  Gitchell
answered no, and counsel asked if he would find it for them. 
Echols's direct examination stopped at that point.     
     The case of Warren v. State, 272 Ark. 231, 613 S.W.2d 97
(1981), is on point.  There, the trial court did not know the
defendant's theory of defense.  During a series of questions by the
defense attorney, the State objected.  The trial court stated,
"What's puzzling me is what difference does it make?  I don't think
it's relevant is what I'm saying."  Id. at 235, 613 S.W.2d   at 99. 
After an in-chambers conference, defense counsel was allowed to
continue with his line of questioning.  In affirming the lower
court, we wrote:
     Article 7,  23 of our constitution states that judges
     shall not "charge juries with regard to matters of fact"
     and so precludes them from commenting on the evidence.
     The judge is not to influence the jury with regard to the
     credibility of witnesses or the weight to be given their
     testimony. The prohibition applies not only to charges,
     but to colloquies with lawyers in the jury's hearing.
     Fuller v. State, 217 Ark. 679, 232 S.W.2d 988 (1950).
     Clearly, if this inquiry into relevance could influence
     the jury in any manner, the case must be reversed, but
     since the appellant was allowed to pursue the line of
     questioning after the inquiry, we can see no possible
     inference on credibility, weight to be given, or any
     other matter. We hold the questioning into relevancy did
     not amount to a comment on the evidence.
Id. at 234, 613 S.W.2d   at 99.
     Echols also argues that the trial court's questions were in
rebuke of counsel, and, for that reason, we should reverse.  Our
case of Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974), is on
point on this argument.  There, the prosecutrix in a rape case
became upset during defense counsel's examination of her. Defense
counsel stated to the court that the prosecutrix might need a few
minutes to pull herself together.  The trial court replied, "Well,
you got her this way.  Why don't you go ahead."  Id. at 152, 515 S.W.2d   at 184.  Defense counsel moved for a mistrial, arguing that
the trial court's remark was "highly prejudicial." Id.  The trial
court denied the motion.  On appeal, we affirmed the conviction,
and stated:
     Prejudicial error is not committed by the court's remark
     unless it constitutes an "unmerited rebuke" giving the
     jury the impression that defense counsel is being
     ridiculed. Davis v. State, 242 Ark. 43, 411 S.W.2d 531
     (1967); McAlister v. State, 206 Ark. 998, 178 S.W.2d 67
     (1944); Jones v. State, 166 Ark. 290, 265 S.W. 974
     (1924).  However, prejudice is not shown where the record
     reveals that the trial judge was merely irritated at
     defense counsel's trial tactics.  Walker v. Bishop, 408 F.2d 1378 (8th Cir. 1969).  Although the better practice,
     as we have often said, is to talk to counsel out of the
     jury's hearing, we do not construe this remark as
     ridiculing the appellant's counsel.  The court merely was
     stating the obvious.  By terse questioning on
     cross-examination, the defense counsel was properly
     attempting to weaken the prosecutrix's testimony as a
     witness.  The court's remark certainly did not relate to
     the merits of the case.  At most, it could only be
     construed as a mere irritation which "does not constitute
     reversible error whether the court's irritation was
     justified or not." Walker v. Bishop, supra.
Id. at 152-53, 515 S.W.2d   at 84-85.  
     In the present case, the trial judge asked about the relevancy
of the continued questioning and seemed to be irritated with
counsel's tactics.  Even so, the questions did not constitute an
unmerited rebuke of the attorney.

     Baldwin argues that the trial court erred when it denied his
request to cross-examine Michael Carson about drug and alcohol use.
Michael Carson, who had been in juvenile detention with Baldwin,
was called to testify that Baldwin told him he had killed the three
boys, sucked blood from Chris Byers, and put Byers's testicles in
his mouth.  Carson also testified that Baldwin told him he was
going to "kick Jessie Misskelley's ass" because he had "messed
everything up."  Baldwin sought to impeach Carson's credibility by
asking him about a medical diagnosis that he was "LSD dependent,
marijuana dependent, and alcohol dependent."  Baldwin did not make
an offer of proof, and we could affirm this point on that basis. 
See Ark. R. Evid. 103(a)(2).  However, counsel made extensive
argument and obviously intended part of the argument to be a
proffer.  Baldwin argued to the trial court, without any factual
statement, that the chemical dependency affected Carson's ability
to distinguish between reality and fantasy.  The trial court
refused to allow the questioning, and stated that Ark. R. Evid. 608
would allow impeachment with his juvenile adjudications, which
Baldwin had already been allowed to do, but the court was "bothered
by [the] desire to cross-examine him with regard to specific acts
of misconduct involving drugs that may or may not affect his
ability to recall."  On appeal, Baldwin contends the ruling was in
violation of Ark. R. Evid. 608 and the Confrontation Clause of the
Constitution.  He did not make the Confrontation Clause argument to
the trial court; therefore, we do not consider it on appeal.  Even
constitutional arguments are waived when they are not presented to
the trial court.  Martin v. State, 316 Ark. 715, 875 S.W.2d 81
(1994).
     Rule 608 of the Arkansas Rules of Evidence provides that a
witness may be cross-examined with specific instances of conduct,
if probative of the witness's character for truthfulness.  The rule
limits the inquiry on cross-examination to specific instances of
conduct clearly probative of truthfulness or untruthfulness. 
Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).  There was no
showing that substance abuse relates to truthfulness or
untruthfulness.  Further, it does not appear that Baldwin was
attempting to show that Carson was on drugs or intoxicated when he
heard the statement. In fact, it was most likely impossible for him
to show such facts, since Carson was in a juvenile detention
facility when he heard Baldwin make the statement, and he had been
for some time when he heard the statement.  Although the medical
diagnosis has not been abstracted, the questions and statements of
the trial court indicate there was nothing in it to show that
substance abuse had affected Carson's perception of reality, or his
ability to tell the truth.  Finally, the trial court asked
Baldwin's attorney if he had a good-faith basis for the questions,
and counsel never responded with any fact indicating that the
alleged substance abuse went to truthfulness or untruthfulness. 
The trial court applied the proper tests, which are: (1) whether
the question is asked in good faith; (2) whether the probative
value outweighs the possibility of unfair prejudice; (3) whether it
relates to the witness's truthfulness.  Mackey v. State, 279 Ark.
307, 651 S.W.2d 82 (1983).  Under these circumstances, we cannot
say that the trial court abused its discretion in finding that the
evidence was not clearly probative of veracity and, as such, would
have been unfairly prejudicial.  See Maples v. State, 16 Ark. App.
175, 698 S.W.2d 807 (1985).
     Echols's next argument is that the trial court erred in
allowing the State to make two cuts in a grapefruit during closing
argument.  The prosecuting attorney made one cut in a grapefruit
with the serrated knife that the State recovered from behind
Baldwin's residence, and then made another cut with the knife that
defense counsel implied was used to cut the victims.  The second
knife had a regular blade.  The prosecuting attorney compared the
cuts in arguing that the cuts on Byers were like those made by the
knife the State had introduced.    
     This point is governed by Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986).  There, the appellant argued that the trial
court erred in refusing to grant a mistrial or a new trial because
the prosecutor argued outside the record and presented evidence not
in the record.  During his closing argument in the penalty phase,
the prosecutor picked up a shotgun that was in evidence and loaded
it with five shells in order to show that the gun only held five
shells and to argue that the defendant had reloaded his gun after
firing two shots at officers.  The defendant made a general
objection at trial and argued on appeal that there was no proof
that the murder weapon in the case held only five shells and that
the prosecutor had picked up the wrong gun.  In affirming the trial
court, we stated:
          Demonstrations such as the one performed by the
     prosecutor are permissible.  We have allowed prosecutors
     to use items such as clothing, rope or documents by way
     of illustration in their closing arguments for many
     years.  See Derrick v. State, 92 Ark. 237, 122 S.W. 506
     (1909); Tiner v. State, 109 Ark. 138, 158 S.W. 1087
     (1913).  Some leeway is given in closing remarks and
     counsel are free to argue every plausible inference which
     can be drawn from the testimony.  Abraham v. State, 274
     Ark. 506, 625 S.W.2d 518 (1981).  Nevertheless,
     "[c]losing arguments must be confined to questions in
     issue, the evidence introduced and all reasonable
     inferences and deductions which can be drawn therefrom."
     Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976).
     The trial court has a wide latitude of discretion in
     controlling the arguments of counsel and its rulings in
     that regard are not overturned in the absence of clear
     abuse.  McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7
     (1980).
          Other states have found permissible closing argument
     where a prosecutor used "similar" material to a rope used
     to bind a victim to show that the victim might have bound
     himself, Collins v. State, 561 P.2d 1373 (Okla. Cr.
     1977); where a live model and an unloaded pistol were
     used to demonstrate that shots could not have been fired
     in the manner claimed by the defendant, Herron v.
     Commonwealth, 23 K.L.R. 782, 64 S.W. 432 (1901); where a
     piece of crayon was used to show how the defective muzzle
     on a revolver could have deformed a bullet fired from the
     pistol, Russell v. State, 66 Neb. 497, 92 N.W. 751
     (1902); where an attorney borrowed a gun from an officer
     in the courtroom to demonstrate the deceased could not
     have inflicted a fatal wound upon herself, Peoples v.
     Commonwealth, 147 Va. 692, 137 S.E. 603 (1927); and where
     a toy gun was used to prove the fatal wound could not
     have been inflicted as claimed, Barber v. Commonwealth,
     206 Va. 241, 142 S.E.2d 484 (1965).  In the Barber case
     the Virginia court found it was within the sound
     discretion of the trial court to determine whether the
     use of the toy pistol should be permitted even though the
     toy was not shown to be the same size or type as the
     murder weapon.
          Likewise, here the trial judge did not abuse his
     discretion when he permitted the prosecutor's
     demonstration with the shotgun.
Id. at 393-94, 713 S.W.2d   at 236.  Comparably, in the case now
before us, the trial court did not abuse its discretion in allowing
the prosecutor in closing argument to compare the cuts made by the
two knives.
     Echols next argues that the trial court erred when it
overruled his objection to a question asked Deanna Holcomb.  This
argument comes about as follows.  During the State's case-in-chief,
Holcomb, who was Echols's former girlfriend, testified that she had
seen Echols with a knife similar to the one found behind Baldwin's
residence.  The deputy prosecuting attorney asked her if Echols
told her why he carried such a knife.  Echols made a general
objection, which the trial court overruled.  Holcomb answered that
Echols told her he carried the knife because he did not feel safe.
     We have written that a general objection which was overruled
cannot avail upon appeal unless there was no reason whatsoever to
admit the evidence, because the trial judge had no way of knowing
what was in counsel's mind.  Swanson v. State, 308 Ark. 28, 823 S.W.2d 812 (1992) (quoting  United States v. Klein, 488 F.2d 481
(2d Cir. 1973)).  On appeal, Echols argues that the ruling was in
violation of Ark. R. Evid. 404(b), but he did not advance such an
argument to the trial court.  It is settled that a party cannot
raise an issue for the first time on appeal.  Id.  Even if it could
be said that the trial court should have sustained the objection
under 404(b) or for any other reason, we would not reverse, because
the alleged error could not have had a substantial effect on the
rights of the defendant.  Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987).  Here, there was already ample evidence that
Echols owned knives, and Holcomb did not testify that Echols used
the knife, only that he carried it because he did not feel safe.  
     The next argument comes about as follows.  Echols testified in
his own defense in the guilt-innocence phase of the trial.  On
cross-examination, the deputy prosecuting attorney asked him if he
knew of any reason why the two witnesses might have fabricated the
statements that they overheard him say he committed the murders. 
Echols objected on the ground that the question shifted the burden
of proof.  The trial court said that it was going to allow the
prosecutor to ask Echols, "maybe not in the form you asked him . .
. if he knows of any reason why they would have some bias or
prejudice against him."  The prosecutor then asked Echols why the
two witnesses would take the stand and fabricate a story about him.
     Echols assigns the trial court's ruling as error.  We
disagree.  The question did not change the burden of proof, and
Echols did not ask for a limiting instruction on the matter.  The
question was designed to compare Echols's credibility to that of
the two State witnesses, and that was appropriate.  We have often
held that when a defendant takes the stand in a criminal case, his
credibility becomes an issue.  Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994).
     Also during cross-examination, the State questioned Echols
about his manic-depressive illness, and whether it led to an
incident in which he tried to claw the eyes out of a student. 
After a lengthy bench conference, the trial court ruled that it was
going to allow the prosecutor to ask Echols if he had extreme mood
swings, but that Echols could not be asked about specific instances
of conduct unless they were in close proximity to the crimes for
which he was on trial.  The State did not ask anything more about
the incident in which Echols tried to claw the eyes out of a
student.  The prosecutor changed focus and asked if Echols had an
altercation with his father while they were in Oregon, and if it
resulted in his immediate return to Arkansas.  The trial court
ruled that the question was proper to rebut Echols's testimony that
he became violent only toward himself, but not toward other people. 
The trial court noted that the incident occurred within eight or
nine months of the crimes for which Echols was on trial.  Echols
testified that he had locked himself in his room in Oregon,
threatened to commit suicide, was placed in a hospital, and, when
his father came to visit him, told his father that he would eat him
alive.  As a result, he was immediately sent back to Arkansas. 
Echols argues on appeal that the trial court erroneously allowed
evidence of bad character when he had not put his character at
issue.  
     The prosecutor's questions on cross-examination had
independent relevance about Echols's medication, mood swings, knife
collection, and quick return from Oregon.  Further, when Echols
responded on cross-examination that he did not become violent
toward others when he was off his medication, the prosecutor
properly brought up the incident with his father to impeach his
truthfulness.  While there are matters that cannot be used against
an accused solely because he is a defendant, these same matters can
be used against an accused when he becomes a witness.  3A John
Henry Wigmore, Evidence in Trials at Common Law  889 (Chadbourn
rev. ed. 1976 & Supp. 1991).  A witness always puts his credibility
at issue when he takes the stand.  McDaniel v. State, 291 Ark. 596,
726 S.W.2d 679 (1986).  Here, the question was logically related to
matters Echols had brought up himself -- his manic-depressive
illness and his immediate return to Arkansas.  See Shaver v. State,
37 Ark. App. 400, 830 S.W.2d 364 (1994).  
     Echols and Baldwin, in their next argument involving
evidentiary rulings, contend that the trial court erred in allowing
the State to call Dr. Duke Jennings, a pathologist, to testify
about the time of the deaths.  The argument comes about as follows. 
Dr. Peretti, the forensic pathologist first called by the State,
testified on direct examination that "I did not deal with the issue
of time of death or mention that in my autopsy report."  However,
on cross-examination, he testified that, based upon what he knew
about the case, and the rigor mortis of the bodies, the time of the
deaths was between 1:00 a.m. and 5:00 a.m. on May 6, 1993.  This
was different from the testimony he had given on direct and
different from the testimony he gave in the Misskelley trial, and
the testimony was a surprise to the State.  On redirect by the
State, he noted that rigor mortis can be delayed by cool
temperatures, such as from being immersed in cool water for twenty-
four to thirty-six hours.   
     Five days later, but before the State rested its case-in-
chief, the deputy prosecutor notified counsel for appellants that
the State would call another pathologist, Dr. Duke Jennings, to
testify about the time of the deaths.  At that time, at a bench
conference, appellants objected on the ground that the State had
not provided the name of Dr. Jennings as a witness.  The deputy
prosecutor responded that the State had not anticipated calling Dr.
Jennings because it had no reason to think that Dr. Peretti would
change his testimony from that he gave in the Misskelley trial. 
The trial court ruled: "I do not know how you could anticipate a
witness that previously testified as to the same facts and
circumstances would change his testimony.  It seems unfair."  The
trial court said that it would allow Dr. Jennings to testify about
the time of the deaths.
     During the State's rebuttal evidence, the State called Dr.
Jennings to testify about the time of death.  Appellants' counsel
asked the court whether the State was being allowed to reopen its
case or if Dr. Jennings was a rebuttal witness.  The trial court
responded that it did not matter because it was discretionary with
the court.  Dr. Jennings testified that, based upon the information
provided, there was no basis for a meaningful estimate as to the
time of death.  Both appellants assign as error the ruling allowing
Dr. Jennings to testify.  
     The ruling of the trial court was correct.  The State could
not anticipate that Dr. Peretti would change his testimony and on
cross-examination, give testimony that, when coupled with other
evidence, would imply that Echols could not have committed the
murders because he was at home asleep at the time of the victims'
deaths.  Thus, Dr. Jennings's testimony that it was impossible to
estimate the time of death was in direct response to the unexpected
estimate of time given by Dr. Peretti on cross-examination.  Since
the testimony was in response to testimony elicited by the defense,
it was genuine rebuttal evidence, and the name of the witness did
not have to be disclosed.  Schalski v. State, 322 Ark. 63, 67-68,
907 S.W.2d 693, 696 (1995).  
     Baldwin and Echols both insist that the trial court erred in
allowing into evidence the knife with a serrated blade.  A diver
found the knife in a lake behind the Baldwin residence on November
17, 1993.  It was found forty-seven feet from the edge of the water
and in line with the Baldwin's property line.  There is a fishing
pier directly behind the Baldwin mobile home, and the knife was
found sticking blade-down in mud at the lake's bottom, thirty-five
feet straight out from the pier.  The knife was large and had a
serrated edge, and it had the words "Special Forces Survival Roman
Numeral Two" on the blade.  Dr. Frank Peretti testified that
numerous wounds found on the victims were made by a serrated blade
and were consistent with, and could have been caused by, such a
knife.
     Deanna Holcomb, who was Echols's girlfriend in 1991, testified
that she had seen him carrying a knife similar to that one, except
that it had a compass on the end.  James Parker, owner of Parker's
Knife Collector Service in Chattanooga, Tennessee, testified that
another knife company he had worked for distributed this type of
knife from 1985-87.  Through Parker's testimony, the trial court
admitted a 1987 catalog from the other company, which contained a
picture of a knife like the one found.  That knife had a compass on
the end, and it had the words "Special Forces Survival Roman
Numeral Two."   
     When the State sought to have the knife admitted, both
appellants objected on the ground that there was nothing connecting
it to the crimes, such as blood, fingerprints, or tissue, and it
was not connected to the crime scene.  The trial court overruled
the objections and stated that there were enough circumstantial
links to allow its admission.  
     The argument is one of relevance, and a trial court has
discretion in determining relevance.  Miller v. State, 280 Ark.
551, 660 S.W.2d 163 (1983).  A trial court's ruling on relevance
will be reversed only for abuse of discretion.  Dixon v. State, 311
Ark. 613, 846 S.W.2d 170 (1993).  "When evidence on an issue is
circumstantial, it is never irrelevant to put in evidence any
circumstance which may make the proposition at issue more or less
probable."  Grigsby v. State, 260 Ark. 499, 506, 542 S.W.2d 275,
279 (1976).  The State offered testimony that the knife was like
the one Echols carried, that it was found forty-seven feet behind
Baldwin's residence, and that it could have caused the injuries. 
The evidence provided a link to the crimes and made appellants'
identities more probable than without the evidence.  Miller v.
State, supra; see also Fountain v. State, 275 Ark. 457, 620 S.W.2d 936 (1981); Ark. R. Evid. 401.  Thus, the trial court did not abuse
its discretion in admitting the knife.  
     Echols's and Baldwin's ensuing argument is that the trial
court erred in admitting into evidence the two sticks that were
found near the bodies of the victims.  Police officers found one of
the sticks stuck in the creek bed near the victims.  It had a shirt
belonging to one of the victims wrapped on the end that was out of
the water.  This is the larger of the two sticks.  This stick
appeared in the photographs of the scene, which were admitted
without objection, but it was not retrieved by Detective Ridge
until Misskelley described the crimes.  The smaller stick was found
floating in the creek near the bodies and was retrieved during the
initial crime-scene search.
     Appellants both objected to the introduction of the sticks on
the ground that there was no physical evidence that either of them
was used as a murder weapon.  The trial court overruled the
objection and stated that they were relevant and admissible because
one of the sticks was jabbed down in the water and had the shirt
wrapped around it, the other was found near the bodies, one
contained carving, and both had distinguishing marks because it
appeared that someone had removed the bark.  The court noted that
the medical examiner testified that the victims' head injuries were
consistent with blunt trauma similar to that which would have been
caused by sticks like these. 
     Again, the trial court did not abuse its discretion.  See
Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993).  The reasons
given by the trial court are sufficient to support its ruling on
relevance.  
     Echols argues that the trial court erred when it denied his
motion for a mistrial because of a statement that was made during
his cross-examination of Officer Bryn Ridge.  Echols's counsel
asked Ridge about the crime scene and the stick found there with
one of the victim's shirts wrapped around the end of it.  His
testimony revealed that the police left the stick at the scene, but
retrieved it on July 1, 1993, after Jessie Misskelley gave his
statement to police.  When Echols's attorney asked him about the
stick, he said, "No, sir, I did not take this stick into evidence
until Misskelley's statement in which he said ...."  Echols
objected and asked for a mistrial because Ridge had "blurted out"
that Misskelley confessed.  The motion for a mistrial was denied,
but the court instructed the jury to ignore the statement.  Echols
now contends that the trial court erred by refusing to grant a
mistrial.
     In Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993), we
held that an admonition was sufficient to cure any possible
prejudice that resulted from an inadvertent reference to a co-
defendant's plea of guilty.  There, the response was to a
prosecutor's good-faith question.  Here, Echols's counsel asked the
question, so good faith is not at issue. Instead, the only question
is whether the trial court abused its discretion in ruling that the
admonition cured any possible harm.  See id. at 288, 862 S.W.2d   at
241.  Echols has made neither a showing nor a convincing argument
that the trial court abused its discretion in finding that the
admonition was sufficient.  We have often said that a mistrial is
an extreme remedy that should only be granted when justice cannot
be served by continuing the trial.  Bennett v. State, 297 Ark. 115,
759 S.W.2d 799 (1988).
                      Instruction Arguments
     Both Echols and Baldwin objected to the trial court giving the
accomplice instruction.  AMI Crim. 3d 401 (Accomplice).  They
contend that there was no testimony that placed them together on
the day of the crime, and, since the jury was instructed to
consider the evidence against each defendant separately, an
accomplice instruction was precluded.  The trial court correctly
gave the instruction because there was evidence from which the jury
could reasonably find that both defendants said they killed the
children; fibers from clothing found in both defendants' homes were
similar to fibers found on the victims' clothing; the description
of the person identified as Domini Teer, who was seen with Echols
the night of the murders, also fit the description of Baldwin, who
was also very thin and had long hair; Echols and Baldwin were best
friends and spent two or three hours together a day; a knife
similar to one Echols had owned was found near Baldwin's residence;
sticks similar to the ones both had been seen carrying previously
were found at the scene; two different types of knots were used to
tie the victims; there were three victims, and there was sufficient
evidence from which a jury could have concluded that the murders
were not committed by one person.  We have said that if there is
some evidence to support an instruction, it is appropriate for a
trial court to give it.  Mitchell v. State, 306 Ark. 464, 862 S.W.2d 254 (1993).  

                  Capital Punishment Arguments    
     Echols asks us to reconsider our holding in Wilson v. State,
271 Ark. 682, 611 S.W.2d 739 (1981), and to declare the death
penalty to be cruel and unusual punishment.  We adhere to our prior
holdings.  In Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772
(1993), we rejected the defendant's argument that the death penalty
was cruel and unusual punishment and stated that both this court
and the United States Supreme Court have held that the death
penalty is not cruel and unusual punishment.  In Wilson v. State,
the case referred to by Echols, we rejected the defendant's
argument that life without parole was cruel and unusual punishment
and stated that it has long been this court's holding that
sentencing within the statutory limits is not cruel and unusual
punishment.  
     Echols's next argument involves the statutory overlap between
the elements of capital murder and first-degree murder.  In this
argument his initial predicate is that there is no clear difference
between the elements of capital murder, Ark. Code Ann.  5-10-101
(Repl. 1993), and the elements of first-degree murder, Ark. Code
Ann.  5-10-102 (Repl. 1993).  His next step in the argument is to
state that the prosecutor has discretion in choosing whether to
file a capital murder charge or a first-degree murder charge, and,
if capital murder is charged, the jury is then left to speculate
about the degree of offense to which it should affix a finding of
guilt.  The final step in the argument is that it is not until the
penalty phase of the trial, after the jury has already determined
the defendant to be guilty of capital murder, that the jury
considers aggravating or mitigating circumstances.  We have already
answered this argument, and we adhere to our prior holding. 
     In Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we
said:
          Nooner raises the spectre of unconstitutional
     overlapping between our capital murder statute and first
     degree murder statute in that the two statutes blur and
     proscribe the same conduct.  According to his theory, the
     statutes do not give proper notice of the criminal
     offenses and are void for vagueness.  This court has
     discounted this argument on numerous occasions.  See,
     e.g., Greene v. State, 317 Ark. 350, 878 S.W.2d 384
     (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391
     (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395
     (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104
     (1992); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607
     (1991); Smith v. State, 306 Ark. 483, 815 S.W.2d 922
     (1991).
Id. at 105-06, 907 S.W.2d   at 687.  In Nooner, this court also
explained that it was acceptable for the jury to not consider
aggravating and mitigating circumstances until the penalty phase of
the trial.  The court stated:
          Nooner argues that the definition of capital murder
     does not sufficiently narrow the crime for which the
     death penalty can be imposed.  He specifically alludes to
     overlap between definitions of capital murder and first
     degree murder, which we have already discussed.  The
     United States Supreme Court has held that the required
     narrowing of crimes susceptible to the death penalty may
     occur at the penalty phase of the trial.  Lowenfield v.
     Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 568
     (1988).  This court has previously held that our statutes
     pass the narrowing requirement by limiting the death
     penalty to crimes involving sufficient aggravating
     circumstances.  See Sheridan v. State, supra.  There is
     no merit to Nooner's contention.
Id. at 107, 907 S.W.2d   at 687-88.  
     In Echols's next point, he initially states that Ark. Code
Ann.  5-4-603 (Repl. 1993), requires the jury to impose the death
sentence if it unanimously returns certain written findings.  From
that predicate he argues that the instruction quoting the statute
is binding, and a binding instruction is unlawful.  Finally, he
asserts that if the statute were declared unconstitutional, there
would be no need to qualify a jury for the death penalty.  Again,
the argument is without merit.
     Section 5-4-603 of the Arkansas Code Annotated provides in
pertinent part:
          (a) 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.
          (b) The jury shall impose a sentence of life
     imprisonment without parole if it finds that:
          (1) Aggravating circumstances do not exist beyond a
     reasonable doubt; or
          (2) Aggravating circumstances do not outweigh beyond
     a reasonable doubt all mitigating circumstances found to
     exist; or
     (3) Aggravating circumstances do not justify a
sentence of death beyond a reasonable doubt.
Ark. Code Ann.  5-4-603(a) & (b) (Repl. 1993).   
     In Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert.
denied, 479 U.S. 1101 (1987), we held that Ark. Code Ann.  5-4-603
does not require a mandatory death sentence, but rather provides
specified criteria that must be fully satisfied before the death
sentence can be imposed.  More recently, in Nooner v. State, 322
Ark. 87, 907 S.W.2d 677 (1995), we held:
          Nooner maintains that our sentencing statutes demand
     a death sentence and eliminate consideration of mercy by
     the jury.  See Ark. Code Ann.  5-4-603 (Repl. 1993).  We
     have previously held that this is not the case.  See Cox
     v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Sheridan
     v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Henderson
     v. State, 311 Ark. 398, 844 S.W.2d 360 (1993); Johnson v.
     State, supra.  We have underscored that our statute
     provides that a jury is free to sentence to life without
     parole if it finds the aggravating circumstances do not
     "justify" death.  See Ark. Code Ann.  5-4-603(b)(3)
     (Repl. 1993).  There was no error on this point.
Id. at 106-07, 907 S.W.2d   at 687.  The wording of Ark. Code Ann. 
5-4-603 and our case law applying the statute make it clear that
the statute does not contain a binding instruction.  Consequently,
the trial court did not err in denying Echols's motion to declare
Ark. Code Ann.  5-4-603 unconstitutional.
     Echols contends that Ark. Code Ann.  5-4-604(8) (Supp. 1995)
is unconstitutionally vague because it provides that the jury can
find an aggravating circumstance upon a finding that a murder was
committed in an "especially cruel or depraved manner".  In his
argument, he first notes that the prior statute, which provided
that the jury could consider the "heinous, atrocious or cruel"
nature of the crime was struck down by this court in Wilson v.
State, 295 Ark. 683, 751 S.W.2d 734 (1988) as being overbroad
because it did not provide a clear standard to distinguish between
ordinary and "especially cruel" capital murders.  He then states
that we have not reviewed the statute since it was amended, and
that the "cruel and depraved" language does not provide a genuine
narrowing of the types of persons deserving a life sentence from
those eligible for the death penalty.  In addition to arguing that
the statute is unconstitutional on its face, Echols argues that it
is unconstitutional as applied to him because "there is
insufficient evidence that he inflicted serious physical abuse or
did so for a considerable period of time" before killing the three
boys, and that there "is insufficient evidence that establishes
that Echols intended to inflict mental anguish or did so prior to
any killing."   
     Pursuant to Ark. Code Ann.  5-4-603, the death penalty cannot
be imposed unless the State can prove the existence of an
aggravating circumstance.  In the present case, the jury found the
aggravating circumstance that the murders were committed in an
especially cruel or depraved manner.  Section 5-4-604 provides the
following regarding "an especially cruel or depraved manner":
     Aggravating circumstances shall be limited to the
     following:
                              ....
     (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.
Ark. Code Ann.  5-4-604(8) (Supp. 1995). 
     In Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), we
addressed the defendant's argument that the statutory definition of
the aggravating circumstance of "especially cruel or depraved" was
void for vagueness on its face and as applied to him.  The
defendant claimed that the definitions did not provide clear and
objective standards to the jury.  We rejected the arguments and
held: 
          The General Assembly rewrote this aggravating
     circumstance in Act 683 of 1991 after this court declared
     in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988),
     that its statutory predecessor was unconstitutional in
     violation of the Eighth and Fourteenth Amendments to the
     federal constitution.  The 1991 statutory amendment
     includes language substantially similar, if not
     identical, to language upheld as constitutional by the
     United States Supreme Court in Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990). 
     Greene, 317 Ark. 350, 878 S.W.2d 384.  For the reasons
     stated by the Supreme Court in Walton, our statute is
     therefore not void on its face.
Id. at 629, 911 S.W.2d   at 945.  See also Johnson v. State, 326 Ark.
430, ___ S.W.2d ___ (1996).  Thus, the trial court correctly denied
Echols's motion to hold Ark. Code Ann.  5-4-604(8)
unconstitutional.
     Moreover, the statute is not unconstitutional as applied to
Echols.  In the present case, the jury was instructed on cruel and
depraved manner as follows:
          For definition purposes, cruel manner is defined: 
     A capital murder is in an especially cruel manner when as
     a 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.
          Depraved manner is defined as 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. 
There was substantial evidence to support the jury's determination
that the murders were committed in an especially cruel or depraved
manner.  At least one of the victims had defensive wounds.  The
autopsy revealed that two of the victims died by drowning, but that
their head wounds were so severe that they would have died from
them if they had not drowned.  There was evidence that these two
victims were tortured before they drowned.  The third victim bled
to death.  

     Echols contends that the death penalty imposed on him is out
of proportion to his conduct and is, therefore, cruel and unusual
punishment under the Eighth Amendment.  He argues that a
proportionality review is a requirement under Arkansas law and that
his death sentence should be compared to other death sentences in
Arkansas and, in particular, to Baldwin's sentence to life without
parole.  He contends that we might infer aggravating circumstances
from the nature and extent of the wounds, but argues that
mitigating circumstances outweigh aggravating circumstances. 
Finally, in this argument, he contends that when his death sentence
is compared to the life sentences of Baldwin and Misskelley, the
death sentence was "freakishly and arbitrarily applied."
     In Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), we
stated that we would no longer conduct proportionality reviews of
death sentences and cited Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995) for the reasons.  In Williams, we wrote:
          The state has asked this court to conduct a
     proportionality review which we have done in the past. 
     See Sanders v. State, 317 Ark. 328, 878 S.W.2d 391
     (1994); Parker v. State, 300 Ark. 360, 779 S.W.2d 156
     (1989); Hill v. State, 289 Ark. 387, 713 S.W.2d 233
     (1986).  Comparative proportionality review is not
     constitutionally mandated in every case where the death
     sentence is imposed.  Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984).  Our Legislature, by
     enacting recent sentencing procedures, has provided a
     statutory check on arbitrariness by requiring a
     bifurcated proceeding where the jury is provided with
     information on aggravating and mitigating circumstances,
     and with standards in the use of that information.  See
     Ark. Code Ann.  5-4-103, 5-4-603 -- 605 (Repl. 1993). 
     Additionally, our review upon appeal includes a review of
     the aggravating and mitigating circumstances presented to
     the jury and a harmless error review of the jury's
     findings.  See  5-4-603.
Id. at 352-53, 896 S.W.2d   at 772.  
                     Miscellaneous Arguments


     Echols states that at the time he filed his brief, the State
had not paid his attorneys.  He argues that the State's failure to
pay his attorneys violates his right to counsel, due process, and
equal protection.  Consequently, he contends, his capital murder
convictions and death sentences should be reversed and remanded or
dismissed.  In his argument, he incorporates by reference State v.
Crittenden County, 320 Ark. 356, 896 S.W.2d 881 (1995), which
concerns the payment of attorneys' fees in this case.  Echols does
not support his argument with any citation of authority or
convincing argument that his conviction should be reversed for
failure by the State to pay attorneys' fees by the time his brief
was filed.  We could summarily dismiss the point for failure to
cite authority, or make a convincing argument.  In Williams v.
State, 325 Ark. 432, ___ S.W.2d ___ (1996), we held:
          We do not reach the merits of many of these
     arguments because they are all essentially one-sentence
     assertions with no citation to supporting authority and
     without explanation as to how the cited portions of the
     constitutions have been violated.  We do not consider an
     argument, even a constitutional one, when the appellant
     presents no citation to authority or convincing argument
     in its support, and it is not apparent without further
     research that the argument is well-taken.  Roberts v.
     State, 324 Ark. 68, 919 S.W.2d 192 (1996).
Id. at 439, ___ S.W.2d at ___.
     However, the penalty in this case is death, and we prefer to
reach the merits of the argument.  In Patterson v. State, 306 Ark.
385, 815 S.W.2d 377 (1991), the defendant contended on appeal that
the "fee cap" statute limiting the amount paid to his appointed
counsel was unconstitutional.  We explained that we had previously
held that the statute limiting the amount of fees that can be paid
to attorneys appointed to represent indigent defendants was
unconstitutional.  We then held that we would not reverse a
conviction on the basis of the constitutional inadequacy of the
attorney's fee absent a showing that the defendant was prejudiced
by the inadequacy of the fee.  Here, there was no showing that
Echols was prejudiced in any manner by the State's failure to pay
his attorneys' fees by the time he filed his brief in this court. 
     Echols and Baldwin next argue that the trial court committed
cumulative reversible error.  However, neither has preserved a
cumulative-error argument because neither argued the issue to the
trial court.  Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371
(1995).  Baldwin concedes in his reply brief that he did not make
the required objection.  Echols's arguments center around various
comments made by the trial court.  Because of the sentences in
these cases, it has been necessary to make a review of all rulings
adverse to appellants, and we note that Echols did not object to
any of the individual comments he complains about in this point. 
Even under Rule 4-3(h) of the Supreme Court, we do not employ  the
plain-error rule.  Childress v. State, 322 Ark. 127, 907 S.W.2d 718
(1995).
     Baldwin next argues that the trial court committed error by
having contact with the jury, and erred in refusing to grant a
mistrial.  The situation here came about as follows.  After the
guilt phase of the trial was completed, but before the penalty
phase had begun, Echols's attorneys learned that the jury foreman's
daughter had received a death threat. They also learned that
another juror had received a threatening phone call.  
     The trial judge stated that he was aware of the call to a
juror because she had told him about it.  The judged stated that he
asked the juror if the call would affect her in any way, if she
wanted to be excused from the jury, and if she wanted a monitor
installed on her phone.  She answered "no" to all.  The judge
stated that he questioned the foreman, who responded that neither
he nor his family had received a direct threat but that there was
something "indirect" that had happened.  The judge did not to ask
him to be more specific.  The foreman said he had had about a "ten
second" discussion with the other jurors about the "indirect"
matter, but that it was not brought up during deliberations and was
never mentioned again.  He said it did not affect his ability to
render a fair and impartial verdict.  
     After the penalty phase and in the presence of counsel, the
trial court questioned the juror, who confirmed that she had
received a prank call, had reported it to the court, and had told
the court it would not affect her deliberations.  Another juror
verified that the court had instructed the entire jury to notify
him or the bailiff if they should be threatened in any way.  The
court then polled the jury, and each juror stated that their
deliberations had not been affected, that these things had not been
discussed during deliberations, and that no other threats had been
discussed during deliberations. 
     Baldwin contends the trial court erred by having contact with
the jury and not granting a mistrial.  We have often written that
a mistrial is an extreme remedy that should only be granted when
justice cannot be served by continuing the trial.  Bullock v.
State, 317 Ark. 204, 876 S.W.2d 579 (1994).  A trial court's
exercise of discretion will only be reversed when it is abused. 
Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994).  In matters
involving impartiality of jurors, we have consistently deferred to
the trial court's opportunity to observe jurors and gauge their
answers in determining whether their impartiality was affected. 
Holland v. State, 288 Ark. 435, 706 S.W.2d 375 (1986).  When the
record reflects that the trial court received assurance from jurors
that they could maintain their objectivity, we have held that
refusal to grant a mistrial rests on solid footing.  Clayton v.
State, 321 Ark. 602, 906 S.W.2d 290 (1995).  Thus, the trial court
did not abuse its discretion in refusing to grant a mistrial.
     The trial court did commit error in initially discussing the
matters with the foreman and the juror out of the presence of
counsel, but the trial court subsequently notified counsel that the
discussions had taken place, and then had counsel present when the
jurors were questioned.  Thus, there was no prejudice.
     Baldwin next contends that the trial court erred in granting
an ex parte continuance to the State.  The argument is based on the
following facts.  During Baldwin's defense, the prosecutor informed
the trial court that he found a necklace that Echols was wearing
when arrested, noticed some red spots on it, and sent it to the
crime laboratory for testing, which confirmed that the spots were
blood.  After the State's rebuttal, the prosecutor stated that he
wanted to reserve the right to reopen the next day if the testing
was complete.  The court reconvened two days later, on a Thursday,
and the prosecutor reported that the laboratory had found that one
spot of blood was consistent with the blood of Echols, one was
consistent with Baldwin, and one was consistent with Steve Branch. 
The prosecution asked to reopen the State's case, subject to
appellants' ability to contact an expert witness.  Appellant
argued, among other things, that the break in the trial had been
the result of an ex parte continuance between the prosecutor and
the trial court.  
     The court asked Baldwin what remedy he wanted, and if he
wanted a mistrial.  Baldwin said he would decide after the jury was
polled about how they got the information about the continuance and
whether they knew of the reason for the continuance.  After a
break, the prosecutor stated to the court that the State understood
that a mistrial would be granted as to Baldwin if the State
persisted in the necklace evidence; therefore, the State did not
want to reopen the case.
     Baldwin's counsel informed the trial court that it would be
fine to poll the jury at large.  When asked if any of them had
learned the reason the continuance was necessary, they answered,
"No."  The trial court also inquired as to whether the jury had
gained any information from any outside source and whether they had
followed the court's instructions.  The jurors responded that they
had followed the court's instructions. 
     Baldwin's argument on appeal is that the trial court should
have denied the continuance because the prosecutor did not file an
affidavit as required by Ark. Code Ann.  16-63-402(a).  This
argument was not made to the trial court, and we will not consider
it for the first time on appeal.  Moreover, the record indicates
that Baldwin got the relief he requested, polling the jury, and
that, in any event, he did not suffer prejudice because the
necklace and the evidence about the blood was not put before the
jury.  See Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986);
Goldsmith v. State, 301 Ark. 107, 782 S.W.2d 361 (1990).
     Baldwin next argues that the State of Arkansas, through the 
office of the prosecuting attorney, was guilty of such misconduct
that it necessitates reversal of the convictions and new trials. 
He contends that the office of prosecuting attorney was guilty of
the following: (1) abuse of subpoena power; (2) failure to disclose
Dr. Duke Jennings as a witness; (3) failure to disclose the search
of Echols's personal effects while in jail and failure to notify
appellants that it would introduce evidence of Echols's "doodling"
Baldwin's name; (4) conducting ex parte communications regarding a
continuance; (5) conducting a demonstration with a knife cutting a
grapefruit during closing.  This opinion has already discussed each
of the allegations and held they were without merit excepting the
alleged abuse of the prosecutor's subpoena powers.  Accordingly, in
discussing this point of appeal, we discuss only the alleged abuse
of subpoena powers.  
     Baldwin contends that the prosecutor used his subpoena power
in violation of the authority granted by Ark. Code Ann.  16-43-212
(Repl. 1994).  The prosecutor's subpoena power granted under the
statute was passed by the General Assembly to implement the power
of prosecutors to bring criminal charges by information.  Cook v.
State, 274 Ark. 244, 623 S.W.2d 820 (1981).  It was designed to
take the place of questioning by a grand jury.  Kaylor v. Fields,
661 F.2d 1177 (8th Cir. 1981).  The emergency clause to the statute
states that it was enacted to enable prosecutors to "properly
prepare criminal cases."  Cook v. State, 274 Ark. at 248, 623 S.W.2d   at 822.  The prosecutor may use the subpoena power to
investigate and prepare for trial as long as the power is not
abused.  Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). 
However, we will reverse a case in which a prosecutor abuses the
subpoena power.  Foster v. State, 285 Ark. 363, 687 S.W.2d 829
(1985); Cook v. State, 274 Ark. at 249, 623 S.W.2d   at 823. Baldwin
has made no showing of abuse.  All he proved is that the prosecutor
subpoenaed three witnesses, who did not testify at trial, and
subpoenaed his school records.  The trial court found that the
subpoenas were for investigation and preparation and did not amount
to an abuse of the power.  The finding was not in error.
     On March 29, 1994, Baldwin filed a motion for new trial
"pursuant to Rule 59 of the Arkansas Rules of Civil Procedure."  In
addition, Baldwin filed a motion requesting Judge Burnett to
disqualify so that "an impartial court could determine whether or
not the prosecution was guilty of misconduct in said ex parte
conversation." Judge Burnett issued an order on April 22, 1994,
denying the hearing, the motion for recusal, and the motion for
mistrial.  On appeal, Baldwin argues that he should have been
granted a hearing pursuant to Ark. R. Crim. P. 36.22 and that Judge
Burnett should have recused because the matter involved factual
disputes regarding his conduct.  
     Baldwin's motion stated that it was filed pursuant to "Rule 59
of the Arkansas Rules of Civil Procedure." He advances his argument
that the trial court was required to hold a hearing under Ark. R.
Crim. P. 36.22 for the first time on appeal, and a party cannot
raise an argument for the first time on appeal.  Even had it been
argued, he would not be entitled to a new trial solely because he
did not get a hearing.  Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996).  Similarly, the disqualification motion is without
merit.  The decision to disqualify is within the trial court's
discretion, and we will not reverse the exercise of that discretion
without a showing of abuse.  An abuse of discretion can be shown by
proving bias or prejudice.  Id.  Baldwin has shown neither bias nor
prejudice.
     In accordance with Rule 4-3(h) of the Rules of the Supreme
Court, the record has been reviewed for rulings adverse to both
appellants, but not argued on appeal, and no reversible errors were
found.   
     Affirmed.