*1
the consent
that KCC violated Board
namely
judgment,
regula-
tion, thus
the bonds
to Staton’s loss.
triggering
applicability
note
we
that American raises the alternative
Finally,
that if
court
determines that the
argument
language
loss,
bonds are
to Staton’s
it should not be
applicable
required
bonds,
on those
as the
pay
bonds were revoked effective October
1, 2001, and
did not
Staton
obtain her consent
until
judgment
24, 2002. American never raised the
April,
issue
the bonds’
Likewise,
effective date before the Board.
American never raised
the issue that the
bond that
be at
should
issue is
one
posted
for the Asher Avenue location. This court has
held that
repeatedly
defenses must be
first to the administrative
before
presented
agency
can be
to an
they
court
presented
See
consideration.
appellate
McGhee,
Reversed and dismissed.
Special joins. Lonnie Turner Justice J., Imber, participating.
Darra BARRITT v. STATE of Arkansas
CR 07-1038
Opinion February PLC, Burke, Burke, & Dossey Brian Thomas by: for appellant. *2 McDaniel, Gen., Sr. Ass’tAtt’y DavidR. Dustin by: Raupp, Att’y Gen., for appellee. Arkansas Robert L. State of Appellee Brown, Justice. the of court for review of court appeals’
petitioned the cross- in that court denied State’s which unpublished opinion of in the first Darra Barritt’s conviction battery appeal Appellant 06-1261 Ct. (Ark. See Barritt CACR Sept. degree. App. Barritt’s of conviction The court of affirmed 2007). judgment appeals the for our direct the leaving cross-appeal appeal, review. Id. the the State that circuit judge its argues cross-appeal, himself Barritt’s
erred in to recuse from sentencing refusing that this requests due hearing appearance ofimpropriety remand case for court sentence and the reverse judge’s under a different another judge. sentencing hearing 20, 2006, the these. Darra The facts of case are On June in Barritt the first causing was found guilty battery degree by her under serious to two-month-old injury physical daughter to circumstances extreme indifference the value manifesting human was a sentence of fifteen life. The verdict jury’s years’ $15,000. and a fine of scheduled incarceration judge for and then court. adjourned sentencing hearing June 20 and Sometime between one June June met with the circuit in chambers. Later on judge convicting jurors week, the same who was juror, apparently impressed in defense interested him for some counsel was hiring legal this, work, the State’s met with defense counsel. Learning recusal, that the filed a motion for asking prosecutor from the recuse himself sentencing hearing. judge considered at the recusal motion was This time, At that hearing. beginning June his interaction with as follows: juror characterized Court was one of the jurors particular approached [T]he — trial, what it day and some and I can’t remember caseafter later, was, three I don’t remember exactly, but it was or two or day — it, for right think of word basicallyexpressed trying the verdict in terms of both the regret findings some expressed recommendation finding jury’s of firstdegreebattery that. as and related some matters concerning The trial further commented: offended, offended,
And I’m a little bit if not a deal the idea great — me, that a that a juror would come talk to becausethat lot, but here in the would sit box and raisetheir hand happens — when he’s askedif this is their verdict his verdict and it sayyes, — is his verdict twice and then come back a or so later and day want to influence the ultimate of that verdict or execu- application tion of that verdict. Before Barritt’s discussed announcing are, law,
the five factors which to Arkansas the reasons according someone convicted of a crime. Ark. *3 See Code Ann. sentencing 1 The 16-90-801(a) then reduced Barritt’s 2006). (Repl. § sentence to twelve instead of the fifteen years’ imprisonment, years recommended the The also refused the by jury. jury’s $15,000 assessment of a fine.
Barritt the of conviction and appealed judgment affirmed, and the court of as referenced in this appeals already The State also which the court of opinion. cross-appealed, appeals dismissed under Rule of the 3(c) Arkansas Rules of Appellate - Procedure Criminal (2007). review, The State which this court petitioned granted, because, under Rule criminal 3(c), the State must be appeals by heard this court and not the court of Ark. R. appeals. App. review, P.-Crim. 3(c). the this court Having considers the granted 16-90-801(a) Arkansas Code Annotated states: § (a) The sentencing convicted of a crime are: primary purposes person (1) To an offender commensurate with the nature and extent of the harm punish taking caused the offense, into account that factors diminish or increase an may offender’s culpability; (2) To the restraining offenders; protect public by (3) To restitution or restoration to victims of crime the extent provide possible and appropriate; (4) To the assist offender toward rehabilitation and restoration to the as community a lawful citizen; (5) To deter criminal behavior and foster for the law. respect it had been filed “as originally State’s though cross-appeal Inc., Stores, court.” Wal-Mart VanWagner v. 123, 124 (2007). State, the circuit in its does not The dispute cross-appeal, Instead, the to reduce Barritt’s sentence. State authority judge’s from the case the erred in to recuse refusing urges the contact with a member of because the judge’s that, while The State notes created the appearance impropriety. sentences,2 have the to reduce criminal they may authority judges the not do so based on jurors regarding meaning testimony by the verdict.
Barritt, hand, the has not on the other notes that the was unfair or claimed that the sentence imposed by evidence; neither does the State dispute against weight State, only allegation by impartiality. out, Barritt is that the warrants points remand for a new hearing.
In criminal it is first necessary appeals under determine whether Rule 3(c) appeal proper —Criminal, Arkansas Rules of Procedure which states Appellate record, the trial attorney general, inspecting “[i]f state, been satisfied that error has committed prejudice and that the correct and uniform administration of the criminal law Court, he review take may appeal.” requires *4 under this an The circumstances which court will consider the State have often been reiterated this court: by appeal This court’sreview of the State’s is not limited to casesthat appeals As a matter of this court has would establishprecedent. practice, taken which are narrow in and involve the appeals scope of law. Where an does not an issueof present interpretation appeal ramifications, of the criminal rules with interpretation widespread held the correct this court has that such an does not involve appeal and uniform administration of the law. are not allowed Appeals to demonstratethe fact that the trial court erred. Where the merely 2 have in all cases of conviction to reduce the extent or “The court shall power assessed a so that the is not in case duration of punishment punishment the limit law in such cases if the conviction is reduced below proper prescribed by greater ought than to be inflicted under the circumstances of the assessed is punishment 16-90-107(e) 2006). (Repl. Ann. case.” Ark. Code §
399 turns on the facts resolution of issue appeal unique case, the is not one of our criminal requiring appeal interpretation ramification, rules with and the matter is not appealable widespread the State. Brooks, 499, 508, 504, State v. 360 Ark. 202 512 S.W.3d (2005) citations and (internal omitted). Stated quotations differently, court will consider an a State raises appeal by question circuit court’s of statute or rule but will not consider interpretation of a statute or rule question regarding judge’s application facts of a case. State v. Ark. 207 particular Boyette, 488, S.W.3d 491 (2005). The distinction between a State that involves a appeal and, therefore, the correct
question
interpretation
implicates
and uniform administration of the criminal law and an
appeal
and, therefore,
involves
merely
does not
question
application
broader concerns is illuminated
a review
implicate
of two cases
State
to a circuit
regarding
challenges
judge’s ruling
suppress
evidence. SeeState v.
Ark.
252 S.W.3d
Jones,
119 (2007);
Brown,
State v.
On
this court has considered the merits
multiple
of State
of a circuit court’s
appeals contesting
validity
imposi-
*5
tion of a sentence that did not
comport
statutory 545,
See,
State v.
364 Ark.
222
requirements.
S.W.3d
e.g.,
Joslin,
168,
366,
v.
State
319 Ark.
(2006);
(1995); cases, however, sentenc- these this court was merely interpreting of a circuit None of these casesinvolved the review ing guidelines. a decision of whether to recuse from court proceeding. that, Keller, this court is correct in Coran v. rule that “a trial before on a motion announced the to judge, ruling verdict, have an ex conversation should not modify parte about which caused them to with some of jurors anything 308, and that “to do so is error.” 295 Ark. assent to 310, verdict” But, case, 349, a civil 748 S.W.2d 350 Coran was (1988). Moreover, in 3(c). which did not consideration Rule require Coran, least to the circuit at some initiated degree, considered it in only, the ex communication but also explicitly parte 309, his decision to the verdict. Id. at 748 S.W.2d reaching modify at 350 didn’t make but two of them (“I any jury, inquiry said, in a trial and did were office week or two after this ‘What my think about our verdict in the’-what’s this-‘the Keller-Coran you said, Well, I I think case?’ made mistake y’all big putting said, ‘Now, on it.’ if had sent us just stipulation They Judge, you room, back into the we were to remove that prepared ”). stipulation.’
Recusal when required judge’s “impartiality might be Arkansas Code of Conduct reasonably questioned.” Judicial State, 325 Ark. 926 3(E)(1) (2007); Canon Turner that, has S.W.2d 847 This court further said (1996). “[t]he discretion, decision to recuse is within the trial court’s and it will not be reversed absent abuse. An abuse of discretion can be proved of bias or on the of the trial court.” by showing prejudice part Turner, Ark. at at 843 926 S.W.2d (citations omitted). too, is,
There
are
to be
point
judges
presumed
has the burden of
seeking
impartial,
party
disqualification
State,
otherwise. Davisv.
367 Ark.
401 35, State, 238 Howard v. 367 Ark. administration of justice.” S.W.3d 24, Rushen v. 464 U.S. 38 (2006) Spain, (quoting (1983)).
Because resolution of this State necessarily appeal case, is not one “turns the facts appeal unique of our criminal rules with widespread requiring interpretation ramification.” State Hagan-Sherwin, Therefore, under Arkansas Rule of 159 (2004). - Procedure Criminal this matter is not 3(c), appealable Appellate the State. dismissed. Appeal
Corbin, concurs. J.,
Glaze, dissents. J., Corbin,
Donald L. Because the State Justice, concurring. error due to the circuit failure to recuse alleges judge’s from the based an sentencing hearing upon appearance impropri- itself, rather than an error in the sentence I must ety, alleged agree - that under Arkansas Rule of Procedure majority Appellate However, Criminal this is not a I 3(c) write proper appeal. concern with what has in this case. separately express my transpired There is no doubt in mind that the ex communication my parte between the circuit and the with the juror, coupled judge’s decision to reduce created an Appellant’s appearance states, The Arkansas Code of Conduct impropriety. perti- Judicial nent part: Canon2. A avoid shall impropriety appearance impro- in all activities. priety
A. A shall with the respect comply law shallact at all times in a manner that confidence in the promotes public integrity impartiality judiciary. further test for Commentary explains “[t]he is whether the conduct create would in reasonable minds that the out perception judge’s ability carry judicial responsibili-
ties with integrity, impartiality, competence impaired.”
This is not to communication between say and a of a trial and course juror during per se error. It is an issue that must be examined on a basis case-by-case
in order to canons but also the uphold judicial as a As the whole. United States integrity judicial system Court out in Rushen v. 464 U.S. pointed 118-19 (1983) (footnotes (per curiam) omitted):
The lower federal courts’ conclusion that an unrecorded ex parte communicationbetween trial andjuror can never be harmless judge error these realities of courtroom life ignores day-to-day undermines in society’s interest the administration of criminal justice.
This is not to say ex communicationsbetween parte judge are never of serious concern or that a federal court on habeas never overturn a may convictionfor prejudice from resulting such communications. an' When communication relatesto trial, some the trial aspect should the judge generally disclose communication to counsel for all parties.
This case is a such situation where the communication was about the with the juror’s verdict and trepidation jury’s judge then reduced sentence and did subsequently Appellant’s away the fine that the had It does not matter that there is no imposed. actual the are tainted the impropriety alleged, proceedings appear- ance of A criminal defendant is entitled to a fair and impropriety. trial. The State is entitled to a fair and impartial trial. equally impartial While I am aware that communications such as certainly trial, the course a may I do feel it happen during to necessary remind the of this state that we are judges bound the judicial canons to avoid the which appearance us impropriety, requires to be in the proactive If protecting integrity justice system. to discuss matter approached by juror any during trial, course of the should be to record practice always any communication with the and to counsel juror, for both notify of the situation so that can be parties if at all they present, possible, the discussion. It during is tantamount to the administration of that a maintain a record of justice all communications avoid as well as to any avoid the to reconstruct the record from possibility having For memory. reason, we should err on the side of caution. always dissent, Justice, I dissenting. writing my Tom Glaze, — the facts set out in the even the
accept majority opinion offended juror’s regret that he was statement trial judge’s recommenda- verdict and jury’s Barritt’s Darra guilty regarding belief the State’s do I expressed Nor tion sentencing. question in this case. was that the judge impartial presumption Administrative Order law. This court’s is one of concern My reads as record of all proceedings No. 4 complete requires follows: the duty it shallbe parties, waivedon the record
Unless madeof all that a verbatimrecordbe circuitcourt to require of any matterbeforeit. contested proceedingspertaining Ark. 622 (2003). alsoRobinsonv. See involves a no that the instant case seriously There is question matter, Barritt’s contested namely sentencing. Regardless was offended whether juror’s seeking reduction in Barritt’s sentence from out in an to obtain a attempt *8 had a to make a that recommended judge duty jury, issue, verbatim record on the and he failed to do so. however, to be it is impartial; Clearly, judge presumed as clear that a shallavoid just impropriety appearance in all of the impropriety judge’s professional personal Here, when the first learned that the wanted conduct.1 juror with the Barritt’s case and visit judge regarding should have informed the that this matter must be on record, and then advised the counsel of parties respective disclosure, the need for a record. without such a Obviously, and counsel had no to voice an or opportunity objection parties the matter. waive record of making Robinson, announced to the bench and the bar we supra, that this court will construe Administrative strictly apply above, I and remand Order No. 4. For the reasons would reverse a different over the resentencing appoint preside case. 1 The of concern because in this case, particularly
judge reduced Barritt’s sentence.