Lead Opinion
1 ,This is the second attempt
Appellant, a police officer, was arrested on a charge of misdemeanor second-degree assault in violation of Arkansas Code Annotated section 5-13-206 (Repl.2006) on allegations of choking an arrestee, Mr. Shelly Gibson, during the booking process. Appellant was | ¿represented by counsel and convicted in district court on October 2, 2009. His trial counsel claimed that the State did not file an information but instead charged appellant by virtue of an affidavit for warrant of arrest that was notarized, not by the district-court clerk, but rather, by the circuit-court clerk. At the de novo appeal of appellant’s misdemeanor conviction in the Woodruff County Circuit Court, no valid arrest warrant was presented in response to appellant’s argument that the circuit court lacked jurisdiction by virtue of the afore-referenced ineffective charging document. The jury found appellant guilty of second-degree assault
Subsequent to filing his appellate brief, counsel was contacted by Mr. John Bell, who prosecuted both the misdemeanor case and the de novo appeal. Mr. Bell informed appellant’s counsel that a valid arrest warrant existed in the records of the Woodruff County District Court, Augusta Division, the court that initially convicted appellant of misdemeanor second-degree assault. The warrant, however, was neither made a part of the abstract or addendum nor submitted to contradict appellant’s argument in circuit court that the affidavit for warrant of arrest constituted an ineffective charging document under Arkansas law. Because appellant’s counsel believed that the failure to bring the charging document to the court’s attention would violate Arkansas Rule of Professional Conduct 8.4(c) (2012), appellant sought and was granted leave to file a second supplemental addendum, which he did on March 14, 2012.
_JjThe Second Supplemental Addendum contains two documents, one being the affidavit for warrant of arrest notarized by the circuit-court clerk. Also included is the arrest warrant signed by Special Judge Teresa L. Hughes, the judge assigned to the misdemeanor trial in Wood-ruff County District Court, Augusta Division,
I. Effectiveness of Arrest Warrant
A person convicted of a criminal offense in a district court may appeal the judgment of conviction to the circuit court for the judicial district in which the conviction occurred pursuant to Arkansas Rule of Criminal Procedure 36 (2012). In criminal cases, it is the duty of the district-court clerk to prepare and certify the record upon written request by the defendant; it is the duty of the defendant to file the certified record with the circuit court upon its preparation by the district-court clerk. Ark. R.Crim. P. 36(c). The record is to include at a minimum a certified copy of the district-court docket sheet. Id. An appeal from a judgment of conviction in a district court shall be tried de novo in the circuit court as if no judgment had been rendered in the district court. Ark. R.Crim. P. 36(g). A de novo trial is defined as “[tjrying a matter anew; the same as if it had not been heard before and as if no decision had been previously rendered.” Black’s Law Dictionary (5th Ed.). Rule 36 does not place the burden on the defendant to file any paperwork from the district court he considers to be pertinent to his appeal. See, e.g., McNabb v. State,
Appellant argues that the arrest warrant was ineffective because it neither charged him with a criminal offense nor gave the lower court or this court jurisdiction. He acknowledges that misdemeanors and violations of city ordinances need not be charged by information or indictment. Lovell v. State,
There is a presumption on trial that an offense charged was committed within the jurisdiction of the court. Ark. Code Ann. § 16-88-104 (Repl.2005). Appellant submits that this statute inherently requires that there be a charge before there can be jurisdiction, or even the presumption of jurisdiction. If a court lacks jurisdiction, an attempt to make a further order is void and the issue of jurisdiction may be raised at any time. Pike v. State,
In Van Daley v. State,
Here, appellant claims that the only file-marked charging instrument — the arrest warrant filed on October 7, 2009 — was ineffective because it was not signed by either a judicial officer or the clerk of the district court. Instead, it was merely file-marked by the circuit clerk. The charging instrument stated “See Attachment” on the line intended for the signature of the judge or clerk of the court and for the line intended for the signature of the officer of service. Because of the deficiencies noted above, appellant urges that he was not properly charged, and accordingly, the conviction should be declared void and his case dismissed for lack of a charge and lack of jurisdiction.
Appellant adds in his supplemental argument that the State’s failure to contradict his argument in the Woodruff County Circuit Court
We disagree and hold that the issues related to the charging instrument do not support a reversal of appellant’s conviction. Appellant’s prosecution commenced on February 26, 2009, when the warrant of arrest, based on the affidavit for warrant of arrest, was issued. A
The purpose of an arrest warrant is to have an accused arrested and brought before the judge or other officer issuing the warrant so that he may be dealt with according to law. State v. Richardson,
Appellant does not assert that the affidavit was an invalid charging instrument based on its failure to meet these constitutional notice requirements, but rather argues that the affidavit for warrant of arrest was ineffective as a charging instrument because it was not signed by a judicial officer. A prosecuting attorney is not required to receive judicial approval prior to filing a charging instrument whether it is in the form of an information, indictment, affidavit for warrant of arrest, or citation. See State v. Brooks,
We hold that appellant’s challenge to the circuit court’s jurisdiction, based on the failure of a judicial officer to authorize the clerk’s issuance of the arrest warrant, is meritless. See Van Daley, supra. A court’s jurisdiction to try an accused does not depend upon the validity of the arrest warrant. Biggers v. State,
II. Exclusion of Expert Testimony Concerning Defensive Tactics
The decision to admit or exclude evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Grant v. State,
Special Agent Phillip Hydron of the Arkansas State Police was requested by Woodruff County law enforcement to conduct an independent investigation to determine
The State did not call Special Agent Hydron to testify during its case-in-chief, and appellant renewed his objection to the exclusion of Special Agent Hydron’s charging recommendations after the State rested. The trial court clarified that the only evidence excluded was Special Agent Hy-dron’s opinion whether appellant’s actions constituted criminal Inactivity. The trial court allowed appellant to proffer Special Agent Hydron’s testimony. Special Agent Hydron’s testified that he did not believe appellant had committed a criminal offense based in part on his opinion that appellant’s hand position, as reflected in the booking photographs introduced as State’s Exhibits 3 and 4 was consistent with pressure-point control tactics (“PPCT”) taught to law-enforcement officers.
During direct examination in appellant’s case-in-chief, Special Agent Hydron testified that he was a certified defensive-tactics instructor in PPCT and violent-encounter resolution skills (“VERS”). As appellant’s counsel began questioning Special Agent Hydron regarding appellant’s hand positioning as reflected in State’s Exhibits 3 and 4, the State objected on the grounds that, regardless of any area of expertise, he was a fact witness who was not qualified to testify as to whether appellant’s actions constituted a criminal offense. The trial court sustained the objection, and appellant passed the witness without further questioning or argument to the trial court. Appellant did not request that the trial court clarify whether Special Agent Hydron was precluded from giving any opinion testimony or only opinion testimony regarding the appropriate charging decision. Appellant renewed his objections at the end of his case-in-chief.
Appellant argues that the trial court acted thoughtlessly and without due consideration in excluding Special Agent Hydron’s testimony regarding appellant’s defensive tactics and finger positioning by cutting off appellant’s response to the State’s objection before appellant’s counsel had even finished his first sentence. He contends that this exclusion was a violation | inof his due-process and compulsory-process rights under the U.S. Constitution and should have been allowed under the Arkansas Rules of Evidence.
A. Constitutional Argument
In Crane v. Kentucky,
Appellant was convicted of misdemeanor second-degree assault for his actions in restraining an intoxicated Mr. Gibson for his booking pictures, which were required by law. The evidence presented at trial included the required booking pictures, which show appellant’s hand around the neck area of Mr. Gibson. Appellant claims that he was deprived of the opportunity to have his finger positioning explained by an unbiased expert witness with expertise in the field of defensive tactics.
We disagree. A party is bound on appeal by the nature and scope of the objections and arguments presented below. Reed v. State,
Additionally, we note that the trial court did not keep appellant from eliciting Special Agent Hydron’s opinion regarding appellant’s hand positioning in the booking photographs; that testimony was precluded by appellant’s failure to argue that this opinion, unlike his opinion as to the appropriate charging decision, was within his purview or area of expertise.
B. Rules of Evidence Argument
Under Rule 403 (2010) of the Arkansas Rules of Evidence, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of having an unfair prejudicial impact on the jury, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence or determining a fact in issue, or, stated differently, whether the trier of fact can receive aid from such testimony. Utley v. State,
Special Agent Hydron explained in proffered testimony that appellant’s fingers were “out bound” and were not in a position to choke somebody. Appellant argues that this factual exculpatory testimony, based on an expert’s observance of finger and hand positioning, h ¡.would have had neither a prejudicial impact on the jury nor any of the other effects considered under Rule 403. He maintains that the testimony was extremely probative as it would have considerably aided the jury to make a more informed decision, knowing the difference between “out bound” fingers and fingers in a position to choke somebody — or otherwise in a position with a substantial risk of causing physical injuries.
The State’s argument to the trial court was that the testimony was inadmissible because Special Agent Hydron was not there to give opinions, but instead to reveal the facts of his investigation. Appellant submits that Special Agent Hydron’s proffered testimony was not based on opinion, but on facts that he was able to explain due to his training and experience and observations of the photographs. He concludes that the trial court abused its
Arkansas Rule of Evidence 704 governs expert opinions touching on the ultimate issue and provides that testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Arkansas Rule of Evidence 702 (2010) provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. It is within the trial court’s discretion to determine whether a witness possesses specialized knowledge qualifying him or her to testify 113as to a factual issue, and, absent an abuse of discretion, the trial court’s decision will not be reversed on appeal. See Whaley v. State,
Affirmed.
Notes
. On January 18, 2012, we ordered rebriefing because appellant failed to comply with Arkansas Supreme Court Rule 4 — 2(a)(8) (2011) by failing to include in his addendum any of the relevant documents from the original Woodruff County District Court proceeding. See Clark v. State,
. We note that the arrest warrant included in the second supplemental addendum appears to be a facsimile copy that is neither file-marked nor otherwise marked as part of the record in this matter.
. This was a trial de novo of the initial misdemeanor conviction.
Concurrence Opinion
concurring.
I agree that this case should be affirmed, but I write separately because I disagree with how the majority disposes of the evidentiary issue regarding the exclusion of Special Agent Hydron’s testimony. In my view, the argument that Clark makes on appeal is simply not preserved.
The trial court’s ruling in limine precluded Hydron from testifying about his conclusion that, after investigating the incident in question, Officer Clark did not commit a criminal offense. Clark called Hydron in his case in chief. He elicited testimony from Hydron that Hydron was a defensive-tactics expert who instructed police officers in “pressure point control tactics” and “violent encounter resolution skills.” Hydron testified that he [ ^learned these skills at an instructor’s course, where he earned a certification. He also testified that he had previously testified in court as an expert witness in three cases. Clark, however, did not ask the trial court to recognize Hydron as an expert.
When Hydron was asked about Clark’s hand position on the booking photo of the alleged victim, the State objected. The following exchange took place:
MR. Crumpton (for the defense): Is it your understanding that the hand in the picture, whose hand is that?
Mr. Long (for the State): Judge, the pictures speak for themselves. We all agree whose hand it is, who it’s a picture of. Beyond that, they speak for themselves, and based on the Court’s previously [sic] rulings, I object to this line of examination. In other words, tell the jury what they see. They can look at it.
Mr. Crumpton: Your honor, he’s just testified he’s an expert in that field. He can, may we approach, your honor?
The Court: You may.
Mr. Long: I don’t care if he’s a thermal [sic] nuclear physicist. He’s here to give fact testimony. He—
Mr. Crumpton: I mean — (inaudible).
Mr. Long: May I be allowed to continue with my objection, your honor?
The Court: Yes, sir.
Mr. Long: I don’t care if he’s a thermal [sic] nuclear physicist. He’s here to testify as a fact witness. He is not qualified to give testimony on whether something is or is not a battery or assault in the first degree or assault in the second degree or assault in the third degree because those are mixed questions of law and fact, which this jury will decide after it has heard the facts and been properly instructed on the law by this jury [sic]. This is an attempt by defense counsel to invade the providence [sic] of the jury, and I object to it.
Mr. Crumpton.- Can I? We have a picture the State has introduced.
| 1bThe Court: Objection is sustained.
Mr. Crumpton: Mr. Hydron, I’m going to go ahead and—
The Court: Lawyers, we’re taking a recess. (Whereupon the following was had in chambers.)
The Court: There is a major trial over there in Monroe County. It is serious. It is aggravated robbery or something like that. We’re not going to finish with Hydron today. I’m going to let him go. I’m not going to conclude this case today. I see now it ain’t going to happen. We’re going to recess this trial and resume this trial on Monday. But what I’m waiting to address, would you ask Hydron to step in.
When the trial resumed, Clark’s counsel simply passed the witness without any further questions. It is obvious from the foregoing quotation that if it was Clark’s intention to make what I believe is a very sound argument on appeal, it was not made or ruled on at trial. The argument that the trial court did rule on — the objection made by the State — is the argument that the majority has affirmed. The only problem is, it is not the argument that Clark makes on appeal.