Brown v. State

2012 Ark. 399, 424 S.W.3d 288, 2012 WL 5270123, 2012 Ark. LEXIS 423
CourtSupreme Court of Arkansas
DecidedOctober 25, 2012
DocketNo. CR 12-182
StatusPublished
Cited by24 cases

This text of 2012 Ark. 399 (Brown v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 2012 Ark. 399, 424 S.W.3d 288, 2012 WL 5270123, 2012 Ark. LEXIS 423 (Ark. 2012).

Opinion

DONALD L. CORBIN, Justice.

| Appellant, Bruce Wayne Brown, appeals the judgment of the Garland County Circuit Court convicting him of the rape of B.B., his minor stepdaughter. As Appellant was tried and sentenced by a jury to a term of imprisonment for life, jurisdiction of his appeal is properly in this court pursuant to Ark. Sup.Ct. R. l-2(a)(2) (2012). For reversal, he contends the circuit judge erred in not recusing and in making two separate evidentiary rulings. We find no error and affirm the judgment of conviction.

Appellant does not challenge the sufficiency of the evidence; therefore, we need not recite the evidence in detail. However, the following evidence is relevant to the issues presented on appeal. In June 2010, Appellant was charged by felony information with two counts of rape, with one count involving B.B. and the other involving G.B., his wife. The rape charge involving his wife was later nol-prossed. With respect to B.B., however, the information alleged that Appellant engaged in sexual intercourse or deviate sexual activity |2with his minor stepdaughter over the course of almost seven and one-half years from November 2, 2002, through April 27, 2010. The jury saw and heard testimony as well as scientific evidence. B.B. testified that Appellant used his penis and a dildo to penetrate her orally, vaginally, and anally on a weekly basis from the time she was ten until she was seventeen years old. B.B. stated that the first time Appellant raped her she was ten years old and was hospitalized for surgical repair to her vagina following that initial rape. She also testified that Appellant was in charge of disciplining her and used anal penetration as a form of punishment, leaving her bloody and incontinent. Arkansas State Crime Laboratory employees testified as to the results of the sexual-assault examination that was performed on B.B., as well as to the results of the scientific testing performed on items taken from the home where Appellant and his family lived. The employees testified that semen was found inside B.B.’s vagina, on her bed sheet and mattress, and on a blanket. They also testified that Appellant’s DNA was found on the bed sheet and mattress. In addition, the jury also heard testimony from a registered nurse who was employed as a sexual-assault nurse examiner with Cooper Anthony Mercy Child Advocacy Center. The nurse testified that B.B. had a markedly abnormal exam, showing multiple occasions of penetrated trauma' to her vaginal area. As noted, after finding Appellant guilty of rape, the jury sentenced Appellant to life imprisonment. Appellant timely filed this appeal, raising three points for reversal.

Appellant’s first point for reversal is that the circuit court erred in denying his motion for the trial judge to recuse. Appellant moved for the recusal during a pretrial hearing on the State’s motion to admit evidence under Rule 404(b) of the Arkansas Rules of Evidence. The lRrequest came just prior to the consideration of testimony from S.S., who ultimately testified at trial that when she was turning thirteen years old during the summer of 1991, Appellant had raped her while she was a guest of Appellant’s brother’s family on a camping trip at a nearby lake. The basis of Appellant’s request for the trial judge’s recusal was that the trial judge had served as a deputy prosecuting attorney on a case in'1991 in which Appellant had been charged with raping S.S. At the hearing, Appellant acknowledged that the charge had been nol-prossed, but argued that it would still be inappropriate for the trial judge to preside over a matter involving a case in which she had previously acted as a deputy prosecutor. Appellant requested that the trial judge recuse and that his case be reassigned to another judge that did not have knowledge of the ■witness S.S. or her particular case.

At the hearing, the trial judge stated that, even after seeing Appellant and S.S., she had no recollection of Appellant, S.S., or the 1991 case. The trial judge stated further that she felt she was not biased in any way because of that .case, and thus denied Appellant’s request that she recuse.

On appeal, Appellant 'maintains that S.S.’s testimony was clearly prejudicial, as the jury imposed the harshest penalty allowed by statute. Appellant argues that the refusal of the trial judge to recuse was therefore an abuse of discretion that prejudiced his right to a fair trial. He contends that the trial judge had a duty to recuse once she was made aware that she had been the deputy prosecutor in a previous case involving Appellant as the defendant and the prior victim as a potential Rule 404(b) witness in the present case.

| ^Judges must refrain from presiding over cases in which they might be interested in the outcome, in which any party is related to them by consanguinity or affinity within such degree as prescribed by law, or in which they may have been counsel or have presided in any inferior court. Ark.' Const, amend. 80, § 12. In the predecessor version of this constitutional provision, this court has interpreted the language “may have been of counsel” to be a reference to the case being tried. Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982) (interpreting Ark. Const, art. 7, § 20 (repealed by Ark. Const, amend. 80), and citing Bledsoe v. State, 130 Ark. 122, 197 S.W. 17 (1917)). Accordingly, this court has held that “it is not, in and of itself, error for a trial judge to preside over a case involving a defendant whom the judge previously prosecuted.” Irvin v. State, 345 Ark. 541, 553, 49 S.W.3d 635, 643 (2001).

Judges must also perform their duties impartially, without bias or prejudice. Ark.Code Jud. Conduct R. 2.2 & 2.3(A) (2012). Judges are presumed to be impartial, and the person seeking the recu-sal bears the burden of proving otherwise. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003). The trial judge’s decision not to recuse is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Id. To decide whether there has been an abuse of discretion, this court reviews the record to determine if prejudice or bias was exhibited. Id.

Our review of the record reveals there was no bias or prejudice exhibited by the trial judge toward Appellant. Appellant argues, however, that simply bringing the judge’s attention to what he asserts was a potential conflict, that she had once served as deputy prosecutor against him for a crime involving the potential Rule 404(b) witness, was enough |Rto warrant recusal. This argument is without merit. As argued by the State and discussed in detail under Appellant’s second point for reversal, the circuit court’s ruling on the potential Rule 404(b) witness was a ruling well within the court’s discretion. “The mere fact that some rulings are adverse to the appellant is not enough to demonstrate bias.” Gates v. State, 338 Ark. 530, 545, 2 S.W.3d 40, 48 (1999). Likewise, the mere fact that a judge previously prosecuted a defendant for a separate crime is not by itself grounds for recusal. Irvin, 345 Ark. 541, 49 S.W.3d 635. In addition, a judge need not recuse because that judge had previously prosecuted the defendant for a separate crime that was to be used for sentence-enhancement purposes. Turner v. State, 325 Ark.

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Bluebook (online)
2012 Ark. 399, 424 S.W.3d 288, 2012 WL 5270123, 2012 Ark. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-ark-2012.