Malvin Bynum v. State of Arkansas

2021 Ark. App. 16

• Court: Court of Appeals of Arkansas
• Decided: January 13, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 16 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.15 10:44:02 DIVISION II -05'00' No. CR-20-99 Adobe Acrobat version: 2022.002.20191 Opinion Delivered: January 13, 2021

MALVIN BYNUM APPEAL FROM THE FAULKNER APPELLANT COUNTY CIRCUIT COURT [NO. 23CR-17-667] V. HONORABLE CHARLES E. CLAWSON, JR., JUDGE STATE OF ARKANSAS APPELLEE REBRIEFING ORDERED; MOTION TO WITHDRAW DENIED WITHOUT PREJUDICE

KENNETH S. HIXSON, Judge

Appellant Malvin Bynum appeals after he was convicted by a Faulkner County

Circuit Court jury of battery in the first degree while employing a firearm as a means of

committing battery in the first degree. He was sentenced to serve a total of 180 months’

imprisonment in the Arkansas Department of Correction. Appellant’s attorney has filed a

no-merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court

Rule 4-3(k) (2019) and Anders v. California, 386 U.S. 738 (1967), asserting that this appeal

is wholly without merit. The motion is accompanied by an abstract and addendum of the

proceedings below, alleged to include all objections and motions decided adversely to

appellant, and a brief in which counsel explains why there is nothing in the record that

would support an appeal. The clerk of this court mailed a copy of counsel’s motion and

brief to appellant’s last-known address informing him of his right to file pro se points for reversal; however, he has not done so. 1 Consequently, the State has not filed a brief in

response. Because counsel’s no-merit brief is not in compliance with Anders and Rule 4-

3(k), we order rebriefing and deny counsel’s motion to withdraw without prejudice.

Pertinent to this appeal, appellant was charged by amended information with battery

in the first degree, and the State further alleged that appellant’s sentence should be enhanced

pursuant to Arkansas Code Annotated section 16-90-120 for having employed a firearm as

a means of committing the offense. 2 At trial, the victim, Julius Brown, testified that he had

texted appellant, Brown’s neighbor, to turn down the loud music. According to Brown,

appellant knocked on his door a short time thereafter and shot him after he had opened the

door. Virginia Mattison testified that Brown called her immediately after the incident.

Brown told her that appellant had shot him, and Brown asked her to call 911. Appellant

admitted that he knocked on Brown’s door to confront him about the music and text

message. However, appellant testified that another man named “Rip” was with him and

that it was Rip who had shot Brown. Appellant further testified that he did not know Rip

very well and that he could not provide any further information about Rip to law

enforcement. The jury found appellant guilty of battery in the first degree and that appellant

had employed a firearm as a means of committing battery in the first degree. This appeal

followed.

1 The packet was mailed to appellant by certified mail, and a return receipt indicates that delivery was accepted. 2 Appellant was also charged with failure to appear and attempted murder in the first degree. However, the jury acquitted appellant of attempted murder in the first degree, and the State nolle prossed the failure-to-appear charge.

2 Rule 4-3(k)(1) requires that the argument section of a no-merit brief contain “a list

of all rulings adverse to the defendant made by the circuit court on all objections . . . with

an explanation as to why each . . . is not a meritorious ground for reversal” and that “the

abstract and addendum of the brief shall contain . . . all rulings adverse to the defendant.”

Ark. Sup. Ct. R. 4-3(k)(1). Generally speaking, if a no-merit brief fails to address all the

adverse rulings, it will be sent back for rebriefing. Sartin v. State, 2010 Ark. 16, at 4, 362

S.W.3d 877, 880. The requirement for abstracting and briefing every adverse ruling ensures

that the due-process concerns in Anders are met and prevents the unnecessary risk of a

deficient Anders brief resulting in an incorrect decision on counsel’s motion to withdraw.

Sartin, 2010 Ark. 16, at 8, 362 S.W.3d at 882. For these reasons, a no-merit brief in a

criminal case that fails to address an adverse ruling does not satisfy the requirements of Rule

4-3(k)(1), and rebriefing will be required. Id.

Our review of the record reveals that although counsel has argued why the denial of

the directed-verdict motion is not a meritorious ground for reversal, counsel failed to address

several other adverse rulings in the argument section of the no-merit brief, and at least one

adverse ruling was not even abstracted. For example, starting on record page 247 (abstract

page 12), there was a pretrial discussion regarding whether certain testimony should be

excluded. Defense counsel objected to the testimony on the basis that it was duplicative.

However, the circuit court permitted some of the testimony discussed. Next, starting on

record page 338 (abstract page 35), defense counsel objected to the victim being permitted

to show his scars to the jury; however, the circuit court ruled that the victim would be

allowed to do so as long as it would not be disruptive to the proceedings. Starting on record

3 page 367 (abstract 45), the prosecutor objected to statements made by defense counsel

during the questioning of the witness, and the circuit court instructed counsel to ask a

question. On record page 450 (not abstracted), appellant asked the circuit court if he could

say something; however, the circuit court refused and stated that it would only allow defense

counsel an opportunity to question him further. Finally, starting on record page 477

(abstract 64), the prosecutor objected during closing statements. After an “[i]ndiscernible

sidebar discussion” took place according to the record, the circuit court admonished the

jury that it was not to rely on counsel’s recollection of the facts. Due to these deficiencies,

we deny counsel’s motion to withdraw and order rebriefing.

Accordingly, we order counsel to cure these deficiencies by filing a substituted brief

within fifteen days from the date of this opinion. We express no opinion as to whether the

new brief should be a no-merit brief pursuant to Rule 4-3(k)(1) or should be on meritorious

grounds. If a no-merit brief is filed, counsel’s motion and brief will be forwarded by our

clerk to appellant so that, within thirty days, he will again have the opportunity to raise any

points he so chooses in accordance with Rule 4-3(k)(2). In either instance, the State shall

be afforded the opportunity to file a brief in response.

Rebriefing ordered; motion to withdraw denied without prejudice.

ABRAMSON and GRUBER, JJ., agree.

McKay Law Firm, PLLC, by: Matthew McKay, for appellant.

One brief only.