                                     Cite as 2016 Ark. 395


                   SUPREME COURT OF ARKANSAS
                                        No.   CR-15-724

DARRELL NAPOLEON DENNIS
                                                  Opinion Delivered: November   17, 2016
                    APPELLANT

V.                                                APPEAL FROM THE PULASKI
                                                  COUNTY CIRCUIT COURT
STATE OF ARKANSAS                                 [60CR-13-2207]
                                    APPELLEE
                                                  HONORABLE CHRIS PIAZZA,
                                                  JUDGE

                                                  AFFIRMED.


                      COURTNEY HUDSON GOODSON, Associate Justice

           A jury in the Pulaski County Circuit Court found appellant Darrell Napoleon Dennis

 guilty of capital murder, two counts of aggravated robbery, and two counts of kidnapping.

 Because the State did not seek the death penalty for the crime of capital murder, Dennis

 automatically received a sentence of life in prison without parole for that conviction. Upon

 his election to forgo sentencing by the jury, the circuit court sentenced him as an habitual

 offender to concurrent terms of life in prison for the remaining offenses. For reversal,

 Dennis contends that certain rulings made by the circuit court denied him the right to self-

 representation; the right of confrontation; and the right to the assistance of counsel. We

 affirm.

                                      I. Factual Background

           Our review of the record reflects that during the early morning hours of May 10,

 2013, Forrest Abrams drove his red Chevrolet Tracker to the Golden Foods store located
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at 12th and Woodrow Streets in Little Rock so that Tyler Hodges could purchase cigarettes.

On the parking lot, Hodges encountered a man whom he did not know and who asked

Hodges for money. After buying the cigarettes, Hodges returned to Abrams’s vehicle and

entered the back seat. The man who had asked Hodges for money spoke with Abrams and

then got into the front passenger seat of the Tracker. Abrams drove out of the parking lot

and engaged in a conversation with the man about purchasing drugs. Not long thereafter,

the man pointed a gun at Abrams and demanded that Abrams change places with him in the

vehicle. Abrams complied, and the man drove the Tracker to a place on a street where they

were met by two young black males. The men confiscated Abrams’s and Hodges’s wallets

and forced them into another vehicle.

       The man encountered at the Golden Foods store drove this second vehicle to a bank

where he tried, unsuccessfully, to use Hodges’s debit cards in the ATM. According to

Hodges, the man became “very mad”; to placate him, Hodges told the man that he had

money at his cousin’s house on Booker Street. When they arrived at that location, the man

told Hodges that he was holding Abrams as “collateral” and that he would kill Abrams if

there was any “funny stuff.” One of the younger males escorted Hodges at gunpoint to the

front door of the home. When his cousin came to the door, Hodges managed to escape by

quickly going inside the house. Hodges called 911 to report what had occurred.

       Officer Eddie Seaton of the Little Rock Police Department responded to a call at

5:05 a.m. alerting of shots fired and a “man down” on the roadway at 11th and Woodrow

Streets. There, he found Abrams, who was deceased, having been shot four times in the

back. Officer Kelly Lapore located Abrams’s red Tracker at 8:30 a.m. at the intersection of


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Abigail and Charles Bussey Streets. The cover for the gas tank was open, and a nozzle from

a gas can was inserted into the tank. Officers found a gas can nearby. Inside the Tracker,

officers also discovered a note pad that had the word “Red” written on it along with a

phone number.1

       Detective Tommy Hudson investigated the homicide.            Based on information

provided by Hodges, he obtained still photographs from the bank taken at the ATM during

the transactions involving Hodges’s debit cards, which occurred at 4:36 a.m. The photos

captured a vehicle, a tan Geo Prizm, as well as the driver of the car. From the photographs,

Hodges identified the driver as the man from Golden Foods who had held him and Abrams

at gunpoint and had kidnapped them. Hudson disseminated photographs of the driver

throughout the police department. He later received information from another officer that

a confidential informant had identified Dennis as the driver of the Prizm.         Hudson

subsequently prepared a photographic spread for Hodges to view. Hodges selected Dennis’s

photograph from the array.

       The police located the Geo Prizm on May 22, 2013. This vehicle belonged to Edgar

Brown, a homeless man who routinely slept in the car on an empty lot at the corner of 24th

and Maple Streets. Edgar told Hudson that he was awakened on the morning of May 10,

2013, by two young black males. The males, whom he did not recognize, informed him

that “Red” had run out of gasoline on Abigail Street, and they asked Brown to take fuel to



       1
       At the trial, the parties stipulated that the phone number belonged to Dennis’s
grandmother and that Dennis used it as his contact number.



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“Red.” Brown stated that he drove to that street and that he saw two white males in a

vehicle with “Red.” When he was walking to the vehicle, a red Tracker, he saw that one

of the white men, referring to Hodges, appeared to be frightened. Brown said that as he

was putting gas in the tank, “Red” got into the driver’s seat of the Prizm. Brown protested,

and as he approached his vehicle, someone struck him in the head from behind. Brown ran

away, but two young men caught up with him and demanded at gunpoint that he turn over

the key to the Prizm. Brown threw the key and ran. He said that “Red” returned the

Prizm to him later that morning at the empty lot. Hudson also showed Brown a photo

array, and Brown selected the photo of Dennis as the man, whom he knew as “Red,” who

had taken his car.

       Based on the investigation, the police arrested Dennis on May 23. On June 5, 2013,

Alvin Cooper, a long-time informant, contacted Hudson. Cooper advised Hudson that he

was on the parking lot of the Golden Foods store purchasing gas for his Suburban the

morning of the abduction and that he saw there an acquaintance of his named “Red.”

Hudson showed Cooper a photo lineup, and Cooper chose the photo of Dennis as the man

whom he knew as “Red.” Hudson had also obtained videos from the store. The videos

were of poor quality and “jumped around” from frame to frame. During his testimony

about the video footage, Hudson stated that he could not confirm that anyone got into the

Tracker and that he could not say whether someone did not. However, the video placed

Abrams’s Tracker and Cooper’s Suburban at the store during the same time frame.

       Cooper died before the trial. The prosecution moved to admit Cooper’s testimony

from the pretrial hearing on Dennis’s motion to suppress the results of the photographic


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lineup viewed by Cooper. The circuit court granted that request over Dennis’s objection,

and a transcript of Cooper’s testimony from the hearing was read to the jury. Essentially,

Cooper testified that he saw Dennis on the parking lot standing by the passenger side of a

Tracker and that he called out to him but that Dennis did not respond.                He also

acknowledged that he had been paid for providing this information to the police. Before

the jury, the parties stipulated that Cooper had previous convictions of possession of cocaine;

two counts of hot-check violations; theft of property; and felon in possession of a firearm.

       At the trial, the State also offered the testimony of Sylvester Williams. Williams had

been in the Pulaski County jail with Dennis, and Williams testified that Dennis told him

that he was going to beat the charges due to lack of evidence because the camera from the

store did not reflect his presence. Williams also testified that Dennis expressed regret for

not killing the other victim.

                                    II. Self-Representation

       On appeal, Dennis first argues that the circuit court deprived him of his state and

federal constitutional rights to self-representation. Dennis contends that he unequivocally

invoked this right at a hearing on April 10, 2014, when he stated to the court, “Yes, sir, as

of right now, I’m invoking my right to represent myself. I won’t be needing Mr. James

anymore on my case.” He also asserts that a mental evaluation ordered by the circuit court

demonstrated that he was competent and without mental disease or defect, and he argues

that the circuit court at a subsequent hearing focused on the “irrelevant concerns” of his

limited educational background and his lack of legal experience and training in denying his




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request to proceed pro se. In response, the State contends that Dennis did not unequivocally

invoke the right of self-representation.

       The record reveals that a series of appointed attorneys represented Dennis over the

course of the proceedings. Initially, Julia Jackson and Thomas Devine provided assistance

as counsel. For reasons discussed later in this opinion, the circuit court relieved them in

December 2013 upon Dennis’s motion. William James next undertook the representation

of Dennis. In April 2014, Dennis filed a pro se motion seeking the removal of James. The

circuit court held a hearing on this motion on April 10, 2014. As Dennis points out, he did

inform the circuit court at the hearing that he was invoking the right to represent himself

in lieu of being represented by James. The circuit court postponed ruling on this request

until after the completion of a mental evaluation requested by the prosecution.

       The court revisited the matter at a hearing held on August 12, 2014. At this hearing,

Dennis continued to express his dissatisfaction with James. He advised the court, “I’m to

the point where I don’t want to represent myself, but I feel like I’m in a position where I

almost have to.” Dennis added, “I dont’s want to represent myself, you know, but I know

I have a constitutional right to waive counsel. I know that regardless. I don’t want to do

that.” In response, the prosecution noted that Dennis had the right to represent himself but

argued that Dennis’s invocation of that right was equivocal. The circuit court denied

Dennis’s request to relieve James. In its ruling, the circuit court explained,

       It is a serious juncture. I, and the weird thing about this issue is that like Judge
       Fox got reversed in Pierce v. State[, 362 Ark. 491, 209 S.W.3d 364 (2005)].
       You know, that’s a Grand Theft, you know, this is not a Capital, that’s not a
       Capital Murder where, where there’s life without possibility, and I just think
       the gravity of the, of the charge should make a difference on, and I know that,


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       you know, in the abstract, they’re going to say well, you know, make a
       knowing waiver, it doesn’t matter whether it’s Capital Murder or Grand
       Theft, but I think the complexity and the, and the possibility of the harsher
       sentences weighs in on that knowing waiver.

       You’ve got a fellow who, who got a high school diploma in prison who has
       very little knowledge of the criminal justice system who has made statements
       that seem somewhat out of bounds as far as reason goes. And if you, if you
       let that person go and represent themselves in this type of case, I think what
       you’re doing is looking at, at a reversible error there.

       As far as grievances, you know, and I have seen this happen so many times,
       you get folks that don’t like their lawyers; and if you don’t like the lawyer,
       hire your own. Can’t hire his own, so he’s gone through Tom Devine and
       Julie Jackson, who are both fantastic lawyers. And he’s got another really
       good lawyer, and, you know, I just, it’s my impression that he’s, he’s incapable
       of handling this type of case, and that he’s not, can’t make a knowing and
       voluntary waiver. And it’s also my impression that, that he’s got a good lawyer
       in Mr. James, and Mr. James is going to look at this case and decide what is
       in his best interest, what, the Defendant’s best interest, and that’s, that’s the
       most important thing in this case. That’s the most important thing to a fair
       trial is that he has a good lawyer and that lawyer is looking out for his interest.

       In August 2014, Dennis filed additional pro se motions to remove James, stating that

he desired the appointment “of new black counsel.” At the hearing on this motion, Dennis

made it clear that he did not wish to go forward with James. When pressed whether he was

seeking to represent himself, Dennis replied, “No, sir, I want appointment of two counsels,

two new counsels to represent me in this capital murder case.” The circuit court granted

Dennis’s motion to relieve James.

       Ronald Davis next entered an appearance on behalf of Dennis. In January 2015,

Dennis filed pro se motions to remove him, alleging a conflict of interest because Davis’s

wife had served as a spokesperson for the police department concerning the case. The court

granted this request.




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        On March 3, 2015, the circuit court conducted another hearing. The circuit court

noted Dennis’s previous motion for self-representation during James’s tenure as his attorney,

and the court stated that it was granting his motion and would have Devine return as stand-

by counsel. Dennis objected on the ground that the court had previously denied that

motion and that he had not renewed that request. Dennis further stated, “I’m not going to

take this case without counsel,” and he told the circuit court that, with regard to his request

for self-representation, “I’ve done got it out of my mind, you know, I had got it out of my

mind and my system.” The circuit court then ordered that Devine would represent Dennis

under the Conflicts Division. As with the previous appointments of counsel, the circuit

court granted a continuance. Devine represented Dennis at the trial that began on May 18,

2015.

        The Sixth Amendment to the United States Constitution, made obligatory upon the

states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the

right to have the assistance of counsel for his defense. Philyaw v. State, 288 Ark. 237, 704

S.W.2d 608 (1986) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). Article 2, section

10 of the Arkansas Constitution specifically provides that an accused in a criminal

prosecution has the right “to be heard by himself and his counsel.”            However, the

constitutional right to counsel is a personal right and may be waived at the pretrial stage or

at trial. Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005); Mayo v. State, 336 Ark. 275,

984 S.W.2d 801 (1999).

        In Faretta v. California, 422 U.S. 806 (1975), the United States Supreme Court

addressed the federal constitutional right of a criminal defendant to proceed pro se. The


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Court held that “in order to represent himself, the accused must knowingly and intelligently

forgo those relinquished benefits [traditionally associated with the right of counsel].” Faretta,

422 U.S. at 835. The Court further stated that, although a defendant need not have the

skill and experience of a lawyer in order to competently and intelligently choose self-

representation, he “should be made aware of the dangers and disadvantages of self-

representation so that the record will establish that he knows what he is doing and his choice

is made with eyes open.” Id. In Faretta, the Court also concluded that a defendant’s

technical legal knowledge is not relevant to an assessment of his knowing exercise of the

right to defend himself.

       This court has long recognized the right of a defendant under our constitution to

conduct his defense in a criminal trial, whether for felony or misdemeanor, if he elects to

do so. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975) (observing that the issue was

first addressed in Williams v. State, 153 Ark. 289, 239 S.W. 1065 (1922)). A criminal

defendant may invoke his right to defend himself pro se provided that (1) the request to

waive the right to counsel is unequivocal and timely asserted; (2) there has been a knowing

and intelligent waiver; and (3) the defendant has not engaged in conduct that would prevent

the fair and orderly exposition of the issues. Morgan v. State, 359 Ark. 168, 195 S.W.3d 889

(2004). We observe that the United States Supreme Court has qualified the right of self-

representation by holding that the federal constitution “permits States to insist upon

representation by counsel for those competent enough to stand trial under Dusky [v. United

States, 362 U.S. 402 (1960) (per curiam)] but who still suffer from severe mental illness to




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the point where they are not competent to conduct trial proceedings by themselves.”

Indiana v. Edwards, 554 U.S. 164, 178 (2008).

       We have previously held that the circuit court maintains a weighty responsibility in

determining whether an accused has knowingly and intelligently waived his right to counsel.

Jarrett v. State, 371 Ark. 100, 263 S.W.3d 538 (2007). Every reasonable presumption must

be indulged against the waiver of fundamental constitutional rights. Hatfield v. State, 346

Ark. 319, 57 S.W.3d 696 (2001).

       Dennis’s point is well taken that the circuit court focused on the irrelevant concerns

of his level of education and technical legal knowledge in its ruling at the August 2014

hearing. The court’s overall remarks are troubling because the court emphasized the

unsoundness of Dennis’s waiver rather than the question whether the assertion of the right

to self-representation was knowingly and intelligently made. In another case, such a ruling

might provide cause to reverse. However, we find no reversible error here because Dennis

did not unequivocally invoke the right to self-representation. Although Dennis requested

to proceed pro se at the April 10, 2014 hearing in an effort to relieve James, the circuit court

took that motion under advisement pending the outcome of the mental evaluation. See

Edwards, supra. When the court reconvened to consider the matter after the evaluation,

Dennis advised the court that he did not wish to represent himself but that he wanted James

removed as his attorney. At the subsequent hearing on Dennis’s renewed request to remove

James, Dennis sought the appointment of other counsel, and the court granted that motion.

Following the removal of Davis, Dennis openly eschewed his earlier request to proceed pro

se and without counsel. We have repeatedly held that a request to proceed pro se is not


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unequivocal if it is an attempt on the part of the defendant to have another attorney

appointed. Jarrett, 371 Ark. 100, 263 S.W.3d 538; Morgan, 359 Ark. 168, 195 S.W.3d 889;

Collins v. State, 338 Ark. 1, 991 S.W.2d 541 (1999). Because Dennis did not unequivocally

invoke the right to represent himself, we must affirm on this point.

                               III. Testimony of Alvin Cooper

       Next, Dennis asserts that the circuit court denied the right of confrontation by

allowing the pretrial testimony of Alvin Cooper to be admitted at the trial. He contends

that the circuit court’s reliance on Bertrand v. State, 363 Ark. 422, 214 S.W.3d 822 (2005),

is misplaced because that decision did not address the contours of a defendant’s right of

confrontation following the Supreme Court’s opinion in Crawford v. Washington, 541 U.S.

36 (2004). Dennis argues that the suppression hearing regarding Cooper’s identification was

not a full-fledged hearing and that the cross-examination of Cooper was limited based on

an objection raised by the prosecution to another witness’s testimony at the hearing. Dennis

asserts that he did not have a similar motive in cross-examining Cooper at the hearing as he

did at the trial and that the burdens of proof at the hearing and at trial are different. He

claims that the admission of the testimony was prejudicial because it corroborated Hodges’s

testimony about where the initial encounter occurred.           The State responds that the

admission of the testimony from the prior hearing does not violate the right of confrontation

and that the testimony was admissible pursuant to Rule 804(b)(1) of the Arkansas Rules of

Evidence. The State also asserts that the admission of the testimony was harmless.

       In Crawford, supra, the Court held that a testimonial statement cannot be admitted

into evidence unless the witness is unavailable to testify and the defendant had a prior


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opportunity to cross-examine the witness. Here, the witness is no longer alive and is thus

not available to testify at the trial. Dennis also had a prior opportunity to cross-examine the

witness. Therefore, we cannot conclude that the admission of Cooper’s prior testimony

stands in violation of the Confrontation Clause.

       The question remains whether the testimony is admissible under Rule 804(b)(1).

This rule sets out the hearsay exception for former testimony, and it provides as follows:

         (1) Former testimony. Testimony given as a witness at another hearing of the
       same or a different proceeding, or in a deposition taken in compliance with
       law in the course of the same or another proceeding, if the party against whom
       the testimony is now offered, or, in a civil action or proceeding a predecessor
       in interest, had an opportunity and similar motive to develop the testimony
       by direct, cross, or redirect examination.

In Bertrand, supra, we stated,

       In Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002), this court retraced its
       jurisprudence regarding Rule 804(b)(1). We observed that the admission of
       prior testimony requires both the opportunity to cross-examine the witness
       and a similar motive to develop his or her testimony. We further noted that
       we have consistently held that (1) where the prior testimony was at a full-
       fledged proceeding, (2) where the motive to cross-examine was similar, and
       (3) where the witness was unavailable, the testimony was admissible under
       Rule 804(b)(1).

Bertrand, 363 Ark. at 425, 214 S.W.3d at 824. This court has also recognized that similar

motive does not mean identical motive and that the inquiry is inherently factual. Id.

       Applying these principles, we have concluded that the motive to develop testimony

at a federal habeas-corpus hearing was sufficient for the admission of the testimony at trial.

Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993). We have approved the admission of

first-trial testimony in a second trial where the same issue and motive existed for cross-

examination.    Espinosa v. State, 317 Ark. 198, 876 S.W.2d 569 (1994).            This court


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determined in Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993), that previous

testimony given at a suppression hearing met the requirements of the rule. On the other

hand, we have found no similar motive to develop testimony at bond-reduction or bond-

revocation hearings. Beasley v. State, 370 Ark. 238, 258 S.W.3d 728 (2007); Proctor, supra.

This court has also reversed and remanded when the admission of testimony from a brief

preliminary hearing was admitted at trial under the rule. Scott v. State, 272 Ark. 88, 612

S.W.2d 110 (1981).

       In Bertrand, supra, we addressed the introduction of former testimony from a hearing

to suppress a witness’s photo identification of the defendant. Bertrand argued that he did

not have a similar motive to develop the witness’s testimony at the suppression hearing. He

asserted that the suppression hearing and his trial were different in terms of what was at stake

and the required burdens of proof. Bertrand also maintained that his cross-examination of

the witness at the pretrial hearing was insufficient. However, we concluded that defense

counsel had a similar motive for cross-examination at both proceedings. This court reasoned

that counsel needed to show at both the suppression hearing and the trial that the witness

was mistaken in her identification or that she was biased in some way. We also observed

that, had impeachment been necessary at the trial, it would have been equally as important

at the suppression hearing. This court also noted that the suppression hearing was a “full-

fledged” hearing where defense counsel could have impeached the witness had he chosen

to do so.

       The arguments raised by Dennis are similar to those we rejected in Bertrand. In

determining the admissibility of former testimony, our focus is on the nature of the hearing


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where the prior testimony was given and whether there existed a similar motive for cross-

examination. Our decision in Bertrand supports the circuit court’s decision here, and the

court’s reliance on that case is not misplaced. The purpose of cross-examination in both

instances was to cast doubt on the witness’s identification of Dennis and to show the

existence of a possible bias. As demonstrated by the record, the former testimony was

elicited at a full-fledged hearing. We hold that the circuit court did not err by allowing the

admission of Cooper’s testimony from the suppression hearing pursuant to Rule 804(b)(1).

In light of this holding, we need not consider the State’s harmless-error argument.

                           IV. Failure of the Court to Relieve Devine

       Dennis’s final point on appeal is the contention that the circuit court erred by failing

to relieve Devine as his trial counsel based on Devine’s statements to the court that he was

laboring under a conflict of interest. He contends that the court’s refusal to relieve Devine

interfered with Devine’s ability to represent him and denied him assistance of counsel.

Citing Eveland v. State, 263 Ark. 478, 566 S.W.2d 127 (1978), Dennis argues that defense

counsel was in the best position to determine whether a conflict existed. In response, the

State insists that no actual conflict of interest existed and that Dennis has failed to allege or

demonstrate prejudice flowing from Devine’s representation.

       On this point, the record reflects that, when the court first relieved Jackson and

Devine, it related to a criminal case in another division of the circuit court where Dennis

had entered a plea while being represented by Jackson and William Luppen. Jackson stated

at the time that she was not suffering from a conflict of interest, and the circuit court found

none. The court simply acceded to Dennis’s request to remove Jackson and Devine as his


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attorneys. When Devine reentered the case to represent Dennis, Devine advised the court

that a conflict existed because he was mentioned in Dennis’s pro se motion to have him and

Jackson relieved as counsel. The circuit court found no conflict of interest and declined to

remove Devine as Dennis’s attorney.

       The United States Supreme Court has held that where a constitutional right to

counsel exists, there is a correlative right to representation that is free from conflicts of

interest. Wood v. Georgia, 450 U.S. 261 (1981). The cornerstone principle in all conflict

cases is whether prejudice will result to the client as a result of the conflict of interest.

Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001). That prejudice must be real and

have some demonstrable detrimental effect on the clients and not merely be abstract or

theoretical. Id. (citing Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990); Sheridan v. State,

331 Ark. 1, 959 S.W.2d 29 (1998)). In Mickens v. Taylor, 535 U.S. 162, 171 (2002), the

Supreme Court stated that an “actual conflict of interest” means “a conflict that affected

counsel’s performance, as opposed to a mere theoretical division of loyalties.” There must

be a showing that the alleged conflict “actually affected the adequacy of [counsel’s]

representation.” Mickens, 522 U.S. at 171. We review this issue under an abuse-of-

discretion standard. Wilburn, supra. In the absence of a showing of prejudice, we will find

no abuse of discretion in the circuit court’s decision to deny counsel’s motion to withdraw.

Townsend v. State, 350 Ark. 129, 85 S.W.3d 526 (2002).

       Dennis does not identify the purported conflict of interest. Nor has he alleged or

demonstrated prejudice resulting from Devine’s representation.         We do not presume




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prejudice. Wilburn, supra. Based on these facts, we cannot say that the circuit court abused

its discretion by failing to disqualify Devine as trial counsel.

                                         V. 4-3(i) Review

          Because Dennis received sentences of life and life in prison without the possibility of

parole, the record has been reviewed for all errors prejudicial to Dennis, as required by

Arkansas Supreme Court Rule 4-3(i). No reversible error was found.

          Affirmed.

          HART, J., dissents.

          JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent. The issue

regarding Mr. Dennis’s desire to represent himself is not whether he preserved his argument

by raising it to the circuit court, because he unquestionably did so, numerous times.

Likewise, the issue is not whether Mr. Dennis obtained an unequivocal ruling on his

numerous requests to represent himself, because he unquestionably was unable to do so.

The sole issue is whether the circuit court went so far in thwarting Mr. Dennis’s desire to

represent himself as to deny him his constitutional right to do so. I contend that the answer

is yes.

          In Faretta v. California, 422 U.S. 806, 835 (1975) (footnotes omitted) (citations

omitted), the Supreme Court stated,

                  When an accused manages his own defense, he relinquishes, as a purely factual
          matter, many of the traditional benefits associated with the right to counsel. For this
          reason, in order to represent himself, the accused must ‘knowingly and intelligently’
          forgo those relinquished benefits. Although a defendant need not himself have the
          skill and experience of a lawyer in order competently and intelligently to choose self-
          representation, he should be made aware of the dangers and disadvantages of self-




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       representation, so that the record will establish that ‘he knows what he is doing and
       his choice is made with eyes open.

       Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge

that he wanted to represent himself and did not want counsel. The record affirmatively

shows that Faretta was literate, competent, and understanding, and that he was voluntarily

exercising his informed free will. The trial judge had warned Faretta that he thought it was

a mistake not to accept the assistance of counsel, and that Faretta would be required to

follow all the ‘ground rules’ of trial procedure. We need make no assessment of how well

or poorly Faretta had mastered the intricacies of the hearsay rule and the California code

provisions that govern challenges of potential jurors on voir dire. For his technical legal

knowledge, as such, was not relevant to an assessment of his knowing exercise of the right

to defend himself.

       In forcing Faretta, under these circumstances, to accept against his will a state-

appointed public defender, the California courts deprived him of his constitutional right to

conduct his own defense. Accordingly, the judgment before us is vacated, and the case is

remanded for further proceedings not inconsistent with this opinion.

       Here, Mr. Dennis clearly indicated that he wanted to take over his capital-murder

trial. The circuit court, however, went beyond making sure that Mr. Dennis was well

informed about the consequences of forgoing assistance of counsel. In my view, he coerced

Mr. Dennis into backing down and accepting a public defender.

       Obviously, appointed trial counsel will likely raise more of the issues that are available

to be raised in a capital-murder case. However, I question whether it is giving a defendant




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due process or just process—making it more unlikely that the case will be reversed on appeal

because some procedural point was missed. Lost somewhere is the fundamental truth that

it was Mr. Dennis’s trial, and it was his right to decide how it was to be conducted.

       I would reverse and remand this case to the circuit court.

       Tinsley & Youngdahl, PLLC, by: Jordan B. Tinsley, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee




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