                                   Cite as 2014 Ark. 373

               SUPREME COURT OF ARKANSAS
                                      No.   CR-13-927

STATE OF ARKANSAS                                 Opinion Delivered   September 11, 2014
                              APPELLANT
                                                  APPEAL FROM THE MISSISSIPPI
V.                                                COUNTY CIRCUIT COURT
                                                  CHICKASAWBA DISTRICT
SHAWN TREVELL RAINER                              [NO. 47CR-2009-193]
                                 APPELLEE
                                                  HONORABLE JOHN N.
                                                  FOGLEMAN, JUDGE

                                                  DISSENTING OPINION ON DENIAL
                                                  OF REHEARING.


                      JOSEPHINE LINKER HART, Associate Justice

       I stand by my identification of the mistakes of law and fact that I noted in my dissent.

The gross deviation from the previously settled standard of review, the abandonment of the

most basic rules of argument preservation—that the argument be raised and ruled on by the

trial court, and the application of an apparently new doctrine that this court may deny Rule

37 relief for any reason, are egregious enough to warrant a rehearing of this case. I,

however, wish to note an additional reason why not rehearing this case is a grave mistake.

In federal habeas corpus proceedings, our procedural default jurisprudence is granted

deference. We will likely lose that deference if federal habeas defendants successfully argue

that we do not apply our rules consistently. The majority in the case before us has clearly

deviated from the hitherto settled way in which we have procedurally limited and barred

arguments raised on appeal.
                                    Cite as 2014 Ark. 373

       First, Rainer notes in his rehearing petition, it was our settled practice to require that

specific arguments are made to the circuit court before we consider the same on appeal. He

cites as an example Walker v. State, 301 Ark. 218, 783 S.W. 2d 44 (1990), where this court

refused to consider an argument based on Arkansas Rule of Evidence 403 when the appellant

had only argued relevance to the trial court. Here, the State only argued relevance, yet the

majority—on its own initiative—stated that a relevancy argument automatically preserved

an argument based on Arkansas Rule of Evidence 405, which concerns methods of proving

character.

       Second, despite the fact that it is so well settled as to be axiomatic that we will not

consider an argument raised for the first time on appeal and that preservation of an issue

requires a contemporaneous objection and ruling by the trial court, the majority has chosen

a different path. In the case before us the State argued to exclude evidence under Rules 402

and 404, and never broached the subject of applicability of Rule 405. Accordingly, the trial

court never ruled on a Rule 405 argument. The majority’s contention that it was “readily

apparent” is simply not based on law or fact. As Rainer points out, this court is bound to

consider only the arguments actually raised to and ruled on by the trial court or risk

jeopardizing the entirety of our procedural default law and the deference its entitled to in

federal habeas because the State is getting special consideration that we have never afforded

a criminal defendant.

       HANNAH, C.J., and BAKER, J., join.




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