# Brown v. State > Supreme Court of Arkansas · November 4, 2010 · 378 S.W.3d 66 URL: https://www.frixlaw.com/law-library/cases/5110887 ## Case - **Full name:** Randy Paul BROWN v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** November 4, 2010 - **Citations:** 378 S.W.3d 66; 2010 Ark. 420; 2010 Ark. LEXIS 520; 2010 WL 4353646 - **Precedential status:** Published - **Opinion:** Concurrence by Hannah - **Judges:** Danielson, Hannah, Sheffield - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5110887 ## How later opinions describe it (automated extraction) - holding that evidence of prior or subsequent uncharged criminal conduct can be admissible at the penalty phase of a trial if it is relevant evidence of the defendant’s character or as character evidence or evidence of an aggravating circumstance - rejecting Brown’s argument that trial court erred in admitting evidence of an alleged sexual assault that occurred thirty-four years prior and for which he was never charged or convicted; holding that evidence of prior assault in Brown’s sentencing for his sexual-assault convi… ## Opinion text HANNAH, Chief Justice, concurring. I concur in the decision reached by the majority. It is correct based on existing precedent. However, the current precedent on Arkansas Code Annotated section 16-97-103 (Repl.2006) is in error. This court’s statement in Crawford v. State, 362 Ark. 301, 304 , 208 S.W.3d 146, 148 (2005), that section 16-97-103 “provides a list of new evidence that may be admitted in the sentencing phase, although such evidence might not have been admissible during the guilt phase of the trial,” is clearly wrong. 1 In Hill v. State, 318 Ark. 408 , 887 S.W.2d 275 (1994), decided in the year following the adoption of section 16-97-103, 2 we noted that section 16-97-103 concerned evidence that was to be deemed relevant in the sentencing stage of a criminal trial; however, we stated that “[t]he introduction of evidence during this stage must be governed by our rules of | ^admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster.” Hill, 318 Ark. at 413 , 887 S.W.2d at 278 . This court in Hill further stated that “we hold steadfast to our previous holdings that, where there is a conflict between our procedural rules and a statute, statutes are given deference only to the extent to which they are compatible with our rules, and that conflicts which compromise those rules are resolved with our rules remaining supreme.” Id., 887 S.W.2d at 277 . Thus it was clear under Hill that section 16-97-103 was seen only as advisory and even then applicable only to the extent it did not conflict with our own rules of evidence. The analysis in Hill clearly precludes the statement in Crawford. Admissibility of evidence in sentencing is governed by our rules of evidence. Hill, 318 Ark. at 413 , 887 S.W.2d at 278 . Arkansas Rule of Evidence 404(b) controls admission of character evidence at all stages of criminal proceedings. As the circuit court initially determined in the present case, the thirty-four-year-old uncharged misconduct was not sufficiently close in time or nature to be admissible under Rule 404(b). It is patently nonsensical to conclude that character evidence excluded under Rule 404(b), a rule of this court determining relevance, is admissible under a statute. This court’s holding in Hill that our rules govern the sentencing phase as well as the guilt phase of trial precludes the assertion that a distinction on relevance is to be made based on section 16-97-103. The evidence is either relevant and admissible under this court’s rules of evidence or it is not. If evidence is irrelevant under our rules of evidence, but admitted under a grant of statutory authority, there is a due-process problem. If there is an issue of whether character |1flevidence is inadmissible for purposes of proving guilt but admissible for purposes of sentencing, it is a question of relevance decided by application of Rule 404(b). Rules, and in this case a statute such as section 16-97-103, contain shorthand descriptions of the legal principles they are intended to reference. The holdings of this court control and define what the rules provide, not vice versa. Section 16-97-103 does not control relevance. Relevance is an issue for this court to decide, and our decisions in that regard necessarily control the meaning of the rules, or in this case a statute. If we permit a rule to define what the holding must be, we have put the cart before the horse and abdicated our duty. The error in the interpretation of section 16-97-103 should be addressed by this court at the first opportunity. DANIELSON, J., joins. . The General Assembly recognizes that it may not establish rules of practice or procedure. Arkansas Code Annotated section 16-11-301 (Repl.2010) states that “[a]ll statutes concerning pleading, practice, and procedure in all courts shall be deemed superseded by rules adopted by the Supreme Court pursuant to Arkansas Constitution, amendment 80, § 3, or pursuant to the Supreme Court's constitutional, inherent, or statutory authority prior to the effective date of Arkansas Constitution, amendment 80.” . See Acts of Mar. 16, 1993, Nos. 535, 551, 1993 Ark. Acts 1505 , 1624. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5110887. Public record. Not legal advice.