dissenting. This court, sitting en banc, has today denied the appellant’s petition for a rehearing of the court’s opinion handed down on July 6, 1994. In his brief on appeal, the appellant argued that the evidence was insufficient to support his convictions for first degree murder and kidnapping and, alternatively, that the trial court erred in refusing to instruct the jury on the lesser included offense of second degree murder. A panel of this court affirmed the convictions, and I agreed with the majority opinion on the second point. However, the opinion failed to address the sufficiency argument because, the majority said, the appellant did not preserve that point by a proper motion for directed verdict. I thought the evidence was sufficient, although it was a close question, and I concurred in affirming appellant’s convictions, but I wrote a concurring opinion stating that, in my view, the majority opinion should have addressed the merits of the sufficiency argument.
The petition for rehearing strongly contends that the sufficiency argument should have been decided on its merits. Not only do I agree, but I think the issue is important to the administration of justice, affects the practice of law by the attorneys in this state, and invites federal court review of constitutional questions. Therefore, I dissent from the court’s failure to grant rehearing and address the merits of the appellant’s argument on the sufficiency issue.
The majority opinion relies upon Arkansas Rules of Criminal Procedure 36.21 and three cases by the Arkansas Supreme Court to support the failure to pass upon the merits of the argument concerning the sufficiency of the evidence. The rule simply provides that in a jury trial “the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence” will constitute a waiver of that issue. The first case cited, Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992), holds that the failure to obtain a ruling upon a motion for directed verdict constitutes a waiver of the motion and precludes the consideration of the issue on appeal. The other two cases deal with the failure of a moving party to apprise the trial court of the specific basis on which the motion is made. The majority opinion describes the situation in the instant case as follows:
Martin moved for a directed verdict after the state rested on the ground that no substantial evidence connected him with the commission of the offense except for the testimony of the accomplice, Adell Henry. The court denied that motion. After calling one witness, the defense rested. The court then inquired “show the motions renewed?” and counsel for Martin replied “yes.” The above exchange does not amount to a motion for directed verdict, and even if it does the defendant failed to obtain a ruling on the motion. Furthermore, even if counsel’s answer “yes” to the court’s inquiry constituted a motion for directed verdict, it falls far short of meeting the requirement that the moving party apprise the trial court of the specific basis on which the motion is made.
46 Ark. App. at 279, 879 S.W.2d at 472.
I would only add to that description the information, set out in my concurring opinion, that the appellant’s abstract of the record shows that after appellant’s counsel answered “Yes” to the court’s inquiry, “the jury retired to deliberate.” Therefore, my concurring opinion states that “I am not willing to say that the trial judge did not know the specifics of the motion that he asked if counsel wanted to renew, and I am not willing to say that the motion was not overruled — as it obviously was.”
Now Donald v. State, cited in the majority opinion, states that the appellant renewed his motion for directed verdict at the close of the evidence but “he did not obtain a ruling.” However, that opinion does not describe the circumstances involved, and it cites three cases involving the failure to obtain a ruling on objections made — not on motions for directed verdicts. So I have to assume that the circumstances in Donald were not the same as in the instant case; perhaps in the Donald case there was nothing to show that the trial judge knew that the motion had been made. But in the instant case we know that the trial court knew that a previous motion for directed verdict had been made, because the court asked appellant’s counsel if he wanted to renew that motion. We also know that after counsel said “Yes,” the motion was denied. We know this because we know that the jury then retired to deliberate without hearing any other testimony. We also know that the motion made at the close of the State’s case was specific. We know this because the majority opinion tells us the specific grounds on which it was based and that was exactly the basis of the sufficiency of the evidence argument made in appellant’s brief on appeal.
However, even if there is some doubt about the adequacy of the motion for directed verdict, I would resolve that doubt in favor of addressing the merits of the appellant’s argument. I say this for three reasons.
In the first place, our decision rests upon a procedural technicality. In this case the appellant made a specific motion for directed verdict at the close of the State’s case. He renewed that motion at the close of the case. And the trial judge knew that the appellant’s motions questioned the sufficiency of the evidence to corroborate the testimony of an accomplice. Therefore, it seems to me, that under the circumstances of this case, our refusal to come to grips with the merits of the appellant’s argument tends to demonstrate the truth of Judge Learned Hand’s statement that “there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance.” See Loubriel v. United States, 9 F.2d 807, 808 (2d Cir. 1926). And in Arkansas, Robert A. Leflar, an outstanding lawyer, judge, teacher, and author has said:
One of the major functions of any system of law is to assure its own acceptance in the society it governs, and this is part of the job of each judicial opinion.
Leflar, One Life in the Law 129 (1985). I believe that a decision on the merits of the argument made on the sufficiency of the evidence by the appellant in this case would do more for the acceptance of our system of law than does the manner in which that issue is handled in the majority opinion issued on July 6, 1994.
Moreover, it is common knowledge that malpractice insurance is expensive. Motions for directed verdicts may be made in both criminal and civil cases, and the procedural requirements involved in this case for those motions are involved in any jury trial. See Arkansas Criminal, Procedure Rule 36.21(b) and Arkansas Civil Procedure Rule 50(e). Even if only a few attorneys fail to meet these procedural requirements, this is very likely to affect the cost of malpractice insurance to all attorneys. I do not think we should contribute to this outcome by decisions that put form over substance.
Finally, there is the real probability that a federal constitutional issue will result from our decision in this case. Present counsel was not trial counsel, and the petition for rehearing tells us that unless we pass on the merits of the issue involving sufficiency of the evidence, a federal court will be called upon to make that decision. Obviously, failure to make a proper motion for directed verdict could constitute ineffective assistance of the counsel guaranteed by the Sixth Amendment to the United States Constitution. The test in evaluating an attorney’s performance in that regard was set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688 (1984). In Cox v. State, 313 Ark. 184, 197, 853 S.W.2d 266, 273 (1993), the Arkansas Supreme Court summarized the Strickland requirement as follows:
In order to show his attorney was ineffective an appellant must first show that counsel’s performance was so deficient that the counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second he must show that he was so prejudiced by the defense as to be deprived of a fair trial. The appellant must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors.
Thus, it appears that the appellant may next file a petition for a writ of habeas corpus in a United States District Court and that court will have to decide whether trial counsel’s failure to make a proper motion for directed verdict deprived appellant of the effective assistance of counsel. In making that determination the federal court would surely have to examine the sufficiency of the corroborating evidence in order to pass upon the prejudice prong of the Strickland test. Had we not held that appellant’s counsel failed to make a proper motion for directed verdict, it is unlikely that the federal courts would review this case because the “corroboration requirement is a matter of state law which does not implicate a constitutional right cognizable on habeas review.” Reeding v. State of Minnesota, 881 F.2d 575, 578 (8th Cir. 1989), cert. denied 493 U.S. 1089 (1990).
But as matters now stand, a federal court may review the sufficiency of the corroboration evidence as part of its review of the issue of effective assistance of counsel. Furthermore, it may well be that our decision holding that we cannot review the sufficiency of the evidence because of trial counsel’s failure to make a proper motion for directed verdict would afford appellant relief under Evitts v. Lucey, 469 U.S. 387 (1985), which holds that the right to due process requires the effective assistance of counsel in order that an appeal may be considered on its merits where, as in Arkansas, there is an appeal as a matter of right. But, regardless of which constitutional right is involved, it appears that our failure to address the evidentiary issue will result in the expenditure of additional time, effort, and money before this case is concluded.
Therefore, for all of the reasons discussed above, I dissent from the refusal of this court to review the merits of appellant’s contention regarding the sufficiency of the evidence.