concurring. I join my colleagues in concluding that the trial court erred when it found that granting custody to the father is in the best interest of the child. I further believe that the trial judge erred when he improperly based his child-custody determination on racial bias contrary to the decision of the United States Supreme Court in Palmore v. Sidoti, 466 U.S. 429 (1984).
However, I write separately to address ethical and eviden-tiary aspects of the case that deserve judicial comment. The Supreme Court, in Palmore, supra, held that the Equal Protection Clause of the Fourteenth Amendment prohibits consideration of private racial bias in determining the best interest of a child in a custody case. Yet, in this case no objections were raised, and the trial judge did nothing, despite persistent questions from appellee’s counsel regarding appellant’s interracial family and despite the specious argument that Colten would likely experience problems from growing up in an interracial family.
Given the Palmore holding, the compelling question arises as to the extent that trial counsel are or should be allowed to examine witnesses regarding the existence of a private racial bias. In other words, does Palmore prohibit trial counsel from questioning witnesses regarding racial bias, and does Palmore allow or require a trial court, sua sponte, to preclude or limit this line of questioning, where no objection is raised? Because Palmore clearly prohibits the use of racial bias as a basis for a custody decision, this is not merely a matter of a trial court acting in a politically correct manner in hearing evidence and reaching a judicial determination. Rather, this is a matter of courts enforcing rights granted by the federal constitution and of preventing court proceedings from being converted into forums where bigotry is promoted and tolerated under the guise of trial advocacy.
The situation seems analogous to one in which testimony that is not admissible to prove a person’s character may be admissible for other purposes, such as to prove motive, opportunity, or intent. Ark. R. Evid. 404(b). In other words, character evidence is only admissible for the purposes stated under Rule 404(b). Our courts have specifically held that such evidence is admissible to prove bias. Jones, v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). The rationale under Rule 404(b) should apply here. While it seems relevant for a trial court making a custody determination to understand one parent’s basis for objecting to the other parent receiving custody, such evidence admitted for any other purpose would seem to run afoul of Palmore. It would be appropriate to permit cross-examination to expose that a witness is motivated by racial bias for purposes of discrediting witness testimony consistent with Palmore and Rule 404(b). However, that is a far cry from eliciting direct testimony from a string of witnesses in support of a racial bias deemed impermissible by the Palmore holding.
The conduct of trial counsel for appellee in this regard is striking, to say the least. Time constraints during oral argument before this court prevented thorough inquiry about that conduct. However, there is no reason for cursory treatment of the conduct in an appellate opinion where the conduct caused the trial court to commit reversible error in violation of the Equal Protection Clause of the Fourteenth Amendment. Counsel for appellee was not content to merely elicit testimony from his client showing his client’s objection to his son being reared in an interracial home. Counsel persisted with this line of examination with every witness.
During the February 5, 2003 custody hearing, counsel asked Billy Tipton, appellant’s father, about his son-in-law’s racial identity. He asked appellant whether her husband “is interracial,” established that her son is not interracial and that her three-year-old daughter is interracial, and asked appellant if she had “any reservations raising a non-interracial child in an interracial marriage.” Counsel also asked appellant if she would encourage her son “to participate in interracial relationships” and mentioned that appellant had “gotten married to this black man.”
During direct examination of Janice Quillen, counsel for appellee mentioned that appellant has “an interracial marriage” and asked Quillen “[d]oes that cause you concern that the child will be placed in that type of environment with the mother?” During direct examination of Lynn Kimbell, a Springhill High School secretary, counsel asked whether “the possibility of placing the child in an inter or bi-racial marriage to be raised in Virginia” would cause the witness “any concern.” During direct examination ofjudy Kay Kidd, counsel asked the witness, “[w]ould placing the child in that environment (a bi-racial home with the mother) concern you?” During direct examination of Alicia Aaron Reed, counsel asked if the witness was concerned that the trial court “has been asked to place this child in a bi-racial home.”
When counsel for appellee cross-examined Sun Bennett, he asked whether she could “see any detriment to a child who is not biracial to be raised in a biracial home” and whether she encouraged “that lifestyle.” One of the questions put to Holly Herington during cross-examination was “Do you see any difficulties in raising a child that is not interracial in an interracial home?” Cross-examination of Karen Dougan, appellant’s cousin, included the following questions: “You would condone interracial marriages?” “You think they’re healthy?” “You know of any detriment that could cause a child that is not interracial to be raised in a home like that?” And when counsel for appellee cross-examined Tina Upton, appellant’s mother and the woman who practically raised Colten from birth, his inquiries included the following questions: “I assume you condone interracial marriages?” “I assume you condone raising a non-racial child in an interracial home?” “You disagree with all these people from Springhill [appellee’s witnesses] that’s testified today when each one said they don’t agree with you?”
At no time before or after this line of questioning did counsel for appellee produce the slightest proof that Colten was subjected to any harm or risk of harm because his mother is married to a black man, because his sister is biracial, or from growing up in an interracial home. Nevertheless, counsel for appellee made the following remarks as part of his closing argument to the trial court:
There’s an issue here about whether a person approves or doesn’t approve of interracial marriages or the raising, but it’s not the approval or disapproval of interracial marriages. They’re [appellant] asking to put a child who is not interracial in a situation to be raised by an interracial husband and wife and that creates a whole different scenario than an interracial child being raised in an interracial home. They want to talk about he needs to love his little interracial sister. Well, he’s got another half sister that’s not interracial. We feel that child would be safer here in Hempstead County, Arkansas. . . .
For its part, the trial court did nothing to suggest displeasure with the tactics of counsel for appellee. The only question it put to counsel for the parties at the close of the case was: “To counsel, are you aware of any law or cases dealing with, in Arkansas specifically, a child not of an interracial marriage being placed into an interracial marriage?” Even if the trial court did not condone counsel’s improper conduct, its ruling appears to have given it judicial approval. During its bench ruling, the trial court remarked as follows:
As far as the home, the fact that it is biracial in Mellisa’s [appellant’s] case should not have any bearing whatsoever on the fact that Colten has been around there and has had a good home there. I do believe that it will create problems for him in the future.”
(Emphasis added.)
Aside from the unsubstantiated lay-opinion testimony of appellee and his witnesses (none of which was adduced upon an evidentiary foundation that Colten experienced problems, suffered any harm, or demonstrated any risk of being harmed while growing up in an interracial household), the trial court’s assertion during its bench ruling that growing up in an interracial household would create problems for Colten was entirely without evidentiary basis. As the majority opinion holds, the trial court’s reliance in rendering its decision on what amounted to animosity toward appellant’s interracial marriage and household directly violated the holding in Palmore, supra. Again, the trial court’s error was not merely by allowing this testimony, for it plainly demonstrated the biases of the witnesses. Ark. R. Evid. 404(b). The error lay in basing the custody decision on such bias.
Jurors, as fact-finders, are not to be swayed by prejudice. This is reflected in the fact that trial counsel are not allowed to make opening or closing comments that appeal to the jury’s passion or prejudice. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003). Further, a factfinder may not consider evidence that serves no apparent purpose and that is used only to inflame a jury’s passion. Upton v. State, 343 Ark 543, 36 S.W.3d 740 (2001). Here, the apparent purpose of eliciting testimony from witnesses other than appellee, who testified regarding racial bias, was to persuade the trial court based upon sheer prejudice. As such, that additional testimony was not only unhelpful in reaching a correct legal result regarding custody in light of Palmore; additional testimony to buttr'ess the prejudiced views of appellee was also cumulative and redundant.
The question thus becomes, in a non-jury case, should a trial court be allowed to hear and rely upon evidence that is based upon prejudice, even where no objection to the admission of that evidence is raised? The United States Supreme Court in Palmore stated that, while private biases may be outside of the reach of the law, the law cannot, directly or indirectly, give them effect. Palmore, supra, at 483. For trial counsel to elicit answers to questions concerning racial biases that are constitutionally prohibited and for the trial court to allow such questioning seems, at the least, to indirectly give these biases effect. However, even if Palmore, supra, does not require such self-restraint, it would seem that judges and attorneys, as officers of the court, should impose such restraints upon themselves out of respect for the ethical principles upon which our expectations of justice are based.
Canon 3(B)(2) the Arkansas Code of Judicial Conduct requires a judge to be faithful to the law and to maintain professional competence in the law. Canon 3(e) requires a judge to perform judicial duties without bias or prejudice. Canon 3(c) also prohibits a judge, in the performance of judicial duties, from manifesting bias or prejudice, by words or conduct. That Canon also expressly states that a judge shall not permit court officials or others subject to the judge’s direction to manifest bias or prejudice. Surely, if federal law prohibits consideration of private biases in making custody determinations, a trial court is empowered, if not required, to raise the issue on its own — otherwise, how can a judge fulfill his or her duty under the judicial canons to be “faithful to the law” and to avoid the manifestation of bias or prejudice?
Finally, Rule 3.4(e) of the Model Rules of Professional Conduct prohibits attorneys from alluding to any matter that will not be supported by admissible evidence. If trial counsel are prohibited from appealing to the factfinder’s sense of passion or prejudice in opening and closing remarks, which are not evidence, how much more so should trial counsel refrain from eliciting actual evidence that is constitutionally prohibited? Counsel for appellee may have been obliged to elicit testimony from appellee to show why his client objected to appellant being granted custody. Yet, I see no reason for eliciting such testimony from each of the other witnesses other than to appeal to what counsel or his client hoped would be a similarly prejudiced attitude in the trial judge. Doing so was not only in direct violation of the holding in Palmore; such conduct arguably was unethical under Rule 3:4.
While Palmore, supra, admittedly provides very little guidance on this issue, it is nonetheless incumbent upon our judges and attorneys, as sworn officers of the court, to conduct trials in a manner that is consistent with our laws and rules of professional conduct. For trial counsel to deliberately and repeatedly elicit testimony regarding racial bias in contravention of federal law, and for the trial court to allow such testimony to be elicited and to rely upon that testimony in reaching its decision, seems to run counter to both Palmore, supra, and to our rules of professional conduct.
It is not asking too much of lawyers and judges to confront racial bias during court proceedings. To the contrary, one would ordinarily consider a court proceeding to be the most likely secular forum where racial bias would be immediately and firmly met with vigorous objections from legal counsel and a stern rebuke from judges sworn to uphold equal protection of the law. It seems ironic that, as we celebrate the fifty-year anniversary of Brown v. Board of Education, 347 U.S. 482 (1954), appellee’s counsel in the instant case elicited, without limitation or objection, testimony regarding racial bias that would have compelled reversal if a proper objection had been raised. Sadly, this demonstrates that fifty years after Brown, and twenty years after Palmore, in the judicial context, we have not come as far regarding interracial understanding as some observers would believe or hope.
I am authorized to state that Judges Neal and Crabtree join in this opinion.