Cite as 2026 Ark. App. 521
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-25-699
ELISSIE RAILEY Opinion Delivered October 28, 2026
APPELLANT
APPEAL FROM THE DESHA
COUNTY CIRCUIT COURT
V. [NO. 21ACR-24-40]
STATE OF ARKANSAS HONORABLE QUINCEY ROSS,
APPELLEE JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Elissie Railey was found guilty of first-degree assault, a Class A
misdemeanor and was ordered to pay a $2,500 fine in a sentencing order filed on May 9,
2025. Appellant argues on appeal that (1) her trial counsel was ineffective for failing to
object to a juror who disclosed that he was related to a lead investigator in the case, (2) the
circuit court violated her constitutional right to an impartial jury by allowing a juror with a
direct familial relationship to a key State witness to remain on the jury panel, and (3) the
violation constitutes structural error requiring dismissal with prejudice. We affirm.
Appellant was charged with first-degree battery after shooting Kimwanda Jackson in
the buttocks on February 21, 2024. The charge was amended to aggravated assault on November 21. Appellant’s jury trial took place on May 6, 2025.1 After the jurors had been
selected and given their instructions, they took a lunch break. Once the jury returned, juror
Raymond Cowen informed the circuit court that when he left for lunch, he noticed that his
nephew, Officer Raydon Findley of the Dumas Police Department, was present and that it
was his belief that Officer Findley might be a witness in appellant’s case. Cowen stated that
he did not speak to Officer Findley but that he wanted to bring their relationship to the
circuit court’s attention because he did not want it “to cause a conflict later on or anything
like that.” The State responded that it did not think Officer Findley was going to testify.
Cowen stated that regardless of whether Officer Findley testified, it would not affect Cowen’s
ability to be fair. The circuit court stated that Cowen was “good for the Court” and pointed
out that there were two alternates just in case something “like this” came up. There was no
further discussion, and Cowen remained a juror. There is nothing in the record to suggest
that Officer Findley testified in appellant’s case. Appellant was subsequently found guilty of
first-degree assault, a lesser-included offense of aggravated assault, and was fined $2,500. The
sentencing order was filed on May 9, and appellant filed her notice of appeal on May 19.
As her first point on appeal, appellant argues that her trial counsel was ineffective for
failing to object to juror Cowen, who disclosed that he was related to a lead investigator in
the case. She contends that the investigator was a key State witness and that no reasonable
attorney would have allowed such a juror to remain. She also argues that the jury verdict
1
There were several continuances granted.
2
against her was void because Cowen was legally disqualified. The State contends, and we
agree, that appellant’s ineffective-assistance-of-counsel claim is not preserved for our review.
We have held that such a claim can be addressed on direct appeal only if it is raised to the
circuit court.2 Since this issue was not raised below, we cannot address it now.3
As her second point on appeal, appellant contends that the circuit court violated her
constitutional right to an impartial jury by allowing juror Cowen, who had a direct familial
relationship to a key State witness, to remain on the jury panel. According to appellant,
Cowen was disqualified to serve as a juror because he was related to a witness. Arkansas
Code Annotated section 16-31-1014 states:
Every registered voter or, in counties where an enhanced prospective jury list is
utilized, every registered voter, licensed driver, or person issued an identification card
under § 27-16-805 who is a citizen of the United States and a resident of the State of
Arkansas and of the county in which he or she may be summoned for jury service is
legally qualified to act as a grand or petit juror if not otherwise disqualified under the
express provisions of this act.
Arkansas Code Annotated section 16-31-1025 lists the grounds for disqualification.
Subsection (b) states:
Except by the consent of all the parties, no person shall serve as a petit juror in
any case who:
2
See Holland v. State, 2015 Ark. 318, 468 S.W.3d 782.
3
Id.
4
(Supp. 2025).
5
(Supp. 2025).
3
(1) Is related to any party or attorney in the cause within fourth degree of
consanguinity or affinity;
(2) Is expected to appear as a witness or has been summoned to appear as a witness
in the cause;
(3) Has formed or expressed an opinion concerning the matter in controversy
which may influence his or her judgment;
(4) May have a material interest in the outcome of the case;
(5) Is biased or prejudiced for or against any party to the cause or is prevented by
any relationship or circumstances for acting impartially; or
(6) Was a petit juror in a formed trial of the cause or of another cause involving
the same question of fact.
A juror is presumed to be unbiased and qualified to serve, and the burden is on the
appellant to prove otherwise.6 It is for the circuit court to decide whether a juror is qualified,
and that finding will not be reversed absent a showing of abuse of discretion. 7 We have held
that the appellant must demonstrate prejudice in arguing that a juror should have been
removed.8 Whether prejudice occurred is also a matter for the sound discretion of the circuit
court.9
Here, Cowen informed the circuit court as soon as he realized that his nephew could
potentially be a witness. He also stated that Officer Findley’s testimony would not affect his
6
Smith v. State, 343 Ark. 552, 567, 39 S.W.3d 739, 748 (2001).
7
Id.
8
Id.
9
Id.
4
ability to be fair. The State responded that it did not intend to call Officer Findley to testify,
and there is no indication in the record that he did testify. The State contends that this
argument is not preserved because appellant failed to object to Cowen’s being allowed to
remain on the jury. A contemporaneous objection is generally required to preserve an issue
for appeal.10 Appellant failed to object to Cowen being on the jury; thus, the issue is not
preserved for our review.11 Even if the issue was preserved, there was no abuse of discretion
by the circuit court. Officer Findley did not testify, but even if he had, Cowen would not be
automatically disqualified. Cowen stated that he could be impartial regardless of whether
Officer Findley testified, and this was acceptable to the circuit court. Additionally, appellant
has failed to show how Cowen’s presence on the jury prejudiced her.
As her final point, appellant argues that the violation constitutes structural error
requiring dismissal with prejudice. She specifically argues that because Cowen was “legally
disqualified” to be a juror, a structural error occurred. She further contends that a new trial
cannot cure the harm and that dismissal with prejudice is the only remedy. The United
States Supreme Court has explained that structural errors “defy analysis by ‘harmless-error’
standards” because they “affec[t] the framework within which the trial proceeds,” and are
not “simply an error in the trial process itself.” 12 Therefore, structural errors require
10
Hughes v. State, 2026 Ark. App. 371.
11
Id.
12
Reams v. State, 2018 Ark. 324, at 16–17, 560 S.W.3d 441, 452 (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 148–49 (2006)).
5
automatic reversal on appeal.13 There is nothing to support appellant’s contention that
Cowen was disqualified to serve as a juror in her trial. Being related to a potential witness
does not automatically require disqualification, and the evidence shows that Officer Findley
did not testify. The error that appellant complains about does not amount to a structural
error, which requires automatic reversal. Accordingly, we affirm.
Affirmed.
KLAPPENBACH, C.J., and WOOD, J., agree.
Elissie Railey, pro se appellant.
Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.
13
See Neder v. United States, 527 U.S. 1, 7–8 (1999).
6