author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Michael CLAY v. STATE of Arkansas
    CR 93-1262
    883 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994
    [Rehearing denied October 31, 1994.]

      Terri L. Harris, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.

       Hayes, Glaze, and Corbin, JJ., would grant rehearing.

   David Newbern, Justice.

Michael Clay stands convicted of capital murder for which he was sentenced to life imprisonment without parole. He contends a confession he made to police authorities while he was incarcerated should have been suppressed and not admitted into evidence against him. We disagree with his argument that his waiver of his Miranda rights was not intelligently and knowingly executed and that his statement was involuntarily given. We must, however, reverse and remand the case because the statement should have been suppressed as it was given after an unnecessary delay, in violation of Ark. R. Crim. P. 8.1, between Mr. Clay’s arrest and the time he was taken before a judicial officer. Mr. Clay raises an additional point for reversal in which we find no error. He claims evidence that he escaped from custody should not have been admitted. We discuss that point as well as the ones on waiver of rights and voluntariness of the confession for the benefit of the Trial Court upon retrial.

On August 14, 1990, the body of Glynda Wallace was found in an area alongside Macedonia Road in Gilmore. It was later determined that Ms. Wallace had died as the result of a gunshot wound. On August 20, 1990, the burned shell of Ms. Wallace’s automobile was located in a rice field.

The Crittenden County Sheriff’s Department received an anonymous tip that Michael Clay had been seen driving the victim’s car. On Thursday, August 23, 1990, Mr. Clay was invited to the Sheriff’s Department in Crittenden County for questioning concerning theft of the car. Mr. Clay initialed each of his Miranda rights on a form as they were read to him and signed the form at the bottom. He made an oral, exculpatory statement and was not detained.

Later in the evening on August 23, Mr. Clay was picked up and returned to the Sheriff’s Department for questioning. He initialed and signed another rights form and subsequently made a tape recorded, rather convoluted statement in which he claimed he bought the victim’s car from his uncle despite the fact that his uncle had no title to the car. Mr. Clay was arrested for theft by receiving. He escaped from custody on Friday, August 24.

On Saturday, August 25, Mr. Clay was rearrested. He again initialed and signed a rights form and was questioned further about his possession of the vehicle and the murder of Ms. Wallace. That afternoon he made another tape recorded statement in which he claimed that he was in the car with Ms. Wallace and his friend Robert Turner. He thought they were going to get a car but was surprised when Robert shot Ms. Wallace. He said Robert later gave him the car.

Mr. Clay was held in the Crittenden County jail and was questioned again on Sunday evening, August 26. He initialed and signed yet another rights form and gave another tape recorded statement in which he changed his story to say he had stopped to help Ms. Wallace change a flat tire and she had agreed to give him a ride to town. He said she declined to let him out of the car and was hitting him when his gun “went off,” implying the shooting was accidental. He said he took her car, but that it was his friend Robert who burned the car. Mr. Clay was arrested for murder.

Officer Mickey Strayhorn, who along with Officer John Murray participated in the investigation, testified that on Monday, August 27, Mr. Clay took officers from the Sheriff’s department where “things happened.” On Tuesday, August 28, Mr. Clay was taken to Jonesboro for a polygraph examination where he gave a statement to Officer Charles Beall of the Arkansas State Police. In this statement, Mr. Clay confessed that he alone murdered Ms. Wallace and burned her car. Prior to signing the written version of the statement to Officer Beall on August 28, Mr. Clay initialed and signed another rights form.

At the outset of the trial, the Trial Court was informed the prosecution proposed to introduce the statements made by Mr. Clay, and a hearing was held outside the presence of the jury to determine their admissibility. Officer Murray testified that he did not know Mr. Clay’s age (19 at that time) or that he had been a special education student at the high school where he had finished the 12th grade. He testified, as did Officer Strayhorn, that no coercive measures were used to obtain the statements or the written acknowledgments by Mr. Clay of his rights which Officer Murray said Mr. Clay “indicated he understood.”

Officer Murray was asked about the delay in taking Mr. Clay before a judicial officer. He testified that after Mr. Clay was rearrested on Saturday, August 25, he remained in custody the 26th, 27th, and 28th, the day he was taken to Jonesboro and on which he made the statement admitting he had killed Ms. Wallace to get her car. He remained in custody all day Wednesday the 29th and was taken to court that day. He said he normally would have taken a person arrested during a weekend for a “bond hearing” on the following Monday, which would have been August 27. He did not do so in this case because he said he “was instructed by Deputy Prosecutor James Hale to continue to the next court date for evidence involving this case.”

Defense counsel moved to suppress the last two of the custodial statements made by Mr. Clay on the basis of their involuntariness and the fact that they were obtained due to an unnecessary delay in bringing Mr. Clay before a judicial officer after his arrest. The defense also moved in limine to prohibit the State from using as evidence Mr. Clay’s August 23 escape from the Crittenden County jail.

1. Suppression of the statements

a. Voluntariness and knowledge

Although it is not clear, parts of Mr. Clay’s arguments lead us to conclude that he contends both that his waivers of the right to remain silent and to counsel were not voluntarily, knowingly, and intelligently given as well as that his statements were involuntary in the sense that they were coerced by force or promises. As we pointed out in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), there are two separate issues regarding the waiver of Miranda rights:

“Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran v. Burbine, 475 U.S. 412 (1986) at 421 (citing Fare v. Michael C., 442 U.S. 707, 725 (1979)). The “totality of the circumstances” appellate review mandates inquiry into an evaluation of “age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare at 725. Thus, a court must look at the totality of the circumstances to see if the State proved that a defendant had the requisite level of comprehension to waive his Fifth and Sixth Amendment rights.

Consideration of the validity of a criminal defendant’s waiver of the right to remain silent and the right to counsel prior to giving an inculpatory statement may be divided into two components. See Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1990). The first component is the voluntariness of the waiver, and it concerns whether the accused has made a free choice, uncoerced by the police, to waive his rights. We discussed that in the Mauppin case quoted above. The second component involves whether the defendant made the waiver knowingly and intelligently, and the inquiry then focuses on determining if the waiver, as we said in the Mauppin case, was made with “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.”

In addition to the two aspects of the waiver issue, we must decide if the confession or inculpatory statement, given after a waiver of rights has occurred, was itself voluntarily made. As we use very similar standards to review both whether a waiver was valid and whether a subsequent statement was given voluntarily, we sometimes do not take the time to point out the distinction. But the distinction is there. See Shaw v. State, 299 Ark. 274, 773 S.W.2d 827 (1989), in which we discussed whether a waiver was knowingly, intelligently, and voluntarily made but declined to consider the voluntariness of the statement to which it applied because that issue was not raised at the trial.

In considering the totality of the circumstances surrounding both the rights waivers by Mr. Clay and his subsequent statements, we look to his age, education, and intelligence, the length of his detention, repeated or prolonged questioning, the use of mental or physical punishment, and the advice or lack of advice with respect to his constitutional rights. Shaw v. State, supra.

The circumstances in this case were these. As noted above, Mr. Clay was 19 years of age and had graduated from high school where he was enrolled in special education classes. From the time he was first questioned on Thursday, August 23, until he gave the written statement to Officer Beall on Tuesday, August 28, he was interrogated six times. Except on August 23 when Mr. Clay was questioned, released, and then picked up and questioned again prior to being arrested for theft by receiving, he was interrogated just once a day each day he was in custody. There is no evidence that he was punished or threatened in any way on the days in question.

There is conflicting testimony concerning whether the interrogating officers adequately advised Mr. Clay of his constitutional rights. At the suppression hearing, Mr. Clay testified that he was told to sign the statement of rights form “if he did not understand his rights,” and that his signature was needed in order to show the Sheriff that the officers had talked to him. On the other hand, Officers Murray and Strayhorn testified they read Clay his rights directly from the form, and that he initialed each right as it was read to him.

None of the questioning sessions were for extended periods of time, and there is no evidence Mr. Clay was deprived of food, sleep, or other necessities. The repeated interrogations were obviously due, in part, to the inconsistencies in the two statements given on Thursday, August 23, and the one given Saturday, August 25. Given the totality of the circumstances, we conclude there was no coercion used to obtain the statements.

Nor can we say the State failed to bear its burden of showing there was a voluntary, knowing, and intelligent waiver of rights. Mr. Clay’s testimony that he signed the statement of rights forms because he was told his signature indicated only that the officers had talked to him or that he did not understand must be considered on the matter of waiver also, as must his testimony that one of the officers told him he (the officer) was a lawyer, implying that he was the lawyer to whom Mr. Clay was entitled. All of these allegations by Mr. Clay were denied by the officers.

The recorded colloquy between Mr. Clay and the officers who took his statements, which we have read in detail, reveals nothing which might have led the officers to conclude Mr. Clay was too slow or unintelligent to understand the rights which had been explained to him.

On August 28, when Mr. Clay gave his statement to Officer Beall of the Arkansas State Police, he made Officer Beall aware that he could not read or write well. The statement he executed ultimately inculpating himself to Officer Beall was written down by Officer Beall and signed by Mr. Clay. The Officer testified the words he wrote were those spoken by Mr. Clay after he had been informed of his rights. Again, there is nothing to show that the statement was coerced, and the State’s evidence was sufficient to show that, despite Mr. Clay’s age, and probable low I.Q., he was adequately informed of his rights and understood them.

b. Delay and Rule 8.1

In nearly every case in which a criminal defendant has sought suppression of a confession or other inculpatory statement given to police officers while in custody we are confronted with conflicting testimony, sometimes called a “swearing match,” with the defendant saying he or she was coerced or did not understand and the police saying there was no coercion and an appearance, at least, of understanding on the part of the defendant. As we pointed out in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), citing W. LaFave, Criminal Procedure § 6.3 (1984), the reason for a rule requiring the authorities to assure a prompt appearance before a judge of a person under arrest is that the other safeguards, i.e., the voluntariness and knowing and intelligence determinations, can be illusory. We quote the following again:

Since “the use of the third-degree tactics is . . . difficult to prove because there is always the word of the police against the word of the accused; and the prestige of police testimony usually carries the day,” the safeguards upon which the traditional confessions rules rest have aptly been called “illusory.” The main thrust of the McNabb-Mallory rule [McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957)] ... is to bypass conflicts over the nature of the secret interrogation and to minimize both the “temptation” and the “opportunity” to obtain coerced confessions. Id. at 455, citing, Y. Kamisar, Police Interrogation and Confessions (1980).

The rule we have adopted to provide minimal protection to persons arrested and subjected to interrogation is Rule 8.1 of the Arkansas Rules of Criminal Procedure. It provides: “An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.”

The Duncan case gave us an opportunity not only to discuss the reason for the rule but to indicate to police and prosecutors how we would apply it. We adopted a three-part test. The delay must have been unnecessary, the evidence must be prejudicial, and the evidence must be reasonably related to the delay.

i. Unnecessary

The delay in taking Mr. Clay before a judge was unnecessary. There is no question but that he could have been presented on Monday, August 27. The only reason that did not occur was the order of the deputy prosecutor to “continue to the next court date for evidence involving this case.” The State presented nothing to show that Mr. Clay could not have been taken before a judge on Monday, August 27.

In County of Riverside v. McLaughlin, 500 U.S. 44 (1991), the United States Supreme Court dealt with the Fourth Amendment requirement of a probable cause hearing to be held for a person arrested without a warrant. It held that if such a hearing does not occur within 48 hours, the burden shifts to the government to show the existence of a good faith emergency or other extraordinary circumstances. In the course of discussing that matter which is very similar to the one presented here, the Supreme Court said: “Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual or delay for delay’s sake.”

In the Duncan case, one of the reasons given for reversal was, “The record shows the delay was purposeful and that the prosecutor made a deliberate decision to hold Duncan in detention and ignore the prompt appearance requirement.” The delay in the case now before us was not only unnecessary, it was apparently of the same deliberate sort as we encountered in the Duncan case which should not be countenanced.

ii. Prejudicial

In the statement Mr. Clay gave on Sunday, August 26, he alleged his gun “went off’ while he was struggling with Ms. Wallace. That was a very prejudicial statement, but it was given prior to the unnecessary delay in taking him before a judicial officer. We have considered whether his subsequent statement might have been harmless error, and thus not prejudicial, in view of the earlier statement. It was not harmless error. In the statement given on August 28, unlike the one given on August 26, Mr. Clay admitted all the elements of the offense with which he ultimately was charged, that is, a homicide committed during the course of a robbery. Ark. Code Ann. § 5-10-101 (a)(1) (Repl. 1993). The statement could not have been more prejudicial.

Hi. Related to delay

We can see no relationship between the statement given by Mr. Clay on August 26 and the subsequent delay in taking him before a judge. That statement may be used against him upon retrial. The August 28 statement is, however, a different matter.

It is clear that each time Mr. Clay gave a statement to authorities after his initial ones of August 23 he took a step further toward implicating himself in the murder of Ms. Wallace. The statement of the deputy prosecutor, as reported by Officer Murray, that he should delay taking Mr. Clay before a judicial officer “for evidence involving this case,” makes it appear that the delay was ordered with the expectation that Mr. Clay would do what he ultimately did, i.e., admit to capital murder.

Short of that, however, we can say with assurance that, if Mr. Clay had been taken before a judicial officer on August 27, the judicial officer would have followed Ark. R. Crim. P. 8.2 which requires the judge to assure that an accused has counsel appointed if he cannot afford one and does not choose to waive the right to counsel to defend him. Had counsel been appointed, it is most unlikely the statement made on August 28 would have been forthcoming.

The facts of the Duncan case were, no doubt, far more egregious than the ones now before us. Duncan was held “incommunicado” for three days. He was undoubtedly verbally, at least, abused by officers. He asked “do y’all appoint lawyers,” but the interrogation continued. He was interrogated for long periods of time. In short, there was evidence that he was subjected to what Professors LaFave and Kamisar would call the “third degree.” All of that evidence, however, went more to the issue of the voluntariness of the statement Duncan ultimately gave than to the effect of the delay. We said:

The State urges the confession was voluntary under the totality of the circumstances, but we do not regard that approach as appropriate in seeking a reasonable and fair resolution of the application of this rule. As we have said, assurance of voluntariness is not the only concern. Of equal importance is the mechanism of the first appearance that guarantees that the accused’s constitutional rights will be protected and implemented. “Indeed, [the rights afforded under Rule 8.1] are basic and fundamental rights which our state and federal constitutions secure to every arrestee.” Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). Furthermore, if exclusion under the rule rests on a voluntariness standard, we are again faced with a swearing-match, the rule was designed to avoid.

The three and one-half day period Mr. Duncan was held prior to being taken before a judicial officer was, in duration, similar to the period between Saturday, August 25, and Wednesday, August 29, in this case. When we realize that the point of the Duncan case was not the fact that Duncan was subjected to abuse, but that much of what happened to him, including his self-inculpation, would not have occurred had he been taken before a judicial officer without unnecessary delay, we have no difficulty reaching the same conclusion here as we reached there. The statement given by Mr. Clay on Tuesday, August 28, 1990, was related to the violation of Rule 8.1.

As the delay was unnecessary, the evidence was prejudicial, and the obtaining of it was related to the delay, it was reversible error not to exclude the August 28 statement.

2. Evidence of escape

Mr. Clay contends that testimony concerning his escape from the county jail on August 23, 1990, should have been excluded. He asserts that the testimony had no independent relevance and did not meet the probative value versus unfair prejudice balancing test of Rule 403 of the Arkansas Rules of Evidence. The argument has no merit.

A ruling on the relevancy of the evidence is discretionary and will not be reversed unless the Trial Court abused its discretion. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). The Trial Court also has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993), cert. denied, 62 USLW 3319 (1993).

At the trial, there was testimony that Mr. Clay escaped after being charged with theft by receiving on August 23. Although his argument is unclear, Mr. Clay seems to assert that the testimony lacks probative value concerning the murder charge because at the time of his flight from jail, he was only charged with theft by receiving. The State argues that the theft by receiving charge was linked to the murder charge. An escape from incarceration is admissible as circumstantial evidence of guilt. Centeno v. State, 260 Ark. 17, 537 S.W.2d 368 (1976). We agree the jury should have no difficulty in weighing the circumstantial inference as to Mr. Clay’s state of mind with respect to the relationship of the escape to the two separate offenses. The escape evidence was properly received.

Reversed and remanded.

Hays, Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. In my view, the majority opinion is wrong. The record clearly reflects that Clay, himself, initially delayed his arraignment by escaping from jail. And within twenty-four hours after he was found and rearrested, Clay admitted that he had shot Glynda Wallace, and had given and shown the authorities enough evidence needed to convict him of capital murder. In other words, even if Clay had been arraigned within a forty-eight hour period, he had already knowingly and voluntarily given police all the probable cause they needed not only to arrest and charge him but to convict him, as well. Nonetheless, the majority court needlessly reverses this case based upon a confession which does no more than confirm the evidence the police already had. From the state’s view, the only purpose Clay’s final confession served was his concession that no one had assisted him in killing Glynda Wallace.

First, I note the trial court’s following findings when it ruled that all of Clay’s statements were admissible:

[T]his was not a case of a continuous tag team interviewing through the day and night until finally he broke and made an admission. I assume the end results there must be something inculpatory here, I assume. But the defendant was not in any way abused, mistreated, no force or coercion, threats or intimidation either upon the defendant or members of his family was used in these interviews even though they were over several . . . days were not unduly prolonged or long in nature.

The record thoroughly supports the trial court’s findings. The chronology of events follows:

Tues., Aug. 14, 1990 - The victim, Glynda Wallace, was found dead.
Thurs., Aug. 23, 1990, at 1:10 p.m. - Clay was interviewed and released.
Thurs., Aug. 23, 1990, at 7:20 p.m. - Clay was arrested for theft by receiving of victim’s car. Clay gave statement his Uncle Andrew sold him Glynda’s car and Andrew purportedly said that Robert Turner had title.
Fri., Aug. 24, 1990 - Clay escapes from jail.
Sat., Aug. 25, 1990 - Clay is found, rearrested and gives statement at 3:10 p.m., implicating a Robert Turner who Clay said stole Glynda’s car and shot her. He acknowledged his presence at crime scene.
Sun., Aug. 26, 1990, at 5:10 p.m. - State charged Clay with capital murder after he gave statement admitting he had asked Glynda Wallace for a ride, she had refused, so Clay pulled a gun; she gave him a ride and when he departed the car, his gun went off. He mentioned Robert Turner appeared, came to the car and kicked Wallace down gravel road. He said he did not know who burned Glynda’s car.
Mon., Aug. 27, 1990 - Clay takes authorities to site where car had been burned and purse found.
Tues., Aug. 28, 1990, at 10:20 a.m. - Clay gives statement relating that he shot Glynda Wallace and no one else was involved. He stated where he took Glynda’s car to burn it and where he threw away his gun.

From the foregoing events, it is clear Clay initially caused the delay in his arraignment. His escape from jail prevented the state from having him arraigned until after his recapture on Saturday, August 25, 1990. On this date, he gave a second voluntary, but different, account bearing on his involvement with Glynda’s vehicle and death. The next day, Sunday, he gave a third account, but this time he admitted he shot Glynda Wallace.

A fair reading of the record shows that Clay’s August 26th or 28th statements (and earlier statements) were not causally related to any delay in his arraignment or that the police actions contributed to that delay.

In Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), we adopted the rule that a defendant’s confession should not automatically be excluded from evidence unless that confession was related to the delay. Specifically, the Duncan court adopted a three-part test that (1) the delay must be unnecessary, (2) the evidence must be prejudicial, and (3) the evidence must be reasonably related to the delay. (My emphasis). In Duncan, this court held a causal connection existed because the defendant initially gave only exculpatory statements, but after police held him three and a half days in incommunicado detention, he incriminated himself. Also, Duncan was mildly retarded, had asked authorities if they appointed lawyers to which the officers made no response, and no evidence showed Duncan had signed a waiver of rights form.

This case is a far cry from Duncan. From the beginning, it is undisputed that ample proof existed tying Clay to the theft by receiving of Glynda Wallace’s car; but he escaped, thereby preventing any arraignment on Friday — the day after his arrest for theft. When Clay was rearrested on Saturday, he immediately implicated Robert Turner as the one who shot Glynda, but also implicated himself, as well, by acknowledging his presence at the crime. By Sunday, the next day, Clay admitted that he had seen Glynda, pulled a gun on her and subsequently shot her.

From the time Clay was rearrested and in custody on Saturday, he was signing rights forms and telling stories that implicated himself, in varying degrees, with Glynda’s murder. Unlike in Duncan, the record here shows Clay’s escape and numerous voluntary statements served to show his involvement and guilt in Glynda’s murder. Clay’s final statement, given on Tuesday, August 28th, merely confirmed his earlier Sunday statement by conceding his having shot Glynda. His final August 28th statement merely disclosed he acted alone — a fact that the police had already determined by other independent investigation.

Today, the majority opinion effectively adopts the automatic rule that, if a defendant is not arraigned within forty-eight hours from his arrest, no statements given by the defendant during that period can be admitted at trial. That is not Arkansas law. Nor is it required under the Supreme Court decision in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), which our court followed in Duncan. Again, even if Clay had been arraigned within forty-eight hours after his rearrest (which would have expired sometime Monday, August 27th), Clay had already voluntarily given authorities probable cause, and more, to hold, charge and convict him of Glynda’s murder. In short, Clay’s August 28th confession was not related to the short delay in his arraignment. His confession, instead, naturally evolved from his own actions and prior statements. At the least, even if it is said that Clay’s confession resulted from the brief delay in Clay’s arraignment, the trial court’s admission of the August 28th confession was harmless in view of the overwhelming evidence of his guilt. This court should uphold the trial court’s ruling that admitted all of Clay’s statements into evidence, and affirm Clay’s murder conviction.

Hays and Corbin, JJ., join this dissent.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Daniel HAGEN v. STATE of Arkansas
    CR 94-20
    883 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      Claibourne C. Crews, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Daniel Hagen, was convicted of first degree terroristic threatening (Ark. Code Ann. § 5-13-301), second degree battery (Ark. Code Ann. § 5-13-202), and attempted kidnapping (Ark. Code Ann. § 5-3-201) along with some other counts not involved in this appeal. The three relevant convictions arose from a single incident. Mr. Hagen contends his right not to be convicted more than once for the same conduct has been offended. We find no merit in the appeal and thus affirm.

Christina Alexander testified that, as she was walking toward her car in a parking lot after shopping in a supermarket, she noticed Mr. Hagen walking parallel to her. As she put her groceries in her car, she saw Mr. Hagen coming toward her. He asked her name and said he knew her. She told him he was mistaken, at which point he placed his arm across the car door. She demanded he get away from her car. He grabbed her hair and tried to bend her over to force her into her car. He put a gun to her side, and told her to get in the car or he would kill her.

Ms. Alexander resisted getting in the car and began to yell and fight with Mr. Hagen. He hit her in the face and head with the gun as they struggled on the parking lot. He left, and she returned to the store and reported the incident to the police.

At the close of the State’s case in chief, Mr. Hagen moved to dismiss the terroristic threatening and battery charges on the double jeopardy ground. The motion was denied. He argues it should have been granted because the acts alleged in those counts were part of the attempted kidnapping. He contends it was all a “continuing course of conduct” that was prompted by a single impulse, the prosecution of which was prohibited by Ark. Code Ann. § 5-1-110(a) (Repl. 1993) which provides in pertinent part:

When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant-may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
* * *
(5) The conduct constitutes an offense defined as a a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
* * *

The only case authority cited by Mr. Hagen is Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied 450 U.S. 1043 (1980). In that case we held it was not improper for the defendant to have been convicted of both aggravated robbery and attempted capital murder. Rowe allegedly shot his victim while attempting to rob her at gunpoint. We said neither of the offenses was, in the words of the statute, “defined as a continuing course of conduct,” and we offered the following explanation:

We made it clear in Britt [v. State, 261 Ark. 488, 549 S.W.2d 84 (1977),] that a continuing offense must be a continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force. We emphasized the distinction made by Mr. Wharton in his treatise (Wharton’s Criminal Procedure) which was pointed out in Blockburger v. United States, 284 U.S. 299 . . . (1932). According to that distinction, when the impulse is single but one charge lies, no matter how long the action may continue, if successive impulses are separately given, even though all unite in swelling a common stream of action, separate charges lie; and the test is whether the individual acts are prohibited or the course of action they constitute, if the former, each act is punished separately, if the latter, there can be but one penalty. We made it clear that § 41-105 (1)(2) did not change the common law rule.

Arkansas Stat. Ann. § 41-105 is now codified as Ark. Code Ann. § 5-1-110, cited above.

We have considered the argument made by Mr. Hagen with respect to the statute on more than one occasion. We have held consistently that, unless an offense is defined as a “continuing course of conduct crime,” the statute does not apply. See, e.g., Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988), in which we held it appropriate to convict a defendant of seven counts of terroristic threatening for having held seven people at bay with a weapon in one incident. We cited examples of continuing course of conduct offenses as nonsupport, Ark. Code Ann. § 5-26-401 (Repl. 1993), and obstructing a highway, Ark. Code Ann. § 5-71-214 (Repl. 1993).

We pointed out in the Rowe case that there had been one impulse to rob the victim and a second impulse to shoot her when she resisted. That rationale fits here. The evidence displayed an impulse to kidnap the victim and additional impulses to batter and threaten to kill her when she resisted the kidnapping.

Nor can we agree there was a violation of the double jeopardy proscriptions found in U.S. Const., amend. V, or Ark. Const, art. 2, § 8. As the United States Supreme Court stated in the Blockburger case, quoting Professor Wharton, ‘“The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. ... If the latter, there can be but one penalty.’” Each of the charges in this case was of a separate, prohibited act.

Affirmed.


author: Tom Glaze, Justice.

text:
    James Edward SMITH v. STATE of Arkansas
    CR 94-398
    883 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Tom Glaze, Justice.

James Edward Smith was convicted of rape, kidnapping and breaking or entering, and he received a cumulative sentence of forty years imprisonment. On appeal, he challenges the sufficiency of the evidence regarding his kidnapping conviction, and further argues that the court’s application of Arkansas’s new bifurcation sentencing laws, Acts 535 and 551 of 1993 (codified at Ark. Code Ann. §§ 5-4-103 (Repl. 1993) and 16-97-101 — 103 (Supp. 1993) violated his federal and state constitutional protections against ex-post facto laws.

First, we dispose of Smith’s constitutional argument because the argument made here is not the one presented to the trial court below. Before trial began in this matter, the parties gathered in the court’s chamber where Smith’s counsel stated the following:

The last thing I would object to, and this is January 4, 1994, and I think the new number is 16-97-101, which states to bifurcate the trial, and I think that we would object for the record concerning the law regarding constitutionality matters and due process under the Arkansas Amendment rights and the 14th Amendment of the U.S. Constitution. My personal opinion is that, and I think that specifically in regard to this statute, I think that it is very difficult to look at this procedural change as anything other than simply a knee-jerk reaction because it has a sunset provision that the Legislature says if this doesn’t work we can shut it down and try something else, and it is just playing games with the rights of the defendant at this point. I think it refocuses a criminal trial to a sentencing situation.

The deputy prosecutor responded to the defense counsel’s foregoing remarks, stating § 16-97-101 was constitutional, and the state was ready to proceed with a bifurcated trial. The trial judge stated that he disagreed with defense counsel’s statement and dismissed counsel’s motion to declare the statute unconstitutional. At this point, the judge asked Smith’s counsel, “[Y]our objection is in the form of what?” and counsel stated that, for purposes of appeal, he would make a formal motion in writing and forward it to the Attorney General.

Apparently, after the jury returned its verdicts of guilty, the court went into recess at 4:21 p.m., and defense counsel filed a motion with the circuit clerk’s office at 4:26 p.m. The trial court resumed trial for the sentencing phase at 4:35 p.m.; at this time, defense counsel announced that he had filed a motion challenging the constitutionality of Act 535 of 1993 [§ 16-97-101], The trial judge responded, saying, “[L]et the record reflect it has.”

In this appeal, Smith points to nowhere in the record where the trial court actually saw, or read defense counsel’s motion, much less where it ruled on the motion’s contents. The written motion contains several constitutional arguments, including the ex post facto issue raised in this review, that were not a part of Smith’s oral motion set out above, which the trial court ruled on prior to trial. Specifically, Smith’s written motion also includes Sixth and Eighth Amendment arguments, and specific due process and equal protection issues not mentioned on the record at trial.

Where an appellant’s argument at trial did not apprise the trial court of the arguments made on appeal, this court will not reach the arguments. Hewitt v. State, 317 Ark. 362, 877 S.W.2d 926 (1994). Further, a party cannot change the basis of his argument on appeal. Id. Even constitutional arguments can be waived on appeal. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993). Thus, because Smith failed to object to the bifurcation of his trial on ex post facto grounds and obtain a ruling on that issue, he has waived that argument on appeal.

Smith next argues the state’s evidence was insufficient to support his conviction for kidnapping because the proof did not show that he restrained the victim beyond that required for the rape with which he was charged and convicted. Smith’s contention is without merit.

To prove kidnapping, the state had to show that Smith restrained the victim, without her consent, so as to interfere substantially with her liberty with the purpose of inflicting physical injury upon her or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with her. Ark. Code Ann. § 5-11-102(a)(4) (Repl. 1993). Initially, we point out that the Criminal Code speaks in terms of restraint rather than removal. Consequently, it reaches a greater variety of conduct, since restraint can be accomplished without any removal whatever. See original commentary to § 5-11-102, Ark. Crim. Code Ann. with Commentaries at 404 (1993). It is the restraining of the victim beyond the de minimus restraints accompanying the crime of rape that is determinative. Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). In other words, it is only when the restraint exceeds that normally incidental to the crime of rape that the rapist is also subject to prosecution for kidnapping. Id. The purpose of the restraint may be inferred from circumstantial evidence. Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993).

In the case at bar, the evidence shows that Smith entered the victim’s house around 1:00 a.m. while she slept, held a gun on her as he removed her clothing, threatened to kill her if she screamed or yelled, and raped her while holding the gun under her chin. Instead of leaving, Smith sat at the edge of the victim’s bed while the victim moved away from him. Smith proceeded to talk to the victim for two hours, and even though the victim did not indicate he held the gun on her during this time, she knew he still had it. After the two-hour period, Smith told the victim he intended to rape her again, and he did so while he held the gun to her head. Even though the gun later proved to be a toy, the victim testified:

He would not let me leave. If I was to leave my bedroom, I would have to go through the living room and to the first door. And there’s two locks on the first door and two locks on the bottom door, and I did not know if either one of those were locked.
* * *
[I]f I had known that the gun was not real from the beginning, I would have fought and .. . would have kicked. The reason that I did not is that I did not know whether it was real or not. I was going to do whatever he told me because of that gun.
* * *
He told me that the gun was fake after the second time.

She also testified she thought Smith was crazy, and she told him lies about herself in the hope that he would let her go.

The evidence is clear that Smith raped the victim and then continued to restrain her freedom for two hours under the threat of using the gun. After raping the victim the second time, the victim stated she became claustrophobic, could not stand being confined any longer, and took her chances and left. The fact that the gun was a toy, and thus harmless, or that the victim finally left on her volition without harm is irrelevant. During the two-hour period, the victim was in fear of her life and her freedom to leave was substantially impaired by Smith’s threats. This is substantial evidence of restraint beyond that necessary to commit the act of rape.

For the reasons above, we affirm Smith’s convictions.


author: Donald L. Corbin, Justice.

text:
    Winfred “Tiger” NELSON, Jr. v. STATE of Arkansas
    CR 94-404
    883 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994
    [Rehearing denied October 31, 1994.*]

      Bowden Law Firm, by; David O. Bowden, for appellant.

      Winston Bryant, Att’y Gen., by; J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Winfred “Tiger” Nelson, appeals a judgment of the Grant County Circuit Court affirming a judgment of the Sheridan Municipal Court which convicted appellant of entering posted land in violation of the posting laws enacted by Act 35 of 1989, as codified at Ark. Code Ann. §§ 18-11-401 to -406 (Supp. 1993). The municipal court convicted appellant of a Class B misdemeanor, assessed a $500.00 fine and costs of $63.25, and sentenced him to ten days in jail, suspending the jail time and $400.00 of the fine. Because resolution of this appeal requires interpretation of the posting statutes, jurisdiction is properly in this court. Ark. Sup. Ct. R. 1-2(a)(3).

The particular statute at issue here-is section 18-11-403, entitled “Unlawful entry upon land — Penalty” by the codifiers; it provides as follows:

(a) (1) No person shall enter for recreational purposes upon real property posted pursuant to this subchapter without written permission of the owner or lessee of the real property.
(2) It shall be unlawful for any person to enter upon any real property posted under the provisions of this sub-chapter without the written consent of the owner or lessee of the real property.
(3) Provided, however, it shall be an affirmative defense to prosecution under this subchapter that consent was given by a person holding himself out to be the owner, lessee, or agent of the owner or lessee, of the property.
(b) Any person who knowingly enters such real property without written consent shall be guilty of Class B misdemeanor.

This case was submitted to the circuit court on stipulated facts. We summarize them as follows:

The land in question is owned in fee simple absolute by International Paper Company (“IP”).
The rights to hunt and harvest game on the land in question are leased to McElroy Hunting Club, Inc., (“the Club”) a non-profit corporation.
As to the hunting rights, the relationship of lessor— lessee exists between IP and the Club. The Club has no rights or interests in the land in question, rather it has rights only in the animals located thereon.
As far as the physical requirements of sign placement and marking of boundaries are concerned, the land was posted in compliance with the posting statutes. The land was posted by the Club without the permission or assistance of IP.
While armed with a shotgun, appellant entered the land covered by the hunting rights lease during turkey season on April 12, 1993, without the permission or consent of IP or the Club.
Based on appellant’s April 12, 1993 entry on the land, A.R. “Pete” McElroy, president of the Club, swore out a warrant for appellant’s arrest for violating the posting laws, Act 35 of 1989. Appellant was before the court on that warrant.

The parties also stipulated to the exhibits admitted in the municipal court and filed trial briefs with the circuit court relating to appellant’s motion to dismiss the charges against him. The circuit court entered a judgment affirming the conviction in municipal court, finding that the lease between IP and the Club conveyed to the Club the exclusive right to enter the land for the purpose of hunting and that the Club had a possessory right in the land sufficient to confer standing to post the land.

As his sole argument for reversal, appellant contends his prosecution under the posting statutes was inappropriate because both the lease agreement and the stipulations make it clear that the Club was not “the owner or lessee of the real property,” as those terms are used in the posting statutes. Therefore, argues appellant, the Club had no authority to post the land.

We note at the outset that appellant was not charged with criminal trespass pursuant to Ark. Code Ann. § 5-39-203 (Repl. 1993). Thus, we are not concerned with that crime or statute.

We first consider appellant’s argument as it relates to the lease. He contends the Club had no authority to post the land because the lease required the Club to obtain IP’s written consent to do so, and because the record is void of any proof of such consent. Appellant does not cite to us any authority for the apparent premise of his argument — that he, as a non-contracting party, is entitled to rely on a breach of the lease contract as a defense to this criminal charge.

It is well-established that parties are presumed to contract only for their own benefit and not for the use and benefit of a third party, unless it clearly appears that such was the intention of the contracting parties. Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). Here, the lease between IP and the Club expressly states that the Club is not to post the land without the prior written consent of IP. The lease continues that any approved posting is only to be done with signs bearing the name of the Club and attached to trees of poor quality and form with 1/2 inch staples or aluminum nails. Although other parts of the lease provide that the Club should make every effort to prevent persons other than its members and guests from hunting on the leased premises, IP plainly reserved the right to post the land, presumably to maintain damage control of its timber. The lease clearly does not indicate any intention to benefit possible third-party trespassers such as appellant. Consequently, although appellant is correct in his assertion that the Club did not comply with the lease by obtaining IP’s written consent to post the land, the absence of this proof is of no consequence to appellant, since he is neither a party to the lease contract nor an intended third-party beneficiary of it.

We next consider appellant’s argument as it relates to the stipulated facts. The issue before us is the interpretation and application of the posting statutes to the facts of appellant’s case. Essentially, appellant complains that the Club is not a lessee of IP’s real property and therefore could not have posted the real property pursuant to the posting laws. The state responds with the argument that under the common law, one who leases hunting rights acquires rights in the soil equivalent to an interest in the real property itself, not merely an interest in the animals. Thus, responds the state, the Club was a “lessee of the real property” with authority to post the land, and appellant is therefore guilty of violating section 18-11-403(b).

Section 18-11-403 provides a penalty for the knowing unlawful entry upon posted land. It is a penal statute and therefore must be strictly construed resolving any doubts in favor of the accused. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). Nonetheless, even penal statutes must not be so strictly construed as to defeat an obvious intent of the legislature. Id. Where the language of a statute is clear and unambiguous and susceptible to a sensible construction, resort to extrinsic and collateral aids in construing it is not permitted. Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). We observe that the posting statutes do not define the terms “owners or lessees of the real property.” However, these terms are susceptible to a sensible construction. Moreover, our General Assembly has adopted the English common law as the law of this state, unless altered or repealed by statute, Ark. Code Ann. § 1-2-119 (1987), and it is a rule of construction that the common law in force at the time a statute is passed is to be considered when construing the statute. State v. Pierson, 44 Ark. 265 (1884). Thus, after considering the common law rights of one who leases hunting rights, we conclude it is clear the legislature intended to include lessees of hunting rights in the class of persons referred to as “owners or lessees of the real property” in the posting laws.

This court has recognized that wild animals belong to all citizens of the state and are subject to regulation by the Arkansas Game and Fish Commission, but they are also subject to private ownership arising from ownership of the soil such that one who owns the land may hunt the game thereon. Farris v. Arkansas State Game & Fish Comm’n, 228 Ark. 776, 310 S.W.2d 231 (1958). This private ownership does not conflict with the state’s ownership, but must yield to the state’s regulations including open and closed hunting seasons. Id. This court has also recognized that the right to hunt and fish, technically known as a profit a prendre or a qualified ownership in the land for limited purpose of hunting and fishing, is a valuable and well-recognized right and may be transferred between individuals separately from the land itself. State v. Mallory, 73 Ark. 236, 83 S.W. 955 (1904). In so recognizing, this court relied on Payne v. Sheets, 75 Vt. 335, 55 A. 656 (1903), which held that one who was not the owner of land but who had a right to shoot game upon the land had an interest in the soil, as opposed to a mere easement, such that he could maintain an action of trespass quare clausum fregit against one entering the land to shoot game without permission.

We recognize the Vermont trespass statute at issue in Payne was a civil action for damages by the owner to protect his rights to hunt and fish. We see no reason, however, that the reasoning used there should not apply to this criminal case, given the cited rules of statutory construction and this court’s previous reasoning in State v. Mallory, 73 Ark. 236, 83 S.W. 955, also a criminal case.

These aging principles of the English common law remain intact today and we presume our legislature’s knowledge thereof when it enacted Act 35 of 1989. Thus, in construing this statute, it is clear our legislature intended for lessees of hunting rights, such as the Club in the instant case, who are qualified owners of the soil, to have the authority to post the real property such that appellant’s prosecution under section 18-11-403 was appropriate.

We observe that the state’s stipulation to the “fact” that the Club had no interest or rights in the land may appear at first glance to conflict with its argument. However, we conclude there is no conflict. The determination of the Club’s interest in the land as conveyed in the lease is a question of law and the ultimate issue to be determined in this case. The joint stipulations were stipulations of facts and do not affect a court’s authority to determine the legal consequence of those facts. See Cravens v. Cook, 212 Ark. 71, 204 S.W.2d 909 (1947).

The judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    Charles DUNCAN v. The Honorable Walter G. WRIGHT
    CR 94-260
    883 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      Daniel D. Becker, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Petitioner Charles Duncan has filed a petition for writ of prohibition to halt his trial on charges of violating Arkansas’s Hot Check Law. He contends that the State has run afoul of our speedy trial rules by bringing him to trial more than 12 months after the criminal information was filed against him. We agree that the State failed to meet its burden of proof that it exercised due diligence in arresting Duncan, and we grant the writ.

On November 26, 1991, Duncan wrote three personalized checks with the name Charles Duncan and a Little Rock address (4616 W. 16th, Little Rock, AR 72204) to businesses in Garland County. The checks totaled $288.92 and were drawn on Superior Federal Bank in North Little Rock. All three checks were returned due to insufficient funds.

On January 31, 1992, an information was filed against “Charles Duncan” in Garland County. The information showed Duncan’s address in Little Rock as the same address on the three checks in question. A Bench Warrant for Duncan’s arrest was signed by the Garland County Circuit Judge on January 31, 1992, and received by the Garland County Sheriff’s Office. The address written in hand on the filed Warrant was 4616 W. 16th, Little Rock. That warrant was not served until January 12, 1994, and was served on Robin Landrum, AKA Charles Duncan at 1874 Gaines, Little Rock, according to the Arkansas Arrest/Disposition Report from the Arkansas Crime Information Center.

On February 14, 1994, Duncan moved to dismiss the hot check charges for lack of speedy trial. The State responded that Duncan had evaded capture “by absenting himself from the area and/or by using alias names.” Several hearings followed. Duncan admitted that his true name was Robin Landrum. At a later hearing, the prosecutor advised the trial court:

Your Honor, for the record, the Sheriff’s Office, once they get these Violation of Hot Check warrants, they try to serve them one time and we don’t return them and there is no further attempt.
Judge, the only defense the State would have is the fact that he does have an alias, but I have no proof to show the Court that any attempt was made to locate him.

Defense counsel then advised the trial court that both names, Charles Duncan and Robin Landrum, were in the National Crime Information Center computer. Later, the court was informed by Defendant’s Exhibit 1 that according to the NCIC, Robin Landrum used eight aliases including the name, Charles Duncan. The trial court denied the speedy trial motion due to Duncan’s alias usage and noted that Duncan had other warrants outstanding in Jacksonville (Pulaski County) and Jefferson County. The petition for writ of prohibition was then filed.

The sole issue before this court is whether the period of delay between date of information and date of arrest is excludable for good cause under Ark. R. Crim. P. 28.3(h). Our Speedy Trial Rules are clear that an accused must be brought to trial within 12 months from the date the charge is filed or date of arrest, if the arrest date precedes the filing of the charge. Ark. R. Crim. P. 28.2. Duncan clearly presented a prima facie case of a speedy trial violation, and the burden, therefore, shifted to the State to explain the delay. Meine v. State, 309 Ark. 124, 827 S. W.2d 151 (1992); McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). The State’s response before the trial court was that Duncan’s change of address and use of an alias name prevented a more expeditious arrest. Duncan counters that the State was required to use due diligence to find Duncan and arrest him, and this it failed to do.

Whether the State exercised due diligence in these circumstances is the core issue in this case. It is undisputed that Charles Duncan was an alias name for Robin Landrum. It is also undisputed that a Bench Warrant issued for his arrest and that the Little Rock address at 4616 W. 16th taken from the hot checks was written on the filed copy of that warrant. What is less clear is whether any law enforcement agency actually attempted to serve Duncan. The prosecuting attorney advised the court that it was the policy of the Garland County Sheriff’s Department to attempt one service but that he had no proof that that was done in this case.

Duncan cites us to the case of Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985), in support of his petition. In Chandler, the accused was arrested for murder on August 14, 1981, and gave the arresting officers her address in Little Rock. Three days later her mother posted a cash bond for her, and she moved in with her mother in Stuttgart. The accused, Chandler, had told the police officers that she was moving back to Stuttgart, and the bond release form clearly showed her address as her mother’s address in Stuttgart. Notice of plea and arraignment was sent to the Little Rock address, and she failed to appear. An alias warrant was issued but not served until March 1984. Chandler sought prohibition on speedy trial grounds. We granted the writ of prohibition and held that the State had not made a diligent, good faith effort to bring the accused to trial. In particular, we noted the State’s failure to check available court records in an effort to locate Chandler.

The State directs our attention to a case decided by the Arkansas Court of Appeals where speedy trial relief was denied. See Keys v. State, 23 Ark. App. 219, 745 S.W.2d 628 (1988). In Keys, felony informations were filed against the accused in Faulkner County on March 21, 1984, and he was not arrested until October 1986. He was tried in March 1987 and convicted of sexual abuse. The accused, following the filing of the charges in Faulkner County, had gone to the State Hospital in Benton and to the Veteran’s Administration Hospital in North Little Rock for treatment of alcohol abuse. Following that, he had spent time in a halfway house, undergone eye surgery in Little Rock, and lived at the Union Rescue Mission, also in Little Rock. In August 1985, he began a weekly radio show in Little Rock using his own name. He then moved to Benton as the superintendent of the New Pathway Mission. The Court of Appeals declined to reverse the judgment of conviction for lack of a speedy trial. The court noted that standard procedures had been followed by the police officers in attempting to locate Keys, though the court observed that it was unclear whether Keys’s name was in the NCIC computer network. The court further stated that it would be unreasonable to require law enforcement to monitor radio programs to locate an accused and distinguished Chandler v. State, supra, because in Chandler the delay was solely the fault of the State.

Neither of these two cases is on all fours with the case before us. It is true, as Duncan maintains, that the duty falls on the State to exercise due diligence to arrest an accused and to bring that person to trial. The burden is on the State to prove that it has met this burden. Meine v. State, supra. Here, the State may ultimately have been encumbered in that effort by the deceit of Duncan, who from the outset of his check-writing spree used a false name, but the State submitted no proof that it even tried to arrest Duncan. And that is the threshold issue. Without proof that the Sheriff’s Department did attempt to serve the warrant, there is no basis to argue that the delay was caused by Duncan’s subterfuge.

In sum, the State presented no evidence that Duncan was unavailable or absent. See Tlapek v. State, 305 Ark. 272, 807 S.W.2d 467 (1991). Had the Sheriff’s Department presented proof of thwarted service, the State’s contention of absence through use of alias names might have been more convincing. But it logically follows that for the alias names to impede service, service must have been attempted. No proof was offered that it was, and the State accordingly failed to meet its burden.

The writ of prohibition is granted.

Hays, L, dissents.


text:
    STATE of Arkansas v. Timothy D. KNIGHT
    CR 94-481
    884 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellant.

      Daniel G. Ritchey, for appellee.
   Robert L. Brown, Justice.

This is an appeal by the State of Arkansas. The State contends that the circuit judge erred in reducing the charge against appellee Timothy D. Knight to possession of a controlled substance — methamphetamine — after Knight had pled guilty to possession of that controlled substance with intent to deliver, and in then placing Knight on supervised probation. We agree with the State that probation constituted an illegal sentence, and we reverse the order of probation and remand the case for resentencing in accordance with the plea of guilty and this opinion.

On June 1, 1993, the State filed an information against Knight charging him with three offenses: (1) possession of a Schedule II controlled substance (methamphetamine) with intent to deliver; (2) possession of a Schedule IV substance (Alprazolam) with intent to deliver; and (3) possession of drug paraphernalia with intent to use. Following negotiations, the State entered into a plea agreement with Knight and agreed to nolle pros the latter two counts. In return, Knight agreed to enter a guilty plea to the charge of possession of methamphetamine with intent to deliver.

On January 14, 1994, Knight entered his plea of guilty as agreed, and the judge accepted it. The judge then proceeded to conduct the sentencing hearing. The facts related to the judge are these. On May 1, 1993, appellee was stopped in Lake City for suspicion of driving while intoxicated. During the stop, the arresting officers found an “eight ball” of cocaine and $1,492 cash on Knight’s person. The circuit judge set bond and required that the 1986 Mustang driven by Knight be left with law enforcement officials until they could obtain a search warrant. On May 3, 1993, the police officers obtained a search warrant and found the following items in Knight’s car: a loaded twenty-two caliber Beretta pistol, a loaded nine millimeter Ruger pistol, a loaded F.I.E. automatic pistol, a loaded thirty-eight revolver, a shaving bag containing seven and one-half ounces of methamphetamine, $11,130 cash, plastic baggies, hand-held scales, a triple beam scale, a bag of ammunition, thirty grams of marijuana, and twenty-nine assorted Xanax tablets. On that same day, Knight was arrested again in Mississippi County. The arresting officers found three grams of methamphetamine and a loaded twenty-five caliber pistol on his person at the time of that arrest. The prosecutor requested that the circuit judge consider the items confiscated when he decided Knight’s sentence. The prosecutor also pointed out that according to this court’s precedent, the circuit judge could not suspend a sentence for a Class Y felony or place Knight on probation, as had been requested.

Defense counsel countered that this was Knight’s first offense and that he was an addict undergoing drug rehabilitation at Green-leaf Hospital and not a dealer. Knight testified that he was a slow learner and in special education classes in high school. He married at age seventeen but divorced four years later because he and his wife were using crack cocaine. He used crystal methamphetamine daily until his arrest in May, 1993, to help him start his day. If he went without it, he stated, he would use a substitute drug. When his one-hundred sixty seven dollar weekly paycheck would not pay for-his addiction, he began to sell illegal drugs, including methamphetamine. He stated that he collected guns and liked to repair old cars and sell them.

On cross-examination, the circuit judge asked Knight to divulge his source for the illegal drugs that he sold, but he refused on the basis that he feared for his family. He testified that he got the $1,492 cash from a man as repayment for a loan and that he got the $11,130 from reselling an old car. On the night of his second arrest, he said that he did not put the ounces of methamphetamine in his car, but rather a friend accidentally took the bag from his apartment and put it in the car. He also stated that he did not put the three loaded pistols under the front seat of his car.

A substance abuse therapist, Larry Rogers, testified on Knight’s behalf. He concluded that Knight suffered from attention deficit disorder and was using drugs so that he could focus and pay attention to matters. He also concluded that Knight’s condition was a disease, not a habit. Two other witnesses testified that Knight was a hard worker, polite, and respectful towards his parents.

The circuit judge first addressed the civil forfeiture issue. He accepted the parties’ agreement that Knight forfeit to the Drug Task Force the $12,622 cash, cellular phones, assorted drug paraphernalia, the firearms, and the 1986 Ford Mustang. He then stated: “The biggest problem I have is the fact that Mr. Knight by his own admission has told the Court that he even sold [drugs] to others.” The judge then agreed to give Knight a “break” and sentenced him to ten years of supervised probation with a mandatory one year in-house treatment for his drug addiction. The prosecutor objected on grounds that a sentencing judge does not have the discretion to waive the mandatory penalty of ten years for a Class Y felony. The court responded:

Well, I can make it [the sentence] in accordance with the law. I can find based upon the evidence that’s introduced to the Court that the sentence should be of a lesser degree and reduce the charge to one of possession of a controlled substance and, therefore, my sentence is in accordance with the law.

The judge stated that if the General Assembly gave him the power to impose a life sentence, it also gave him the inherent power to take away a sentence. He reduced the charge of possession with intent to deliver methamphetamine to the lesser included offense of possession of that controlled substance and sentenced Knight to ten years supervised probation. The prosecutor, pursuant to the plea agreement, nolle pressed the other two charges against Knight.

The State’s argument on appeal has two prongs. First, it argues that the circuit judge did not have the authority to reduce the charge against Knight because such authority vests solely with the prosecutor. Since the circuit judge did not have the power to alter the charge against the defendant, he erred in not sentencing Knight to the mandatory sentence of ten years for possession of methamphetamine with intent to deliver.

Because this is an appeal by the State, we first must address the issue of whether the correct and uniform administration of the criminal law requires our review. Ark. R. Crim. P. 36.10(c); see also State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). We believe that it does. The law on whether circuit judges may reduce a criminal charge after a guilty plea and then sentence the defendant accordingly must be clear and unmistakable. For that reason, we accept the appeal.

On the merits, the State is correct. The Arkansas Constitution provides that the duty of charging an accused with a felony is reserved to the grand jury or to the prosecutor. Ark. Const, amend. 21, § 1. We have consistently held that a circuit judge does not have the authority to amend the charge brought by the prosecuting attorney. Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992); State v. Hill, 306 Ark. 375, 811 S.W.2d 323 (1991); State v. Brooks, 301 Ark. 257, 783 S.W.2d 368 (1990).

The facts in the case at hand are analogous to those in State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). In Murphy, the appellee pled guilty to first degree criminal mischief and admitted that he had two prior felony convictions. The judge accepted the plea and found the appellee to be a habitual offender. At the sentencing hearing, a second judge, on his own initiative and without a request by either party, dismissed the habitual offender charge. We held that the trial court impermissibly usurped the prosecutor’s constitutional duties and violated the doctrine of separation of powers when it dismissed the habitual offender charge.

Although the judge in the instant case urges that he did not amend the charges against Knight, his actions were comparable to those in Murphy. Here, the judge accepted Knight’s guilty plea to possession with intent to deliver. At the sentencing hearing, the judge on his own motion determined that Knight was guilty only of the lesser included offense, possession of a controlled substance, and he, in effect, amended the charge to a lesser included offense. This the circuit judge could not do.

Knight argues that the judge did not amend the charge, but rather determined that there was an insufficient factual basis for the guilty plea. Thus, the question, according to Knight’s theory, is whether the judge’s actions constituted a proper rejection of the guilty plea for factual reasons. On this point, Arkansas Rule of Criminal Procedure 24.6 provides that “[t]he court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.” Ark. R. Crim. P. 24.6. As a result, Knight contends that a circuit judge has not only the authority but also the duty to inquire into the factual basis of a guilty plea. We so held in the case of Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978).

In Varnedare, the appellant sought to enter a guilty plea to two counts of burglary. After he told the judge that he was drunk at the time of the burglary, the judge refused to accept the plea on the basis that his intoxication precluded him from having the necessary intent to commit burglary. Later, the appellant was convicted by a jury on both counts. This court affirmed the trial judge’s decision to reject the appellant’s guilty plea because a decision as to the factual basis for such a plea is discretionary with the judge. The Varnedare circumstances, however, do not pertain to the case at hand. There clearly was a factual basis for Knight’s plea of possession with intent to deliver. Not only was Knight found with a sufficient quantity of methamphetamine in his possession, but the judge commented on the fact that Knight had admitted selling drugs under oath. It is clear from the record that the judge was merely seeking a means by which to assess a probationary sentence. Reducing the charge to which Knight had already pled guilty to mere possession was simply the device employed to accomplish that end.

Moreover, even had the judge in this case appropriately rejected the guilty plea for lack of a factual basis after he accepted it, he did not follow the correct procedure. Arkansas Rule of Criminal Procedure 25.3(b) provides in part:

If, after the judge has indicated his concurrence with a plea agreement and the defendant has entered a plea of guilty or nolo contendere, but before sentencing, the judge decides that the disposition should not include the charge or sentence concessions contemplated by the agreement, he shall so advise the parties and then in open court call upon the defendant to either affirm or withdraw his plea.

Ark. R. Crim. P. 25.3. The circuit judge in this case did not follow the rule because he did not call upon Knight to affirm or withdraw his plea. But more importantly, the rule does not authorize a circuit judge to reduce the charge to a lesser included offense; nor does it permit pleading to another charge that the judge believes to be appropriate.

Knight was charged with and pled guilty to possession of methamphetamine with the intent to deliver. A defendant who is guilty of possessing a Schedule II controlled substance like methamphetamine with the intent to deliver “is guilty of a felony and shall be imprisoned for not less than ten (10) years and not more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000).” Ark. Code Ann. § 5-64-401 (a)(l)(i) (Supp. 1991). The circuit judge cannot suspend this sentence or place a defendant who pleads guilty to such an offense on probation:

(a)(1) A court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for the following offenses:
(F) Drug related offenses under the Uniform Controlled Substances Act, § 5-64-101 et.seq. except to the extent that probations otherwise permitted under subchapters 1 -6 of chapter 64.

Ark. Code Ann. § 5-4-301 (a)(1)(F) (Supp. 1991); see also Ark. Code Ann. § 5-4-104(e)(l)(F) (Supp. 1991). Subsection (a)(1)(F) includes possession of methamphetamine with intent to deliver.

The statutes are clear. Knight should have been sentenced to at least ten years imprisonment without probation. See State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994); State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994); State v. Murphy, supra; State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1994); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). We hold that the order of probation based on a reduction of the charge by the circuit judge to mere possession of methamphetamine must be reversed. We remand this matter for resentencing and direct that Knight be sentenced for the offense of possession of methamphetamine with intent to deliver in accordance with this opinion.

Reversed and remanded.


author: Joann C. Maxey, Special Justice. David Newbern, Justice,

text:
    The UNBORN CHILD AMENDMENT COMMITTEE, et al. v. Dr. Harry WARD, et al.
    93-1149
    883 S.W.2d 817
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994
    [Petition for Rehearing Declared Moot November 7, 1994.]

      Lavenski R. Smith and David G. Nixon of the Rutherford Institute of Arkansas, Inc., for appellant.

      Fred H. Harrison; and Winston Bryant, Att’y Gen., by: Jeffrey A. Bell, Dep. Att’y Gen., for appellee.
   Joann C. Maxey, Special Justice.

The appellants, the Unborn Child Amendment Committee, allege that the University of Arkansas for Medical Sciences (UAMS) is in violation of Amendment 68 of the Arkansas Constitution by allowing abortions to be performed at UAMS for reasons other than to save the life of the mother. Appellants maintain that the performance of any abortion at UAMS, whether paid for privately or through third-party providers, involves the expenditure of public funds in violation of Amendment 68. Although the trial court rejected the appellants’ expansive interpretation of Amendment 68, on June 18, 1993, the court issued an order holding that, pursuant to Amendment 68, UAMS could only use public funds to pay for an abortion to save the life of the mother, and could only perform other abortions for patients who paid for their services or who secured payment for their services through a third-party provider. Further, the court issued a permanent injunction prohibiting UAMS from performing abortions other than to save the life of the mother unless the particular patient paid the cost of the abortion in advance or furnished sufficient guarantee of payment by a third-party provider. The order and permanent injunction are appealed here.

Subsequent to the entry of the chancery court’s permanent injunction, an action was filed in the United States District Court, Eastern District of Arkansas, Little Rock Division, captioned Little Rock Family Planning Services et al. v. Thomas Dalton et al., No. LRC-93-803. The plaintiffs in that lawsuit alleged that, as long as the State of Arkansas participated in the Medicaid program, the restrictions of Amendment 68 conflicted with the requirements of the 1994 Hyde Amendment , which permits the use of Medicaid funds to pay for an abortion that is required either to save the life of a mother or to terminate a pregnancy resulting from rape or incest.

On July 25, 1994, the United States District Court entered a judgment and a memorandum opinion finding that Amendment 68 was inconsistent with the Hyde Amendment and therefore violates the Supremacy Clause. Little Rock Family Planning Services et al. v. Thomas Dalton et al., 1994 W.L. 386796 at 14 (E.D. Ark.). Further, the court’s order provided: “The enforcement of Amendment 68 is hereby enjoined in its entirety for so long as the State of Arkansas accepts federal funds pursuant to the Medicaid Act.” Id. On July 27, 1994, the district court entered an additional order stating: “Amendment 68 to the Arkansas Constitution directly conflicts with federal law (the 1994 Hyde Amendment) and is, therefore, null, void, and of no effect.”

On August 22, 1994, the appellees filed a motion pursuant to Ark. R. App. P. 8 asking this court to stay the order and permanent injunction of the trial court pending final determination on appeal of the decision issued by the federal district court. Appellees also asked this court to stay further proceedings in this case and to remove the oral argument of this case from this court’s calendar.

The appellants, The Unborn Child Amendment Committee, Jerry Cox, The Christian Civic Foundation, and Larry Page, joined the appellees in their request that we remove oral arguments from the case and stay further proceedings due to the developments in Little Rock Family Planning Services. However, they objected to a stay of the order and permanent injunction entered by the trial court in this matter.

Based on the limited records available at the time, this court denied the parties’ motions that we remove oral argument from our calendar and stay further proceedings in this case and we accepted the case on submission and heard oral arguments on September 19, 1994. Now having heard the arguments concerning the scope and effect of the preliminary injunction issued by the federal district court, and having reviewed fully the record and briefs submitted by the parties as well as the decision of the federal district court, this court believes that the appropriate course of action is for us to reconsider the motions of the parties and reverse our initial decision not to stay further proceedings in this case. In doing so, we also reconsider the appropriateness of the appellees’ motion for a stay of the order and permanent injunction entered by the trial court at this time.

This court recognizes that, until such time as the federal court’s decision is reversed by the appropriate appellate court, the permanent injunction issued by the federal district court will be binding on the State of Arkansas and its instrumentalities, including UAMS. State v. St. Louis-San Francisco Ry. Co., 162 Ark. 443, 451, 258 S.W. 609, 611 (1924). Yet, unless the preliminary injunction issued by the chancery court is stayed, UAMS and the State of Arkansas can only comply with the terms of one injunction by violating the terms of the other injunction. Accordingly, the appellees’ motion to stay the effect of the Pulaski County Chancery Court’s June 18, 1993, order and permanent injunction pending resolution of the appeal of the decision rendered by the federal district court in Little Rock Family Planning Services et al. v. Thomas Dalton and to stay any further proceedings in this appeal is granted.

This court, in reaching this decision, has not considered any of the constitutional issues raised in the case presented to the federal district court and this opinion should not be interpreted as suggesting any agreement on the part of this court with the federal court’s decision that Amendment 68 is unconstitutional. While this court is the final arbiter of issues involving the Arkansas Constitution and its statutes, the constitutionality of Amendment 68 is not an issue before this court.

Appellees’ motion to stay further proceedings, joined in by the appellants, is granted. Appellees’ motion to stay the order' and permanent injunction entered by the trial court is also granted.

Dudley and Newbern, JJ., dissent.

Brown, J., not participating.

David Newbern, Justice,

dissenting. The question presented in this appeal is whether the Chancellor erred in her interpretation of Ark. Const, amend. 68, §1, which provides, “No public funds will be used to pay for any abortion, except to save the mother’s life.” The argument has to do with whether it is permissible for a State of Arkansas institution to permit abortions, other than those done to save the life of the mother, to be performed there if the abortions are “paid for” by the requesting party or a third party as opposed to being “paid for” with public funds. An example of the arguments made is the contention that anytime an abortion is done at UAMS by state employees using state facilities public funds are used regardless who “pays for” the abortion. We should interpret Amendment 68 and answer the question.

In its order of July 25, 1994, the United States District Court for the Eastern District of Arkansas, Western Division, issued the following injunction: “The enforcement of Amendment 68 is hereby enjoined in its entirety for so long as the State of Arkansas accepts federal funds pursuant to the Medicaid Act. Likewise, the provision of the Arkansas state plan that relate to abortion funding and are inconsistent with the Hyde Amendment are enjoined.” On July 27, 1994, the same Court issued a supplemental order, the last two paragraphs of which provided:

Furthermore, the record makes it absolutely clear that these sponsors knew that their Amendment [the Hyde Amendment] would require the states to either opt out of Medicaid, or provide funding for abortions following rape or incest — as well as for saving the life of the mother. There is not a suggestion to the contrary in the Congressional Record as far as the Court can find — and the parties have not called the Court’s attention to any such suggestion.
Amendment 68 to the Arkansas Constitution directly conflicts with federal law (the 1994 Hyde Amendment) and is, therefore, null, void and of no effect. [Footnote omitted.]

It seems clear to me that the only conflict with federal law is with the Hyde Amendment. The United States District Court’s order is ambiguous because it says Amendment 68 is “null, void and of no effect” but bases that conclusion upon a conditional premise, the condition being acceptance by the State of Arkansas of Medicaid funding. Even if that order were upheld in its present form, the only reasonable interpretation I can give it is that the State must allow public funds to be used to fund abortions in rape and incest cases, in addition to those done to protect the life of the mother, if the State continues to accept Medicaid funding from the federal government. It may seem unlikely, or even bizarre, to suggest Arkansas might forego the acceptance of Medicaid funding for the sake of Amendment 68, but stranger things have happened, and as a legal proposition, the option is there.

My quarrel with the majority opinion’s reconsideration and granting of the motion to stay the appeal thus has to do with this sentence which appears in the opinion: “Yet, unless the preliminary injunction issued by the chancery court is stayed, UAMS and the State of Arkansas can only comply with the terms of one injunction by violating the terms of the other injunction.” That is not so. By deciding to forego receiving Medicaid funding, the State could follow the Chancellor’s order without violating any federal law that has been cited thus far and without violating the injunction language of the District Court’s July 25 order. It enjoined “The enforcement of amendment 68 . . . for so long as the State of Arkansas accepts federal funds pursuant to the Medicaid Act.”

Although both sides want us to postpone our decision, I must point out that this case has been ready for submission to this Court since February 15, 1994. We scheduled oral argument which we have now heard, and the case is ready for decision. A companion case, Knowlton v. Ward, #93-1170, which will also deal with Amendment 68 has been ready for submission since February 17, 1994, and is now under submission to this Court. Surely we should not propose to decide the latter case but postpone the former one.

Any further ruling in the federal courts with respect to Amendment 68 will leave a vestige of it intact. What will the Amendment mean if the conflict with federal law is removed? The Chancellor has ruled on it. At this stage only this Court can declare the meaning of the Amendment. We should do so now.

I respectfully dissent.

Dudley, J., joins in this dissent.

       Section 1 of Amendment 68 states as follows: “No public funds will be used to pay for any abortion, except to save the mother’s life.”

       Pub. L. No. 103-112, § 509 (1993).


author: Per Curiam.

text:
    GRANTORS to the Diaz Refinery PRP Committee Site Trust, et al v. EMPLOYERS NATIONAL INSURANCE CORPORATION
    94-27
    884 S.W.2d 591
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      Mel Sayes, Richard Watts, and Terry Jakusz, for appellants.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellee.

      James E. Baine and Anderson, Kill, Olick & Oshinsky, by: Eugene Anderson, for amicus curiae.
   Per Curiam.

Insurance Environmental Litigation Association (IELA) requests reconsideration of our denial of its motion to file an amicus curiae brief on behalf of Employers National Insurance Corporation, which is in receivership in Oklahoma pursuant to an order of the Federal District Court in Oklahoma. The State Insurance Commissioner in Oklahoma is the appointed receiver. No formal action has been taken by the Oklahoma Insurance Commissioner on behalf of Employers National or counsel for Employers National in this court other than to suggest an indefinite stay of the appeal. An indefinite stay of the appeal is not an appropriate resolution of the matter. Accordingly, the appeal is proceeding until settlement is reached or dismissal is warranted or some other means of disposing of the appeal is proposed.

Without an appearance by a party to an appeal in the form of a brief, participation by amicus curiae on behalf of that party is not appropriate. Our rules contemplate participation of amicus curiae in support of a party’s position. Ark. Sup. Ct. R. 4-6. The position of Employers National is unknown at this time due to the absence of a brief. Moreover, Supreme Court Rule 4-6(b) is clear that amicus curiae shall not participate in oral argument.

The motion for reconsideration is denied.

Glaze, J., not participating.


text:
    Benjamin J. KREIN v. STATE of Arkansas
    CR 94-963
    883 S.W.2d 481
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      Evans & Evans, by: James E. Evans, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Benjamin J. Krein moves for a belated appeal pursuant to Ark. R. Crim. P. 36.9 and states that a notice of appeal in this matter was filed on March 21, 1994, and that the judgment of commitment was filed subsequently on May 5, 1994. His attorney, James E. Evans, Jr., admits fault in failing to file the notice of appeal in timely fashion.

The motion for belated appeal is granted. A copy of this order will be forwarded to the Committee on Professional Conduct.


text:
    SPRING CREEK LIVING CENTER Limited Partnership v. Vivian SARRETT
    94-454
    883 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered October 3, 1994

      Anderson & Kilpatrick, by: Overton S. Anderson, for appellant.

      David Hodges, for appellee.
   Per Curiam.

The appellee, Vivian Sarrett, has filed a motion to dismiss the appeal of Spring Creek Living Center Limited Partnership (Spring Creek) from a judgment entered on October 8, 1993. The basis for the motion is the Trial Court’s failure to rule on motions and cross-motions for sanctions under Ark. R. Civ. P. 11 that were filed prior to the trial. According to Ms. Sarrett, this resulted in an adjudication of fewer than all the claims of all the parties, thus the appeal is in violation of Ark. R. Civ. P. 54(b) as there is no final order. We hold a request for Rule 11 sanctions does not constitute a “claim for relief” as that term is used in Rule 54(b). The motion to dismiss is, therefore, denied.

The appeal is from a judgment entered in favor of Vivian Sarrett against Spring Creek. Ms. Sarrett alleged negligence against Spring Creek and agents of Southern Key Investments. She later amended her complaint to include an allegation that the employees and agents of Southern Key conspired against her. The matter proceeded to trial in September 1993. A directed verdict was granted in favor of Southern Key Investments as to all allegations against it. The Trial Court also directed a defendant’s verdict on the allegations of conspiracy. The negligence issue was submitted to the jury which awarded $30,000 to Ms. Sarrett. A judgment in that amount was entered against Spring Creek.

Before the trial, Ms. Sarrett’s attorneys moved for Rule 11 sanctions. A counter-motion for sanctions was filed by the attorneys for Spring Creek and Southern Key. The Trial Court did not rule on either.

In support of her motion to dismiss, Ms. Sarrett argues that a motion for Rule 11 sanctions is a “claim for relief,” under Rule 54(b), thus there had not been a final judgment as not all claims for relief had been ruled upon. The decisions of this Court that have interpreted Rule 54(b) have involved cases of multiple causes of action and multiple parties. See Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994); Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992). The issue of whether a motion for sanctions under Rule 11 constitutes a “claim for relief’ under Rule 54(b) appears in this Court for the first time.

Decisions of the federal courts that have interpreted Fed. R. Civ. P. 11 have held that motions requesting Rule 11 sanctions present issues collateral to the merits of the underlying action. In Lupo v. R. Rowland and Co., 857 F.2d. 482 (8th. Cir. 1988), it was held that Rule 11 motions filed after a judgment was entered were not motions to amend the judgment under Fed. R. Civ. P. 59(e). In reaching this decision, the Court concluded that a Rule 11 motion “raises a collateral and independent claim, not a matter integral to the merits of the action.” See also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447 (1990).

The federal courts have also held that the collateral nature of Rule 11 motions allows a trial court to rule on them while an appeal on the merits is pending. In Robinson v. Eng, 148 F.R.D. 635 (D. Neb. 1993), the defendants filed motions requesting sanctions under Rule 11. Subsequently, the Trial Court dismissed the plaintiff’s action, but did not address the motions for sanctions in the judgment and had not considered them by the time the plaintiff filed an appeal. The District Court held that, because of the collateral nature of the Rule 11 requests for sanctions, it retained jurisdiction to rule on them even though a final judgment on the underlying action had been entered and was pending on appeal. Federal circuit courts of appeals have also reached this result. See Regional Refuse Systems v. Inland Reclamation Co., 842 F.2d 150, 156 (6th Cir. 1988).

We hold the motions requesting sanctions under Ark. R. Civ. P. 11 are collateral to the merits of the underlying action and do not constitute “claims for relief” as that term is used in Rule 54(b).

Motion denied.


text:
    Frank WILLIAMS v. STATE of Arkansas
    CR 93-988
    883 S.W.2d 821
    Supreme Court of Arkansas
    Opinion, delivered October 3, 1994

      Thomas A. Potter, for appellant.

      No Response.
   Per Curiam.

On February 12, 1993, Frank Williams, Jr. was convicted of capital murder and sentenced to death by lethal injection. He appealed his conviction on March 4, 1993, and was granted a stay of execution on March 29, 1993. The trial court also gave Williams seven months from the conviction judgment to lodge the record which made the record due on September 12, 1993.

On September 10, 1993, the court reporter, Betty Voltz, indicated she could not complete the transcript in order for the record to be filed on September 12, 1993, so on September 10, 1993, defense counsel, Thomas A. Potter, petitioned this court for a writ of certiorari directing the clerk of the trial court to file a complete record. We denied the petition on September 27, 1993, without prejudice to file other motions.

On October 1, 1993, Williams filed a motion for reconsideration and attached an affidavit of the court reporter, stating she could have the record prepared if given thirty additional days. On October 25, 1993, we denied Williams’ motion for reconsideration, granted a writ of certiorari to the clerk of the court of Lafayette County and directed it was returnable on November 24, 1993. At the same time, the clerk of this court instructed that Williams’ brief would be due forty days after the return of the writ and the state’s brief was to be due thirty days after Williams’ brief was filed. The record was filed in the supreme court clerk’s office on November 22, 1993.

On November 24, 1993, Williams’ counsel filed a motion for extension of time to file abstract and brief, asking for 120 days. That motion was granted, making Williams’ abstract and brief due on March 31, 1994.

On March 28, 1994, Williams’ counsel requested sixty additional days which this court also granted making his abstract and brief due on May 30, 1994. However, on May 27, 1994, Williams’ counsel filed another motion asking he be given another sixty-day extension, or until July 29, 1994. That additional time, too, was granted, but counsel was informed no further extensions would be given. Counsel failed to file his abstract and brief on the July 29, 1994 due date, nor did the court have any communication from him that his brief would not be filed. Instead, on August 15, 1994, the state filed its motion to dismiss this appeal, stating Williams had not sought permission to file a belated brief. On September 26, 1994, counsel filed a motion to file a belated abstract and brief but tendered neither an abstract nor brief. In addition, on September 27, 1994, Mr. Williams filed a pro se motion requesting his counsel be relieved.

As of today, Williams has had nearly ten months from the original due date to file an abstract and brief. Because the abstract and brief have not been filed or tendered, we set a hearing date on Monday, October 17, 1994, at 9:00 a.m., and direct Williams’ counsel, Thomas A. Potter, to appear and show cause why he should not be held in contempt for failing to file the abstract and brief in this cause.