author: Tom Glaze, Justice.

text:
    Perry Eugene JOHNSON v. STATE of Arkansas
    CR 97-1447
    972 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered June 25, 1998

      Larry Dean Kissee, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Perry Eugene Johnson brings this appeal from the jury’s convictions of possession of controlled substance with intent to deliver and simultaneous possession of drugs and firearms. He was given consecutive fifteen-year sentences, totalling thirty years’ imprisonment. He argues seven points for reversal, including ones involving the interpretation and constitutionality of Arkansas’s simultaneous-possession statute, Ark. Code Ann. § 5-74-106 (Repl. 1997). We accept jurisdiction of this appeal under Supreme Court Rule provisions 1 — 2(b)(1), (3), and (5).

Because this court addresses challenges to the sufficiency of the evidence before considering other points on appeal, Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996), we first decide Johnson’s contention that the State failed to prove his conviction of the simultaneous possession of drugs and firearms. In determining the sufficiency of the evidence, we need only ascertain the evidence most favorable to the appellee, the State in this instance. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997).

Johnson was a law enforcement officer at Tuckerman of Jackson County, when Officer Marvin Poe of the First and Third Judicial District Task Force received a tip from a confidential informant that Johnson was involved with his brother in dealing in illegal drugs. Sometime in early June 1996, Poe was given his first information by the informant that Johnson was on his way to his brother’s residence in Heber Springs, Cleburne County, where he was to pick up an ounce of methamphetamine. Officer Poe in turn gave this information to the Cleburne County Sheriff, who verified Johnson was later seen that day at his brother’s house. Later, on July 3, 1996, Poe was again notified that Johnson was planning to return to his brother’s residence for more methamphetamine. This time, when Poe contacted the Cleburne County Sheriff, the Sheriff not only verified Johnson’s visit to his brother’s house, but he also notified Poe when Johnson left, so Poe could have two of his men follow Johnson’s return to Jackson County. Johnson drove to Elgin Ferry, Jackson County, where Officers Poe and Mickey Brock awaited and stopped Johnson. Johnson consented orally and in writing to the officers’ search of his car, wherein the officers found some methamphetamine inside a road atlas on the front passenger seat and a .45 caliber Llama automatic pistol on the left-rear floorboard. The officers advised Johnson of his rights, arrested him, and took him and his car to the Newport Police Department.

After the officers initially questioned him at the police station, Johnson agreed to cooperate with the drug task force in exchange for a promise from Poe that Johnson would be charged only with simple possession of methamphetamine and a recommendation would be made that Johnson be placed on probation. This agreement was conditioned on Johnson’s being truthful and on finding no more drugs. Johnson signed another written consent to search, and subsequently, officers found a plastic bag containing one ounce of methamphetamine hidden in the rear-fender well of Johnson’s vehicle.

Pointing to the State’s foregoing proof, Johnson asserts the evidence falls short of showing that he violated § 5-74-106, which prohibits, among other things, a person’s unlawful possession with intent to deliver a controlled substance while in possession of a firearm. Relying on Manning v. State, 330 Ark. 699, 956 S ,W.2d 184 (1997), Johnson argues that, to prove he violated § 5-74-106, the State was required to show some connection between his drug activity and the firearm found in his vehicle. He claims there was no evidence showing any connection between the pistol and the drugs hidden in the car. Such an assertion obviously conflicts with the proof. While most of the methamphetamine was concealed outside in the car’s rear-fender well, the officers initially found in the car’s front passenger seat a smaller amount of methamphetamine, which was in close proximity to the pistol located on the floorboard behind Johnson’s driver’s seat. Johnson was the sole occupant of the car, and was clearly in possession of both an illegal drug and a firearm at the same time. This evidence alone is sufficient to support the conviction for simultaneous possession under § 5-74-106. As we held in Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994), when an accused is charged with possession of a controlled substance with intent to deliver, evidence of possession of firearms is relevant to prove intent.

Next, we turn to Johnson’s argument that the trial court erred in denying his motion to suppress evidence found and seized from his vehicle. Johnson argues, citing Ark. R. Crim. P. 3.1 and 2.1, that the drug task force agents lacked reasonable cause to stop him and search his vehicle. He contends the only information the agents had was that Johnson would be travelling back to Jackson County, following a certain route from his brother’s house in Heber Springs. Johnson avers the informant provided Poe with no other details. He further claims there was no showing that this particular informant had been reliable in the past and that, in fact, the record reveals the only other information provided by the informant proved to be incorrect.

Rule 3.1 in pertinent part provides an officer may stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit a felony, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. (Emphasis added.) Rule 2.1 defines “reasonable suspicion” to mean suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. We have held that such an investigatory stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. Frette v. State, 331 Ark. 103, 959 S.W.2d 734 (1998); rev’d Frette v. State, 58 Ark. App. 81, 947 S.W.2d 15 (1997); see also Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995).

In the instant case, Poe testified that he had more than one source advising him that Johnson was involved in drug trafficking. However, as to the informant in this matter, Poe related that the informant had supplied him with reliable information on many prior occasions. And, as previously discussed hereinabove, this same informant had given Poe an earlier tip that Johnson was about to make an illegal drug visit to Johnson’s brother’s house on a certain date in June 1996, and Poe was able to verify certain aspects of that visit by staking out officers to observe the brother’s home. With this prior information and knowledge, Poe, upon receiving a second tip on July 3, 1996, from the same informant, established a more elaborate stake out, which, this time not only verified Johnson’s trip to his brother’s house and his return to Jackson County, but also was designed to stop and detain Johnson. We hold that, under the totality of the circumstances, Poe’s tip carried with it sufficient evidence of reliability to justify an investigatory stop under Rule 3.1, and that the trial court was correct in so ruling.

In his third argument, Johnson argues that his inculpatory statement to Officer Poe should have been suppressed because Poe falsely promised to recommend that he be given probation. He cites the established rule that custodial statements are presumed to be involuntary, and asserts that his statement was not freely and voluntarily given because he gave his statement in reliance upon Poe’s promise, which was not forthcoming. Johnson’s argument was dependent upon whethe'r the trial court believed his version of what prompted his statement to Officer Poe. While Poe told Johnson he would recommend probation to the prosecutor if Johnson was truthful and if no other drugs were found, Poe testified that those conditions were never met. More drugs were found. Although Johnson denied any knowledge of the additional methamphetamine found in his car’s fender well after Poe made his promise, the trial court was not bound to believe Johnson’s story. See Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). Accordingly, we affirm the trial court’s ruling denying Johnson’s motion to suppress his statement.

Johnson’s fourth point is that the trial court erred in refusing to redact evidence of other criminal acts contained in his statement. The statement included his admissions to having sold drugs to other named persons; however, Johnson argues those other crimes were inadmissible under Ark. R. Evid. 404(b).

Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but such evidence is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. We have interpreted this rule as permitting the introduction of testimony of other criminal activity if it is “independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.” Abernathy v. State. 325 Ark. 61, 925 S.W.2d 380 (1996). We have stressed the requirement that there be a very high degree of similarity between the charged crime and the prior uncharged act. Id. In other terms, we have said that evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).

Here, Johnson was charged with possession with intent to deliver methamphetamine; consequently, we conclude that Johnson’s prior similar criminal acts were admissible to show his intent. See Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Based on the crimes with which Johnson was charged and the prior similar crimes to which he admitted, we hold the trial court did not abuse its discretion in refusing to remove the other-crime evidence from Johnson’s statement.

In his fifth contention, Johnson argues Arkansas’s simultaneous-possession statute, § 5-74-106, is unconstitutional because it overlaps and conflicts with Ark. Code Ann. § 5-73-120 (Repl. 1997). He points out that § 5-73-120 provides certain strictures that make it unlawful for a person to carry a weapon (including a handgun) and that, under subsections (C)(1) and (4), the statute specifically allows a person to possess and carry a weapon in one’s home or when on a journey. He submits that, while the simultaneous-possession and carrying-a-weapon statutes both prohibit the possession of a weapon and provide a defense for when one is in his or her home, the simultaneous-possession statute omits the defense for when one is on a journey. Johnson extends his argument to pose questions, such as, is simple possession of a firearm sufficient in itself to expose one to liability under § 5-74-106, and must there be some connection between the drugs and the firearm, and if so, what connection? He further, muses is the defense of being on a journey a defense under § 5-74-106? Johnson submits that these questions show § 5-74-106 is overly broad and vague.

Johnson’s argument and questions simply ignore the fact that §§ 5-74-106 and 5-73-120 deal with two entirely different offenses. For example, § 5-74-106 is not to be invoked merely because a person possesses a handgun. In other words, if an individual possesses no controlled substances while he is carrying a gun, he cannot be charged and convicted under § 5-74-106. In sum, there is nothing overlapping or vague about §§ 5-73-120 and 5-74-106, since they concern two separate and different crimes.

Under this point, Johnson also urges that § 5-74-106 violates the Second Amendment to the United States Constitution, which permits citizens to bear arms. He argues the language in § 5-74-106 fails to specify what conduct is prohibited. The statute, however, clearly prohibits possessing a firearm while at the same time possessing illegal drugs. There is nothing misleading or vague about what type of conduct is banned by the statute, and therefore, we uphold the statute’s constitutionality.

Johnson argues in his sixth point that the prosecutor made three improper closing remarks to the jury. During the guilt phase, the prosecutor said the following:

Now this firearm, and you can see they’ve arranged it so the slide won’t work, but it was not only possessed, it had — look at these bullets. You folks that hunt, get back there and say, why would you have a pistol bullet like that? Look at them with that hole in them. That’s made for one thing, that’s to tear apart human flesh, make a great big hole, and this gun was loaded with these bullets, this clip, and one was in the chamber. He had it ready so he could kill somebody with it. That’s the only reason for having a gun like that behind the seat loaded.

Basically, Johnson contends that the foregoing remarks were not substantiated by the record and the trial court erred in overruling Johnson’s objection to the remarks.

The rule is well established that a trial court has wide discretion in controlling, supervising, and determining the propriety of counsel’s arguments, and this court will not reverse absent a showing of manifest abuse. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1994). Some leeway must be extended in closing arguments, and counsel may argue every plausible inference that can be drawn from the evidence. Id. Here, the prosecutor, quite properly we conclude, argued that the type gun and bullets found in Johnson’s car were designed to kill human beings. Consequently, we hold the trial court did not abuse its discretion when ruling this was proper argument by the prosecutor.

Johnson’s second objection went to the prosecutor’s comment in the sentencing phase referring to the “horrors” of children using drugs, and arguing Johnson, as a police officer, was selling “poison” in this community. At trial, Johnson objected to the statement as a reference to prior criminal acts. On appeal, however, Johnson changes his argument, claiming the prosecutor had made an improper “Golden Rule” argument. Because Johnson did not make this argument to the trial court, he cannot do so now on appeal. Scroggins, 312 Ark. at 115.

Finally, again in the sentencing phase, Johnson argues the trial court erred after the prosecutor said, “When we go to war against the enemies of this nation, we go to kill, we go to destroy.” Johnson urges that, while the trial court sustained his objection to these closing remarks of the prosecutor, and admonished the jury to disregard them, the trial court erred when it declined to grant a mistrial. However, Johnson offers no citation to authority and makes no argument to show why a mistrial should have been granted in these circumstances. As a result, we need not consider his claim. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).

In his final argument, Johnson contends the trial court erred by admitting into evidence the tape recording and transcription of his confession because he was not provided with the transcription during discovery. Johnson avers he was not able to compare the transcript with the tape prior to trial. However, the record shows Johnson was aware that copies of the transcription were available at Officer Poe’s office, but that he failed to avail himself of them.

When a discovery violation occurs, the error is reversible only when the violation results in prejudice to the appellant. McNeese v. State, 326 Ark. 787, 935 S.W.2d 246 (1996). The burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995). Johnson has not alleged that there was any discrepancy between the transcript and the tape, nor has he shown that he was harmed by the omission. As Johnson has failed to demonstrate any prejudice, he cannot prevail on this issue.

In sum, Johnson has failed to show the trial court committed reversible error. Accordingly, we affirm.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Annabelle Clinton Imber, Justice,

license: Public Domain

text:
    James Preston BOYD, Jr. v. Richard WEISS, Director of the Department of Finance and Administration for the State of Arkansas, The City of Texarkana, Dan Boyles, Delldon Brewer, Charles Drake, Dennis Huffman, Robert L. McMahon, Bobby Selph, Dewight Sperry, and Evelyn Townsend
    97-895
    971 S.W.2d 237
    Supreme Court of Arkansas
    Opinion delivered June 25, 1998
    [Petition for rehearing denied September 10, 1998.]

      Williams & Anderson, by: Leon Holmes, for appellant.

      Beth B. Carson, for appellee Richard Weiss.

      Autrey, Autrey & Stewart, by: E. LeRoy Autrey; and Friday, Eldredge & Clark, by: William H. Sutton, Elizabeth Robben Murray, John C. Fendley,Jr., and R. Christopher Lawson, for appellee City of Texarkana.

      Patton, Haltom, Roberts, McWilliams & Greer, A Registered Limited Liability Partnership, by: Thomas Kirk Patton; and Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Allan Gates and Marsha Talley Ballard, for appeEees Don Boyles, Delldon Brewer, Charles Drake, Dennis Huffman, Robert L. McMahon, Bobby Selph, Dewight Sperry, and Evelyn Townsend.
   Robert L. Brown, Justice.

This appeal arises out of a constitutional chaEenge to Act 48 of 1977, now codified at Ark. Code Ann. § 26-52-601 to -606 (Repl. 1997), which was effective on January 31, 1977. Act 48 permits residents of Texarkana, Arkansas, to pay an additional one percent sales tax in exchange for exemption from the state income tax. Under Act 48, border cities which are divided by a “street state Ene” are ehgible for this change in tax status. The stated purpose of Act 48 was to equalize the tax burden for residents in these border cities, thereby offering tax inducements to people to locate their homes and businesses in Arkansas border cities. See Ark. Code Ann. § 26-52-601. In 1977, Texarkana, Arkansas, was the only Arkansas border city divided by a street state line under Act 48.

On September 13, 1977, the City of Texarkana held a special election in which a majority of its residents voted in favor of a one percent sales tax in lieu of state income tax. Since the effective date of this tax change, which was January 1, 1978, residents of Texarkana have been exempt from state income tax just as their counterparts have been in Texarkana, Texas. Also since that date, the sales tax increase has been assessed against sales made within the Arkansas city.

On November 7, 1996, appellant James Preston Boyd, Jr., brought an illegal exaction suit in the Pulaski County Chancery Court against appellees Richard Weiss, Director of Finance and Administration, and the City of Texarkana in which he challenged the constitutional validity of Act 48 on several grounds. Boyd asked the chancery court to declare Act 48 unconstitutional and to enjoin the collection of the sales tax and the distribution of the form for claiming the income-tax exemption. Later, certain residents of Texarkana intervened on the side of Weiss and the City. The parties on both sides moved for summary judgment, and the chancery court granted summary judgment in favor of Weiss and the City. In doing so, the court observed that the cities of Texarkana, Arkansas, and Texarkana, Texas, are essentially one city in several respects. The court noted that the two border cities shared common governmental offices, public utilities, arts and cultural organizations, libraries, airports, and other commercial and cultural functions. The chancery court concluded that (1) there was no unlawful delegation of legislative and taxing power to residents of Texarkana; (2) a rational relationship existed for the “special” or “local” legislation;, and (3) Act 48 did not violate the Equal Protection Clause.

I. Unconstitutional Delegation of Authority

For his first argument on appeal, Boyd claims that the chancery court erroneously concluded that Act 48 was not an impermissible delegation of state legislative and taxing authority to the City of Texarkana and that the court erroneously relied on local-option decisions in making its decision. We disagree.

We begin by observing that Arkansas statutes are presumed to be constitutional, and the burden is placed on the party attacking the statute. Fayetteville School Dist. No. 1 v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993); Phillips v. Giddings, 278 Ark. 368, 646 S.W.2d 1 (1983). Thus, it was incumbent on Boyd to prove that Act 48 amounted to an improper delegation of legislative power.

We view the issue of equalizing taxes in the Texarkana border cities as being vastly different from one involving women’s suffrage, which was clearly a policy matter of statewide concern in In Re Municipal Suffrage to Women, 36 N.E. 488 (Mass. 1894). Nor do we see it as being comparable to legislation authorizing a few local election districts to decide whether state residents could fish oysters from their local waters. See Bradshaw v. Lankford, 21 A. 66 (Md. 1891). In Bradshaw, local voters without question were affecting recreation for the entire state populace, which was a decision more properly left to the state legislature. Boyd relies on both of these cases in his argument, but they are decidedly different from Act 48, which is first and foremost a local vote to implement legislation addressing a border-city problem generally, and Texarkana in particular.

Moreover, Act 48 does not constitute an unlawful delegation of legislative authority because the Act presented a complete plan of what the tax status in Texarkana would be, if the people approved it. We have affirmed the constitutionality of similar voter-approved legislation where the legislation is complete in itself. See, e.g., Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989) (law authorizing horse racing on Sunday subject to voter approval not an unconstitutional delegation of legislative authority). McQuilHn’s treatise on municipal corporation states the premise succinctly:

Generally a provision in a statute or in a municipal charter that it shall not take effect unless it is assented to by a majority or fixed percentage of the inhabitants of the municipality is not invalid as a delegation of legislative power, provided the statute is complete in itself.

McQuillin, The Law of Municipal Corporations § 4.10 at 30 (3d ed. 1994). The terms and content of the law under Act 48 were fixed. There was no power or discretion vested in the Texarkana voters to change the terms of the law as enacted.

Boyd next argues that the General Assembly can only delegate its legislative taxing power to local political entities under the Arkansas Constitution “to the extent of providing for their existence, maintenance and well-being but no further.” Ark. Const, art. 2, § 23. He posits that what Act 48 does is not benefit Texarkana but the state treasury with the additional sales-tax revenues. We take issue with this conclusion. The stated purpose of Act 48 was to protect the City of Texarkana by exempting from state income taxes residents who might otherwise be induced to move to Texas. The mere fact that the revenue from the increased sales, tax goes into the state treasury does not negate or supersede this purpose.

Finally, Boyd contends that the City of Texarkana, by expanding its city limits, can automatically create a tax exemption under Act 48 and a sales-tax increase. We view this as a circumstance that is totally ancillary to the prime purpose of Act 48, which was to even out income-tax treatment for residents in the border cities. This issue has no merit.

II. Special or Local Legislation

Boyd next contends that Act 48 is impermissible “special” or “local” legislation. See Ark. Const, amend. 14. The people arbitrarily excluded by Act 48, according to Boyd, are people living in the remainder of Miller County and in surrounding areas in southwest Arkansas. Indeed, Boyd’s counsel urged at oral argument that only by including the entire state as the affected area could the claim of “special” legislation be avoided.

Amendment 14 of the Arkansas Constitution reads: “The General Assembly shall not pass any local or special act.” We have distinguished the two categories of “special” and “local.” See Fayetteville Sch. Dist. No. 1 v. Arkansas State Bd. of Educ., supra. “Special” legislation may be arbitrary if it separates some person, place, or thing from another. Id. “Local” legislation, on the other hand, is legislation that is applicable to only one area of the state and for that reason may be arbitrary. Id.

Boyd contends that Act 48 is impermissible “special” legislation because it excludes people in the areas surrounding Texarkana and, in addition, excludes West Memphis by limiting border cities to those separated by a street state line. He contends it is “local” legislation because (1) it is not prospective, (2) the classification by a state street fine is not rational, and (3) it induces people in surrounding Arkansas cities to move to Texarkana.

a. Special Legislation

We first take issue with Boyd’s contention that people similarly situated in Miller County and surrounding areas have been arbitrarily excluded from the application of Act 48. We are convinced that Act 48, which limits its effect to the boundaries of the affected city, has a valid purpose which has already been stated in this opinion — to protect the border city by removing the inducement for that city to settle across the state line. See Fayetteville Sch. Dist. No. 1 v. Arkansas State Bd. of Educ., supra; Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). But, in addition, we are also convinced that drawing the line for the affected area along the city boundary is reasonable and not arbitrary. No doubt, there is a collateral effect on cities like Ashdown, which is Boyd’s home. We note, nevertheless, that a collateral impact on people living outside the line will always be the case wherever the line is drawn. See, e.g., Bollinger v. Watson, 187 Ark. 1044, 58 S.W.2d 421 (1933) (line for equalizing motor fuel taxes in border cities was the city limits). This impact does not, however, render the legislation unconstitutionally “special” so long as the line drawn is rationally related to the purpose of the Act. We hold that it is.

As a corollary argument, Boyd offers that West Memphis is arbitrarily excluded from qualifying as a border city under Act 48, even though Tennessee levies no income tax on wages, because the Act is limited to border cities with street state lines separating them. West Memphis and Memphis are separated by several miles and the Mississippi River as well. We initially observe that this court has approved in the past legislation to equalize motor fuel taxes in border cities, even though that legislation specifically excluded the West Memphis/Memphis situation. See Bollinger v. Watson, supra. But, more importantly, we see a marked difference in the ease of relocating a home between border cities separated by a street and those separated by some distance as well as a major river. In the case of the Texarkanas, there is more the sense of living in one interdependent urban community, as the chancery court observed, where business and personal relationships have been established across the city-street boundary. This would not pertain as readily to West Memphis and Memphis where miles separate the two cities. Hence, we conclude that moving a home across one city street in what is essentially a combined city is categorically different from moving some distance away across a major waterway into a completely different urban environment. The threat to Texarkana was much more dramatic, and for that reason, the General Assembly’s limitation in Act 48 to state-street-line border cities was not arbitrary.

b. Local Legislation

Boyd also contends that Act 48 is “local” legislation. Last year, in the case of McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997), this court discussed what constitutes unconstitutional “local” legislation. In McCutchen, Act 739 of 1995 appropriated $20 million for a multipurpose civic center in Pulaski County. McCutchen asserted that if the Act applied to only one geographic subdivision of the state, Pulaski County, it was a per se violation of Amendment 14. We disagreed and said:

To the contrary, this court has repeatedly held that merely because a statute ultimately affects less than all of the state’s territory does not necessarily render it local or special legislation.
Instead, we have consistently held that an act of the General Assembly that applies to only a portion of this state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act.

McCutchen, 328 Ark. at 208, 943 S.W.2d at 227 (citations omitted).

The purposes of the civic center in McCutchen were to increase tourism, recreation, and economic development for the entire state. We took notice of the fact that Pulaski County is the most populated county in the state, is centrally located, and is the seat of government. Because of this, we concluded that we would not second-guess the decision of the General Assembly. We held that the decision to build the civic center in Pulaski County was not “local” legislation and was rationally related to the purposes of the Act.

In an earlier case, we held that legislation that had the practical effect of exempting only Little Rock from contributing a percentage of municipal fines to the Police Pension Fund was not “local” legislation because a rational basis supported the classification. See Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988). In City of Little Rock, cities with over $200 million in property valuations were not required under a legislative act to contribute part of their municipal fines to the Police Pension Fund. Only Little Rock qualified for this exemption. We held that the high property values in Little Rock, and the resulting property taxes, formed a rational basis for the exemption.

Boyd argues that because only Texarkana qualified under Act 48, it is “local” legislation and cites this court to Humphrey v. Thompson, 222 Ark. 884, 263 S.W.2d 716 (1954). He also claims that Act 48 fails for lack of prospectiveness and points out that under the terms of the Act, an election by the residents must occur by October 1, 1977 — a time frame of seven months. This narrow window, Boyd contends, was no window at all for border cities that might conceivably qualify other than Texarkana.

We first distinguish the case of Humphrey v. Thompson, supra. In Thompson, legislation had been passed which established new vocational-technical schools in counties having a population of less than 6,000. Only Perry County qualified, and we struck down the legislation on the basis that there was no reason shown why Perry County, more so than any other county in the state, should be the lone qualifier. Unlike the Thompson case, here there was clear reason for equalizing taxes, and that reason was to provide an incentive to people to settle in Texarkana, which was in jeopardy.

The chancery court did not address the prospectiveness argument specifically, but we cannot disagree that Act 48 was designed primarily to benefit Texarkana. To do so would be disingenuous on our part. Nor can we disagree that the door was shut almost immediately on any other border city with a street-state-line border that might qualify. The same is true of the classification in Act 48 that the border cities be separated by a “street state line.” That criterion had the effect of limiting the applicability of Act 48 to Texarkana. But the mere fact that Act 48 was applicable only to Texarkana does not render it per se “local” legislation in violation of Amendment 14 so long as the geographical limitation is rationally related to the purposes of the Act. McCutchen v. Huckabee, supra; Board of Trustees v. City of Little Rock, supra. See also McQuillin, The Law of Municipal Corporations, § 4.54 at 128-129.

We believe that the chancery court correctly concluded that Act 48 “expresses a legitimate state objective to protect and promote the economic security of border cities . . . .” We have acknowledged the same state interest in past decisions. See Bollinger v. Watson, supra (act equalizing motor fuel taxes in certain border cities is a reasonable classification); Lockwood v. State, 249 Ark. 941, 462 S.W.2d 465 (1971) (act permitting border cities to adjust to adjoining states’ Sunday closing laws reasonably related to purpose of protecting border cities).

The chancery court went on to say: “The legislature adopted the act in an effort to promote the critical interest of the State of Arkansas in protecting the economic vitality of Texarkana, Arkansas.” Boyd counters, however, that a street state line is not a rational classification for protecting the state’s border cities. We have already concluded in this opinion that it is a reasonable classification for purposes of protecting Texarkana from a population drain, just as exempting cities with over $200 million property valuation (only Little Rock) we held to be reasonable in Board of Trustees v. City of Little Rock, supra.

Boyd further maintains, in response, that the narrow Act 48 classification might well exclude other closely connected border cities that are separated by some means other than a city street. We believe that Boyd’s focus is misplaced. In our analysis, we consider whether the Act 48 classification is rationally related to protecting border cities, and specifically Texarkana. Our analysis should not be based on what tax problems involving other border cities with different boundaries might conceivably develop in the future. A street-state-line classification is unique in our judgment and identifies cities that are inextricably intertwined with their out-of-state counterparts while excluding border cities that are not as closely related. Apart from West Memphis, which we have already discussed, Boyd presents no other fact pattern where an adjoining state (Oklahoma, Missouri, Mississippi, or Louisiana) has a preferential tax law or where an Arkansas town or city might be prejudiced as a result. The fact that some disparate tax treatment affecting border cities might arise in the future is not only speculative but seems a thin reason for us to strike down a current classification as arbitrary. On this point, the dissent fails to note that both the United States Supreme Court and this court engage in a reasonable-hypothesis analysis to sustain a legislative classification. See, FCC v. Beach Communications, Inc., 508 U.S. 307 (1993); Sullivan v. Stroop, 496 U.S. 478 (1990); United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). The cases cited by Boyd do not support his argument that speculation and conjecture about possible border-town boundaries in the future may be used to strike down a legislative act.

Finally, we disagree with Boyd that Act 48 is “local” legislation in that it provides a tax incentive for people in surrounding Arkansas cities to move to Texarkana. That may well be a collateral effect of the legislation, the scale of which would only be speculation on our part. But that incidental circumstance is not determinative of the reasonableness of Act 48 in accomplishing its stated purpose. The line for affected people, to repeat, has to be drawn somewhere. The United States Supreme Court has said that in line-drawing cases the fact that the line might have been drawn differently “is a matter for legislative, rather than judicial consideration.” FCC v. Beach Communications, Inc., 508 U.S. at 316. We decline to redraw the line.

III. Equal Protection Clause

For his final point, Boyd offers that Act 48 creates a classification between Texarkana residents and other Arkansans similarly situated who live just outside the Texarkana city limits. The classification argument has already been discussed, and we consider the equal-protection argument to be the same essential claim dressed in different clothing.

Affirmed.

Corbin, J., not participating.

Special Associate Justice H.E. Cummins joins.

Newbern and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. I agree with the majority except to the extent that they conclude that the street-state-line classification is rationally related to the purpose of Act 48. For this reason alone, I must respectfully dissent.

As the majority correctly acknowledges, when deciding whether an act is special or local legislation we must first determine whether the mechanics of the act are rationally related to its purpose. In this respect, the majority concludes that the income-tax exclusion contained in Act 48 is rationally related to the purpose of protecting “the border city by removing the inducement for that city to settle across the state line.” I agree.

The majority, however, loses sight of the second and more important requirement that there must also be a rational basis for the classifications that limit the application of the act to only one area of the state. McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997); Foster v. Jefferson County Bd. of Election Comm’rs, 328 Ark. 223, 944 S.W.2d 93 (1997); Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988). As recognized by the United States Supreme Court in F.C.C. v. Beach Communications, Inc., 508 U.S. 307 (1993), the heart of the constitutional challenge is that when the legislature draws lines, as it inevitably must, those lines must not be drawn arbitrarily, but instead their placement must be rationally related to the purpose of the Act.

In passing Act 48, the General Assembly chose to draw a line between border cities that were separated by a street-state line (admittedly only Texarkana), and those that were not. I can find no rational basis for this distinction. The majority claims that the street-state-line classification limits the application of Act 48 to border cities that are “inextricably intertwined with their out-of-state counterparts while excluding border cities that are not as closely related.” I disagree.

The explanation offered by the majority ignores the fact that other border cites could merge, just as Texarkana has, but not have a street that runs down the state line. Instead, there could be an alley, or a fence, or some other physical dividing point, or nothing at all that marks the border dividing otherwise “inextricably intertwined” cities. It is equally plausible that two integrated cities may be separated by a state border that meanders, thus making it impractical to place “a street” on the state line.

The majority contends that this is mere “speculation.” Speculation, however, is the heart of a rational-basis analysis, for we have been consistently reminded by the United States Supreme Court to look for “plausible” or “conceivable,” but not actual, reasons for the classifications that limit an act to only one area or group of people. See, e.g., F.C.C. v. Beach, supra; Sullivan v. Stroop, 496 U.S. 478 (1990); United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980). Likewise, in Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), we said that when performing the rational-basis analysis, “the judiciary is allowed to hypothesize.”

Finally, the majority mentions cases where we have reviewed acts that created exemptions for border cities. In none of these cases, however, were the statutory exemptions extended only to border cities that were separated by a street-state line. Lockwood v. State, 249 Ark. 941, 462 S.W.2d 465 (1971); Hardin v. Croom, 203 Ark. 519, 157 S.W.2d 520 (1942); Wiseman v. Phillips, 191 Ark. 63, 84 S.W.2d 91 (1935), Bollinger v. Watson, 187 Ark. 1044, 63 S.W.2d 642 (1933).

In sum, I agree with the majority that the tax-equalizing purposes of Act 48 are rational, and perhaps laudable. I, however, cannot agree that only a border city that has a street running down the state line will be faced with the problem that this act was intended to alleviate. The street-state-line classification contained in Act 48 is arbitrary, and accordingly I would hold it unconstitutional. For this reason, I must respectfully dissent.

Newbern, J., joins this dissent.


author: Robert L. Brown, Justice.

text:
    Robert Lovell BROWN v. STATE of Arkansas
    CR 97-1236
    970 S.W.2d 287
    Supreme Court of Arkansas
    Opinion delivered June 25, 1998
    [Petition for rehearing denied September 10, 1998.]

      John I. Purtle, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This case raises the sole issue of whether appellant Robert Lovell Brown was denied a fair trial because the jury deliberated for such a brief period of time following his trial for capital murder. Because

On September 30, 1996, Brown was charged with capital murder for the shooting death of James Allen. On January 10, 1997, he was tried on that charge before a jury. The facts that developed at trial are these. On June 23, 1996, at approximately 9:30 p.m., Tanya Jordan, a twenty-three-year-old college student, witnessed a Toyota Camry drive slowly up the Lithe Rock street by her house. According to Jordan, the car sped off when the occupants saw her. Within five minutes, she heard gunshots and again saw the Toyota Camry, but this time, Brown, the driver, was hanging out the window with a gun in his hand. She testified that Brown again sped off but that she ran to the street to identify the Canary's license-plate number. At that time, she discovered the victim, James Allen, who was critically wounded and lying in a ditch between her house and the street.

Ronnie Smith, a homicide investigator with the Little Rock Police Department, testified that a Ruger Model P-90 .45 caliber semi-automatic pistol was turned over to the Department as the potential murder weapon by Brown’s girlfriend, Sally Davie, who owned the Toyota Camry. Ron Andrejack, a firearms toolmark examiner with the State Crime Lab, testified that the two full-metal jacketed bullets that were removed from Allen’s body, as well as four shell casings that were retrieved from the crime scene, were fired from the same Ruger pistol. Brown also stipulated to the fact that the bullets removed from Allen’s body were fired from the Ruger pistol.

Calvin Oliver, who had known Brown for approximately ten years, testified that he was sitting in the back seat of the Camry on the passenger side when the shooting occurred. He explained that Brown drove his cousin, Shawn, and him around the block twice and that Brown shot Allen the second time around. He stated that Brown crossed the road to the opposite side of the street, where Allen was walking, and that he stopped the vehicle and shot six or seven times. Oliver testified that he did not see anything in Allen’s hands and that he never saw Allen make any sudden movements. Oliver testified that Brown and he were in the South Side gang and that Allen was in the West Side gang. Oliver explained that it was known that a friend of theirs had been killed a couple of months earlier by a member of the West Side gang.

Chantelle Bequette, a criminalist in the trace evidence section of the State Crime Lab testified that she examined the white tee-shirt worn by Allen at the time he was shot and stated that there was a smoke stain around the hole in the back of the shirt. As a result, she opined that Allen was shot in the back at close range.

Brown next testified in his own defense. He briefly explained that Allen had threatened him and cursed him. Allen then, according to Brown, “approached my car and he went in the front of his pants like he was fixing to pull a weapon on me, a gun, a pistol, and I shot him.” He testified that approximately one year earlier, Allen had pulled a pistol on him to rob him, and he stated that he believed Allen to be a dangerous person. He testified that he tried to avoid Allen the first time by driving away, and he denied that the killing was motivated by revenge. He testified that Allen approached his car “acting crazy,” and he admitted that he took the pistol from the console and fired three or four times.

After the close of the evidence, the jury left the courtroom and returned ten minutes later with a verdict of guilty. Brown was sentenced to life in prison without parole. No objection or motion was made by Brown at the time of sentencing concerning the brief span of the jury’s deliberation time.

The Judgment and Commitment Order was entered on March 20, 1997. Prior to that date, Brown filed a motion for judgment notwithstanding the verdict on February 18, 1997, and a motion for a new trial on March 10, 1997. Both motions raised the issue that the jury only deliberated for an impermissibly short period of time. A hearing was held on the two motions on April 1, 1997, and the trial court denied them. No order denying the motions appears in the record. On April 16, 1997, Brown filed a notice of appeal from the judgment.

Though the State fails to make this argument, it is clear to us that the issue of an abbreviated jury deliberation is not preserved for our review. As an initial matter, both the posttrial motions in this matter were ineffective because they were filed before the judgment was entered in this case. See Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996) (per curiam); Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995) (per curiam). Because the motions are void, we treat them as if they had never been made. In addition, there was no order entered denying the motions, and Brown, according to his notice of appeal, appealed only from the judgment.

When the jury returned its verdict, no motion or objection was made at that time about the brevity of deliberations. The jury was then dismissed. The issue of an impermissibly brief deliberation period was not raised until the posttrial motions which we have already concluded were void and ineffective. The practical effect on these procedural lapses is that the issue now raised in this appeal is being raised for the first time on appeal and is not preserved for our review. See, e.g., Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

Affirmed.


author: Per Curiam. Per Curiam.

text:
    Shirley MATTHEWS v. STATE of Arkansas
    CR 97-267
    970 S.W.2d 289
    Supreme Court of Arkansas
    Opinion delivered June 25, 1998
    [Petition for rehearing denied October 15, 1998.]

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Shirley Matthews, was convicted of arson, conspiracy to commit arson, and attempted theft of property. The conspiracy conviction was subsequently vacated by the trial court. Matthews was sentenced to a twenty-year prison term on the arson conviction and a six-year prison term on the attempted theft of property conviction. The Court of Appeals affirmed the conviction and sentence in Matthews v. State, CACR 94-1007 (April 17, 1996). Matthews subsequently filed a timely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. After a hearing, the Circuit Court filed a written order that denied the petition. Matthews now appeals that order. We affirm.

The allegations in Matthews’s petition centered around defense counsel’s objection to the introduction of hearsay evidence during the testimony of Matthews’s alleged co-conspirator, Peggy Urick. According to Matthews, her attorney objected when the State attempted to elicit the hearsay statements of Matthews’s mother, Mildred Gunther. During the objection, the following colloquy ensued:

Defense Counsel: Your Honor, at this point I’m going to object to, and there’s been a couple of hearsay statements I’m trying to ignore, but she is making statements about they and this person and that person. I would submit to the court that any statement other than that made by Shirley Matthews would be hearsay and inadmissible.
The Court: Sustained.
Prosecutor: Your Honor, if I might point out and respond to that argument, Shirley Matthews is charged not only with arson but conspiracy to commit arson, and Mildred Gunter is also named as a co-conspirator and therefore any statements . . .
The Court: Oh, well, I didn’t realize, she’s charged too?
Prosecutor: No, Your Honor.
Defense Counsel: There was no other co-conspirator charge to my knowledge.
Prosecutor: She need not be charged as a co-conspirator, but if Mildred Gunter is a co-conspirator, whether charged or not, any statements made by a co-conspirator are admissible if made during, in preparation for, or in furtherance of the alleged conspiracy. Also, the State alleges that Mildred Gunther was an accomplice to the arson itself, and as an accomplice her statements also may be used. So there would be two bases for the admission of any statements made by both Mildred Gunter and Shirley Matthews.
Defense Counsel: Again, Your Honor, there are no co-conspirators named, indicted or charged to my knowledge.
There are no accomplices named, indicted or charged to my knowledge. And to allow hearsay statements by this witness in, there has to be more than this witness’ statements in order to allow the hearsay in.
Prosecutor: Your Honor, if you want to go back, outside the presence of the jury, you know, I’ll give the Court a briefing on the issue, but the Court is well aware that the co-conspirators need not be charged and that is what the law of Arkansas is. The co-conspirators need not be charged in order for a conspiracy to exist and their statements to be admissible.
The Court: All right. Since the Court has been informed of the fact that Ms. Gunter is a co-conspirator and an accomplice, your motion, your objection, will be overruled and you will be allowed to pursue this testimony.

In her petition, Matthews alleged that, despite the objection, her counsel was ineffective at this point in her trial. Specifically, she argued that her counsel should not only have objected to the admissibility of Mildred Gunter’s statements, but also to the manner in which they were introduced. Matthews suggested that a hearing should have been conducted, outside the presence of the jury, to determine if there was enough independent evidence of a conspiracy, as required by the applicable Rule of Evidence. According to Matthews, it was error for the trial court to allow the introduction of Mildred Gunter’s statements on the prosecutor’s word that she was a co-conspirator. Matthews further argued that her attorney should have objected to certain individual statements as not being “in furtherance” of the alleged conspiracy.

The next allegation in Matthews’s petition focused on the trial judge’s statement at the end of the colloquy: “Since the Court has been informed of the fact that Ms. Gunter is a co-conspirator, and an accomplice, your motion, your objection, will be overruled ...” Matthews asserts that her counsel should have lodged an objection to the trial court’s statement because it amounted to an improper instruction to the jury on a factual issue — that Mildred Gunter was a co-conspirator and accomplice. Additionally, Matthews alleged that the statement also instructed the jury, to some extent, on Gunter’s credibility as she later testified for the defense. According to Matthews, the trial judge’s statement, “caused the jury to view the State’s case as artificially strong, with the judge’s improper imprimatur on the allegation of conspiracy. It also caused the jury to look askance at the defense case, since Mildred Gunter had been branded as a conspirator by the prosecutor and judge.” Matthews argued further that contemporaneously with the trial judge’s statement, her attorney should have sought to have the jury instructed according to AMCI 201, and should have also sought a repudiation of the statement by the trial judge.

In the letter opinion that accompanied the order denying relief, the Circuit Court found that Matthews’s counsel was not ineffective for failing to object to the manner in which Mildred Gunter’s statements were admitted into evidence. The Circuit Court reviewed the evidence introduced during the trial and found that there was “ample evidence, absent the alleged hearsay statements of Mildred Gunter, ... to connect Mildred Gunter to the conspiracy.” In other words, the existence of other evidence of a conspiracy justified the admission of the hearsay statements, and defense counsel did not perform deficiently by failing to object when the trial judge apparently accepted the prosecutor’s statements alone as indication of a conspiracy. The Circuit Court also ruled that defense counsel was not ineffective for failing to object to statements “not in furtherance of the conspiracy” because the alleged error was harmless.

On appeal, Matthews repeats her arguments concerning her attorney’s failure to object to the manner in which the alleged hearsay statements were admitted, as well as his failure to object to the “improper” remarks by the trial judge and those statements that were allegedly not “in furtherance” of the conspiracy, as required by Arkansas Rule of Evidence 801(d)(2)(v). We conclude that Matthews is procedurally barred from raising these arguments on appeal, and therefore, we affirm.

We cannot reach Matthews’s arguments concerning her attorney’s alleged failure to attack the manner in which the hearsay statements were admitted, as well as his alleged failure to object to the introduction of those statements which were not in furtherance of the conspiracy. We cannot reach the merits of these arguments because Matthews has not abstracted all of the evidence that was introduced during her trial. Rather, she has only abstracted the relevant portions of Peggy Urick’s testimony, Mildred Gunter’s testimony for the defense, and the jury instructions.

As indicated above, the Circuit Court reviewed the other evidence that was introduced during the trial to conclude that counsel’s failure to object to the admission of the statements pursuant to the prosecutor’s “word” that a conspiracy existed was not deficient performance. The basis of the Circuit Court’s conclusion was the existence of other evidence of a conspiracy that, beyond the prosecutor’s statements, justified the admission of Mildred Gunter’s statements.

Similarly, the Circuit Court also found that counsel’s failure to object to the introduction of those statements that were not in furtherance of the conspiracy was “harmless.” We take it that the Circuit Court found that the alleged error did not cause any prejudice to Matthews because there was other evidence that indicated the existence of a conspiracy to commit arson.

975 S.W.2d 836

We do not have an abstract of that evidence before us, and consequently, we cannot review the Circuit Court’s rulings on these two issues. A court considering a claim of ineffective assistance of counsel must view it through the perspective of the totality of the evidence put before the jury. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Matthews’s failure to abstract the trial testimony so that the totality of the evidence may be viewed precludes appellate review. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994).

We also cannot reach Matthews’s argument that her attorney was ineffective for failing to object to the improper comment made by the trial judge concerning Ms. Gunter’s status as a co-conspirator and accomplice. As Matthews acknowledges in her brief, the Circuit Court did not rule on this issue, and consequently, we cannot reach it on appeal. Failure to obtain a ruling on an issue when the trial court denies a petition for postconviction relief precludes appellate review. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

Affirmed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

October 15, 1998

CR 97-267

Jeff Rosenzweig, for appellant.

Winston Bryant, Att’y Gen., by: Gil Dudley, Ass’t Att’y Gen., for appellee.

Per Curiam.

In Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998), we affirmed the Circuit Court’s denial of Shirley Matthews’s petition for postconviction relief. Matthews has filed a petition for rehearing and a motion to file an amended petition. The amended petition appears to be only a refinement of the original. No new allegations of error are raised. As we can see that both the original and amended petitions are within the page limit set forth in Arkansas Supreme Court Rule 2-2, and both have been filed within the time allowed, we grant the motion and now consider the amended petition.

Our decision in Matthews’s appeal was based on procedural grounds. The first of these grounds was Matthews’s failure to abstract the trial fully. The second procedural ground was Matthews’s failure to obtain a ruling from the Circuit Court on one of the issues she raised on appeal. In the petition, Matthews argues that our reliance on these procedural grounds constitutes an error of law. We disagree and deny the petition.

In the petition, Matthews argues that the portions of the trial that were not abstracted were unnecessary to the claims she raised on appeal, and therefore, there could be no procedural default on that basis. Matthews also argues that she should not be procedurally barred by the failure to obtain the ruling in Circuit Court. Specifically, Matthews contends that Arkansas Criminal Procedural Rule 37.2(d), which prohibits the filing of a petition for rehearing in the Circuit Court, deprived her of an opportunity to seek to have the omitted issue included in the Circuit Court’s order.

In her postconviction appeal, Matthews raised several allegations of ineffective assistance of counsel that centered on an evidentiary objection made by her attorney. The circumstances of the objection are set forth in detail in our opinion. One of Matthews’s arguments was that her counsel should have objected to a statement the trial judge made as he was ruling on the objection. According to Matthews, the judge’s statement improperly labeled a witness as a co-conspirator. It is with regard to this argument that Matthews alleges our opinion was in error.

As indicated above, Matthews takes issue with our conclusion that she did not adequately abstract her trial. She notes that an abstract of the entire trial was unnecessary to determine if her attorney was ineffective for failing to object to the trial judge’s statements. She points out that she “assumed, arguendo” that there was sufficient evidence to prove the witness was a co-conspirator, and that her argument was that the statement, by itself, was prejudicial and constituted structural error. For all of these reasons, she asserts that it was unnecessary to abstract the entire trial for our review.

While we concluded that we could not reach the merits of Matthews’s other arguments because of an inadequate abstract, we did not rely on that premise when we concluded that she was also procedurally barred from raising the argument about the judge’s remarks. Rather, that issue was procedurally barred because Matthews failed to obtain a ruling in the Circuit Court. Accordingly, we need only to address Matthews’s argument that she was precluded from seeking a ruling on the issue by Rule 37.2(d).

In our opinion, we relied on Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), in which we held that the failure to obtain a ruling on an issue when the trial court denies a petition for postconviction relief precludes appellate review. Matthews argues, however, that she should not be procedurally barred on that basis because Arkansas Criminal Procedure Rule 37.2(d), which prohibits the filing of a petition for rehearing in the Circuit Court, precluded her from requesting that the Circuit Court change its order to include the omitted issue. We disagree.

Rule 37.2(d) provides:

The decision of the court in any proceeding under this rule shall be final when the judgment is rendered. No petition for rehearing shall be considered.

In McClendon v. State, 293 Ark. 173, 735 S.W.2d 701 (1987), we had the opportunity to apply the rule. In that case, the circuit court concluded that McClendon did not receive effective assistance of counsel because his attorney failed to perfect an appeal from the conviction. Pursuant to this finding, the circuit court ordered a new trial. The State did not appeal that ruling, but did request that the circuit court reconsider its decision to grant McClendon a new trial. The circuit court reconsidered its decision and concluded that a belated appeal, rather than a new trial, was the appropriate remedy. We reversed this ruling because of Rule 37.2(d)’s explicit prohibition against petitions for rehearing.

In McClendon v. State, supra, we applied Rule 37.2(d) because it was clear that pursuant to the request of the State, the circuit court reversed itself. That is, there was a “rehearing” because the court reversed its decision on an issue that it had already considered and ruled upon.

In this case, the Circuit Court never ruled upon the issue concerning the judge’s remarks. Thus, a request that the Circuit Court modify its order to include the omitted issue cannot be a request for a rehearing that is prohibited by Rule 37.2(d). Matthews’s failure to obtain a ruling, therefore, leads to the procedural bar that we applied in our opinion.

Petition denied.


author: Per Curiam.

text:
    Keith Allen MYERS v. STATE of Arkansas
    CR 97-139
    972 S.W.2d 227
    Supreme Court of Arkansas
    Opinion delivered June 25, 1998

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: O. Milton Fine II, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Keith Allen Myers, was convicted of kidnapping and burglary and was sentenced to two concurrent terms of fifteen years’ imprisonment. Myers’s conviction and sentence resulted from his role in the kidnapping of Gina Plambuchen of Conway. Myers’s wife and co-defendant, Amanda, was also charged for her role in the kidnapping. Amanda pleaded guilty to burglary and hindering apprehension. She was sentenced to two concurrent terms of five years’ probation.

Both of the pleas were the result of a “package deal” offered by the prosecutor in exchange for each defendant’s testimony against other members of the kidnapping conspiracy. One of the conditions of the offer, however, was that Myers and his wife both had to enter a guilty plea in order to consummate the deal. If either insisted on going to trial, it would automatically terminate the other’s chance to enter a guilty plea. Throughout their plea negotiations, Myers and his wife were jointly represented by Mark Cambiano.

At the time of the kidnapping, Myers was on parole from a federal conviction for bank robbery. During his plea hearing, Mr. Cambiano explained to the trial court that a federal detainer had been filed against his client, and that it was likely that the kidnapping conviction would result in a revocation of Myers’s federal parole. Mr. Cambiano then requested that the trial court recommend that his state time be served concurrently with the federal time that would result from the revocation. The trial court agreed to make the recommendation.

During the sentencing hearing, Mr. Cambiano once again broached the subject of a recommendation to the federal authorities that Myers serve his state and federal time concurrently in a federal institution. At that time, it was made clear that the recommendation was not purported to bind the federal court. As of the date of the postconviction hearing, Myers was serving his term in a state institution and no further action had been taken by the federal authorities.

Myers subsequently filed a timely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. In his petition, Myers alleged that his attorney’s joint representation of both him and his wife created a conflict of interest that interfered with Myers’s right to effective assistance of counsel. Myers also alleged that his plea was not entered voluntarily and intelligently because Mr. Cambiano erroneously advised him that he would serve his State sentence concurrently with a federal sentence that he received pursuant to a prior conviction; and that the time would be served in federal prison. After a hearing, the Circuit Court denied relief. Myers now appeals that order. We affirm.

Myers first assigns error to the Circuit Court’s denial of his ineffective assistance of counsel claim based on his trial attorney’s alleged conflict of interest. Myers alleges that Mr. Cambiano represented conflicting interests when he represented both Myers, who wanted to go to trial, and Amanda, who apparently wanted to accept the plea offer in order to avoid prison time. Myers also alleges that the conflict adversely affected his attorney’s ability to represent him during the plea negotiations. Specifically, Myers contends that Mr. Cambiano, as well as his investigator, Wayne Lee, pressured him to accept the plea by telling him to “be a man” and “take the fall” for both him and his wife. Myers also asserts that Amanda and his attorney induced him to take the plea by assuring him that Amanda “would wait for him,” during his incarceration when, in fact, she was planning to divorce him.

During the postconviction hearing, Myers testified that he was incarcerated at the county jail while he awaited his trial. Amanda was free on bond. Myers claimed that Amanda, Mr. Cambiano, and Mr. Lee visited the jail in order to inform him that the prosecutor and the Hambuchen family were willing to enter into plea negotiations. According to Myers, his attorney asked him if he would accept twenty years’ imprisonment. Amanda would receive five years’ probation. Myers testified that he responded, “I don’t want Mandy to have any kind of time.” When Mr. Cambiano asked him if he would accept fifteen years’ imprisonment, Myers insisted upon going to trial.

Myers also testified that when he expressed his desire to go to trial, Mr. Lee made the comment that “if I was any kind of a man, if I loved my wife, I would take a plea bargain to assure her that she would not get any kind of jail time.” Myers testified that when he asked Amanda what she wanted to do, she merely responded that she did not want to go to prison. Myers stated that he was told that his prior conviction in federal court for bank robbery “was making Mandy look real bad, and she was gonna suffer for my previous conviction.” Myers’s testimony also suggested that while he maintained his desire to go to trial, his wife and his attorney became incommunicado in an effort to compel him to change his decision.

Myers stated that when the subject of taking a plea was reopened, he was assured by Amanda and Mr. Cambiano that she would wait for him during his incarceration, and that “whenever I got out, we were going to settle down and have children.” Myers’s testimony suggested that, while his attorney and Amanda were making these assurances, both knew that she intended to file for divorce. Myers alleged that his attorney also displayed his favoritism for Amanda when he allowed her to work in his law office while their case was pending.

Myers also testified that he was not the only person who questioned the wisdom of accepting the State’s “package deal” plea offer. Mona “Janey” McNutt, an attorney retained by Myers shortly before the plea hearing, advised Myers that a conflict of interest existed in Mr. Cambiano’s representation of both him and his wife. During direct examination, Myers testified concerning Ms. McNutt’s representation as follows:

Q. Do you remember talking to Mona McNutt prior to this?
A. Yes, sir.
Q. On November 27th, ‘95, she filed the — the initial petition for post-conviction relief in this case?
A. Yes, sir.
Q. And she was retained by your family?
A. Yes, sir.
Q. Relate to the Court what contact you had with her prior to the last order that we just discussed with the Judge.
A. We had hired her to give us a second opinion.
Q. On what?
A. On, uh, whenever the first plea — plea bargain was — • was put out there. There were so many people, you know, “Don’t take this plea bargain.” It’s ridiculous. It’s ridiculous.“ So we hired on- — -we hired her to give us her opinion as to, you know, what should be done and what shouldn’t be done. And she initially told Mark and Wayne — she wasn’t on the case for very long. Because as soon as she’d gone and gotten a copy of the discovery from Mark— Mark’s office — Mark and Wayne had talked to her. And she immediately told him that there was clearly a conflict of interest, because I didn’t want to take a plea. Mandy wanted to take a plea. And so then we were told that Janey needed to be fired.
***
Q. Did she communicate to you that there was a potential conflict of interest for the lawyers?
A. Oh, yeah. Yeah.
Q. And what did that mean to you, if anything? You’re not a lawyer yourself.
A. Yeah. Well, at that time, I mean, there was so much concern for Mandy’s well-being that everything was just — was confusing. I mean, I didn’t — I couldn’t keep tabs on where she was. I didn’t know what was going on with the case. So I, — you know, I didn’t know.

On cross-examination, Myers testified as follows:

Q. Okay. Who hired Mona?
A. Mandy and I.
Q. Okay. And for what purpose was Mona hired?
A. For a second opinion.
Q. All right. And did she make any court appearances?
A. She came in one day to sit for a hearing, but I don’t believe she said anything. She just sat in to hear.
Q. Okay. And who got her off of the case?
A. Mark asked me — no, Wayne asked me to ask her to step down because she was getting in the way.
***
Q. Okay. Were you pressured — is it your testimony under oath that — that Wayne and Mark deprived you of your free will and forced you to fire Mona McNutt after you had hired her?
A. After we had given Mark as much money as we had, uh, he was running the show.
Q. How much money did you give Mona?
A. Not near as much as we had given Mark.
Q. Had you given her money?
A. Yes, sir.
Q. Okay. Could you have kept her on the case if you’d wanted to?
A. Yeah, we could have, but we were given an ultimatum, “Either get rid of her or I’m gone,” type deal.
Q. So —
A. That was his exact words.
***
Q. And you had to make a choice whether to get rid of Mona or keep Mark?
A. Uh-huh.
***
Q. And you decided to get rid of Mona and keep Mark?
A. Uh-huh.
Q. Okay. Then Mark was the lawyer that stayed with you and did all this until after the plea, and then you filed the Rule 37, right?
A. Right.
Q. I understand. Now — and let’s see, Mona filed the first Rule 37, and when this was set down for a hearing originally, she showed up representing you at it, right?
A. Bight.
Q. Okay. Was there any collusion? Was this set up ahead of time when you hired Mona the first time, when Mark was working with you as well as you hired Mona to talk about this, and then you tell the Court you fired Mona, and then, after the plea went down and Amanda files for divorce and your codefendants get light sentences or are turned loose completely, you showed up in court with Mona asking that a Rule 37 be filed against your prior representation? Was— was that set up ahead of time, Keith?
A. No, it wasn’t. When I — when I got sentenced and after Amanda told me that she wanted a divorce, I didn’t care. I wasn’t looking for no appeals. I wasn’t looking for anything. I’m not ashamed to admit that whenever — the second week I was down at Diagnostics, I’d attempted suicide, didn’t care, didn’t want to live, didn’t want to five with it anymore. And my family and Janey, they had gotten together and said, “If Keith isn’t gonna do this for himself, we’re gonna do it for him.” I’ve gotten more involved as it’s progressed, but before I — -I didn’t care anything about it.

Mona McNutt testified that a few days before the plea hearing, Myers asked her for an opinion about the plea bargain. Ms. McNutt characterized her contact with Myers as “more or less an eleventh hour effort on Keith’s part to get a second opinion in regard to whether or not he should take the plea bargain that had been offered jointly to him and Amanda.” Ms. McNutt stated that Myers was “torn between the fifteen years that he didn’t particularly want to spend versus the assurance that his wife would have no years.”

Ms. McNutt stated that after she met separately with Myers and Amanda, she opined that it was a conflict of interest for one lawyer to represent both of them. Ms. McNutt also testified that she was not satisfied with the fifteen years’ imprisonment that Myers would have to serve if he accepted the offer. On cross-examination, she stated that, according to what she was told about Myers’s role in the crime, she could not foresee a jury sentencing him to fifteen years. Ms. McNutt did concede, however, that she would have encouraged a guilty plea if the offer had been for a shorter prison term. Ms. McNutt also testified that while she did not represent Mr. Myers during the plea hearing, she did subsequently prepare the Rule 37 petition.

Mark Cambiano testified that “no one in my presence or on my behalf said (to Myers) that he couldn’t put Mandy in the position of going to the pen and that he had to ‘be a man.’” Mr. Cambiano stated that any claim that he avoided Myers while he insisted on going to trial was untrue. Mr. Cambiano also testified that Myers was uncertain about whether he should take the plea, and that he was indeed concerned about Amanda’s fate should he decide to go to trial. He stated that he urged Myers to remove Amanda from his decision, and to only accept the plea if he thought it was in his best interest.

Mr. Cambiano advised Myers that it was in his best interest to take the plea, especially in fight of his federal conviction. According to Mr. Cambiano, there was a possibility that whatever sentence he received after a trial could run consecutive to a federal sentence that he received after his federal parole was revoked. The guilty plea, on the other hand, would increase the chance that the trial court would recommend that the state sentence and the federal sentence run concurrently.

Mr. Cambiano also testified that he had no objection once he learned that Myers retained Ms. McNutt to obtain her opinion about the plea offer. Mr. Cambiano stated that he felt good enough about his representation of Myers that he did not mind the scrutiny of another attorney. He stated that while Ms. McNutt initially had reservations about the wisdom of accepting the offer, she eventually agreed that it was in Myers’s best interest to do so.

In the order denying relief, the Circuit Court ruled as follows on the first claim in Myers’s petition:

. . . This Honorable Court has had an opportunity oh numerous occasions throughout all the hearings and appearances had in the above styled case numbers, and in other cases to observe the demeanor of petitioner herein, Keith Myers, and has had an opportunity to hear sworn testimony given by him in support of his Rule 37 petition as well as in other hearings in the above styled case numbers and has had an opportunity to make a determination as to his credibility.
That based upon testimony given by witnesses and argument of counsel herein the Court doth find that Mr. Myers was competently represented by the Hon. Mona Jane McNutt prior to his entering a guilty plea in the above styled causes as well as Mr. Mark Cambiano, and that petitioner did dismiss Ms. McNutt after obtaining advice relative to the entry of said plea and did continue to be represented by Mark Cambiano.
That petitioner’s argument that he entered his plea based upon his belief that his co-defendant wife would wait for him to be released from prison and that they would maintain their family relationship is without merit and in conflict with this Court’s observation of the parties and the Court does find said claim to be without merit and not credible as well as if true failing to provide a legal basis for the relief sought.

The Court added toward at the conclusion of the order:

All of the petitioner’s actions, statements and sworn testimony prior to the filing of this Rule 37 Petition are consistent with the fact that he was ably and competently represented and that he entered his guilty plea with full knowledge of the ramifications thereof and with no justified reliance upon any promises or representations made other than the written recommendations of the State and that petitioner’s testimony to the contrary subsequent to the filing of said Rule 37 Petition is not credible based upon the Court’s knowledge of the testimony and facts as adduced in this matter ab initio and its opportunity to observe the witnesses and their demeanor.

It is settled that “[Requiring or permitting a single attorney to represent co-defendants, often referred to as joint representation, is not per se violative of constitutional guarantees of ineffective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475 (1978). Appointing or permitting a single attorney to represent co-defendants, however, does create a possible conflict of interest that could prejudice either or both clients. See Burger v. Kemp, 483 U.S. 776 (1987). The possibility of prejudice does not justify an “inflexible rule that would presume prejudice in all cases.” Id. Instead, prejudice is only presumed if the defendant demonstrates that counsel “actively represented conflicting interests,” and “an actual conflict of interest adversely affected his lawyer’s performance.” Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998). In order to successfully assert a claim of ineffective counsel based on a conflict of interest, a defendant who entered a guilty plea must establish that there was an actual conflict of interest, and that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendant. Thomas v. Foltz, 818 F.2d 476 (6th. Cir. 1987).

In its order, the Circuit Court did not make a finding as to whether an actual conflict of interest existed in Mr. Cambiano’s representation of both Myers and his wife. Rather, the Circuit Court appeared to find that Myers waived any possible conflict when, after consulting Ms. McNutt for her opinion on the plea offer, he decided to keep Mr. Cambiano as his attorney during the plea process. The Circuit Court also found that Myers’s testimony was not credible. We conclude that the Circuit Court’s denial of postconviction relief is not clearly erroneous. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

In Murray v. State, 280 Ark. 531, 659 S.W.2d 944 (1983), Murray and his wife were charged, tried, and convicted as co-defendants for sale of marijuana and possession of marijuana with intent to deliver. Murray later sought postconviction relief based on a claim of ineffective assistance of counsel. As in the instant case, Murray alleged that his counsel was ineffective because his joint representation of both Murray and his wife created a conflict of interest. Murray argued that the conflict caused his counsel to avoid pursuing an alternative defense strategy that would have called for Murray taking the stand and testifying that his wife was responsible for all of the wrongdoing.

We declined to reverse the lower court’s denial of Murray’s ineffective assistance of counsel claim. Our primary reason for doing so was our observation that, in light of the other evidence that indicated Murray’s substantial involvement in the crimes, a defense that placed all of the blame on his wife was not plausible. We concluded, therefore, that since the alternative strategy was not plausible, “the conflict was not actual or significant.”

We also noted, however, that even if Murray’s case presented an actual conflict, there was another reason to deny relief. We observed that Murray’s attorney and his wife had occasion to represent them jointly in other criminal and civil matters, and more important, that “during the trial there was neither objection, nor claim, nor notice to the court of any potential conflict. The alleged conflict was not mentioned until the post-conviction proceeding . . . .” We then stated the other legal basis for which we could have affirmed the denial of relief:

The Sixth Amendment right to counsel may be knowingly, intentionally, and voluntarily waived. Here appellant knew of the alleged conflict, intentionally did not disclose it and voluntarily proceeded with his retained counsel. “Appellant cannot now, after knowingly completing the trial with such counsel, urge that he was prejudiced.” United States v. James, 505 F.2d 898 (5th Cir. 1975), quoting from Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. den. 396 U.S. 1069 (1970).

Similarly, in this case, Myers testified that he retained Mona McNutt for a “second opinion” concerning the plea offer shortly before the plea hearing. According to Myers, Ms. McNutt made him aware of the conflict of interest that allegedly existed as a result of Mr. Cambiano’s joint representation of Myers, who desired to go to trial, and Amanda, who did not. Ms. McNutt also testified that she was retained by Myers shortly before the plea hearing, and that she recognized a potential conflict of interest in connection with Mr. Cambiano’s representation. Ms. McNutt stated that she informed Mr. Cambiano of this conflict.

Despite Ms. McNutt’s advice about the potential conflict of interest, Myers chose to keep Mr. Cambiano as his attorney during the plea process and sentencing hearing. During the plea hearing, moreover, Myers declared that he was satisfied with the legal services rendered in his behalf, and that he did not have any complaints about the way he was represented. The alleged conflict of interest was not brought to the attention of the court until the Rule 37 petition was filed. In light of all of these circumstances, we conclude that Myers waived the alleged conflict of interest.

Myers next argues that his guilty plea was not voluntary because he entered the plea upon Mr. Cambiano’s representation that he would serve his term of imprisonment concurrently with the sentence he would receive when his federal parole was revoked. Myers asserts that Cambiano’s advice on this issue, as well as his belief that he would serve both sentences in federal prison, was the basis of his decision to plead guilty. In other words, Myers contends that, but for Mr. Cambiano’s advice that he would serve his time in that manner, he would not have pleaded guilty and would have insisted on going to trial.

While we are mindful of the fact that such an assertion is necessary in order to make the showing required by Hill v. Lockhart, 474 U.S. 52 (1985), there is an apparent inconsistency between that assertion and the first claim in Myers’s petition. In that claim, Myers alleged that his guilty plea was compelled by his concern over his wife’s fate and the pressure exerted by his attorney and his staff. We now understand Myers’s position to be that he would not have yielded to his attorney’s pressure or sacrificed himself in order to avoid his wife’s incarceration if Mr. Cambiano had not also erroneously advised him that he would serve both of his sentences in federal prison.

In any event, we conclude that the Circuit Court’s denial of relief on this claim was not clearly erroneous. In its order, the Circuit Court concluded that it was made clear that its recommendation concerning the manner in which Myers would serve his sentence would not bind the federal court. Indeed, Myers’s abstract of the sentencing hearing reveals that the following discussion took place in open court:

Mr. Cambiano: Upon the basis of his plea was that he be sentenced concurrently with the charge with each other and concurrently with the federal charges, with recommendation that he serve his federal time first.
The Court: I believe that was part of it, and I have no problem with that.
Prosecutor: The only thing is with regard to the order purporting to bind the federal court.
Mr. Cambiano: It will not bind them. It’s a recommendation.
The Court: All right, It’s a recommendation. It’s not binding.

Other evidence introduced during the postconviction hearing revealed that after Myers was sent to a state, rather than federal facility, Mr. Cambiano became aware that the trial court’s recommendation was omitted from the judgment and commitment order. At Mr. Cambiano’s request, the judgment and commitment order was amended to reflect the recommendation.

Mr. Cambiano also testified as follows:

He (Myers) also wanted to make sure that he did his time in the federal penitentiary. And I told him we’d do our best to get it to where he did do his time in the federal penitentiary, and that we would make our best efforts to do so. There was no guarantee that he would do it in the federal penitentiary. He knew that. And that’s pretty much what we told him.
***
I absolutely made it clear to (Myers) that I could not bind the federal system or control or direct what they would do.

The Circuit Court apparently credited Mr. Cambiano’s testimony about the extent of Myers’s understanding of the likelihood that he would serve his federal sentence first. The resolution of credibility issues is within the province of the trial court. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Accordingly, we affirm the Circuit Court’s denial of relief on this claim.

Affirmed.


text:
    Jesse Dewayne WICKLIFFE v. STATE of Arkansas
    TEN 96-108
    970 S.W.2d 298
    Supreme Court of Arkansas
    Opinion delivered June 25, 1998

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

On February 12, 1998, we issued an order holding attorney A. Wayne Davis in contempt of court and sentenced him by imposing fines totalling $500.00. Because those fines were not paid, we issued an order on May 21, 1998, for Mr. Davis to appear and show cause why he had failed to pay his fines or to make arrangements for their payment.

On June 18, 1998, Mr. Davis appeared before this court with his counsel, John Wesley Hall, and informed the court that he had paid his fines in full immediately before the hearing. He opted, however, to enter a not-guilty plea, so he could explain to an appointed master and the court why his prior nonpayment of the fines was not willful on his part. The court took Mr. Davis’s plea under submission.

At the hearing, the court was assured Mr. Hall was continuing as Mr. Davis’s counsel in this matter, and because Mr. Davis’s whereabouts had been unknown, Mr. Hall stated he would accept future service on Mr. Davis’s behalf. Under questioning by the court, Mr. Davis stated he could be personally served at a designated post office box in Little Rock or at his parents’ address. Those addresses have been submitted to the clerk’s office.

Mr. Davis was informed at the June 18 hearing that we would accept his plea but would then decide whether the matter was appropriate for appointment of another master. This matter has become somewhat complex due to Mr. Davis’s prior failures to proceed timely. In this respect, during the pendency of these matters concerning Mr. Davis, Mr. Davis’s client, Jesse Dewayne Wickliffe, has been placed in a position where his counsel, Mr. Davis, has not been able to function because his attorney’s license has been suspended. In fact, because of Mr. Davis’s failure to proceed in this matter, Mr. Wickliffe’s appeal was dismissed. Mr. Wickliffe has been notified by this court’s clerk, by letter dated May 18, 1998, that Mr. Wickliffe must retain new counsel or, if he is indigent, Mr. Wickliffe must file a motion to proceed in forma pauperis before this court can reinstate his appeal. As yet, Mr. Wickliffe has not responded. Also, although Mr. Davis has suggested an inability to have paid his fines before June 18, 1998, he has not, as yet, given any reason why he had never contacted the clerk’s office to relate such an inability or to arrange a method of payment.

We have decided not to appoint a master in this cause, so Mr. Wickliffe’s case can proceed without further complications or delays. In doing so, we note Mr. Davis’s fine payment in fuE and rule he has complied with that sentencing portion of the court’s per curiam order dated February 12, 1998. Mr. Davis’s payment does not absolve him of the actual finding of contempt in the order of February 12, but only of his faEure of payment of the fines therein.

There have been a number of other earlier orders involving Mr. Davis’s past conduct referred to the Professional Conduct Committee. Consequently, we refer this latest order to the Committee so it may have a complete and full understanding of Mr. Davis’s actions and inactions taken in this matter.