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

text:
    STATE of Arkansas v. Harold RUFUS
    CR 98-1360
    993 S.W.2d 490
    Supreme Court of Arkansas
    Opinion delivered July 1, 1999

      Mark Pryor, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., Sr. Appellate Advocate for appellant.

      Randel Miller, P.A., by: Randel Miller, for appellee.
   Annabelle Clinton Imber, Justice.

This is an interlocutory appeal. The State contends that the trial court erred when it suppressed evidence seized from Harold Rufus’s home because the search warrant was based upon a fatally defective affidavit. We reverse and remand.

On January 7, 1998, Officer Bob Andrews of the Jonesboro Police Department arranged for a confidential informant (“Cl”) to make a drug purchase from the appellee, Mr. Harold Rufus. After the purchase, Officer Andrews returned to the Drug Task Force Office where he relayed the details of the buy to Officer Greg Baugh. Based on what Officer Andrews told him, Officer Baugh prepared an affidavit for a search warrant, which provided in relevant part that:

THE UNDERSIGNED BEING DULY SWORN DEPOSES AND SAYS: THAT HE HAS REASON TO BELIEVE THAT; [crack cocaine, drug paraphernalia, records of drug transactions, and other drug-related evidence could be found at Harold Rufus’s residence.]
* * *
AND THAT THE FACTS TENDING TO ESTABLISH THE FOREGOING GROUNDS FOR ISSUANCE OF A SEARCH WARRANT ARE AS FOLLOWS: WITHIN THE PAST 48 HOURS, A Cl WAS MET, SEARCHED, AND GIVEN DTF BUY MONEY. THE Cl STATED CRACK COCAINE COULD BE PURCHASED FROM HAROLD RUFUS AT HIS RESIDENCE AT 216 EASY. THE Cl WAS FOLLOWED TO 216 EASY AND THE Cl WAS OBSERVED ENTERED THE RESIDENCE. A SHORT TIME LATER, THE Cl WAS OBSERVED EXITING THE RESIDENCE. THE Cl WAS FOLLOWED TO A PREDETERMINED LOCATION AND MET AGAIN. THE Cl HANDED OFFICERS A QUANTITY OF CRACK COCAINE THE Cl SAID WAS PURCHASED WHILE INSIDE THE RESIDENCE. THE Cl HAS BEEN PROVED TO BE RELIABLE SEVERAL TIMES IN THE PAST BY PROVIDING ACCURATE INFORMATION TO OFFICERS OF THE SECOND JUDICIAL DRUG TASK FORCE.

Officer Baugh, who admittedly had no personal knowledge of the drug transaction, signed the affidavit. In contrast, Officer Andrews, the officer who actually observed the drug buy, reviewed the affidavit but did not sign it.

Later that day, Officer Baugh and Officer Andrews presented the affidavit to Judge Goodson. After administering an oath to both officers, Judge Goodson reviewed the affidavit and asked the officers if it was correct. Both officers responded in the affirmative, but they did not disclose to the judge that it was based on Officer Andrew’s personal knowledge and not that of Officer Baugh. The judge signed the search warrant, which was executed on Mr. Rufus’s home later that evening. Based on the evidence seized from his home, the State charged Mr. Rufus with possession of cocaine with intent to deliver, simultaneous possession of drugs and a firearm, and being a felon in possession of a firearm.

After a hearing, the trial court granted Mr. Rufus’s motion to suppress the evidence seized from his home because Officer Baugh, the affiant officer, had no personal knowledge of the drug transaction. Specifically, the judge said at the conclusion of the hearing that:

The Court doesn’t have any problem, and wouldn’t have had any problem in sustaining and upholding the search warrant had the officer applying for the warrant indicated the source and nature of his information or had the officer that provided the information jointly signed the search warrant, but as it stands I am bound by the four corners of the warrant and the testimony of the affiant is that he had no personal knowledge upon which to base the search warrant and therefore the motion is granted.
* * *
If the officer that provided the information, who apparently was also present before the magistrate that issued it, if he had signed the affidavit and acknowledged it, certainly it would have been valid, but you have put on testimony from the officer that prepared it. . . that he had no personal knowledge whatsoever, other than what had been told to him and part of what had been told to him was hearsay on hearsay, and it wasn’t his personal information. The sad thing is, it would have been simple for the officer that provided the information to sign the search warrant and I am saying that the failure to do so was a fatal error.

Similarly, in its order of suppression, the trial court ruled that the affidavit:

failed to comply with the requirements of Rule 13.1(b) of the Arkansas Rules of Criminal Procedure. This finding is based upon the testimony that Officer Greg Baugh executed the Affidavit and that he was not possessed of first hand knowledge with respect to the contents of the Affidavit, but relied upon information supplied by Officer Bob Andrews. The affidavit does not comply with that portion of Rule 13.1(b) which requires that: “(I)f an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informants reliability and shall disclose, as far as practicable, the means by which the information was obtained.”

Accordingly, the court ruled that the search warrant was invalid because the supporting affidavit failed to comply with Ark. R. Crim. P. 13.1(b).

In response, the State argued during the suppression hearing that the evidence seized from Mr. Rufus’s home was admissible under the good-faith exception to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897 (1984). The trial court replied, that it was “aware of Leon and the Court does not believe that there was any purposeful wrongdoing on the part of the officer but that it was merely a ministerial error, oversight, in signing the affidavit for a search warrant.” Likewise, in its order of suppression the court rejected the State’s Leon argument and ruled that “although there was no purposeful wrongdoing on the part of an officer, that failure to comply with the requirements of Rule 13.1(b) of the Arkansas Rules of Criminal Procedure requires the suppression of the evidence seized.” Accordingly, the court suppressed all evidence seized from Mr. Rufus’s home, and the State filed this interlocutory appeal pursuant to Ark. R. App. P.— Crim. 3(a).

When reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). In making this determination, we view the evidence in the light most favorable to the appellee. Fouse, supra; Langford, supra.

I. Arkansas Rule Criminal Procedure 13.1(b)

First, the State claims that the trial court erred when it ruled that the search warrant was invalid because the supporting affidavit failed to satisfy the requirements of Ark. R. Crim. P. 13.1(b), which provides that:

The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

(Emphasis added.) Rule 13.1(b) incorporates the totality-of-the-circumstance test established in Illinois v. Gates, 462 U.S. 213 (1983), whereby:

[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying the hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed. State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993); Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).

As we begin our Rule 13.1(b) analysis, it is important to note that the parties in this case do not question whether the affidavit sufficiently established the reliability and veracity of the confidential informant, or whether the information contained in the affidavit was sufficient to establish probable cause. In fact, the trial court clarified during the suppression hearing that the affidavit would have been sufficient had Officer Andrews either signed it or disclosed that the affidavit was based on his personal knowledge and not that of Officer Baugh.

We hold that the trial court erred when it applied Rule 13.1(b) to this case because the rule does not deal with misleading information or omissions in an affidavit supporting a warrant, which is the issue presented by this case. Moreover, we have held that an affidavit does not have to contain facts establishing the veracity and reliability of nonconfidential informants such as police officers, public employees, victims, and other witnesses whose identity is known. See, e.g., Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996) (citizen); Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (police officer); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993) (State Crime Lab employee). Hence, the affidavit in this case could not have been fatally defective for failing to establish the veracity and reliability of either Officer Andrews or Officer Baugh.

The dissenting opinion contends that this case should be decided based on Rule 13.1(b). As explained above, Rule 13.1(b) provides that an affidavit may be based “in whole or in part on hearsay,” and then establishes when and how the reliability and veracity of the hearsay declarant must be established. The problem presented by this case is not that the affidavit was based on hearsay, or that the affidavit did not establish the reliability or veracity of the hearsay declarant, but rather is that Officer Baugh failed to disclose to the judge that the affidavit was based on hearsay. The failure to disclose, as will be fully explained later in this opinion, presents a Franks problem, not a Rule 13.1(b) problem. Hence we conclude that the dissenting opinion’s reliance on Rule 13.1(b) and its conclusion that Rule 13.1(b) will be “watered down” is misplaced.

II. False Material, Misleading Information, or Omissions in the Affidavit

Instead of Rule 13.1(b), the trial court should have applied Franks v. Delaware, 438 U.S. 154 (1978), which contains the proper analysis for determining whether false material, misleading information, or omissions render an affidavit in support of a search warrant fatally defective. In Franks, two police officers signed an affidavit that declared, in material part, that:

15. On Tuesday, 3/9/76, your affiant contacted Mr. James Williams and Mr. Wesley Lucas of the Delaware Youth Center where Jerome Franks is employed and did have personal conversation with both these people.
16. On Tuesday, 3/9/76, Mr. James Williams revealed to your affiant that the normal dress of Jerome Franks does consist of a white knit thermal undershirt and a brown leather jacket.
17. On Tuesday, 3/9/76, Mr. Wesley Lucas revealed to your affiant that in addition to the thermal undershirt and jacket, Jerome Franks often wears a dark green knit hat.

Id. (Emphasis added.) After the search warrant was issued and executed, it was discovered that the affiant officers had not personally interviewed the two witnesses mentioned above, and that the descriptions given by the witnesses were “somewhat different” from what was recited in the affidavit. Id. The trial court refused to grant a suppression hearing on this basis. Id. On appeal, the United States Supreme Court held that:

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of pequry or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. (Emphasis added.) Upon remand, the Delaware Supreme Court excised the false information from the affidavit, and determined that the remaining portions were sufficient to establish probable cause such that it was not even necessary to hold a suppression hearing on the issue. Franks v. State, 398 A.2d 783 (Del. 1979).

Since Franks was handed down in 1978, courts have consistently held that a warrant should be invalidated if a defendant shows by a preponderance of evidence: 1) that the affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth, and 2) that with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause. United States v. Clapp, 46 F.3d 795 (8th Cir. 1995); Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Similarly, when an officer omits facts from an affidavit, the evidence will be suppressed if the defendant establishes by a preponderance of the evidence that: 1) the officer omitted facts knowingly and intentionally, or with reckless disregard, and 2) the affidavit, if supplemented with the omitted information, is insufficient to establish probable cause. United States v. Buchanan, 167 F.3d 1207 (8th Cir. 1999); Pyle, supra.

This is not the first time that we have been faced with an affidavit where the affiant officer failed to disclose to the issuing judge that part of the information contained therein was obtained from a different officer. In Pyle, supra, the affiant officer asserted that he identified Mr. Pyle talking to an intermediary in a controlled drug buy when in actuality the identification was made by another officer who did not sign the warrant. Pyle, supra. We held that this error did not constitute a Franks violation. Id.

As in Pyle, we conclude that Mr. Rufus has not satisfied his burden of establishing a Franks violation in this case. First, in fight of the trial court’s findings that there was no “purposeful wrongdoing on the part of the officer but that it was merely an ministerial error, oversight, in signing the affidavit for a search warrant,” we cannot say that Officer Baugh misled the judge knowingly and intentionally, or with reckless disregard. Furthermore, Officer Baugh’s conduct was less egregious than that in Franks, supra, where the officers wrote the affidavit in the first person and affirmatively stated on three occasions that they had personally spoken to the witnesses, when in fact, they had not. In contrast, Officer Baugh wrote the affidavit in the third person and, more importantly, never affirmatively stated that he had any personal knowledge of the facts contained in the affidavit. In fact, his affidavit begins with the declaration that he “has reason to believe” that the information contained therein is true. Flence, we conclude that Mr. Rufus has failed to satisfy the first prong of the Franks test.

As to the second prong of Franks, we must decide whether the affidavit, if supplemented with the omitted information, would not have supported a finding of probable cause. Again, we must answer this question in the negative in light of the court’s finding that it “wouldn’t have had any problem in sustaining and upholding the search warrant had the officer applying for the warrant indicated the source and nature of his information or had the officer that provided the information jointly signed the search warrant.” Likewise, the court also found that the affidavit “certainly would have been valid” if Officer Andrews had signed and acknowledged the affidavit. Simply put, because the trial court would have upheld the search warrant even if the affidavit had disclosed that the information came from Officer Andrews instead of Officer Baugh, we cannot say that the omission rendered the affidavit fatally defective under Franks. Accordingly, we reverse the order of suppression and remand the case for further proceedings consistent with this opinion.

The dissenting opinion contends that it is improper for us to reach the Franks analysis because it was not raised below. We disagree. Although neither of the parties nor the trial court specifically cited Franks, their arguments were based on the Franks holding. For instance, Mr. Rufus’s argument to the trial court was that the search warrant was fatally defective because Officer Baugh failed to disclose that the affidavit was based on hearsay from Officer Andrews. Although Mr. Rufus and the trial court labeled this a Rule 13.1(b) argument, it is, as explained above, a Franks argument. Likewise, the State argued that the court should overlook the error because it was a good-faith mistake that did not affect the probable-cause determination. In making this argument, the State incorrectly referred to Leon instead of Franks. We cannot honestly say that the parties failed to develop the Franks argument below simply because they referred to it by the wrong name. Furthermore, we emphasize that the trial court rendered rulings on the two-prongs of the Franks analysis. Because the Franks arguments were made below and the trial court rendered the necessary rulings, we disagree with the dissenting opinion’s assertion that this is a “straw-man issue.”

We also disagree with the dissenting opinion’s contention that this holding will “water down” Rule 13.1(b) and allow police officers henceforth to fail to disclose to a judge that the affidavit includes hearsay from another officer. The crucial facts of this case, which the dissenting opinion overlooks, are that the trial court found that Officer Baugh’s mistake was a good-faith, “ministerial” error, and that the error did not affect the probable-cause determination. Based on the unique facts presented by this case, we cannot say that these findings are clearly erroneous or against the preponderance of the evidence. However, in future cases it is very possible that a trial court could find that the nondisclosure occurred in bad-faith and was material to the determination of probable cause. Under such circumstances, the seized evidence would have to be suppressed. Faced with such a consequence, officers in future cases would be remiss if they “knowingly and intentionally, or with reckless disregard” failed to disclose that the affidavit included hearsay from another officer.

The dissenting opinion refers to the “objective standard” used in Leon and asserts, without citation to authority, that “[d]irect knowledge or disclosure of hearsay is essential to the validity of a warrant.” In making this assertion, the dissenting opinion claims that we have missed the real issue in this case.

We only need to turn to the facts of Franks to realize that this argument goes astray. In so few cases are we able to rely on a United States Supreme Court opinion that is directly on point. As in this case, the police officers in Franks failed to disclose that the affidavit included hearsay from another officer. As mentioned above, the facts of Franks were more egregious than this case because there the officers affirmatively declared that the information was based on their personal knowledge, whereas in this case the officers made no such affirmative misrepresentation and instead merely failed to disclose that fact to the judge. But what is more important about Franks, which the dissenting opinion has lost sight of, is that the Supreme Court gave us the exact legal analysis to use when officers make such an error. Different from the Leon analysis, the Franks analysis includes both a good-faith or intention prong and a materiality prong. As to the first prong, the dissenting opinion refers to the Leon “objective standard” and contends that a mere negligent nondisclosure is enough to render the warrant invalid. The Franks analysis, however, does not employ a negligence standard. Instead, the nondisclosure must be knowing, intentional, or reckless. Furthermore, the dissenting opinion has not even mention the materiality requirement, which is essential to a Franks analysis. In sum, the dissenting opinion has run astray because it relies upon Rule 13.1(b) and Leon, while ignoring the clear and applicable test established in Franks.

III. Relationship between Franks and Leon

Finally, we realize that there is some confusion as to the difference between the Franks analysis and the Leon good-faith exception. In particular, upon the State’s requests the trial court considered the Leon good-faith exception instead of the Franks analysis. Accordingly, we take this opportunity to attempt to dispel some of the confusion.

In Leon v. United States, 468 U.S. 897 (1984), the District Court suppressed evidence because it disagreed with the magistrate’s determination that there was sufficient probable cause to justify the issuance of a search warrant. On appeal, the United States Supreme Court held that evidence should not be suppressed when it was obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. Id. The Court then explained that:

Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official behef in its existence entirely unreasonable.” Brown v. Illinois, 422 U.S., at 610-611 (Powell, J., concurring in part); see Illinois v. Gates, supra, at 263-264 (White, j., concurring in judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient - i.e., in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid.

Id. (Emphasis added.) Hence, a Franks analysis applies only when the affidavit is allegedly defective due to error on the part of the police. There the reviewing court must determine if the officer’s conduct was so egregious and the error so material that the evidence should be suppressed. In contrast, the Leon analysis applies when the search ivarrant is allegedly defective due to an error on the part of the magistrate. Pursuant to Leon, the reviewing court must determine if the magistrate’s error was so obvious that the officers could not in good faith have thought that the warrant was valid. See Wayne R. LaFave, Search and Seizure, §§ 1.3 & 4.4 (3rd ed. 1996). Because the case before us today involved the first situation, and not the latter, we conclude that the trial court should have applied Franks instead of Leon.

Reversed and remanded.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. For the first time in my memory, the majority has reversed the trial judge for a reason not developed before the him. The majority justifies this aberration by claiming that a hearing under Franks v. Delaware, 438 U.S. 154 (1978), must occur even when not requested by the defendant. That is not what the Franks decision says. It says a hearing is held at the defendant’s request, after the defendant makes a substantial showing that a false statement was intentionally or recklessly made. The majority then holds that even though the appellant in this case did not request a Franks hearing, that is what he really meant to do. After raising Franks on its own, the majority then reverses because it finds no Franks violation occurred. This all smacks of raising a straw-man issue, knocking it down, and deciding the case on that basis.

I would proceed as did the appellant and the trial judge in the suppression hearing and decide this case based on Ark. R. Crim. P. 13.1(b). That rule says in part:

(a) A search warrant may be issued only by a judicial officer.
(b) The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based on whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.

Here, that was not done. The affidavit was all hearsay and was based on what Officer Andrews observed. None of that was disclosed. And while I agree that a police officer’s veracity and reliability need not be proved, the fact that an affidavit was totally hearsay must be disclosed.

The issue in this case is not whether Officer Baugh intentionally or purposefully misled the trial judge with his affidavit. The trial judge specifically found that Officer Baugh’s actions were not “purposeful.” The issue is the validity of an affidavit which fads to disclose the true source of the information and erroneously implies that Officer Baugh is that source. The trial judge correcdy zeroed in on the real issue in this case. The majority has not.

Nor can I subscribe to the majority’s conclusion that by Officer Baugh’s saying he had “reason to believe” the facts attested to, this absolved him of revealing the source of his facts. Even had the prosecutor made the “reason to believe” argument, which he did not, it would have been wrong. Direct knowledge or disclosure of hearsay is essential to the validity of a warrant.

What the prosecutor did raise to the trial judge in passing was the case of United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme Court permitted a search to stand where police officers reasonably believed, using an objective standard, that the search warrant was properly issued. Though Officer Baugh may have believed he was doing nothing wrong by signing the affidavit, as the trial judge judge found, he still cannot pass the test of objective reasonableness required by Leon. Any experienced police officer would know that a person attesting to facts must have firsthand knowledge of those facts or disclose the hearsay.

This is a case about cutting corners. It is about reversing a trial judge on an issue not raised to him. It is further a case about the respect due an affidavit and what we mean by sworn-to facts. Rule 13.1(b) requires an affidavit or recorded testimony under oath to support a search warrant. This opinion substantially waters down that requirement. Now, the hearsay of one police officer need not be disclosed by the attesting police officer. That should not be, as it flies in the face of the plain language of Rule 13.1(b). The trial judge properly nipped this kind of activity in the bud. I would affirm the suppression.

       Although the trial court did not cite Franks, it nevertheless made the necessary factual finding required by Franks.

       I do not believe, as the majority concludes, that Leon is limited to defects in a search warrant caused by the magistrate. Leon is a lengthy opinion which sets forth multiple principles applicable to a properly issued search warrant. In its concluding paragraph, the Supreme Court said:
      In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.

        Leon, 468 U.S. at 926. (Emphasis added.) An analysis under Leon looks at both the conduct of the magistrate and the police officers.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    STATE of Arkansas v. FARM CREDIT SERVICES of Central Arkansas, et al.

    98-1518
    994 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered July 1, 1999

      Martha G. Hunt, Revenue Legal Counsel, for appellant.

      Wolff Law Firm, by: Rufus E. Wolff; and Nichols & Campbell, by: Mark W. Nichols, for appellees.
   Ray Thornton, Justice.

The State of Arkansas, appellant, brings this appeal of the decision of the Pulaski County Chancery Court which found that appellees, four Production Credit Associations, are entitled to immunity from state sales and income taxation by virtue of their status as “federal instrumentalities.” Because we agree with the chancery court that absent express congressional waiver, the PCAs are entitled to immunity from state taxation, we affirm the chancellor’s grant of appellees’ summary-judgment motion.

Appellees, Farm Credit Services of Central Arkansas, Farm Credit Services of Western Arkansas, Eastern Arkansas Production Credit Association, and Delta Production Credit Association, are Production Credit Associations (PCAs), corporations chartered under the Farm Credit Act of 1971. These corporate financial institutions, organized by ten or more farmers to provide loans and other banking services to farmers, are entities of the Farm Credit System, a government-sponsored enterprise created by Congress in 1916. The Federal Farm Loan Act, Pub. L. No. 64-158; 39 Stat. 360 (1916). In 1933, Congress established Production Credit Associations to carry out the federal purposes of providing agricultural credit to American farmers, and for a time, the government owned stock in PCAs in order to encourage and assist the PCAs. See H.R. Rep. No. 593, 92d Cong. 1st Sess. 8 (1971), Farm Credit Act of 1933, ch. 98, § 23, 48 Stat. 261.

The Farm Credit Act, Pub. L. No. 73-98; 48 Stat. 257 (1933), established twelve district federal land banks to make long-term loans to farmers through federal land bank associations. PCAs are designated by 12 U.S.C. §§ 2017 and 2077 as “federal instrumentalities.” Each association is a member of the Farm Credit System, which is divided into seven districts. Arkansas is part of the seventh farm credit district, known as Agribank, and is divided into four farm credit territories. Each association is restricted to certain territories outlined in its charter, and they are limited to making agricultural-purpose loans only to farmers who are members, operating on a cooperative basis.

In 1994, appellees, the four Arkansas PCAs, requested a refund of state income and sales taxes paid within the refund limitations period, claiming that they paid the taxes in error, because their status as “federal instrumentalities” exempts them from state taxation under the constitutional doctrine of intergovernmental tax immunity. Appellant, through the Department of Finance and Administration (hereinafter “The Department,”) denied their request. The PCAs brought suit in the Pulaski County Chancery Court contesting the denial of the refund. Both parties moved for summary judgment. On July 1, 1998, the trial court granted the PCAs’ motion, holding that PCAs are federal instrumentalities immune from state tax unless Congress waives that immunity, that Congress has not expressly waived that immunity for PCAs, and, therefore, that their status as federal instrumentalities renders them exempt from state taxation. The judgment ordered the Department to refund state income and sales taxes to the PCAs; the total sum at issue amounts to more than $1.2 million dollars, plus ten percent interest. The Department filed this appeal, contending that the trial court erred by deciding the issue of the PCAs’ exemption from state tax based upon the doctrine of intergovernmental tax immunity, as expressed and developed in M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and its progeny, rather than upon 12 U.S.C. § 2077, a statutory exemption from federal and state taxation granted by Congress. In the alternative, the Department asserts that the trial court erred in holding that federal instrumentality status, in and of itself, is sufficient to entitle PCAs, who they assert are not essential parts of government, to implied immunity under the tax-immunity doctrine. The Department does not, however, challenge the constitutionality of the federal statute on the basis that Congress lacked authority to designate PCAs as instrumentalities of the United States, but, rather, asks us to construe the statute itself and conclude that notwithstanding their designation as an “instrumentality,” the PCAs are taxable.

This court reviews issues of statutory construction de novo; it is for this court to decide what a statute means. Arkansas Dep’t. of Health v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995). We are not bound by the decision of the trial court. However, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998). The statute at issue reads:

Each production credit association and its obligations are instrumentalities of the United States and as such any and all notes, debentures, and other such obligations issued by such associations shall be exempt, both as to principal and interest, from all taxation (except surtaxes, estate, inheritance, and gift taxes) now and hereafter imposed by the United States or by any State, Territorial, or local taxing authority, except that interest on such obligations shall be subject to Federal income taxation in the hands of the holder.

12 U.S.C. § 2077 (1989).

As the Supreme Court first held in M’Culloch v. Maryland, supra, because of the Supremacy Clause of the United States Constitution, states have no power to tax federally created instrumentalities absent congressional authorization. “[T]he states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared.” Id. The doctrine of intergovernmental tax immunity is well understood, based upon principles of dual sovereignty. Our federal government is immune from taxation imposed by the state, unless that immunity is waived, explicitly or expressly, by a statutory waiver of that immunity. Federal Reserve Bank of St. Louis v. Metrocentre Improvement Dist. #1, 657 F.2d 183 (8th Cir. 1981)(Citing United States v. City of Adair, 539 F.2d 1185 (8th Cir. 1976), cert. denied 429 U.S. 1121 (1977), aff’d, 455 U.S. 995 (1982).

PCAs are federal instrumentalities, clearly designated as such by federal statutes. Once it has been determined that the PCAs are federal instrumentalities, there arises an implied immunity from state and local taxation. M’Culloch v. Maryland, supra. In order to subject federal instrumentalities such as PCAs to state taxation, Congress must enact a clear waiver of their exemption. Department of Employment v. United States, 385 U.S. 355 (1966). Once federal immunity from taxation is established, Congress must express any waiver of that immunity as a “clear, express, affirmative desire.” Federal Reserve Bank of St. Louis, supra. We note that 12 U.S.C. § 2077 does not contain an express waiver of constitutional immunity from taxes derived from the doctrine of intergovernmental tax immunity.

The current statutory enactment by Congress dealing with state taxation of PCAs states that “all notes, debentures, and other obligations” of the associations are exempt from state and federal taxation. 12 U.S.C. § 2077. The Department contends that because prior versions of the statute expressly exempted their “capital, reserves, surplus, and other funds, and their income,” Farm Credit Act of 1971, Pub. L. No. 92-181, § 2.17, 85 Stat. 583 (1971); Farm Credit Act of 1933, Pub. L. No. 73-75, § 63, 48 Stat. 257 (1933), and the current statutory provision no longer contains such additional immunity language, Congress has waived the PCAs’ exemption. However, we do not find that argument persuasive. The current version of § 2077, with its silence on the issue, compels a holding of immunity because, where Congress is silent, the tax immunity of federal instrumentalities is implied. See Graves v. New York ex rel. O’Keefe, 306 U.S. 466 (1939). See also Farm Credit Services of Mid-America v. Department of State Revenue, 705 N.E.2d 1089 (Indiana Tax Ct. 1999)(Because Congress had not waived the Agricultural Credit Association’s immunity from state taxation, under the Supremacy Clause, Indiana was without power to collect state tax from the association. “With respect to federal instrumentalities, it is the waiver and not the immunity which must be explicit.”) We have examined the language of the statute, 12 U.S.C. § 2077, and hold that it does not contain an express waiver of the tax exemption conferred by the doctrine of intergovernmental tax immunity.

We have concluded that the decision of the Pulaski County Chancery Court in granting the PCAs’ motion for summary judgment was correct and affirm the judgment in their favor for the refund of amounts paid as state income taxes and state sales taxes.

Affirmed.

       The PCAs simultaneously filed suit in the Umted States District Court for the Eastern District of Arkansas against the State of Arkansas, seeking a declaratory judgment that they were exempt from state taxation and for an injunction against collection of future taxes. In 1995, in an unreported decision, United Stated District Judge Henry Woods granted the PCAs motion for summary judgment, finding that their statutory designation as a federal instrumentality exempts them from state taxation under the implied immunity doctrine and that states cannot tax them in the absence of a statute which clearly and affirmatively waives this implied immunity. The Department appealed to the United States Court of Appeals for the Eighth Circuit, which upheld the district court’s decision. Farm Credit Services of Central Arkansas, PCA et al. v. State of Arkansas, 76 F.3d 961 (8th Cir. 1995).
      The PCAs then moved for summary judgment in Pulaski County Chancery Court, on the grounds that appellant was collaterally estopped by the Eighth Circuit decision from relitigating the legal issue of the PCAs’ entitlement to exemption. The Department responded with a petition for writ of certiorari to the United States Supreme Court, which was granted. The Pulaski County Chancery Court stayed its decision pending the outcome of the Supreme Court case. The Supreme Court did not address the merits of the exemption issue but held that the federal court lacked jurisdiction under the Tax Injunction Act, 28 U.S.C. § 1341, to consider the merits when the question could be presented to a state court, and when the instrumentality was not joined by the United States as a co-plaintiff. Arkansas v. Farm Credit Services of Central Arkansas, et al., 520 U.S. 821 (1997).


author: Per Curiam.

text:
    William Leroy DANIELS v. STATE of Arkansas
    CR 99-654
    5 S.W.3d 1
    Supreme Court of Arkansas
    Opinion delivered June 30, 1999

      John M. Blair, for appellant.
    No response.
   Per Curiam.

On September 3, 1998, appellant was convicted of sexual abuse in the first degree, and judgment was entered on October 16, 1999. Appellant’s attorney, John M. Blair, filed a timely amended notice of appeal and designation of the record on November 2, 1998. On January 26, 1999, counsel for appellant filed a motion for extension of time to lodge the record on appeal. Circuit Judge Tom J. Keith signed an order extending the time for filing the record to June 2, 1999, which is more than seven months from the date of the conviction judgment entered on October 16, 1999. The appellate rules in relevant part provide that the time for filing a record shall not be extended more than seven months from the entry of judgment. Ark. R. App. P.—Civil 5(b); Ark. R. App. P.—Criminal 4. The clerk’s office refused to accept appellant’s record because it was late. See Yent v. State, 279 Ark. 268, 650 S.W.2d 577 (1983).

A motion for rule on the clerk has been filed on behalf of appellant to compel the clerk’s office to accept the record. In his motion, appellant states the record was not tendered too late for filing because the trial court entered an order within the original time period permitting additional time for filing the record.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead states that he is entitled to have the record filed because the trial court entered an order extending the time to June 2, 1999. Placing the responsibility on the trial court is not acceptable. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986); see also Morris v. Stroud, 317 Ark. 628, 883 S.W.2d 1 (1994); Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985) (the rule of law is clear that it is the duty of counsel, not the judge, not the clerk, not the reporter, to perfect an appeal). Therefore, appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion forwarded to the Committee on Professional Conduct.


text:
    Cedric Lamar HARRIS v. STATE of Arkansas
    CR 96-782
    993 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered July 1, 1999

      Althea E. Hadden, for appellant.
    No response.
   Per Curiam.

Appellant Cedric Lamar Harris was convicted of capital murder and attempted murder and was sentenced to life imprisonment without parole and thirty years’ imprisonment, respectively. Through his attorney, Althea E. Hadden, Appellant has filed a motion for belated appeal. We deny the motion, as it was not timely filed.

This court previously dismissed Appellant’s case because the notice of appeal was not timely filed pursuant to Rule 2(a)(3) of the Arkansas Rules of Appellate Procedure—Criminal. See Harris v. State, 327 Ark. 14, 935 S.W.2d 568 (1997). This court held:

Harris’s new trial motion was filed on October 16, 1995, and under Rule 2, the motion was deemed denied thirty days later, on November 15, 1995. Accordingly, Harris had thirty days within which to file his appeal which date ended on December 15, 1995. Instead, he waited until January 2, 1996, to file his notice of appeal. Although the trial court belatedly denied Harris’s new trial motion on December 5th, it had no jurisdiction to do so.
In conclusion, we mention the State’s suggestion that Harris could correct his failure to file a timely appeal by seeking permission to file a belated appeal. While a belated appeal is certainly permissible under Rule 2(e) of the court’s appellate procedure for criminal cases, we point out that, to date, no such application and affidavit required under Rule 2(e) have been made by Harris, and this case has now been submitted to this court for decision.

Id. at 15-16, 935 S.W.2d at 569 (citations omitted). At the time our opinion was rendered, Appellant was represented by Robert F. Morehead. Despite this court’s strong suggestion as to how to proceed, no motion for belated appeal was filed by Mr. Morehead. Indeed, no such motion was filed by anyone until May 18, 1999, over two years after this court issued its mandate.

Rule 2(e) of the Arkansas Rules of Appellate Procedure— Criminal provides in pertinent part:

The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. [Emphasis added.]

In the present case, the trial court was deemed to have denied Appellant’s posttrial motion for new trial on November 15, 1995. Thus, to be timely, Appellant would have had to file a motion for belated appeal by May 15, 1997. This motion was not filed until May 18, 1999, some two years after the time for filing such motion had expired. Thus, the motion is denied.

It is not apparent from the motion or Appellant’s affidavit why Mr. Morehead did not file a motion for belated appeal within the time provided. Accordingly, a copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct for consideration of Mr. Morehead’s actions or inactions. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


author: W. H.“Dub” Arnold, Chief Justice. Tom Glaze, Justice,

text:
    Franklin David CHAMBERS, M.D. v. Harold Patrick STERN, M.D.
    99-20
    994 S.W.2d 463
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999
    [Petition for rehearing denied September 9, 1999.]

      David M. Hargis and Douglas W. Bonner, Jr., for appellant.

      Clevenger, Angel & Miller, P.L.L.C., by: Richard L. Angel and Stuart P. Miller, for appellee.
   W. H.“Dub” Arnold, Chief Justice.

The instant appeal arises from a medical malpractice action filed by the appellant, Franklin David Chambers, M.D., against the appellee, Harold Patrick Stern, M.D. On appeal, Chambers challenges the trial court’s orders (1) granting Dr. Stern’s motion to dismiss or, alternatively, his motion for summary judgment, based upon Dr. Stern’s entitlement to absolute judicial immunity, (2) striking evidence filed by Chambers in supplementation of his response to Dr. Stern’s summary-judgment motion, and (3) expanding judicial immunity to medical “treatment” in violation of Chambers’s constitutional right to a jury trial.

Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1—2(b)(6) (1998). We accepted certification of this case from the Court of Appeals in order to resolve an issue of first impression, namely, whether the application of judicial immunity to a court-appointed physician engaged in medical “treatment” violates a party’s constitutional right to a jury trial. Although we do not reach the constitutional issue, we reverse and remand on appellant’s first point. Specifically, we hold that the trial court erred in granting appellee’s summary-judgment motion because genuine issues of material facts remain.

Chambers commenced his medical malpractice action against Dr. Stern, and other parties not relevant to this appeal, on June 30, 1997. Dr. Stern had been appointed by a chancery court to assist it in evaluating custody and visitation issues arising from Chambers’s pending divorce action. In part, the chancellor ordered that Dr. Stern meet, evaluate, and counsel Chambers, his minor children, and his former wife, throughout the divorce proceedings. Chambers and his wife agreed to the appointment of Dr. Stern, who over a four-year period evaluated them and their children, engaged them in therapy, and reported his findings, observations, and recommendations to the chancellor.

Subsequently, Chambers contended that Dr. Stern committed malpractice during the therapy or “treatment” phase with the family members. In response, Dr. Stern filed a motion to dismiss or, alternatively, a motion for summary judgment, claiming that he was entitled to judicial immunity while he was carrying out the chancery court’s order. After reviewing the parties’ pleadings, exhibits, depositions, and affidavits, the trial court agreed with Dr. Stern and dismissed the malpractice action. Notably, the trial court concluded that Dr. Stern was entitled to absolute judicial immunity, extending from the chancellor’s order appointing him to evaluate and treat the parties. From the order dismissing Chambers’s malpractice action, comes the instant appeal.

Summary-judgment motion

Appellant’s first point on appeal challenges the trial court’s order granting Dr. Stern’s motion for dismissal or, alternatively, his motion for summary judgment. Generally, this court reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff, here, Chambers. See Hames v. Cravens, 332 Ark. 437, 440-41, 966 S.W.2d 244 (1998) (citing Neal v. Wilson, 316 Ark. 588, 595-96, 873 S.W.2d 552 (1994) (citing Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)); Mid-South Beverages, Inc., 300 Ark. 204, 205, 778 S.W.2d (1989) (citing Battle, 298 Ark. 241))). Significantly, a trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Hames, 332 Ark. at 441 (citing Neal, 316 Ark. at 596 (citing Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)); Mid-South Beverages, Inc., 300 Ark. at 205 (citing Battle, 298 Ark. 241))).

Although the trial court “dismissed” Chambers’s action, it acknowledged that it considered matters outside the parties’ pleadings, including exhibits, depositions, and affidavits. Accordingly, we treat the trial court’s order as one granting Dr. Stern’s motion for summary judgment. In reviewing summary-judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Further, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the.moving party. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (1998); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Collyard v. American Home Ins. Co., 271 Ark. 228, 230, 607 S.W.2d 666, 668 (1980).

In his response to Dr. Stern’s summary-judgment motion, Chambers asserted that the trial court impermissibly expanded the doctrine of judicial immunity to cover a court-appointed physician’s “treatment” of parties. The rationale behind judicial immunity is to maintain an independent and impartial judiciary. See generally, 48A C.J.S. § 86 (1981 & Supp. 1999). When a public officer is granted discretion and empowered to exercise his independent judgment, like a judge, he becomes a quasi-judicial officer and may enjoy judicial immunity when he is acting within the scope of his authority. See 46 Am. Jur. 2d § 70 (1994 & Supp. 1999).

We recendy examined the concept of judicial immunity in Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998). We noted that judicial immunity is absolute immunity, and we adopted a six-factor test to be considered in determining absolute immunity: (1) the need to assure that the individual can perform his functions without harassment or intimidation, (2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct, (3) insulation from political influence, (4) the importance of precedent, (5) the adversary nature of the process, and (6) the correctability of error on appeal. Robinson, 333 Ark. at 670, 970 S.W.2d at 296. Consistent with these factors, the parties agree that absolute judicial immunity extends to physicians appointed by courts to assist in “evaluations.” However, the parties dispute whether judicial immunity continues to shield the court-appointed physician when the evaluation phase progresses to treatment or therapy. Significandy, there is no Arkansas case law on point.

We look, then, to other jurisdictions that have considered the issue before us. For example, in Myers v. Morris, 810 F.2d 1437 (8th Cir. 1987), the Eighth Circuit considered the issue of when immunity is appropriate and concluded that:

nonjudicial persons who fulfill quasi-judicial functions intimately related to the judicial process have absolute immunity for damage claims arising from their performance of the delegated functions.

Myers, 810 F.2d at 1466-67 (citing Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1986)).

Similarly, the Supreme Court of Iowa first addressed the issue in Muzingo v. St. Luke’s Hosp., 518 N.W.2d 776 (Iowa 1994). Prior to Muzingo, the Iowa court extended quasi-judicial immunity to nonjudicial officers when their actions were “integral to the judicial process.” Muzingo, 518 N.W.2d at 777. However, in Muzingo, the key issue before the court was whether a court-appointed psychiatrist’s and hospital’s activities were an integral part of the judicial process so that to deny immunity would dis-serve the broader public interest that nonjudicial officers act without fear of liability. The high court determined that the court-appointed psychiatrist and hospitals were entitled to quasi-judicial immunity because they were acting as an arm of the court. In support of its position, the court also cited, with approval, the Eighth Circuit’s decision in Myers. Additionally, the court noted that the focus of its inquiry was on the nature of the function performed and not on the identity or title of a particular actor. Id.

Public policy considerations also compel us to extend judicial immunity to court-appointed therapists. Psychologists and other experts would be reluctant to accept appointments if they were subject to personal liability for actions taken in their official capacities. See Doe v. Hennepin County, 623 F. Supp. 982, 986 (D.C. Minn. 1985). In that vein, we agree with the Minnesota District Court that court-appointed therapists are entitled to absolute immunity for acts committed “within the scope of their appointments.” Doe, 623 F. Supp. at 986.

The key issue in the instant case is whether Dr. Stern was acting as an arm of the court and performing a quasi-judicial function, or whether he exceeded the scope of the court’s order. Notably, in Doe, 623 F. Supp. 982 (D.C. Minn. 1985), the plaintiffs could not overcome the therapist’s immunity by merely asserting that she was not a good psychologist, or that she should have been a better psychologist. Id. In fact, the Minnesota court agreed that the psychologist was entitled to summary judgment as a matter of law because (1) there was no showing that the psychologist was not functioning as a psychologist at all relevant times, (2) the plaintiffs agreed to participate in counseling and selected the therapist, (3) the therapist was officially appointed by the court, and (4) the acts of which the plaintiffs complained were carried out within the scope of the court-appointed capacity. Doe, 623 F. Supp. at 986-97.

In conclusion, we hold that a court-appointed physician is entitled to judicial immunity so long as he is serving an integral part of the judicial process, by carrying out and acting within the scope of a court’s order. Flowever, from our review of the record before us, the trial court failed to make specific, written findings, in its June 4, 1998, order granting Dr. Stern’s motion to dismiss, that Dr. Stern did, in fact, act within the scope of his court appointment during the relevant time periods. Accordingly, on remand, the trial court must determine as a matter of law whether Dr. Stern’s actions were within the scope of his court-appointed capacity, and if so, his actions taken pursuant to the appointment are entitled to judicial immunity.

However, if the trial court determines that Dr. Stern’s actions were outside the scope of the court’s appointment, it must determine at what point Dr. Stern exceeded the order and, consequently, forfeited his immunity. Specifically, the trial court must review Dr. Stern’s involvement with the Chamberses from June 22, 1993, to April 18, 1994, in light of the chancery court’s June 22, 1993, temporary relief order directing the following:

That while the Court does not find a physical and mental evaluation of the parties or the children appropriate, the Court does find that a qualified therapist or counselor agreed to by the parties should meet with and counsel the parties and the children relative to the divorce proceedings in which they are involved and the visitation and other matters related thereto and to conduct all necessary evaluations on the parties and children in connection therewith; that only one therapist or counselor should be used for all the children and the parties and that therapist or counselor should report directly to the Court his or her findings and observations and the Court will handle the release of such report to the attorneys for the respective parties; that if the parties are unable to agree on the therapist or counselor to be used, the Court will appoint a therapist or counselor after giving each of the parties an opportunity to supply the Court with the names and qualifications of any therapists or counselors suggested by them for use herein; that Defendant shall be responsible for the payment, as and when due, of all charges made by the therapist or counselor; and that both the parties shall cooperate with and be responsive to the requests and directions of the therapist or counselor involved.

(Emphasis added.)

Next, the trial court must review Dr. Stern’s interactions with the Chamberses from April 18, 1994, through the later of (1) the last therapy session by any family member with Dr. Stern, or (2) Dr. Stern’s final communication with the chancery court, in light of the chancery court’s April 18, 1994, divorce decree, directing the following:

The parties and the children are directed to cooperate with the Court appointed therapist, H. Patrick Stern, M.D., to resolve visi tation problems. Visitation is to be pursuant to Dr. Stern’s direction pending further order of the Court. The Defendant is hereby directed to pay all charges associated with the subject therapy related to visitations problems pending further order of the Court.

(Emphasis added.) Only after the trial court resolves the aforementioned legal issues may the jury consider the merits of appellant’s malpractice claim.

Viewing the evidence in the light most favorable to Chambers, resolving any doubts against Dr. Stern, and finding that there remain genuine issues as to material facts, we hold that the trial court erred in finding that Dr. Stern was entitled to a judgment as a matter of law. In light of our holding, we need not reach the merits of appellant’s remaining arguments.

Reversed and remanded.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. I agree with the majority court that judicial immunity can be extended to a qualified therapist and that the issue of judicial immunity is an issue of law. In reading the record, it appears the chancery judge’s appointment of Dr. Harold Stern under his order and decree entered on June 22, 1993, and April 18, 1994, gave Dr. Stern absolute immunity as a matter of law unless a factual issue exists concerning whether Dr. Stern exceeded his quasi-judicial functions. In other words, Dr. Stern’s actions were integral to the judicial process. The broad definition of judicial process includes all the acts of a court from the beginning to the end of its proceedings in a given cause. Black’s Law Dictionary 1205 (6th ed. 1990). And the term integral, in its ordinary usage, means a part or a constituent component which is necessary or essential to complete the whole. Id. at 809.

In the instant case, the chancehor in his June 22 order directed that a qualified therapist counsel the divorcing parties and their children relative to the divorce proceedings and conduct all necessary evaluations; the therapist was to report his or her findings and observations to the court. The parties agreed that Dr. Stern would perform this role. In his April 18 decree, the chancellor appointed Dr. Stern to resolve visitation problems and visitation was to be made pursuant to Dr. Stern’s direction, pending further order of the court. The court’s appointment of Dr. Stern and the chancellor’s directives were clearly made during and within the divorce proceedings involving David and Debra Chambers and their children, and such appointment and directives were intended to aid the chancellor in the resolution of visitation issues. It is important to note that the chancellor’s orders authorized Dr. Stern to counsel the Chambers family. Whether the appointed therapist performed his or her judicial function by conducting evaluations or employing treatment is of little import, since both are cognizable skills used by such professionals when counseling parties.

In contrast, if a therapist had been court appointed to provide evaluations of or counseling to divorcing parties and their children, and during the course of that appointment, the therapist hit or struck one of the parties, the therapist could be found to have acted outside his or her quasi-judicial functions and therefore would not be entitled to immunity. Nor would a court-appointed therapist enjoy such immunity if he or she engaged in unethical sexual intimacies with one of the divorcing parties.

In conclusion, while I agree with the majority court that a court appointed therapist like Dr. Stern is entitled to judicial immunity, I disagree with the court’s opinion that the trial court here is required to make any further findings to determine whether Stern acted within the scope of his quasi-judicial functions. That legal issue and supporting evidence was fully before the trial court and in my view, the record supported the circuit judge’s ruling awarding Dr. Stern absolute immunity. Therefore, I respectfully dissent.

       Whether absolute immunity exists is a question of law for the courts. See generally 46 Am. Jur. 2d § 68 (1994 & Supp. 1999).

       We render no opinion regarding (1) the validity of the trial court’s instruction that, “Visitation is to be pursuant to Dr. Stern’s direction pending further order of the Court,” or (2) the effect of the validity of that instruction upon the application of judicial immunity to Dr. Stern. The instruction’s validity was not challenged, and these issues are not before us on appeal.


author: Donald L. Corbin, Justice.

text:
    Christopher A. TINSLEY v. STATE of Arkansas
    CR 99-156
    993 S.W.2d 898
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mak Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Christopher A. Tinsley appeals the judgment of the Pulaski County Circuit Court convicting him of rape and sentencing him to life imprisonment. Our jurisdiction of this case is pursuant to Ark. Sup. Ct. R. l-2(a)(2). For his sole point for reversal, Appellant argues that the trial court erred in denying his motion for directed verdict on the ground that his confession was not corroborated by other proof sufficient to establish that the victim had been raped. We find no error and affirm.

Appellant was charged with the rape of T.L., a seven-year-old girl, pursuant to Ark. Code Ann. § 5-14-103(a)(4) (Repl. 1997), which requires proof that he engaged in sexual intercourse or deviate sexual activity with a person under fourteen years of age. Definitions for the relevant terms are found in Ark. Code Ann. § 5-14-101 (Repl. 1997):

(1) “Deviate sexual activity” means any act of sexual gratification involving:
(A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or
(B) The penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person;
(9) “Sexual intercourse” means the penetration, however slight, of the labia majora by a penis[.]

Appellant confessed to police that he raped T.L. by putting his penis inside her mouth, her vagina, and her anus. Despite his confession to the crime, Appellant argues that the trial court erred in denying his directed-verdict motion because the State failed to present corroborating evidence. Particularly, Appellant contends that there was no evidence of penetration. We disagree.

A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997). The test on appeal is whether there is substantial evidence to support the verdict. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). Where, however, the challenge is limited to the sufficiency of the evidence corroborating the defendant’s confession, our review is governed by Ark. Code Ann. § 16-89-111 (d) (1987), which provides that “[a] confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” This requirement for other proof, sometimes referred to as the corpus delicti rule, mandates only proof that the offense occurred and nothing more. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). In other words, under the corpus delicti rule, the State must prove (1) the existence of an injury or harm constituting a crime and (2) that the injury or harm was caused by someone’s criminal activity. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). It is not necessary to establish any further connection between the crime and the particular defendant. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). Accordingly, we must determine whether, setting aside Appellant’s confession, the evidence demonstrates that the crime of rape was committed by someone.

The record reflects that T.L., who was eight years old at the time of trial, testified that Appellant had lived in the same house as her mom and her brothers and sisters. She stated that Appellant hurt her by touching her “private.” Using a diagram of a boy’s anatomy, T.L. indicated that Appellant had touched her private area with his penis. The child also stated that Appellant’s penis was hard, and that it hurt her “behind.” She then stated that she tried to get away from Appellant by sneaking out a window and going to a neighbor’s house, where the neighbor called the police. She also stated that she went to the hospital and was subsequently taken home by her foster mother.

Dr. Rachel Roberson, a resident physician at the Arkansas Children’s Hospital, testified that she examined T.L. for evidence of sexual abuse on October 23, 1997. The defense stipulated that Dr. Roberson is an expert in the field of sexual trauma. Dr. Roberson stated that prior to the exam, she obtained a history of the patient. She stated that she had been informed that T.L. had “disclosed having oral, anal and vaginal sex with the perpetrator.” She stated that her exam revealed that the child had an abnormally thin or narrow hymen. She explained that such a condition in a young girl caused her to be “very highly suspicious” that the child had been penetrated by some object, thus causing the hymen to be narrow. She indicated that, theoretically, the child could have been born with a narrow hymen; however, she stated that neither she nor any other physician at Children’s Hospital had ever seen such a genetic condition.

Dr. Roberson also testified that her exam of T.L. revealed that the child had diminished muscle tone in her anus. She explained that such a condition may be caused by hard stool; however, she was able to eliminate this cause based on her discovery that T.L. had soft stool. She stated that the presence of soft stool combined with the child’s history made her even more suspicious that the diminished tone was from another cause. When asked what other things could cause diminished muscle tone in the anus, Dr. Roberson replied, “Penetration.” She indicated that “[w]ith the given history, it was highly suspicious that the diminished tone was from penetration.” Dr. Roberson stated that in her medical opinion, her findings were more consistent with chronic penetration, than with a single incident.

We conclude that the foregoing testimony establishes that T.L. was raped. The child, though admittedly scared while testifying, stated that Appellant touched her private area with his penis, which she correctly identified on the diagram of a boy’s anatomy. She stated further that his penis was hard, and that it hurt her behind. This evidence was sufficient to allow the jury to believe that a rape occurred, even though T.L. may not have used the correct terms for a body part, but instead used her own terms and demonstrated a knowledge of what and where those body parts referred to are. See Stewart v. State, 297 Ark. 429, 762 S.W.2d 794 (1989); Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986).

Correspondingly, the circumstantial medical evidence provided by Dr. Roberson supports the conclusion that the child was penetrated, vaginally and anally, with some object, thus supporting the charge of rape by deviate sexual activity. “Penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient.” Jackson, 290 Ark. at 385, 720 S.W.2d at 287 (citing Whitmore v. State, 263 Ark. 419, 565 S. W.2d 133 (1978)). Dr. Roberson’s status as an expert in the field of sexual trauma combined with her physical findings and conclusions as to the cause of the child’s abnormal hymen and diminished muscle tone clearly give rise to more than a mere suspicion and leave little room for doubt that penetration occurred.

Furthermore, Dr. Roberson testified that prior to examining T.L., she was informed that the child had disclosed having vaginal, anal, and oral sex with the perpetrator. This hearsay testimony was admitted without objection, although Appellant would later argue that it was inadmissible because the information was supplied by a social worker, not T.L. Because defense counsel did not object to the testimony, the trial court did not err in considering it. Jones v. State, 332 Ark. 617, 967 S.W.2d 559 (1998); Brown v. State, 330 Ark. 603, 954 S.W.2d 273 (1997). Hearsay evidence, when admitted, may constitute substantial evidence. Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989). See also Jameson, 333 Ark. 128, 970 S.W.D 785 (holding that substantial evidence of rape may be found even though there was only a hearsay statement of the child victim). Accordingly, the testimony that T. L. had reported having sex with Appellant supports the conclusion that there was penetration.

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.


author: Robert L. Brown, Justice.

text:
    State of Arkansas OFFICE of CHILD SUPPORT ENFORCEMENT v. Thornell WILLIAMS
    98-1240
    995 S.W.2d 338
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999

      Donna D. Galloway, for appellant.
    No response.
   Robert L. Brown, Justice.

This is a one-brief appeal in which the appellant, State of Arkansas Office of Child Support Enforcement (hereinafter “OCSE”), appeals an order abating future child support for appellee Thornell Williams on two grounds: (1) the issue of his paternity was decided in the divorce decree and res judicata applies; and (2) abatement of future child support is not in the best interests of the children. We agree that res judicata applies, and we reverse and remand.

On July 10, 1979, Brenda F. Williams and the appellee were married. On March 15, 1990, the chancery court entered a decree granting Brenda Williams a divorce and awarding her custody of the three children born during the marriage (Francis Williams, Brandon Williams, and Thornell Williams, Jr.), subject to reasonable visitation by the appellee. The appellee was ordered to pay $80 a week in child support and to pay for all reasonable medical and dental bills incurred on behalf of the children.

On August 1, 1996, Brenda Williams filed a motion to modify the child support obligation based on the appellee’s increased income and to recover accrued child-support arrearages of $9,881.66. Because she had assigned her rights to OCSE, OCSE was allowed to intervene. Also, on August 1, 1996, the appellee filed an agreement to pay child support. In this document, he admitted that he was the natural parent of the three children and agreed to a consent judgment on the arrearages. He also agreed to increase child support to $95 a week and to participate in income-withholding for that purpose. The consent judgment was entered on August 2, 1996.

On November 25, 1996, OCSE filed a motion for citation against the appellee for failing to comply with the consent judgment, and the chancery court entered an order for the appellee to show cause why he should not be held in contempt. The appellee filed a counterpetition to modify the child-support order, stating that he had been informed by Brenda Williams and others since entry of the consent judgment that he was not the biological father of Brandon Williams and Thornell Williams, Jr. In his petition, he requested approval for blood tests to establish paternity of the children and asked the chancery court to abate his child-support obligation. OCSE responded, pleading res judicata based on the divorce decree and Ark. Code Ann. § 9-10-115 (Supp. 1995).

The chancery court ordered the paternity tests, abated the child support until the tests were done, and found the appellee in contempt of court. The blood tests subsequently determined that the appellee was not the father of the two boys. On July 10, 1998, the chancery court entered an order permanently abating the appellee’s child-support obligation. Prior to entry of the order, the court ruled from the bench that from a purely legal standpoint, the argument that res judicata applied was correct, but that from an equitable standpoint, he was not going to force the appellee to pay child support on two children who were not biologically his.

I. Res Judicata

For its first point on appeal, OCSE urges that the divorce decree was res judicata on the issue of paternity. Res judicata bars relitigation of a subsequent suit when: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. See Miller County v. Opportunities, Inc., 334 Ark. 88, 971 S.W.2d 781 (1998); Hamilton v. Arkansas Pollution Control & Ecology Comm’n, 333 Ark. 370, 969 S.W.2d 653 (1998). Res judicata bars not only the relitigation of claims that were actually litigated in the first suit but also those that could have been litigated. See Wells v. Arkansas Pub. Serv. Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981). Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. See Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988).

In the past, we have applied the doctrine of res judicata to the issue of paternity when paternity was established under a divorce decree. See McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990). In McCormac, a mother sought to relitigate the paternity issue following a divorce decree. The request was included in her response to her ex-husband’s motion to hold her in contempt for failing to comply with visitation. In the original divorce decree, the chancery court had found that it had subject-matter jurisdiction and had awarded custody, set child support, and fixed visitation. On appeal, we held that the mother’s paternity claim was barred by res judicata because the mother pled in the divorce action that the child was born of the marriage, and the father admitted this fact. Our court of appeals has held similarly in several cases. See, e.g., Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997); Scallion v. Whiteaker, 44 Ark. App. 124, 868 S.W.2d 89 (1993); Department of Human Servs. v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991); Benac v. State, 34 Ark. App. 238, 808 S.W.2d 797 (1991).

The weight of authority in other jurisdictions is in accord with this view of the res judicata effect of divorce decrees on the paternity issue. See, e.g., In re Paternity of Rogers, 697 N.E.2d 1193 (Ill. App. Ct. 1998); Love v. Love, 959 P.2d 523 (Nev. 1998); Godin v. Godin, 725 A.2d 904 (Vt. 1998); Gann v. Gann, 705 So.2d 509 (Ala. Civ. App. 1997); Grice v. Detwiler, 488 S.E.2d 755 (Ga. Ct. App. 1997); Beyer v. Metze, 482 S.E.2d 789 (S.C. Ct. App. 1997); In re A.L.J., a/k/a A.L.E., 929 S.W.2d 467 (Tex. Ct. App. 1996); see also Donald M. Zupanec, Annotation, Effect, In Subsequent Proceedings, Of Paternity Findings Or Implications In Divorce Or Annulment Decree Or In Support Or Custody Order Made Incidental Thereto, 78 A.L.R.3d 846.

The Vermont Supreme Court set out succinctly the policy considerations which favor this principle:

Although we understand plaintiffs interest in ascertaining the true genetic makeup of the child, we agree with the many jurisdictions holding that the financial and emotional welfare of the child, and the preservation of an established parent-child relationship, must remain paramount. . . . Whatever the interests of the presumed father in ascertaining the genetic “truth” of a child’s origins, they remain subsidiary to the interests of the state, the family, and the child in maintaining the continuity, financial support, and psychological security of an established parent-child relationship. Therefore, absent a clear and convincing showing that it would serve the best interests of the child, a prior adjudication of paternity is conclusive.

Godin, 725 A.2d at 910 (citations omitted). The Vermont Supreme Court further noted that its holding would deter parents who might seek to dissolve their parental bonds for financial or for other self-serving reasons. See Hackley v. Hackley, 395 N.W.2d 906, 913-14 (Mich. 1986) (best interests of child in maintaining stability and preventing psychological trauma must prevail over unfairness to father; contrary decision would result in chaos and humiliation); In re Paternity of JRW & KB, 814 P.2d 1256,1265 (Wyo. 1991) (“Because of the potentially damaging effect that relitigation of a paternity determination might have on innocent children, the doctrines of res judicata and collateral estoppel are rigorously observed in the paternity context.”).

In the case before us, the divorce decree stated that the children were born of the marriage, and the chancery court awarded custody, ordered child support, and set visitation. The issue of paternity, accordingly, was decided. See McCormac v. McCormac, supra; Anderson v. Anderson, 552 N.E.2d 546 (Mass. 1990) (a divorce decree is an adjudication of the paternity of a child of the marriage); Godin v. Godin, supra (paternity necessarily determined in original divorce proceeding, which awarded child support). Moreover, the appellee had the opportunity to raise and litigate the paternity issue, but he failed to do so. In this regard, there was some evidence, based on Brenda Williams’s testimony, that he knew that the two boys were not biologically his much earlier. He also signed an agreed order in 1996, admitting that he was the father of the children. Under these circumstances, we hold that the principle of res judicata applies and that the chancery court erred in failing to do so.

II. Paternity Code

Although it is not briefed by OCSE and seemingly was not relied on by the chancery court, we feel constrained to address Ark. Code Ann. § 9-10-115(d) (Supp. 1995), which addresses modification of a child-support order when it is determined in a paternity suit that a man is not the biological father of a child. See, e.g., Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998). In Littles, this court relied on § 9-10-115(d) and held that a man who had been adjudicated the father of a child in a paternity suit was entitled to relief from future child-support obligations, after scientific testing proved that he was not the child’s biological father. We said: “[T]he statute mandates that an adjudicated father in Mr. Littles’s position receive prospective relief from a child-support judgment.” Littles, 333 Ark. at 481, 970 S.W.2d at 262.

Section 9-10-115, however, is part of the Paternity Code and was intended to apply only to judicial findings of paternity or to acknowledgments of paternity by both parents under Ark. Code Ann. § 9-10-120 (Supp. 1995). There is nothing in § 9-10-115 to even suggest that its applicability extended to divorce decrees. Furthermore, we view an adjudication of paternity in a paternity suit, as well as an acknowledgment of paternity by both parents under the Paternity Code as being vastly different from an adjudication of paternity in a divorce decree. In the latter situation, there has been a marriage and in most situations, the children have known the husbands as their fathers. A parental relationship has, thus, been established with the child or children. In a paternity suit, the parent-child relationship has not been forged, and the stability of the family unit is not an issue. This distinction lies at the heart of the disparate treatment accorded scientific testing after a finding of paternity under the Paternity Code and scientific testing which occurs after a divorce decree under our caselaw.

Accordingly, because paternity was adjudicated in a divorce decree in the instant case, we hold that McCormac v. McCormac, supra, controls and res judicata bars the appellee from reopening the paternity issue following the divorce decree.

Reversed and remanded.

         Brenda Williams testified to conversations with the appellee “when the kids were younger” about the two boys not being his, which suggests the appellee knew the two boys were not his before the consent judgment.

       This code section was amended by Act 1296 of 1997.