author: Tom Glaze, Justice.

text:
    Anthony Wayne FULTZ v. STATE of Arkansas
    CR 97-1129
    966 SW.2d 892
    Supreme Court of Arkansas
    Opinion delivered April 22, 1998

      Pearson & Chadwick, by: Charles R. Chadwick, and Christopher F. Woomer, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Anthony Wayne Fultz was charged and convicted of (1) possession of a controlled substance with the intent to deliver methamphetamine; (2) simultaneous possession of controlled substances and firearms; (3) conspiracy to deliver the controlled substance methamphetamine; (4) criminal use of a prohibited weapon; and (5) possession of drug paraphernalia. He was sentenced to a total of seventy years and fined $35,000.00. Fultz appeals only from his convictions of simultaneous possession of controlled substances and firearms and criminal use of a prohibited weapon. He challenges the warrantless search of his car and his home and the seizure of the firearms found as a result of those searches. Fultz does not challenge the seizure of any of the controlled substances found, resulting from the searches.

Police officers conducted the disputed warrantless searches when they arrested Fultz at his residence on September 5, 1996. On September 3, 1996, Fultz had voluntarily met with Federal Drug Enforcement Officer Sam Martin and Arkansas State Police Sergeant Rodney Combs at the Harrison Police Department. During that meeting, Fultz admitted to having traveled to California to purchase methamphetamine for resale in Arkansas. Fultz agreed to cooperate with the police in investigating individuals involved in selling methamphetamine in the area, and agreed to report to Officer Martin on a daily basis. When Fultz failed to report, Officers Martin, Combs, and others obtained an arrest warrant and went to arrest Fultz at his house. Upon their arrival, Fultz was requested to come outside, which he did. The officers arrested Fultz while they stood in Fultz’s carport, where Fultz’s car was parked.

In searching Fultz incident to his arrest, officers found a small canister of marijuana in his pocket. Officers then asked if he had any guns or drugs, and Fultz said he had a service revolver and a derringer. Fultz mentioned the derringer might be in the car. The officers searched the car and found a MAK-90 rifle and an illegal sawed-off shotgun in the hatchback portion of Fultz’s Pontiac Firebird. When asked if he had other weapons, Fultz said that he did. Fultz was handcuffed and placed in the back seat of a police unit. Mrs. Fultz subsequently consented to the officers’ search of the house, and she led them to a bedroom, where the service revolver was seen and seized from underneath a mattress. When officers discovered in Mrs. Fultz’s purse some plastic, square, clear boxes which appeared to have a white residue in them, Mrs. Fultz withdrew her consent to any further search. Mrs. Fultz was then arrested and placed in her husband’s Pontiac, which had been seized by the officers, and she was taken to the police station. Mr. Fultz was taken to the station in a police car. Two officers stayed at Fultz’s house while Officer Martin obtained a search warrant. Upon Martin’s return to the house, the officers completed their search of the house, an outbuilding, and a second car. The derringer previously mentioned by Fultz, a .22 caliber semi-automatic rifle, telephone records, and a rolling machine were found in the master bedroom, and the search of the outbuilding produced 46.928 grams of methamphetamine, $1,400.00 in cash, seven glass jars containing chemical and methamphetamine residue, coffee filters, acetone, denatured alcohol, and two packages of latex gloves.

In his challenge of the officers’ search of his Pontiac vehicle parked in the carport, Fultz argues the officers violated Ark. R. Cr. P. 14.1, 12.2, 12.4, 12.6, and the Fourth Amendment. He also asserts his car search violated the Fourth Amendment tenets as set out by the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 433 (1971). There, Coolidge was questioned by officers about a murder, and about two weeks later he was' arrested at his house for the murder. At the time of arrest, Coolidge’s car was parked in his driveway and subsequently searched pursuant to a warrant which was later found defective. The legal issue then became whether the officers’ search of Coolidge’s vehicle could be justified as a warrantless search. In this respect, the Supreme Court mentioned the basic constitutional rule that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions. The Court added that the exceptions are jealously and carefully drawn, and there must be a showing by those who seek exception that the exigencies of the situation made that course imperative and that the burden is on those seeking the exception to show the need for it. Id. at 454-455.

The Court in Coolidge first considered the exception and principle that a warrantless search incident to a lawful arrest may generally extend to the area that is considered to be in the possession or under the control of the person arrested. The Supreme Court held that the search-incident doctrine had no applicability to the circumstances in Coolidge’s situation because Coolidge was arrested inside his house while his car was outside in his driveway. In other words, Coolidge had no access to the car. In rejecting the validity of the officers’ search of Coolidge’s car, the Court adhered to the standards earlier announced in United States v. Rabinowitz, 339 U.S. 56 (1950), that a search may be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Id. at 56; see also Chimel v. California, 395 U.S. 752 (1969).

Ark. Rule 12.4(a) and (b) of the Rules of Criminal Procedure sets out the search-incident doctrine as follows:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

Here, unlike the circumstances in Coolidge, the accused Fultz was outside his house in his carport where his car was parked when he was arrested, searched, and was found with marijuana in his pocket. When asked if he had any guns, he said yes and said he thought a derringer might be in his car. At this stage of Fultz’s arrest, officers had found marijuana on Fultz’s person, knew he probably had a gun in his nearby parked car, and also had two-day-old information that Fultz used his car to transport drugs into the state. Consequently, these circumstances reasonably justified a belief on the part of the officers that the car contained things which were connected with the offense for which the arrest was made.

We simply do not agree with Fultz’s contention that, even though he may have been standing close to his car when he was arrested, it is not reasonable to conclude that the interior of his car was within his immediate control. The rule, of course, required him to be in the “immediate vicinity” of his vehicle of which he was in “apparent control.” The evidence reflects these factors were met, along with proof showing the arresting officers had a reasonable belief justifying Fultz’s car contained drugs and a gun, since they knew Fultz used the car to transport drugs and he told the officers he thought one of his guns ■— a derringer — was in the parked car.

Finally, we again point out that Fultz does not question the validity of his arrest or the State’s search and seizure of a large amount of illegal drugs found in his possession. He only attacked the validity of the officers’ warrantless search that produced Fultz’s firearms, which were used to convict him of the two charges of simultaneous possession of controlled substances and criminal use of a prohibited weapon. Because we hold the trial court was correct in finding the officers’ warrantless search of Fultz’s car, producing an illegal sawed-off shotgun, valid, we necessarily conclude the evidence was sufficient to sustain the two convictions challenged in this appeal. Accordingly, we affirm.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Billy Richard MARTS II v. STATE of Arkansas
    CR 97-1212
    968 S.W.2d 41
    Supreme Court of Arkansas
    Opinion delivered April 23, 1998

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Billy Richard Marts II appeals the judgment of the Sebastian County Circuit Court convicting him of possession of a contr oiled substance (methamphetamine) with intent to deliver, a Class Y felony, and possession of drug paraphernalia, a Class C felony, and sentencing him to concurrent terms of life and three years’ imprisonment, respectively. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant raises three points for reversal, contending that the trial court erred (1) in admitting into evidence a statement given by Appellant and a notebook seized from him at the time of his arrest; (2) in allowing an officer to testify as to the ultimate issue of whether Appellant had possessed the drugs with the intent to deliver them; and (3) in denying Appellant’s motion for directed verdict on the issue of the weight of the drugs. We find no error and affirm.

The record reflects that on December 13, 1996, Detective Wayne Barnett of the Fort Smith Police Department, Narcotics Division, received a tip from a confidential informant (Cl) that a person named “Bo” was going to make a trip to Dallas, Texas, to pick up a large quantity of methamphetamine, and that he would be returning to Fort Smith either that night or the following morning. The following day, Barnett received information from the Cl that “Bo” was back in town, that he was in possession of a large quantity of methamphetamine, and that he was on his way to a tire shop located on 6th Avenue in Fort Smith. The Cl told the officer that “Bo” would be carrying the drugs in the inside pocket of his coat, and that he would be driving a red extended-cab GMC pickup truck that had a big blue air compressor on the back of it. The Cl also gave the officer the license plate number of the truck. Barnett then informed other officers to be on the lookout for the vehicle. Shortly thereafter, one of the other officers spotted the vehicle and stopped it.

When Barnett arrived, he told the suspect, later identified as Appellant, that he had reason to believe that he was in possession of a large quantity of methamphetamine. Barnett observed that Appellant’s coat was sagging down on one side, as if something heavy was in the pocket. Barnett reached inside the pocket and pulled out a Payless Cashways sack that contained a large amount of suspected methamphetamine and a glass pipe with burnt residue on it. When Barnett asked Appellant how much was in the bag, Appellant replied, “about a pound.” Appellant was subsequendy charged with and convicted of possession of methamphetamine with intent to deliver and possession of drug paraphernalia and was sentenced to fife imprisonment.

Discovery Violations

For his first point for reversal, Appellant argues that the trial court erred by admitting into evidence an oral statement given by him and a notebook seized from him on the date of his arrest. Appellant contends that he was not provided discovery of this evidence prior to trial, despite the fact that he had filed a motion pursuant to A.R.Cr.P. Rule 17.1. We do not reverse on this point, as Appellant did not raise this issue at the first opportunity, nor has he demonstrated that he was prejudiced by the evidence.

A party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). The policy reason for this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id. Similarly, objections to discovery violations must be made at the first opportunity in order to preserve them for appeal. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996).

Here, Appellant filed a pretrial motion to suppress the evidence, including any and all statements made by him at the time of his arrest. A suppression hearing was conducted on the morning of the trial, during which Detective Barnett testified that he had read Appellant his Miranda rights and had proceeded to interview him about the possibility of cooperating with police in drug investigations. Barnett stated that Appellant indicated that he would consider working with the police if Barnett would agree to (1) shred the statement-of-rights form and all other paperwork on Appellant’s case, (2) return the pound of “crank” to Appellant, and (3) release Appellant without filing any charges against him. Barnett stated that he did not agree with those conditions; he then terminated the interview and booked Appellant. At no point during direct examination of Barnett, or at any other time during the suppression hearing, did Appellant object to the statement on the ground that he had not been provided discovery of it. To the contrary, Appellant’s sole argument for suppression of the evidence was the lack of reliability of the confidential informant.

Likewise, when the officer took the stand during trial, Appellant only objected to the alleged discovery violations after some prodding from the trial court. That colloquy is as follows:

Mr. Watson:
Q. Okay. Detective Barnett, did you read him his rights?
A. Yes, I did.
Q. And did he go over the rights form with you?
A. Yes, I [sic] did. I have it here.
Q. Did he sign that?
A. No, he initialed beside each one of them, which is kind of — goes into what he said to me and why he said it or how he said it to me. With this — with an Interrogation, Advice of Bights Form, that I read to somebody, whenever I sit down and read them their rights, I ask them several questions or a couple of questions —
The Court: Let’s come up just a moment.
The Court: Why are we going into this when there weren’t any statements made?
Mr. Watson: Well, he did make some statements, after initialling, you know, that he would cooperate with the police if they would, in turn, give him the drugs back and —
The Court: Oh, okay.
Mr. Watson: — and remove all evidence that he was being arrested.
The Court: Mr. Settle, you didn’t move to strike any statements he made or suppress, I mean?
Mr. Settle: Well, of course, I moved to suppress all evidence seized, and that would include the statement, Your Honor —
The Court: All right.
Mr. Settle: — because it was seized following the arrest, which we have contended was —
The Court: All right.
Mr. Settle: — illegal.
The Court: All right. Okay.
Mr. Settle: See what I’m saying.
The Court: but that’s fine. Well, I didn’t get that from your motion,
Mr. Settle: It would have to be, Your Honor, because the initial stop is illegal.
The Court: Well, you’re not saying there was anything wrong with the advice of rights, you’re just saying they just should never should have stopped him, to begin with?
Mr. Settle: Right. But since you brought it up, Your Honor, I would notice you that I have not seen a copy of this; it’s not in the prosecutor’s file, and there’s a lot of information that is not in the prosecutor’s file, if I’m not mistaken, and I believe I filed my motion for discovery several weeks ago.
The Court: Well, Mr. Settle, you didn’t follow up on it.
Mr. Settle: I don’t believe that’s my responsibility. I believe that, you know, the State takes great pride in having an open-file policy. That’s just wonderful, but if it’s not in their file, then it’s not available to defense counsel. Again, these files —
The Court: I didn’t call you up here to discuss discovery, Mr. Settle. I called you up here to find out, I didn’t think any —
Mr. Settle: I understand that, Your Honor, but I just want to tell the Court that I’m going to object to the statement of rights form because it was not in the prosecutor’s file. It’s not been made available to me.
Mr. Watson: Your Honor, any documents or police reports, that I’m going to refer to, today, the Advice of Rights Form, to my knowledge, has been in the State’s file for at least a period of two months.
Mr. Settle: I didn’t see it yesterday among the things that I —
The Court: Mr. Settle, if you want to make a discovery objection about it, you may be [sic] so, but I’m going to hold that you weren’t diligent.
Mr. Settle: Your Honor, let me put it to you this way, in all candor, it’s not so much that I care about the right’s form, but there may be other items, that I know were not in the State’s file, and that’s what I’m concerned about, and that may be coming down the pike, and that’s what I’m concerned with, if the Court really wants to know.
Mr. Watson: If you’d like to take a recess, I can show him everything I have, just to make sure.
The Court: Let’s move along. [Emphasis added.]

It is thus apparent that Appellant’s discovery objection was that the statement-of-rights form was not in the State’s file prior to trial; Appellant did not argue that he had no knowledge or notice of the statement itself. It is equally apparent that his objection was actually directed to making sure that the State’s file did not contain any surprises that may have been brought up at a later time. Moreover, when asked by the trial court if he wanted a hearing on the issue, defense counsel did not indicate that such a hearing was necessary.

We are persuaded by the trial court’s reasoning that a defendant must be diligent in raising objections to alleged discovery violations. The fact that Appellant chose to wait until trial to make an objection, and then only in response to inquiries made by the trial court, demonstrates that he was not diligent in bringing the matter to the court’s attention. Although we do not necessarily agree with the trial court’s holding that Appellant had the duty to seek a motion to compel discovery from the State, we do agree that Appellant had the duty to bring such alleged discovery violations to the court’s attention at the first opportunity. Here, the objection should have been made during the suppression hearing, prior to the beginning of the trial, so that the trial court would have had the opportunity to take such measures to protect Appellant’s right to access to the State’s evidence. The objection was thus not timely. The same can be said for the objection to the notebook.

Appellant argued below that the notebook, along with a printout from a calculator, seized from him at the time of his arrest was not present in the State’s file prior to trial and, as such, he claimed he had no notice of the evidence. The notebook contained documentation of various dollar figures, some of which had been reduced, with initials beside them. Similarly, the calculator tape contained persons’ initials written beside each one of the printed dollar figures. The State contended that the notebook was evidence on the issue of Appellant’s intent to deliver the methamphetamine, as some of the initials corresponded to persons that Detective Barnett had previously arrested. As with the rights form, Barnett testified during the suppression hearing that he had seized the notebook and tape from Appellant at the time of his arrest. Barnett also described their contents during the suppression hearing. Appellant did not object to the evidence at any time during the hearing.

At trial, the State argued that, although the notebook itself was not contained in the State’s file, its receipt was referred to in the police reports as “other papers.” The trial court responded that defense counsel could have gone to the police evidence locker and looked at the papers had he wanted to do so, since he was put on notice that the police had recovered “other papers” from Appellant. As with the rights form, defense counsel again responded that it was not Appellant’s duty to investigate such evidence, but that it was the sole responsibility of the prosecutor to provide that evidence as discovery. Again, the trial court ruled that Appellant had not been diligent in bringing the evidentiary deficiency to the court’s attention, such that the trial court could have compelled disclosure of this item. The trial court ruled that because the reports indicated that such evidence had been seized, Appellant had a duty to inspect it.

For the reasons stated above with regard to the rights form, we conclude that the trial court did not abuse its discretion in allowing the State to present this evidence, as Appellant failed to object at the first opportunity. A defendant cannot rely on discovery as a total substitute for his or her own investigation. Donihoo v. State, 325 Ark. 483, 931 S.W.2d 69 (1996); Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). This is particularly true where, as here, Appellant was notified that the police had recovered some papers from him at the time of his arrest.

Notwithstanding the procedural defect in Appellant’s argument, we would still affirm the trial court’s ruling, as Appellant has failed to demonstrate that he was prejudiced by it. When evidence is not disclosed pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). If the prosecutor fails to comply with discovery requirements, the trial court may order compliance, grant a continuance, exclude the evidence, or order any other appropriate relief. Id. Though information held by police officers is imputed to the prosecuting attorney, a failure to disclose that information will not warrant a reversal of a conviction absent a showing of prejudice. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). Prejudice does not exist when the defendant already has access to the information that the State did not disclose. Id.

Because there was other substantial evidence to convict him of the charges, Appellant has failed to demonstrate that he was prejudiced by the admission of the evidence in question. In determining whether there was substantial proof of a defendant’s intent to deliver, we need look no further than the amount of the drug recovered from the defendant’s possession. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). The chemist from the state crime lab testified that the aggregate weight of the methamphetamine was 431.9 grams. Appellant admitted to Detective Barnett that there was “about a pound” of the substance seized from him on the morning of his arrest. Possession of more than two hundred milligrams of methamphetamine gives rise to a presumption of intent to deliver. Ark. Code Arm. § 5-64-401 (d) (Repl. 1997); Owens, 325 Ark. 110, 926 S.W.2d 650. The jury was instructed that they could consider the quantity of the drug possessed in determining Appellant’s intent. Thus, because the jury determined that Appellant possessed methamphetamine in an amount in excess of the statutory presumption, the evidence is sufficient to support his conviction. Id.

Accordingly, we cannot say that the admission of Appellant’s statement and the notebook and calculator tape prejudiced his case to the extent that they undermined the confidence in the outcome of the case. Moreover, we cannot say that Appellant had no knowledge of the existence of this evidence, as both the statement and the notebook were taken from him. Appellant has thus failed to demonstrate that the trial court committed reversible error in permitting Detective Barnett to testify about the contents of the oral statement and the documents.

Opinion Testimony

For his second point for reversal, Appellant argues that the trial court erred in allowing two of the State’s witnesses to testify concerning the delivery and sale of methamphetamine generally and the significance of the way in which the drugs seized from Appellant were packaged. Specifically, Appellant asserts that this testimony was improperly elicited by the prosecutor as opinion testimony on the ultimate issue of the case — whether Appellant intended to sell the drugs.

During Detective Barnett’s direct examination, the prosecutor asked him if, through his experience in the narcotics unit, he was familiar with how methamphetamine is normally bought and sold on the street. Defense counsel stated: “Objection, Your Honor.” The trial court responded that the witness could testify as to how the drug is packaged whenever he finds it. Barnett then proceeded to discuss the various ways in which the drug was packaged, including common quantities in which methamphetamine is sold, with no further objection from Appellant.

Detective Paul Smith, a narcotics officer with the Fort Smith Police Department and a task force officer with the federal Drug Enforcement Administration (DEA), testified as to the significance of the quality and quantity of the drugs seized from Appellant. Specifically, the prosecutor asked Smith whether, in his experience, it is unusual to find methamphetamine sixty-seven to sixty-eight percent pure, to which Smith responded “Yes.” After Smith answered the question, defense counsel stated: “Your Honor, I’m going to object to that line of questioning.” The trial court overruled the objection. Later on, during Smith’s direct examination, the following exchange occurred:

Mr. Watson:
Q. Mr. Smith, what is the — based on your experience, your training as a narcotics officer, what is the significance to you of a quantity of fifteen ounces or a little bit more of methamphetamine?
Mr. Settle: Objection, Your Honor.
The Court: Be overruled.
Mr. Settle: Note my exceptions, please.
A. This quantity of methamphetamine would indicate an individual, who is trafficking in methamphetamine.
Mr. Watson:
Q. What leads you to that conclusion?
A. I’m led to that conclusion based upon two factors: one, the amount of drugs that were found or seized, and the other is the quality of the methamphetamine recovered.

Appellant now argues that it was error for the trial court to allow these officers to give such opinion testimony. In both instances, however, Appellant only generally voiced objections, without ever having offered any authority or specific grounds for them. In Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996), this court made clear that a specific objection is necessary in order to preserve an issue on appeal:

When the testimony was presented, counsel for the defense merely said “objection.” The Prosecutor responded that he did not know of any basis for the objection other than that the defense did not want to hear the evidence. The Court said “overruled,” and counsel did not mention a ground of objection or any authority for it. The Trial Court was thus not informed as to the nature of the objection. Absent a specific objection informing the Trial Court of the nature of the error alleged on appeal, we do not reverse. Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995).

Id. at 24, 931 S.W.2d at 78.

Because Appellant failed to make a specific objection to the officers’ testimony, we will not reverse. We are not persuaded by Appellant’s contention on appeal that the grounds for the objections are obvious from the context in which they arose. Appellant urges that, with regard to Detective Smith’s testimony, the only ground upon which he could have been objecting was that the testimony impermissibly went to the ultimate issue of the case — whether Appellant had intended to sell the drugs. It is not apparent that this argument is well taken, given the expert nature of the officer’s testimony; the objection could have easily been construed to have been directed at the lack of foundation of the officer’s credentials or qualifications to testify to such an opinion at ah.

Furthermore, even if this point had been preserved for our review, we would nonetheless affirm the trial court’s decision to admit the testimony. The decision whether to admit relevant evidence, opinion testimony or otherwise, rests in the sound discretion of the trial court, and our standard of review of such a decision is abuse of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, 116 S. Ct. 1436 (1996). Rule 704 of the Arkansas Rules of Evidence provides that “[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” This court has recognized that the trend of authority is not to exclude opinion testimony because it amounts to an opinion on the ultimate issue. See, e.g., Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). Such opinion testimony is admissible provided that it does not mandate a legal conclusion. Id. This court has previously drawn the fine distinction between an admissible opinion that “touches upon the ultimate issue” and an opinion, not admissible, that “tells the jury what to do.” Salley v. State, 303 Ark. 278, 283, 796 S.W.2d 335, 338 (1990) (citing Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981)).

Here, the two officers testified about their experience in the way in which methamphetamine is normally packaged and sold. Detective Smith stated that based upon his experience as a narcotics officer, the quantity of the drugs (in excess of fifteen ounces) and their quality (sixty-seven to sixty-eight percent pure methamphetamine) indicated to him an individual who was trafficking in narcotics. Such testimony was proper given that the State bore the burden of proving that Appellant had possessed the methamphetamine with the intent to deliver it. In Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996), this court upheld the trial court’s decision to allow the officer’s testimony concerning the normal level of purity of narcotics on the streets in that area and the market value of the drugs recovered from the defendant. This court held:

A trial judge’s ruling on relevancy issues will not be disturbed absent an abuse of discretion. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). It is true that the weight of the drugs creates a presumption of intent to deliver. However, since the presumption is not conclusive, the State may offer additional evidence on the issue of intent to deliver. See also Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).

Id. at 847, 936 S.W.2d at 504.

The testimony did not mandate a legal conclusion, nor did it tell the jury what to do. It was thus within the trial court’s learned discretion to allow the State to present testimony from the two officers, who were experienced in the investigation of narcotics, as to the significance of the evidence seized from Appellant.

Directed- Verdict Motion

For his last point for reversal, Appellant argues that the trial court erred in denying his motion for a directed verdict on the issue of the weight of the methamphetamine. Appellant contends that because the chemist mistakenly testified that 111.1 grams of the total 431.9 grams was cocaine hydrochloride, as opposed to methamphetamine hydrochloride, the trial court erred in submitting to the jury the issue of whether the aggregate weight of the controlled substances was between 200 and 400 grams or exceeded 400 grams.

The State presented testimony from Jerry Buck, a chemist at the Arkansas State Crime Laboratory. Buck stated that he weighed and tested the drugs seized from Appellant, which were contained in three separate packages. One package weighed 220.9 grams and contained methamphetamine hydrochloride (sixty-five percent pure) and nicotinamide, a cutting agent used to make the drugs go further. Another package weighed 99.9 grams and contained methamphetamine hydrochloride (sixty-eight percent pure) and nicotinamide. The last package, with which Appellant takes issue, weighed 111.1 grams and contained methamphetamine hydrochloride (sixty-seven percent pure) and nicotinamide. The drugs had an aggregate weight of 431.9 grams. Regarding the package in question, Buck testified as follows:

A. Okay. Then, the next thing I did, after removing my sample from it, was to do a screen test on it, which is just to give me an indication of what the drug in here might be. That indicated that it was possibly either methamphetamine or amphetamine.
The next step I did on this exhibit was to do a thin-layer chromatography, which is a test where I compare known standards to my unknown, to — to see how they compare. The thin-layer showed that it was methamphetamine and that there was some nicotinamide with the methamphetamine.
The next test I did was the infra-red, which showed that — it also showed that it was methamphetamine hydrochloride with some nicotinamide present.
I then performed the mass spectra test, which is a specific test that identified methamphetamine and nicotinamide.
The next test I performed on this exhibit was the quantitative analysis, which the results, it was sixty-seven percent cocaine hydrochloride. [Emphasis added.]

At the conclusion of Buck’s direct examination, the prosecutor asked the chemist to state the total weight of the methamphetamine, to which Buck responded that it was 431.9 grams.

Appellant moved for a directed verdict on the issue of the aggregate weight of the controlled substance. Appellant reasoned that because Buck stated, albeit mistakenly, that 111.1 grams of the drugs contained sixty-seven percent cocaine hydrochloride, there could be no question of fact that the total weight of the drugs was between 200 and 400 grams. The trial court denied the motion, stating, “I heard him say that, but I think he corrected himself later.” Appellant now contends that the trial court erred in submitting the issue of the aggregate weight of the drugs to the jury. We disagree.

Variances and discrepancies in the proof go to the weight or credibility of the evidence and are, therefore, matters for the factfinder to resolve. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). Accordingly, when there is evidence of a defendant’s guilt, even if it is conflicting, it is for the jury as factfinder to resolve any conflicts and inconsistencies; it is not for the court to resolve on a directed-verdict motion. Id. Here, Buck stated no less than three times that the substance in the package in question was methamphetamine. The fact that on one occasion he mistakenly referred to the substance as cocaine does not warrant a directed verdict on the issue of the aggregate weight of the drugs. It was thus proper for the trial court to deny the motion and submit the issue to the jury.

Rule 4-3 (h)

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 errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.


author: Robert L. Brown, Justice.

text:
    COUNTRY CORNER FOOD AND DRUG, INC. v. FIRST STATE BANK and TRUST COMPANY of Conway, Arkansas, Tommy Watson and Virgil C. Shannon
    97-608
    966 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered April 23, 1998

      Streett & Coutts, by: Alex G. Streett, for appellant.

      Graddy &Adkisson, P.A., by: William C. Adkisson, for appellee First State Bank & Trust Co.

      Brazil, Adlong, Murphy & Osment, by: Matthew W. Adlong, for appellees Watson and Shannon.
   Robert L. Brown, Justice.

This case arises out of a business loan for operating capital made by appellee First State Bank and Trust Company of Conway, Arkansas (Bank) to appellant Country Corner Food and Drug, Inc. (Country Corner). In 1987, Charles Pitman and Douglas Horton and appellees Tommy Watson and Virgil C. Shannon were all shareholders in two corporations. The corporations owned and operated two grocery stores named Perry County Food & Drug and Country Corner Food & Drug. The corporations were named Perry County Food & Drug, Inc., and Country Corner Food & Drug, Inc. A swap agreement was made among the shareholders to divide the shares of the two corporations, where Watson and Shannon would become sole shareholders in Perry County Food & Drug, Inc., while Pitman and Florton would be the sole shareholders of Country Corner Food & Drug, Inc. Country Corner would lease the property for its grocery store from Watson and Shannon.

In furtherance of the swap agreement, on March 17, 1988, Country Corner obtained a loan from the Bank for one year in the amount of $194,734 for the purpose of financing inventory. Because Country Corner and Pitman and Horton were unable to obtain this financing on their own, Watson and Shannon and their spouses signed the promissory note as guarantors. When the promissory note came due on March 17, 1989, Watson and Shannon refused to sign the new note as guarantors, and the Bank declined to renew the note. Country Corner failed to satisfy the debt in accordance with the terms of the note, and the Bank foreclosed on the note and collateral.

On July 18, 1989, Watson and Shannon filed a suit in chancery court against Country Corner and prayed that the court appoint a receiver to prevent Pitman and Horton from selling off the inventory of Country Corner and, thus, depleting the collateral for the Bank loan. The Bank intervened claiming an interest in the same property. Country Corner then filed an action in circuit court against the Bank and Watson and Shannon and asserted several causes of action in tort. On August 17, 1989, the chancery court appointed a receiver who ultimately sold the Country Corner store and its assets. Watson and Shannon next paid the balance due under the note pursuant to their guaranty agreement. What remained to be litigated in circuit court were the causes of action in tort filed by Country Corner against the Bank and Watson and Shannon.

On August 6, 1992, the circuit court granted a motion to dismiss Country Corner’s complaint against all appellees on the grounds that Country Corner had failed to plead sufficient facts to state a claim under Ark. R. Civ. P. 12(b)(6). On August 20, 1992, Country Corner filed an amended complaint, and appehees again moved to dismiss. By order dated October 1, 1992, the circuit court granted the Bank’s motion to dismiss but denied the motion with respect to Watson and Shannon. Following more than a year of discovery, Watson and Shannon filed a motion for summary judgment. On December 4, 1996, the circuit court entered its order granting summary judgment. Country Corner now appeals from the two orders.

I. Bank’s Dismissal Under Rule 12(b)(6)

For its first point, Country Corner argues that its amended complaint sufficiently alleged facts to state claims against the Bank. The Bank counters that the amended complaint against it was properly dismissed because it was not timely filed, and even if it was, Country Corner faded to plead sufficient facts under Ark. R. Civ. P. 12(b)(6).

We conclude that Country Corner’s amended complaint was timely filed within the ten days allowed by the circuit court. Rule 6 of the Arkansas Rules of Civil Procedure states that “[w]hen the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation.” The order of dismissal was filed on August 6, 1992, and the amended complaint was filed on August 20, 1992, exacdy 10 days later, excluding weekend days. We will, as a result, review the appeal on the merits.

This court has often stated the standards to be applied in reviewing a dismissal order under Rule 12(b)(6):

In reviewing a trial court’s decision on a motion to dismiss under Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); 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). In deciding dismissal motions, the trial court must look only to the allegations in the complaint. Neal v. Wilson, supra; Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). In order to state a cause of action, the complaint must allege facts and not mere conclusions. Ark. R. Civ. P. 8; see also Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). When a complaint is dismissed without prejudice, the plaintiff has the option of pleading further or appealing. Hollingsworth v. First Nat’l Bank & Trust Co., supra. If the plaintiff appeals, the option to plead further is waived in the event of an affirmance by the appellate court. Id.

Hunt v. Riley, 322 Ark. 453, 457, 909 S.W.2d 329, 331-32 (1995).

Arkansas is a fact-pleading state, and this court looks to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997). Country Corner contends that its amended complaint included sufficient facts to support six causes of action in tort against the Bank: fraud, tortious interference with the contractual relationship or business expectancy, breach of fiduciary duty, duty to act in good faith, duress, and punitive damages. We will consider the claims seriatim.

a. Fraud

Country Corner first urges that it properly pled fraud by the Bank. We have stated that actual fraud is established by proving the existence of the following five elements: (1) a false representation, usually of a material fact; (2) knowledge or belief by the defendant that the representation is false; (3) intent to induce reliance on the part of the plaintiff; (4) justifiable rebanee by the plaintiff; and (5) resulting damage to the plaintiff. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). In order to prevail over a Rule 12(b)(6) motion, Country Corner must plead sufficient facts to support all five elements.

In paragraphs 27 through 31 of its amended complaint, Country Corner alleges that Bank representatives made false representations by stating that the 1988 promissory note in the amount of $194,734 would be renewed. In paragraph 22 of the complaint, Country Corner further alleges that the Bank informed it that the renewal note was being prepared in 1989 and that Country Corner should only pay interest on the note until the renewal note was executed.

Assuming that these allegations are true, the statements by the Bank representatives do not support an action for fraud. First, there are no facts alleged supporting an allegation that these statements by the Bank were false at the time they were made. The Bank could well have been in the process of renewing the note but decided that additional security in the form of a Watson/Shannon guaranty on the new note was warranted. Secondly, even assuming that the Bank knew the statements were false, there are no facts pled by Country Corner to show justifiable reliance on its part. In fact, there was no reason for Country Corner to rely on these statements to its detriment. The statements allegedly made by the Bank merely lessened Country Corner’s immediate financial burden in the interim by requiring it only to pay interest. And, again, Country Corner had to be aware that the Bank could require additional security.

Finally, even if the Bank made these statements with the intent that Country Corner rely on it, the Bank had the right to refuse to renew the loan. Country Corner pled no facts which would show that the Bank was obligated to renew the loan without the guarantee of Watson and Shannon on the new note.

b. Tortious Interference

Country Corner also claims that it has sufficiently pled a claim for tortious interference with contractual relationship or business expectancy against the Bank. Paragraphs 32 and 33 of Country Corner’s amended complaint relate to its allegations of tortious interference. Paragraph 32 incorporates the previous paragraphs of the complaint, and paragraph 33 merely states that the Bank interfered with Country Corner’s “contract advantage” by giving “assurances” and then refusing to renew the loan. Reference to the “assurances” apparently refers back to the allegations that the Bank representatives stated that the note would be renewed. Neither this section nor the previous incorporated sections indicates with what contract or with what business expectancy the Bank intended to interfere. It is elementary that some precise business expectancy or contractual relationship be obstructed by the Bank’s actions. See United Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992). That lapse is fatal to this cause of action.

c. Breach of Fiduciary Duty

Next, Country Corner claims breach of fiduciary duty by the Bank. In paragraph 38 of the amended complaint, Country Corner alleges that a fiduciary duty was created by the fact that the Bank’s attorney claimed to represent both Country Corner and the Bank in the creation of the loan. Country Corner contends that the duty was breached by the Bank’s representative maintaining that it did not need separate counsel and by the Bank’s providing a loan for such a large sum of money on a one year balloon note to an unsophisticated borrower.

This court has emphasized the necessity of factual underpinnings to establish a relationship of trust and confidence between a bank and its customers which is more than a debtor/ creditor relationship. Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992). See also, Marsh v. National Bank of Commerce, 37 Ark. App. 41, 822 S.W.2d 404 (1992). We do not agree that the allegations in this case meet that essential threshold. Lack of sophistication and the alleged advice not to seek independent counsel at best may have resulted in Country Corner’s being misled, but these facts do not create a fiduciary relationship. We find no merit to this point.

d. Good Faith

Paragraphs 40 through 43 of the amended complaint deal with Country Corner’s claim that there was a tortious breach of the implied covenant of good faith and fair dealing. Only paragraph 41 pertains to the actions of the Bank, and that allegation, once more, is that the Bank made representations to Country Corner that the note would be renewed each year but that the Bank had no intention of doing so.

Country Corner relies on Gordon v. Planters & Merchants Bankshares, 326 Ark. 1046, 935 S.W.2d 544 (1996), to establish the tort of a breach of a duty to act in good faith. Yet, in Gordon, this court considered the duty of good faith as set out by Ark. Code Ann. § 4-1-203 (Repl. 1991), only in terms of considering whether punitive damages were allowable in that case. Furthermore, this court has recognized the affirmative tort of bad faith only against insurance companies. See, e.g., Affiliated Foods Southwest, Inc. v. Moran, 322 Ark. 808, 912 S.W.2d 8 (1995); American Health Care Providers, Inc. v. O’Brien, 318 Ark. 438, 886 S.W.2d 588 (1994); Quinn Cos. v. Herring Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989); Aetna Casualty & Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983).

Country Corner concedes that the tort of bad faith only applies to insurance companies but argues that this case is not a bad-faith case but rather is one for breach of the duty to act in good faith. The corporation claims that this duty is created by Ark. Code Ann. §4-1-203 (Repl. 1991) and §4-1-201(19) (Supp. 1997):

4-1-203. Obligation of good faith.
Every contract or duty within this subtide imposes an obligation of good faith in its performance or enforcement.
4-1-201. General definitions.
(19) “Good faith” means honesty in fact in the conduct or transaction concerned.

The fact that every contract imposes an obligation to act in good faith does not create a cause of action for a violation of that obligation, and, as discussed above, this court has never recognized a cause of action for failure to act in good faith. Country Corner adduces no authority or argument for why this court should now recognize a new tort for failure to act in good faith or how such a recognition can be reconciled with our previous case law which only recognizes the tort of bad faith against insurance companies. Without a cogent reason supported by convincing authority for taking this step, we decline to recognize this new tort in Arkansas. J. & J. Bonding, Inc. v. State, 330 Ark. 599, 955 S.W.2d 516 (1997) (holding that when a party does not cite authority or make a convincing argument and it is not apparent without further research that the point is well taken, this court will affirm).

e. Duress

We also refuse to recognize an independent tort for duress. Here, Country Corner appears to claim that the duress or coercion exercised by the Bank forced it to fail to stock the grocery store properly. Although it cites Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993), as providing the basis for the tort of duress, Country Corner concedes that duress is “not ordinarily recognized as an offensive doctrine.” Country Corner cites no cases to support our recognition of the tort of duress, nor does it present a valid argument for why this court should now recognize the tort.

In addition, the facts pled by Country Corner in support of a new cause of action for duress do not meet its own definition. This court in Cox stated that in order to show duress, one must show that the duress resulted from the “wrongful and oppressive conduct, and not by his own necessity.” If the Bank had the right to deny the renewal, such an action cannot have been wrongful and oppressive. Again, Country Corner pleads no facts to show that the Bank was required to renew the note or that the failure to renew it was an attempt to force Country Corner to do or refrain from doing a particular act. Thus, even if we were of a mind to recognize this new tort, which we are not, facts showing coercion have not been pled. There is no factual basis for this cause of action.

f Punitive Damages

Finally, Country Corner claims to have stated a claim for punitive damages. However, all parties agree that such a claim is dependent on the existence of an underlying compensatory claim. Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992). The trial court correctly dismissed this claim due to the absence of any viable compensatory claims.

II. Summary Judgment

Country Corner’s second point is that the circuit court erred in finding that there were no material issues of fact in its case against appellees Watson and Shannon. It maintains that if any material fact question exists with respect to any element of any tort alleged, the case must be tried. See Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). We first emphasize that allegations in a complaint are not proof for summary judgment purposes. See Wheeler v. Phillips Development Corp., 329 Ark. 354, 947 S.W.2d 380 (1997); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997); Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). We fail to glean a material fact issue with respect to any of the claims asserted against Wilson and Shannon, and we affirm on this point as well.

In its order for summary judgment, the trial court first found that Country Corner’s allegations were predicated on Watson’s and Shannon’s failure to guarantee a new note and that the two guarantors had paid the Bank the balance due on the note which was the subject of the guaranty agreement. The court then concluded that Watson and Shannon had no obligation to guarantee a new note in 1989 for two reasons. First, guarantors are favored in the law and the terms of any guaranty agreement should be strictly construed in their favor. Arkansas Industrial Dev. Comm’n v. Fabco, 312 Ark. 26, 847 S.W.2d 13 (1993). Secondly, the language of the Loan and Guaranty Agreement between the parties dated February 20, 1987, placed no obligation on Watson and Shannon to sign a renewal note. Indeed, the pertinent language of that agreement contemplated that the guarantors would be liable for any renewals of the note:

This guaranty is and shall remain unqualified and unconditional, and shall apply to any and all obligations owed or to be owed by Country Corner, and any and all renewals and/or extensions thereof, with or without notice unto guarantors, and shall in all things remain unaffected by the occurrence or non-occurrence of any event of any nature other than payment in full of all indebtedness owed by Country Corner to bank.

We agree with the trial court. The above-quoted language makes it clear that Watson and Shannon were liable for the debt evidenced by a renewal note irrespective of whether they actually sign a renewal note as guarantors. Thus, there was no need for them to sign one. Nevertheless, the Bank was perfectly within its rights to request their guarantee on the renewal note as additional security and to refuse to renew the note in the absence of a new guaranty agreement.

The only evidence presented by Country Corner to show that Watson and Shannon had an obligation to sign a renewal note as guarantors was the deposition testimony of two Bank officers who testified that in accordance with the original agreement, the Bank would not extend the note without the guarantee of Watson and Shannon. But all this testimony does is underscore the fact that the Bank required a new guarantee of Watson and Shannon in order to extend the note. It does not prove that Watson and Shannon had a duty or an obligation to sign a renewal note under any written agreement with Country Corner, even though they may well have been liable for any note renewals under the terms of the Loan and Guaranty Agreement. In sum, there is no written document or other proof that Watson and Shannon ever agreed with Country Corner to guarantee a renewal note. Nor do we give any credence to Country Corner’s assertion that there is a material fact question about whether Watson and Shannon acted in good faith.

Finally, Country Corner urges that Watson’s and Shannon’s failure to guarantee the renewal note was motivated by an effort to force Country Corner to pay a debt to a third party and that this constitutes fraud and intentional interference with the loan. However, if Watson and Shannon had no duty or obligation by agreement with Country Corner to sign the new note as guarantors, their motives for refusing to do so are irrelevant.

We hold that the circuit court did not err in its order of summary judgment.

Affirmed.

Newbern, J., not participating.

       By order of October 23, 1989, Country Corner’s tort action was transferred and consolidated with the action filed by Watson and Shannon in chancery court. On May 3, 1991, Country Corner’s action was transferred back to circuit court.


author: Annabelle Clinton Imber, Justice.

text:
    Nelson MURDERS, Jr., Lester Bates, Vernon Blake, and James Stark v. GARLAND COUNTY, Arkansas, and Larry Williams, as Garland County Judge
    97-871
    966 S.W.2d 900
    Supreme Court of Arkansas
    Opinion delivered April 23, 1998
    [Petition for rehearing denied June 4, 1998.]

      Hurst Law Office, P.A., by: Q. Byrum Hurst, for appellant.

      Ralph C. Ohm, for appellee.
   Annabelle Clinton Imber, Justice.

At the center of this appeal are a number of ordinances enacted by the Garland County Quorum Court creating and implementing a new solid waste collection system for unincorporated areas of the county. The County excluded Hot Springs Village from required participation in the system. Following the initiation of a declaratory judgment action by the appellants, the trial court granted summary judgment to the County, upholding the constitutionality of the ordinances. Among other things, appellants now contend that the exclusion of Hot Springs Village constitutes a denial of equal protection of the laws. Appellants also argue that the trial court erred in granting summary judgment in that material facts were in dispute and that summary judgment was premature as they were entitled to more discovery. Pursuant to Ark. Sup. Ct. R. 4-2(b), we affirm due to appellants’ flagrantly deficient abstract.

In their brief, appellants purport to challenge the constitutionality of five separate ordinances, yet have failed to abstract any of them. See Blount v. Hughes, 292 Ark. 166, 728 S.W.2d 519 (1987) (appellants sought mandamus challenging statutory validity of municipal ordinances — abstract was flagrantly deficient due to failure to abstract ordinances despite portions of ordinances contained in appellants’ brief). Only two sentences from an ordinance can be found in the abstract (contained in the abstract of appellants’ complaint), although the specific ordinance is not identified.

The other remarkable deficiency of appellants’ abstract, considering that this is an appeal from the grant of summary judgment, is the failure to abstract any of the evidence' in the case, including affidavits that were submitted by parties on both sides. Without the benefit of such evidence, it is impossible for the court to determine if genuine issues of material fact exist, or if summary judgment was granted prematurely.

The reason for our rule is one of practicality in that there is only one transcript to be spread among seven members of the court. See Oliver v. Washington County, 328 Ark. 61, 940 S.W.2d 884 (1997). It is impossible for each of the seven judges to examine the one transcript. Id. Given the state of appellants’ abstract, we are precluded from an understanding of the issues on appeal. See Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997).

Affirmed.


author: Per Curiam.

text:
    Casey MATTHEWS v. STATE Of Arkansas
    CR 97-461
    966 S.W.2d 888
    Supreme Court of Arkansas
    Opinion delivered April 23, 1998

      Gardner Law Firm, by: Charles J. Gardner, for appellant.

      Winston Bryant, Att’y Gen., by: Darnisa Evans Johnson, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1990, the appellant, Casey Matthews, pleaded guilty to one count of burglary and one count of theft of property. He was sentenced to twenty years with thirteen years suspended on the burglary charge, and ten years with ten years suspended on the theft of property charge. The court ran the sentences concurrently. In 1995, he was charged with aggravated assault after he allegedly threatened his girlfriend with a butcher knife. The filing of the aggravated assault charge caused the prosecutor to seek a revocation of the suspended sentence that Matthews received for the burglary conviction. The suspended sentence was revoked, and Matthews was sentenced to ten years on the burglary conviction from 1990.

In 1990, when Matthews pleaded guilty to the burglary charge, Arkansas Criminal Procedure Rule 37 had been abolished and replaced with Arkansas Criminal Procedure Rule 36.4. Under Rule 36.4, claims of ineffective assistance of counsel had to be raised in a motion for a new trial within thirty days of the judgment. Matthews apparently did not file such a motion, but sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal court. The Federal District Court for the Eastern District of Arkansas ordered that a writ of habeas corpus would issue unless Matthews was given an opportunity to pursue his ineffective assistance of counsel claim in state court.

Pursuant to the federal court order, Matthews filed a motion to vacate his guilty plea in the Circuit Court of Mississippi County. In the motion, Matthews alleged that he did not receive effective assistance of counsel at the time he entered his guilty plea. The Circuit Court denied relief. Matthews now appeals that order.

Matthews’s court-appointed counsel has filed a motion to withdraw and a brief stating there is no merit to the appeal. Counsel has filed the motion and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j). Under the Rule, a court-appointed attorney who wishes to withdraw from an appeal must abstract and brief all of the rulings that were adverse to his client. Although such a “no-merit” brief is typically filed in a direct appeal from a judgment, we have also allowed the filing of no-merit briefs in postconviction appeals. See Riley v. State, 298 Ark. 292, 766 S.W.2d 921 (1989).

After the filing of a no-merit brief, the appellant has thirty-days to raise additional arguments in a pro-se brief. Ark. Sup. Ct. R. 4-3 (j). Matthews has not filed a brief. The State agrees that there is no merit to the appeal.

In this case, the only ruling that is adverse to Matthews is the denial of his motion to vacate his guilty plea. In the written order that was filed, the Circuit Court denied relief on the basis that Matthews’s counsel was effective, and that in any event, Matthews had not proven that he was prejudiced by the alleged deficient performance. In the no-merit brief, counsel argues that the Circuit Court’s order was not clearly erroneous. We agree.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984). A circuit court’s order denying postconviction relief will not be reversed unless it is clearly erroneous. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

Matthews was originally charged with a total of six counts of burglary and theft of property, and the prosecutor petitioned to revoke the probation that Matthews received for the conviction in 1989. According to his defense counsel, Matthews gave a full confession to each of the charges in 1990, and a portion of the stolen property was found in his possession. The outcome of Matthews’s case, even under these circumstances, was a guilty plea to only two of the charges; an agreement with the prosecutor to withdraw the application for a revocation; and concurrent sentences for each conviction with a majority of the sentences suspended. If he fulfilled the conditions of his suspended sentences, Matthews faced only seven years in prison.

It does not appear that Matthews had any complaints about his attorney’s performance until his suspended sentence was revoked in 1995. In the motion to vacate the guilty plea that was subsequently filed, Matthews alleged that his counsel was ineffective because he failed to request a psychiatric evaluation; because he failed to investigate character witnesses; because he failed to fully investigate the State’s case; and because he failed to move for a continuance.

The mental evaluation

During the postconviction hearing, Matthews testified that problems within his family caused him to be depressed during the time period spanning from the fifing of the charges to the entry of his guilty plea. He stated that he told his attorney that he was depressed, and that he had previously been under the care of a psychologist. He did not, however, specifically request that his attorney seek a mental evaluation. Matthews added that he received a mental evaluation in 1995 in connection with the aggravated assault charge, and that the diagnosis at that time was dissociative disorder and “major depression.”

According to Matthews, the depression from which he suffered in 1990 was “much worse” than in 1995, and that a mental evaluation in 1990 was necessary because he was not sufficiently competent to assist his lawyer. Matthews testified that if he had received the mental evaluation, he would have insisted on going to trial once his competency was restored.

Matthews’s defense counsel testified that he represented Matthews in 1989, when he pleaded guilty and received a sentence of five years’ probation. Also, defense counsel testified that the only indication that Matthews had any kind of physical or mental disability was Matthews’s response to a question on a standard personal history questionnaire. Apparently, Matthews originally responded that he had no prior mental or physical disabilities, but that response was later corrected to “drug-related, ‘86 and ‘87.”

We conclude that Matthews’s defense counsel was not ineffective for failing to request a mental evaluation. We have previously held that a petitioner who asserts his incompetence for the first time in a petition for postconviction relief has the heavy burden of demonstrating with facts that he was not competent at the time of trial, or, as in this case, at the time of his guilty plea. Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986). Other than Matthews’s testimony, the only indication that he suffered from any mental disability appeared on the personal history questionnaire, where it was indicated that Matthews, at least two years prior to the filing of the charges in 1990, had a “drug-related” disability. Defense counsel, moreover, testified that he had no other indication that a mental evaluation was warranted.

The character witnesses

Matthews testified that he told his attorney about several people, most of whom were family members, who could testify about his character. Matthews did not explain, during either his testimony or in his petition, what the contents of their testimony would have been and most importantly, how it would have affected his defense. Therefore, even if we assume that counsel performed deficiently by failing to investigate these witnesses, Matthews has failed to demonstrate prejudice under the two-pronged Strickland standard.

Counsel’s investigation of the State’s case

Defense counsel testified that during plea negotiations, he was aware that Matthews had confessed to all six burglary and theft of property charges, and that he had given the police the names of two juveniles who also participated in the crimes. Those juveniles, in turn, identified Matthews as their accomplice. Defense counsel also testified that he was aware that a portion of the stolen property was found in Matthews’s possession.

When asked if he was satisfied with the plea negotiations and the sentence that his client received, the attorney responded that he was pleased because a trial might have resulted in a ninety-year prison term on the six charges in 1990, and a revocation of the probation Matthews received in 1989. According to defense counsel, the revocation could have resulted in an additional thirty-year sentence.

It is clear that counsel was well aware of both the evidence the State intended to use against Matthews as well as the full extent of the punishment that his client could receive if the case went to trial. Consequendy, Matthews did not sustain his burden of proving that his defense counsel did not fully investigate the State’s case.

Lasdy, we note that while the failure to move for a continuance was included among the grounds for relief in Matthews’s motion to vacate his guilty plea, he did not allege how he was prejudiced by such a failure. Furthermore, Matthews did not introduce any evidence about the alleged failure to move for a continuance during the postconviction hearing. Consequently, no postconviction relief on this claim is warranted. Strickland v. Washington, supra.

Affirmed.


author: Per Curiam. Tom Glaze, Justice,

text:
    Charles Laverne SINGLETON v. Larry NORRIS, Director, Arkansas Department of Correction
    CR 98-218
    964 S.W.2d 366
    Supreme Court of Arkansas
    Opinion denying rehearing delivered April 23, 1998

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hitt, Deputy Att’y Gen., and Todd L. Newton, Asst. Att’y Gen., for appellee.
   Per Curiam.

Respondent Larry Norris petitions for a rehearing of this court’s decision to stay the execution of Charles Laverne Singleton pending resolution of his petition for a declaratory judgment and all necessary writs to enforce that judgment. Because the execution scheduled for March 11, 1998, was in fact stayed by this court’s order, the issue is now moot. We choose, however, to address issues of significant public interest raised in the rehearing petition that may well reoccur in the future. See Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); Thomas v. Board of Correction and Community Punishment, 324 Ark. 6, 918 S.W.2d 156 (1996).

Contrary to Norris’s assertion, we consider this case to be categorically different from the cases of Pickens v. Tucker, 316 Ark. 811, 875 S.W.2d 835 (1994), Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993), and Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992). In those cases, the issue raised was either not apposite to the Singleton facts or had already been decided. In Pickens, the point at issue solely related to executive clemency and whether the governor, who had represented the State as attorney general in Pickens’s appeal, was impartial. The period of time following our decision was sufficient for a clemency decision by the chief executive prior to the execution date. In Fairchild, we concluded that the federal district court had adequately addressed and decided the mental retardation issue, using the same definition employed in Act 420 of 1993. In Rector, we said that we could not disagree with the circuit court’s finding that there had been no change in Rector’s mental condition since his evaluation by federal authorities in 1989. Thus, we found no violation of the standard set in Ford v. Wainright, 477 U.S. 399 (1986).

We discount the State’s position that under our Singleton decision, stays of execution would now be warranted in those cases. Here, the point raised in Singleton’s petition for a stay was: Can the State forcibly medicate him for a legitimate reason when a side effect of that medication is to render him legally sane for purposes of execution? That question had not been addressed or decided in this case or in any analogous case. We concluded that the issue presented was bona fide and not frivolous, and, thus, the proceeding in circuit court was “competent.” See Ark. Code Ann. §16-90-506(a)(l) (Supp. 1997). We also concluded that the question had to be resolved prefatory to any execution. Under those unique facts, the stay was granted.

Petition denied.

Arnold, C.J., and Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. The Attorney General correctly points out that the majority opinion staying Mr. Singleton’s execution is contrary to three of this court’s earlier cases where the court denied stays. See Pickens v. State, 316 Ark. 811, 875 S.W.2d 835 (1994) (court denied stay where Pickens raised constitutional issue asserted to be pending before the U. S. Supreme Court); Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993) (court denied stay where Fairchild argued a constitutional claim of first impression concerning his incompetence to be executed; court held Fairchild was barred by doctrine of collateral estoppel from reasserting his mental retardation); and Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992) (court denied stay where Rector raised new issue pertaining to constitutionality of Ark. Code Ann. § 16-90-506(d)(1) (1987), and decision denying stay rested also on the fact that his mental condition had not changed since federal authorities previously found he was aware of the punishment about to be inflicted upon him). In each of the three prior cases — like Singleton — the petitioner requested a stay of execution, and argued a last-minute constitutional issue of first impression. Only in Singleton’s case did this court grant a stay, holding a “competent judicial proceeding” under § 16-90-506(a)(1) should be conducted because a “constitutional issue of first impression” was “ripe” for decision.

The Attorney General’s point is that death-row inmates have commonly raised last-minute constitutional issues of first impression, but, until now, have been rejected. Section 16-90-506 relied upon in the majority opinion is clear that the General Assembly intended stays of execution to be strictly limited by granting a reprieve to be given by the Governor, the Arkansas Supreme Court via a writ of error, or by any competent judicial proceeding. Here, the Governor had issued no reprieve, nor had this court issued a writ of error. Instead, this court has engrafted an expansive meaning to the words “any competent judicial proceeding” which will permit attorneys for inmates to frame constitutional issues that will compel stays. If the court would have taken the view it takes now of § 16-90-506, Pickens, Fairchild, and Rector would likely still be in court presenting legal arguments for their release. As this court stated in Rector v. State, “[E]ven death cases must come to an end.” Death sentence cases are always difficult to decide, but this case is no more unique or different than Rector’s, except this case has been in the court system longer — twenty years. I agree with the Attorney General’s position and would deny any further stay.


text:
    Marcel Wayne WILLIAMS v. STATE of Arkansas
    CR 97-949
    963 S.W.2d 221
    Supreme Court of Arkansas
    Opinion delivered April 23, 1998
    Show-Cause Order issued.

      Herbert T. Wright, Jr., for appellant.
    No response.
   Per Curiam.

Counsel for appellant Marcel Wayne Williams, who is Herbert T. Wright, Jr., moves for a “continuance” of three months in which to file appellant’s brief in a case where Williams received a sentence of death by lethal injection. In reviewing the history of this case, we note where on September 9, 1997, we granted counsel’s motion for a six-month extension in which to file appellant’s brief. When the clerk of this court, Leslie Steen, advised counsel of the extension, he noted in bold letters that this was the final extension. Under this extension, appellant’s brief was due on March 23, 1998. The State objects to any additional extension of time in which to file the appellant’s brief.

We grant the appellant an extension of thirty days from date of this order to file his brief.

Because counsel has failed to meet the deadline under a final extension for fifing appellant’s brief, he is ordered to appear before this court at 9:00 a.m. on May 7, 1998, and show cause why he should not be held in contempt.


author: David Newbern, Justice.

text:
    James Wesley JOHNSON v. STATE of Arkansas
    CR 97-144
    968 S.W.2d 51
    Supreme Court of Arkansas
    Opinion delivered April 30, 1998

      Walter G. Riddick, III, for appellant.

      Winston Bryant, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

James Wesley Johnson appeals from an order denying his petition for postconviction relief under now-superseded Rule 36.4. The drug convictions that preceded the filing of the petition occurred in May 1990 when Rule 36.4 was in effect. We affirm as Mr. Johnson’s abstract is flagrantly deficient. Ark. Sup. Ct. R. 4-2(a)(6).

The brief filed on Mr. Johnson’s behalf informs us that the hearing conducted in the Trial Court was at the instance of an order by a federal court purporting to free Mr. Johnson if he were not given a hearing. We cannot ascertain the terms of any such order because it is not included in the record before us. Mr. Johnson’s counsel characterizes this as a “no merit” appeal. It does not, however, comply with Ark. Sup. Ct. R. 4-3(j), which provides that, when an appeal is perceived by counsel to be wholly without merit, counsel may request to withdraw. The Rule continues as follows:

A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court.

Ark. Sup. Ct. R. 4-3(j)(1).

Rather than follow the format described above, Mr. Johnson’s counsel has informed the Court that he does not feel at liberty to withdraw from the case because of the federal-court order that we have not seen, and he is presenting the arguments his client wishes us to hear despite their lack of merit.

Even if we were to treat this as a “no merit” appeal, an abstract would be required. Ark. Sup. Ct. R. 4—3(j) (1). An abstract “should consist of an impartial condensation ... of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R. 4-2(a)(5). At a minimum, abstracts of basic pleadings and court orders are necessary. See King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996); Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993).

Mr. Johnson’s argument raises issues of ineffective assistance of counsel, and he questions whether it was proper for the Trial Court to give him the hearing he apparently sought in the federal court. His abstract contains neither his petition for relief nor the Trial Court’s order denying it, to say nothing further about the missing federal court order. The State has quoted portions of the Trial Court’s order in the argument section of its brief, but it has not supplemented Mr. Johnson’s abstract with the necessary documents. We, therefore, cannot reach the merits of Mr. Johnson’s arguments.

Affirmed.