author: Robert H. Dudley, Justice. Blair Arnold, Special Justice,

text:
    Henry HODGES v. Alice S. GRAY, Chancellor, Pulaski Chancery Court (First Division)
    94-1191
    901 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995
    [Rehearing denied July 17, 1995.]

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., for appellee.

      Brown and Roaf, JJ„ not participating.

   Robert H. Dudley, Justice.

Appellant Henry Hodges, an attorney, appeals from being four times held in contempt of court by Chancellor Alice Gray for contumacious statements made during the argument of a child custody case. Appellant Hodges represented Pamela Skokos, the former wife of Theodore Skokos, also a member of the bar, in an extended divorce and child custody case. The record clearly reflects a contest of wills between counsel and the chancellor. At one point, Ms. Skokos petitioned this court for a writ of certiorari to disqualify Chancellor Gray from hearing the case because of her bias and prejudice. Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994).

I.

Chancellor Gray moves for this court to dismiss this appeal because of the doctrines of either res judicata or law of the case. In support of the argument, she states that in our earlier denial of certiorari we wrote:

Our consideration of Ms. Skokos’s allegations in response to her petition for certiorari will preclude us from considering them again, should there be a later appeal. Henderson Methodist Church v. Sewer Improvement Dist. No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987); Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S.W.2d 392 (1921); Note, 17 Ark. L. Rev. 193 (1963).

Id. at 573, 886 S.W.2d at 621.

Our statement about the consequences of seeking certiorari is a correct statement of the law, but it is not applicable to this appeal by appellant Hodges. The issue decided in Skokos v. Gray was whether, because of bias and prejudice, a writ of certiorari should direct the chancellor to refrain from hearing the divorce and custody case involving the Skokoses. Appellant Hodges has never asked the chancellor to refrain from holding him in contempt of court because of bias or prejudice against him. Because both the parties and the issues are different, neither doctrine applies, and we decline to dismiss this appeal.

II.

Appellant Hodges’s first assignment is that the trial court erred in summarily holding him in criminal contempt on each of the four occasions because the evidence was insufficient. We affirm the holdings of contempt on the first two occasions and reverse and dismiss the second two holdings.

A.

Summary punishment for contempt committed in the “presence or hearing” of the court is an inherent power and is specifically reserved to the courts by the constitution. Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). This case involves criminal contempt, as fines were imposed and the punishment could not be avoided by performing an affirmative act. See Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). The standard of review of a case of criminal contempt is settled. An appellate court views the record in light most favorable to the trial judge’s decision and will sustain the decision if supported by substantial evidence and reasonable inferences therefrom. Yarbrough, 295 Ark. at 212, 748 S.W.2d at 123.

B.

The facts leading up to each of the four holdings of contempt are set out in sequence in order to address appellant Hodges’s argument that “the contempt findings against [him] are legally insufficient.” Different parts of the divorce case had been tried over a period of fifteen months. All of the evidence on child custody had been presented, but even after that long period of time, custody had not been finally determined. During the fifteen months of proceedings, Ms. Skokos’s attorneys, appellant Hodges and co-counsel Robert L. Robinson, twice filed petitions asking Chancellor Gray to disqualify because of an alleged bias and prejudice against Ms. Skokos. They aggressively pursued the petitions, but the chancellor refused to disqualify. Subsequently, the chancellor set August 25 as the date for final arguments on the child custody issue. Each side was allotted ten minutes to argue the custody issue.

On August 24, 1994, the day before the arguments on custody were scheduled to be heard, appellant Hodges filed a complaint against Chancellor Gray with the Arkansas Judicial Discipline and Disability Commission. The complaint alleged that in an unrelated case Chancellor Gray ordered her law clerk, who was not qualified to serve as a special judge, to grant a divorce for another of Hodges’s clients. On that same day, appellant filed a third motion on behalf of Ms. Skokos requesting Chancellor Gray to disqualify, this time because of the complaint before the discipline commission.

On the 25th, when the arguments were scheduled to begin, Robert Robinson, Hodges’s co-counsel, asked the chancellor to hear the third motion to recuse. She declined and ordered the attorneys to argue the custody matter. Robinson insisted on making a record, but the chancellor repeatedly told him that each side was allowed only ten minutes to argue the custody matter and that he would be removed from the courtroom if he continued to try to argue the disqualification matter. Robinson stated that at prior hearings involving the other motions to disqualify, the chancellor had declined to rule on substantive motions until she had decided on the motions to recuse. The chancellor replied that this hearing was for final arguments on custody, no new evidence was to be presented, and there was no need to decide the recusal question before hearing closing arguments.

Perlesta A. Hollingsworth, one of the attorneys for Mr. Skokos, moved to withdraw his motion for an immediate ruling on permanent custody and asked instead to argue only the issue of temporary custody. Appellant Hodges responded that there had been no notice of a hearing on temporary custody, and if the chancellor “[got] into that issue [she would] need to get into these other issues, as well.” The chancellor instructed appellant Hodges to let Mr. Hollingsworth finish his statement, but appellant continued to respond to the motion. During Mr. Hodges’s response, he first stated that there had been no notice of a temporary hearing and then renewed his argument that the chancellor should hear the motion to disqualify. The chancellor ruled that the hearing would proceed with the final arguments as originally scheduled and that appellant Hodges would not be allowed to present the motion to disqualify at that time. Mr. Hodges then asked if the hearing could be recessed until the chancellor heard the motion to dismiss. The chancellor denied the motion.

Mr. Hollingsworth again asked for a hearing on temporary custody. Appellant Hodges stated, “Now, is Mr. Hollingsworth now changing the Court’s view as to whether we are going to have final arguments and close this custody case period?” The chancellor asked for appellant Hodges’s response to Hollingsworth’s request, and he replied that he wished to proceed with closing arguments, but again objected to her refusal to first hear the disqualification motion because it was a departure from her policy in the past.

Finally, appellant’s argument on custody began as follows:

May it please the court, Judge, this has been a long case and you are now hearing final arguments, as I understand it, on the custody issue.
I thought to myself, how can I convince you coming over here that Mrs. Skokos, a wife of 27 years, ought not to be parted from her 13 year old daughter and I am convinced that I can’t convince you because you made up your mind previously.
I think you made up your mind when you removed this lady and her 12 year old daughter at the time from her marital home on Edgehill.

The chancellor instructed Mr. Hodges that this was not the time to criticize the court’s decisions, but to summarize the evidence in closing argument.

Mr. Hodges’s reply was:

I am entitled, Your Honor, respectfully suggest to you that I am entitled to make my closing arguments.
You have given me — after 15 months in this case on custody you have given me ten minutes to summarize it and I think I am entitled to use those minutes however I so choose. Now, that is exactly what I think and I am going to continue. (Emphasis added.)

At this point, Chancellor Gray held appellant in summary contempt and amerced a $200.00 fine. The chancellor additionally noted the presence of the newspaper reporter and television camera, and said, “You have the media waiting and you can also appeal. You have other remedies but your ten minutes here is not going to be allocated for that.” Appellant Hodges asked, “Is what you just said counted against my ten minutes?”

1.

Appellant Hodges argues that the foregoing facts are legally insufficient to support the holding of summary contempt. A subsequent written order notes that the holding of contempt was made because appellant “refused to follow the Court’s directions.”

An act is contemptuous if it interferes with the order of the court’s business or proceedings, or reflects upon the court’s integrity. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 11 (1993); see also Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984). The inherent power to punish for contempt should never be exercised except where the necessity is plain and unavoidable if the authority of the court is to continue. Edwards, 284 Ark. at 63, 679 S.W.2d at 197 (citing Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934)). The court’s contempt proceedings are to preserve the power and dignity of the court, to punish for disobedience of orders, and to preserve and enforce the rights of the parties. Id. An attorney should not engage in conduct which offends the dignity of the court. Davis v. Goodson, 276 Ark. 337, 635 S.W.2d 226 (1982). An attorney may make a proper objection to a ruling of the court, but then should abide by the ruling so long as it remains in effect. Id. at 339, 635 S.W.2d at 227.

Here, the chancellor clearly and repeatedly instructed the attorneys that she was not going to hear a third motion to disqualify at that time and that the hearing was limited to argument on the custody issue. Counsel should have followed the court’s ruling and limited comments to the custody issue. Instead, appellant repeatedly brought up the motion to recuse in clear defiance of the court’s order. Finally, appellant stated that he was going to use his time for closing argument however he chose. Viewing the record in the light most favorable to the trial judge, as we must do, Yarbrough, 295 Ark. at 212, 748 S.W.2d at 123, there is sufficient evidence to support the holding of contempt.

2.

Appellant proceeded with final argument and stated: “In spite of what this Court has ruled in the past I think the real issues are very, very clear,” adding that “there is no worse case scenario than for fifteen months what this court has allowed....” Next he began to address factors a chancellor ought to consider in determining child custody. The argument, which immediately precedes the second holding of contempt, was as follows:

And the last thing is love and affection. Let’s talk about the first point. Mr. Skokos’s moral fitness. Now, where does that begin? That begins when he had sexual relations in their marital home — not in their marital home but in their marital bed.
Now, Judge, are you going to listen to me or are you going to —
THE COURT: That is Fifty Dollars, Mr. Hodges.

The subsequent written order notes that the remark was made when the court “summoned the bailiff.” Appellant Hodges later described it as the court “visiting” with the bailiff. The transcript provides no additional information. An audio tape included in the record only adds the fact that this occurrence took place very quickly. Viewing the evidence and all reasonable inferences as we must, the remark, when taken in context of the entire argument, constitutes substantial evidence to support the holding of contempt. Appellant Hodges’s argument, with all reasonable inferences, was that the chancellor was biased and had already made her mind up about the case, that she had allowed a worst case scenario to take place, and now, because she summoned the bailiff or visited with the bailiff, she would not even listen to him. The statement was disrespectful and tended to impair the respect due the court’s authority. Thus, it was contumacious. See Ark. Code Ann. § 16-10-108(a) (Repl. 1994).

3.

Immediately after the chancellor summarily fined appellant for the foregoing comment, appellant responded, “Well, I would like the record to show that you are visiting with Billy the bailiff.” Chancellor Gray then held appellant in summary contempt and fined him for the third time.

Appellant Hodges’s argument is well taken that the statement, even when taken in context of all the other statements, did not constitute a disrespectful or derogatory remark and did not constitute a violation of an instruction by the court. Rather, it shows that appellant was attempting to have the record accurately reflect, for the purpose of this appeal, that the chancellor said something to the bailiff. That was entirely proper. Further, there is nothing to indicate that the reference to “Billy the bailiff” was anything other than an attempt to identify the person to whom the chancellor spoke.

4.

The chancellor had previously fined one of Mr. Skokos’s attorneys for using the word “bullshit” during an argument and had ordered the attorneys not to use inappropriate language. In his argument on custody, appellant Hodges stated that the minor child’s attorney ad litem had a conflict of interest, but still the chancellor refused to disqualify the attorney ad litem. Appellant Hodges argued to the court that this refusal placed Ms. Skokos in an impossible position because she was criticized by the attorney ad litem if she did not give Mr. Skokos-visitation, but when she allowed Mr. Skokos to visit the child, he refused to return the child to her and claimed he had full custody. Appellant concluded that, as a result, Ms. Skokos was “damned if she does and damned if she doesn’t.” At that point, the chancellor, for the fourth time in the hearing, held appellant in summary contempt for using “that language.”

The subsequent written order states that the court had warned appellant not to use inappropriate language “such as hell and damned.” Again, appellant Hodges’s argument is well taken that there is no substantial evidence to support a holding of contempt. Rosenzweig, 295 Ark. at 585, 751 S.W.2d at 734. It is clear from the statement that the words were not used as expletives.

Before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties imposed on him, and the command must be express rather than implied. Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989). When, under the circumstances and the legal issues involved, a party does all that is expressly required of him, it is error to hold him in contempt. See Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972). When there is nothing in a court order to indicate a party’s specific duty to do something, then this court has refused to find that the party is in contempt. See Lilly, 299 Ark. at 111, 771 S.W.2d at 281.

The earlier order of the chancellor did not constitute notice that a word that is sometimes used as an expletive could not be used in another context. The United States Supreme Court has held that even the use of street language or vernacular cannot constitutionally support a conviction of criminal contempt when it was not directed at the judge or any court officer and did not constitute an imminent threat to the administration of justice. See Eaton v. Tulsa, 415 U.S. 697 (1974) (holding that the accused’s use of the word “chicken shit” to describe his assailant during cross-examination did not constitute a threat to the court).

In summary, we hold that there was substantial evidence to support the first two holdings of contempt, but there was no basis for the second two. Accordingly, at this point, we reverse and dismiss the second two holdings of contempt.

III.

Appellant next argues that, even if there was substantial evidence of contempt on the first two occurrences, he had a right to criticize the judge, who is a public official, under the First Amendment. In support of the argument he cites New York Times v. Sullivan, 376 U.S. 254 (1964). The argument is without merit because even protected speech is not equally permissible in all places at all times. Cornelius v. NAACP Legal Defense Fund, Inc., 473 U.S. 788, 799 (1985). In general it may be said that the State may place reasonable time, place, and manner restrictions on speech that takes place in a public forum. Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law § 20.47 at 296 (2d ed. 1992).

The history and development of contempt proceedings do not suggest such a restrictive interpretation of contempt powers that courts would be rendered powerless to enforce orderly sanctions for misconduct by members of the bar and would be rendered powerless to insure that justice and fairness took place. Rather, the powers of contempt are reasonable as applied to time, place, and manner restrictions on freedom of speech. Cornelius, 473 U.S. at 806; see also Spencer v. Davis, 290 F. Supp. 531 (W.D. La. 1968).

IV.

Appellant next contends that even though the evidence is sufficient on the first two holdings of contempt, reversal is mandated because of lack of notice and opportunity to defend and because the determination should be made by another judge. However, neither argument was made in the trial court, either during the custody hearing or in a later motion. This court does not address arguments raised for the first time on appeal. Even constitutional arguments are waived on appeal if they are not raised at trial. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); Powell v. Burnett, 304 Ark. 698, 805 S.W.2d 50 (1991). Thus, we do not address that point of appeal.

Affirmed in part; reversed and dismissed in part.

Brown and Roaf, JJ., not participating.

Corbin, L, and Special Justice Blair Arnold dissent.

Blair Arnold, Special Justice,

Dissenting. I respectfully dissent from the majority’s affirmance of the first and second contempt findings in this case. I believe these findings of contempt reflect an overly sensitive reaction by the Chancellor to reasonable efforts of appellant to try his case under very difficult circumstances.

BACKGROUND

To properly analyze this case, I believe a thorough scrutiny of the background is critical. As stated by Special Justice Kathleen V. Compton in her dissent in Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994):

The transcript and briefs in this case indicate very clearly that there is acrimony between Chancellor Gray and the attorneys for Ms. Skokos. In fact, Chancellor Gray has made comments on the evidence which indicate her displeasure with Ms. Skokos as well. She challenged Ms. Skokos’ credibility and she advised Ms. Skokos that she felt Mr. Skokos was “more conciliatory.” She commented that it appeared that Ms. Skokos “wanted everything” — specifically, custody of the parties’ minor child, possession of the marital home, and money. It is not mentioned by the Court that Mr. Skokos also wants those same things. In fact, in the majority of divorce cases, these are the common bones of contention and the reasons for litigation. They hardly were revolutionary requests. Chancellor Gray has a duty to be “fair and impartial” to all litigants in her Court, and her commentary is unnecessary. . . .
The Chancellor on more than one occasion refused to allow attorneys for Ms. Skokos to make a record. She interrupted during their questions and their arguments. She routinely reminded them of the time constraints being imposed by the Court. She engaged in a running commentary about their demeanor. She also testified from the bench during a recusal hearing.

Id. at 578, 886 S.W.2d at 622.

Additionally, the record reflects a number of rulings and decisions by the Chancellor which were questionable at best. I feel it is helpful to list some of these. First, the Chancellor refused to consider certain motions. Second, the Chancellor moved Ms. Skokos and her twelve-year-old daughter out of the marital home despite the admitted adulteries of Mr. Skokos, some of which occurred in the home, because of her “policy” of always removing the complaining party in a divorce from the home. Third, the Chancellor falsely accused appellant’s co-counsel of misconduct in preparing a precedent when the record reflects that his precedent either accurately reflected her rulings or at least was an honest interpretation of those rulings. Fourth, the Chancellor refused to set an amount of spousal support on the basis that there was no proof as to Mr. Skokos’ income despite the fact that the parties’ 1992 Income Tax Return was produced and Mr. Skokos’ 1993 income was stipulated. Fifth, the Chancellor ruled that Mr. Skokos did not need to provide support directly to Ms. Skokos because she was financially irresponsible. This ruling was based upon Ms. Skokos making a late payment of a water bill. Sixth, the Chancellor allowed the attorney-ad-litem for the minor child of the parties to serve both as a witness and an advocate or attorney. See Model Rules of Professional Conduct 3.7. Seventh, the Chancellor refused to disqualify the attorney-ad-litem and one of Mr. Skokos’ counsel despite the fact that the attorney-ad-litem was an associate or employee of one of this counsel’s law partners. See Model Rules of Professional Conduct 1.10; Cinema 5 Ltd. v. Cinerama, 528 F.2d 1384 (2nd Cir. 1976); United States v. Chesire, 707 F. Supp. 235 (M.D. La. 1989); First American Carriers v. Kroger, 302 Ark. 86, 797 S.W.2d 669 (1990).

The events of the August 25, 1994 hearing occurring prior to the alleged contemptuous statements are significant also. First, not only did the Chancellor refuse to hear the third motion to recuse, she even refused to allow a record to be made on her refusal and threatened to remove appellant’s co-counsel from the courtroom for asking to make a record. Those rulings were based upon the time constraints of the Court.

Second, although the hearing was for final arguments on custody, the Chancellor then allowed counsel for Mr. Skokos to have a rather lengthy hearing on his request to argue a change in temporary custody, despite these time constraints.

Third, the Chancellor implicitly denied having received a copy of the complaint filed against her. When questioned by appellant to the effect that he had sent a copy to her by runner, she then admitted receiving something that was termed a complaint, but said it was not from the Judicial Ethics Commission and therefore she did not know whether a complaint had been filed or not. This seems to be disingenuous, at best.

Fourth, the Chancellor then allowed Mr. Skokos’ counsel to have another rather lengthy hearing on his request to argue a change in temporary custody. Presumably these time constraints still applied.

If was at this point that the closing argument began which led to the first two findings of contempt. Although the Majority has quoted portions of the argument concerning these two findings, I believe it is helpful to state the whole discussion.

MR. HODGES: May it please the Court, Judge, this has been a long case and you are now hearing final arguments, as I understand it, on the custody issue.
I thought to myself, how can I convince you coming over here that Mrs. Skokos, a wife of 27 years, ought not to be parted from her 13 year old daughter and I am convinced that I can’t convince you because you have made up your mind previously.
I think you made up your mind when you removed this lady and that 12 year old daughter at the time from her marital —
THE COURT: Sir, now, if you —
MR. HODGES: — home on Edgehill
THE COURT: — want to direct comments toward the Court’s action in this case you need to do it somewhere else.
MR. HODGES: Well, Your Honor, I am making my closing argument —
THE COURT: And if you want to summarize —
MR. HODGES: — and I think —
THE COURT: If you want to summarize —
MR. HODGES: — lam entitled to do that.
THE COURT: If you want to summarize your case then you may do so. Otherwise, you are going to have to stop or we are going to move on to another side.
MR. HODGES: I am entitled to make —
THE COURT: This is not your forum —
MR. HODGES: — my closing argument.
THE COURT: — to complain about how this Court has handled rulings. Now, if you want to summarize your evidence and present your final argument then you can present it. Otherwise, you are going to have to stop and we will move on to another party.
MR. HODGES: I am entitled, Your Honor, respectfully suggest to you that I am entitled to make my closing arguments.
You have given me — after 15 months in this case on custody you have given me ten minutes to summarize it and I think I am entitled to use those minutes however I so choose. Now, that is exactly what I think and I am going to continue.
Now, I —
THE COURT: You are in contempt, Mr. Hodges, and you are being assessed a $200.00 fine.
MR. HODGES: Your Honor, I am going to continue and —
THE COURT: — and it is due by 9:00 a.m. —
MR. HODGES: — you just have to —
THE COURT: I know — Mr. —
MR. HODGES: — you have to just find me in contempt.
THE COURT: First of all, Mr. Hodges, the Court is aware that you have a reporter who follows you apparently every day and who is here now and there is a camera.
The Court is aware that you are attempting to have this Court remove you so that you can cause some big media blitz. Now, if that is what you are asking for that is what the Court is about to do but you are going to have to be respectful when you are in here.
MR. HODGES: Your Honor, I am trying to be
THE COURT: The Court has just assessed —
MR. HODGES: — respectful —
THE COURT: The Court has assessed a $200.00 fine. It is due by 9:00 o’clock in the morning. It has to be paid down in the Clerk’s office.
Now, if you have — if you want to summarize your evidence — you don’t get to use your time for closing arguments to criticize this Court’s rulings, Mr. Hodges. You can appeal and do that. That is not what the Court set aside the time for.
I know how you feel about the Court’s rulings and this Court does not have the time right now to sit and listen to every complaint that you have, Mr. Hodges.
If you want to summarize the evidence, you can do that. You can present any closing argument as to why this Court should award custody to your client.
If you want to complain about the Court’s actions then you said you filed the Complaint. You have the media waiting and you can also appeal. You have other remedies but your ten minutes here is not going to be allocated for that.
MR. HODGES: Is what you just said counted against my ten minutes?
THE COURT: You may proceed.
MR. HODGES: Is it counted against my ten —
THE COURT: You may proceed, Mr. Hodges.
MR. HODGES: — minutes?
In spite of what this Court has ruled in the past I think the real issues in this case are very, very clear.
Judge Dudley wrote an article in 1980 were he established four crucial points about child custody that I think still apply today, Judge Dudley, then Chancellor Dudley, now Supreme Court Justice Dudley and he talked about four issues. . . .
And the last thing is love and affection. Let’s talk about the first point. Mr. Skokos’ moral fitness. Now, where does that begin? That begins when he had sexual relations in their marital home — not in their martial home but in their marital bed.
Now, Judge, are you going to listen to me or are you going to —
THE COURT: That is $50.00, Mr. Hodges, and that .is also due in the morning by 9:00 o’clock.
MR. HODGES: Well, I would like for the record to show that —
THE COURT: A $50.00 fine.
MR. HODGES: — you are visiting with Billy the Bailiff.
THE COURT: That is another $50.00 fine so that is a total of $300.00 due at 9:00 o’clock in the morning.
You may proceed. (Emphasis added.)

LEGAL DISCUSSION

The Majority Opinion contains an excellent and very thorough discussion of the law of contempt in Arkansas. However, I believe it fails to recognize other principles and standards which should apply in reviewing a contempt finding. Contempt is an extraordinary power of the Court which should not be exercised except in cases where the necessity is plain and unavoidable. Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934). An action taken which does not affect the administration of justice is not contemptuous. Norton v. Taylor, 299 Ark. 218, 772 S.W.2d 316 (1989).

The United States Supreme Court in the case of In re Little, 404 U.S. 553 (1972), stated, inter alia, as follows:

[T]he law of contempt is not made for the protection of judges who may be sensitive for the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. . . . Trial Courts . . . must be on guard against confusing offensives to their sensibilities with obstruction to the administration of justice. . . .

Id. at 555 (citations omitted).

Significantly, the court in Clark v. State, 291 Ark. 405, 725 S.W.2d 550 (1987), stated as follows:

[The contempt power] must never be used to place judges above the law. The vital public respect for and faith in judicial institutions will, we believe, be enhanced by the extent to which we are able to solve our problems with patience as opposed to pique, holding our power in reserve.

Id. 291 Ark. at 409-10, 725 S.W.2d at 553.

An attorney is not guilty of contempt because of making appropriate objections or exceptions. An attorney is not guilty of contempt by pressing a legitimate argument even though inadequacies in the actions taken by the Court are pointed out. An attorney is not guilty of contempt for attempting to clear up doubts or questions as to the Court’s ruling. 17 C.J.S. Contempt § 25(b) (1963).

Where a statement is susceptible to more than one construction, and might have been given an innocent construction, any contempt is purged by a disavowal as to contemptuous intent. Freeman v. State, supra.

Misunderstandings between the Court and counsel are not an appropriate basis for a finding of contempt. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989); Lessenberry v. Adkisson, 255 Ark. 285, 499 S.W.2d 835 (1973).

I.

The first finding of contempt is evidently based in part on the Chancellor’s opinion that the beginning of Mr. Hodges’ closing statement is a criticism of her prior rulings rather than summarization of evidence and in part upon the Chancellor’s feelings that he intended to continue criticizing her rulings.

These opening remarks made before the Chancellor first interrupted Mr. Hodges, are merely prefatory remarks outlining the progress of the case up to that day. Suffice it to say that opening remarks in many cases follow the same format.

Appellant seems to be requesting the Chancellor to step back and think about this issue with an open mind. Looking at her past rulings, this was certainly not an unreasonable request. However, we will never know for sure where counsel was headed with these prefatory remarks as he was cut off too quickly. In any event the remarks up to this point are by no means contemptuous. They are legitimate arguments even if they point out alleged inadequacies.

The issue then becomes what appellant meant when he kept telling the Court he intended to continue. The Chancellor obviously felt that appellant meant that he was going to continue to criticize her previous rulings.

There is nothing in the record to support this. Given the time constraints placed upon him in making this argument, appellant just as likely might have meant that he wanted to continue on with his closing argument, not that he intended to criticize the Chancellor’s previous rulings. We will never know for sure as the Court cut him off and did not inquire of his specific intent.

I do not believe this constitutes contempt. Appellant’s statements during this process are susceptible to two interpretations and are ambiguous. This is particularly true where counsel on at least two occasions during this discussion told the Court he was in fact trying to be respectful. Freeman v. State, supra. Furthermore, this appears to be a clear misunderstanding between counsel and the Court which will not support a finding of contempt. McCullough v. Lessenberry, supra; Lessenberry v. Adkisson, supra.

Third, it seems clear that counsel was trying to make an argument on the content and scope of closing arguments, but was repeatedly cut off by the Court before he could finish. The record is replete with incidents where the Chancellor refused to allow objections or allow Ms. Skokos’ counsel to make a record. This is one more. Counsel had a legal right to address the question of the propriety of his argument and make a record thereon.

Fourth, there is nothing in the record which reflects thqt any untoward interference with the administration of justice occurred.

Even though this was a closed hearing and no reporters or “laymen” were present, the Chancellor’s continued remarks (about media being in the hallway and suggestions that appellant had them there to criticize her) seem to indicate that the real problem was the Chancellor’s sensitivities to real or perceived criticism rather than appellant’s actions and statements in the Courtroom.

This sensitivity is underscored by her later finding that appellant was in contempt by making a statement as innocuous as his client was damned if she did and damned if she didn’t and also by the Chancellor’s continued assertions throughout the entire course of these proceedings that both counsel for Ms. Skokos were trying to goad her.

For all of these reasons, this is not contempt.

II.

Shortly into appellant’s argument, the Chancellor summoned a bailiff and evidently began talking to him. When appellant observed this, he asked the Chancellor if she were going to listen to him. Such a question could not possibly be contemptuous in and of itself. Moreover, it was necessary to make a record as to what was occurring. Had counsel not made this statement, the record would have been silent as to the fact that the Chancellor was discussing something with the bailiff. Counsel might very well have wanted to get this in the record as a potential ground for appeal. This seems to be noncontemptuous, not only because of the reasons stated in the Majority Opinion as to right of counsel to make a record, but also because it is noncontemptuous in and of itself.

CONCLUSION

An attorney has no right to be contemptuous to the Court because he is receiving incorrect, ill advised, or unfair rulings or scheduling. An attorney has no right to be contemptuous to the Court because the Court makes unfounded statements about himself or his client. An attorney has no right to be contemptuous merely because a hearing is closed and nonjudicial personnel are not present.

Nevertheless, a court must recognize the difference between forceful advocacy under difficult circumstances and contemptuous behavior. A court must recognize that making a record necessitates questioning a decision, and that is not contemptuous argument. A court must rise above its own sensibilities and not act out of personal pique or anger. A court should give some leeway to what is said in the heat of battle. A court should not make findings of contempt unless there is an interference with the administration of justice.

When looking at the record as a whole and in examining appellant’s comments in the context of the entire case, I feel that all of the findings of contempt should be reversed and dismissed.

Corbin, J., joins in this dissent.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Danny REEVES, Individually and d/b/a Reeves Body Shop v. Michael HINKLE, Individually and d/b/a Hinkle Auto & ATV Sales
    94-869
    899 S.W.2d 841
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995
    [Rehearing denied July 17, 1995.]

      W. Frank Morledge, P.A., for appellant.

      Daggett, Van Dover & Donovan, by: Robert J. Donovan, for appellee.

      Brown and Roaf, JJ., would grant.

   Robert H. Dudley, Justice.

Plaintiff Hinkle filed a breach of warranty suit against defendant Crossland. Defendant Cross-land answered and filed a third-party complaint against third-party defendant Reeves. Crossland, in his third-party complaint, alleged that he purchased the automobiles from third-party defendant Reeves, and if there were a breach of warranty, he was entitled to indemnity from Reeves.

Plaintiff Hinkle then filed a complaint for breach of warranty directly against third-party defendant Reeves. Service of process was perfected, but Reeves failed to answer. Even though in default, Reeves filed a motion for summary judgment. Plaintiff Hinkle filed a motion for default judgment against Reeves. The trial court denied Reeves’s motion for summary judgment and granted plaintiff Hinkle’s motion for a default judgment.

Plaintiff Hinkle filed a motion for summary judgment against Reeves on the issue of damages. The trial court granted the motion and entered judgment in the amount of $16,800 plus interest. Plaintiff’s claim against Crossland remains outstanding, and Cross-land’s claim for indemnity from third-party defendant Reeves remains unresolved. Reeves seeks to appeal. We dismiss the appeal.

The trial court entered a final judgment as to the claim between Hinkle and Reeves under authority of ARCP Rule 54(b). The abstract reflects only that the trial court’s order “set forth specific factual findings that supported a conclusion that there existed the possible danger of hardship or injustice to appellant which would be alleviated by immediate appeal.”

We have often written that Rule 54(b) is a jurisdictional matter which this court must raise on its own. See, e.g., Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994). In order for us to determine whether a hardship will result if an appeal is not permitted, the trial court must make a finding that a likelihood of hardship or injustice will occur unless there is an immediate appeal and must set out the facts that support the conclusion in its order. Davis v. Wausau Ins. Cos., 315 Ark. 330, 332, 867 S.W.2d 444, 446 (1993).

In Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992), we said that under Rule 54(b) the trial court “must factually set forth reasons in the final judgment, order, or the record, which can then be abstracted, explaining why a hardship or injustice would result if an appeal is not permitted.” Id. at 412, 825 S.W.2d at 814 (emphasis added).

The abstract in this case states only that the order “set forth specific factual findings that supported a conclusion that there existed the possible danger of hardship or injustice to appellant which would be alleviated by immediate appeal.” The reasons supporting the conclusion are not abridged or abstracted. The result is that we cannot review the factual findings underlying the jurisdictional issue because, as we have often explained, there is only one record and there are seven members of this court. The seven of us will not attempt to use one record. Since we do not know the facts underlying the Rule 54(b) certification, we dismiss the appeal.

It has long been our policy to look with disfavor upon intermediate appeals since they tend to favor parties with the resources to file multiple appeals and tend to require extra appellate judicial resources. As a consequence, it is our intention to allow intermediate appeals only when we are satisfied that there are exceptional circumstances and that a compelling and discernible hardship will be alleviated by allowing such an appeal. The only way we can make certain that intermediate appeals are justified is to require an abstract of the reasons an appeal was granted under ARCP Rule 54(b).

When one looks at the facts of this case there does not appear to be a good reason for allowing an intermediate appeal. The abstract only informs us that the trial judge ruled that an appeal should be allowed to prevent a “possible danger of hardship or injustice,” and this is not a sufficient reason for an intermediate appeal. See Davis. 315 Ark. at 332, 867 S.W.2d at 446.

Thus, we dismiss the intermediate appeal and remand the case to the trial court to decide the rest of the case. Upon entry of a final order we will take jurisdiction of the appeal.

Appeal dismissed.


author: David Newbern, Justice.

text:
    STATE of Arkansas v. Laura ROBERTS and Shirley Hudson
    95-137
    900 S.W.2d 175
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995

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

      Gerald K. Crow, for appellees.
   David Newbern, Justice.

As the result of a police roadblock in Carroll County, Laura Roberts was cited for underage driving under the influence of alcohol, a violation punishable only by fine. Ark. Code Ann. § 5-65-303 (Repl. 1993). Shirley Hudson was cited for driving while intoxicated, which is a misdemeanor unless it is the fourth or subsequent offense, in which case it is a felony. Ark. Code Ann. §§ 5-l-107(a)(3) and 5-65-111 (Repl. 1993). There is no indication in the record that Ms. Hudson’s citation was for a fourth or subsequent offense.

Ms. Roberts and Ms. Hudson were summoned to appear in the Eureka Springs Municipal Court. After Ms. Roberts was convicted and before Ms. Hudson was tried, they petitioned the Carroll Circuit Court for an injunction and writs of prohibition and mandamus. In their petition, Ms. Roberts and Ms. Hudson contended they had a right to trial by jury in the first instance, and that it was a violation of the United States Constitution and the Arkansas Constitution to require them to participate in a municipal court proceeding without a jury.

Ms. Roberts and Ms. Hudson acknowledged in their petition their right to appeal any decision of the municipal court in their cases to the Circuit Court and their right to a jury trial there. They also acknowledged that the United States Supreme Court, in Ludwig v. Massachusetts, 427 U.S. 618 (1976), had held such a “two-tier” system to be compatible with the Fourteenth Amendment. They argued, however, that Ark. Const, art. 2, § 7, stating that the right to a trial by jury shall “remain inviolate,” and art. 2, § 10, which provides for the jury trial right in all criminal prosecutions, impose requirements in excess of those found in the Fourteenth Amendment and that they are violated by the requirement of participation in a municipal court proceeding without a jury before obtaining access to a jury in a circuit court.

The request for an injunction was withdrawn. Although the Circuit Court remarked at the hearing on the petition that prohibition would be appropriate in the case of Ms. Hudson because she had not been tried, the order ultimately entered did not prohibit her trial.

The State has appealed, contending that prohibition, in general, was inappropriate for a number of reasons. We need not discuss the argument made on prohibition, however, in view of the fact that the Circuit Court’s order constituted a writ of prohibition only to the extent it prohibited municipal courts within its jurisdiction from requiring appeal bonds, and the State does not appeal from that portion of the order.

The State also argues that mandamus was improperly granted by the Circuit Court, and we agree. The State objects to the following portion of the order:

Therefore, the municipal courts of this jurisdiction shall make known to each criminal defendant appearing before them that the right to a jury trial is guaranteed under our Constitution. The judge of each municipal court shall inquire of each criminal defendant if he or she wishes to have a jury trial. If the individual wishes a jury trial the municipal court shall transfer the case to Circuit Court for arraignment and further proceedings.

A party seeking a writ of mandamus must show a specific legal right and the absence of any other adequate remedy. Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993). A mandamus writ enforces the performance of a legal right after it has been established but may not be used to establish a right. Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989); Springdale Bd. of Educ. v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987). Mandamus is a remedy to be used when the law has established no specific remedy and justice and good government require it. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992); State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989).

The mandamus writ in this case was used by the Circuit Court to establish a method of protecting the right to a trial by jury different from that chosen by the General Assembly. According to Ark. Const, art. 7, § 1, “The General Assembly may . . . vest such jurisdiction as may be deemed necessary in municipal corporation courts.” The General Assembly granted jurisdiction of misdemeanors to municipal courts in Ark. Code Ann. § 16-17-704 (Repl. 1994). As to the issue of jury trials in municipal courts, Ark. Code Ann. § 16-17-703 (Repl. 1994) states:

There shall be no jury trials in municipal court. In order that the right of trial by jury remains inviolate, all appeals from judgment in municipal court shall be de novo to circuit court.

There is thus no entitlement to a jury trial in a municipal court, but the right remains inviolate when an appeal is pursued to a circuit court where the case is tried de novo. See Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). When a conviction is appealed from a municipal court to a circuit court, the case is tried de novo, and the appellant is entitled to a trial by jury. See Weaver v. State, 296 Ark. 152, 752 S.W.2d 750 (1988); Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975). The purpose of the trial de novo is to conduct a trial as though there had been no trial in the lower court. Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993).

No matter how laudable his intention, it was simply unnecessary for the Circuit Court to institute a means contrary to the present statutory scheme to protect the right to jury trial. The underpinnings of the order were that the proceeding which must occur in a municipal court prior to that in a circuit court where a jury is available places an impermissible burden on the right to a jury trial and that a criminal defendant has the right to decide whether to be tried by a jury. We agree with the holding in Ludwig v. Massachusetts, supra, that the burden placed upon the right by requiring a proceeding in a municipal court is not impermissible. We have no quarrel with the conclusion that a criminal defendant has a right to be tried by a jury, but as we and the General Assembly have made clear, the inviolability of that right is sufficiently protected by the right to take the case to a circuit court. Persons summoned before a municipal court have an adequate remedy to protect their statutory and constitutional right to a trial by jury, thus mandamus does not lie.

Reversed and remanded.


author: David Newbern, Justice. Donald L. Corbin, Justice, Robert L. Brown, Justice,

text:
    Tamara TACKETT v. CRAIN AUTOMOTIVE d/b/a Car Pro
    94-1457
    899 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995

      David H. McCormick, for appellant.

      Boyett, Morgan, Millar & Killough, P.A., for appellee.
   David Newbern, Justice.

Tamara Tackett, the appellant, was injured in a car accident while working for the appellee, Crain Automotive. She filed a workers’ compensation claim and was off the job for a time. When she was given a medical release to return to work, she was told her job had been eliminated due to slow business. She sued Crain Automotive for discharging her in retaliation for her having filed her worker’s compensation claim. She asserted that Crain Automotive had hired others to do the work she once did. We affirm the Trial Court’s decision granting Crain Automotive’s motion, which cited Ark. R. Civ. P. 12(b), to dismiss Ms. Tackett’s claim.

By Act 796 of 1993, the General Assembly eliminated the cause of action for retaliatory discharge described in Walmart v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991). Section 41 of the Act declares its effective date to be July 1, 1993, and concludes as follows: “Furthermore, the provisions of this act shall apply only to injuries which occur after July 1, 1993.” Ms. Tackett’s compensable injuries occurred prior to July 1, 1993. In its brief in support of its motion to dismiss, Crain Automotive stated Ms. Tackett was discharged after July 1, 1993. In her response, Ms. Tackett did not disagree with that statement.

If Ms. Tackett’s physical or compensable injury were the subject of her present claim, no doubt Act 796 would not apply. The claim with which we now are concerned, however, is her claim for retaliatory discharge which is not a compensable injury under the Workers’ Compensation Act. Ms. Tackett’s discharge, and her complaint alleging that it was retaliatory, occurred after the cause of action was abolished. Although we and a United States District Court have, subsequent to July 1, 1993, considered cases of retaliatory discharge, the cases were ones in which the complaint was filed before that date. Leggett v. Centro, Inc., 318 Ark. 732, 887 S.W.2d 523 (1994); Brown v. Pepsico, Inc., 844 F.Supp. 517 (W.D.Ark. 1994).

While we might agree that Ms. Tackett had, as she puts it, a “vested interest” in having remedies for her physical or compensable injuries evaluated according to the law at the time they occurred, she has cited no authority, and we know of none, in support of her argument that her wrongful discharge claim should be governed by any law other than that in effect at the time it occurred. We have no doubt that it was the intent of the General Assembly to abolish the cause of action for wrongful discharge as of July 1, 1993.

Affirmed.

Glaze, Corbin, and Brown, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. I dissent. Historically, since the inception of the Arkansas Workers’ Compensation Act, an endless string of case law has espoused that the Workers’ Compensation Act is a remedial act for the benevolent and humanitarian purpose of protecting our injured workers in this state. See, e.g., Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). The legislature and the courts have zealously enforced this principle until the legislature began to shift direction in the 1980’s. The courts continued to steadfastly protect this principle until today’s decision.

Traditionally, the Arkansas Workers’ Compensation Act and the interpreting case law construed the term “injury” as being synonymous with “compensable injury.” There is no doubt that the legislature’s intent in the passage of Act 796 of 1993, in fact its avowed purpose, was to overrule our decisions in Thomas v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991), Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), and Mapco, Inc. v. Payne, 306 Ark. 198, 812 S.W.2d 483 (1991), wherein we had this to say about Ark. Code Ann. § 11-9-107 as it existed then, prior to Act 796:

This statutory provision is the clearest announcement by our legislature of a strong public policy that condemns retaliatory conduct by an employer who refuses to reemploy an employee for exercising a statutorily confirmed right to compensation for job-related injuries.

Mapco, 306 at 201, 812 S.W.2d at 485.

Because of the historical and traditional usage of the term “injury” being synonymous with “compensable injury,” words of art under our compensation act, the legislature, which certainly removed the right of an injured employee to a remedy for retaliatory discharge, utilized the term “injury” in the emergency clause of the Act to mean its customary, historical and traditional usage. It is the filing of a claim for workers’ compensation by an employee injured on the job that is the nexus to any remedy or benefit available under the Workers’ Compensation Act, even under that act as it existed as of the date of appellant’s “compensable injury.” True enough, the refusal to rehire did not occur until after July 1993, but it flowed naturally from the occurrence of the filing of benefits for the January 1993 compensable injury.

Glaze, J., joins in this dissent.

Robert L. Brown, Justice,

dissenting. I disagree that the new act applies to the facts of this case. The Emergency Clause attached to Act 796 of 1993 reads:

It is hereby found and determined by the General Assembly that the Workers’ Compensation Law is in immediate need of substantial revision; that this act accomplishes immediate revision; and that this act shall go into effect as soon as is practical which is determined to be July 1, 1993; and that unless this emergency clause is adopted, this act will not go into effect until after July 1, 1993. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993. Furthermore, the provisions of this act shall apply only to injuries which occur after July 1, 1993. (Emphasis added.)

The effective date of Act 796 was July 1, 1993. The injury to Tamara Tackett occurred on January 8, 1993. I can only read the term “injuries” in the Emergency Clause to refer to Ms. Tackett’s injury caused by the car accident while working at Crain Automotive. That is the common meaning given to the term throughout the Workers’ Compensation Code. See, e.g., Ark. Code Ann. §§ 11-9-102(5), ll-9-702(a)(l)(B) (Supp. 1993). The Act by its own language does not apply to this fact situation.

I respectfully dissent.


author: Tom Glaze, Justice.

text:
    Craig Keith HILLARD v. STATE of Arkansas
    CR 94-238
    900 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995

      Etoch Law Firm, by: Charles E. Halbert, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll and J. Brent Standridge, Asst. Att’ys Gen., for appellee.
   Tom Glaze, Justice.

Appellant Craig Keith Hillard appeals

from a jury verdict convicting him of two counts of murder. He was sentenced as a habitual offender to two terms of life without parole. Hillard asserts five points for reversal.

Hillard first argues his attorney was not qualified under state law to represent him in a capital murder case. Charles E. Halbert, Jr. was appointed to defend Hillard on January 1, 1993, and Halbert, one day before trial, on November 8, 1993, informed the trial court that, pursuant to Act 1193 of 1993, the Arkansas Public Defender Commission had drafted standards for attorneys who could practice as a public defender. He conceded to the trial judge that he did not meet most of the qualifications established by the Commission. See § 11(a)(2) of Act 1193 [compiled as Ark. Code Ann. § 16-87-203(2) (Supp. 1993)]. The trial court denied Halbert’s motion for new or additional counsel, stating that Act 1193 has no bearing on Halbert’s appointment since he was appointed long before Act 1193 went into effect. The trial court also ruled that it would not be proper to bring in extra counsel one day before trial.

Hillard’s argument seems to be one of claiming ineffective assistance of counsel, but he merely mentions his counsel’s failure to meet unabstracted and unspecified standards he claimed had been “drafted” by the Arkansas Public Defender Commission. This court has held that ordinarily we do not consider a charge of ineffectiveness when a case is first appealed because the facts relevant to that issue have not been developed. However, when the proof is presented at a hearing on a motion for a new trial, economy of procedure would require a single appeal of all the issues. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). In the present case, Hillard offered no such proof or motion for new trial, raising an ineffective counsel issue. Nor can we find where the matter was fully developed at any other stage of trial. As a consequence, we reject Hillard’s first point.

Next, Hillard contends the trial court erred in calling two witnesses to testify at the suppression hearing. Before calling these witnesses, Officer Ronnie White had testified that he had obtained consent from Ameila Anderson to enter her mother’s apartment where the officers found Hillard’s blue duffel bag that contained two .38 caliber revolvers — one a Smith and Wesson and the other a Charter Arms. The Smith and Wesson had been taken during the robbery and homicides with which Hillard was later charged and the Charter Arms was later identified as being the likely revolver used during the robbery and killings. After White’s testimony, the state rested, but the trial judge asked if the presence of Ameila Anderson and her mother, Betty Sue Webster, could be obtained so the judge could ask them questions. Anderson and Webster appeared that same day, and by his questioning, the judge confirmed White’s earlier testimony that the two women had consented to the officers’ search of Webster’s apartment and Anderson’s bedroom in the apartment where Hillard also stayed. Hillard complains on appeal that the judge left his judicial role when he called and questioned the women as witnesses and became an advocate on behalf of the state. At trial, Hillard’s actual objection appeared to question the judge’s having opened the case after the state had rested.

We point out that this court has held that the case-in-chief may be reopened for the taking of additional evidence and such a matter is committed to the discretion of the trial court. Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994). In addition, A.R.E. Rule 614 authorizes the trial court on its own motion to call and interrogate witnesses. Here, the trial court asked questions designed merely to confirm testimony previously given by Officer White. Both Hillard and the state were afforded ample opportunity to inquire of the two court-called witnesses as well. In these circumstances, we cannot conclude the trial judge abused his discretion in any way.

Hillard’s third argument concerns the trial court’s questioning of Ameila Anderson during the same pretrial suppression hearing just discussed. The trial judge asked Anderson if she could have used Hillard’s duffel bag which the police found in her bedroom and could she have placed something in the bag, if she had wanted. Hillard objected, stating the question called for speculation. On appeal, however, Hillard cites no legal authority nor offers convincing argument explaining how Anderson’s answer was speculative. Specifically, he does not explain why Anderson’s answer could not have been based upon factors within her own knowledge. Her response was that “If I needed to use it [I could have], but I didn’t.” In sum, Hillard simply fails to show any error.

In his fourth point, Hillard expands on his second and third arguments by arguing the suppression testimony given by Anderson was insufficient to support the search and seizure of Hillard’s duffel bag and contents found in Webster’s apartment. In particular, Hillard urges that, while Anderson (and Webster) had consented to search the premises, Anderson did not have actual or apparent authority to consent to search Hillard’s bag. We disagree.

United States v. Matlock, 415 U.S. 164 (1974), is factually similar to the case before us. Matlock lived with Mrs. Graff in a house leased by Mrs. Graff’s mother. Police officers suspected Matlock committed a robbery, and they asked Mrs. Graff if they could search the house. She consented to the search of the house, including the east bedroom on the second floor which she said was jointly occupied by Matlock and herself. In searching that bedroom, the officer found $4,995 in cash in a diaper bag in the room’s only closet. The Court upheld the search, holding that, when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant (Matlock), but may show that permission to search was obtained from a third party (Mrs. Graff) who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. See Illinois v. Rodriguez, 497 U.S. 177 (1990). Arkansas Rules of Criminal Procedure, Rules 11.2(c) and 11.3, are in accord. See also Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994). The determination of third-party consent, like other factual determinations relating to searches and seizures, must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? Rodriguez, 497 U.S. at 188.

The present case is almost on all fours with Matlock. Hillard occupied a bedroom with his girlfriend, Ameila Anderson, whose mother, Ms. Webster, rented the apartment. It is unquestioned that Anderson had authority to consent to the search of/the apartment, and she did so, giving officers no limits or restrictions. Anderson’s mother also consented. Ms. Anderson showed the officers to the bedroom that she and Hillard occupied, and identified Hillard’s blue duffel bag, which was unlocked and located on the bed they shared. In opening the bag, the officers found the two .38 caliber revolvers that subsequently were shown either to have been taken from or likely had been utilized in the robbery and murders. Like in Matlock, the officers’ search should be upheld.

In sum, the record reflects the state established that Anderson had common authority, permitting her to authorize the officers to search the premises. Concerning the scope of the consent given, both Anderson and her mother had common authority over the premises, and it is uncontroverted that they gave their unqualified and unrestricted consent to search the entire premises, including the room where Hillard’s duffel bag was found. Anderson clearly stated that she gave the officers the right to search Hillard’s as well as her things in the bedroom which they jointly shared. Whether Hillard actually authorized anyone to open or consent to the search of his bag is unimportant.

Finally, we consider Hillard’s fifth point whereby he claims the trial court erred in denying his motion for a directed verdict. The trial court’s ruling was correct. As discussed previously, Hillard’s duffel bag was found which contained two .38 revolvers and other evidence connecting him with the robbery and homicides. One of the revolvers, a Smith and Wesson, matched the revolver which was taken during the course of the crimes in issue. Testimony was also admitted showing that two bullets taken from one of the victims could have come from the other Charter Arms .38 revolver found in Hillard’s bag. A firearms specialist also stated that five expended Federal shell casings found in the officers’ search of the Webster’s premises had been fired from Hillard’s Charter Arms revolver. In addition, Hillard drove a white Jeep Cherokee with Minnesota tags. On the date of the crime, a witness, Truett Rohscheib, saw Hillard’s Jeep Cherokee parked in front of the liquor store where the robbery and double homicide took place. Anderson testified that, when she woke up on the day the crimes were committed, Hillard was gone from home. She said that Hillard later told her that he had shot the men at the liquor store because one of the men was going to shoot him. This evidence, alone, was sufficient to sustáin Hillard’s verdict.

The record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h), and there is no error that has been identified that would warrant reversal.

Affirmed.

       Act 1193 went into effect on July 1, 1993.


author: Donald L. Corbin, Justice. Andree Layton Roaf, Justice,

text:
    Christopher Ray STONE v. STATE of Arkansas
    CR 94-61
    900 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995

      Ray Hartenstein, for appellant.

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

Appellant, Christopher Ray Stone, appeals the judgment of his conviction by jury verdict in the Faulkner County Circuit Court of one count of murder in the first degree and sentence of life imprisonment. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). For reversal, appellant asserts four points of error. We find no merit and affirm.

FACTS

The victim, David Webb, was found dead on November 16, 1991 at approximately 3:15 a.m. behind the check-out counter of a gas and convenience store in Greenbrier, referred to in the abstract as “Satterfield’s,” where he was employed as a clerk. Webb had been repeatedly stabbed and his throat had been cut. Cash in the approximate amount of $400.00 was missing. The customer who entered the store to pay for his gasoline purchase and discovered the victim’s body told police that, as he was pumping the gasoline, he had observed a man run from the store and hurriedly drive away. Based on that customer’s description, a computer-generated drawing of the suspect was produced. A second customer came forward later that morning and told police that, shortly before 3:00 a.m., she had seen Webb and another man standing behind the counter. This witness provided a description of the man she had seen with Webb and a second computer drawing of the suspect was produced.

When the computer drawings were displayed at the crime scene, other store employees remarked upon their resemblance to appellant, a Satterfield’s employee. Further, appellant’s car, a black late-model Chevrolet Beretta, fit the general description given of the vehicle which had been observed speeding away from the crime scene.

Faulkner County Sheriff Bob Blankenship and Arkansas State Police Investigator Jim Rainbolt shortly thereafter departed the crime scene to drive to appellant’s residence near Greenbrier for the purpose of questioning him about the homicide. En route, they saw a black Beretta travelling at a high rate of speed in the opposite direction and unsuccessfully attempted to catch up with it. By radio dispatch at 11:40 a.m., Blankenship notified local law enforcement officers to stop the speeding vehicle.

At the scene where the Beretta was stopped on U.S. Highway 65, appellant was briefly questioned by Blankenship and there confessed to the murder. Appellant was arrested by Blankenship at 11:43 a.m. and transported to the Greenbrier Police Station where he first received notification from the police of his constitutional right against self-incrimination as required by Miranda v. Arizona, 384 U.S. 436 (1966). Appellant then executed a written waiver of that right and consented to the videotaping of a twenty-five minute interview with Rainbolt which commenced at 12:00 noon, wherein he again confessed to the murder.

Appellant was charged with capital murder by felony information filed on November 21, 1991. His first jury trial ended in a mistrial. His second jury trial was conducted in June 1993 and resulted in his conviction for murder in the first degree. The judgment and commitment order was filed on June 21, 1993. This appeal arises therefrom.

I. ADMISSION OF CONFESSIONS

For his first assignment of error, appellant argues the trial court erred in denying his motion to suppress his confessions at the roadside and at the station-house. On November 25, 1992, appellant filed a pretrial motion to suppress all statements taken from him on November 16, 1991. An evidentiary hearing was conducted on January 25, 1993; the motion was renewed during both trials.

The testimonies of Blankenship and Rainbolt at the hearing on the motion to suppress show that, as they drove to appellant’s residence near Greenbrier for the purpose of questioning him about the homicide, they saw a vehicle travelling at a high rate of speed in the opposite direction. Blankenship testified that, by radio dispatch, he notified local municipal law enforcement officers to stop the speeding vehicle.

Greenbrier City Police Officer Gary Cossey testified that at approximately 11:40 a.m. he received the radio dispatch and stopped the speeding vehicle, which was appellant’s Beretta, on U.S. Highway 65 in Greenbrier. Cossey testified he first noticed the Beretta because it was travelling approximately twenty miles per hour in excess of the speed limit. Cossey testified he and appellant remained in their respective vehicles until Blankenship and Rainbolt arrived “momentarily.” At about the same time, Cossey testified, several other law enforcement vehicles also stopped at the roadside scene. Cossey testified that he “just stayed back away” and could not overhear any conversation between appellant and Blankenship.

Blankenship and Rainbolt each testified that they stepped out of their vehicle and approached the Beretta as appellant exited his vehicle and identified himself to the officers. Blankenship testified he first asked appellant why he was driving so fast, and appellant replied he was on his way to “the station” after receiving a telephone call informing him of Webb’s death. Blankenship testified he then asked what appellant did the night before, and appellant replied he was riding with some friends, had gotten home around 2:00 a.m. and had stopped at Satterfield’s for a free soft drink. Blankenship testified he then asked appellant what side of the building he was on, thinking appellant might have seen something, and appellant replied he had parked where all the employees parked on the store’s south side. Blankenship testified he then asked appellant if he could look at appellant’s house, and appellant replied that would be fine. Blankenship then testified:

A. I asked him if he would mind if we looked in the trunk, and at that point he said, I believe, I don’t remember if he opened it then, he said, “Are you Sheriff Blankenship?” And, I said, “Yes.” And that’s when he — he threw his keys down and he said, “Well, you might as well go ahead and arrest me.” And, I said, “What?” And, he said, “Well, you might as well go ahead and arrest me. I did it.” And, I turned to Rainbolt and he said — and I said, “Did you hear that?” And, Rainbolt didn’t hear it. And he said, “What?” And, uh —
Q. So, Rainbolt asked him again?
A. Said — said — he said, “What did you say?” And, he said, you know, “I did it. I stabbed David. I’m the one you’re looking for. You would have caught me anyway.”

Blankenship testified to his “shock” at the confession.

A narrative report dated November 16, 1991 and abstracted as “Traffic Stop Report of Sheriff Blankenship” was introduced at the hearing as Defendant’s Exhibit 6. The only notable difference between the facts relating to the roadside confession as rendered in the report versus Blankenship’s testimony is that the report makes no reference to any request by Blankenship to examine the Beretta’s trunk, but states that, after appellant consented to a search of his house:

Investigator Rainbolt told him to go ahead and drive his car up to his house. Mr. Stone walked over to the drivers side and started to get into his vehicle, as I walked to get into mine. He then turned around and asked me, “Are you Sheriff Blankenship?” I said “yes.” He then walked to the back of the car towards me and threw his keys down and stated, “You might as well go ahead and arrest me.”

The rest of the report is consistent with Blankenship’s testimony describing the roadside confession, including the repetition of the confession for Rainbolt.

Rainbolt testified at the hearing that he recalled Blankenship questioning appellant about why he was driving so fast and what he had done the night before, but could not otherwise recall the “conversation of what all was asked, or anything else. It’s — it’s a general information-gathering type of question.” Rainbolt was not questioned specifically about the moment of the confession.

Both officers testified that appellant was questioned as a witness and was not viewed as a suspect prior to his roadside confession. At the hearing, the trial judge, ruling from the bench, denied appellant’s motion to suppress the roadside confession and stated:

It appeared to me from the testimony and from what’s been admitted as Defendant’s Exhibit Number 6 that the statement made by Mr. Stone, that he’s the one, you might as well go ahead and arrest me, was not a response to any question that was asked. It was merely a spontaneous confession.

During an in camera hearing conducted on June 17, 1993 immediately following jury selection in the second trial, appellant renewed his motion to suppress the confessions and, in support of the renewed motion, submitted a transcript of the testimony of appellee’s witnesses given on February 11 and 12, 1993 in the first trial as “Defendant’s Exhibit 1.” The trial court summarily affirmed its initial ruling denying the motion.

At the first trial, Rainbolt testified that when appellant made his confession, appellant, Rainbolt and Blankenship were preparing to drive to appellant’s house to look at the clothes he had worn the night before. Rainbolt testified:

A. [A]s we were fixing to go out there, we told him, “Go ahead, get in your car. We’ll follow you out there.” Before he got in his car, he turned to the Sheriff and said, “I’m the one you’re looking for. I stabbed David.”
Q. Okay. And this was after y’all had basically turned him lose [sic] to get in his car?
A. Right. He was free to get in his car and — and take us out to his house.
Q. Okay. And had you and the Sheriff both turned away from him?
A. I had turned away from him. He called, — talked to the Sheriff, asked him if he was, I believe, Blankenship.
Q. Okay. He called back at the Sheriff?
A. Right.
Q. Y’all both were heading back to your car when he called him?
A. More or less, yes, sir.
Q. All right. And the conversation had terminated at that point when he said — when he turned around and said, “Are you the Sheriff?”
A. At that time, we transported him to the Greenbrier Police Department, Mirandized him, and took a statement from him.

At the second trial, Rainbolt’s testimony was consistent with his testimony at the earlier trial. Additionally, he testified that appellant was “very cooperative.”

A spontaneous statement, whether or not made by a declarant entitled to the Miranda warnings, is not rendered inadmissible because those warnings were not given. Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). This rule of law obtains because spontaneous statements are not compelled or coerced in any way significant under the Fifth Amendment’s privilege against self-incrimination. The Miranda Court itself recognized this rule of law when it stated: “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” 384 U.S. at 478. Consequently, in considering the issue of whether appellant’s roadside confession was spontaneously made, we are not required to discuss whether appellant was then subject to custodial interrogation.

Appellant cites three cases in support of his argument that the roadside confession was not spontaneous: Scherrer, 294 Ark. 287, 742 S.W.2d 884; Shelton, 287 Ark. 322, 699 S.W.2d 728; and Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). In Scherrer and Shelton, the decisive factor on the issue of whether the appellant’s incriminating statement to the police was spontaneous was whether it was the result of police questioning. In Beed, we found reversible error on grounds not pertinent to this appeal. In that opinion, we addressed, as an issue likely to arise on retrial, appellant’s objection on Fifth Amendment grounds to the admission of an incriminating statement he made in jail during a telephone conversation which was overheard. We observed the overheard statement was not the result of any interrogation whatsoever and that it might be advisable for the court on retrial to conduct a hearing to determine the voluntariness of the statement.

In Scherrer, we held a jailed defendant’s incriminating statement to Officer Moore was spontaneous where there was no indication that Moore questioned the defendant or intended to elicit the defendant’s incriminating statement when he spoke with him after Moore was asked by the defendant to come to his cell and the defendant brought up the subject with respect to which his incriminating statement was made.

In Shelton, we held a defendant’s incriminating statement to Officer Liles was not spontaneous as it was the result of questioning where, sometime after the defendant was awakened by the police P.A. system at 2:30 a.m., the defendant and Liles were left alone in the police vehicle, Liles told defendant of the seriousness of the crime (murder) and stated that if defendant knew anything about it or could help locate the suspects, “he’d better go ahead and do it,” whereupon tears came to the defendant’s eyes and he stated “‘We did it’” and “‘We were there.’” Id. at 327, 699 S.W.2d at 730.

In determining whether appellant’s confession was admissible, we evaluate the totality of the circumstances and reverse only if the trial court’s finding is clearly against the preponderance of the evidence. Day v. State, 306 Ark. 520, 816 S.W.2d 852 (1991). In reviewing the trial court’s denial of the suppression motion, we engage in all reasonable presumptions consistent with the ruling of the trial court. Johnson v. State, 319 Ark. 78, 889 S.W.2d 764 (1994). In determining whether a defendant’s in-custodial statement was spontaneous, we have focused on whether it was made in the context of a police interrogation, meaning direct or indirect questioning put to the defendant by the police with the purpose of eliciting a statement from the defendant. Scherrer, 294 Ark. 287, 742 S.W.2d 884.

In this case, the roadside confession was not made in response to any of Blankenship’s “general information-gathering type” questions. At the time the confession was made, Blankenship’s questions had ended. Appellant initiated the brief roadside conversation which culminated in his confession when he asked Blankenship to identify himself as the sheriff. We view Rain-bolt’s query — “What did you say?” — to appellant after his confession to Blankenship as a neutral inquiry intended to clarify what had already been said and therefore a continuation of appellant’s confession. See Berna v. State, 282 Ark. 563, 568, 670 S.W.2d 434, 437 (1984), cert. denied, 470 U.S. 1085 (1985) (quoting Innis, 446 U.S. 291: “[A] voluntary in-custody statement does not become the product of an ‘in-custody interrogation’ simply because an officer in the course of appellant’s narration, asks defendant to explain or clarify something he has already said voluntarily.”).

There is no evidence that appellant, an 18-year-old high school graduate, was coerced or compelled to confess. Appellant’s confession was made within three minutes of the time he was stopped on U.S. Highway 65. Although several police cars were at the scene, there is no evidence that any officer other than Blankenship and Rainbolt approached or questioned appellant prior to the time he made his confession. The police inquiry was appropriate under the circumstances and was free of the use of any mental or physical punishment. On this record, we do not find that the preponderance of the evidence is clearly against the trial court’s finding that the roadside confession was spontaneous.

Appellant’s clearly stated argument to the trial court at the January 25, 1993 evidentiary hearing for suppression of his post-arrest confession at the police station was that the station-house confession was “the fruit of the illegal questioning at the crime scene.” In support of his motion, appellant submitted a transcript of the station-house interview. The trial court denied the motion without elaboration. On appeal, appellant argues the trial court erred in not suppressing his station-house confession, as well as the physical evidence seized thereafter, because there was no dissipation of the coercive elements of the roadside confession and because, appellant alleges, the seizure of the physical evidence was the direct result of law enforcement’s exploitation of the roadside confession to pressure appellant’s waiver of his right to remain silent. Appellant cites Shelton and Oregon v. Elstad, 470 U.S. 298 (1985), in support of his argument.

Appellant’s argument that the roadside confession tainted the station-house confession is meritless because the roadside confession was admissible as a spontaneous utterance, Day, 306 Ark. 520, 816 S.W.2d 852. This case is therefore patently distinguishable on its facts from the Shelton and Elstad decisions, each of which considered the admissibility of a second confession in the situation where the defendant’s first confession was ruled inadmissible due to law enforcement’s failure to comply with Miranda. We do not discuss appellant’s argument regarding the suppression of physical evidence because the abstract fails to show the substance of any corresponding objection made below.

II. “DEATH QUALIFICATION” OF JURY

In his brief, appellant states in his second point for reversal that he sought to prevent death qualification of the jury on the ground that such would deny his constitutional right to a fair and impartial jury. The abstract reveals that, on November 24, 1992, appellant filed a motion to prohibit death qualification of the jury and the state’s response was filed on January 4, 1993; the substance of neither is abstracted. The supplemental abstract shows that, in a pretrial hearing on January 4, 1993, appellant admitted that the issue was controlled, absent new evidence, by Lockhart v. McCree, 476 U.S. 162 (1986), and that the trial court summarily denied the motion. In his brief, although appellant concedes this issue is controlled by the Lockhart decision, he asserts that the Supreme Court wrongly decided that case and then adds, with no argument or citation to authority, that we may still consider the issue under the Arkansas Constitution. On this record, we find that appellant did not rely on the Arkansas Constitution below and therefore has failed to adequately present or preserve any argument for our review.

III. INCONSISTENT VERDICT

Appellant states in his third point for reversal that the jury verdict convicting him of murder in the first degree should be set aside because it is inconsistent with “acquittal on the identical, higher offense of capital murder,” the crime charged in the information. Appellant recites that, after the jury returned its verdict, he moved for judgment notwithstanding the verdict and for a directed verdict of acquittal on the charge of capital murder on the grounds that the jury’s acquittal on the charge of capital offense necessarily constituted acquittal on the charge of murder in the first degree because the elements of the two offenses were identical. Appellant succinctly concludes this point of appeal by stating that he “recognizes this issue is controlled by the decision in United States v. Powell, 469 U.S. 57 (1984), but asserts that decision was wrongly decided.” Appellant makes no additional argument and cites no other authority to this court. On this record, we find that appellant has failed to adequately present any argument for our review.

IV. SUPPRESSION OF KNIFE

Appellant states in his fourth point for reversal that he filed a pretrial motion to prohibit introduction of a knife seized from his vehicle and . that, following an evidentiary hearing in which appellant and appellee presented conflicting evidence regarding the location of the knife prior to the time it was seized, the trial court denied the motion. Appellant then concedes the conflicting evidence presented an issue of credibility for the trial court’s determination which is binding on appeal in the absence of an abuse of discretion, and that no such abuse can be demonstrated on the facts as presented. Appellant makes no additional argument. On this record, we find that appellant has failed to adequately present any argument for our review.

COMPLIANCE WITH RULE 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h), the transcript has been examined for prejudicial errors objected to by appellant but not argued on appeal and we conclude no such errors occurred.

The judgment is affirmed.

Newbern and Roaf, JJ., dissent.

Andree Layton Roaf, Justice,

dissenting. I do not agree that the roadside confession of Stone constituted a spontaneous statement which was not made in response to the questioning by the sheriff.

Certainly it was an in-custodial statement. The sheriff testified that there was a “big cluster” of other police vehicles in on the stop of Stone. Even though the officers were prepared to follow Stone as he drove his vehicle to his home, he was doing so in response to a request by the police to search his home; a reasonable person would not have believed that he was free from custody of the police under the circumstances. See Stansbury v. California, 511 U.S._, 128 L. Ed. 2d 293 (1994); Berkemer v. McCarty, 468 U.S. 420 (1984).

The thrust of the questions posed by the sheriff — “What were you doing last night?. . . Can we go out to your house and look at your clothes from last night . . . can we look in your trunk?” made it clear that the sheriff suspected appellant was personally implicated in the killing of his co-worker. It was not mere “general informational-gathering type” questioning as characterized by an officer involved, but constituted interrogation for the purposes of Miranda. See 1 W. LaFave, Criminal Procedure, § 6.7(b) (1984, 1991 Suppl.)(and cases cited therein). Nor, therefore, could I say that appellant’s responses, “Are you Sheriff Blankenship? I’m the one you’re looking for, I stabbed David,” were spontaneous statements or were unconnected to the questions posed by the sheriff immediately prior to this confession.

The majority further misconstrues Miranda v. Arizona, 384 U.S. 436 (1966) as holding any volunteered statement to be admissible, and wrongly concludes it is not necessary to resolve whether appellant was subjected to custodial interrogation in this instance. In fact, the directive of Miranda is that custodial interrogation must be preceded by the requisite warnings, because of its inherently coercive nature. Under Miranda, voluntary and spontaneous statements are admissible if made during custody, but not during custodial interrogation. Miranda states:

In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

In this case, to say that the police engaged in custodial interrogation but the suspect’s response was spontaneous and voluntary, allows an impermissible contradiction to arise from the Miranda holding. As stated in LaFave, supra, at §6.7(b):

Because Miranda found only custody-plus-interrogation coercive, a statement may qualify as “volunteered” even though made by one in custody [but where it did not also stem from interrogation]. . . .

Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), is also factually close to this case, and while the majority states the facts of Shelton, it fails to distinguish it from this case; indeed, the facts in this case are stronger than in Shelton for finding the police conduct constituted interrogation. The suspects in both Shelton and this case had been apprehended and surrounded by the police. In Shelton, the suspect ended up in a police car with the interrogating officer; in this case, the suspect was outside his own car, but was surrounded by a number of police cars and policemen. We found the situation custodial in Shelton and it is clearly custodial here.

In Shelton very little was said to the suspect before he blurted out the incriminating statements. The officer had stressed the seriousness of the crime to the suspect and told him that if he knew anything about it or could help locate either suspect, he should talk to them. At that point the suspect blurted out, “We did it. We were there.” We found the policeman’s questions to be interrogation and the suspect’s resulting statements inadmissible.

In the case before us there was more than just a general request for information as in Shelton. The questions were more pointed and focused on appellant’s possible implication in the crime. Here, after appellant acknowledged he knew the crime had occurred, he was asked the following questions as he was surrounded by policemen and police cars: Why was he driving so fast; what had he been doing the night before; what side of the Satterfield building [the murder scene] had he been the night before; could the police look over his house; could they look at the clothes he had worn the night before; and could they look in the trunk of his car.

Based on the facts in Shelton and those in this case, I must conclude the questioning in this case constituted interrogation for purposes of Miranda. Appellant’s statements could not be considered spontaneous and voluntary under these circumstances and were inadmissible.

Appellant’s subsequent confession made at the police station within an hour of his roadside stop should also be suppressed, even though appellant was given Miranda warnings and executed the proper waivers prior to this confession. When the original confession has been made under illegal influence, such influence will be presumed to continue unless the contrary is clearly shown. See Shelton supra at 331.

Here, as in Shelton, there was not “sufficient dissipation of the coercive elements of the first confession” to render the second admissible.

I would reverse.

Newbern, J., joins in this dissent.

       Our review of the transcript reveals that Cossey’s later trial testimony was that, although he ticketed appellant for speeding, he did not arrest him.

      Likewise, Blankenship’s trial testimony, as abstracted, makes no reference to any request to examine the Beretta’s trunk.

      The Miranda warnings were intended to inhibit the abuse of the Fifth Amendment right against self-incrimination of a person by reason of “custodial interrogation” by law enforcement officers. See generally David M. Nissman and Ed Hagen, Law of Confessions, chs. 4-5 (2d ed. 1994). “Interrogation” means the express questioning or “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). “In custody” means a person who is deprived of his freedom of action by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California,_U.S._, 114 S. Ct. 1526 (1994); State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). The Miranda Court held that a person subjected to custodial interrogation by law enforcement officers must first “be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444. Statements elicited in violation of this rule may not be admitted for certain purposes in a criminal trial. Stansbury,__U.S._, 114 S. Ct. 1526.

         See also Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.7(d), nn. 95-98 and accompanying text (1984 & Supp. 1991) (discussing “volunteered” statements and follow-up questioning).