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

text:
    STATE of Arkansas v. Albert BELL
    CR 96-1543
    948 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered July 14, 1997
    [Petition for rehearing denied September 11, 1997.]

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellant.

      J.W. Green, Jr., for appellee.

       Glaze, J., would grant.

   Robert L. Brown, Justice.

This is the second appeal relating to the judgments of conviction of Albert Bell. Terry Sims and Albert Bell gave statements to law enforcement officers confessing to the murders of Julian Russell and Mary Lou Jones at Cloud’s Grocery Store in Casscoe, Arkansas County. At the ensuing trial of Albert Bell, he was convicted of both murders and sentenced to two consecutive life sentences. We remanded for the limited purpose of a new suppression hearing because the prosecutor failed to make available State Police Sergeant Gary Allen, who allegedly played “bad cop” to Officer John McCord’s “good cop” in the police interrogation of Bell. See Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996). We said in this decision that a new trial would only be warranted in the event that Bell’s statement was suppressed by the trial court on remand. Bell’s remaining points on appeal were rejected by this court.

Following the remand, Bell filed an amendment to his motion to suppress. In the motion, Bell complained that he was not allowed to consult with counsel despite requesting to speak with an attorney and, further, was not allowed to consult his parents. Bell also complained “[t]hat each of the statements was taken in violation of the Arkansas Rules of Criminal Procedure, specifically Rules 2.2 through 3.5.” At the suppression hearing on remand, State Police Investigator John McCord testified that he first spoke with Bell, who was age 16, on January 5, 1993. Officer McCord testified that on that day, he and State Police Officer Lloyd Franklin waited at the Stuttgart Fligh School for Bell to be dismissed from class. He testified that he had told Bell in the principal’s office that he did not have to go to the Arkansas County Sheriffs Department with them. When school was out, the police officers called Bell and Sims over to an unmarked police car and placed them in the back seat. They then drove the two young men to the sheriff s department for questioning. After leaving the high school, Officer McCord did not tell Bell again that he was free to leave.

Bell’s interview at the sheriffs department took about 30 minutes and his mother was with him during the interview. Officer McCord testified that Bell was not a suspect at this time and was free to leave. He admitted that Sims left the sheriffs department during this time and was chased by police officers. It was later revealed that Sims returned on his own. Officer McCord testified that he did not read Bell his Miranda warnings at this time because Bell was not a suspect. Rather, he questioned Bell because Bell was a friend of Sims and because Bell had been seen near the store about the time of the murders. Bell denied being with Sims on the day of the murders.

Deputy Sheriff David Box testified that he was instructed to locate Bell on January 8, 1993, and bring him to the sheriffs department for questioning. He found Sims and Bell at Bell’s grandmother’s house, but they were not placed under arrest or handcuffed. Deputy Box testified that if the two young men had refused to go with him, he would have radioed the sheriff for instructions. He admitted that he did not tell Sims and Bell that they did not have to accompany him.

Officer McCord testified that he interviewed Bell a second time on January 8, 1993, but this time Bell was considered a suspect. He testified that the investigation began to focus on Sims on January 5, 1993, because Sims had given inconsistent times when he returned a videotape to Cloud’s Grocery Store. The state police officer also stated that Sims’s neighbor was missing a .22 revolver, which was the caliber of the gun used in the Casscoe murders. He added that Bell acknowledged he understood his Miranda rights on January 8, 1993; that he agreed to speak with him; and that he initialed the separate Miranda warnings and signed the waiver of rights form. In the first statement taken from Bell on January 8, 1993, Bell repeatedly denied that he was with Sims on the night of the murders. However, Officer McCord knew that Eddrick Bell, Albert Bell’s brother, on the previous day had placed Bell with Sims on the night in question. Eddrick Bell told the police officers that Sims had picked up Bell at about 7:00 p.m. that evening. When confronted with this statement, Bell admitted that he had been with Sims and that he accompanied Sims to Cloud’s Grocery Store. He further told the interrogating officers that he sat in the car and saw Jeanette Gillmore shoot Julian Russell in the grocery store and that Sims ran out of the store while the shooting was in progress.

Officer McCord related at the hearing that Bell never asked to stop the questioning or to terminate the interview on January 8, 1993, and that he never asked for a lawyer. He estimated that he talked with Bell for an hour or less. After the police officer completed his interview, Bell was turned over to State Police Investigator John Howell for a polygraph examination.

Officer John Howell explained at the suppression hearing that Bell agreed to take the polygraph exam. He testified that he inquired about Bell’s statement that a Jeanette Gillmore had done the shooting, but Officer Howell stated that the polygraph test showed that Bell was being deceptive with his answers. Bell told Officer Howell that he would tell the truth if allowed to speak with Sims first. He was told that he could talk to Sims only after he told the truth. Bell then told Officer Howell that Sims shot the victims: “Terry just lost it and started shooting.” Bell wanted to make a plea at that time, and Officer Howell informed him that only the prosecuting attorney had the authority to agree to a plea. Bell was allowed to speak with Sims, and he told Sims that he was going to tell the truth “regardless of what Terry had to say.” Sims then agreed to tell the truth, and he confessed to shooting the two victims.

Officer John McCord had first testified that he did not believe he had probable cause to arrest Bell on January 8, 1993. When he retook the stand at a later date, he testified that it was “borderline” but he thought there was probable cause to arrest on January 8, 1993.

State police sergeant Gary Allen testified that he “sat in” on the January 8, 1993 interrogation. He denied that he conducted the interview or threatened or coerced Bell to make a statement. He did admit to telling Bell that he was lying.

Bell took the stand at the suppression hearing, as did his parents, who testified that they were excluded from the January 8, 1993 interview. Bell denied that he knew what a Miranda right was. He admitted that he had a juvenile offender history but denied that he had ever been read his Miranda rights previously. He stated that he had since learned of his rights in prison. Bell admitted that Officer McCord read him his rights on January 8, 1993, but he stated that Officer McCord did not explain what those rights meant. Bell admitted that he initialed the paragraphs on the waiver form and signed it because he was told to do so. He further stated that he requested an attorney. He did not think he could leave on January 8 because the police officers had chased Sims when he left the sheriff’s department on January 5.

On cross-examination, Bell admitted that he was told that he had the right to remain silent, but he felt compelled to answer the questions that were being asked to him. He further testified that he had heard Miranda warnings read in television programs but revealed that he did not understand them. Bell admitted that he did not ask for an explanation of his rights. He also indicated that at least some of his rights had been explained to him as a juvenile. Bell added that while he understood the words of the warnings, he did not understand what they meant.

The trial court entered its order and concluded that Rule 2.3 was not complied with when Bell was picked up from high school for questioning on January 5, 1993. Moreover, he was not advised of his Miranda rights on that date. The trial court observed that Rule 2.3 was also not complied with when Bell was picked up for questioning on January 8, 1993. Nor, according to the trial court, did police officers have probable cause to arrest him at that time. The court then stated:

The record does not reflect any effort taken by the state to comply with Rule 2.3 nor any efforts by the state to determine whether the waiver executed by the defendant was made with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them.

However, the court agreed that Bell had acknowledged that he understood his rights when they were read to him.

The court suppressed the statements made by Bell on both January 5 and January 8, 1993, and the State has appealed that order.

I. Rule 2.3

The State first disagrees that a violation of Ark. R. Crim. P. 2.3 transpired. Rule 2.3 states:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

Ark. R. Crim. P. 2.3 (emphasis added). The State malees three arguments under this point on appeal: (1) the consideration of Rule 2.3 was barred by the law-of-the-case doctrine; (2) the trial court erred in concluding that Rule 2.3 was violated on January 5, 1993; and (3) any violation of Rule 2.3 on January 8, 1993, was immaterial because there was probable cause to arrest Bell at that time.

Law of the case.

The State contends that Bell was barred on remand from arguing that there was a Rule 2.3 violation because he had failed to argue that point in his first appeal. As a result, the State contends, the asserted error was barred by the doctrine of law of the case. Bell answers that the State’s argument is not preserved for appeal because it was not raised in the trial court. While the State contends that the argument is jurisdictional, Bell urges that it is merely an affirmative defense.

Bell is correct that the law-of-the-case defense cannot be raised for the first time on appeal. It is undisputed that the State failed to make this argument to the trial court. Moreover, this court has previously recognized that law of the case is an affirmative defense like estoppel or res judicata. See Earney v. Brantley, 309 Ark. 190, 828 S.W.2d 832 (1992). The defense is not preserved for our review.

Violation of Rule 2.3 on January 5, 1993.

The State next contends that the trial court overlooked the uncontroverted testimony from Officer McCord that he told Bell at the Stuttgart High School on January 5, 1993, that he did not have to accompany him to the sheriff’s department. Under the bright-line rule, according to the State, this was all that was required. Bell counters with the assertion that the evidence must be viewed in his favor, and that the trial court found no such Rule 2.3 admonition was given.

We decline to address the merits of this issue because it appears patently clear that Bell did not incriminate himself with his statement on January 5, 1993. Indeed, on that day he was not a suspect, and he told police officers that he was not at Cloud’s Grocery Store or with Terry Sims on the night of the murders. He was subsequently found to be lying, but no incriminating evidence was obtained from Bell as a result of his interview on that date. We conclude that any error associated with the January 5, 1993 interview was harmless beyond a reasonable doubt. See Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997).

Violation of Rule 2.3 on January 8, 1993.

The State next contends that there could be no violation of Rule 2.3 on January 8, 1993, because Rule 2.3 had been complied with on January 5, 1993 and there was probable cause to arrest Bell on January 8th. Both the criminal rules and our caselaw recognize that if a police officer has probable cause to arrest, failure to give a Rule 2.3 warning is irrelevant. See Ark. R. Crim. P. 2.1; see also Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). Probable cause exists when there is reasonably trustworthy information within law enforcement’s knowledge that would lead a person of reasonable caution to believe that a felony was committed by the person detained. Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Addison v. State, supra; Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987).

The essential facts that were available to law enforcement on January 8, 1993, were that Terry Sims had lied to them about the time he returned the movie to Cloud’s Grocery Store on the day of the murders; that Sims was at the grocery store when the murders occurred; that a .22 caliber pistol was missing from the home of a friend of Sims, and that was the caliber of pistol used in the killings; that Bell told the police officers he was not with Sims after school on the day of the murders but that Bell’s brother contradicted that story; that Bell’s brother told law enforcement officers that just prior to the murders Sims came by to pick up Bell and that the two young men had earlier discussed returning a videotape and getting a soda; and that Bell returned a short time later with a soda pop.

This court has held that the test for determining probable cause rests on the collective information of the police officers. See Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). We further are of the opinion that the fact that Officer McCord was contradictory about whether he had probable cause to arrest is not determinative of the issue. We conclude that this evidence was sufficient to lead a person of reasonable caution to believe that Sims had committed the killings while Bell was present. Even though “mere presence” does not make one an accomplice [see Ark. Code Ann. § 5-2-403 (Repl. 1993)], these facts are enough to constitute probable cause to arrest. The trial court was clearly erroneous in suppressing the January 8, 1993 statement due to the failure to give a Rule 2.3 warning and in finding that probable cause did not exist.

We further take this opportunity to state that in the future we will not interpret Ark. R. Crim. P. 2.3 to require a verbal warning of freedom to leave as a bright-fine rule for determining whether a seizure of the person has occurred under the Fourth Amendment and whether a statement to police officers must be suppressed. Rather, we will view a verbal admonition of freedom to leave as one factor to be considered in our analysis of the total circumstances surrounding compliance with Rule 2.3. In short, when interpreting Rule 2.3 in the future in deciding whether a seizure of a person has transpired, we will follow United States v. Mendenhall, 446 U.S. 544 (1980). See also Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997)(Brown, J., concurring opinion). To the extent that our decisions in Burks v. State, supra-, Addison v. State, supra; Hart v. State, supra; Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); and Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997), state a contrary interpretation, we retreat from that interpretation.

II. Comprehension of Waiver

The State also contends that the circumstances prove that Bell had read and understood his Miranda rights on January 8, 1993, and that the trial court clearly erred in ruling otherwise. The State specifically urges that it was not required to make any special or additional effort to assess Bell’s ability to understand his rights and the consequences of a waiver. We agree.

It was undisputed that Bell had been read his Miranda rights prior to giving the statement on this date. Bell also had some familiarity with the criminal justice system due to the fact that he had previously been on probation as a juvenile offender. In fact, he knew that as a juvenile, he was entitled to have his parents or a lawyer present when being questioned. He was age 16 and a high school sophomore who was taking regular courses in math, science, and English, though he had also been in remedial classes since the fourth grade. He further agreed that he understood the words in his warnings but denied knowing their import.

A defendant’s waiver of Fifth and Sixth Amendment rights must be knowing and intelligent with “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). We analyze the issue of a knowing and intelligent waiver under the test of totality of the circumstances. See Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997); Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996). Bell was 16 at the time of his confession. He was in the 10th grade and apparently on track to graduate from high school. Moreover, he had some experience with the criminal justice system, and he initialed each of his Miranda rights after reading them. He further agreed that he knew what the words meant.

Balanced against these factors is Bell’s self-serving statement that he did not realize the consequences of a waiver. He also contends that he requested counsel, which partially flies in the face of his contention that he did not understand his Miranda rights. While it is true that we defer to the trial court’s assessment of credibility [State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997)], here the trial court provides no insight as to why it found that Bell did not understand the consequences of what he was doing. Indeed, the factors clearly preponderate in favor of a knowing and intelligent waiver. The mere statement of the accused that he did not comprehend a waiver’s significance is not enough in light of his statement that he understood the words and his acknowledgment to the officers that he understood his rights. We hold that the trial court clearly erred in suppressing the statement of Bell on this basis.

Because we reverse the decision of the trial court, a new trial is not warranted. See Bell v. State, supra. A mandate will be issued affirming the convictions and sentences in this case.

Reversed.

Newbern, Glaze, and Imber, JJ.,. dissent.

David Newbern, Justice,

dissenting. The decision of the Trial Court to suppress the incriminating statement given by Albert Bell to the police on January 8, 1993, rested on two alternate findings. First, the Trial Court found that the police failed to apprise Mr. Bell on January 8 that he was under no legal obligation to accompany them to the police station, that the police did not have probable cause to arrest Mr. Bell on that date, and that suppression of the statement was therefore required under Ark. R. Crim. P. 2.3. Second, the Trial Court concluded that Mr. Bell did not knowingly and intelligently waive his constitutional rights prior to making his statement on January 8 and that suppression of the statement was also required under the Fifth and Sixth Amendments to the United States Constitution. The Trial Court’s decision to suppress Mr. Bell’s January 8 statement was correct under our cases that have interpreted Rule 2.3 and discussed the concept of probable cause.

The rule of criminal procedure at issue in this case is Ark. R. Crim. P. 2.3. The rule was adopted by a per curiam order of this Court on December 22, 1975, and made effective on January 1, 1976. See In the Matter of Rules of Criminal Procedure, 259 Ark. 863, 530 S.W.2d 672 (1975). The rule provides as follows:

Warning to Persons Asked to Appear at a Police Station.
If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

Ark. R. Crim. P. 2.3.

As we have consistently held, most recently only two months ago, a police officer who requests a person to come to the police station has a “positive duty” under Rule 2.3 to express to the person verbally that he or she has no legal obligation to comply with the request. Martin v. State, 328 Ark. 420, 429, 944 S.W.2d 512, 517 (1997). The obvious reason for the requirement is the impossibility, absent such a verbalization requirement, of administering a rule which requires that the matter be “made clear” to the person requested to accompany an officer.

Our “bright-line rule” is that “a statement must be suppressed under Rule 2.3” if the police “simply fail to notify the person” that he or she does “not have to come to the station for questioning.” Id. However, if the police had probable cause to arrest the person at the time of the request, then suppression of the statement will not be required even if the police violate Rule 2.3. In that instance, the violation of Rule 2.3 is “excused.” Id.

As mentioned, the Trial Court found that suppression of Mr. Bell’s January 8 custodial statement was required under Rule 2.3. In reversing the Trial Court on this point, the majority appears to hedge on the initial question of whether the police in this case even violated Rule 2.3. But the majority concludes that, regardless of whether the rule was violated, it was error for the Trial Court to suppress Mr. Bell’s January 8 statement because the police had probable cause to arrest him at the time they requested him to come to the police station.

In light of its ruling on the probable-cause issue, the majority determines that it is “irrelevant” whether the police violated Rule 2.3. However, the majority seizes the “opportunity” in this case to announce that, “in the future,” the failure of the police to give a verbal warning will not be dispositive of the questions of “whether a seizure of the person has occurred under the Fourth Amendment and whether a statement to police officers must be suppressed.” Under the majority’s proposed rule, the courts would consider the police’s failure to give a verbal warning as merely one factor in determining whether the police have complied with Rule 2.3. The majority says that this approach is based upon “the constitutional rule laid down in United States v. Mendenhall, 446 U.S. 544 (1980).” It fashions its opinion as a “retreat” from the numerous cases that imposed the verbal-warning requirement on police officers under Rule 2.3.

The majority’s analysis of Rule 2.3 is, in my view, supported by neither the law nor the facts in this case.

1. The verbal-warning requirement

The proposal to abolish the “positive duty” we have imposed on the police under Rule 2.3 is improper on procedural and substantive grounds. First, the majority opinion, by its own analysis, makes its announcement not only unnecessary to this case but “purely academic” with respect to this case. Kapp v. Bob Sullivan Chevrolet Co., 234 Ark. 395, 405, 353 S.W.2d 5, 11 (1962). We consistently refuse to rule on issues that are unnecessary to our decisions. See Shackelford v. Patterson, 327 Ark. 172, 179, 936 S.W.2d 748, 752 (1997); Avery v. Ward, 326 Ark. 829, 838, 934 S.W.2d 516, 522 (1996); Duncan v. State, 263 Ark. 242, 244, 565 S.W.2d 1, 2 (1978); Rogers v. Watkins, 258 Ark. 394, 396, 525 S.W.2d 665, 667 (1975). If the majority wishes to abandon precedent and alter fundamentally the requirements of Rule 2.3, it should do so in a case in which the question of whether the rule has been violated is ripe and squarely before us.

Second, the majority proposes a dramatic change in the law of criminal procedure on the basis of a contention that the parties did not argue, brief, or in any manner present to the Trial Court or this Court. In so doing, the majority strays from our sound practice of dechning to resolve legal questions that are not briefed by the parties. See, e.g., Rider v. Cunningham, 232 Ark. 407, 409, 337 S.W.2d 868, 869 (1960); Union Motor Co. v. Turbiville, 223 Ark. 92, 97 n.5, 264 S.W.2d 592, 594 n.5 (1954); Johnson v. McAdoo, 222 Ark. 914, 917 n.2, 263 S.W.2d 701, 703 n.2 (1954); Wright v. Aaron, 214 Ark. 254, 263 n.6, 215 S.W.2d 725, 729 n.6 (1948); Avery v. State, 15 Ark. App. 134, 139, 690 S.W.2d 732, 735 (1985) (Cracraft, C.J., concurring). In the case at bar, the State has not asked the Court to overrule our cases such as Martin v. State, supra, that require suppression of evidence under Rule 2.3 when the police fail to make a verbal warning and lack probable cause to arrest. The State accepts this “bright-line rule” as the law and essentially concedes that the police violated Rule 2.3 on January 8. Its only argument on appeal is that suppression of Mr. Bell’s statement was improper because the police had probable cause to arrest Mr. Bell.

Third, the majority offers no persuasive rationale for departing from the principle of stare decisis and abandoning Rule 2.3’s verbal-warning requirement. As mentioned, we held only two months ago that Rule 2.3 imposes “a ‘positive duty’ upon the police to inform the citizen of his or her right to refuse the request” to come to, or remain at, a police station “although the plain words of Rule 2.3 do not specifically require such a verbal notice.” Martin v. State, 328 Ark. at 429, 944 S.W.2d at 517.

In the Martin case, we found that the police had requested the defendant to come to the station for questioning but had failed to give him any verbal notification that he could refuse the request. We said that “this fact alone amounted to a violation of Rule 2.3” and that the Trial Court erred by denying the motion to suppress the statement given by the defendant to the police. Martin v. State, 328 Ark. at 430, 944 S.W.2d at 517. We did not reverse, however, because we determined that the admission of the statement was harmless error. The State did not suggest in the Martin case that the police had probable cause to arrest the defendant and that his statement was properly admitted on this basis. The Court, obviously following the sound practice of not deciding issues that are not argued or briefed by the parties, therefore did not address the probable-cause issue.

We cited in the Martin case four other decisions from this Court imposing the verbal-warning requirement under Rule 2.3. See Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987).

As mentioned, the majority proposes to “retreat” from these cases and analyze the “totality of the circumstances” — rather than the single question of whether a verbal warning was given — in order to determine whether the police have violated Rule 2.3, whether a “seizure” has occurred under the Fourth Amendment, and whether a defendant’s custodial statement ultimately should be suppressed. The majority asserts this approach is based upon “the constitutional rule” announced in United States v. Mendenhall, supra.

The observation of the majority, also espoused in the concurring opinion in the Martin case, is that taking a person to the police station without expressing his or her freedom not to go has been viewed as a “seizure” of the person. That is based on an erroneous view of our Rule 2.3 cases. Whatever the language in those cases may be, it is not the law that a police-citizen encounter in which the police fail to give a Rule 2.3 warning is necessarily an illegal seizure under the Fourth Amendment. The concurring justices in the Martin case, and the majority in this case, apparently believe our Rule 2.3 cases stand for that proposition. In the Martin case, the concurring justices roundly criticized the idea that an illegal Fourth Amendment seizure necessarily occurs when the police fail to give a Rule 2.3 warning. The concurring opinion cited the plurality opinion in United States v. Mendenhall, supra, for the proposition that a person is “seized” under the Fourth Amendment only when, considering the totality of the circumstances rather than any one factor, “a reasonable person would have believed that he was not free to leave.” Martin v. State, 328 Ark. at 437, 944 S.W.2d at 521 (Brown, J., concurring), quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980). The concurring opinion cited other language from the Mendenhall case and language from other court decisions for the proposition that whether a Fourth Amendment seizure occurs does not depend on whether a person is told that he or she is free to decline to cooperate. The concurring opinion urged that we follow these principles and reject the idea that a police officer’s failure to provide a verbal Rule 2.3 warning transforms his encounter with a citizen into an illegal Fourth Amendment seizure. It made an additional, but different, suggestion that the court utilize the “totality of circumstances” test, not only to determine whether a Fourth Amendment seizure has occurred, but also to determine whether a Rule 2.3 violation has occurred.

First, it is important to understand that our cases have never held that an illegal Fourth Amendment seizure occurs when the police request a person to accompany them to the station without providing the verbal warning prescribed by Rule 2.3. To the extent that some of the language in our Rule 2.3 cases suggests otherwise, it is misleading. See, e.g., Hart v. State, 312 Ark. at 605, 852 S.W.2d at 315 (“Since the detectives did not comply with [Rule 2.3], there was a seizure of the appellant and a violation of his rights under the Fourth Amendment unless the detectives had probable cause to arrest him.”) The definition of a Fourth Amendment seizure has long been settled by the Supreme Court and derives from the plurality opinion in the Mendenhall case. It is erroneous to suggest that our Rule 2.3 cases add anything to it.

Second, it is important to understand that Rule 2.3 and the Fourth Amendment impose different and independent obligations on the police. In this case, if Mr. Bell had alleged that his custodial statement on January 8 should be suppressed because it was the fruit of an illegal seizure under the Fourth Amendment, then the fact that he was not given a Rule 2.3 warning would not necessarily establish a seizure and trigger application of any exclusionary rule. If the claim is that a statement should be suppressed because it followed upon an illegal Fourth Amendment seizure, that claim is analyzed, as the majority suggests, under the “totality of the circumstances” test.

If, however, the claim is that the police requested a person not under arrest to accompany them to the station without providing the verbal warning prescribed by Rule 2.3, then our bright-line interpretation of Rule 2.3 applies. Such a claim has nothing to do with the Fourth Amendment, and thus the definition of “seizure” from the Mendenhall case and the “totality of the circumstances” test are inapposite.

2. Probable cause

The majority’s recitation of facts constituting probable cause to arrest Mr. Bell is as follows:

. . . Terry Sims had lied to them about the time he returned the movie to Cloud’s Grocery Store on the day of the murders; that Sims was at the grocery store when the murders occurred; that a .22 caliber pistol was missing from the home of a friend of Sims’s, and that was the caliber of pistol used in the killings; that Bell told the police officers he was not with Sims after school on the day of the murders but that Bell’s brother contradicted that story; that Bell’s brother told law enforcement officers that just prior to the murders Sims came by to pick up Bell and that the two young men had earlier discussed returning a videotape and getting a soda; and that Bell returned a short time later with a soda pop.

If those are the facts that were known to State Police Investigator McCord, I suggest the officer had a pretty good understanding of the concept when he determined, as he initially testified, that he did not have probable cause to arrest Mr. Bell. Deputy Box, who was sent to pick Mr. Bell up, obviously did not think he had probable cause to arrest in view of his testimony that, had Mr. Bell refused to go with him, he would have called the sheriffs office for instructions. Far more important, the Trial Court specifically found that the officers lacked probable cause to arrest Mr. Bell.

As we have held on numerous occasions,

probable cause to arrest without a warrant exists when the facts and circumstances within the collective knowledge of the officers and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed by the person to be arrested.

Friend v. State, 315 Ark. 143, 147, 865 S.W.2d 275, 277 (1993).

When we review a trial court’s ruling on the legality of an arrest — i.e., whether there was probable cause for it — we say that “all presumptions are favorable to the trial court’s ruling” on the issue and that “the burden of demonstrating error” rests on the appellant. Id. Moreover, although “[p]robable cause to arrest without a warrant does not require the quantum of proof necessary to sustain a conviction,” Addison v. State, 298 Ark. 1, 9, 765 S.W.2d 566, 570 (1989), “mere suspicion” does not qualify as probable cause, and “[e]ven a ‘strong reason to suspect’ will not suffice.” Roderick v. State, 288 Ark. 360, 363, 705 S.W.2d 433, 435 (1986)(citations omitted). See Rose v. State, 294 Ark. 279, 282, 742 S.W.2d 901, 902 (1988) (stating “suspicion” will “not rise to the level of probable cause”); Moore v. State, 265 Ark. 20, 576 S.W.2d 211 (1979).

The State has not carried its burden of demonstrating that the Trial Court’s ruling on the question of probable cause was in error. The facts recited by the majority, at best, merely give rise to a suspicion that Mr. Bell had committed an offense. These facts show that, by January 8, the police had reliable information connecting Mr. Sims to the murders. With respect to Mr. Bell, however, the facts justified only the belief that Mr. Bell might have been with Mr. Sims at the store around the time of the murders.

Although the “essential facts” mentioned by the majority may have given the police probable cause to believe that Mr. Bell was present at the store with Mr. Sims, “mere presence” at the scene of a crime is not an offense. See also Branam v. State, 277 Ark. 204, 207, 640 S.W.2d 445, 447 (1982) (stating the fact that appellant was seen visiting co-defendant’s apartment prior to the crime does not give rise to probable cause); Vega v. State, 26 Ark. App. 172, 175, 762 S.W.2d 1, 2 (1988)(stating the fact that appellant and his companion were seen near building where burglary had occurred merely gave rise to “suspicion,” not probable cause).

There is an additional reason to affirm the Trial Court’s ruling on the probable-cause issue. We have said that the question of whether the police have probable cause for an arrest rests upon the collective information of the police officers rather than upon the information known to the individual officer who encounters the defendant. Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). The majority relies upon this principle to explain away the fact that Deputy Box and Officer Plafcan, the officers who approached Mr. Bell on January 8, did not individually have probable cause to arrest Mr. Bell. According to the majority, the police “collectively” possessed knowledge that constituted probable cause to arrest Mr. Bell, and thus Mr. Bell’s statement on January 8 was erroneously suppressed.

The majority overlooks, however, our holding in Friend v. State, supra, and Ark. R. Crim. P. 4.1(d). According to Ark. R. Crim. P. 4.1(d),

[a] warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause [emphasis added].

We considered that rule in the Friend case and held that an arrest made by an officer who personally lacks probable cause to arrest is invalid unless the arresting officer is specifically instructed to make an arrest by officers who possess probable cause to arrest. In the Friend case, the testimony showed that the arresting officers lacked probable cause themselves and were instructed only to stop the appellant and hold him for questioning. No one who possessed probable cause to arrest told the officers who detained the appellant to arrest him. As a result, we held the arrest was made in violation of Ark. R. Crim. P. 4.1(d).

The Friend case has a clear application to the case at bar. Under our cases interpreting Rule 2.3, we say that a violation of the rule is excused if the police had probable cause to arrest the defendant at the time of the request to accompany the police to the office. The rationale behind this “exception” to the suppression requirement is that, if the police could have legally arrested the defendant in any event, then there is no reason to suppress the statement on account of their failure to provide the verbal warning under Rule 2.3. The availability of this “probable-cause exception” thus depends on whether the police could have made a legal arrest of the defendant at the time the “request” under Rule 2.3 was made.

Here, there was no “arrest” of Mr. Bell, and thus it may be tempting to distinguish the Friend case on that basis. However, it is clear that Deputy Box and Officer Plafcan, at the time they requested Mr. Bell to accompany them to the station, could not have made a legal arrest. The testimony at the suppression hearing clearly shows that they, like the officers in the Friend case, were not instructed to arrest Mr. Bell. Thus, even if the police “collectively” had probable cause to arrest Mr. Bell, any arrest made by these particular officers at that moment on January 8 would have been illegal under our holding in the Friend case. Therefore, we cannot say that the statement should have been admitted under the “probable-cause exception” to the general rule of suppression prescribed by Rule 2.3.

I respectfully dissent.

Glaze and Imber, JJ., join in Part Two of this opinion.

Annabelle Clinton Imber, Justice,

dissenting. I join the portion of Justice Newbern’s dissent finding that the police lacked probable cause to arrest Bell on January 8. I write separately to dissent from the majority’s significant announcement, without explanation and completely in the form of obiter dictum, that this court will no longer interpret Ark. R. Crim. P. 2.3 to require police officers to inform individuals that they have no legal obligation to accompany them to the police station. This declaration is entirely unnecessary to a resolution of the present case, given the majority’s holding that the officers’ failure to give Bell a Rule 2.3 warning on January 8 was irrelevant because they had probable cause to arrest Bell on that date. I fail to understand how this case squarely presents us with an opportunity to reconsider our adherence to the bright-line interpretation of Rule 2.3. See Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997) (Brown, J., concurring). I would note that the State does not even request that we undertake such a reconsideration of Rule 2.3. Quite the opposite, the State relies on our bright-line interpretation, arguing that the trial court erred in finding that the police violated Rule 2.3 on January 5, emphasizing McCord’s testimony that he told Bell he did not have to accompany him.

As early as Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), we have read Rule 2.3 to impose a positive duty upon police officers to warn individuals that they are free to leave. See also Martin v. State, supra; Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Smith v. State, 321 Ark. 580, 906 S.W.2d 302 (1995); Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988). I consider it imprudent to abandon such an established line of precedent where the parties have presented absolutely no argument or briefing on the relative merits of such a course of action. For these reasons, I respectfully dissent.

       The trial court made no ruling on whether Bell requested counsel and that precise issue is not before us in this appeal.


source: Caselaw Access Project

author: Ray Thornton, Justice. Donald L. Corbin, Justice,

license: Public Domain

text:
    Donna M. MASTERSON and DG’s Shiloh Two, Inc. v. STATE of Arkansas ex rel. Winston Bryant, Attorney General
    96-1064
    949 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered July 14, 1997

      Everett Law Firm, by: William B. Putman, and Mashburn & Taylor, by: Timothy L. Brooks, for appellants.

      Winston Bryant, Att’y Gen., by: James DePriest, Senior Asst. Att’y Gen., for appellees.
   Ray Thornton, Justice.

Donna M. Masterson owns and controls DG’s Shiloh Two, Inc. Both aré appellants in this action. Between January 1993 and August 1996, DG’s Shiloh Two owned, and Donna Masterson managed, two bingo halls located in Springdale, Arkansas. In January, 1993, the State of Arkansas ex rel. Winston Bryant, Attorney General, appellee, filed a complaint in the chancery court of Washington County against appellants alleging that the bingo operations constituted public nuisances and seeking an order to abate and enjoin such activities. Other operators of bingo halls were named but were dismissed when they discontinued their bingo operations. Appellants continued to operate their bingo halls and agreed with appellee to submit the matter to the chancery court upon stipulated facts.

Appellants argued that appellee failed to allege irreparable harm as a basis for injunctive relief, and urged that the adoption by the state of Ark. Code Ann. §§ 26-52-1501 — 1507 (Supp. 1995), which taxes gross receipts from bingo operations, under which appellants remitted $316,266.00 in taxes to the state, supports appellants’ contention that the bingo halls are not public nuisances. Appellants also argued that the chancery court lacked subject-matter jurisdiction.

On August 12, 1996, the chancery court entered a decree abating the bingo activities as a public nuisance and enjoining the appellants from continuing such activities. On appeal, appellants assert that the chancery court erred in finding that their bingo operations constituted a public nuisance, and further contend that the court lacked subject-matter jurisdiction to conclude that bingo is a lottery or to abate and enjoin such activity. Finally, appellants argue that the court erred in not granting their motion for summary judgment. We have considered each assignment of error and have determined that the trial court should be affirmed. This resolves any issue concerning summary judgment.

Subject-Matter Jurisdiction of Chancery Court

Appellants correctly state the general rule that a chancellor has no criminal jurisdiction. State v. Vaughan, 81 Ark 117, 98 S.W. 685 (1906). Further, it is correct that “except in narrow circumstances . . . equity will not enjoin the commission of a crime because the remedy at law is adequate.” Bates v. Bates, 303 Ark 89, 93, 793 S.W.2d 788, 791 (1990). However, there are circumstances to which we refer in Bates and other cases where both criminal and equitable relief are appropriate. In a case involving an erroneously granted exception to the provisions of a city ordinance prohibiting the erection of a nonfireproof building, the chancery court refused to issue an injunction against the prohibited structure because the ordinance prescribed criminal punishments of a fine for each day of violation. Meyer v. Seifert, 216 Ark 293, 225 S.W.2d 4 (1949). The appellees in that case argued that the criminal penalty was exclusive. We disagreed and reversed, stating in the words of Justice Robert A. Leflar:

That equity will not act to restrain ordinary violations of the criminal law, but will leave the task of enforcing the criminal laws to courts having criminal jurisdiction, is basic learning in our legal system. But it is equally basic that if grounds for equity jurisdiction exist in a given case, the fact that the act to be enjoined is incidentally violative of a criminal enactment will not preclude equity’s action to enjoin it.

Id. at 296-97, 225 S.W.2d at 6.

In State ex rel. Att’y Gen. v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945), we decided that the chancery court erred in refusing to entertain jurisdiction of an injunction proceeding brought by the Attorney General seeking to enjoin the operation of a gambling house and stated:

The chancery court held that it had no jurisdiction in this case. We have repeatedly recognized that equity has authority to abate a public nuisance. In Ross et al. v. State, 184 Ark. 385, 42 S.W.2d 376, we quoted from Marvel v. State, 127 Ark. 595, 193 S.W.2d 259, 5 A.L.R. 1458, as follows: “The Legislature has not conferred the jurisdiction upon the chancery court to abate public nuisances. This jurisdiction they have always had.”

Id. at 710, 187 S.W.2d at 330 (emphasis added).

We also quoted with approval the statement from 39 Am. Jur. 410, as follows:

Where the act is both a public nuisance and a crime, the state may suppress it by a suit in equity, or resort to a criminal prosecution, or may do both. ... To warrant an injunction where the nuisance is also a crime, there must be proof of what that law denominates a nuisance as distinguished from a mere crime.

Id. at 711, 187 S.W.2d at 330.

In an earlier case involving the same gambling house, Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421 (1943), we reversed the local chancellor’s decree protecting the gambling house from interference by the state police. We pointed out that “a gambling house was a public nuisance at common law, and the operation of a gambling house has by statute been made a felony in Arkansas.” Id. at 311-312, 176 S.W.2d at 328.

In State ex rel. Att’y Gen. v. Karston, supra, we cited many decisions declaring a gambling house to be a public nuisance at common law, determined that the Attorney General has the power and duty under common law to institute equitable proceedings to enjoin the nuisance, and summed up as follows:

[B]y the weight of authority, equity may act to suppress a public nuisance, even though the maintenance of the nuisance is a crime, where there is alleged in addition to the pubhc nuisance, some facts which show the remedy at law, by prosecution of the criminal, is inadequate and incomplete to effect relief.

Id. at 712, 187 S.W.2d at 331.

In the case under consideration we note that the stipulation of facts, considered together with the principles we have reviewed, support the chancery court’s following conclusions of law:

That each of the bingo halls at issue in this case have operated (openly, publicly, repeatedly, continuously, persistently, and intentionally) on a regular basis for an extended period of time, notwithstanding any potential application or enforcement of any criminal statutes. It appears to this court that, whatever remedy may exist at law, it has proved to be inadequate. (Emphasis added.)

We will not reverse the findings and conclusions of a chancery court unless they are clearly erroneous. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1993). We conclude that the findings are not clearly erroneous, and agree with the chancery court’s conclusion of law “that this Court, as a court of equity, has jurisdiction to abate a public nuisance.” We hold that the chancery court has subject-matter jurisdiction.

Bingo Halls as a Public Nuisance

In reviewing the question whether the chancery court had subject-matter jurisdiction to enjoin a pubhc nuisance, we cited Albright v. Karston, supra and State ex. rel. Att’y Gen. v. Karston, supra, for guidance as to the availability of equitable relief when criminal penalties are also available. In these cases, we pointed to many other cases that declared gambling houses to be pubhc nuisances at common law. The availability of equitable relief to enjoin a gambling activity was discussed in Meyer v. Seifert, where we stated:

In one of the most publicized cases that ever arose in Arkansas, Chancellor Martin enjoined the holding at Hot Springs of a world championship heavyweight prize-fight between James J. Corbett and Robert Fitzsimmons. State ex rel. Atty. Gen. v. Corbett, Fitzsimmons, et al, Martin’s Chanc. Decisions 366. Judge Martin conceded that ordinarily equity does not enjoin the commission of crimes, but pointed out that it does issue such injunctions where property interests are involved, and emphasized the prospective property injuries threatened by the prizefight, notably the payment of money by purchases of tickets of admission to the illegal enterprise, losses by bettors ....

Id. at 297, 225 S.W.2d at 6-7.

This articulation of possible property losses incurred through gambling activities may reflect the rationale for decisions that a gambling house constitutes a public nuisance at common law. The protection of property rights of the public affected by illegal gambling activities meets the test for equitable relief suggested by Chief Justice Hill in State v. Vaughan, where after denying the injunction in the particular case, we added:

On the other hand, if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin, notwithstanding the act enjoined may also be a crime.

Id. at 126, 98 S.W. at 690.

Appellants argue that because the state is taxing its bingo operations, those operations cannot be considered a nuisance. We have considered a similar argument that Act 939, (codified at Ark. Code Ann. §§ 26-52-1501 — 1507 (Supp. 1995)), legalizes bingo in our recent decision in Billy/Dot, Inc. v. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995), where we stated:

Billy/Dot admits that it operates a bingo establishment where money is at risk, but it is wrong in contending that Act 939 legalizes bingo. The Act specifically does not make bingo legal, as is evidenced by its Emergency Clause: “[T]hat this tax and the requirement for annual registration are not intended to address any question of legality or illegality of the conduct of playing bingo;” Act 939 only provides for taxation of bingo revenues. Because there is no lawful business operation at issue here, there is no valid property right to be protected in this matter.

Id. at 277, 908 S.W.2d at 337. In Billy/Dot, we also made the following determination:

Here, there is no question but that playing bingo for money constitutes gambling which is a criminal offense under our statutes, and the chancery court so found. In doing so, the court correctly cited State v. Tones, 309 Ark. 422, 831 S.W.2d 903 (1992), in its order.

Id.

The operation of a commercial bingo hall meets the definitions of a gambling house, and is therefore a common-law public nuisance. In the case before us it was stipulated that the operation of the bingo halls has been profitable enough to make necessary the payments of taxes of $316,266.00 on gross receipts from July 1993 until June of 1996, and that appellants intend to continue the activities, thereby showing that the operation of the gambling houses have resulted in losses to the public patrons of money from their purchase of cards and pull-tabs from which the proceeds are at least sufficient to pay appellant’s taxes. It was also stipulated that no prosecution has been initiated against those operations by anyone, thereby showing that the prosecuting attorney has not brought criminal charges. Whether this is because of the difficulty in gaining convictions, or a belief that other criminal violations have higher priority, or because the prosecuting attorney simply chooses not to prosecute is not relevant. The stipulation that no prosecution has occurred notwithstanding the open continuous, and lucrative operation of the public nuisance supports the chancery court’s conclusion that there is no adequate remedy at law. Equity may act to suppress a public nuisance where the remedy at law is inadequate and incomplete. State ex rel. Att’y Gen. v. Karston, supra.

Appellees urge that appellants’ operation of commercial bingo halls should be declared to be a public nuisance because it flouts the public policy of Arkansas, as expressed in the prohibition against lotteries contained in Ark. Const, art. 19, § 14. We need not address that argument because of our determination that appellants are operating gambling houses, and that such activities are public nuisances under the common law.

Conclusion

On the basis of the stipulations agreed to in this case, the chancery court found that appellants’ bingo halls are public nuisances that have operated openly, continuously, and intentionally, for an extended period of time, without any application or enforcement of criminal penalties. The chancery court made specific findings and conclusions of law, including the following:

That each of the bingo halls. . .have operated on a regular basis for an extended period. . .notwithstanding any potential application or enforcement of any criminal statute. It appears to this court that, whatever remedy may exist at law, it has proved to be inadequate.
That the bingo activities conducted by defendants should be abated as a public' nuisance and each defendant should be enjoined and restrained from conducting any further bingo activities.

These findings and conclusions are not clearly erroneous, and are consistent with the principles of law we have articulated. The judgment of the chancery court is affirmed.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. I dissent for the reason that the chancery court lacked jurisdiction to enjoin Appellants’ operation of two bingo halls as public nuisances. At first glance, the majority opinion appears to rely upon this court’s decision in State ex rel. Att’y Gen. v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945), quoting parts of that decision that are favorable to the majority’s conclusion. Upon closer examination, however, it becomes clear that the majority completely ignores the ultimate holding of that decision:

[T]he state may properly seek to protect the community by asking the aid of a court of equity where the criminal law enforcement agencies have broken down, and thereby rendered the remedy at law to be inadequate or incomplete.

Id. at 716, 187 S.W.2d at 333 (emphasis added). Contrary to the majority’s implication, that decision did not rest on prior holdings that gambling houses were common-law nuisances. Nor did it provide that whenever a criminal law is being violated, the State may put an end to it by seeking an injunction on the ground that the criminal activity is, in and of itself, a public nuisance. Instead, the decision in Karston turned upon the particular facts of that case, which are drastically different from those in the present case.

Karston, who was a notorious bookmaker in Hot Springs, had been arrested for gambling no less than ten times, but to no avail because he continued his bookmaking operations after his arrests. Moreover, there were allegations in that case that the local law enforcement agencies were condoning Karston’s activities and had refused to prosecute him on the charges. This court thus held that because the criminal law had broken down, rendering the remedy at law inadequate, equity had the power to enjoin the activity as a public nuisance. Here, there was no evidence or even allegation that the activities of the bingo halls constituted a public nuisance beyond the mere contention that they were being operated in violation of the law. No citizen complaints were heard and no allegations were made that anyone had suffered injury as a result of the bingo operations. In short, there was no demonstration that the criminal law had broken down such that equity became empowered to enjoin the activity as a public nuisance.

The first case to address the issue of whether equity could issue an injunction to stop a gambling operation was State v. Vaughan, 81 Ark. 117, 98 S.W. 685 (1906). In that case, this court held:

It is demonstrably true that it is a sound principle of equity jurisprudence that an injunction will not lie at the instance of the State to restrain a public nuisance where the nuisance is one arising from the illegal, immoral or pernicious acts of men which for the time being make the property devoted to such use a nuisance, where such nuisance is indictable and punishable under the criminal law. On the other hand, if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin notwithstanding the act enjoined may also be a crime.

Id. at 126, 98 S.W. at 690 (emphasis added).

In Karston, this court relied on the above language from Vaughan, as well as the decision in DeQueen v. Fenton, 98 Ark. 521, 136 S.W. 945 (1911), which held that the chancery court has no criminal jurisdiction, and thus, has no jurisdiction to restrain acts solely because they are criminal. Additionally, the Karston court cited 39 Am. Jur. Nuisances § 147 (1942) for the proposition that “[t]o warrant an injunction where the nuisance is also a crime, there must be proof of what that law denominates a nuisance as distinguished from a mere crime.” Karston, 208 Ark. at 711, 187 S.W.2d at 330. In other words, in order for equity to enjoin criminal activity, there must be evidence that the activity is a nuisance, in the traditional meaning of that term, in addition to the fact that the activity is a crime.

Subsequent to the decision in Karston, in Hickinbotham v. Corder, 227 Ark. 713, 301 S.W.2d 30, cert. denied, 355 U.S. 841 (1957), this court held that there were only two instances where chancery will assume jurisdiction to enjoin the commission of a criminal offense: (1) Where the enforcement of the criminal law will not deter violation, or (2) where the complaining party has shown an injury. Here, enforcement of Ark. Code Ann. § 5-66-103 (Repl. 1993) would deter violations of the law in that the persons convicted of gambling shall be sentenced to one to three years in prison. Moreover, in this case, the complaining party, the State, has shown no injury. There was absolutely no indication at all that any property owners or other citizens had complained about any adverse affects resulting from the bingo halls’ operations.

More recently, in Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990), the appellant sought to have the chancery court enjoin her housemate from committing acts of domestic abuse against her under a theory that chancery has jurisdiction to protect personal and property rights. This court held that equity may only protect those rights when certain conditions are present, one of which is where the remedy at law is inadequate. Appellant argued that the criminal statutes were ineffective because battered housemates are afraid to file criminal charges and prosecutors do not act diligently. This court held that “[ejven if the arguments were valid, we would not ignore the jurisdictional language of the Constitution and, in doing so, deprive an accused of his Constitutional right to a trial by jury.” Id. at 92, 793 S.W.2d at 790. This court held further that “equity will not enjoin the commission of a crime because the remedy at law is adequate. ... If the rule were otherwise, the constitutional right of trial by jury would be infringed.” Id. at 93, 793 S.W.2d at 791. This court did acknowledge a limited exception to that rule, which arises when the criminal act is “incidental” and there is a danger of “irreparable pecuniary injury to property or pecuniary rights of the complaining party.” Id. at 93, 793 S.W.2d at 791 (quoting Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944)). Such exception is not applicable to this case because the criminal act of operating a gambling house was the sole reason for enjoining the activity.

In the present case, there was no evidence whatsoever that the criminal law had broken down or that the remedies at law were inadequate. In fact, there was no evidence that the legal remedy had even been attempted before the State filed for an injunction. Instead, the facts presented below indicate that the bingo halls had been in operation since January 1, 1993, and that the State filed its suit for injunction a mere twenty-one days later. It was stipulated by both parties that Appellants had never been arrested for any violation of the law pertaining to their bingo operations, and that further, there were no allegations concerning rowdiness, drunkenness, excessive traffic, loud noises, or any of the more traditional nuisances.

The trial court’s ruling that the remedies available at law were inadequate just because the bingo halls had been in continual operation for some time is clearly erroneous. It is not enough to render the legal remedy inadequate to merely point to the fact that a criminal offense has been committed. According to our case law, there must be more — i.e., an allegation that local law enforcement authorities have refused to enforce the criminal law or that the bingo operators have been arrested in the past and such arrests have not deterred their illegal gambling activities. The majority’s decision in this case circumvents the constitutional right to trial by jury, by allowing courts of equity to stop allegedly criminal activity and deprive the actors of their livelihood without requiring the State to prove beyond a reasonable doubt that such actions are criminal.

For the reasons given, I would reverse the ruling of the chancery court and dismiss the case.

       Article 19 § 14 provides, “no lottery shall be authorized by this state, nor shall the sale of lottery tickets be allowed.” The term “lottery” has been defined in Burks v. Harris, 91 Ark. 205, 120 S.W. 979 (1909), as containing three essential elements; consideration, chance, and prize. We also note that Ark. Code Ann. § 5-66-119 (Repl. 1993), provides that engaging in activities ordinarily described as chain letters or pyramid schemes for cash or other compensation is participation “in a lottery, which is declared to be unlawful,” and further provides for the chancery court to enjoin such activities upon complaint by the Attorney General or prosecuting attorney.
      This legislative declaration that equitable relief is appropriate to abate the public nuisance of an unlawful lottery is consistent with our own holding.


author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    Dr. James Y. SUEN v. Kenneth GREENE
    96-702
    947 S.W.2d 791
    Supreme Court of Arkansas
    Opinion delivered July 11, 1997

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Charles R. Ledbetter; and Friday, Eldredge & Clark, by: Philip Malcom and Robert S. Shafer, for appellant.

      Robert S. Blatt; Morgan & Weisbrod, by: Les Weisbrod, Michael S. Box, and William A. Newman; and The Keenan Law Firm, by: Don C. Keenan, for appellee.
   Ray Thornton, Justice.

This is a medical malpractice case. Mr. Kenneth Greene, appellee, was injured during surgery performed by Dr. James Y. Suen, appellant, in November of 1986. He filed this complaint in July of 1990, and the matter was tried before a jury in Crawford County in a fifteen-day trial, which lasted from September 23 to October 13, 1995. The jury returned a verdict absolving appellant of medical malpractice. On appellee’s motion, the trial court granted a new trial, and appellant appeals from that order.

The record in this case consists of thirty-four bound volumes containing more than 7,400 pages together.with a box of exhibits. We have reviewed the trial court’s decision to grant a new trial because of side-bar comments by appellant’s counsel, its determination that it had erred in not striking the testimony of one expert witness, and that it had erred in refusing to declare a mistrial after another witness for appellant gave unresponsive answers in testimony. We have concluded that these irregularities do not meet the standard set forth in Ark. R. Civ. P. 59; that is, they do not “materially affect the substantial rights of [the] party.” Ark. R. Civ. P. 59(a); Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993). Put another way, the irregularities complained of do not show a reasonable possibility of prejudice to appellee’s right to a fair trial. Nazarenko v. C.T.I. Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993). We hold that granting a new trial on these grounds was a clear abuse of discretion and we reverse and dismiss.

In granting appellee’s motion for new trial, the trial court determined (1) that it had committed error in failing to strike testimony of Dr. Ossami Al-Mefty, one of appellant’s expert witnesses; (2) that it had committed error in failing to declare a mistrial for unresponsive and prejudicial responses of Dr. William Friedman, an expert medical witness of appellant’s; and (3) that prejudice to appellee’s right to a fair trial resulted from appellee’s many objections to “side-bar comments” by appellant’s trial counsel. Rule 59(a) of the Arkansas Rules of Civil Procedure provides:

A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:
(1) any irregularity in the proceeding or any order of the court or abuse of discretion by which the party was prevented from having a fair trial;
(2) misconduct of the jury or prevailing partyf.]

Ark. R. Civ. P. 59(a)(l)-(2).

We have held that, while a trial court’s discretion is much broader where the question is whether a jury verdict is supported by a preponderance of the evidence, still, its discretion when granting a new trial under other provisions of Rule 59 should not be disturbed absent manifest abuse of discretion, or “discretion improvidently exercised.” Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995). The party moving for a new trial under these provisions must show that his rights have been materially affected by demonstrating that a reasonable possibility of prejudice resulted from the misconduct. Diemer v. Dischler, supra.

With this rule in mind, we first examine the court’s order finding that the conduct of Mr. Malcom, attorney for appellant, in making side-bar comments materially affected the substantial rights of the appellee, and prevented the appellee from having a fair trial. The record has been abstracted to include every instance of alleged unresponsiveness of witnesses to questions by appellee’s counsel, and every instance of side-bar comments in both the direct and redirect examinations. We have reviewed all these exchanges, and we observe that the effort to present the qualifications of Dr. Friedman as an expert fairly reflects the general nature of the “unresponsive answers” and side-bar comments with which the record is replete. A few examples follow:

Mr. Malcom [appellant’s attorney]: Doctor, if you could, I’d like you to visit with us a moment. Have you continued through the years, both when you’ve been [in] academics and when you’ve been in private practice, with lecturing or teaching or conducting seminars? I want to cover first the United States with regard to specific areas that would relate to his case.

Mr. Morgan: Your Honor, I object to the side-bar remarks throughout the question. He can ask the question without the side-bar remarks.
Mr. Malcom: I’ll rephrase the question.
Mr. Malcom: Can you tell the ladies and gentlemen of the jury, and I know [there are] references in your curriculum vitae, but please go ahead and tell us what kind of lecture you conduct.
Mr. Morgan: Your Honor, I object to the side-bar remark.
The Court: Yes, let’s just ask the questions.
t- * *
Mr. Malcom: Just give us [a] general overview. You don’t have to cover everything specifically.
Dr. Friedman: Well, I have tried to lecture at major meetings only, because other than that I don’t have time to just go to any meeting.
Mr. Morgan: Objection, nonresponsive, Your Honor.
The Court: Yes, let’s just tell us what you’ve done.
* * *
Mr. Malcom: I thought we’d save some time. Please go to it [the curriculum vitae].
Dr. Friedman: And so we’ll do that, I guess.
Mr. Morgan: Objection to side-bar remark.
The Court: Sustained. You just need to go to your curriculum [vitae]. That’s what it’s here for.
Dr. Friedman: I’m going as fast as I can, Your Honor.
Mr. Morgan: Objection to the side-bar, Your Honor.
The Court: Yes. Be responsive to questions.
Mr. Morgan: I would ask the Court to instruct the witness just to answer the questions and leave the side-bar remarks off.
The Court: Yes. Just answer questions, Doctor.
Dr. Friedman: Okay.
Mr. Morgan: I object to the okay, Your Honor.
The Court: Yes. That’ll be sustained.
Hi * *
Mr. Malcom: Continue on, sir, if you could, and we’d like you to just briefly hit some high points?
Mr. Morgan: Objection to the side-bar, Your Honor.
The Court: Sustained.
H« Hi Hi
Mr. Malcom: Let’s go forward a few pages and let’s go to the early 1980’s. Can you get on page 15 with me?
Dr. Friedman: Yeah.
Mr. Malcom: This is nine years later, 1981.
Mr. Morgan: Objection. Side-bar remark.
The Court: Sustained.

These few examples from the abstracted testimony serve as illustrations of strictly enforced rules of procedure, and we do not find any irregularity that would materially affect the substantial rights of appellee, by preventing the appellee from having a fair trial.

The record shows that the trial court was firm and decisive in maintaining tight control over the proceedings. Near the end of the fourteenth day of the trial, the following exchange occurred:

The Witness: Your Honor, can I have the operative report in front of me, please?
The Court: I think that’s reasonable.
Mr. Morgan: Let me show you what has been marked as exhibit. . . well, let me ask you this first and then I will. . .
Mr. Malcom: We have the exhibits that I got yesterday, Your Honor, I can get them to give them to him.
Mr. Morgan: Your Honor. . .
The Court: Mr. Malcom. . .
Mr. Malcom: Yes.
The Court: Mr. Malcom, if you interrupt again or walk in front of people again I’m going to remove you from the courtroom. You have interrupted his examination at least five times. You know that’s not the way it’s done, don’t you?
Mr. Malcom: Your Honor, I’ve been in the court and a lawyer for 20 years and I know a lot of things, the way they’re not done. Mr. Morgan: Your Honor, I object to that remark.
The Court: Mr. Malcom, you are excluded from the courtroom for the rest of this witness. Mr. Ledbetter will have to take over.

Mr. Malcom left the courtroom, and after conference, Mr. Led-better persuaded the trial court to allow him to return on the condition that he only be permitted to make objections.

As a ground for a new trial, the order of the trial court does not find any misconduct of counsel, but suggests that his frequent “side-bar” comments violated appellees right to a fair trial. We observe that most of Mr. Malcom’s “side-bar” comments to which appellee objected were casual remarks designed to expedite the proceedings or were referrals to previous testimony.

This court has held that the misconduct of the prevailing party includes the misconduct of the prevailing party’s attorney. Hacker v. Hall, 296 Ark. 571, 759 S.W.2d 32 (1988). This case can be compared to Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), where we held that a new trial should have been granted because prejudice resulted from the cumulative effect of opposing counsel’s conduct. In that case, counsel did not cease his unreasonable courtroom conduct, even though he was repeatedly admonished and the trial court repeatedly sustained objections to his leading questions.

The conduct in this case does not rise to the level of Alexander v. Chapman. It is clear from a review of the abstract that in this case counsel for the plaintiff and the defendant were vigorously and professionally advocating the interests of their clients. The trial court maintained a firm control over the proceeding and we are unable to find any reasonable possibility of prejudice against appellee’s rights to a fair trial resulting from the actions of appellant’s attorney. Absent any showing that counsel’s conduct prevented appellee from having a fair trial, the trial court’s action in ordering a new trial for that reason was a manifest abuse of discretion.

We next consider whether the trial court abused its discretion in setting aside the jury verdict and ordering a new trial on the ground that its own errors in the conduct of the trial prevented appellee from having a fair trial. We first address the issue whether the trial court committed error which deprived appellees of a fair trial by failing to strike Dr. Ossama Al-Mefty’s testimony. As in the examples referred to during the qualification of Dr. Friedman as an expert, it appeared that appellee’s attorney, through frequent objections, most of which were sustained by the court, insisted upon great precision in phrasing questions and answers. While this high standard of precision resulted in numerous objections, we have not found any examples where the answers provided by Dr. Al-Mefty, or the rulings of the trial court constituted irregularities in the proceedings which prevented appellee from having a fair trial. However, appellee asserts that the cumulative effect of all of appellee’s objections may have had that result. We cannot agree with that argument. It is apparent that in many instances Dr. Al-Mefty, whose primary language is not English, was seeking to answer fully and completely. The trial court imposed sufficient discipline upon his answers to ensure that the appellee was not prevented from having a fair trial because of Dr. Al-Mefty’s tendency to ramble. While Dr. Al-Mefty exhibited some reluctance to give answers during cross examination, the trial court guided and prodded with the result being that the appellee ultimately obtained an answer to each question.

We have stated that “[a] verdict may not be set aside arbitrarily and without reasonable cause.” Martin v. Blackmon, 277 Ark. 190, 195, 640 S.W.2d 435,437 (1982); see also Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W.2d 585 (1961). Granting a new trial on the basis that a witness was generally “nonresponsive” is arbitrary and unreasonable. It invites abuse and threatens the right of trial by jury. In practical effect it permits the trial court to substitute its view of the evidence for that of the jury. See Razorback Cab of Fort Smith v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993).

It is well established that the trial court should not substitute its view of the evidence for that of the jury. There is no disagreement that the grounds for granting a new trial (a) because of the conduct of appellee’s counsel, and (b) because the trial court decided it committed error in not striking the testimony of Dr. Al-Mefty did not reflect a material irregularity which prevented appellee from having a fair trial. Therefore, the decision of the trial court in ordering a new trial on those grounds was a manifest abuse of discretion.

We now turn to the trial court’s determination that it erred in refusing to order a mistrial because Dr. William Friedman’s unresponsive answers and side-bar comments should have resulted in a mistrial, and that the trial court’s failure to order a mistrial was a substantial irregularity that prevented appellee from having a fair trial.

In addressing the issue of whether the comments by Dr. Friedman prevented appellee from having a fair trial, we note that much of the dispute centered upon the standard of care, and testimony by a witness for the plaintiff that a “tin-foil” test should have been used. Not only Dr. Friedman, but Dr. Graves Hernsberger, Dr. Edgardo Angtuaco, and Dr. Paul Wills, as well as Dr. Suen and Dr. Al-Mefty testified that Dr. Suen performed the surgery according to the appropriate standard of care. After qualifying as an expert witness, Dr. Friedman testified that if he had been handling the operation he would have followed similar procedures to those employed by the appellant. Fie stated that the standard of care used by appellant was the “standard of care for ENT surgeons in Little Rock, Arkansas in 1986.” This testimony was eventually stricken and the jury instructed to ignore it. No prejudice to appellee resulted from this ruling.

Dr. Friedman was abrasive while on the witness stand; at one point he testified with reference to the “tin-foil” test “that a lie had been perpetrated on this court” by an expert witness for appellee. Appellee moved that the testimony be stricken or in the alterative for a mistrial. The testimony was stricken and the jury was instructed to disregard it. Several expert witnesses for appellant agreed that a “tin-foil” test was not referenced in the literature. It is clear that Dr. Friedman was unresponsive and resistant to answering hypothetical questions which were predicated upon assumptions that he could not accept as correct and the trial court struck his testimony. After Dr. Friedman’s entire testimony had been stricken, appellee never renewed his motion for a mistrial, at that point or thereafter, and when appellant moved for a mistrial, appellee responded: “I believe that the court was justified in the position that it took.” The trial court utilized an extreme remedy in striking all of Dr. Friedman’s testimony, and appellee agreed that the matter was properly handled. We find no reasonable possibility that appellee was prejudiced, or prevented from having a fair trial because of Dr. Friedman’s testimony, all of which had been stricken. The trial court did not commit an error in failing to order a mistrial.

“A mistrial is a proceeding that has miscarried and the consequence is not a trial.” Midwest Line Co. v. Independence County Chancery Court, 261 Ark. 695, 702, 551 S.W.2d 537, 540 (1977). “A new trial is defined by statute as a reexamination in the same court of an issue of fact after a verdict by a jury or a decision by the court.” Id. at 701-02, 551 S.W.2d at 540. It seems clear that the decision by the trial court during the trial that Dr. Friedman’s unresponsive answers and side-bar comments did not call for a mistrial was correct.

The trial court exercised great discipline and required strict compliance with rules of procedure. When confronted with difficult decisions, such as striking appellant’s main expert witness, removing appellant’s counsel from the courtroom, and sustaining objections to, and striking portions of the testimony of other witnesses for the appellant, the court reacted in such a way as to ensure that appellee received a fair trial.

Because we find in this case no reasonable possibility that appellee was deprived of a fair trial by reason of the conduct of appellant’s attorney, or by the actions of the trial court in failing to grant a mistrial, and failing to strike Dr. A-Mefty’s testimony, we conclude that the order of the trial court granting a new trial on those grounds was a manifest abuse of discretion, and reverse and dismiss this appeal. Since we uphold the jury verdict and overrule the grant of the motion for a new trial, the venue issue raised in the alternative is moot.

Reversed and dismissed.

Newbern, Glaze, and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. This case is one where the trial court granted a new trial, and this court’s standard is simple — in granting the new trial, did the judge manifestly and clearly abuse his discretion by acting improvidently or thoughtlessly without due consideration? The majority court says yes, but if the majority was right, based upon the record before us now, a judge could never order a new trial.

In pertinent part, Rule 59(a) provides that a new trial may be granted (1) for any irregularity in the proceeding which caused the party from having a fair trial, or (2) for jury or party misconduct. Here, as the majority court concedes, the defendant’s medical expert witnesses, Doctors Sam Al-Mefty and William Friedman, were reluctant to answer questions on cross-examination, and indeed, Friedman openly and defiantly refused to respond to questioning. Both of these doctors had willingly and convincingly given testimony on direct examination that not only was designed to establish the defendant’s, Dr. James Y. Suen’s, competence (lack of negligence) in his performance of plaintiff Kenneth Greene’s surgery, but also was designed to impeach and discredit Greene’s expert witnesses, Doctors Martin Lazar and Roger Rose. As the majority opinion relates, “Dr. Friedman was unresponsive and resistant to answering hypothetical questions which were predicated upon assumptions he could not accept as correct.”

Most important, Dr. Friedman, in challenging Greene’s case and medical experts, accused Dr. Rose of “inventing a tin-foil test for this case,” and when referring further to the test, told the jury, “I feel a terrible lie has been perpetrated in this court.” After this last Friedman remark, the trial judge recessed and met with counsel in conference to study and consider his options in minimizing the remark’s prejudicial impact on the jury. At defense counsel’s urging, the judge rejected Greene’s motion for mistrial, and instead framed a cautionary instruction by which he informed the jury that Dr. Friedman was wrong in making his remark that a lie had been perpetrated, and the jury should not consider it. The judge’s instruction was to no avail because Friedman, on further questioning by plaintiffs counsel, refused to answer plaintiffs hypothetical questions that tended to place blame on Dr. Suen for plaintiffs injury. He said, “I can’t make those assumptions because it’s too hard, given what I know.”

While the trial judge instructed the jury that Dr. Friedman’s testimony “will be stricken from the record” and directed the jury not to consider it, this court has repeatedly reversed cases because the “metaphorical or proverbial bell” had been rung and prejudice ensued from the improper remarks. See Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997); Synergy Gas Corp. v. Lindsey, 311 Ark. 265, 843 S.W.2d 825 (1992). Here, if any “lie” or fraud occurred in this case, that was within the province of the jury, not for Friedman, to decide.

In addition to the pernicious remarks made by Dr. Friedman, the trial judge had to decide, when faced with Greene’s new trial motion, if Greene had been prevented from having a fair trial because of Al-Mefty’s and Friedman’s misconduct by refusing to answer questions on cross-examination. In reviewing the trial judge’s ruling that Greene had been denied a fair trial and was entided to a new trial, it becomes this court’s duty to determine if the judge acted improvidently or thoughtlessly without due consideration. This court further is guided by the controlling principle that a showing of a judge’s abuse of discretion in this respect is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). And finally, this court gives deference to the trial judge in these new-trial matters because the judge has heard all the testimony and was in a position far superior to ours to know whether the proof was so nearly balanced that the misconduct of a witness and juror might have tipped the scales one way or another. Moody Equip. & Sup. v. Union Nat’l Bk., Adm’r, 273 Ark. 319, 619 S.W.2d 637 (1981). As Justice George Rose Smith stated in Moody, “It is fundamental that the latitude of the trial judge’s discretion increases proportionately as the situation presents to him a question that cannot equally be presented to us by the printed record.”

Here, Dr. Friedman’s credentials are impeccable, and the importance of his testimony cannot be overstated. Again, he not only served to bolster Dr. Suen’s theory of the case that Suen did not commit malpractice, Friedman also attacked the medical testimony and opinions given by Greene’s doctors. When he refused to answer questions on cross-examination, plaintiffs counsel was denied any opportunity to test Friedman’s opinions and other damaging remarks.

Even defense counsel recognized the import of Friedman’s appearance and testimony before the jury when they, too, moved for mistrial after the trial judge struck Friedman’s testimony. In this connection, defense counsel argued that, without Dr. Friedman’s testimony, defendant was deprived of a fair trial. Although defense counsel was likely correct in this regard, the trial judge in granting plaintiff a mistrial recognized the corresponding effect and prejudice to plaintiff when plaintiff was denied the opportunity to test Friedman’s direct testimony. In these circumstances, the trial judge was clearly in the best position to hear the defendant’s expert witnesses and to observe the impact of their continuing misconduct before the jury. The trial judge made a fair decision and should be affirmed.

In short, the majority is in an impossible position to weigh and determine the impact Friedman’s remarks had on the jury; nor is this court positioned to balance the testimonies of all the expert witnesses and how the trial’s outcome could have been affected by Friedman’s testimony after it was stricken. To ask the jury to forget and not consider such prejudicial testimony was a worthless admonition. To his credit, the trial judge reached that conclusion when confronted with the issue on Greene’s new-trial motion.

In conclusion, I note that the majority mentions that Greene did not renew his motion for mistrial after Friedman’s testimony was stricken. However, I want to make it clear that the majority does not conclude Greene waived his objections, nor does it cite cases in support of such an idea. Greene twice moved for mistrial, and twice his motions were denied. He was not required again to move for mistrial. The majority reference in this respect is irrelevant.

For the foregoing reasons, I would affirm.

Newbern and Imber, JJ., join this dissent.


author: Per Curiam. Tom Glaze, Justice,

text:
    Albert BESHEARS v. STATE of Arkansas
    CR 96-738
    947 S.W.2d 789
    Supreme Court of Arkansas
    Opinion delivered July 14, 1997

      Dale E. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Albert Beshears, entered a conditional plea of guilty to possession of a controlled substance with intent to deliver. He was sentenced to forty years in prison. In the direct appeal, we affirmed the Trial Court’s denial of Beshears’s motion to suppress. Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995). Beshears subsequently filed a petition for postconviction relief pursuant to A.R.Cr.P. Rule 37.

In the petition, Beshears alleged that his counsel was ineffective because he misled Beshears about the existence of an offer of a negotiated plea; because he failed to file a motion asking the trial judge to recuse; and because he represented a conflicting interest that adversely affected the defense. Beshears also alleged that his counsel was ineffective for participating, without his clients’ permission, in the division of monies seized by forfeiture.

In addition to his claims for relief under A.R.Cr.P. Rule 37, Beshears filed a motion asserting that the trial judge should recuse from the postconviction proceeding. In the following order, the Trial Court denied the motion to recuse and Beshears’s request for postconviction relief:

Following a hearing held on this day, 21 March 1996, after considering the petitions, the testimony of the witnesses and the arguments of counsel, makes the following orders:
1. The motion for recusal is hereby denied; and
2. The request for relief pursuant to Rule 37 is also denied.

Beshears now appeals that order. We reverse and remand because the order does not contain written findings of fact and conclusions of law as required by A.R.Cr.P. Rule 37.3(c).

On appeal, Beshears contends that the Trial Court erred in denying relief on his claim that his counsel was ineffective because he represented a conflicting interest at the same time he represented Beshears. Specifically, he argues that his attorney also represented his brother, Eddie, on an unrelated charge; and that during that representation, Eddie made a statement that exculpated Beshears. Beshears contends that his attorney’s choice not to use this statement on his client’s behalf made his guilty plea involuntary and unintelligent. Beshears also makes a two-part argument concerning the recusal of the trial judge. He contends that the trial judge erred in denying his motion to recuse from the postconviction proceeding; and that it was error to deny relief on his claim that his counsel was ineffective for fading to file a motion to recuse prior to Beshears’s conviction.

We cannot reach the merits of the arguments concerning the alleged conflict of interest and trial counsel’s failure to file a motion to recuse because the Trial Court did not enter written findings of fact and conclusions of law as required by A.R.Cr.P. Rule 37.3. We have held without exception that this rule is mandatory and requires written findings. Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981). Therefore, we reverse and remand the case to the Trial Court for written findings of fact and conclusions of law on Beshears’s claims for postconviction relief.

We can, however, reach the merits of the argument concerning the Trial Court’s denial of the motion to recuse from the postconviction proceeding. Beshears argues that the trial judge should have recused from considering his Rule 37 petition because the trial judge, before he assumed the bench, prosecuted him on an unrelated matter ten years prior to the filing of the charges on which he is presently incarcerated. He also argues that the trial judge gained additional knowledge about Beshears when he represented him on a civil matter, and that the judge played a role in Beshears’s return from the Act 309 program in Lawrence County. Beshears contends that these circumstances warranted the trial judge’s recusal in order to avoid the appearance of impropriety. The State argues that the Trial Court, did not abuse its discretion in denying the motion to recuse. We agree.

Article 7, Section 20, of the Arkansas Constitution and Canon 3(c) of the Arkansas Code of Judicial Conduct provide that judges must refrain from presiding over cases in which they might be interested and avoid all appearances of bias. Matthews v. State, 313 Ark. 327, 854 S.W.2d 562 (1994). A trial judge’s decision not to recuse from a case is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Bryant v. State, 323 Ark. 130, 913 S.W.2d 257, (1996). To decide whether there has been an abuse of discretion, we review the record to determine if prejudice or bias was exhibited. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994).

Beshears has not pointed to, nor can we find, any exhibition of bias or prejudice by the trial judge during the Rule 37 proceeding. Therefore, the trial judge did not abuse his discretion in denying the motion to recuse.

Reversed and remanded.

Glaze, J. dissents.

Tom Glaze, Justice,

dissenting. Returning this case for the trial court to place its findings in an order is a total waste of judicial time. In rendering its decision in this matter, the trial court made its rulings and findings from the bench, and those findings were reported and are now found in the record before us. This court returns this case to the trial court and directs it to take the findings it made earlier (presently set out in the written record), incorporate those findings in an order, and return that order for this court to make a decision. How requiring the trial court to perform this useless function is going to help this court decide appellant’s case escapes me.

I would affirm.