author: Robert L. Brown, Justice.

text:
    Richard JACOBY, Freddie Mae Green, Curtis Ivy, Jean Marrow, Elsie Sanchez, Evan Sanders, George Thomas, Barbara Whittaker, and Shirley Williams v. ARKANSAS DEPARTMENT OF EDUCATION, Vocational and Technical Education Division
    97-310
    962 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered February 19, 1998
    [Petition for rehearing denied March 26, 1998.]

      Lavey & Burnett, by: John L. Burnett, for appellants.

      Winston Bryant, Att’y Gen., by: Kay J. Jackson DeMailly, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellants in this case (the employees) are hourly-paid employees of the Vocational and Technical Education Division of the Arkansas Department of Education (the Department). Their complaint is based on an allegation that the State, through the Department, has failed to pay them for all of the time they have worked. Specifically, they claim that they remained on duty each day for an eight and one-half hour shift but were paid for only eight-hour days.

The employees originally filed their complaint in federal district court and alleged a violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (1994 & Supp. I 1995). The Department moved to dismiss for lack of subject-matter jurisdiction, claiming that the United States Congress could not abrogate Eleventh Amendment sovereign immunity for the Department by enacting the FLSA pursuant to the Commerce Clause of the U.S. Constitution. The employees filed a voluntary nonsuit before the motion to dismiss was decided.

The employees next filed this action in state circuit court, claiming once again a violation of the FLSA by the Department. The Department moved to dismiss based on Eleventh Amendment sovereign immunity as set out in the U.S. Constitution and state sovereign immunity under Article 5, Section 20 of the State Constitution. The Department argued that the Claims Commission had exclusive jurisdiction over all suits against the State under Ark. Code Ann. § 19-10-204(a) (Repl. 1994). The circuit court granted the Department’s motion to dismiss due to sovereign immunity as provided in the State Constitution and found that the Claims Commission was the proper forum for resolution of this matter.

The question before this court is whether the circuit court correctly determined that the State Constitution bars a suit against the State when a federal claim such as one brought under the FLSA is at issue. A corollary issue is whether the Eleventh Amendment immunes the State from liability in its own courts when the federal right cannot be pursued in federal courts. We consider the corollary issue first.

a. Eleventh Amendment Sovereign Immunity.

The Eleventh Amendment reads as follows:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Eleventh Amendment expressly refers to the judicial power of the United States. It has been construed to grant the individual states immunity in federal court unless Congress by law abrogates that immunity or the state waives that immunity. Welch v. Texas Dep’t of Highways & Pub. Trans., 483 U.S. 468 (1987); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). It is clear in this case that the Department has not waived its sovereign immunity, and that is not an issue before us. In Hans v. Louisiana, 134 U.S. 1 (1890), the U.S. Supreme Court expanded the Eleventh Amendment immunity of the states to exclude all suits by citizens of the same state in federal court.

The issue of whether Congress has effectively abrogated state sovereign immunity in federal courts for FLSA claims was effectively decided by the U.S. Supreme Court in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). In Seminole Tribe, the Court held that Congress can only void Eleventh Amendment immunity by enacting law that meets two requirements. First, Congress must “unequivocably express its intent to abrogate the immunity.” Seminole Tribe, 517 U.S. at 55. It is undisputed in this case that Congress clearly intended to subject states, as employers, to FLSA claims in both federal courts and state courts. See 29 U.S.C. § 216(b). Secondly, according to Seminole Tribe, Congress must enact the abrogating law pursuant to a valid exercise of authority granted it under the U.S. Constitution. In Seminole Tribe, the Court held that Congress failed to meet this second criterion. The congressional act at issue required the states to enter into mediation on Indian claims and was passed under the power given Congress to regulate commerce with Indian tribes. U.S. Const. art 1, § 8 [3]. This power was not sufficient, according to the Court, to override the states’ Eleventh Amendment protection against being sued for these claims in federal court.

But the Court in Seminole Tribe went further and overturned its decision in Pennsylvania v. Union Gas, 491 U.S. 1 (1989), where a plurality of the Court had previously determined that the Commerce Clause provided proper authority for Congress to abrogate Eleventh Amendment immunity for the states in federal court. The Commerce Clause was the authority by which Congress provided for FLSA claims to be filed in state and federal courts. Flence, in the wake of Seminole Tibe, jurisdiction of the federal courts over state employers for FLSA claims appeared to no longer exist, and several U.S. Courts of Appeal have concluded that is precisely the case. See Close v. New York, 125 F.3d 31 (2nd Cir. 1997); Mills v. Maine, 118 F.3d 37 (1st Cir. 1997); Moad v. Arkansas State Police Dept., 111 F.3d 585 (8th Cir. 1997). We agree that Seminole Tribe v. Florida, supra, has effectively immuned state employers from FLSA claims in federal court.

The next question is whether the Eleventh Amendment provides a corresponding immunity for a state employer sued for an FLSA violation in its own courts. A commentator on this subject recently framed the issue thusly:

Is the immunity conferred on the states by the Eleventh Amendment an immunity from liability under federal law, or is it merely an immunity from the jurisdiction of the federal courts?

Carlos Manual Vazquez, What is Eleventh Amendment Immunity?, 106 Yale L.J. 1683, 1700 (1997).

In Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197 (1991), the Court made the point emphatically that the Eleventh Amendment does not apply to state courts. Hilton, 502 U.S. at 204-05, citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Maine v. Thiboutot, 448 U.S. 1 (1980); Nevada v. Hall, 440 U.S. 410 (1979). Indeed, the Court in Hilton said that it had noted this inapplicability “on many occasions[.]” Hilton, 502 U.S. at 205. We deem it well nigh impossible, in the face of this clear statement, for this court to accept the Department’s argument that the Eleventh Amendment provides immunity in state courts as well. We hold that the Eleventh Amendment does not grant states immunity in their own courts, as the Court’s pronouncement in the Hilton case makes abundantly clear. We reiterate that by its own terms the Eleventh Amendment is limited to the judicial power of the United States.

b. State Sovereign Immunity.

We are left then with the crucial issue of state sovereign immunity granted the State of Arkansas by its own State Constitution. Article 5, § 20 of the State Constitution reads: “The State of Arkansas shall never be made a defendant in any of her courts.” We have held that this protection fully protects the State absent a waiver or consent by the State to be sued. See, e.g., Cross v. Arkansas Poultry & Livestock Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997). There is no issue of waiver or consent by the Department in the case before us. It relies, rather, on its immunity granted under the State Constitution as a shield against the FLSA claim.

The formidable hurdle that the Department must leap to prevail is the Supremacy Clause of the U.S. Constitution. U.S. Const. art. 6. When Congress enacted the FLSA, this became the supreme law of the land. The U.S. Supreme Court has stated that federal law is treated “as much [the] law in the States as laws passed by the state legislature.” Howlett v. Rose, 496 U.S. 356, 367 (1990). The FLSA states that actions “may be maintained against any employer, (including a public agency) in any Federal or State court of competent jurisdiction[.]” 29 U.S.C. § 216(b). The employees contend that though Congress did not have the authority to abrogate Eleventh Amendment immunity for the states in federal courts, its authority to mandate enforcement of this federal right in state courts remains intact. And with the full force of the Supremacy Clause behind them, the employees urge that the supreme law of the land trumps state sovereign immunity granted under the State Constitution.

Again, we find the answer to the question in Hilton v. South Carolina Public Railways Comm’n, supra. In this six-to-two decision with one justice not participating, the Court examined whether the State Public Railways Commission could be sued in state court for a Federal Employers’ Liability Act (FELA) claim, when the Eleventh Amendment has provided the states with protection against FELA suits in federal courts. The Court first observed that the notion of symmetry, that is, state immunity from liability in both state and federal courts, had much to commend it. Nonetheless, the Court refused to bow to symmetrical considerations. It focused, rather, on stare decisis and on the fact that the Court for 28 years had interpreted the FELA to include claims against state-owned railroads. In its decision in Welch v. Texas Dept. of Highways & Pub. Trans., supra, the Court had held that the Eleventh Amendment did not void state immunity in federal court for Jones Act claims. Because of the Welch decision and the fact that the Jones Act incorporated the FELA remedial scheme, the plaintiffs in Hilton dismissed the federal action and filed in state court.

The Court, therefore, adhered to its precedent that states were liable for FELA claims and noted that the Welch decision did not address

the most vital consideration of our decision today, which is that to confer immunity from state-court suit would strip all FELA and Jones Act protection from workers employed by the States[.]

Hilton, 502 U.S. at 203. Because the FELA did impose liability on the states, the Court concluded that the Supremacy Clause made that law fully enforceable against the states in state courts.

The Court in Hilton did not specifically discuss the conflict between the supremacy Clause and state sovereign immunity, but it cited Howlett v. Rose, 496 U.S. 356 (1990), in support of its conclusion. In Howlett, a local school board was sued in state court by a former student who alleged that his federal rights were violated under 42 U.S.C. § 1983. The state court dismissed the lawsuit on grounds that the school board, as an arm of the state, had not waived its sovereign immunity in § 1983 cases. The Court, in a unanimous decision, noted that the state dismissal raised concern that the state court may be evading federal law and discriminating against federal causes of action. It emphasized that § 1983 was the supreme law of the land which state courts were obligated to enforce. The Court then reasoned:

But as to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their own common-law heritage. If we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to “persons” who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.

Howlett, 496 U.S. at 383. As a result, the Court held that § 1983, as the supreme law of the land, overcame any protection invoked by the school board for state sovereign immunity.

There is precedent in state courts for our holding here today. In Clover Bottom Hospital and School v. Townsend, 513 S.W.2d 505 (Tenn. 1975), the Tennessee Supreme Court addressed an issue comparable to what confronts us in the instant case. In Townsend, several people sued to recover unpaid wages against the state hospital pursuant to the FLSA in federal court. The suit was dismissed for lack of federal-court jurisdiction under the FLSA as it was then written. The plaintiffs sued next to enforce their FLSA claims in state court, and the state hospital moved to dismiss the action due to state sovereign immunity granted under the Tennessee Constitution. The trial court denied the motion, and the Tennessee Supreme Court affirmed. In doing so, the court adopted the reasoning of Justice Marshall in Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973), where he concurred in that decision but underscored the principle that by empowering Congress to regulate commerce, the states necessarily surrendered “any portion of their sovereignty that would stand in the way of such regulation.” Townsend, 513 S.W.2d at 507, quoting Employees v. Missouri Public Health Dept., 411 U.S. at 288-89, (Marshall, J., concurring). See also Parden v. Terminal R. Co., 377 U.S. 184, 192 (1964), overruled in part by Welch v. Texas Department of Highways & Pub. Trans., supra.

We agree with the Townsend conclusion but, again, underscore the point that in our judgment Hilton v. South Carolina Public Railways Comm’n, supra, and Howlett v. Rose, supra, decide this issue. Here, the FLSA expressly provides that state courts have jurisdiction over these claims. 29 U.S.C. § 216(b). Furthermore, state employees like the employees in the instant case are clearly entitled to file FLSA claims against state agencies as employers. 29 U.S.C. § 216(b); 29 U.S.C. § 203(d); 29 U.S.C. § 203(x). See also Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). As already noted, we do not deem the fact that Seminole Tribe v. Florida, supra, has struck down state liability for FLSA claims in federal courts as determinative of state liability in its own courts. The FLSA remains valid law protecting employees and empowering them to enforce claims for unpaid wages. This law remains the law throughout the land, and state sovereign immunity cannot impede it.

There is, of course, a uniformity consideration inherent in the principle of supreme law of the land. If the matter is left to the individual states to determine whether state sovereign immunity offers state employers sufficient protection, the result may well be a patchwork quilt of FLSA enforcement with some state courts permitting FLSA claims against state employers and other state courts declining to do so.

We are mindful of the fact that in the past several state appellate courts have not been persuaded that the Supremacy Clause preempts the immunity of a state sovereign against suit in its own courts. See, e.g., Morris v. Massachusetts Maritime Academy, 565 N.E.2d 422 (Mass. 1991); Widgeon v. Eastern Shore Hosp. Ctr., 479 A.2d 921 (Md. 1984); Lyons v. Texas A&M Univ., 545 S.W.2d 56 (Tex. Civ. App. 14 Dist. 1977); Mossman v. Donahey, 346 N.E.2d 305 (Ohio 1976); Weppler v. School Bd. of Dade County, 311 So. 2d 409 (Fla. App. 3 Dist. 1975); Board of Comm’rs v. Splendour Shipping & Ent. Co., 255 So.2d 869 (La. App. 4 Dist. 1972); Gross v. Washington State Ferries, 367 P.2d 600 (Wash. 1961); Maloney v. New York, 144 N.E.2d 364 (N.Y. 1957).

This point of view is perhaps best typified by the Massachusetts Supreme Court in Morris v. Massachusetts Maritime Academy, supra. In Morris, a cadet (Morris) was killed in a fire on a state training vessel owned by the state, and Morris’s estate sued the state Maritime Academy in state court on an admiralty claim for violation of the Jones Act. Jurisdiction for such actions against the state in federal court had previously been held to be foreclosed by the Eleventh Amendment. See Welch v. Texas Dept. of Highways and Pub. Trans., supra. The Maritime Academy moved to dismiss on grounds that the state was immune from suit by virtue of its sovereign immunity. The trial court denied the motion, and the Massachusetts Supreme Court affirmed because the Maritime Academy had consented to the suit.

In its decision, however, the Massachusetts Supreme Court observed that in a line of cases from Hans v. Louisiana, supra, forward there was an indication that the U.S. Constitution was confirmed with the implied assumption that state sovereign immunity would continue to exist under the Eleventh Amendment in state and federal courts. To do otherwise, the court reasoned, would create an anomalous situation where the Eleventh Amendment provided protection in one jurisdiction but not in the other, thus demoting the Eleventh Amendment “into nothing more than a choice of forum clause.” Morris, 565 N.E.2d at 426. The court further voiced concern over a state’s being hauled into its own courts as a party by the laws of another sovereign. Id. The Court, accordingly, held that the Maritime Academy was protected against suit in state court, absent consent.

There is one point which we find persuasive when considering the Morris decision. The decision was premised on the fact that the U.S. Supreme Court had never addressed the precise issue of state immunity in state courts for a federal claim when federal jurisdiction was no longer available. But following the Morris decision, the Court did appear to reach the issue in Hilton v. South Carolina Public Railways Comm’n, supra, as previously discussed, with its citation to Howlett v. Rose, supra. Without consideration of the Hilton and Howlett decisions, we consider the Morris decision as well as the other earlier state court cases to be of little utility in deciding this issue.

We are also aware that some ambiguous language in the Seminole Tribe opinion concerning “unconsenting states” has been seized upon as support for the proposition that state consent is a prerequisite to state liability in its own courts for violation of a federal right. Carlos Manual Vazquez, What Is Eleventh Amendment Immunity? 106 Yale L.J. 1683, 1717 (1997), citing Seminole Tribe, 517 U.S. at 72. There is, too, one-sentence dictum in Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994), that the Eleventh Amendment shields states from suit in federal court “leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals.” Hess, 513 U.S. at 39 (emphasis added). This line of reasoning in favor of state sovereign immunity has its genesis in Hans v. Louisiana, supra, and the Court’s allusion in that 1890 opinion to the principle that a sovereign cannot be sued in its own courts without its consent or permission. Hans, 134 U.S. at 17. We view such passing references, and even the language in Hans, as inconsequential when confronted with the full analysis of Hilton v. South Carolina Public Railways Comm’n, supra, bolstered by Howlett v. Rose, supra, where the issue of the Supremacy Clause was met head-on.

In sum, we have no doubt that the weight of authority favors the employees in this matter. The FLSA now remains to be enforced against state employers only in state courts and is viable only by virtue of the Supremacy Clause. Despite our conclusion, we do not view our decision today as supporting the concept that Congress has unbridled authority under the Commerce Clause to require state courts to enforce federal rights against a state government. But with the history of the FLSA and with the Court’s clear message that the Eleventh Amendment is not pertinent to state immunity in state courts, we can only conclude that the FLSA remains alive and well and that state-court enforcement against its own sovereign has not been foreclosed.

The decision of the circuit court is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

       Though the employees cite Hilton v. South Carolina Public Railways Comm’n, supra, as pivotal authority m their brief, the Department fails to mention, much less discuss the case, in its responding brief.

       The federal district court apparently dismissed the claim because of Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973), where the Court held that Congress had not adequately expressed an intent m the FLSA to counter the Eleventh Amendment immunity for state employers in federal court. The FLSA was later amended to express that intent. See Pub. L. No. 93-259 § 6(d)(1) (1974).


source: Caselaw Access Project

license: Public Domain

text:
    Wilbert MULDREW v. STATE of Arkansas
    CR 97-561
    963 S.W.2d 580
    Supreme Court of Arkansas
    Opinion delivered February 19, 1998

      David Mark Gunter, for appellant.

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

Appellant Wilbert Muldrew appeals his convictions on three counts of delivery of crack cocaine and his sentence of forty years on each count, with the three sentences to run consecutively. He raises two points on appeal, both of which relate to allegations of impropriety in the prosecutor’s closing argument. We hold that neither count has merit, and we affirm.

Muldrew’s first issue relates to the following closing argument and the ensuing colloquy:

PROSECUTOR: I want to read you the reasonable doubt instruction that [defense counsel] says is in our constitution. I don’t know if that was correct either. It may be, but I’ve never read it in there. But, it is a legal concept that I told you you’ll always hear in a criminal case because that’s what they’re going to say. They don’t say my client’s not guilty. They just say he’s not guilty beyond a reasonable doubt.
DEFENSE COUNSEL: Your Honor, I’m going to object. There’s an implication here that Mr. Muldrew has to prove his innocence, and that’s clearly outside the rules, and I request the Court to enter a mistrial for the prosecution making that statement. That’s clearly outside the rules.
THE COURT: Motion for mistrial is denied. Is there any instructions (sic) requested?
DEFENSE COUNSEL: Instruction that the State knows full well that no Defendant in any criminal case has to prove anything.
THE COURT: Ladies and gentlemen, you will recall the instruction the Court gave you along these lines, and it’ll be handed to you for your perusal as you consider this case.

We agree with Muldrew that the prosecutor’s argument could well have suggested to the jury that the defendant had the burden of proving he was not guilty beyond a reasonable doubt. The issue then becomes whether the trial court’s admonition cured any prejudice. Muldrew contends that the trial court’s mild rebuke was insufficient in this respect. In support of his argument, he cites this court to Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958), where this court reversed the appellant’s conviction due to a “golden rule” argument made by the prosecutor who invoked the potential danger to the jurors’ daughters in the event of the appellant’s release. Muldrew further relies on Hughes v. State, 154 Ark. 621, 243 S.W. 70 (1922), where this court reversed the appellant’s conviction based on the “testimony” by the prosecutor in closing argument that he was convinced of the appellant’s guilt. We held that in neither case could the prejudice be removed by the admonition given by the trial court.

Although Muldrew concedes that the acts of the prosecuting attorney in the instant case do not constitute a “golden rule” argument or impermissible testimony by the prosecutor, he argues that the result in this case should be the same as in Adams v. State, supra, and Hughes v. State, supra, given the prosecutor’s status as a judicial officer and the blatant disregard of his rights on the burden-of-proof issue. He further contends that the admonition given was too mild and too general and did not suffice to cure the prejudice.

This court has recognized on multiple occasions that not every instance of prosecutorial misconduct mandates a mistrial and that any prejudice suffered may be cured by a proper admonition. See, e.g., White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). We have explained:

[A] mistrial is such an extreme remedy that it should not be used unless there has been error “so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifesdy affected.” Puckett v. State, 324 Ark. 81, 89, 918 S.W.2d 707, 711 (1996). A mistrial should only be declared when an admonition to the jury would be ineffective. Id. Moreover, the trial court is given broad discretion to control counsel in closing arguments, and this court will not disturb the trial court’s decision absent a manifest abuse of discretion. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). We said in Lee: “[Rjemarks that require a reversal are rare and require an appeal to the jurors’ passions.” 326 Ark. at 532, 932 S.W.2d at 758.

Calloway v. State, 330 Ark. 143, 149-50, 953 S.W.2d 571, 574 (1997). See also Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).

We do not view the remark by the prosecutor in the case before us as the type that appeals to a juror’s passions, which was the case in both Adams v. State, supra, and Hughes v. State, supra. Moreover, here, the trial court admonished the jury by referring to the following standard instruction:

The State has the burden of proving the case beyond a reasonable doubt, and that is the State must prove beyond a reasonable doubt each element of the offense. On the other hand, the Defendant is not required to prove his innocence.

AMCI 2d 107. The trial court also instructed the jury with AMCI 2d 109, which provides that the presumption of innocence remains until the jury is convinced of the defendant’s guilt beyond a reasonable doubt.

There was no abuse of discretion by the trial court with respect to this first point.

For his second point, Muldrew argues that the prosecutor appealed to the jury’s passions by improperly including in his closing argument the theme of “send a message” to the community. The following closing argument and colloquy are pertinent:

PROSECUTOR: He was going to let drugs float around to wherever it could go as Betty McClure said, until it busts a heart out. I ask you to consider that. Let’s send a message to people in this community that we don’t really want these kind of folks around here.
DEFENSE COUNSEL: Your Honor, I object. That’s improper closing, send a message, that’s ground for mistrial to make that statement, I object.
THE COURT: It’s closing, it’s reasonably related to the evidence and to aid the jury. Ladies and gentlemen, you’re in a position to determine what the evidence is and from the evidence, make your decision. Any further instruction?
DEFENSE COUNSEL: Your Honor, I just think the Supreme Court has said that you can’t do that, and that’s, that’s illegal, that’s improper to, to indicate that, that this jury should send a message to the community about anything, and that that is certainly grounds for a mistrial, and I make a motion at this time.
THE COURT: Overruled. Any further instructions requested?

Without citation to any authority, Muldrew claims that the remarks by the prosecutor were improper because they went beyond the evidence and were a manifest appeal to the jury’s emotions. Muldrew also contends that the trial court exacerbated the prejudice by telling the jury in the admonition that the prosecutor’s argument was supported by the evidence.

This argument is without merit. First, a mistrial is awarded only when an admonition to the jury is ineffective. Calloway v. State, supra; Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997); Puckett v. State, supra. In this case, Muldrew asked for no relief except for declaration of a mistrial, and it is likely that an admonition would have cured the prejudice. See Puckett v. State, supra. Secondly, the prosecutor’s reference to “busting a heart out” was taken from proof submitted to the jury. Betty McClure, the informant who purchased crack cocaine from Muldrew on three separate occasions, testified that she cooperated with law enforcement in order to rid her community of its drug problem. She testified that in 1992, her twenty-four-year-old son died from a “busted heart” as a result of his addiction to crack cocaine.

Finally, Muldrew’s argument that criminal juries should not be concerned with “sending a message” is not supported by our caselaw. In Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996), the trial court determined that the appellant should serve consecutive sentences on two convictions for aggravated robbery after concluding: “The only thing that I know that it might do is send some sort of message to somebody else out there that might be so inclined to engage in a course of conduct of a criminal nature.” Love v. State, 324 Ark. at 531-32, 922 S.W.2d at 704. On appeal, this court affirmed the trial court and stated:

Granted, the trial court commented that he hoped to send a message to people who might be inclined to engage in criminal activity. However, Love cites no authority for his argument that such a consideration is improper. Stevens v. State, [319 Ark. 640, 893 S.W.2d 773 (1995)]. Further, Ark. Code Ann. § 16-90-801(a)(5) (Supp. 1995) provides that a primary purpose of sentencing a person convicted of a crime is to “deter criminal behavior and foster respect for the law.”

Love v. State, 324 Ark. at 532, 922 S.W.2d at 704.

Affirmed.


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

text:
    Michelle Smith YOUNG v. Rodney SMITH
    97-574
    964 S.W.2d 784
    Supreme Court of Arkansas
    Opinion delivered February 19, 1998

      Dunham & Faught, P.A., by: James Dunahm, for petitioner.

      George R. Wadley, for respondent.
   Ray Thornton, Justice.

The issue in this a case is whether a chancery court has the power to enforce its order awarding visitation to a stepparent in the context of a divorce decree. Appellee Rodney Smith filed a complaint for divorce from appellant Michelle Smith Young on May 6, 1992, in the Randolph County Chancery Court. In his complaint, appellee requested custody of Dustin, the child whom he regarded as his own although Dustin was born prior to the parties’ marriage. In her answer, appellant denied that appellee was the child’s biological father and protested any custody or visitation award. The chancellor ordered a paternity test, which proved that Dustin was not appellee’s biological child. The chancery court entered the divorce decree on December 23, 1992. In its decree, the court granted the parties an absolute divorce, noted that appellee was not Dustin’s biological father, granted appellant custody of Dustin, awarded appellee the right to visitation, and awarded appellant child support. We note that appellant elected not to appeal from the chancery court’s divorce decree granting the visitation rights.

Appellant brings this appeal from the September 9, 1996 order of the chancery court, finding her in contempt. In the contempt order, the chancery court found that appellant had wilfully violated its prior visitation orders and been held in contempt for refusing to comply with those orders, and sentenced appellant to serve thirty days in the Randolph County Detention Center. The chancery court also required appellant to place a $5,000 bond with the chancery clerk to secure future compliance with the court’s orders. On appeal, appellant argues (1) that the chancery court erred by enforcing its visitation orders that granted appellee visitation rights with Dustin, and (2) that the divorce decree and other orders of the chancery court that granted appellee visitation rights are void because the chancery court lacked subject-matter jurisdiction. This appeal has been certified to this court from the court of appeals.

Appellant has also filed a petition for writ of prohibition to enjoin both the orders of the chancery court finding her in contempt and the decision of our court of appeals affirming a February 9, 1996 contempt order. In her petition, appellant argues that the visitation orders issued by the chancery court and affirmed by the court of appeals exceeded the chancery court’s jurisdiction and are therefore void and unenforceable. Appellant also argues that the court of appeals’ affirmance was an illegal expansion of the chancery court’s jurisdiction.

The principal issue presented for decision in both the appeal and the petition is whether the chancery court exceeded its power, and thereby its subject-matter jurisdiction, in granting visitation rights to a stepparent. Procedurally, appellant’s remedy for a review of a contempt order is appeal. Frolic Footwear v. State, 284 Ark. 487, 683 S.W.2d 611 (1985); Higgenbotham v. Williams, Chancellor, 227 Ark. 126, 296 S.W.2d 897 (1956). Moreover, the purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Tatro v. Langston, 328 Ark. 548, 944 S.W.2d 118 (1997). It is well settled that a writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 222, 931 S.W.2d 426, 429 (1996). We have stated that a writ of prohibition is never issued to prohibit an inferior court from erroneously exercising its jurisdiction. Dougan v. Gray, 318 Ark. 6, 17, 884 S.W.2d 239, 242 (1994). In the case before us, writ-of-prohibition relief is not available because appellant’s remedy is one of appeal from the trial court’s contempt order.

This appeal and the appeal upon which the court of appeals acted arise from chancery court orders finding appellant in contempt. Appellant argues that the chancery court lacked the authority to issue the contempt orders to enforce its visitation orders because the court lacked subject-matter jurisdiction to enter the visitation orders. We first consider whether the chancery court had jurisdiction to hear this case.

Althpugh the divorce decree granting visitation is not before us, we address whether the lower court had subject-matter jurisdiction because lack of subject-matter jurisdiction is a defense that may be raised at any time by either a party or the court, and it is a defect that is never waived by a failure to raise it at a particular point in a proceeding. Ark. R. Civ. P. 12(h)(3). A court that acts without subject-matter jurisdiction or in excess of its power produces a result that is void and cannot be enforced. West v. Belin, 314 Ark. 40, 45, 858 S.W.2d 97, 100 (1993).

This court has defined jurisdiction as “the power to hear and determine the subject-matter in controversy between the parties to the suit; to adjudicate or exercise any judicial power over them.” Lamb & Rhodes v. Howton, 131 Ark. 211, 213, 198 S.W. 521, 522 (1917). The following language from the court of appeals is instructive on the issue before us:

The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court’s jurisdiction to act upon the subject matter, that action is binding until reversed or set aside.

Banning v. State, 22 Ark. App. 144, 149, 737 S.W.2d 167, 170 (1987) (citations omitted).

Here, if the issue is properly phrased as one of “subject-matter jurisdiction,” our analysis is confined to whether the Randolph County Chancery Court possessed the power to adjudge and act on the general cause of action alleged.

The underlying general cause of action in this case goes back to the decree of divorce, filed on December 23, 1992, in which the chancery court granted appellant custody of Dustin and granted appellee visitation rights. This case involves issues of divorce, child custody, paternity, child support, and visitation, each of which could properly be brought in the chancery court. See, e.g., McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990) (stating that chancery courts have subject-matter jurisdiction to make custody, support, and visitation determinations); Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981) (noting that visitation rights are exclusively within the jurisdiction of the chancery courts); see also Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988) (stating that a chancery court may award custody of a child to a stepparent, although we held that it was not in the best interest of the child do so under the facts of that case). All of these issues were addressed in the chancellor’s original order, and they are squarely within the equity jurisdiction that the legislature conferred on chancery courts in this state. See Ark. Code Ann. § 16-13-304 (Supp. 1997). We conclude that the Randolph County Chancery Court had jurisdiction over the subject-matter of this case.

Having determined that the chancery court had subject-matter jurisdiction to enter the visitation orders, we next consider appellant’s argument that the chancery court erred in enforcing its visitation orders. Chancery courts clearly have the authority to issue or deny injunctive relief and other equitable relief. West v. Belin, 314 Ark. at 44, 858 S.W.2d at 101. The right to punish for contempt is inherent in all courts. Dougan v. Gray, 318 Ark. at 17, 884 S.W.2d at 245. Here, the contempt orders from which appellant appeals were the chancery court’s attempt to enjoin appellant from violating its orders relating to appellee’s visitation rights.

Where an appellant claims error in a court’s decision, the appropriate procedure is to obey the order and pursue a remedy by appeal or direct action in the erring court, rather than through an appeal from the order finding the appellant in contempt for its violation. See Casey v. Sef, 236 Ark. 496, 367 S.W.2d 114 (1963). We have held that a party who violated an order of injunction could not test the validity of the original order upon which the injunction was based only after being found in contempt for its violation. Carnes v. Butt, 215 Ark. 549, 551, 221 S.W.2d 416, 417 (1949). This case law clearly requires that appellant’s remedy lies either through a timely appeal from the original divorce decree, which she claims erroneously granted appellee visitation, or through direct action to petition the chancery court to modify the decree, based on changed circumstances, if any, relating to the welfare of the child.

Where, as here, the chancery court acted upon a subject matter within its jurisdiction, we maintain that the action is binding until it is reversed or set aside. We therefore affirm the chancery court’s decision and dismiss this appeal without prejudice to appellant’s right to seek to modify the issue of visitation through direct action in the chancery court.

Affirmed.

Glaze and Corbin, JJ., concur.

Tom Glaze, Justice,

concurring. I join the majority, but write to address only the subject-matter jurisdiction issue, since I agree entirely with the majority’s procedural holding that writ of prohibition is not the vehicle for review of this cause. The majority court also correctly holds that the chancery court had subject-matter jurisdiction in granting appellant-stepparent Rodney Smith visitation, but I concur to offer further support for that conclusion.

Michelle Young is correct that Smith has no statutory right under which he can demand visitation with Dustin. Even so, visitation privileges may be extended to nonadoptive stepparents who have stood in loco parentis to the child. See 27C C.J.S. Divorce § 632 (1986); see also Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997), citing Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989); contra 27C C.J.S. § 632 (Cum. 1997).

Concerning the Golden and Riddle cases, Young makes a strong argument that those cases fail to support the proposition that a stepparent is entitled to visitation with a stepchild. I agree. Riddle never decided the issue, and Golden simply mischaracterized the Riddle holding. Nevertheless, our court, in Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), did address the issue as to whether a chancery court can award custody of a child to a stepparent, and held a chancellor may do so. The Stamps court did so even though Arkansas’s statute makes no reference to a stepparent, but instead reads, “. . ,[T]he award of custody of the children of the marriage shall be made without regard to the sex of the parent, but solely in accordance with the welfare and best interests of the children.”

Given the rule that a stepparent may be awarded custody of a stepchild if the child’s welfare and best interest warrant such placement, I submit that a stepparent standing in loco parentis may be awarded visitation rights. See also Jeff Atkinson, Modern Child Custody Practice § 8.18 (1986 and Cum. 1987) (case law from at least nine states has recognized a right of stepparents to seek visitation); see also Koelle v. Zwiren, 672 N.E. 2d 868 (Ill. App. 1 Dist. 1996) (awarding custody or visitation rights to nonparent over objection of natural parent is permissible if it would be in best interests of child).

In conclusion, I note Young’s reliance on two earlier cases of this court, Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978), and Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981), that dealt with grandparent visitation rights. She suggests those holdings provide visitation orders that lack statutory authority and are void and unenforceable. I disagree. Poe merely holds that probate court is a court of special and limited jurisdiction and a probate court decree attempting to grant visitation rights to a natural grandparent as an incident to an adoption, or to enforce a grandparent’s visitation rights without specific statutory authority, is surplusage and void. And the Wilson case, a chancery court case, involved whether paternal grandparents were entitled to visitation rights after the widowed mother remarries and the second husband adopts her child. The Wilson court said no, but it denied visitation based upon the legislature having enacted law that “terminated all legal relationships between the adopted individual and his relatives... so the adopted individual thereafter is a stranger to his former relatives for all purposes.” Here, the Arkansas General Assembly has enacted no law that proscribes stepparents, standing in loco parentis, from visiting with a stepchild. In sum, I find the cases Young cites inapplicable to the situation now before this court. I concur with the results reached by the majority.

Corbin, J., joins this concurrence.

       In Stamps, the court awarded custody of the child in the mother because the mother was a fit and proper person for custody.


author: Per Curiam.

text:
    Lonnie GREEN v. Dwala WILLIFORD
    CA 97-1312
    961 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered February 19, 1998

      Floyd A. Healy, for appellant.

      Hardin & Grace, by: William T. Terrell, for appellee.

      Judy P. McNeil, for amicus curiae.

   Per Curiam.

Appellee Dwala Williford moves the court for dismissal of this appeal for failure of appellant Lonnie Green to state in his notice of appeal that financial arrangements have been made with the court reporter for preparation of the transcript as required by amended Arkansas Rule of Appellate Procedure — Civil 3(e). The Arkansas Court Reporters Association requests permission to file an amicus curiae brief in this matter in support of the motion to dismiss, and that motion is granted.

The relevant dates are these. On October 10, 1997, Green filed his notice of appeal without a statement that financial arrangements had been made with the court reporter. On November 3, 1997, Green filed the record in his appeal which included the trial transcript. On December 9, 1997, Green filed his appellant’s brief. On December 23, 1997, appellee Williford moved to dismiss Green’s appeal for failure to comply with Ark. R. App. P.—Civ. 3(e).

Last year, we amended Ark. R. App. P.—Civ. 3(e) to require that the notice of appeal state that financial arrangements had been made with the court reporter. That amendment took effect on March 1, 1997. On June 23, 1997, we issued a per curiam order which included an amendment to Ark. R. App. P.—Civ. 3(e) that a notice of appeal is invalid if it does not include the statement regarding financial arrangements with the court reporter. On December 4, 1997, we issued a per curiam order, which included an Addition to Reporter’s Notes that the “invalidity” language under the June 23, 1997 amendment means that substantial compliance is not the standard for saving a notice of appeal when the financial-arrangement language is omitted.

We first conclude that the fact that a notice of appeal may be invalid does not render the notice automatically void but rather voidable until actually annulled. Cf. Powers v. Bryant, 309 Ark. 568, 832 S.W.2d 232 (1992) (defect in judgment which may render it invalid is only voidable). Next, though we have determined that the statement regarding financial arrangements with the court reporter is essential to the validity of a notice of appeal, a contest to that notice of appeal must be timely made. Here, Williford waited until after the court reporter had been paid for the transcript and after the record with the transcript had been filed in this court. Indeed, the motion to dismiss was not filed until after Green’s brief had been filed.

The fact that a notice of appeal may be invalid due to lack of a “financial-arrangements” statement will not be considered fatal to the appeal if the record, including the trial transcript, has been lodged with the Clerk in a timely manner. Prior to the appellant’s lodging of the record on appeal, a challenge to the notice of appeal may be made by filing a motion to dismiss the appeal accompanied by a partial record. Once the court reporter’s transcript has been lodged, however, the “financial-arrangements” issue is obviously moot.

The motion to dismiss is denied.


text:
    Benfordene Butler SMITH v. STATE of Arkansas
    CR 97-1190
    959 S.W.2d 54
    Supreme Court of Arkansas
    Opinion delivered February 19, 1998

      Willard Proctor, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Benfordene Butler Smith, by her attorney, Willard Proctor, Jr., has filed a motion to extend time for filing brief.

Appellant’s brief was due on November 15, 1997. Appellant’s attorney admits that the brief has not been filed in a timely manner due to an error on his part. Specifically, appellant’s attorney failed to maintain the briefing schedule on his calendar. Furthermore, appellant’s motion to extend time for filing brief was not filed until January 14, 1998, after the Supreme Court Clerk sent a letter to appellant’s attorney regarding the status of briefing.

The motion to file belated brief is granted.

We routinely grant motions to file belated briefs. However, because of the long delay by appellant’s attorney, a copy of this opinion will be forwarded to the Committee on Professional Conduct.


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

text:
    Kevin Allen LLOYD v. STATE of Arkansas
    CR 97-154
    962 S.W.2d 365
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Dunham & Faught, P.A., by: James Dunham, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellant, Kevin Allen Lloyd, was convicted of the capital murder of his father, Ken Lloyd, and was sentenced to life imprisonment without parole. His sole argument on appeal is that there was insufficient evidence of premeditation and deliberation to support his conviction. We disagree, and affirm appellant’s conviction and sentence.

On October 19, 1995, the body of Ken Lloyd was found in his home on Crow Mountain in Pope County. He had been shot three times with a sawed-off twelve-gauge pump shotgun. Sergeant Aaron Duvall of the Pope County Sheriffs Office located the murder weapon on the living room floor of the residence. He determined that two different types of shells had been fired — double-00 buckshot and number-six game-load. He further explained that, after the shotgun was fired, the shooter had to eject the empty casing by bringing the pump down, then back up to pump another round into the chamber to fire another shot. According to Sergeant Duvall, a person had to make a conscious effort to pump the shotgun and fire it.

After learning that appellant lived at the victim’s residence, Pope County Sheriff jay Winters and Arkansas State Trooper Jerry Roberts began searching for him and eventually developed him as a suspect. They found appellant in a large metal drainage tile in an area north of Interstate 40. After being advised of his Miranda rights, appellant admitted that he had shot his father three times because he was mad at him. In a later taped statement, appellant stated that his father was asleep when he shot him the first time, and that he shot him two more times after he got up.

Appellant’s sister, Christy Lloyd, testified that appellant had talked about killing their father for six months to a year, and that his remarks intensified prior to the victim’s death. Specifically, appellant told Christy that he hated their father, wished he were dead, and that he was going to kill him. Prior to the murder, the appellant told Christy that he had obtained a shotgun from a friend. He took the shotgun to the shed, sawed the barrel off, and showed the gun to her. Appellant, who did not wear his glasses in spite of his poor eyesight, explained to Christy that he had sawed the barrel off because he could point it and “hit stuff easier,” as a sawed-off shotgun was easier to aim because you could point and shoot it without seeing the target. According to Christy, appellant demonstrated this for her by shooting some spray-paint cans.

Tim Ramsden, a friend of appellant’s, testified that, at 12:50 p.m. on October 18, 1995, the day of the murder, appellant telephoned his residence and asked if his jacket was in his (Ramsden’s) room. According to Ramsden, who did not drive, appellant wanted the shells that were in the jacket. Appellant asked Rams-den to have another friend, Shiloh McClure, who had a car, to bring the jacket to appellant’s house.

Dennis Brown, another friend of appellant’s, was also present at Ramsden’s house when appellant made the telephone inquiry about his jacket. Brown rode with McClure to appellant’s house. Upon arrival, appellant approached the car and retrieved his jacket from Brown. According to Brown, appellant “looked and acted demonic” and had an “evil glare.” Appellant took three shotgun shells out of his jacket and stated that he did not need the rest of them. He then walked away from the car. Brown and McClure had been waiting in the car for approximately twenty minutes when Brown heard three shotgun blasts that appeared to come from the house. According to Brown, the first and second shots were one second apart, but the third blast occurred some ten to fifteen seconds later. Appellant then ran to the car and climbed inside. According to Brown, appellant stated that he felt “evil” and felt good about killing his father. Appellant described how he was “relieved” and felt his fife was “complete and that it was over.” McClure drove for approximately ten to fifteen minutes before dropping appellant off.

Dr. Stephen A. Erickson, Associate Medical Examiner of the State Crime Lab, examined the victim’s body and determined that the death was the result of a homicide. One of the three shotgun wounds was located around the upper left leg, lower left abdomen, left groin, and genitalia. A second wound was located on the victim’s right leg. Buckshot pellets created separate entrance wounds into the leg that broke the ends of the femur, tibia, and fibula bones. According to Dr. Erickson, this wound caused massive damage to the victim’s leg, destroying all the vasculature. The third and final wound was located on the victim’s right forearm and created an “explosive-type injury” that destroyed the muscles, bones, arteries, and nerves in the arm. It was Dr. Erickson’s testimony that these multiple gunshot wounds caused bleeding, which led to shock, vascular collapse, and, ultimately, the victim’s death.

At the close of the State’s case in chief, appellant moved for directed verdict on the ground that the State had failed to show sufficient evidence of premeditation and deliberation. The trial court denied the motion. Appellant rested without presenting any evidence. After hearing all the evidence, the jury was instructed on capital murder, as well as the lesser-included offenses of first-degree murder and second-degree murder.

We have recently reviewed the guidelines for reviewing challenges to the sufficiency of the evidence in Green v. State, 330 Ark. 458, 466-7, 956 S.W.2d 849 (1997); quoting McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997):

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

See also Stewart v. State, 331 Ark. 359, 961 S.W.2d 750 (1998). Specifically, appellant maintains that his capital-murder conviction should be reversed because the State failed to prove premeditation and deliberation. See Ark. Code Ann. § 5-10-101 (a)(4) (Repl. 1997). “Premeditation and deliberation may be inferred from the type and character of the weapon used, the manner in which the weapon was used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused.” Green, 330 Ark. at 467; citing Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), cert. denied, 117 S.Ct. 436 (1996).

On appeal, appellant argues that the only evidence of premeditation and deliberation came from the testimony of Dennis Brown, who appellant claims was an accomplice. Thus, according to the appellant, Brown’s testimony regarding premeditation and deliberation must have been corroborated. During cross-examination of Brown, appellant requested at a side-bar conference that the trial court declare the witness an accomplice as a matter of law. The trial court refused to do so, stating that whether Brown was an accomplice was a mixed question of law and fact. The trial court did indicate, however, that it could foresee an accomplice instruction being included at the end of the trial. However, no accomplice instructions were requested or submitted to the jury. Thus, Brown was never found to be an accomplice.

Appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996). An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces the other person in planning or committing it, or fails to make a proper effort to prevent the commission of the offense, provided he has a legal duty to prevent it. Id. Appellant contends that the evidence was insufficient to corroborate Brown’s testimony. Because Brown was never found to be an accomplice whose testimony must be corroborated, we do not address this argument. See Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). Appellant failed to request that accomplice instructions, including the instruction on corroboration, be submitted to the jury for consideration. Thus, appellant has not preserved this issue for our consideration. Id.

Viewing the evidence in this case in the light most favorable to the State, there was substantial evidence that appellant acted with premeditation and deliberation in causing his father’s death. Appellant shot the victim three times with a sawed-off twelve-gauge shotgun. He had to deliberately expel a spent shell and pump another round into the chamber between shots. At least one of the victim’s wounds was inflicted with buckshot. Dennis Brown testified that approximately ten to fifteen seconds elapsed between the second and third shots. Appellant’s sister testified that appellant had been talking about killing their father for months. According to Christy Lloyd, appellant sawed off the barrel of the shotgun in order to improve his chances of hitting his target, and practiced shooting the shotgun at cans. Shortly before the murder, appellant telephoned his friend Tim Ramsden for the purpose of retrieving shotgun shells that were in a jacket at Rams-den’s residence. Upon receiving the shells, appellant took only three shells, stating that he did not need the rest. After the shooting, appellant made statements that he felt both “good” and “relieved” about the killing. Finally, appellant confessed to shooting his father because he was mad at him. When considering this evidence, the jury could have concluded, without resorting to speculation or conjecture, that appellant’s killing of his father was a premeditated and deliberate act.

The record has been examined under Ark. Sup. Ct. R. 4-3(h) for reversible error, and none has been found.

Affirmed.


author: David Newbekn, Justice.

text:
    Dechay WILSON v. STATE of Arkansas
    CR 97-873
    962 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered February 26, 1998

      Claudell Woods, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Asst. Att’y Gen., for appellee.
   David Newbekn, Justice.

Dechay Wilson stands convicted of theft of property, residential burglary, aggravated robbery, and rape. A jury fixed his sentence at one year for theft and thirty years for burglary. Because the jury could not agree on a sentences for aggravated robbery and rape, the Trial Court sentenced Mr. Wilson for those offenses. The sentences were imprisonment for life for rape and sixty years for aggravated robbery. Mr. Wilson argues that the evidence was insufficient to support a finding of guilt. We reject this argument due to the testimony of Mr. Wilson’s accomplice that Mr. Wilson committed the crimes and corroborating scientific evidence. Mr. Wilson also contends that the Trial Court erred in sentencing him to life in prison. Although Mr. Wilson makes several arguments in support of that contention, we decline to review all but one of them, as they were not made to the Trial Court. We consider only the argument that the Trial Court should not have sentenced Mr. Wilson due to the Trial Court’s awareness that he was not co-operating with defense counsel. The judgment is affirmed.

Helen Morris, the sixty-nine-year-old victim, testified that on the night of April 20, 1996, she was dozing in her living room after coming home from work. She noticed that some items in the room looked as if they had been moved, but she did not see anyone. Then, she saw two men standing in her dining room. One was taller than the other, and each wore something over his head. Mr. Wilson is about the size of the shorter of the two. They asked her where her money was and told her to be still. One threw a quilt over her head while they went through her house and threw items around. After the two men rummaged through her house, the shorter man raped her. Then, the taller man raped her. After raping her, they forced her to look for her purse. When she found the purse, the shorter man grabbed it, emptied it, and counted the money. They left her home with the money.

After the police arrived at Ms. Morris’s home, a family member took her to the hospital where she was examined. Oral, vaginal, and rectal swabs, a saliva disk, a blood tube, and pubic hairs were collected.

Jared Woodley, who had pleaded guilty to theft, residential burglary, aggravated robbery, and rape, initially testified that Mr. Wilson did not accompany him. He admitted, however, that in two prior statements to investigating officers and when he entered his guilty plea, he said that Mr. Wilson went with him to the home of Ms. Morris, and that Mr. Wilson stole her money and raped her. Ultimately, Mr. Woodley gave detailed testimony about his and Mr. Wilson’s acts, including raping Mrs. Morris and stealing her money at knife point.

Kermit Channell, DNA supervisor for the State Crime Laboratory, testified that the DNA that he recovered from the rectal swab was consistent with the DNA that was recovered from the blood sample from Mr. Wilson. He testified that the probability of someone else leaving that particular stain on the rectal swab is approximately one in 210,000 in the black population. He testified that the DNA that was extracted from the vaginal swab was consistent with DNA from Mr. Wilson, and the probability of someone else leaving that semen would be one in 160,000,000 in the black population. He testified that the population numbers for the rectal swab and the vaginal swab differ because, with the rectal swab, he only obtained results from six of seven possible tests due to a degradation of a particular chromosome, but with the vaginal swab, he obtained results from all seven tests.

Donald E. Smith, a criminalist with the State Crime Laboratory, testified that he discovered a hair fragment in Ms. Morris’s home that, in his opinion, was a pubic hair from Mr. Wilson.

Í. Sufficiency of the evidence

Following the State’s presentation of its case, defense counsel moved for a directed verdict by stating the following:

Judge, I move for a directed verdict and the basis for that is that there’s been an insufficient amount of evidence produced at this point by the prosecution to support their charges or to support it going to a jury of the charges that the defendant committed the acts of rape, aggravated — I’m sorry, aggravated robbery, theft of property or burglary. And the basis for this the disparity between the amount of evidence collected versus that actually that purports to point to the defendant as the person committing the acts. (Emphasis added.)

The Trial Court denied the motion. The renewed motion was also denied.

Mr. Wilson argues that the Trial Court erred in denying his motion for a directed verdict because the only evidence that tended to incriminate Mr. Wilson was not credible based on the following: (1) Mr. Woodley gave varying statements about Mr. Wilson’s participation; (2) the scientific evidence was not sufficiently specific; and (3) the victim was unable to identify the appellant.

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Walker v. State, 330 Ark. 652, 955 S.W.2d 905 (1997). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. We do not, however, weigh the evidence presented at trial, as that is a matter for a factfinder. Id. Nor will we weigh the credibility of the witnesses. Id.

The State contends that Mr. Wilson’s sufficiency argument is not preserved for our review because his motion for directed verdict was not sufficiently specific. A motion for a directed verdict in a criminal case must state the specific ground of the motion. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), interpreting Ark. R. Crim. Pro. 36.21 (now Rule 33.1). Rule 33.1 provides:

... A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. . . .

See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).

Mr. Wilson’s motion sufficiently specified that the evidence was insufficient for a conviction because the element of identity was missing. See Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992). The Trial Court did not err in denying Mr. Wilson’s directed verdict motion in view of the scientific evidence and the testimony of Mr. Woodley.

2. Sentencing

Mr. Wilson argues that the Trial Court erred in sentencing him to life imprisonment. There is no contention that it was error for the Trial Court to assume the sentencing role after the jury reported its inability to reach a sentence on two of the offenses of which Mr. Wilson stood convicted. Rather, the objection had to do with the Trial Court’s awareness that defense counsel had experienced difficulties in representing Mr. Wilson due to his failure to cooperate; apparently an argument of bias. At a pretrial proceeding, defense counsel stated that Mr. Wilson had not cooperated with him in planning a strategy for trial or in compiling a witness list to support Mr. Wilson’s claim that he had an alibi. The Trial Court stated that his knowledge of that fact would have nothing to do with his decision.

The Trial Court pronounced the sentences of thirty years for • residential burglary and one year in the Nevada County jail for theft of property, in accordance with the jury’s recommendations. He then sentenced Mr. Wilson to life imprisonment for the rape conviction and to sixty years for the aggravated robbery conviction.

Mr. Wilson’s sentencing argument is without merit. There is no evidence that defense counsel’s statements at the pretrial proceeding caused the Trial Court to be prejudiced against Mr. Wilson.

Finally, on this point, we note that, although the sentences for aggravated robbery and rape are to be served consecutively, the one-year misdemeanor theft sentence is to be served concurrently with the thirty-year sentence for burglary. It thus will be satisfied by service of the felony sentence. See Ark. Code Ann. § 5-4-403(c) (Repl. 1997); Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986).

4. Rule 4-3 (h)

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for erroneous rulings prejudicial to Mr. Wilson, and none has been found.

Affirmed.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    John Wesley SHAVER v. STATE of Arkansas
    CR 97-520
    963 S.W.2d 598
    Supreme Court of Arkansas
    Opinion delivered February 25, 1998

      Paul Petty, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant John Wesley Shaver brings this appeal after entering a conditional plea of guilty of possession of methamphetamine with intent to deliver and receiving a sentence of 120 months in the department of correction. His sole point for reversal is that the trial court erred in failing to grant his motion to suppress evidence recovered as a result of an unlawful search and seizure. We affirm the trial court’s ruling.

Shaver’s arrest ensued from incidents that occurred at 2:40 a.m. on July 7, 1996. Greg Henry was driving Shaver’s truck 76 miles per hour in a 55-mile-per-hour zone when Officers Larry Mitchell and Phillip Hydron stopped Henry for speeding. Shaver was a passenger in his truck. After Henry exited the vehicle and gave his driver’s license to Officer Mitchell, Mitchell saw what appeared to be leather straps next to the passenger seat, and noticed that Shaver was seated with an old tee shirt or towel over his lap. Mitchell asked Henry if there were any weapons in the vehicle, and Henry responded, saying Shaver had two. Mitchell then alerted Officer Hydron of the presence of the guns and asked him to remove Shaver from the truck. Hydron obliged, had Shaver place his hands on the truck, and began to pat him down. As Hydron reached to pat Shaver down, he noticed a bulge in Shaver’s front pocket. At the same time, Shaver “bowed up,” causing Hydron to press him against the truck and to tell Shaver to calm down and keep his hands on the truck. Officer Hydron then decided to reach inside Shaver’s pocket to determine what caused the bulge. Hydron pulled out a bag of white powdery substance, and he told Officer Mitchell that “it looks like we have discovered contraband.” Hydron continued to pull out a substance from both of Shaver’s pockets that he suspected was methamphetamine. Hydron testified that, initially, he had no idea what was in Shaver’s pockets, but only knew there was a “big bulge.” Hydron said that the bulge did not feel like a weapon, but added he was uncertain what the contents were. On cross examination, Hydron related that his intent was to pull everything out of Shaver’s pockets, regardless.

Recently, the Supreme Court held that an officer making a traffic stop may order passengers to get out of the vehicle pending completion of the stop. Maryland v. Watson, 117 S.Ct. 882 (February 19, 1997); see also Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997). We have also held that, after a lawful stop, the police are permitted to search the outer clothing of an individual and the immediate vicinity for weapons if the facts available to an officer would warrant a person of reasonable caution to believe that a limited search was appropriate. State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992); Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991); A.R.Cr.P. Rule 3.4. Stated in slightly different terms, when an officer is justified in believing that an individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officers or others, a patdown search may be conducted to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Terry v. Ohio, 395 U.S. 1 (1968).

In seeking suppression of the drugs found on Shaver, Shaver relies heavily on Minnesota v. Dickerson, 508 U.S. 366 (1993), for his argument that Hydron’s patdown of him exceeded the lawful bounds of Terry. In Dickerson, an officer responded to complaints of drug sales taking place at an apartment building, and when the officer arrived, he saw the defendant outside the building. The defendant attempted to evade the officer, and because the defendant had just left an apartment building known for cocaine traffic, the officer stopped and conducted a patdown of him. The officer felt a small lump in the front pocket, and as he examined it with his fingers, it slid and was felt to be a lump of crack cocaine in cellophane. The officer then pulled a plastic bag containing crack cocaine from the defendant’s pocket and arrested him. Defendant Dickerson moved to suppress, but the trial court denied his motion. The Minnesota Court of Appeals reversed, and the Supreme Court ultimately reviewed Dickerson’s case to consider the question concerning whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry. The Court determined that officers may do so, so long as their search stays within the bounds of Terry.

In its review of Dickerson’s case, the Supreme Court held that the officer overstepped his bounds because the officer’s continued exploration of Dickerson’s pocket, after having concluded that it contained no weapon, was unrelated to the sole justification of the search under Terry — the protection of the police officers and others nearby.

The Dickerson holding is simply not controlling here. We first point out that, in reviewing a trial judge’s ruling on a motion to suppress, this court reviews the evidence most favorable to the appellee. Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). This court reviews a trial court’s suppression ruling under the totality of the circumstances, deferring to the superior position of that court to evaluate questions of credibility, and reverse only if the ruling is clearly against a preponderance of the evidence. See Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995); State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978); Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979).

In the instant case, the trial court found Officers Mitchell and Hydron credible when describing their traffic stop of Shaver’s truck and subsequent patdown of Shaver, and concluded the actions taken were reasonable to insure their safety. The officers became immediately aware that Shaver had two weapons inside the stopped vehicle, and Officer Mitchell had seen a leather holster next to where Shaver was seated. Mitchell also saw Shaver had a tee shirt or towel in his lap. After Shaver was directed to get out of the truck, and when Officer Hydron commenced a patdown, Shaver “bowed up,” causing Hydron to tell him to “calm down” and again place his hands on the truck. Because of these actions and events, the trial court found it was reasonable for Hydron to reach into Shaver’s pockets to determine what was causing the bulges. The trial court further concluded that, although Hydron felt a plastic bag with a rock-like substance in it, the officer still was unaware of what else was in Shaver’s pocket because he could not feel the entire contents of his pocket. The trial court ruled this uncertainty of Hydron as to what else was in Shaver’s pocket was sufficient reason with all other circumstances for Hydron to search Shaver’s pocket.

In his argument, Shaver places emphasis on Hydron’s testimony that, when he searched Shaver’s pocket, the bulge “did not feel like a weapon” and that his “intent was to pull everything out of Mr. Shaver’s pockets, regardless.” In doing so, however, he ignores the circumstances leading to the patdown of Shaver — that guns were present, Shaver was seen next to a leather holster with a tee shirt or towel in his lap, and Shaver appeared “a bit agitated” and was ordered to “calm down.” To insure the officers’ safety, Officer Hydron felt compelled to check the “big bulge” in Shaver’s pocket, and while, in doing so, he found a bag of white powdery substance, Hydron remained uncertain regarding what else was in Shaver’s pockets. Under these described circumstances, we cannot say the trial court was clearly wrong in finding Officer Hydron was justified in conducting a limited search to determine that Shaver had no weapon on his person.

Newbern and Imber, JJ., dissent.

David Newbern, Justice,

dissenting. When Officer Hydron reached into the front pocket of appellant John Wesley Shaver’s blue jeans and seized its contents, he violated Mr. Shaver’s right under the Fourth Amendment to be free from unreasonable searches and seizures. We should reverse the conviction and direct the Trial Court to suppress the items seized by Officer Hydron.

The majority opinion erroneously asserts that Officer Hydron’s actions may be condoned under the rule announced by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). In the Terry case, the Supreme Court held that a police officer may stop and detain an individual, even in the absence of probable cause to arrest, if the officer has a “reasonable suspicion,” based upon “specific and articulable facts,” that the individual is involved in criminal activity. The Terry case further held that, if the officer also reasonably suspects that the person he has detained is “armed and presently dangerous,” the officer is “entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing” of the individual “in an attempt to discover weapons which might be used to assault him.” Id. at 30. If, during the exterior “weapons frisk,” the officer detects an item that he reasonably believes is a weapon, he may, according to the Terry case, seize the item.

A Terry weapons frisk is not “justified by any need to prevent the disappearance or destruction of evidence of crime.” Id. at 29. Rather, its “sole justification ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. See Adams v. Williams, 407 U.S. 143, 146 (1972) (“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .”).

Thus, even if an officer is reasonable in commencing a Terry weapons frisk, the scope of the search that follows “must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. at 19. “A search for weapons in the absence of probable cause to arrest . . . must... be strictly circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby . . . .” Id. at 26 (emphasis added). “[E]vidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.” Id. at 29. See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (“If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.”), citing Sibron v. New York, 392 U.S. 40, 65-66 (1968).

We have followed the Terry case in several of our own decisions. See, e.g., State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992); Stout v. State, 304 Ark. 610, 614, 804 S.W.2d 686 (1991); Wright v. State, 300 Ark. 259, 778 S.W.2d 944 (1989); Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989); Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980).

Our rules of criminal procedure have codified the principles discussed in the Terry case. Under Ark. R. Crim. P. 3.1, an officer may stop and detain a person upon reasonable suspicion that the person “is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property.” “‘Reasonable suspicion’ means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R. Crim. P. 2.1. If an officer has detained an individual pursuant to Rule 3.1, he then may proceed under Rule 3.4, which provides as follows:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.

Thus, the Terry case and our rules of criminal procedure allow an officer to commence a weapons frisk when the officer (1) has detained the suspect based on reasonable suspicion that he is involved in criminal activity, and (2) reasonably believes the suspect is armed and dangerous. However, a weapons frisk also may be permissible where the reason for the initial detention is not that the suspect is involved in criminal activity. Under Pennsylvania v. Mimms, 434 U.S. 106 (1997), and Maryland v. Wilson, 117 S. Ct. 882 (1997), a driver or passenger, even one who is not suspected of any criminal activity, may be ordered from a vehicle following a valid traffic stop and thus “detained” for Fourth Amendment purposes. If the officer then develops reason to believe the driver or passenger is armed and dangerous, he may conduct a Terry weapons frisk.

Under the rule announced in Minnesota v. Dickerson, 508 U.S. 266 (1993), an officer may seize even contraband if its incriminating nature becomes immediately apparent to him “through the sense of touch during an otherwise lawful” Terry search. In approving this “plain-feel” exception to the Fourth Amendment’s warrant requirement, the Court in Dickerson observed that, “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrandess seizure would be justified by the same practical considerations that inhere in the plain-view context.” Id. at 376-77.

In light of the above principles and the factual circumstances recited in the majority opinion, I am willing to concede, for the sake of argument, that Officer Hydron was reasonable in detaining Mr. Shaver and in further concluding that Mr. Shaver was armed and dangerous. Thus, I do not dispute the majority’s suggestion that Officer Hydron was permitted by the Terry case to commence a weapons frisk of Mr. Shaver’s outer clothing.

The facts mentioned by the majority, however, only justify the commencement of a Terry search, not Officer Hydron’s subsequent intrusion into Mr. Shaver’s pocket. Based on Officer Hydron’s own testimony, it is clear that he exceeded the scope of the search that he was permitted by the Terry case to undertake when he reached into Mr. Shaver’s pocket. Officer Hydron testified that, when he “reached to pat Mr. Shaver down,” he noticed a bulge in Mr. Shaver’s front pocket. Officer Hydron testified that he “was uncertain as to what it was.” Significantly, he testified that the item “did not feel like a weapon.” The officer said that he “didn’t know or have any idea what was in his pockets. All I knew was that there was a big bulge, so that is why I decided to reach inside the pocket.” He emphasized that he would have emptied Mr. Shaver’s pockets “regardless.”

By his own admission, Officer Hydron intruded into Mr. Shaver’s inner clothing without first concluding that the item he had detected in the course of the pat-down was a weapon. That fact renders the officer’s entry into the pocket illegal under the Fourth Amendment. In approving the officer’s conduct in the Terry case, the Court was careful to note that the officer “did not place his hands” in the suspects’ “pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns.” Terry v. Ohio, 392 U.S. at 30.

In Sibron v. New York, supra, which was a companion case to the Terry case, the Court invalidated the officer’s search of the petitioner’s pocket because that extension of the initial, exterior pat-down was not based on a reasonable suspicion that a weapon would be found there. The Court in Sibron distinguished the Terry case as follows:

The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration of arms, Patrolman Martin thrust his hand into Sibron’s pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.

New York v. Sibron, 392 U.S. at 65 (emphasis added). See also Bailey v. State, 246 Ark. 362, 367, 438 S.W.2d 321, 324-25 (1969) (reversing appellant’s conviction and stating officer’s search of appellant’s pocket and seizure of pocketbook was invalid and had “no reasonable relation to the object of the search, that being for a weapon”; Leopold v. State, 15 Ark. App. 292, 297, 692 S.W.2d 780, 784 (1985) (“An officer has the right to frisk a detainee’s possessions under Terry if there is a reasonable suspicion that there is a weapon located there.”).

The decisions of courts in other jurisdictions also require that an officer conducting a Terry search must, before moving the search from the exterior to the interior of a suspect’s clothing, have a reason to believe that the item he has detected is a weapon. In People v. Collins, 463 P.2d 403, 406 (Cal. 1970), the Supreme Court of California held that the scope of an exterior pat-down “cannot be exceeded at the mere discretion of an officer, but only upon discovery of tactile evidence particularly tending to corroborate suspicion that the suspect is armed.” The court observed that “[fjeeling a soft object in a suspect’s pocket during a pat-down, absent unusual circumstances, does not warrant an officer’s intrusion into a suspect’s pocket to retrieve the object.” Id.

Numerous other cases are in accord. See, e.g., Ellis v. State, 573 So. 2d 724, 725 (Miss. 1990)(“When an object is soft or does not reasonably resemble a weapon, the Terry analysis does not justify removing it from the suspect’s clothing and searching it.”); United States v. Santillanes, 848 F.2d 1103 (10th Cir. 1988); State v. Collins, 679 P.2d 80 (Ariz.App. 1984); Blackburn v. State, 414 So.2d 651, 652 (Fla.App. 2d Dist. 1982)(seizure of item that caused a “bulge” in appellant’s shirt pocket held “not permissible when the officer does not reasonably believe that what he is finding is a weapon”); Francis v. State, 584 P.2d 1359, 1363 (Okl.Cr. 1978)(“When in course of a frisk the officer feels an object, he is not justified in seizing it unless it reasonably resembles an offensive weapon.”); People v. McCarty, 296 N.E.2d 862 (Ill.App. 1973). See generally 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(c), at pp. 276-80 (3d ed. 1996).

Thus, even if Officer Hydron could have legitimately commenced a Terry search of Mr. Shaver’s outer clothing, the officer’s testimony shows that he never concluded, as a result of his initial pat-down, that the “bulge” he detected in Mr. Shaver’s pocket was a weapon. It follows that the officer’s entry into Mr. Shaver’s pocket was “not reasonably related to the circumstances which provoked the protective search for weapons.” United States v. Del Toro, 464 F.2d 520, 522-23 (2d Cir. 1972). The search, therefore, did not comply with the Terry case, and the evidence seized as a result of the search should be suppressed. Nor can Officer Hydron’s intrusion into Mr. Shaver’s pocket be justified under the “plain-feel” exception approved by the Supreme Court in Minne sota v. Dickerson, supra. Nothing in the officer’s testimony suggests that the “incriminating nature” of the bulge became “immediately apparent” to the officer during his pat-down of Mr. Shaver’s outer clothing. The officer testified he “had no idea” what was there.

In the darkness of 2:40 a.m. on a July morning in the presence of two men whose vehicle containing weapons has been stopped for speeding, police officers are undoubtedly entitled to take reasonable measures to protect themselves from the possibility of being wounded if one of the men, removed from the vehicle, has a weapon in his pocket. The law must zealously provide for the officers’ protection. At least equal zeal must, however, be applied to the protection of this principle: “The right of the people to be secure in their persons. . . and effects, against unreasonable searches and seizures shall not be violated . . . .” U.S. Const., amend. 4. Obviously, a balance must be achieved by interpreting the word “unreasonable,” and then a line must be drawn.

To avoid the Fourth Amendment being swallowed by the need to protect the officers, and to avoid the need to protect the officers from being swallowed by the Fourth Amendment, the United States Supreme Court has drawn the line, described in the cases cited above, to be followed by all courts, including this one. In this instance this Court has clearly overstepped that boundary.

I respectfully dissent.

Imber, J., joins in this dissent.