author: Tom Glaze, Justice. Jack Holt, Jr., Chief Justice,

text:
    DEPARTMENT OF HUMAN SERVICES; Division of Social Services; Office of Long Term Care v. Sammie BERRY
    88-120
    764 S.W.2d 437
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellant.

      Darrell Graves, for appellee.

      Martha M, Miller, for amicus curiae Arkansas State Nurses Association.
   Tom Glaze, Justice.

The appellee, Sammie Berry, is licensed by the State of Arkansas as a practical nurse and is also the owner-operator of a licensed residential care facility within this state. The appellant, Department of Human Services (DHS), through its Office of Long Term Care (OLTC), is empowered by law to make rules and regulations to control residential care facilities. Berry sought a declaratory judgment that certain regulatory provisions adopted by the OLTC were arbitrary and in conflict with the authority granted to the Arkansas State Board of Nursing to regulate the nursing profession. Those regulations adopted by the OLTC govern the administration of medicine in residential care facilities by owner-operators of such facilities. The trial court declared the regulations invalid, and from that judgment, appellant brings this appeal. We reverse.

When considering the validity of a regulation, the court must give the regulation the same presumption of validity as it would a statute. See Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982). In reviewing the adoption of regulations by an agency under its informal rule-making procedures, a court is limited to considering whether the administrative action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. Arkansas Pharmacists Assoc. v. Harris, 627 F.2d 867 (8th Cir. 1980). A court will not attempt to substitute its judgment for that of the administrative agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). A rule is not invalid simply because it may work a hardship, create inconveniences, or because an evil intended to be regulated does not exist in a particular case.

In the present case, the OLTC bears primary responsibility to regulate and manage the many long term care facilities in Arkansas. The three basis types of facilities are (1) nursing homes, (2) residential care units and (3) adult care centers. As previously noted, appellee owns and operates a residential care facility. Basically, in order to qualify for admittance to a residential care setting, a person must be ambulatory and able to evacuate the building under his or her own power within two minutes if an emergency arises. The person must also be able to self-administer his or her own medications and not require nursing care. Unlike residential care facilities, nursing homes provide services for those persons who need medical treatment or who can no longer self-administer medications or evacuate the facility in less than two minutes.

Because persons in nursing homes are given medication and medical treatment, those homes are required to chart and keep extensive records of each resident’s health, medical history, physician orders and overall medical treatment. No such requirements are imposed upon residential care owners or operators. In addition, nursing homes are required to have pharmaceutical committees comprised of the medical director, consulting pharmacists, the director of nurses, and the administrator. This committee is to ensure the medications are being administered properly and are having the desired results.

Residential care facilities and the services they provide are clearly different from those provided in nursing homes. To aid in effectively monitoring residential care services, the OLTC promulgated Regulation 1901 (3) and (4), which are in issue in this cause and provide as follows:

3. Under no circumstances shall an operator or employee or anyone solicited by an operator or employee be permitted to administer any oral medication, injectable medications, eye drops, ear drops' or topical ointments (both prescription and non-prescription drugs).
4. In' addition, any owner and/or operator of a Residential Care Facility who is a licensed nurse who administers any medication to a resident will be in violation of operating an unlicensed nursing home.

Appellee contends, and the trial court held, that provisions 3 and 4 unlawfully restrict a licensed nurse from performing her nursing duties under state law as a licensed nurse and arbitrarily draw a distinction between a home health nurse and a nurse, like Berry, who also happens to own or operate a residential care facility. We disagree.

Provision 3, by its clear terms, merely prohibits a residential care operator or employee from administering medications to residents. Thus, the purpose is directed at regulating the daily operations of residential facilities — not the practice of nursing. Consistent with that purpose, the regulation recognizes that those persons residing in residential care facilities are not afforded the same protections or monitoring devices such as charting, record-keeping, and oversight pharmaceutical committees as are those persons residing in nursing homes. However, if the condition of a person in residential care worsens to the point he or she no longer meets the requirements of that type facility, that person would necessarily be transferred, to a nursing home where the proper medical treatment can be extended the person and where monitoring devices are available to measure and control that treatment.

Appellee’s arguments simply fail to recognize the legitimate distinction between the type care provided by nursing homes from that given by residential care facilities; neither do they acknowledge the valid purpose the OLTC attempts to achieve by its enactment of Regulation 1901 (3). If appellant is not empowered to regulate residential care facilities in this manner, it seems readily apparent that extended medical treatment may be administered persons in such facilities without the monitoring safeguards required of nursing homes.

Home health nursing is available to residential care residents when they are in need of medical care. That type nursing care is extended under the supervision of a physician. However, appellee Berry counters by arguing that she is a nurse, and it is needless to call on outside nursing care when she can promptly and conveniently provide the same care to her residents. While there is some pragmatism in what Berry says, the OLTC must also be mindful that while she may well be a very excellent nurse, she is also an owner/operator who has an economic interest in the residential care facility. The sole interest of an outside home health nurse, on the other hand, is merely to provide for the immediate medical need of his or her patient. In this connection, we would quickly add that the record in this cause would indicate that the appellee runs an excellent facility and that no evidence exists that any actual conflict is present as a result of her being both a nurse and the owner of the facility. Even so, the OLTC is confronted with the prospects that such conflicts are apt to arise in the future if it becomes common practice for residential care facilities to employ staff nurses, thereby blurring the meaningful distinction between such residential care facilities and nursing homes.

Finally, we would add that the OLTC’s regulation, particularly 1901 (7), takes into account that emergency matters do occur and provides that operators or employees of residential care facilities may administer medical treatment to a resident until the resident/patient can be transported to an appropriate medical facility. In sum, the agency, in promulgating Regulation 1901, was mindful of the medical needs of residents who meet the requirements of a residential care facility, and in every instance, required medical treatment is available to those residents. The regulation under attack in no way adversely affects the nursing profession, nor does it restrict a nurse’s opportunity to practice his or her profession, except in the unique situation where that nurse either owns, operates, or is employed by a residential care facility. To date, such a situation has obviously been rare indeed, and where that case should arise, we believe the state has shown a reasonable and legitimate purpose for regulating that residential facility as it has done under Regulation 1901.

The appellee also argues that provision 4 of the regulation set out above is invalid because it results in an arbitrary distinction between equally qualified members of the nursing profession, viz., home health nurses and nurses who own or operate a residential care facility. For reasons already stated, we believe there is a reasonable and recognizable purpose for treating these two so-called classes of nurses differently. We do believe provision 4 is poorly worded since it omits physicians who may be owners or operators of residential care facilities and presumably such a physician /owner could administer medication and treátment to residents of his or her facility. However, no apparent reason is offered for excluding physicians, and while the appellant offers that it interprets provision 4 so as to include physicians, within proscription of the regulation, the provision clearly fails to mention physicians and most likely is defective for failing to do so.

For the above reasons, we reverse.

Holt, C.J., and Purtle, J., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. The appellee, Sammie Berry, is licensed by the State of Arkansas as a practical nurse and is the owner-operator of a licensed residential care facility. Berry has owned and operated such a facility in this state for approximately eight years and has served as the Residential Care Association’s president.

Berry sought a declaratory judgment that provisions 3 and 4 of Regulation 1901 were arbitrary and in conflict with the authority granted to the Arkansas State Board of Nursing to regulate the nursing profession. The trial court declared the regulations invalid. Yet, the majority of our court finds that the regulations have a valid purpose — to restrict extended medical treatment which might be administered in residential care facilities without the monitoring safeguards required of nursing homes.

The provisions of Regulation 1901 which are relevant to this appeal provide as follows:

1. Any medication required by a resident of a facility must be self-administered by the resident.
2. A resident shall be supervised as necessary in administration as described below:
a. The resident may be reminded of the time to take the medication.
b. The medication regimen as indicated on the container label may be read to the resident.
3. Under no circumstances shall an operator or employee or anyone solicited by an operator or employee be permitted to administer any oral medication, injectable medications, eye drops, ear drops or topical ointments (both prescription and non-prescription drugs).
4. In addition, any owner and/or operator of a Residential Care Facility who is a licensed nurse who administers any medication to a resident will be in violation of operating an unlicensed nursing home.
7. The above mentioned procedures do not apply to emergency or first aid measures performed by operator [s], owner [s], and/or employee [s] of Residential Care Facilities. Emergencies are defined as those measures necessary to prevent death or trauma until such time that the patient can be transported to the appropriate medical facility. First aid measures will be defined as temporary procedures necessary to relieve trauma or injury by applying dressing and/or band-aids.

The declaratory judgment action by Berry challenged only provisions 3 and 4.

I agree with the trial court that those provisions impermissibly prevent certain licensed nurses from performing their nursing duties, that they arbitrarily distinguish between nurses in general and those who own or operate a residential care facility, and in particular that they conflict with the OLTC’s declared purpose of protecting the health and safety of residents in long term care facilities.

Berry testified that in her capacity as a licensed practical nurse and the owner-operator of a residential care facility she is confronted with residents who occasionally require temporary assistance with the administration of medication. Berry explained that these individuals sometimes need assistance in taking aspirin for arthritis, in applying Ben Gay to their backs, in using eye drops following recent cataract surgery, or in preparing and administering insulin shots.

By law, Berry is required to practice under the supervision of a physician or registered nurse. Provisions 3 and 4 preclude her from assisting in the administration of medication despite her medical training and her license as a practical nurse, even if she has directions from a physician or registered nurse, and even if the assistance would only be of a temporary nature after a specific request from a resident for her assistance. Berry testified that those same residents could, when requiring assistance, request any lay person to administer the same medications and not be subject to the provisions — regardless of whether that lay person had any medical training or background.

In one case, according to Berry, the result of provisions 3 and 4 was that an outside individual had to come to her facility to administer insulin to one of the residents. Berry first had to teach that individual how to draw the insulin and how to administer it.

Equally significant is Berry’s testimony as to provision 4 of Regulation 1901, which charges owner-operator nurses who administer medications to their residents with the operation of an unlicensed nursing home. Berry explained that the effect of the provision was to allow home health care nurses not associated with her facility to drive to the facility and administer medications which Berry could not. Nothing in the record suggests that there is any difference in the quality of assistance which could be provided by Berry as opposed to a home health care nurse.

On one occasion, notwithstanding provision 4, the OLTC authorized Berry’s administration of insulin because the weather prevented anyone from driving out to the facility.

A proper administrative regulation has the same force and effect as a statute enacted by the legislature and is accorded the same presumption of validity. Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982). If, however, the regulation is arbitrary on its face, it must fail. Arkansas State Nurses Association v. Arkansas State Medical Board, 283 Ark. 366, 677 S.W.2d 293 (1984).

In Arkansas State Nurses Association, Regulation 10 of the Arkansas State Medical Board was challenged as an unauthorized attempt to regulate registered nurse practitioners. In part, the regulation limited the number of nurse practitioners which a physician could employ and provided that violation of the regulation would constitute “malpractice” within the meaning of the Arkansas State Medical Practices Act. This court determined that the regulation was arbitrary on its face.

The Medical Board argued that Regulation 10 was adopted as a reasonable means of assuring that nurse practitioners would be adequately supervised. However, it was clear that the restriction on the number of nurses failed to account for the availability of groups of physicians in professional associations who could assure adequate supervision of several nurses. This, when coupled with the fact that the regulation discouraged registered nurses from becoming nurse practitioners at a time when there was a need for additional medical care in the state, demonstrated that the restrictions could not be said to be reasonably related to the purpose underlying their implementation. Similar considerations are applicable here.

The thrust of the testimony by the director of the OLTC was that provisions 3 and 4 of Regulation 1901 provided a reasonable means by which the OLTC could maintain the distinction between intermediate care facilities and residential care facilities, which by definition cannot house individuals who require nursing care which includes the administration of medication. The OLTC argues that any effect on the ability of nurses connected with residential care facilities to practice their profession is merely incidental to the purpose of provision 4 to secure the health and safety of individuals requiring long term care.

The testimony introduced at trial, however, makes it abundantly clear that the challenged regulations adopted by the OLTC fall short of the required rational relationship between the provisions and the purpose underlying their implementation. Instead of guaranteeing the placement of individuals in the appropriate care facility based upon their medical needs — which was the result intended by the OLTC when it limited the services permitted in residential care facilities — the provisions at issue often fail to accomplish that result and have the unintended effect that individuals such as those cared for by appellee Berry who occasionally need only periodic short term care or temporary assistance in the administration of medication turn to lay persons or outside nurses who in many instances may not have the requisite medical skill to properly administer medication or may have to travel such great distances as to present a threat to the health and safety of the resident. At the same time, a skilled and trained nurse (the owner-operator or employee nurse) stands by idle.

Provision 4 further results in an arbitrary distinction between equally qualified members of the nursing profession. There is no reasonable basis for allowing home health care nurses to come on the premises and administer medication but not allow licensed nurses who happen to be either owners or operators such as appellee Berry do the same — especially in light of testimony that it is permissible for lay persons to administer that same medication.

In support of its arguments for reversal, the OLTC places considerable emphasis upon the fact that home health care nurses who travel to residential care facilities to administer medications must, like their counterparts in nursing homes, chart or record the administration of these medications — requirements which do not apply in residential care facilities. Further emphasis is placed upon testimony by Jim Brown that whereas appellee Berry seeks to administer only aspirin or similar “harmless” medications, other owner-operator nurses may not limit themselves to such medications, thus presenting a grave health risk.

The record does not provide the basis for such an assumption. It does reveal, however, that the OLTC would not object to the administration of mediation by owner-operator nurses of residential care facilities provided those nurses were required to adhere to record keeping, safety, and storage requirements similar to those required of home health care nurses. In light of this testimony and in the interest of promoting quality health care for the residents, the OLTC should, rather than condemn the nurse who happens to be the owner-operator of a residential care facility, permit such nurses to use their skills in isolated instances — provided their activities are recorded and adequate storage and administration procedures are implemented.

Provisions 3 and 4 of Regulation 1901 are arbitrary on their face. They curtail the services of qualified nurses under circumstances where those same services are in demand. The restrictions themselves defeat the purpose for which they were implemented — promotion of public health and safety — and the testimony shows that the restrictions could be made completely unnecessary simply by the adoption of record and storage keeping requirements. Surely, the regulations discourage nurses from operating residential care facilities at a time when there is a need for health care specialists in this area.

In sum, the provisions clearly discriminate against the licensed nurse who is the owner or operator of a residential care facility. She can be nothing more to her residents than an innkeeper.

Purtle, J., joins in this dissent.

       Adult care centers are not in issue in this cause.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Robert O’BRYANT v. Calvin HORN and Horn Lumber Co.
    89-20
    764 S.W.2d 445
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Tatum & Sullivan, P.A., by: Terry Sullivan, for appellant.

      Wright, Chaney & Berry, P.A., by: William G. Wright, for appellee.
   Tom Glaze, Justice.

This is an appeal from the trial court’s dismissal with prejudice of the appellant’s cause of action. The trial court granted the appellee’s motion to dismiss based on the finding that the appellant’s complaint stated a tort cause of action for fraud or deceit, which was barred by the three year statute of limitations. On appeal, the appellant argues the following three reasons why the trial court erred in dismissing the cause: (1) his complaint states a cause of action on a writing under seal and therefore a five year statute of limitations is applicable; (2) even if his cause of action only stated a cause of action in torts, the statute of limitations was tolled because of appellee’s fraudulent concealment; and (3) the complaint on its face states a cause of action for breach of warranty of sales controlled by the Uniform Commercial Code and therefore a four year statute of limitations is applicable. We find no merit in appellant’s arguments and therefore affirm.

We summarily dismiss appellant’s second and third arguments by stating that these arguments were not made below, and we are unable to address them for the first time on appeal. See, e.g., Reed v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988). In addition, it is undisputed that a cause of action for deceit or fraud is subject to a three year statute of limitations as set out in Ark. Code Ann. § 16-56-105 (1987). Therefore the sole question before the court is whether the appellant’s complaint also stated a cause of action based upon a writing under seal so that the five year statute of limitations for such actions under Ark. Code Ann. § 16-56-111 (b) (1987) would apply.

In making this determination, the court must look to the complaint itself. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). If this court finds that two or more statutes of limitations apply to a cause of action, generally the statute with the longest limitations will be applied. See Ballheimer v. Service Finance Corp., 292 Ark. 92, 728 S.W.2d 178 (1987). However, we look to the gist of the action to determine which statute of limitations to apply. See Andrews v. McDougal, 292 Ark. 590, 731 S.W.2d 779 (1987).

Appellant’s cause of action arises out of the purchase of a used Clark log skidder from the appellee on May 3, 1984. Apparently, the appellant was told he was buying a 1978 model. The log skidder was destroyed by fire. The appellant had purchased insurance on the equipment based on its fair market value of $18,000. When settling the claim, the insurance company determined that the log skidder was a 1973 model, and the appellant could only recover its fair market value of $10,000. Because of this loss and expenses of repairs on the older log skidder, the appellant filed suit against the appellee on May 18, 1987, more than three years after the cause of action accrued.

In his complaint, the appellant alleged that due to the misrepresentation, negligence and/or fraud perpetrated by the appellee in selling him a skidder some five years older than what had been represented and what had been contracted for, he claimed damages in the amount of $15,000 for loss of the fair market value of the skidder and loss of wages and income. The notarized bill of sale was attached to the complaint. The bill of sale contains a warranty of title to a 1978 Clark skidder and that the title is free of any and all encumbrances, against the lawful claims of any and all persons.

Most of the appellant’s brief presents arguments not heard below, such as breach of warranty of sales and fraudulent concealment of the cause of action. In the part of his argument we do address, the appellant relies on the bill of sale when arguing he alleged a contract action, which is covered by a five year statute of limitations. However, attachment of the bill of sale to the complaint is not enough to transform his action into one for breach of contract. As noted earlier, we look to the complaint to determine which statute of limitations to apply, and therefore the language of that complaint must show that the cause of action was based upon that writing, in this case the bill of sale.

While the complaint mentions the bill of sale, the allegations made in the complaint do not state a cause of action for its breach. For example, there is no statement that the appellee breached the bill of sale for failure to deliver title to the described property. Instead, throughout the appellant’s complaint, allegations are made of misrepresentation and fraud, reliance on that misrepresentation and fraud, and damages suffered because of that reliance. An action for misrepresentation and fraud lies in tort, and we agree with the lower court that this is the only cause of action pled in the appellant’s complaint.

Further, we note the appellant’s reliance on this court’s holding in Booth v. Mason, 241 Ark. 144, 406 S.W.2d 715 (1966). In Booth, this court held that part of a complaint relating to a property description contained in the warranty deed was controlled by the five year statute of limitations for written instruments and therefore not barred. However, in doing so, the court stated that the Booths’ complaint contained an alternative prayer based upon breach of warranty, which concerned certain acreage the Booths contended had been properly made a part of the property described in the warranty deed given them. In the present case, the appellant’s complaint is void of any alternative prayer based upon the bill of sale, and instead, appellant concludes his complaint by stating that he is entitled to adequate compensation from the appellee for losses, which resulted from the appellee’s misrepresentation, fraud and negligence — which is consistent with the allegations of misrepresentation he made throughout his complaint.

In sum, the gist of appellant’s complaint clearly sounds in tort, and we simply are unable to construe it to include another type action so as to permit the application of a longer statute of limitations. Thus, we affirm the trial court’s holding that the appellant’s cause of action was barred by the three year statute of limitations for torts.

       The cause of action was also dismissed as to Calvin Horn, since the appellant’s complaint did not state that Horn was acting in an individual capacity. Because this point is not argued on appeal, we do not address it and will refer to Horn Lumber Company as the only appellee.


text:
    Brenda Lee SANDERS v. Burling SANDERS and Patricia Sanders
    88-303
    764 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989
    [Rehearing denied March 13, 1989.]

      The Satterfield Law Firm, P.A., by: Dennis C. Satterfield, for appellant.

      Carney & Cooper Law Firm, by: Mark F. Cooper, for appellee.
   Tom Glaze, Justice.

This case involves grandparents’ petition for visitation rights with their five-year-old granddaughter, who is in legal and physical custody of her mother, the grandparents’ former daughter-in-law. The appellees-grandparents, who are residents of Izard County, filed their petition in Baxter County, where the appellant-mother resided. Appellant moved to dismiss the appellees’ petition, contending the Baxter County Chancery Court did not have venue because the Pope County Chancery Court, which granted her a divorce and awarded her custody of her daughter, had retained jurisdiction of matters involving custody and visitation. The chancellor denied appellant’s motion, finding the appellees were not required to file their petition in the Pope County Chancery Court that decided the divorce action between the appellant and her former husband (appellees’ son). In addition, the Baxter County chancellor held that, under Ark. Code Ann. § 9-13-103 (Supp. 1987), appellees were entitled to bring their own separate action to obtain visitation rights with their granddaughter and that, pursuant to Ark. Code Ann. § 16-60-116(1987), venue for such action was in Baxter County, since she resided in that county when this action was filed. We agree.

Appellant argues that because the Pope County Chancery Court previously had entered its decree, awarding appellant the custody of her daughter, venue was thereby established in that court for any subsequent enforcement or related purposes regarding custody or visitation. In this connection, Ark. Code Ann. § 9-12-320 (1987) allows the chancery court that originally heard and decided a divorce proceeding to transfer venue to the court of a new chancery district only when both parties to the divorce proceeding consent to such a change and the new chancery court agrees to accept the case. However, venue, under that statute, refers only to those subsequent proceedings involving the two divorced parties and fails to embrace actions filed by third parties such as grandparents.

Here, the appellees sought visitation of their granddaughter pursuant to Ark. Code Ann. § 9-13-103 (Supp. 1987), which in pertinent part provides:

(a)(1) Upon petition by a person properly before it, the chancery court of this state may grant grandparents . . . reasonable visitation rights with respect to their grandchild ... at any time, if the marital relationship between the parents of the child has been severed by death, divorce or legal separation.
(2) The visitation rights may only be granted when the court determines that such an order would be in the best interests and welfare of the minor.
* * *
(c) The provisions of subsections (a) and (b) of this section shall only be applicable in situations in which there is a severed marital relationship between the parents of the natural or adoptive children by either death, divorce, or legal separation.

Under the language of § 9-13-103(a)(l) and (c), grandparents are afforded the separate right to file for visitation rights with their grandchildren in situations where the child’s parents are divorced, legally separated or when a parent has died. Section 9-13-103 contains no restrictive language that would require grandparents to file their visitation action in a divorce action filed previously by the child’s parents. In fact, § 9-12-320, the venue statute concerning subsequent proceedings in divorce actions, would be wholly inapplicable where the grandparents’ action is precipitated because their son or daughter died and the surviving, but not divorced, parent denied them access to their grandchild.

In the instant case, neither of the child’s parents resided in Pope County when the grandparents filed this action and apparently the child’s father has asserted no interest in exercising or enforcing his visitation rights. Under these circumstances, the Baxter County Chancery Court clearly had venue of the grandparents’ action pursuant to Ark. Code Ann. § 16-60-116 (1987) which allowed the action to be brought where the appellant was residing. Therefore, we affirm.

In conclusion, we note that the appellant and her daughter had been residing in Baxter County for one year when this action was commenced, and we are confident that the best interests of the child were considered and evaluated by the Baxter County chancellor. Nonetheless, we can easily envision a potential conflict when two chancery district courts have concurrent venue concerning separate visitation actions involving the same child or children. The General Assembly certainly may wish to address this potential area of concern so as to avoid the inevitable conflicts or problems that are sure to surface in this sensitive area of the law.

       We note that another statute, Ark. Code Ann. § 9-13-102 (1987), took effect in 1981 and permits an adult or minor child to petition for visitation with his or her brother or sister when the parents have denied such access.


author: Per Curiam. John I. Purtle, Justice,

text:
    Jerry CASH v. STATE BOARD OF PARDONS AND PAROLES, A.L. Lockhart, Director, Arkansas Department of Correction
    88-298
    765 S.W.2d 4
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Jerry Cash, appearing pro se and in forma pauperis, has petitioned this court to order the State of Arkansas to reproduce the appellant’s abstract and brief on appeal. This case is civil in nature and there is no duty on the part of the state to provide a civil litigant with special materials, assistance, or printing. We held held a number of times that such things will be granted in a civil case only upon a showing of substantial merit. Patterson v. Smith, 289 Ark. 564, 712 S.W.2d 922 (1986); Williams v. State, 289 Ark. 567, 712 S.W.2d 924 (1986); Hayes v. Lockhart, 288 Ark. 419, 706 S.W.2d 179 (1986); Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986).

No such showing has been made in this case and the motion, •therefore, is denied.

IT IS SO ORDERED.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This court has refused to require the state to reproduce the appellant’s brief and abstract without cost to him, thereby preventing him from proceeding with this appeal. He appears pro se and in forma pauperis. As an inmate in the Arkansas Department of Correction, he has neither the funds nor the opportunity to comply with our rules — unless the state reproduces his brief and abstract as requested.

In no case could it be made more plain that a person has been denied equal protection and due process because he is poor. He would have received his right to proceed in this case if he had the money. No person should be forced to give up statutory or constitutional rights because of poverty.


author: Per Curiam.

text:
    Howard COCKRUM v. STATE of Arkansas
    RC 89-3
    763 S.W.2d 661
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Larry Dean Kissee, for appellant.
    No objection filed.
   Per Curiam.

Appellant, Howard Cockrum, by his attorney, has filed for a rule on the clerk.

His attorney, Larry Dean Kissee, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Felix TAYLOR v. STATE of Arkansas
    CR 88-73
    764 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered February 13, 1989

      Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

The petitioner Felix Taylor was found guilty in a trial to the court of forgery in the second degree and sentenced to five years imprisonment with four years suspended. The Court of Appeals affirmed. Taylor v. State, CA CR 87-156 (February 24, 1988). Petitioner has filed a petition and amended petition pursuant to Criminal Procedure Rule 37 seeking post-conviction relief.

In September 1988 the United States District Court Eastern District of Arkansas, Western Division, entered an order vacating the judgment of conviction against the petitioner on the ground that pursuant to 28 U.S.C. § 1443 et seq. the circuit court did not have jurisdiction to enter the judgment because a petition for removal was pending in the federal court at the time the judgment was entered. The district court allowed the state sixty days to enter a new judgment in the case, which was done on September 20,1988. The federal court did not question that there was a valid finding of guilt. Petitioner does not contend that he appealed from the federal court order or from the judgment entered in the trial court in September. He claims simply that he is entitled to have the original charges against him dismissed under Rule 37 on the ground that the circuit court was without jurisdiction to enter the original judgment because the petition for removal was pending. There is no basis for Rule 37 relief under these circumstances. The fact of the matter is that petitioner is clearly concerned more with the technical argument he has fashioned than with substantiating his other grounds for relief in the petition such that this court can assess whether any of the allegations warrant post-conviction relief. After a thorough review of the petition, we do not accept petitioner’s conclusion that he is entitled to collaterally attack either the original judgment or the judgment entered in September or to have his case dismissed on the basis of the federal court’s action. Further, we find no other ground in the lengthy petition or amended petition which has facts to support it from which it can be concluded that petitioner was denied a fair trial.

The remaining allegations in petitioner’s petition and amended petition are: (1) he was not given an opportunity to present a defense; (2) he was not given an attorney when sentence was imposed; (3) the trial judge was racially prejudiced and denied him a fair trial; (4) the sentence constituted cruel and unusual punishment in violation of the eighth amendment; (5) the sentence was imposed by the trial judge because of petitioner’s race and color; (6) if he had been white, the charges would not have been brought; (7) he was not afforded the right of allocution; (8) the trial judge changed the scope of the trial by hearing unnamed witnesses for the prosecution which the state had agreed would not be called; (9) the trial judge’s attitude toward petitioner changed after the court made extra-judicial contact with attorneys for petitioner in a civil case and petitioner asked the court to recuse; (10) the trial judge did not allow petitioner to present a defense; (11) petitioner was brought before the trial judge on July 19,1988, so that the judge could show his prejudice and dislike for him; (12) the trial judge asked that Will Oliver, a bail bondsman, be contacted on July 18, 1988, to determine why petitioner had not been picked-up; (13) the trial judge was unconstitutionally and illegally elected in violation of the 1965 Voting Rights Act and the fourteenth and fifteenth amendments; (14) the prosecution failed to disclose that the complaining witness had committed a bank robbery in 1981 and witness bribery in 1985; (15) on July 18, 1988, petitioner was unlawfully arrested and imprisoned by Will Oliver and held illegally and unconstitutionally until August 2, 1988, when he was transferred to the Arkansas Department of Correction; (16) the Pulaski County Jail denied him access to counsel on July 31, 1988; (17) Will Oliver had no legal authority to make the arrest, but if he did have authority, it was unconstitutionally granted by the state of Arkansas; (18) the state of Arkansas illegally allows bail bondsmen to do “what it cannot legally and constitutionally do with qualified law enforcement officials;” (19) conviction was obtained by the prosecuting attorney who was illegally and unconstitutionally elected; (20) the Arkansas Supreme Court’s rule against allowing non-attorneys to check out transcripts is unconstitutional; and (21) the trial court had a duty to notify the Attorney General of the United States before proceeding further in his case. All of the allegations enumerated above are conclusory, that is, they do not state facts from which this court could conclude that the petitioner suffered any prejudice. Moreover, the allegations which relate to the events leading to petitioner’s conviction are not timely raised under Rule 37. The rule is not intended to provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for raising issues at trial or on appeal. Even questions of constitutional dimension are not preserved beyond the direct appeal unless they present questions of such fundamental nature' that the judgment is rendered void. Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44, cert. denied, 459 U.S. 882 (1982). None of the allegations raised by petitioner has factual substantiation from which it'can be concluded that his conviction is void. The allegations which pertain to events after trial are not within the purview of the rule which is limited to questions related to the conviction and sentence, not the execution of the sentence.

Petitioner also asserts that he was denied the effective assistance of counsel on appeal. He contends that counsel failed to: (1) file a motion for new trial and subsequently filed a notice of appeal which prevented petitioner from filing a motion for new trial; (2) raise the jurisdictional issue on appeal; (3) prepare an adequate abstract and brief; (4) allow him to assist with the brief on appeal and denied him access to the record; (5) file a petition for rehearing and petition for review; (6) file a motion to stay or recall mandate pending appeal to the United States Supreme Court; (7) file a notice of appeal to the United States Supreme Court; (8) represent him when he was falsely arrested by Will Oliver and brought before the trial judge on July 19, 1988; and (9) pursue information provided by the prosecutor about a witness with evidence helpful to the defense. As with the previously enumerated allegations of error, petitioner has not met his burden of explaining how he was prejudiced by the failure of counsel to act. For example, petitioner does not explain what he would have argued in a motion for a new trial or in a petition for rehearing or review, fails to explain why the actions of counsel after the case had already been affirmed on appeal had any bearing on his right to effective assistance of counsel on appeal or what the unnamed witness with evidence helpful to the defense would have testified about if contacted by counsel. It is well settled that allegations which are unsubstantiated and which fail to show prejudice to the defense are not sufficient to warrant post-conviction relief. Strickland v. Washington, 466 U.S. 668 (1984); Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984).

Petition and amended petition denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. As I understand the facts in this case, a petition for removal was filed in federal court prior to the sentence being pronounced in the state court. Thereafter, the federal court vacated the original sentence and gave the state court sixty days within which to enter a new judgment. Judgment was entered on September 20, 1988. The petitioner, it appears, was then serving time in the Arkansas Department of Correction and was not brought before the court to be sentenced. Therefore, the sentence in absentia is unconstitutional.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Sam SEXTON, Jr. v. SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT
    88-175
    761 S.W.2d 602
    Supreme Court of Arkansas
    Decision rendered November 21, 1988
    Opinion delivered December 12, 1988

      Howell, Price, Trice, Basham & Hope, P.A., by: Dale Price, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Robert H. Dudley, Justice.

Danny Haffelder filed a complaint with the Supreme Court Committee on Professional Conduct against Sam Sexton, Jr., a Fort Smith lawyer. The alleged misconduct took place in 1983 while the Code of Professional Responsibility was in effect. However, the Committee charged Sexton under the Model Rules of Professional Conduct, which were adopted in 1985, after the alleged misconduct had occurred. After a hearing, the Committee suspended Sexton’s law license for one year. We reversed and remanded because Sexton was not charged under the rules in effect at the time of the alleged misconduct, but we stated that the Committee could proceed against him if he was properly charged. Sexton v. Supreme Court Committee on Professional Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988).

The Committee then charged Sexton under DR-5-104(a) of the Code of Professional Responsibility. A hearing on the charge has been set for December 3, 1988.

Sexton, by prohibition, certiorari, or mandamus, asks us to order the Committee to follow the Standards for Lawyer Discipline and Disability Proceedings adopted by the American Bar Association; to order the Committee to deem requests for admissions admitted; and to order certain committee members to disqualify. We decline to issue a writ.

The Rules of Professional Conduct are the substantive rules governing the bar. These substantive rules are enforced by our Committee on Professional Conduct. The Committee’s procedures and substantive powers are currently governed by our Rules Regulating Professional Conduct of Attorneys at Law, adopted by Per Curiam order, 285 Ark. 488, 687 S.W.2d 118 (1985).

Prior to the J985 changes in these Rules, the Committee, by its own action, could only caution or reprimand an attorney. It could additionally proceed in circuit or chancery court to disbar an attorney. The Rules Regulating Professional Conduct then in existence provided for appeal from circuit or chancery court action, but did not mention appeal from committee action. Even so, we allowed an appeal to this Court from a committee adjudication. See Walker v. Supreme Court of Arkansas Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982). In 1985, the Committee was given the added substantive powers of issuing a warning or suspending an attorney from practicing law. Again, we did not expressly state by rule that a right of appeal to this court existed after a warning or suspension by the Committee. Nevertheless, such a right does exist. See Sexton v. Supreme Court Committee on Professional Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988). However, it may not be exercised in piecemeal fashion. In brief, the petitioner, Sexton, will have a right of appeal to this Court from any committee action.

The petitioner asks us by prohibition, certiorari, or mandamus to direct the Committee to comply with the American Bar Association Standards For Lawyer Discipline. A writ of prohibition is not the proper procedure in this situation, since it issues only when the lower court, or adjudicative committee, is wholly without jurisdiction. See Miller v. Lofton, Judge, 279 Ark. 461, 652 S.W.2d 627 (1983). The Committee clearly has jurisdiction over attorney disciplinary matters. See Muhammed v. Arkansas Supreme Court Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987). Likewise, mandamus is not the appropriate remedy. The purpose of a writ of mandamus is to enforce an established right or to compel the performance of a duty. Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987). It is not used to control the discretion of an official. Since this Court has not adopted by rule the American Bar’s Standards For Lawyer Discipline, the Committee has discretion in the matter of whether it complies with the standards.

The writ of certiorari is issued to correct proceedings that are erroneous on the face of the record when there is no other adequate remedy. Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982). The Committee’s scheduled hearing is not erroneous on its face; thus, certiorari is not appropriate. None of these writs are issued when appeal will provide an adequate remedy.

The American Bar Association’s standards are recommendations or guidelines from the Association for disciplinary proceedings. Some of the states have adopted them while others have not. See Survey of Lawyer Disciplinary Procedures in the United States, prepared by the American Bar Association Center for Professional Responsibility (1984). Many states, like us, have their own rules. If our rules should deprive petitioner of some constitutional right, an appeal will provide an adequate remedy, just as it did in petitioner’s last appeal.

Next, the petitioner argues that we should order the Committee to deem his requests for admissions as admitted. Again, an adequate remedy for this issue will be provided by appeal. This type of issue is regularly appealed. See, e.g., B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984).

Finally, petitioner asks us to order the committee members who participated in the original vote to suspend his license to disqualify from hearing this charge. Again, this is the type of issue which can be resolved on appeal. We regularly decide on appeal whether judges or jurors should be disqualified. See e.g., Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).

The petition is denied.

Purtle and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. My disagreement with the majority lies largely with how this court should deal with defects found in the court’s rules that regulate proceedings concerning professional conduct of attorneys. In the proceeding now before us, it has become evident that some rather critical procedures have been omitted from this court’s rules, and one of them involves the failure to provide for an appeal from a decision of the Supreme Court Committee on Professional Conduct. Rather than immediately promulgating a rule to provide for an appeal, the majority seems to suggest a right of appeal is provided already because the court previously allowed such an appeal in Walker v. Supreme Court Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982). In Walker, no one raised the issue now before us, and I respectfully suggest the court is in error when it attempts to remedy this serious defect or void in the rules by judicial fiat.

The majority’s decision to provide, by case opinion, for an appeal in these matters leads it to establish still another rule by the same means. The majority further decides that the appellant may not exercise his right of appeal in piecemeal fashion. Again, there is no mention in the court’s rules as to when an attorney can appeal because, as previously mentioned, there is no rule providing for an appeal. Actually, the court, by its opinion, has adopted a rule (position) similar to that provided in Ark. R. of App. P. 2, which requires a final order before an appeal can be taken.

In my view, this court should simply acknowledge the procedural voids that exist in its rules and promulgate rules to eliminate those problems. At the same time, the court should stay the proceedings in this case and decide those issues raised by the appellant. The appellant and the Committee could certainly use the guidance this court could afford them by the court’s proper consideration and resolution of the legal issues raised here. Those unresolved issues will inevitably hover over the hearing now scheduled on December 3, 1988.

For the foregoing reasons, I would grant appellant’s appeal and order a temporary stay of the proceedings below, so this court could fully resolve those questions raised in this cause.

Purtle, J., joins this dissent.

       Rule 8 provides for an appeal, but that appellate procedure is available only when the Committee elects to file a complaint against an attorney in chancery or circuit court. When that procedure is employed, either the Committee or the attorney may appeal the trial court’s decision.


author:
Jack Holt, Jr., Chief Justice.
      Darrell Hickman, Justice, Samuel A. Perroni, Special Justice,

text:
    Tony ADDISON v. STATE of Arkansas
    CR 87-176
    765 S.W.2d 566
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

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

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In three separate trials which have been consolidated for this appeal, appellant Tony Addison was convicted of three counts of rape, three counts of burglary, one count of robbery, and one count of theft of property and sentenced to a total of life plus 200 years. For reversal he argues that the trial court erred in refusing to suppress certain custodial statements made to police in that these statements were taken in violation of the fifth amendment; that it erred in refusing to suppress the statements, photographs of him, and in-court identifications because this evidence was taken in violation of the fourth amendment; and that his due process right to a fair trial was denied in that his trial proceeded.despite there being a bona fide question as to his mental fitness. We find no error and affirm the trial court.

In September, October, and November of 1986, four women were raped in the area of Little Rock known as the Quapaw Quarter. Officers who patrolled the area were given a description of the suspect based upon various victims’ reports: black male, 5 feet 6 to 5 feet 8 inches tall, 135 to 160 pounds, in his twenties, a large nose, a “Jeri curl” (a wet, curly hairstyle), and wearing a gold chain.

At 10:40 p.m. on December 5, 1986, Officer Ken Blankenship, while driving in the same general area in which the rapes had occurred, spotted Addison, who fit the general description of the suspect, crossing a street. The officer turned around, stopped Addison, and noticed he wore a gold chain and had a large nose and a “Jeri curl,” which was straightening out. Addison did not have any identification, gave the officer several reasons for being in the area, and could not tell him at which address he just had been. As the officer was talking with Addison, two other officers, who were on patrol in the area, walked up and also questioned him. Officer Blankenship told him that he fit the description of the rape suspect and that he was in the same area at the same time in which the rapes had occurred. The officer then asked him if he would mind going to the police station’s detective division. Addison replied that he had “no problem with that” and asked if the officers would take him home later. Blankenship responded they would do so as soon as they got through with him. None of the officers informed him that he had no legal obligation to go to the station or that he was not under arrest. From the time that the officers first talked to Addison until the time he was transported to the police station was approximately fifteen to thirty minutes.

Upon Addison’s arrival at the station at around 11:00 p.m., Detective Ronnie Smith advised him that he was there voluntarily. Smith then questioned him concerning the series of rapes. The only statement that he gave at this time was that he did not rape anyone. Thereafter, Addison agreed to be fingerprinted and photographed. He was then taken home. During the one-hour period in which Addison was at the station, he was never told that he was free to leave or that he was not under arrest.

Subsequently, police officers took a photo spread, which included Addison’s photograph, to one of the victims, who positively identified Addison as her attacker. After an arrest warrant was prepared, the police arrested him at 1:35 a.m. at his home. The police advised him of his rights via a standard Little Rock Police Department advice of rights and waiver form. Thereafter, the police took him to the station. From approximately 2:00 until 5:30 a.m., Addison confessed to the crimes in separate signed statements, each preceded by a standard rights warning. Later in the day, he was identified by the victims in a live lineup.

FIFTH AMENDMENT RIGHTS

Addison contends that his statements should have been suppressed on the grounds they were taken in violation of his fifth amendment rights under the United States Constitution as (1) the rights warning failed to inform him that he could have an attorney present even if he could not afford one and (2) under the totality of the circumstances, the statements were not freely and voluntarily given. We hold to the contrary.

Addison signed the following rights waiver form before each of his confessions was taken:

I, Tony Addison, date of birth 01/23/67, now live at 2910 Fulton. I have been advised that I am a suspect in a rape, that I have the right to use the telephone, that I have the right to remain silent, that I have the right to talk to an attorney, either retained by me or appointed by the Court, before giving a statement, and to have my attorney present when answering questions. I have also been advised if I waive these rights, I have the right to stop the interrogation at any time. Also, that any statement I give will be used in a Court of Law against me. I have read the above statement of my rights and I understand them. No promises or threats have been' made to induce me into making a statement.

In Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987) (U.S. appeal pending), we held that an almost identical waiver form was deficient in that it did not advise the appellant that if he were indigent, he could have a lawyer free of charge. However, failure to give an appropriate warning does not automatically require reversal. In his motion to suppress, Addison did not question the sufficiency of the rights form. Rather, he asserted that his statements were not freely and voluntarily given after an intelligent waiver of his constitutional rights. Since this matter is being raised for the first time on appeal, we will not consider it. See Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988).

In determining whether Addison’s statements were voluntarily and freely given, we make an independent review of the totality of the circumstances and will reverse only if the trial court’s findings are clearly against the preponderance of the evidence. Hurst v. State, 296 Ark. 448, 757 S.W.2d 558 (1988); McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). The burden is on the State to show that the confessions were made without hope of reward or fear of punishment. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). Conflicts in testimony are for the trial court to resolve as it is in a superior position to determine the credibility of witnesses. Id.

Pursuant to the “totality of the circumstances” approach, we focus on two basic components: the conduct of the police and the vulnerability of the accused. Scherrer, supra. Some of the factors that we consider in making the determination of whether a confession was voluntary include the youth or age of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and use of physical punishment. Id.; Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

Addison was nineteen at the time that he gave the statements and was able to read and write. Although he testified that he signed the statements because he was forced to and did now know he had a choice, Detective Smith testified there was no force or coercion used in the questioning process. The record is devoid of any evidence that the police punished or threatened to punish Addison, promised him leniency if he cooperated, or deceived or tricked him in any way. Although the questioning process lasted approximately three hours, this was justified considering the number of offenses to which Addison confessed.

We are troubled by the fact that law enforcement personnel continue to utilize standardized warning forms which fail to clearly advise a suspect that he has a constitutional right to have an attorney free of charge if he cannot afford one. Although lack of advice of constitutional rights is a significant factor in our determination of whether a confession was voluntary under the “totality of the circumstances” test, it is not determinative. A confession can be voluntary even if Miranda warnings were omitted. See Michigan v. Tucker, 417 U.S. 433 (1971). See also Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982).

As noted above, the officers did not use physical force, threats of physical force, or deceit to obtain the statements, nor did they promise Addison leniency if he cooperated. In addition, there is no indication from the record that Addison was inordinately vulnerable. On balance, we cannot say that the trial court’s finding that the statements were freely and voluntarily given is clearly against the preponderance of the evidence.

FOURTH AMENDMENT RIGHTS

Addison argues that the trial court erred in refusing to suppress his custodial statements, photographs of him, and in-court identifications by the victims on the basis that they resulted from an unlawful stopping and subsequent custodial detention in violation of his fourth amendment rights. It is his contention that these pieces of evidence were tainted fruit of the illegal stopping and detention under Wong Sun v. United States, 371 U.S. 471 (1963), and inadmissible. We disagree.

The fourth amendment guarantees the right of people to be secure against unreasonable searches and seizures. A person has been “seized” within the meaning of the fourth amendment only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544 (1980). Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). A seizure pursuant to an arrest or any other detention that severely intrudes upon a person’s liberty, such as a custodial interrogation, must be supported either by probable cause or by clear and positive testimony that demonstrates consent. Id. See Rose v. State, 294 Ark. 279, 742 S.W.2d 901 (1988). See also Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), cert. denied, 482 U.S. 929 (1987). “[Detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.” Dunaway v. New York, 442 U.S. 200 (1979). See also Kiefer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989); Burks, supra.

Under Rule 3.1, a suspect may be stopped and detained for questioning on reasonable suspicion. See Terry v. Ohio, 392 U.S. 1 (1968). This rule provides as follows:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects 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, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

For the purposes of Rule 3.1, “reasonable suspicion” means a suspicion based upon facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion. Ark. R. Crim. P. 2.1.

The initial stopping of Addison and his detention on the street were permissible since the facts and circumstances known to the investigating officers provided reasonable suspicion that Addison was the perpetrator of the rapes. Ark. R. Crim. P. 3.1. Officer Blankenship testified that Addison fit the description of the rapist, was in the same general area at the time in which the rapes had occurred, had no identification, gave several reasons for being in the area, and could not tell the officers at which address he just had been. These circumstances provided more than a bare, imaginary, or purely conjectural suspicion that Addison was the culprit.

Addison’s subsequent detention for custodial interrogation at the police station was not authorized by Rule 3.1 because the rule by its plain language does not contemplate the detention of persons at one place and a subsequent detention at a police station. Moreover, his detention was not in conformity with Ark. R. Crim. P. 2.3.

Ark. R. Crim. P. 2.3 provides as follows:

If a law enforcement officer acting pursuant to this rule requests any persons 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.

One of the officers testified that he asked Addison if he would mind going down to the station, to which Addison replied that he had “no problem with that.” Addison then asked if the officers would take him home later. An officer responded, “after we get through with you.” Another officer stated that he told Addison that he was at the station voluntarily. In either event, none of the officers specifically informed him that he had no obligation to be there or that he could leave if he wanted. Clearly, the officers breached the positive duty mandated by Rule 2.3. See Burks, supra.

In light of the authorities’ failure to comply with our Rules of Criminal Procedure and the fact that detention for custodial interrogation intrudes so severely on interests protected by the fourth amendment, we conclude that Addison’s detention for custodial interrogation constituted a seizure within the meaning of the fourth amendment and thus must be supported either by probable cause or consent. See Kiefer, supra; Burks, supra.

Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed by the person suspected. Id.; Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). Probable cause to arrest without a warrant does not require the quantum of proof necessary to sustain a conviction. Burks, supra. The determination of probable cause is based upon factual and practical considerations of everyday life upon which ordinary men, not legal technicians, act. Hines, supra. A nontechnical approach correctly balances the competing interests of the individual and society, so that law enforcement officers will not be unduly hampered, nor law abiding citizens left to the mercy of overzealous police officers. Id. In making the determination of probable cause, we are liberal rather than strict. Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976).

Addison was in the same general area at the time in which the rapes took place, fit the description of the rapist, did not have any identification, gave several reasons for being in the area, and could not tell the officers at which address he just had been. Although Officer Blankenship testified he did not have probable cause to arrest Addison, the issue of probable cause to arrest or detain is a matter of law for this court to determine. In this instance, the evidence established probable cause to support Addison’s detention at the station. Since there was probable cause to detain Addison, it is not necessary for us to address the issue of consent.

RIGHT TO DUE PROCESS

Addison finally contends that his due process right to a fair trial was denied in that his trial proceeded despite there being a bona fide question as to his mental fitness. We hold to the contrary.

In January of 1987, the appellant pleaded not guilty by reason of mental disease or defect to the charges against him. Pursuant to an order of commitment and evaluation, he was admitted to the Arkansas State Hospital. After a thirty-day observation and evaluation, the hospital reported that Addison appeared to be aware of the nature of the charges brought against him, that he was capable of cooperating with his attorney, and, at the time of the commission of the alleged offense, he did not lack the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law. The report also stated that Addison had an adjustment disorder with depressed moods and mixed personality traits. Following this report, Addison was tried on June 17 and July 1, 1987, in separate trials on separate counts. However, prior to a third trial, Addison’s attorney indicated that since the July 1st trial, Addison had been experiencing drastic behavior changes. He was noncommunicative, unable to sleep, and having auditory hallucinations.

Based upon this new information, Addison’s attorney, prior to trial, asked for a continuance so that Addison could be reexamined at the Arkansas State Hospital. The trial judge decided he would proceed with the trial and that an evaluation should be made by Dr. Alfred Rosendale, an independent psychiatrist, over the noon hour to determine if Addison needed further evaluation. If so, the judge stated that he would grant a mistrial. Addison’s counsel agreed to this procedure.

Dr. Rosendale examined Addison for about an hour and fifteen minutes during recess. Based upon this examination, Dr. Rosendale concluded that Addison was beginning to have auditory hallucinations and was becoming psychotic. However, when asked by the trial judge if Addison was aware of the nature of the charges and proceedings against him and capable of cooperating in his defense, the doctor replied in the affirmative. On cross-examination, the doctor testified that Addison did not meet the definition of insanity under Arkansas law. On the basis of this testimony, the trial judge elected to proceed.

Ark. Code Ann. § 5-2-302 (1987), formerly Ark. Stat. Ann. §41-603 (Repl. 1977), provides that “[n]o person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.” The conviction of an accused while he is legally incompetent to stand trial violates due process. Pate v. Robinson, 383 U.S. 375 (1966); Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988). In order to be competent to stand trial, a defendant must have the capacity to understand the nature and object of the proceedings brought against him, to consult with counsel, and to assist in the preparation of his defense. Drope v. Missouri, 420 U.S. 162 (1975); Jacobs, supra.

Ark. Code Ann. § 5-2-305(a)(2) (1987), formerly Ark. Stat. Ann. § 41-605(l)(b) (Repl. 1977), provides in pertinent part that whenever a defendant charged in circuit court files notice that he intends to rely upon the defense of mental disease or defect, or there is reason to believe that mental disease or defect will or has become an issue, or there is reason to doubt his fitness to proceed, the trial court, subject to the provisions of §§ 5-2-304 and 5-2-311, shall immediately suspend all further proceedings in the prosecution. Upon suspension of proceedings, the court shall enter an order appointing at least one qualified psychiatrist to make an examination and report on the mental condition of the defendant. Ark. Code Ann. § 5-2-305(b)(2). This report must include (1) a description of the nature of the examination, (2) a diagnosis of the mental condition of the defendant, (3) an opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense, and (4) an opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired at the time of the conduct alleged. Ark. Code Ann. § 5-2-305(d). If neither party contests the finding in the report, the court may make the determination of the fitness to proceed. Ark. Code Ann. § 5-2-309 (1987). If the finding is contested, the court shall hold a hearing on the issue. Id.

On appeal, we affirm where there is substantial evidence to support the trial court’s findings concerning a defendant’s fitness to proceed. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984). Substantial evidence is evidence of sufficient force and character to compel a conclusion of reasonable and material certainty. Id.

Since there was reason to doubt Addison’s fitness to proceed, the trial judge requested that a qualified psychiatrist examine Addison during recess. As noted above, Addison’s counsel consented to this procedure. After an hour and a half examination, Dr. Rosendale gave the court an examination report on the mental condition of the appellant as required by § 5-2-305. Since neither party contested the finding of his report, it was for the trial court to determine Addison’s fitness to proceed. § 5-2-309. Based upon the report, the trial judge decided that he was fit for trial. We conclude that the judge was in substantial compliance with our code provisions and that there is substantial evidence to support his findings.

Pursuant to Ark. Sup. Ct. R. 11(f), we have made our own examination of all other objections made at trial and find no reversible error.

Affirmed.

Special Justice Sam Perroni and Hickman and Hays, JJ., concur.

Glaze, J., not participating.

Darrell Hickman, Justice,

concurring. We are unanimous that this case should be affirmed but divided on the reasons.

I write separately, not only to make it clear I do not join the majority opinion, but also to join that part of Justice Perroni’s opinion on the stop and the reasonable suspicion application of the A.R.Cr.P. Rules.

His view is essentially parallel to what the law is in this regard. I would not reach the question of probable cause.

Hays, J., joins the concurrence.

Samuel A. Perroni, Special Justice,

concurring. I agree with all aspects of the majority opinion except for its finding on the Fourth Amendment issue. I do not believe there was probable cause to arrest or detain Addison. Moreover, I am of the opinion that the officer’s conduct, after the initial stop and detention, did not constitute a seizure which would implicate the Fourth Amendment to the United States Constitution.

On the Fourth Amendment issue, Addison argues that his identification as the rapist and his confessions followed directly and uninterruptedly from an illegal detention by the police and therefore the evidence should have been suppressed. The grounds for suppression urged by Addison are (1) that Officer Blankenship lacked reasonable suspicion to stop him and (2) he was illegally detained after he was stopped by the officer. It is Addison’s contention that the evidence sought to be suppressed was tainted fruit of his illegal stop and detention under Wong Sun v. United States, 371 U.S. 471 (1963).

The Stop

The authority in Arkansas for stopping a suspect absent probable cause is found in Rule 3.1 of the Arkansas Rules of Criminal Procedure. The rule is patterned after the United States Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968). Rule 3.1 provides as follows:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is comnv.tting, 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, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

For purposes of Rule 3.1, “reasonable suspicion” is defined in Rule 2.1 of the Arkansas Rules of Criminal Procedure as follows:

“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.

At this point, an appreciation of the circumstances preceding Addison’s stop is important.

Over a nine week period, there were four reported rapes and one attempted rape in the area where Addison was stopped. Four of the crimes were committed on Friday, Saturday or Sunday and all of the crimes were committed in the late evening or early morning.

The victims’ identifications of their assailant was uniformly consistent in several respects and the incident involving one victim’s husband all but confirmed the fact that the assailant was on foot and acting alone. There was also reason to believe that the assailant had used a fictitious name. Moreover, police protection in the area was obviously increased and they were interested in checking out all possible suspects.

On appeal, Addison argues that the officer lacked reasonable suspicion to stop him and that his stop was the result of a “dragnet” approach to investigating the crimes due to the fact that others were also stopped that night. I disagree.

Addison was travelling on foot and alone at 10:40 p.m. on a Friday night. He was in the general area where the crimes were committed and he fit the description of the rapist. These circumstances provided considerably more than a bare, imaginary, or purely conjectural suspicion that Addison was the culprit. Likewise, the detention of Addison on the street was lawful under Rule 3.1 because Addison had no identification, gave several different reasons for being in the area, and could not tell the officers the address of where he had just been.

It is true that the officers had stopped at least two other suspects that night. However, this can hardly be considered to parallel the type of “dragnet” investigative process outlined by the United States Supreme Court in Davis v. Mississippi, 394 U.S. 721 (1969). In Davis, the Supreme Court condemned a procedure where police randomly rounded up black males for the purpose of obtaining their fingerprints. The principles announced in Davis are simply not applicable to this case.

The Detention

Next, Addison argues that he was illegally detained after his stop by Officer Blankenship. He relies primarily on Rules 2.3 and 3.1 of the Arkansas Rules of Criminal Procedure and our decisions in Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980), and Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978), to support three grounds for this argument.

First, Addison contends that if, under Rule 3.1, the officer had reasonable suspicion to stop and detain him, the officer was required to cause his release immediately upon learning his identity. As a product of this, Addison claims that because his photograph was taken after his identity was determined by the detective, the act of obtaining his photograph was investigative in nature and in violation of Rule 3.1. Secondly, Addison argues that consent cannot be relied upon in this case. He reasons that the state failed to prove his conduct was voluntary and that Officer Blankenship did not tell him that he didn’t have to go to the station. Finally, Addison maintains that his consent was merely acquiescence to a claim of lawful authority.

These arguments ignore the facts and misconstrue the law.

I have concluded that Officer Blankenship had legal justification for stopping Addison pursuant to Rule 3.1 of the Arkansas Rules of Criminal Procedure. See also, Terry v. Ohio, 392 U.S. 1 (1968).

Once stopped, the officer was presented with additional factors which would have led him to reasonably suspect that Addison had committed the rapes. Moreover, the officer’s attempts to verify Addison’s identity, or the lawfulness of his conduct, also proved unsuccessful. As a result of this, the officer became faced with the prospect of witnessing an unknown suspect depart the area without taking any steps to satisfy himself that he could be found again.

In view of the fact that Addison’s identity had not been verified, the officer’s immediate release of Addison on the street was not required under the law nor expected under the circumstances.

If the scope of an investigation during a stop becomes unreasonable, the detention will be considered a formal arrest that must be supported by a probable cause. Florida v. Royer, 460 U.S. 491 (1983). However, there is nothing unreasonable, or, for that matter, surprising about the officer asking Addison if he would mind going to the station. Conversely, when Addison agreed to go it would be unreasonable, under the circumstances, to hold that the officer was required to tell Addison he didn’t have to go if he didn’t want to.

Rule 2.3 of the Arkansas Rules of Criminal Procedure requires only that the officer “take such steps as are reasonable” to make clear that there was no legal obligation to comply with the officer’s request. It follows that the “steps” to be taken must be evaluated on a case-by-case basis considering the totality of the circumstances.

Having found that the officer’s actions did not violate any provisions of the Arkansas Rules of Criminal Procedure, the next inquiry must be whether the officer’s actions, after the initial detention on the street, constituted a seizure which implicates the Fourth Amendment. A seizure occurs when, under the totality of the circumstances, a reasonable person would believe he is not free to leave. See, United States v. Mendenhall, 446 U.S. 544 (1980), and INS v. Delgado, 466 U.S. 210 (1984).

In Mendenhall, Justice Stewart identified four circumstances that may indicate that a Fourth Amendment seizure has occurred. They are “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” 446 U.S. at 554.

None of these circumstances are, present in this case.

In this case, Addison was released after his initial stop and the trial court found that the question of going to the station was more of an “afterthought” on the officer’s part. In addition, when he was asked if he would mind going to the station, Addison’s only question was whether the officers would take him home after he went to the station. That response was uncontradicted at the hearing and suggests that Addison knew that he was under no legal obligation to accompany the officers to the station. In addition, through all of this, according to the officer, Addison did not act as if he didn’t want to go.

At the station, Addison was reminded that he was there voluntarily. Again, there was no evidence offered to negate this statement. Addison was subsequently told why he was there and he agreed to be fingerprinted and photographed to assist the police in eliminating him as a suspect. Apparently, Addison’s photograph was the only piece of evidence obtained from him at the station that led in any way to his arrest and conviction of rape, burglary and theft of property.

The United States Supreme Court in Hayes v. Florida, 470 U.S. 811 (1985), outlined those circumstances under which the police may make a brief detention of a suspect in the field for fingerprinting based upon less than probable cause. The Court in Hayes reasoned that:

There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime, and if the procedure is carried out with dispatch. 470 U.S. 817.

If, then, Officer Blankenship had possessed a camera with him in the field he could have taken Addison’s picture without implicating the Fourth Amendment. Apparently, under Hayes, this could have been done without Addison’s consent because the procedure was reasonable, represented a much less serious intrusion upon personal security and involved evidence of a non-testimonial nature. Hayes v. Florida, supra.

I am unable to see how the circumstances of Addison’s voluntary trip to the station could rise to a constitutional level where the scope of the investigation, i.e., taking photographs and fingerprints, was not overly intrusive, was limited in nature, and was reasonable. Therefore, the officer’s conduct, after the initial stop and detention, did not constitute a seizure which would implicate the Fourth Amendment to the United States Constitution.

Consent

Next is the issue of legal consent as it pertains to the facts of this case.

I have thoroughly examined this issue, and am convinced that the traditional standards which control a normal consent search situation are appropriate for the disposition of this case. I rely upon the totality of the circumstances test adopted by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

It is incumbent on the state to prove consent by clear and positive testimony, Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), and the state’s burden is not met by showing only acquiescence to a claim of legal authority. Burks v. State, supra; Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978).

Nonetheless, based upon the testimony at the suppression hearing, including Addison’s testimony, and the totality of the relevant circumstances, I believe that Addison voluntarily accompanied the police to the station and while there consented to be photographed and fingerprinted.

In Schneckloth, the defendant moved at trial to suppress evidence which had been obtained in a search of an automobile in which he was a passenger. A police officer had legally stopped the car and was given permission by the driver to search it. Bustamonte argued that his consent was involuntary because the driver was not informed of his right to refuse the search. In considering the appropriate standard for determining whether the consent was voluntary, the United States Supreme Court turned for guidance to cases which deal with voluntariness of a defendant’s confession under the Fourteenth Amendment. After reviewing these cases the high court concluded:

The significant fact about all of these decisions is that none of them turned on the presence of absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances. See Miranda v. Arizona, 384 U.S. 436, 508 (Harlan, J., dissenting); id., 534-535 (White, J., dissenting). In none of them did the Court rule that the Due Process Clause required the prosecution to prove as part of its initial burden that the defendant knew he had a right to refuse to answer the questions that were put. While the state of the accused’s mind, and the failure of the police to advise the accused of his rights, were certainly factors to be evaluated in assessing the “voluntariness” of an accused’s responses, they were not in and of themselves determinative. (Citations omitted)
Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. 412 U.S. 226-27.

Addison’s claim that he believed he was required to go to the station is not determinative. The test is what a reasonable person would have believed, United States v. Mendenhall, supra, and voluntariness does not depend upon whether the police informed Addison that he could decline to cooperate. Schneckloth v. Bustamonte, supra.

Finally, Addison raises the factual issue of whether the situation on the street produced enough legally colorable coercion to reduce his consent to “mere acquiescence to claimed lawful authority.” Bumper v. North Carolina, 391 U.S. 543 (1968).

Bumper stands for the proposition that a search can never be justified on the basis of consent when that consent has been given after an official has asserted that he or she possesses a warrant.

I do not liken this case to one in which a search is conducted pursuant to an invalid or nonexistent search warrant. There was no misrepresentation as to what was required of Addison or the validity of the officer’s actions.

I join the majority, however, in affirming the trial court.