text:
    Nathan ELLIOTT v. STATE of Arkansas
    CR 98-373
    984 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered December 17, 1998
    [Petitions for rehearing denied January 28, 1999.]

      Bruce J. Bennett, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Nathan Elliott appeals his convictions on two counts of rape of his stepdaughter, C.Q., who was twelve and thirteen years old at the time of the crimes. Elliott was sentenced to two life terms to be served consecutively. He raises three points for reversal.

Elliott first contends that the trial court erred when it denied his motion to suppress a taped recording of Elliott’s long-distance telephone conversations with C.Q. His wife, Alma, had become suspicious of his relationship with C.Q., and she decided to monitor and tape telephone calls he made to the couple’s home when he was working in Texas. The tape revealed Elliott had had sex with C.Q., and upon learning of this fact, Alma reported the matter to the police.

In arguing Alma’s tape should have been excluded at trial, Elliott relies on the case of Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987). He also asserts that Ark. Code Ann. § 5-60-120 (Repl. 1993) precluded the tape’s introduction. Section 5-60-120 makes it unlawful for a person to intercept and record a telephone conversation between two parties unless that person is a party to the communication, or one of the parties has given prior consent to such interception and recording. Elliott claims that because neither he nor C.Q. authorized Alma to record their telephone conversation, Alma’s tape was inadmissible. The statute, however, does not proscribe the admissibility of an unlawful recording, and Elliott offers no authority providing that an unlawful taping by a private citizen of parties’ electronic communication is inadmissible. In fact, we have stated the general rule is that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals; the corollary to this proposition is that the exclusionary rule is not intended as a restraint upon the acts of private individuals. Hill v. State, 315 Ark. 297, 867 S.W.2d 442 (1993); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989).

The Mock decision that Elliott cites is an unavailing defense as well. In that case, the court of appeals considered a federal statute, 18 U.S.C. § 2511(2)(c) (1982), when deciding whether police officers’ recording of an informant’s conversation with Mock was unlawful and therefore inadmissible. Once again, that federal law concerns the placement of restraints upon government or state actors, not private individuals. Specifically, § 2511 (2) (c) in relevant part provides that it is not unlawful for a person acting under color of law to intercept an electronic communication where such person is either a party to the communication or one of the parties gave the person prior consent to intercept the communication. As previously stated, Alma was in no way a state actor, and her independent unlawful decision to intercept and record Elliott’s phone call to C.Q. was not excludable under federal or state law.

Elliott next argues the trial court erred in denying a mistrial after the state mentioned Elliott’s prior felony conviction in its opening statement. The prosecutor’s remarks were as follows:

One of the factors that you’re going to hear testimony about is that Nathan Elliott has been before the law before. He was convicted in Texas of assault and bank robbery. We have a certified copy of his conviction.

Elliott’s counsel promptly objected, and the trial court sustained the objection. Elliott then moved for a mistrial which the trial court denied. The prosecutor explained that, because Elliott was charged with being a habitual offender, the State could reference the Texas conviction, and the conviction was also proper to show Alma’s and C.Q.’s state of mind and why they feared Elliott. The trial court correctly rejected the prosecutor’s explanations, but immediately admonished the jury not to consider Elliott’s prior trouble with the law. At trial, and in this appeal, Elliott argues the admonishment was insufficient to remove the prejudice the remark had on the jury. In support of his argument, Elliott directs the court to Francis v. City of Benton, 240 Ark. 779, 402 S.W.2d 110 (1966), and Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965), where prosecuting attorneys mentioned the defendants’ prior convictions in their opening remarks at trial, and this court reversed, holding the remarks amounted to prejudicial error and a denial of due process. See also Allard v. State, 283 Ark. 317, 675 S.W.2d 829 (1984) (court reversed and remanded for new trial where trial court’s clerk at commencement of proceeding improperly read original indictment that contained two theft counts and trial court denied defendant’s mistrial motion).

Here, the State appears to concede that the prosecutor’s remarks constituted error, but argues that the error was harmless because of the overwhelming evidence of Elliott’s guilt. As previously discussed, the jury heard Elliott’s own voice via Alma’s tape recording wherein Elliott admitted having had sex with C.Q. C.Q. corroborated Elliott’s admissions by testifying to the details of when, how, and where Elliott and C.Q. had sexual intercourse. C.Q.’s sister, K.Q., also testified that Elliott had sexual conduct with her beginning when K.Q. was eight years old. In addition, Nurse Pamela Speed had performed a gynecological exam of C.Q. and confirmed C.Q. had been penetrated numerous times. Elliott offered no evidence to rebut the State’s evidence. The pertinent issue is whether the State’s evidence rendered the State’s remarks harmless.

The foundation for the harmless-error rule in cases involving federal constitutional rights is Chapman v. California, 386 U.S. 18 (1967), which this court discussed in Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987). The Numan court quoted the following relevant passage from the Chapman decision:

In fashioning a harmless constitutional error, we must recognize that harmless error can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one.
We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 585. There we said, “the question is whether there is a reasonable possibility that the audience complained of might have contributed to the conviction.”
We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.

Our court has considered the application of the Chapman harmless-constitutional-error rule in numerous cases and, in doing so, has held that we can declare that the error is harmless beyond a reasonable doubt. Numan, 291 Ark. 22, 28, 722 S.W.2d 276, 279; Efurd v. State, 334 Ark. 596, 976 S.W.2d 928 (1998); Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). But see Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985) (violation of Doyle post-arrest-silence doctrine was so flagrant that it could not be considered harmless error); Ward v. State, 212 Ark. 99, 612 S.W.2d 118 (1981) (violation of the Doyle post-arrest-silence doctrine was so egregious that it could not be harmless).

In the instant case, even assuming the best intentions on the prosecutor’s part, he deliberately told the jury before presenting any evidence during the guilt phase of the trial that Elliott had been convicted of assault and bank robbery. Thus, from the commencement of the State’s case, the State labeled Elliott a habitual criminal, thereby removing one of the constitutional benefits afforded all defendants in a criminal case — a right to a fair and impartial jury. See Allard, 283 Ark. at 318, 675 S.W.2d at 830 (where, at beginning of trial, the court clerk read to the jury the aggravated-robbery indictment, which included two additional charges of theft by receiving pending against Allard in a separate case). Although the trial judge here tried to admonish the jury in an attempt to cure the error, this is not the sort of error that can be so cured. See id. We are mindful of this court’s decision in Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996), where the State’s opening statement included a reference to “other offenses in another county,” and this court held prejudicial error did not occur because overwhelming evidence existed as to Stanley’s guilt. There, however, the State never specified Stanley’s other charges or offenses, so we held that an admonition could have ameliorated the prosecutor’s reference. Here, like the situation in Allard, the jury was told of Elliott’s specific felony convictions and the jury was left with no doubt from the time the trial commenced that defendant Elliott was a habitual felon. Because the State’s error was egregious at the outset of the trial, we cannot conclude beyond a reasonable doubt that the prosecutor’s remark did not contribute to Elliott’s conviction. Thus, we reverse and remand on this point.

In his third point, Elliott urges that the trial court erred in allowing the State to amend its information at trial during the sentencing phase and before the punishment issue was submitted to the jury. On June 19, 1996, the State charged Elliott as a habitual offender with more than one, but less than five felony convictions. Later, on February 18, 1997, the prosecutor wrote Elliott’s first attorney, notifying him that the State would seek an enhanced sentence based upon Elliott’s conviction for assault and bank robbery because that conviction, which is analogous to Arkansas’s aggravated robbery crime, constitutes a prior violent crime as defined in Ark. Code Ann. § 5-4-501(c)(l) and (2) (Supp. 1995). The State did not actually move to amend its information to incorporate this change until the sentencing phase of the trial on August 4, 1997.

In Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993), we reiterated the well-setded law that an information may be amended after a jury has been sworn but before the case has been submitted to it, as long as the amendment does not change the nature or degree of the crime charged, if the accused is not surprised. The fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense. Id. See also Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994) (such an amendment authorizes a more severe punishment, not by creating an additional offense or an independent crime, but by affording evidence to increase the final punishment in the event the defendant is convicted).

Here, both Elliott and his counsel knew of the Texas felony conviction and, while Elliott’s second counsel asserts that he was never apprised of the prosecutor’s February 18, 1997 letter informing the defense that the State intended to amend the habitual aspect of its information, it was not the fault of the State. Nonetheless, Elliott and his second counsel were prepared to defend the original habitual-offender charge, and his arguments ring hollow in suggesting he was surprised by the substance of the State’s amendment. In addition, Elliott’s second counsel was notified of the planned amendment at a June 9, 1997 pretrial hearing. As was the case in Baumgarner, Elliott simply failed to show any unfair surprise in the State’s rewording and amending of its information. See 316 Ark. at 379-380.

For the reasons set forth above, we reverse and remand.

       The record on this point is confusing, as the record reflects the prosecutor stated Elliott was convicted of assault and bank robbery, but the Judgment and Commitment Order shows a conviction for assault in bank robbery. In addition, the State amended the information to charge Elliott as a habitual offender with at least one serious felony under Ark. Code Ann. § 5-4-501(c)(l) and (2), rather than as a habitual offender with at least one but less than four felonies under Ark. Code Ann. § 5-4-501 (a).


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Dheaslee WRIGHT v. STATE of Arkansas
    CR 98-509
    983 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered December 17, 1998

      W. Ray Nickle, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Dheaslee Wright appeals the judgment of the Mississippi County Circuit Court convicting him of the capital murder of seventy-two-year-old Russ Hinkle and sentencing him to Hfe imprisonment without the possibility of parole. Appellant argues on appeal that the trial court erred in admitting his taped confession, which he asserts was obtained in violation of his constitutional rights, and in refusing to instruct the jury on the affirmative defense of duress. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.

The record reveals that on November 14, 1996, Appellant and three other young males stopped at a rest area along Interstate 55 near Blytheville, on their way to a basketball game in another town. All four males were armed with guns. One went into the restroom while Appellant and the other two males were near the vending machine outside the restroom. Appellant and the other two males entered the restroom and saw the first male arguing with the victim Mr. Hinkle. Appellant heard the victim telling the first male that he was not going to give him anything. The victim started cursing and began pushing the first male. The first male and another male then pulled out their guns. Appellant stated that the victim hit him in the jaw, and that he then pulled his gun from his shoulder holster, cocked it, and shot the victim multiple times. After the shooting, the four males fled the scene.

Appellant, who was sixteen years old at the time of the crime, was arrested two days later and taken to the Mississippi County Jail. The following morning, Appellant gave a taped confession to the murder. Appellant moved to suppress his statement on the grounds that (1) it was taken after he had already exercised his right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966), and (2) it was not voluntarily given after a knowing and intelligent waiver of his rights.

The trial court held a hearing on the suppression motion, during which the following facts were revealed. Appellant was arrested by Deputy Robb Rounsaville of the Mississippi County Sheriffs Department on November 16, 1996, at approximately 6:30 p.m. Immediately thereafter, at 6:40 p.m., Deputy Rounsaville read Appellant his Miranda rights from a statement-of-rights form. This was witnessed by two other officers: Arkansas State Police Trooper Lance Huey and Blytheville Police Officer Alice Bumpus. Deputy Rounsaville asked Appellant if he wished to make a statement, and Appellant replied that he did not. Appellant did not request to speak to an attorney or his mother. Deputy Rounsaville then placed Appellant in his patrol car and transported him to the Mississippi County Jail. No further inquiry was made by the officers.

Approximately one hour later, Blytheville Police officers took custody of Appellant and transported him to the Blytheville Police Department to inquire about another crime, a burglary. At 7:43 p.m., Sergeant Joel Sparks informed Appellant of his rights from a statement-of-rights form. This took place in the holding cell at the Blytheville Police Department, in the presence of Officer Tommy Warren. Sparks stated that he did not threaten or coerce Appellant, nor did he make any promises to him. Appellant signed the waiver form and did not ask for an attorney. Sparks then asked Appellant if he wanted to answer some questions, to which Appellant replied, “Well, what do you want to know?” Sparks then questioned Appellant about a gun taken during a burglary that Appellant was suspected of having. Appellant advised Sparks that he had taken the gun apart and threw it into the senior citizen’s pond behind Wal-Mart. Sparks stated that at that point, Appellant hung his head. Sparks told him that he needed to locate the gun before a small child found it. Appellant then stated that he wanted to speak with the detective that he had spoken to a couple of weeks earlier. Appellant did not know the officer’s name, but when he described him, Sparks concluded that he meant Detective Ross Thompson.

When Detective Thompson arrived, at 8:27 p.m., he informed Appellant of his rights from a statement-of-rights form. Sergeant Sparks was present at the time. Again, Appellant signed the form and indicated that he was willing to answer questions. Appellant did not ask to speak with an attorney or his mother. Thompson testified that he did not threaten or coerce Appellant, nor did he make any promises to him in exchange for his agreement to give a statement. Thompson stated that he did not recall discussing the subject of bond with Appellant, but that it was possible that the issue was raised. Sparks stated that there was no discussion of bond or the seriousness of the charge, but that at one point Appellant asked if he was going to be allowed to go home, and Thompson told him he could not.

Thompson stated that after he informed Appellant of his rights, they began to talk about the incident at the rest area. The interview lasted from one and one-half to two hours. It was not tape-recorded. They talked about the weapon involved in the shooting, and Appellant agreed to show the officers where he had hidden it. Thereafter, Appellant was transported to the area where the gun was hidden. With the assistance of Detective Marvin Crawford, Thompson recovered the gun and the shoulder holster.

Upon returning to the police department, at approximately 12:10 a.m., Detective Thompson again advised Appellant of his rights from a statement-of-rights form. Detective Crawford was present at that time. The detectives conducted a tape-recorded interview of Appellant at 12:20 a.m., during which the detectives detailed the previous times that night that Appellant had been informed of his rights and had agreed to waive them. Each time, Appellant acknowledged that he had been advised of his rights, and that he had signed the rights form. Appellant stated that he understood his rights fully and was voluntarily agreeing to answer questions from Thompson and Crawford. Appellant also stated that he had not been promised anything for his statement, and that he had not been threatened, pressured, or coerced into making a statement. In fact, Appellant indicated that none of his prior statements that evening were the result of pressure or coercion. The following exchange occurred between Detectives Thompson and Crawford and Appellant:

[Thompson]: Alright, um, let’s just cover somethin’ here again, just real briefly, you first, you were arrested this evening, is that correct?
[Appellant]: Yes.
[Thompson]: On uh, 17th Street?
[Appellant]: Yes.
[Thompson]: Okay, and you went to the sheriffs department, is that right?
[ Appellant] : Yes.
[ Thompson] : Okay. Uh, did they advise you of your rights out there?
[Appellant]: Yes.
[ Thompson] : Did they uh, speak with you any or anything?
[Appellant]: Nope.
[Thompson]: Okay. And then you came back here to the BlytheviUe Police Department is when you asked to speak to me, is that correct?
[Appellant]: Yes.
[ Crawford]: What was your purpose of asking to speak to Mr. Thompson?
[Appellant]: I know he ain’t mean.

During the course of the interview, Appellant confessed to shooting Mr. Hinkle, but claimed that he had acted in self-defense. The interview concluded approximately forty minutes later, at 1:00 a.m.

At the suppression hearing, Appellant testified that he told Officers Sparks and Warren that he did not want to make a statement. He stated that he also asked to speak with his mother and an attorney, Ms. Cook. He stated that Sparks told him that he could not talk to anyone until he made a statement. He stated that Sparks later approached him alone and told him that if he cooperated, he would be given a lesser charge and allowed to get a bond. He stated that Sparks explained that it was not possible to obtain a bond on a charge of capital murder. He stated that he then agreed to cooperate.

On cross-examination, Appellant stated that when he was read his rights immediately after his arrest, he acknowledged to the officer that he understood those rights. He stated that he understood his right to remain silent. He stated that he told the other officers that he understood his rights, and that he only agreed to waive them because he thought he was going to get a deal. He later claimed that he did not really understand his rights and that he had lied to the officers when he told them that he did. He admitted, however, that he had been advised of his rights by Detective Thompson on October 24, 1996, and that he stated then that he understood his rights and agreed to make a statement. Again, Appellant claimed that he lied when he told the detective that he understood his rights.

The trial court found that Appellant knew, understood, and comprehended his constitutional rights, and that he voluntarily agreed to waive those rights and speak to the officers. In making this finding, the trial court considered Appellant’s age (he was sixteen years old at the time); his mental ability and capacity (he had a reading and learning disability and a functioning I.Q. of 86); the total length of his detention (between five to six hours); and the lack of any evidence of mistreatment by the police. The trial court found further that there was no violation of Appellant’s Miranda rights resulting from his being questioned after he had initially indicated that he did not wish to make a statement. The trial court pointed to the fact that approximately one hour had lapsed between his initial request to remain silent and his being advised of his rights the second time, and that there was no inducement whatsoever by the officers to get him to make a statement. The trial court found significant the fact that Appellant specifically selected the officer to whom he wished to make a statement.

Following a jury trial, Appellant was convicted of capital murder and sentenced to life imprisonment without parole. This appeal followed.

I. Interrogation after a Request to Remain Silent

Appellant argues that the trial court erred in refusing to suppress his statement on the ground that the officers had not respected his exercise of his right to remain silent under Miranda, 384 U.S. 436. He argues further that the statement was taken in violation of the Supreme Court’s holding in Michigan v. Mosley, 423 U.S. 96 (1975), because the officers failed to “scrupulously honor” his request to remain silent and not make a statement. We disagree.

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State, and we reverse only if the ruling is clearly against the preponderance of the evidence. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Id. Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceeding^. Id. So long as there is no evidence of coercion, a statement made voluntarily may be admissible against an accused even though he once previously refused to make a statement. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987).

In Mosley, 423 U.S. 96, 104, the Supreme Court held that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’” (Footnote omitted.) The Court explained:

A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt “fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . .” 384 U.S., at 479. The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Id., at 474. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.

Id. at 103-104. Under Mosley, there are three factors for determining whether the police scrupulously honored the defendant’s right of silence: (1) whether the police immediately ceased the interrogation upon defendant’s request; (2) whether they resumed questioning only after the passage of a significant period of time and provided a fresh set of Miranda warnings; and (3) whether they restricted the later interrogation to a crime that had not been the subject of the first interrogation. Hatley v. Lockhart, 990 F.2d 1070 (8th Cir. 1993).

The leading Arkansas case on this issue is Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986). There, the defendant, sixteen-year-old Benny Hatley, was arrested for the capital murder of two police officers. The arresting officer advised Hatley of his rights, but Hatley declined to make a statement. Hatley was then immediately taken to a cell. Two hours later, Hatley was brought out of his cell for trace-metal tests. Another officer approached Hatley and said: “I’m Bill Gage with the State Police. Benny, you’re in a lot of trouble. You want to tell me about it?” Hatley replied, “Yes sir, I’ll talk to you.” Officer Gage then advised Hatley of his individual Miranda rights, after which Hatley confessed to killing the two officers.

Before discussing the merits of the appeal, this court pointed out that the Court rejected a literal reading of Miranda that would require “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances.” Id. at 133, 709 S.W.2d at 814 (quoting Mosley, 423 U.S. at 102). Additionally, this court concluded that the Court’s emphasis on interrogation about a different crime was misplaced, and that the important consideration is the “strict adherence to its dictates of scrupulously honoring the defendant’s right to remain silent.” Id. at 135, 709 S.W.2d at 815. This court held:

To “scrupulously honor” the defendant’s “right to cut off questioning” means simply that once the defendant has invoked his right to remain silent, his will to exercise that right will remain undisturbed; there must be no attempt to undermine his will and he must be secure in the knowledge he is under no compulsion to respond to any questions. Such a determination will, of course, depend on the facts in each case relative to the conduct of the police and of the defendant.

Id. Based upon the facts of that case, this court concluded that Hatley’s rights had not been violated:

There is nothing to suggest there were efforts to wear down his resistance or to prevail on him to change his mind. When Hatley was brought to the station there was not even an attempt to question him after the Miranda warnings were given, and Gage’s comment to him two hours later in the radio room was the first and only time Hatley was asked whether he had anything to say regarding the charges. Having been fully informed that he had a right to remain silent, Hatley readily responded that he did wish to talk and the single fact that he had volunteered the earlier comment when the Miranda warnings were given cannot and should not void a statement clearly shown to have been made willingly.
We note, too, that Hadey’s detention prior to Gage’s question was about two hours, of sufficient length to produce more than a momentary lull before being approached again, thus avoiding the effects of repeated questioning. See Anderson [v. Smith], [751 F.2d 96 (2d Cir. 1984)], and Mosley, [423 U.S. 96], Yet the interval was not so long as to produce an inference that his cooperation was the result of lengthy “incommunicado detention.” United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976). Nor do we think Gage’s comment objectionable. It was direct and reasonable stating only the obvious, but lacking the quality of coercion and threat found in [United States v.] Olof [527 F.2d 752 (9th Cir. 1975)].

Id. at 135-36, 709 S.W.2d at 815-16 (emphasis added).

Based upon the particular facts of this case, we conclude that there was no violation of Appellant’s rights under Miranda. After Appellant initially requested to remain silent, the police officers immediately ceased interrogation and no further inquiry was made by them. Approximately one hour passed before Appellant was approached by different officers wishing to inquire of Appellant about a separate crime. These officers provided a fresh set of Miranda warnings. Appellant signed the rights form, agreeing to waive his right to remain silent. When they asked Appellant if he wanted to answer some questions, Appellant replied by asking them what they wanted to know. Appellant was then allowed to hand-pick the officer he wished to speak with, one that he already knew would not be mean.

The fact that during their inquiry the subject of this crime arose is unimportant, as this court previously determined in Hatley, 289 Ark. 130, 709 S.W.2d 812, that the Supreme Court’s emphasis upon interrogation of a different crime was misplaced. Other than Appellant’s own self-serving statements, which conflicted with his statements given on tape, there was no uncontroverted evidence that Appellant had been coerced or promised anything by the officers, or that there was any attempt to undermine his will after he had initially chosen to remain silent. Moreover, it is of no consequence to Appellant that some of the officers’ testimony conflicted on the issue of whether any attempts had been made to contact his mother. As stated previously, the trial judge determines the credibility of the witnesses and is thus free to believe or disbelieve the testimony of any witness. We thus conclude that there was no violation of Appellant’s constitutional rights because the police officers scrupulously honored his initial request to remain silent.

II. Voluntariness of the Statement

Appellant argues that the trial court erred in ruling that his statement was voluntary. He argues that his statement was the product of police coercion and promises that he could get a bond if he cooperated. He argues that the totality of the circumstances surrounding his statement, including his age, his learning disability and low I.Q., and the fact that he was not allowed to contact his mother, demonstrate that the statement was not voluntary. We disagree.

We recently outlined the law regarding the voluntariness of a confession in Davis v. State, 330 Ark. 76, 83-84, 953 S.W.2d 559, 562-63 (1997):

A custodial confession is presumptively involuntary and the burden is on the State to show that the waiver and confession was voluntarily made. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). In examining the voluntariness of confessions, this court makes an independent determination based on the totality of the circumstances, and reverses the trial court only if its decision was clearly erroneous. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). As explained in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the inquiry into the validity of the defendant’s waiver has two separate components: whether the waiver was voluntary, and whether the waiver was knowingly and intelligently made. In determining voluntariness, we consider the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the use of physical punishment. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). Other relevant factors in considering the totality of the circumstances include the statements made by the interrogating officer and the vulnerability of the defendant. Id. In addition, the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it in order for his waiver to be knowingly and intelhgendy made. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996).

When testimony on the circumstances surrounding the taking of a custodial confession is conflicting, it is the trial court’s province to weigh the evidence and resolve the credibility of the witnesses. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). The fact that the defendant is not a stranger to the criminal justice system is a factor that may be considered in weighing the totality of the circumstances. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 117 S. Ct. 246 (1996).

Appellant presented testimony that he had been placed in special education because he had a learning disability. Tests performed by a psychologist revealed that he has a full-scale I.Q. of 81 and a performance or functioning I.Q. of 86. His reading comprehension level is between the third and fourth grade. While age and mental capacity are factors to consider, standing alone they are not sufficient to suppress a confession. Misskelley, 323 Ark. 449, 915 S.W.2d 702. Likewise, a defendant’s low I.Q. score does not mean that he is incapable of voluntarily making a confession or waiving his rights. Id. This court affirmed the admission of Misskelley’s confession notwithstanding that he had an I.Q. of 72 and read at a third-grade level.

Considering the totality of the circumstances, we conclude that Appellant’s confession was voluntarily given. He was advised of his constitutional rights four separate times, and he indicated that he understood his rights. He agreed to waive his right to remain silent on three of those four occasions. The first interview lasted no more than two hours, after which they took a break to retrieve the murder weapon. The second interview lasted only forty minutes. The total length of detention from the time of his arrest to his confession was less than six hours. As stated in the previous point, there was no credible evidence, beyond Appellant’s testimony, that the officers threatened or coerced him or promised him any special treatment in exchange for his statement. The evidence about his I.Q. and learning disability does not rise to the level of supporting the conclusion that Appellant was incapable of voluntarily making a statement, especially in light of the fact that only a couple of weeks before, he had been advised of his rights and had agreed to waive them and give a statement. This demonstrates that he was no stranger to the criminal justice system. We thus affirm the trial court’s ruling to admit the confession.

III. Proffered Jury Instruction on Duress

Appellant argues that the trial court erred in refusing to give AMCI 2d 606, the model jury instruction on the defense of duress. In support of his argument, Appellant contends that there was evidence that he had acted in self-defense. The State points out that the defenses of duress and self-defense are two different defenses, and that evidence that may support an instruction on self-defense will not necessarily support one on duress. The State argues that there was no evidence that Appellant acted under duress. We agree that the proffered instruction was not warranted by the evidence presented at trial.

This court has repeatedly stated that if there is some evidentiary basis for a jury instruction, giving the same is appropriate. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996); Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993). A party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998) (citing Yocum, 325 Ark. 180, 925 S.W.2d 385). There is no error in refusing to give a jury instruction on a defense where there is no basis in evidence to support the giving of the instruction. Id.

Arkansas Code Annotated § 5-2-208 (a) (Repl. 1997) provides for the affirmative defense of duress:

(a) It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute an offense because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another that a person of ordinary firmness in the actor’s situation would not have resisted. [Emphasis added.]

Appellant did not testify at trial, nor did he present any witnesses in his defense. The only evidence of Appellant’s defense was presented through his tape-recorded statement, which, at best, amounted to a claim of self-defense, as opposed to duress. As such, there was no evidentiary basis for instructing the jury on the affirmative defense of duress. Appellant seems to confuse the defense of duress with that of self-defense. Indeed, during the proffer below, Appellant’s counsel stated that the instruction was being offered “for the purpose that he did state that he was acting in self-defense in his statement and the conditions that they were under.” Appellant did not request an instruction on self-defense. The trial judge refused to give Appellant’s proffered instruction, stating that there was no aspect of duress or, for that matter, self-defense adduced during the trial. The trial court’s ruling was not erroneous, as there was no basis in evidence to support Appellant’s claim that he shot Mr. Hinkle under duress.

IV. Rule 4-3(h)

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.


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

text:
    Edith M. HUFFMAN and David Huffman, Husband and Wife v. Robert E. ALDERSON
    98-312
    983 S.W.2d 899
    Supreme Court of Arkansas
    Opinion delivered December 17, 1998

      Law Offices of Susan A. Fox, by: Susan A. Fox,for appellants.

      Bassett Law Firm, by: Tod C. Bassett and James M. Graves, amicus curiae for Generali—U.S. Branch Insurance Company.
   Tom Glaze, Justice.

We accepted certification of this case from the court of appeals under Ark. Sup. Ct. R. l-2(b) and (d) because the court suggested that the case involved the interpretation of Ark. R. Civ. P. 55(c). According to the court of appeals, this case presents a Rule 55(c) issue that was mentioned, but not decided, in Cossey v. Transamerica Ins. Co., 25 Ark. App. 258, 757 S.W.2d 176 (1988) — whether a trial court under Rule 55(c) has the power to set aside a default judgment at the request of a successful plaintiff. We do not reach this issue because we affirm the trial court on another basis.

Appellants Edith M. Huffman and her husband David Huffman filed suit against Robert E. Alderson about one year after Alderson allegedly drove his vehicle into the car Edith Huffman was driving. Alderson’s vehicle was insured by Graward General, an agent of Generali — U.S. Branch Insurance Company. The Huffmans were unable to locate Alderson to serve him, and because Generali was unaware of Alderson’s whereabouts, it would not agree to accept service on Alderson’s behalf. Generali gave the Huffmans Alderson’s last known address and offered to provide further assistance to locate Alderson, if necessary. Because the Huffmans still were unable to find Alderson to serve him, their suit was dismissed without prejudice by the trial court.

About two months after dismissal of the suit, the Huffmans filed a second lawsuit against Alderson, and this time obtained service on him. Alderson neither filed an answer, nor did he notify his insurer, Generali, of the lawsuit. Without informing Generali, the Huffmans moved the trial court for a default judgment, which the trial court granted. After a hearing, the Huffmans obtained a judgment in the total amount of $105,066.19. The Huffmans later forwarded the default judgment to Generali for payment, but Generali refused to pay.

After Generali declined payment, the Huffmans, under Ark. Code Ann. § 23-89-101(b) (Repl. 1992), filed a direct subrogation action against Generali. Both parties moved for summary-judgment. The trial court denied the Huffinans’ motion and granted relief to Generali. The court determined that, under Generali’s policy, coverage on Alderson’s vehicle was dependent upon Alderson fulfilling his duties to cooperate with and to give notice to Generali regarding any pending litigation, and Alderson had failed to do either. The Huffmans appealed the trial court’s decision to the court of appeals, and the court of appeals affirmed by an opinion not designated for publication. Huffman v. Generali—U.S. Branch, Case No. CA96-559 (April 9, 1997) (Huffman I). The Huffmans filed no petition for review with this court, but instead returned to the trial court that entered the Huffinans’ default judgment against Alderson. In doing so, they filed a motion under Rule 55(c) to set aside the default judgment previously entered in order to try their case on its merits against Aider-son. If they prevail, the Huffmans then could renew their efforts to require Generali to pay the judgment as provided by its policy with Alderson.

The trial court held a hearing on the Huffinans’ motion, and while Alderson still failed to appear, the trial court granted Generali’s request to proceed as amicus curiae. After considering the Huffinans’ and Generali’s briefs and oral arguments, the trial court denied the Huffinans’ Rule 55(c) motion wherein the Huffinans contended that, as successful plaintiffs, they had a right to set aside their default judgment because of (1) Alderson’s misconduct in failing to notify his insurer, Generali, of the second lawsuit, and (2) for other reasons justifying relief from the operation of the judgment. In denying the Huffmans relief, the trial court held that Alderson’s failure to notify Generali of the lawsuit was not misconduct as that term is intended under Rule 55(c)(3), and that the Huffmans failed to show any justifiable reason to set aside their judgment under Rule 55(c)(4).

While the Huffmans bring this appeal arguing the trial court erred in interpreting Rule 55(c), and particularly Rule 55(c)(3) and (4), the simple answer in resolving this matter is that the Huffmans are barred from pursuing their case against Generali because the central issue here is the same one that has already been decided in the court of appeals in Huffman I — the Huffmans’ direct action suit against Generali.

In Huffman I, the court of appeals stated that, while Generali had been aware of the Huffmans’ first lawsuit against Alderson, the conclusive fact in support of the trial court’s grant of summary judgment in Generali’s favor was that neither Generali’s insured, Alderson, nor the Huffmans ever notified Generali of the second lawsuit. As a result, the court of appeals held that, because coverage under Alderson’s policy with Generali was contingent upon Alderson’s fulfilling his duty to give notice of pending litigation, and he failed to do so, Generali had no duty to defend Alderson or pay any judgment acquired against him.

The Huffmans in this action now seek to undo the holding in Huffman I. They ask that the same default judgment that the court of appeals previously held that Generali did not have to pay in Huffman I should now be set aside so they can compel Generali’s payment under the Alderson policy of any new judgment the Huffmans may obtain. The Huffmans’ strategy is too late.

Generali argued below and on appeal that the doctrines of res judicata and collateral estoppel control the outcome of this case. We agree. The concept of res judicata has two facets, one being issue preclusion and the other claim preclusion. John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993); see also Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993) (collateral estoppel, or issue preclusion, bars relitigation of issues, law or fact, actually litigated in the first suit). Under the claim-preclusion aspect of the res judicata doctrine, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim. Id. Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could be litigated. Coleman’s Serv. Ctr. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. (citing Swofford v. Swofford, 295 Ark. 433, 748 S.W2d 660 (1988)). The doctrine of res judicata applies only when the party had a fair and full opportunity to litigate the issue in question. Id.

The doctrine of collateral estoppel or issue preclusion, on the other hand, bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Id. When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Id. (citing Pinson, 313 Ark. at 636). However, both claim preclusion and issue preclusion are applicable when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985).

Here, the Huffinans had every opportunity to litigate Generali’s responsibility for payment of the insured’s, Alderson’s, liability under the policy in controversy. They litigated and lost that argument before the trial court and the court of appeals in Huffman I, and they are foreclosed from relitigating that issue again. The Huffinans received a default judgment against Aider-son and used that judgment to proceed against Generali in Huffman I. Because Huffman I held that Generali is not liable to the Huffinans based on Alderson’s breach of his policy with Generali, the Huffinans, under the doctrines of res judicata and collateral estoppel, cannot now set aside the default judgment in order to once again attack Alderson’s privy, Generali.

For the above reasons, we affirm the trial court’s decision.

Newbern, Brown, and Imber, JJ., concur.

David Newbern, Justice,

concurring. The majority opinion reaches the correct result in affirming this case. Because we are not confronted with an action by the Huffmans raising the same claim upon which they first succeeded against Mr. Alderson, and because we are not confronted with the filing of an action by the Huffmans raising an issue previously litigated, although we may be aware of their desire to do so, I believe the discussion of res judicata and collateral estoppel is unnecessary.

The issue before us is solely whether the Trial Court erred in refusing to set aside the earlier judgment due to misconduct on the part of Mr. Alderson, Ark. R. Civ. P. 55(c)(3), or other reason justifying relief from the judgment. Ark. R. Civ. P. 55(c)(4).

The misconduct alleged is Mr. Alderson’s failure to notify his insurer of the claim. By virtue of his inaction, Mr. Alderson deprived himself of insurance coverage. That was not misconduct to the direct prejudice of the Huffmans. Nor have we been given any other reason to set aside the default judgment which, after all, favored the Huffmans.

Underlying all of this is the language of Rule 55(c) that seems to contemplate setting aside a judgment only upon motion by a defendant who must “demonstrate a meritorious defense” unless the judgment is “void.” The rule obviously does not contemplate allowing a party who has obtained a judgment by default to return to the trial court to have it set aside because of some error or failure to obtain an advantage which he or she perceives may have been lost due to his or her own failure. The Trial Court correcdy declined to set the judgment aside.

Brown, J., and Imber, J., join in this opinion.

       Although the Huffinans moved to strike Generali’s amicus curiae brief, they do not raise that issue on appeal. Apparently, the Generali did not think it had standing to intervene, so it asked to file an amicus brief. We need not address this issue, but we note that we are unaware of a rule of civil procedure providing for an amicus curiae brief in these circumstances. See Grantors to the Diaz Refinery PRP Committee Site Trust, et al., v. Employers National Insurance Corporation, 318 Ark. 171, 884 S.W.2d 591 (1994) (held, without an appearance by a party to an appeal in the form of a brief, participation by amicus curiae on behalf of that party is not appropriate). We further note that Generali was permitted to file a brief as an amicus curiae in this appeal, but no objection was interposed.


author: Annabelle Clinton Imber, Justice.

text:
    Thomas L. CRAFT v. CITY of FORT SMITH
    98-915
    984 S.W.2d 22
    Supreme Court of Arkansas
    Opinion delivered December 17, 1998

      Hardin, Jesson, & Terry, by: Robert M. Honea, for appellant.

      Daily & Woods, P.L.L.C., by: Jerry L. Canfield and Barry Neal, for appellee.
   Annabelle Clinton Imber, Justice.

This is a zoning case. The appellant, Thomas L. Craft, raised procedural and substantive challenges to a zoning ordinance passed by the City of Fort Smith. The trial court granted summary judgment to the City on all arguments. We affirm.

The City of Fort Smith extended Phoenix Avenue from Old Greenwood Road to Rogers Avenue. Both Old Greenwood Road and Rogers Avenue are well-developed commercial streets. In contrast, most of the property bordering the new portion of Phoenix Avenue is undeveloped commercial property. On September 16, 1997, the City adopted Ordinance No. 50-97, entitled “An Ordinance Adopting Amendments to the City of Fort Smith Zoning Ordinance Establishing an Overlay Zone for the Phoenix Avenue Extension.” The ordinance imposed signage and landscaping regulations for the newly constructed portion of Phoenix Avenue.

Mr. Craft owns property affected by the ordinance. On January 28, 1998, Mr. Craft filed a declaratory judgment action in the Sebastian County Chancery Court. In his complaint, Mr. Craft argued that the ordinance was void and unenforceable due to several procedural and constitutional violations. Mr. Craft later proclaimed, in an affidavit, that the landscaping requirements applied to all future owners of his parcel of land, and that the requirements were a financial burden that would decrease the resale value of his land. Additionally, Mr. Craft claimed that the City had not compensated him for the landscaping costs or the decrease in the value of his land.

Both parties subsequently moved for summary judgment. In an affidavit, William Harding, the acting City Administrator of Fort Smith, averred that the Planning Commission and the City Board of Directors took the following steps to notify and inform the city residents about the proposed zoning ordinance: 1) held three public meetings; 2) published notice of the meetings in the local newspaper on three occasions; 3) sent three written notices to the affected property owners; and 4) filed in the city clerk’s office three copies of the final version of the ordinance to be adopted. Mr. Harding also declared that:

The corridor of properties along the newly constructed Phoenix Avenue Extension was considered a uniquely situated corridor for the application of reasonable, but different signage and landscaping regulations. The extension of roadway is through previously undeveloped properties so that the corridor is a reasonable place to apply different regulations to enhance the traffic, safety, beauty, aesthetic and health concerns of the City.

The trial court rejected Mr. Craft’s arguments and granted summary judgment to the City. This appeal followed. It is well settled that summary judgment is appropriate when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. In making this determination, we view the evidence in the light most favorable to Mr. Craft, as the party resisting the motion, and resolve all doubts and inferences in his favor. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).

I. Procedural Requirements

On appeal, Mr. Craft claims that the ordinance is void because the City failed to comply with certain procedural requirements. Before reaching the merits of these challenges, Mr. Craft asks us to decide whether Ordinance 50-97 is: 1) a general-nature ordinance; 2) a general amendment to the existing zoning code; or 3) the creation of a new zoning classification, and the rezoning of property in that classification. The trial court, however, did not render any ruling as to what type of ordinance this was, and we cannot do so for the first time on appeal. See Collins v. Keller, 333 Ark. 238, 969 S.W.2d 621 (1998); Higginbotham v. Junction City Sch. Dist., 332 Ark. 556, 966 S.W.2d 877 (1998).

As to his specific procedural arguments, Mr. Craft first contends that Ordinance 50-97 violates Ark. Code Ann. § 14-55-201 (Repl. 1998), which provides that “No law or ordinance shall contain more than one (1) subject, which shall be clearly expressed in its title.” Specifically, Mr. Craft contends that Ordinance 50-97 violates this provision because it deals with multiple subjects (landscaping and signage), and the subject of the ordinance is not “clearly expressed in its title.” We disagree. The title of Ordinance 50-97 is “An Ordinance Adopting Amendments to the City Of Fort Smith Zoning Ordinance Establishing an Overlay Zone for the Phoenix Avenue Extension.” Viewing the ordinance as a whole, as we did in Adams v. Sims, 238 Ark. 696, 385 S.W.2d 13 (1964), we agree with the trial court that Ordinance 50-97 deals with only one subject: the zoning rules for the newly constructed portion of Phoenix Avenue. We also agree that this subject is accurately reflected in the title.

Next, Mr. Craft argues that Ordinance 50-97 is void because the City failed to comply with publishing and notice requirements contained in Ark. Code Ann. § 14-55-206 (Repl. 1998). The trial court, however, only ruled as to whether the City complied with the publishing and notice requirements found in Ark. Code Ann. § 14-56-422 (Repl. 1998) and City Rule 27-45(b)(1). The court did not render a ruling on whether Ark. Code Ann. § 14-55-206 applied to Ordinance 50-96, or whether the City complied with the procedural requirements contained in that statutory provision. Again, because there is no ruling on this issue, we cannot consider it for the first time on appeal. Collins v. Keller, supra; Higginbotham v. Junction City Sch. Dist., supra. We, however, do acknowledge that the City provided ample notice of the proposed amendment to the City residents and, in particular, property owners who would be directly affected by the passage of the ordinance.

Thirdly, Mr. Craft argues that the City violated the map and uniformity requirements found in Ark. Code Ann. §14-56-416(a) (Repl. 1998), which provides that:

(a)(1) Following adoption and filing of the land use plan, the commission may prepare for submission to the legislative body a recommended zoning ordinance for the entire area of the municipality.
(2) The ordinance shall consist of both a map and a text.
(3) (A) The ordinance may regulate the location, height, bulk, number of stories, and size of buildings; open space; lot coverage; density and distribution of population; and the uses of land, buildings, and structures.
(B) The ordinance may require off-street parking and loading.
(C) The ordinance may provide for districts, of compatible uses, for large scale unified development, for elimination of uses not in conformance with provisions of the ordinance, and for such other matters as are necessary to the health, safety, and general welfare of the municipality.
(D) The ordinance shall include provisions for administration and enforcement.
(E) (i) The ordinance shall designate districts or zones of such shape, size, or characteristics as deemed advisable.
(ii) The regulations imposed within each district or zone shall be uniform throughout the district or zone.

(Emphasis added.) The first paragraph of Ark. Code Ann. §14-56-416(a) clearly and unequivocally states that it applies to zoning ordinances that affect “the entire area of the municipality.” Likewise, we have applied this statutory provision to zoning laws that affected the entire city. See Osborne v. City of Camden, 301 Ark. 420, 784 S.W.2d 596 (1990). Because Ordinance 50-97 only dealt with a small portion of the city (the real property adjacent to the newly constructed portion of Phoenix Avenue), we hold that this statute is inapplicable.

Finally, Mr. Craft contends that the City faded to comply with the procedural requirements found in Section 27-45 of the Fort Smith Municipal Code. In his brief, Mr. Craft asserted that Section 27-45 “specifies numerous procedural steps which are to be taken prior to the adoption of any amendment to the Zoning Code which changes the zoning classification of a particular piece of property.” (Emphasis added.) Flowever, in his affidavit, Mr. Craft conceded that his property was classified as commercial property both before and after the passage of Ordinance 50-97. In light of his concession that there has been no change in the zoning classification of his property, we see no reason to determine whether the City complied with procedural requirements found in Section 27-45 of the Fort Smith Code.

II. Constitutional Challenges

Next, Mr. Craft raises three constitutional challenges to Ordinance 50-97. Similar to a statute, an ordinance is presumed constitutional, and the burden of proving otherwise is upon the challenging party. Laudan v. State, 322 Ark. 58, 907 S.W.2d 131 (1995); Board of Adjustments of Fayetteville v. Osage Oil & Transp., Inc., 258 Ark. 91, 522 S.W.2d 836 (1975).

A. Vagueness

First, Mr. Craft claims that Ordinance 50-97 is void because numerous terms contained therein are unconstitutionally vague. It is well settled that a law is unconstitutionally vague under due process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited, and it is so vague and standardless that it allows for arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104 (1972); Thompson v. Arkansas Social Serv., 282 Ark. 369, 669 S.W.2d 878 (1984); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979). When a person brings a “pre-enforcement facial challenge” to the vagueness of a law, the relevant inquiry is whether the ordinance is “impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (emphasis added). Likewise, in Planned Parenthood of Minnesota v. State of Minnesota, 910 F.2d 479 (8th Cir. 1990), the Eighth Circuit required those who brought a pre-enforcement facial challenge to a fetal disposal law to demonstrate that the “law is impermissibly vague in all of its applications” and that “the statute could never be applied in a valid manner.” The subject matter of the challenged law also determines how stringently the vagueness test will be applied. For instance, if the challenged law infringes upon a fundamental right, such as liberty or free speech, a more stringent vagueness test is applied. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. supra; Thompson v. Arkansas Social Serv., supra; Davis v. Smith, supra. In contrast, if the law merely regulates business activity, a less stringent analysis is applied and more flexibility is allowed. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra; Thompson v. Arkansas Social Serv., supra; Davis v. Smith, supra.

In this case, Mr. Craft brings a pre-enforcement facial challenge to the vagueness of an ordinance that regulates business activity. Accordingly, we must apply the vagueness standard in a less stringent manner, allow more flexibility, and determine whether the challenged language is vague in all of its applications such that it could never be applied in a valid manner. After carefully considering each of Mr. Craft’s individual challenges to Ordinance 50-97, we conclude that he has failed to meet this heavy burden. Accordingly, we affirm the trial court’s ruling that Ordinance 50-97 is not unconstitutionally vague.

B. Equal Protection

Next, Mr. Craft asserts that the ordinance violates the Equal Protection Clause because it imposes signage and landscaping regulations on people who own property adjacent to the newly constructed portions of Phoenix Avenue but not upon people who own property adjacent to other streets in the city. We have previously said that like other forms of legislation an ordinance does not have to treat all people or activities similarly. Phillips v. Town of Oak Grove, 333 Ark. 183, 968 S.W.2d 600 (1998). Instead, the ordinance may include classifications that cause people or activities to be treated differently so long as there is a rational basis for the distinction. See, e.g, Phillips v. Town of Oak Grove, supra (upholding an ordinance that allowed birds to be raised for personal but not for commercial uses); Johnson v. Sunray Serv., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991) (upholding an ordinance that allowed solid waste disposal facilities to be constructed two miles from designated waterways); City of Little Rock v. Reinman- Wolfort Automobile Livery Co., 107 Ark. 174, 155 S.W.2d 105 (1913), aff'd, 237 U.S. 171 (1915) (upholding an ordinance that prohibited livery, but not sale, stables from only certain portions of the city).

In this case, there is a rational basis for applying landscaping and signage regulations to the new portions of Phoenix Avenue and not to other streets in the city. The new portion of Phoenix Avenue consists of mostly undeveloped land, and the City wants to ensure that the area is developed in a manner that promotes traffic safety and aesthetics. Mr. Craft simply has failed to satisfy his burden of proving that the classification is not rationally related to these legitimate objectives. Accordingly, we affirm the trial court’s ruling.

Mr. Craft makes an additional equal-protection argument. Specifically, he contends that there is no rational basis for applying some of the signage rules to only certain portions of the Phoenix Avenue extension. We, however, cannot reach this issue because the trial court did not render a ruling on this particular equal-protection claim. Collins v. Keller, supra; Higginbotham v. Junction City Sch. Dist., supra.

C. Substantive Due Process

Finally, Mr. Craft argues that the ordinance violates the due process clause by taking his property without compensation. Mr. Craft contends that the ordinance is a taking because it: 1) requires him to spend money to landscape; and 2) the obligation runs with the land and thus decreases the value of his property. Mr. Craft, however, fails to cite a single authority in support of his argument that Ordinance 50-97 constitutes a taking, and we have said on numerous occasions that we will not consider an issue if the appellant has failed to cite any convincing legal authority in support of his argument. Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997).

Furthermore, the United States Supreme Court explained in Agins v. Tiburon, 447 U.S. 255 (1980), that a zoning regulation amounts to a constitutional taking only if “the ordinance does not substantially advance a legitimate state interest,” or it “denies an owner economically viable use of his land.” Likewise, in National By-Products, Inc. v. City of Little Rock, 323 Ark. 619, 916 S.W.2d 745 (1996), we held that a municipality “takes” a person’s land only when the regulation “substantially diminishes the value of the land.” In this case, the first prong of the Agins test is satisfied because the zoning ordinance substantially advanced the legitimate state interests of promoting aesthetics and traffic safety. See City of Hot Springs v. Carter, 310 Ark. 405, 836 S.W.2d 863 (1992); City of Fayetteville v. McIlroy Bank & Trust Co., 278 Ark. 500, 647 S.W.2d 439 (1983) (holding that aesthetics and traffic safety were legitimate interests). Ordinance 50-97 also satisfies the second prong because Mr. Craft has failed to show that the landscaping and signage requirements deny him the “economically viable use of the land” or “substantially diminish the value of the land.” Accordingly, we also affirm on this point.

Affirmed.


author:
Ray Thornton, Justice. Annabelle Clinton Imber, Justice,
      David Newbern, Justice,

text:
    Alan WILLETT v. STATE of Arkansas
    CR 97-341
    983 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered December 17, 1998

      William M. Pearson; James S. Dunham; and J. Thomas Sullivan, for appellant.

      Winston Bryant, Att’y Gen., by; David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

This is the second time we have reviewed the imposition of death penalties for each of two counts of capital murder committed by the appellant, Alan Willett. The two convictions for killing his son, Eric, and appellant’s brother, Roger, were affirmed by this court in Willett v. State, 322 Ark. 613, 911 S.W.2d. 937 (1995)(Willett I), as were convictions for attempted murder of appellant’s surviving children, Jonathan and Ruby. In Willett I, appellant sought to challenge the sufficiency of the evidence to support the aggravating circumstance found by the jury, but that argument was not raised to the trial court; therefore we did not consider the merits of that argument on appeal. However, we found error in the completion of the forms relating to mitigating circumstances which made it impossible to discern whether the jury found any mitigating circumstances to consider during the penalty phase, and reversed and remanded for resentencing.

During the resentencing hearing in August of 1996, the jury was presented evidence that appellant committed the capital murders of Roger and Eric in an especially cruel or depraved manner as those terms are defined by Ark. Code Ann. § 5-4-604, the statute establishing aggravating circumstances. Evidence was also presented that a number of mitigating circumstances existed. The jury unanimously found that the statutory aggravating circumstance existed beyond a reasonable doubt; that the aggravating circumstance outweighed beyond a reasonable doubt all mitigating circumstances found to exist; and that the aggravating circumstance justified a sentence of death beyond a reasonable doubt for each of the capital murders. Appellant brings this appeal, and we affirm.

For his first point on appeal, the appellant contends that the evidence presented at the resentencing trial was insufficient to justify a sentence of death on each count of capital murder. Our test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 257, 729 S.W.2d 400, 401 (1987). On appeal, we review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 237, 783 S.W.2d 58, 59 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark 375, 377, 797 S.W.2d 432, 433 (1990); Jones v. State, 269 Ark. 119, 120, 598 S.W.2d 748, 749 (1980).

The pertinent parts of Ark. Code Ann. § 5-4-604 provide:

Aggravating circumstances shall be limited to the following:
(8) (A) The capital murder was committed in an especially cruel or depraved manner.
(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death . . . “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person . . . shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder. . . .

On review, we examine whether substantial evidence was presented to support the jury’s unanimous finding that the statutory aggravating circumstance existed, that it outweighed all mitigating circumstances, and that it justified a sentence of death, all beyond a reasonable doubt.

Evidence Supporting Aggravating Circumstances

The jury considered the testimony of appellant’s daughter, Ruby, law-enforcement officials, and medical experts, and reviewed exhibits, photographs, and appellant’s videotaped statement. Appellant’s statement indicated that he considered murdering his family in August by carbon monoxide poisoning. He drove his family to a nearby lake to carry out this plan, but did not complete the murders. One month later, he stated that he sat up all night planning to kill his family and then to commit suicide. Early in the morning of September 14, 1993, he chose an eight-pound window weight as his weapon and first attacked his daughter Ruby, because she, as the oldest, would be most likely to talk him out of his plan. He struck her on the head, but she awakened, and according to Ruby, when she screamed, he attempted to smother her. The noise roused Ruby’s thirteen-year-old brother, Eric, who entered the room while Ruby was seeking to flee with the youngest brother, Jonathan, in her arms. The appellant struck Jonathan on the head, and then turned his attention to Eric while Ruby and Jonathan escaped. Appellant stated that Eric practically ran into the weapon, and fell to the ground when he was struck on the head. Appellant then turned upon his own mentally handicapped brother, Roger, told him to turn around, and when he did so, struck him on the head. The blow, however, did not stun him, and appellant repeated the attack with as many as five blows until Roger fell to the floor. Appellant then returned to Eric and struck him again to make sure he was dead, before appellant locked himself in the bathroom and cut himself on the wrists and throat. The medical testimony was that Eric may have lived as long as thirty minutes after being struck, and Roger was still alive when the officers arrived at the scene soon after Eric’s death. Both Ruby and Jonathan survived, and appellant’s conviction and sentence for attempted murder of Rudy and Jonathan, affirmed in Willett I, is not at issue in this appeal.

We first consider whether there was substantial evidence to support the jury’s finding that the statutory aggravating circumstance was proven beyond a reasonable doubt in each of the charges. As we look at the evidence that Eric’s murder was committed in an especially cruel manner because it was part of a course of conduct intended to inflict mental anguish upon Eric, we find evidence that Eric was confronted a month earlier with a plan to kill the family by carbon monoxide poisoning. Although that plan was not carried out, the awareness that such a plan had been considered illuminated the scene on the morning of the murders when Eric, hearing his sister’s screams, ran into the room to witness his father’s attack upon his sister Ruby and his brother Jonathan.

Appellant’s defense that he didn’t intend to inflict mental anguish upon Eric, he only intended to kill him, is demonstrative of an indifference to the suffering of the victim. Intent may be inferred from the circumstances of the crime. See Weaver v State, 324 Ark. 290, 294, 920 S.W.2d 491, 493 (1996). In this case, there was substantial evidence from which the jury could infer intent to inflict mental anguish, as well as to murder Eric, and in weighing the evidence, the jury is not required to accept appellant’s explanation of his own motives. The jury is allowed to consider all evidence, including that which showed that Eric watched his father’s attack upon his brother and sister. Prom this evidence a jury could find beyond a reasonable doubt that Eric must have suffered indescribable mental anguish and that he suffered uncertainty as to his ultimate fate as his father turned his attack upon him. See Davasher v. State, 308 Ark. 154, 170, 823 S.W.2d 863, 872, (1992), cert. denied, 112 S.Ct. 2948, 119 L. Ed.2d 571, 572 (1992). On review, the jury’s judgment will be upheld if, taking the evidence in the light most favorable to the State, a rational trier of fact could find the aggravating circumstance to have existed beyond a reasonable doubt. Kemp v. State, 324 Ark. 178, 200, 919 S.W.2d 943, 953-954, cert. denied, 117 S. Ct 436, 136 L.Ed.2d 334 (1996).

While appellant’s brother Roger might not have understood the significance of the plan to subject the family to carbon monoxide poisoning, there was abundant and substantial evidence that he witnessed the mayhem of the murderous scene of September 14, 1993, because the appellant told him to turn around, and when he did so, hit him in the back of the head with the window weight. Death was not merciful to either Eric or Roger. The first blow to the head did not stun Roger, and repeated blows were required to put him on the floor, where he remained alive until officers arrived. This substantial evidence would support the jury’s finding that Roger’s death resulted from an especially cruel or depraved manner because the means of inflicting death was serious physical abuse that first created a substantial risk of death, which, when continued and intensified, did finally result in his death.

We conclude that there was substantial evidence before the jury to support the finding that the aggravating circumstance existed beyond a reasonable doubt in each of the counts of capital murder.

Evidence of Mitigating Circumstances

The jury found that nine mitigating circumstances existed in this case. These factors were: (1) the capital murders were committed while Alan Willett was acting under unusual pressures; (2) before the 14th of September, 1993, Alan Willett had no history of criminal conduct; (3) before the 14th of September, 1993, Alan Willett helped coach Little League baseball and, in particular, helped a brain-damaged child; (4) after the 14th of September, 1993, Alan Willett has had no significant disciplinary problems with the prison system; (5) the crime committed on the 14th day of September, 1993, was out of character for Alan Willett; (6) Alan Willett cooperated with law enforcement in that he voluntarily gave a statement as to what happened on the 14th day of September 1993; (7) Alan Willett has exhibited remorse for having committed the offense; (8) Alan Willett can be a productive prisoner without the possibility of parole; and (9) Alan Willett directly suffered from the offense and will continue to suffer.

While only aggravating circumstances set forth in the statute may be considered by the jury , those aggravating circumstances must be established beyond a reasonable doubt. No similar limitation is placed upon mitigating circumstances. Ark. Code Ann. §§ 5-4-604 — 5-4-605 (Repl. 1997). A defendant is allowed to introduce evidence of mitigating circumstances, not limited to those set out in the statute, in order to persuade the jury that the aggravating circumstances which have been proven are mitigated so that they do not justify, beyond a reasonable doubt, the imposition of the death penalty. Even the slightest evidence of a mitigating circumstance may be submitted to the jury, and the jury may find that the mitigating circumstance exists based upon the preponderance of the evidence. While even the slightest evidence of a statutory aggravating circumstance may be presented to the jury during the sentencing phase, the jury must be convinced beyond a reasonable doubt that the aggravating circumstance exists. Ark. Code Ann. § 5-4-603(a)(l) (Repl. 1997).

Balancing Aggravating and Mitigating Circumstances

Following the determination of the existence of aggravating and mitigating circumstances, the jury is called upon to decide whether the aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances that any of the jurors have found to exist. We note that when the jury finds that mitigating circumstances exist, if one juror determines that the aggravating circumstances do not exceed the mitigating circumstances beyond a reasonable doubt, the death sentence cannot be imposed. Flere, the jury unanimously found one aggravating circumstance existed and that it outweighed the mitigating factors beyond a reasonable doubt. The balancing of mitigating and aggravating circumstances is the duty of the jury. Ark. Code Ann. § 5-4-603 (Repl. 1997).

Imposition of Sentence

If the jury has unanimously agreed that one or more aggravating circumstances exist beyond a reasonable doubt, and that the aggravating circumstances outweigh beyond a reasonable doubt the mitigating circumstances, the jury must then determine whether the aggravating circumstances justify beyond a reasonable doubt the sentence of death. Only if the jury unanimously agrees can the death penalty be imposed.

We have reviewed the evidence presented during this resentencing trial, and conclude that substantial evidence was presented to the jury to support its findings that: (1) an aggravating circumstance existed; (2) that it outweighed the mitigating circumstances which the jury found to exist; and (3) that the aggravating circumstance that the capital murders were committed in an especially cruel and depraved manner justifies the imposition of a death sentence, all beyond a reasonable doubt. We affirm this point on appeal.

Constitutionality of Sentence

For his second point on appeal, appellant urges that the sentences of death are in violation of the Eighth and Fourteenth amendments of the United States Constitution as there is no meaningful appellate review of the jury’s finding of aggravating circumstances.

Appellant contends that by allowing the jury’s consideration of those aggravating and mitigating circumstances for which there is some evidence, however slight, that we have unconstitutionally modified our requirement for substantial evidence to establish an aggravating circumstance beyond a reasonable doubt. This argument stems from our decision in Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). In Miller, we considered the problems inherent in the widespread practice by trial courts of submitting to the jury during the sentencing phase all mitigating and statutory aggravating factors whether or not there was any evidence to support them, and expressed our view that the better practice would be to only submit for the jury’s consideration those aggravating and mitigating factors for which there is any evidence, however slight. Id. We noted that each of the jury’s findings as to the existence of aggravating and mitigating circumstances was not a separate little verdict and also made the observation, upon which we did not rely, that “we do not require the same degree of proof to sustain a jury finding that an aggravating or mitigating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime.” Miller, 269 Ark. at 355, 605 S.W.2d at 439. That statement is not correct with respect to the degree of proof required by a jury to support an aggravating circumstance which must be found to exist beyond a reasonable doubt to justify a sentence of death.

In Miller, we reviewed the jury’s findings of aggravating circumstances justifying the imposition of the death sentence and applied the correct standard of review. We found that “there was sufficient evidence for the jury to find beyond a reasonable doubt that appellant killed the deceased to eliminate a witness and thus hopefully avoid arrest. ...” Id. The United States Court of Appeals for the Eighth Circuit pointed out that the language in Miller was flawed, but concluded that we had followed a correct standard of review. Miller v. Lockhart, 65 F.3d 676, 686-87 (8th Cir. 1995). In our later cases we have restated the standard that we will “review the sufficiency of the State’s evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt.” Kemp v. State, 324 Ark. at 199, 919 S.W.2d at 953. We do not change the rule established in Miller which allows the jury to consider those mitigating and statutory aggravating circumstance for which evidence, however slight, exists. However, we will continue to review all findings relating to aggravating circumstances which support the imposition of a death penalty to determine whether there existed substantial evidence for the jury to find beyond a reasonable doubt that one or more aggravating circumstances existed, that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, and that the aggravating circumstances justified a sentence of death beyond a reasonable doubt.

We have adhered to that standard of review in our consideration of the first point on appeal in this case, and hold that the death penalty in this case was constitutionally imposed.

Rule 4-3(h)

As required by Ark. Code. Ann. § 16-91-113(a) and Rule 4-3(h) of the Rules of the Arkansas Supreme Court, we have reviewed the entire record for other reversible errors and, finding none affirm the verdict and sentence of the jury.

Affirmed.

Imber, J., concurring in part.

Newbern and Imber, JJ., dissenting.

Annabelle Clinton Imber, Justice,

concurring. I concur in the result reached by the majority, but write only to note my agreement with Part I of the dissent.

David Newbern, Justice,

dissenting. The majority opinion states that a trial court should submit an aggravating circumstance to the jury for consideration if the State has introduced “any evidence, however slight,” in support of the aggravating circumstance. The majority opinion then states, however, that a jury’s finding that an aggravating circumstance exists beyond a reasonable doubt should be affirmed on appeal only if (1) the existence of the aggravating circumstance is supported by “substantial evidence,” or (2) viewing the evidence “in the light most favorable to the State, a rational trier of fact could find the aggravating circumstance to have existed beyond a reasonable doubt.” The majority concludes that substantial evidence supports the jury’s finding that appellant Alan Willett committed the capital murders against his son and brother “in an especially cruel or depraved manner” as those terms are defined in Ark. Code Ann. § 5-4-604(8) (Repl. 1997), and it affirms Mr. Willett’s death sentence based upon that aggravating circumstance.

It is correct to hold that, when we review the sufficiency of the evidence supporting a jury’s finding that an aggravating circumstance exists beyond a reasonable doubt, we should apply the “substantial evidence” standard. I disagree, however, with the majority’s suggestion that a different standard, i.e., “any evidence, however slight,” should be applied by a trial court when deciding whether to submit an aggravating circumstance to the jury. There is no substantial evidence that Mr. Willett murdered his son and brother “in an especially cruel or depraved manner.” The evidence is insufficient to establish that aggravating circumstance, and we therefore should reverse and remand for resentencing.

1. The “substantial evidence” standard

We have consistently held that evidence supporting a conviction is sufficient if it is “substantial.” Huggins v. State, 322 Ark. 70, 74, 907 S.W.2d 697, 700 (1995). Applying the “substantial evidence” standard, we will affirm a verdict of guilt if the evidence, when viewed in the light most favorable to the State, is “forceful enough to compel reasonable minds to reach a conclusion one way or the other” without “having to resort to speculation or conjecture.” McGehee v. State 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997). We consider only the evidence “supporting the verdict,” and we neither “weigh the evidence presented at trial, as that is a matter for the factfinder,” nor “weigh the credibility of the witnesses.” Bell v. State, 334 Ark. 285, 292, 973 S.W.2d 806, 810 (1998).

In our death-penalty cases, however, we have been remarkably inconsistent in describing the standard to be applied when reviewing the sufficiency of the evidence supporting a jury’s finding that an aggravating circumstance exists beyond a reasonable doubt. In Miller v. State, 269 Ark. 341, 354, 605 S.W.2d 430, 438 (1980), we said that a trial court should submit an aggravating circumstance to the jury if the circumstance is supported by “any evidence . . . however slight.” We further indicated that, when reviewing the sufficiency of the evidence supporting an aggravating circumstance, we would “not require the same degree of proof to sustain a jury finding that an aggravating or mitigating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime.” 269 Ark. at 355, 605 S.W.2d at 439.

A fair reading of the Miller case and the cases that have followed it, see Dansby v. State, 319 Ark. 506, 524, 893 S.W.2d 331, 341 (1995); Wainwright v. State, 302 Ark. 371, 385, 790 S.W.2d 420, 427 (1990); Parker v. State, 300 Ark. 360, 368-69, 779 S.W.2d 156, 160 (1989); Clines v. State, 280 Ark. 77, 92, 656 S.W.2d 684, 691 (1983); Miller v. State, 280 Ark. 551, 559, 660 S.W.2d 163, 167 (1983)(Hays, J., concurring), suggests that, in reviewing the sufficiency of the evidence supporting a jury’s aggravated-circumstance finding, we apply a standard different from, and less demanding than, the standard applied when reviewing the sufficiency of the evidence supporting a jury’s finding of guilt.

In the case now before us, the majority, correctly in my view, departs from that precedent and holds, contrary to the Miller decision, that an aggravated-circumstance finding must be supported by “substantial evidence,” which is “the same degree of proof. . . require[d] to sustain a conviction . . . .” Miller v. State, 269 Ark. at 355, 605 S.W.2d at 439. In determining whether an accused is guilty of an offense, and in determining whether an aggravating circumstance exists, the jury applies the very same standard — i.e., “beyond a reasonable doubt.” It is only logical that this Court apply the same standard on appeal — i.e., “substantial evidence” — when reviewing the sufficiency of the evidence supporting those jury determinations.

Despite our statements in our 1980 Miller opinion, we have applied, in at least four cases, the “substantial evidence” standard when reviewing the sufficiency of the evidence supporting an aggravated-circumstance finding. See Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998); Echols v. State, 326 Ark. 917, 988, 936 S.W.2d 509, 546 (1996); Sheridan v. State, 313 Ark. 23, 30-32, 852 S.W.2d 772, 775-77 (1993); Miller v. State, 280 Ark. 551, 554, 660 S.W.2d 163, 165 (1983).

Although I agree with the majority’s application of the “substantial evidence” standard in this case, I find its reference to a second standard of review to be confusing. The majority first states, correctly, that a finding that an aggravating circumstance exists beyond a reasonable doubt must be supported by “substantial evidence.” It then states, however, that such a finding will be affirmed if, “taking the evidence in the light most favorable to the State, a rational trier of fact could find the aggravating circumstance to have existed beyond a reasonable doubt.”

This second standard, known as the “rational factfinder” standard, is applied in federal court when a habeas corpus petitioner challenges, under the Due Process Clause, the sufficiency of the evidence supporting a state court’s finding that an aggravating circumstance exists. Lewis v. Jeffers, 497 U.S. 764 (1990). The same standard applies in federal court when a habeas corpus petitioner challenges on due-process grounds the sufficiency of the evidence supporting a state-court conviction. Jackson v. Virginia, 443 U.S. 307 (1979).

Following Lewis v. Jeffers, supra, we applied the “rational factfinder” standard in at least two cases in which we considered the sufficiency of the evidence supporting an aggravated-circumstance finding. See Kemp v. State, 324 Ark. 178, 200, 919 S.W.2d 943, 953 (1996); Coulter v. State, 304 Ark. 527, 533, 804 S.W.2d 348, 351-52, cert. denied, 502 U.S. 829 (1991). See also Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995). In cases reviewing the sufficiency of the evidence supporting convictions, however, we have consistently applied the “substantial evidence” standard rather than the federal standard announced in Jackson. In Jones v. State, 269 Ark. 119, 120, 598 S.W.2d 748, 749 (1980), we said that the language in Jackson v. Virginia did not “require [ ] us to abandon our decisions regarding the test of whether a jury verdict should stand in a criminal case. There must be substantial evidence to support such a decision.” See also Ricks v. State, 316 Ark. 601, 604, 873 S.W.2d 808, 810 (1994)(stating “the federal test as set forth in Jackson v. Virginia ... is of no particular relevance . . . .”).

Despite our application of the “rational factfinder” standard in the Kemp and Coulter cases, we should, for the sake of clarity and consistency, apply only the “substantial evidence” standard in any case in which we review the sufficiency of the evidence supporting either a conviction or a finding that an aggravated circumstance exists. Our “substantial evidence” standard is arguably a “rough equivalent ]” to the Jackson-Lewis standard, see Honda Motor Co. v. Oberg, 512 U.S. 415, 432 n.10 (1994), and there is no suggestion that our standard affords any less “due process” to an accused than the standard articulated in the Jackson and Lewis cases. See Tibbs v. Florida, 457 U.S. 31, 45 and n.21 (1982) (stating “the due process test of Jackson v. Virginia” “sets a lower limit on an appellate court’s definition of evidentiary sufficiency”). The majority opinion, by referring to, and perhaps applying, the “substantial evidence” and the “rational factfinder” standards of review, muddies an area of the law that is in need of clarity.

There is one final statement in the majority’s discussion of this point that I find troublesome. The majority correctly holds that a jury’s finding that an aggravating circumstance exists beyond a reasonable doubt must be supported by “substantial evidence.” It suggests, however, relying on language in the 1980 Miller case, that a trial court may submit an aggravating circumstance to the jury if the State introduces “any evidence, however slight,” in support of the aggravating circumstance.

The “substantial evidence” standard clearly requires a greater quantum of proof than the “any evidence, however slight” standard. The problem with the majority’s suggestion, then, is obvious. A rule allowing a trial court to submit an aggravating circumstance to the jury upon a lower evidentiary threshold, such as “any evidence, however slight,” will always result in a reversal if a jury finds the existence of an aggravating circumstance when the evidence supporting the aggravating circumstance is anything less than “substantial.” Thus, if this Court is to apply the “substantial evidence” standard in reviewing the sufficiency of the evidence supporting a jury’s finding that an aggravated circumstance exists, then that is the standard that a trial court should apply in determining whether to submit an aggravating circumstance to the jury. For the sake of judicial economy, a trial court should not submit an aggravating circumstance to the jury unless there is substantial evidence, not merely slight evidence, in support of it.

2. “Especially cruel or depraved manner”

Applying the “substantial evidence” standard, I cannot agree with the majority’s decision to affirm Mr. Willett’s death sentence based upon the “especially cruel or depraved manner” aggravating circumstance set forth in Ark. Code Ann. § 5-4-604(8) (Repl. 1997). In my view, there is insufficient evidence to support the jury’s finding that this aggravating circumstance existed beyond a reasonable doubt.

According to § 5-4-604(8)(A), a defendant who commits a capital murder in “an especially cruel or depraved manner” may be subject to the death penalty. In the case at bar, the jury was instructed on the entire statute, but the State does not argue, and the majority opinion does not suggest, that Mr. Willett murdered his son and brother in an “especially depraved manner.” Indeed, the record contains absolutely no evidence suggesting that the murders fall within that provision.

The question is whether these victims were murdered in an “especially cruel manner.” Section 5-4-604(8)(B) provides that “a capital murder is committed in an especially cruel manner when”

as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death. [Emphasis supplied.]

As there is neither argument from the State, nor any suggestion from the majority, nor any evidence in the record that Mr. Willett “tortured” his victims within the meaning of the above statute, the precise issue is whether this case falls within the “mental anguish” or “serious physical abuse” provisions.

According to the majority, there is substantial evidence (1) that Mr. Willett intended to inflict “mental anguish” on his son Eric prior to his death and that Eric actually suffered “mental anguish”; and (2) that Mr. Willett intended to inflict “serious physical abuse” on his brother Roger prior to his death and that Roger actually suffered such abuse before he died.

Even if it could be conceded that Eric was uncertain “as to his ultimate fate” in the last moments of his life and that Roger suffered “serious physical abuse” before he died, there is absolutely no evidence to show that Mr. Willett intended to inflict such forms of “cruelty” on his two victims.

The record leaves no doubt that Mr. Willett murdered his son and brother, and attempted to kill himself and his other children, because he feared that the Department of Human Services, which had been investigating his family, was engaged in a “conspiracy” to “take away” custody of Mr. Willett’s children and brother. Mr. Willett’s statement, which was controverted by none of the State’s evidence, as well as all of his actions, established that Mr. Willett’s intention was to commit the murders quickly, without causing his victims to suffer, so that he and his family could all go “to the Lord.” The State had the burden of presenting substantial evidence in support of the aggravating circumstance it alleged, Greene v. State, supra, and that burden was not met. There is no evidence that Mr. Willett bore any animosity toward the victims, much less any evidence that he intended to treat them in an “especially cruel manner.”

On account of this insufficiency in the evidence, Mr. Willett’s sentence of death should be reversed and the case remanded for a resentencing procedure.

I respectfully dissent.

Imber, J., joins in part one of this opinion.