author: Jack Holt, Jr., Chief Justice.

text:
    Thomas Jeffrey TACKETT v. STATE of Arkansas
    CR 91-274
    822 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      Bynum & Kizer, by: Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., Elizabeth A. Vines, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In the second trial of this case, the appellant, Thomas Jeffrey Tackett, was convicted of manslaughter and sentenced to six years imprisonment. On appeal, his sole point for reversal is that the trial court erred in denying his motion to suppress evidence taken from the exterior of a vehicle in his possession, as such evidence was obtained by unlawful search and seizure. We disagree, and affirm the conviction and sentence.

On March 24, 1983, Tackett was involved in an automobile accident which resulted in the death of Nancy House, who was riding in the other car. Another passenger, Denise Barrentine, lapsed into a coma as the result of her injuries. The driver of the other car survived. Tackett was charged and convicted of manslaughter, for the death of Ms. House, and leaving the scene of the accident. The conviction was affirmed by the Arkansas Court of Appeals. Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984).

Subsequently, in 1987, Ms. Barrentine died, and Tackett was charged with manslaughter in her death. He was convicted for this offense as well but, on appeal, this court reversed and remanded for a new trial because evidence of Tackett’s prior conviction, arising out of the same incident, was used at his trial. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). From the second trial, Tackett brings this appeal.

As mentioned, the automobile accident occurred on March 24,1983. Later that day, Tackett was taken to the police station and administered his Miranda rights, following which he gave a statement concerning the accident. Although the record is vague, he was then apparently placed under arrest.

Six days later, on March 30, Lieutenant James Hale and Trooper Roger McLemore, without a warrant or express consent from Tackett, removed evidence from the exterior of Tackett’s van, which was located in what apparently was a public parking lot, across the street from the county courthouse. Officer McLemore testified the van was driven there by Tackett’s wife on March 24 when Tackett was requested to come to the police station.

While on the parking lot, the officers first photographed the van and then removed the front bumper, the grill, a piece of molding from the front fender, and the front headlight frame. Paint scrapings were also taken from the front of the van. The evidence was later used at trial to establish that Tackett had intentionally bumped the rear end of the other vehicle.

Tackett acknowledges the longstanding principle that one has a lesser expectation of privacy in a motor vehicle than in one’s person or residence. See Cardwell v. Lewis, 417 U.S. 583 (1974) (plurality opinion); California v. Carney, 471 U.S. 386 (1985). He further recognizes that previous cases allowing the removal, without a warrant, of paint scrapings and other minor pieces of evidence from vehicles have been upheld, where the police had probable cause. See Cardwell v. Lewis, supra (examination of and removal of paint scrapings from exterior of vehicle); Watkins v. State, 296 Ark. 345, 756 S.W.2d 907 (1988) (inspection of inner license plate); Booth v. State, 26 Ark. App. 115, 761 S.W.2d 607 (1989) (removal of paint scrapings and broken glass particles from trailer). Tackett argues, however, that the removal of auto parts from his van was more intrusive, and essentially amounted to an unlawful seizure of the entire car. He further challenges whether the police had probable cause or sufficient exigent circumstances to justify the search and seizure.

The police had ample probable cause to believe the van was involved in a hit-and-run accident. One witness observed a blue and white van, matching the description of Tackett’s vehicle, driving several feet behind the other car, moments before the accident occurred. A liquor store owner identified Tackett as having entered her store to purchase beer, briefly before the time of the accident. The driver of the other vehicle told the first observer on the scene that she had been run off the road by a blue and white van. Officer McLemore went to Tackett’s residence following the accident and saw a blue and white van parked in the yard. Tackett admitted to Officer McLemore that he had “seen” an accident on the highway, and accompanied the officer to police headquarters. The van was driven by Tackett’s wife to a parking lot across the street from the courthouse. The record is somewhat vague as to the exact character of the lot. Obviously, it was a public area.

As to the existence of exigent circumstances, Tackett points to the case of Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). There, we invalidated the warrantless seizure of an entire vehicle, parked in the rear of a private residence, because there was no indication the vehicle would have been removed or that the suspect would have had access to it before a warrant could be obtained.

Professor LaFave comments, citing California v. Carney, supra, that the current view is that no warrant is needed, even absent true exigent circumstances. “This is because. . .proceeding without a warrant is justified not merely by the vehicle’s ‘capability to be quickly moved,’ but also by the fact that ‘the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.’ ” W. R. LaFave, Search and Seizure, Vol. 11 § 7.3(a) (2d Ed. 1987).

In this light, we note that, unlike the vehicle in Freeman, the van driven by Tackett was parked in a public area.

When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes temporary or otherwise — the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily movable by the turn of an ignition key . . . Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.

California v. Carney, 471 U.S. at 393 (Emphasis added.) Although it does not specifically address the issue of exigent circumstances where a vehicle is found in a public place, our Rule of Criminal Procedure 14.1, relating to vehicular searches and seizures, is not inconsistent with Carney and with the view expressed by Professor LaFave, and mentions a showing of exigent circumstances only in connection with vehicles located in a private area. The rule provides in relevant part:

(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other area open to the public,
(ii) in a private area unlawfully entered by the vehicle; or
(iii) in a private area lawfully entered by the vehicle, provided that exigent circumstances require immediate detention, search, and seizure to prevent destruction or removal of the things subject to seizure.

Ark. R. Crim. P. 14.1(a) (emphasis added).

In sum, Tackett had no right to privacy in the exterior of his van, which was parked in a public area; and, where probable cause existed, the search and seizure of the paint scrapings and auto parts was not unreasonable under the Fourth Amendment.

Affirmed.

       The van was actually owned by Tacketts’ brother; however, it is undisputed Tackett had permission to drive it and was in control and possession of the van for purposes of standing.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Prince JOHNSON v. STATE of Arkansas
    CR 91-173
    CR 91-214
    823 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      William R. Simpson, Jr., Public Defender, Thomas B. Devine III, Deputy Public Defender, by: Didi H. Sailings and Brett Qualls, Asst. Public Defenders, for appellant.

      Winston Bryant, Att’y Gen., by: Melissa K. Rust and Teena L. White, Asst. Att’ys Gen., for appellee.
   Steele Hays, Justice.

In late April 1990, Little Rock and Pulaski County experienced several aggravated robberies. On April 26 a county liquor store was robbed and two clerks were murdered. Appellant Prince Johnson, sixteen years of age, was charged with two counts of aggravated robbery committed on April 22,1990, and with two counts of capital murder committed on April 26, 1990. He was tried and convicted in separate trials.

Appellant has appealed from the judgments of conviction and the two appeals are consolidated because they present an issue common to both: whether inculpatory statements Johnson made to police officers should have been suppressed. A second point of error concerns the trial court’s denial of a motion to transfer the aggravated robbery counts to Juvenile Division.

I

Appellant challenges the denial of his motion to suppress on three grounds: 1) The police initiated questioning after appellant had asserted his right to remain silent; 2) appellant was not brought before a judicial officer in a timely fashion; and 3) the statements were involuntary under the totality of the circumstances.

Appellant was arrested and booked at 10:30 p.m. on Thursday, May 3, 1990. Carl Beadle, a detective with the Pulaski County Sheriffs Department, first talked to appellant about 8:30 the next morning. At the suppression hearing Beadle was first asked whether the appellant wanted to talk about the murders:

Q: Okay. And did you ask Prince Johnson if he wanted to talk to you about it at that time?
A: Yes.
Q: And what did he say?
A: He did not.
Q: All right, and what did you do?
A: Uh—
Q: Let me ask this before you answer. What did he want to do?
A: He wanted to talk about some incidents at Little Rock.
Q: Okay. Some other crimes?
A: Yes.
Q: All right. And what did you do after hearing that?
A: We contacted Little Rock Police Department.

Appellant was then picked up by the Little Rock police who questioned him about the previous robberies. Appellant was returned to the sheriffs department late that afternoon and Beadle questioned him again. The court summarized the testimony concerning the sequence of events of May 3:

Defendant proceeded to speak of robberies he committed in Little Rock. Defendant was then turned over to Little Rock Police officers who again advised the defendant of his rights pursuant to Miranda. Defendant then gave voluntary statements to Little Rock officers concerning the alleged Little Rock aggravated robbery charges. While he was speaking with Little Rock officers, defendant gave spontaneous statements regarding the alleged murders in this case. According to testimony, Little Rock officers did not question the defendant about the alleged homicides, nor did they take a written or recorded statement, but instead advised the defendant to wait to talk about that case to Pulaski County deputies when he returned to the Pulaski County jail. At approximately 4:30 p.m. on the same day, the defendant gave a full and voluntary statement to Sergeant Beadle after having been rewarned of his rights pursuant to Miranda.

A.

Right to Remain Silent

Appellant contends the 4:30 p.m. statement to Beadle was in violation of Miranda because he had indicated earlier in the day that he did not want to talk to police — that he gave a statement only after further interrogation.

Custodial statements are presumed involuntary and the state has the burden of proving otherwise. Shaw v. State, 299 Ark. 474, 733 S.W.2d 827 (1989). In reviewing the trial court’s denial of the motion to suppress, this court makes an independent determination based on the totality of the circumstances and reverses the trial court only if the decision was clearly against a preponderance of the evidence. Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990). The credibility of the witnesses who testify to the circumstances surrounding the defendant’s custodial statement is for the trial court to determine. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). In reviewing a ruling on a motion to suppress evidence, we view the evidence in the light most favorable to the state. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

Within the context of an independent review our search focuses on whether the accused wished to remain silent and gave such expression to that desire that any statements made thereafter in response to interrogation are in violation of Miranda-.

The individual is always free to exercise the privilege to remain silent and thus, if he “indicates in any manner, at anytime prior to or during questioning, that he wishes to remain silent, the interrogation must cease,” Miranda v. Arizona, 384 U.S. 436 (1966).

Appellant concedes that Beadle’s later testimony characterized appellant’s remarks as unresponsive:

Q: Did the Defendant ever say that he did not want to talk to you about Art’s Liquor Store murders?
A: No.
Q. Okay. And when the Defendant was brought back to Pulaski County Sheriffs Office that afternoon, did the Defendant ever — Did he want to talk to you then about the Art’s Liquor Store murders?
A: Yes.
Q: Okay.
Q: He wanted to talk to you about the liquor store, I mean, the Little Rock aggravated robberies at first?
A: Right.
Q: And you weren’t involved in that case?
A: That’s correct.
Q: So, you called Little Rock to have him picked up? A: Right.
Q: But at no time during the whole day, the morning, or in the afternoon or the evening, did he ever say he didn’t want to talk to you about the Arch Street liquor store?
A: That’s true.

Beadle was questioned further by the trial judge:

Q: Deputy Beadle, I want to make sure I understand what was said here.
A: Yes, sir.
Q: Did this Defendant, during this session after eight thirty or eight forty, ever refuse to tell you that he did not want to give you a statement about this Arch Street affair?
A: No, sir, he did not.
Q: So, when you said he wouldn’t, did you mean that he didn’t, or that he refused to give you one, sir?
A: We told him that we wanted to talk to him about the
Arch Street liquor store, and he said that he didn’t know anything about that, and then he went right into some stuff at the Little Rock Police Department.
Q: So, he never did, in fact, say I don’t want to talk to you about that or anything of that nature to you in regard to that statement?
A: No, sir, he did not.

Appellant contends we should construe Beadle’s testimony as indicating that appellant expressed a desire not to talk about the murders. But while Beadle’s initial response is arguably ambiguous, it is clear from his testimony as a whole that appellant did not assert a right to remain silent and such discrepancies are for the trial court to resolve. The trial judge explored that aspect of the suppression testimony with some care and we are not persuaded that he erred in his ruling.

B.

Appellant Was Not Brought Before a Judicial Officer in a Timely Fashion

Appellant urges he was not brought before a judicial officer in a timely fashion as required by Ark. R. Crim. P. 8.1 and Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).

Appellant was arrested at 10:30 p.m. on Thursday, May 3, 1990, and arraigned at 9:00 a.m. on Monday, May 7. He argues this was not a timely fashion as required by Rule 8.1 and, therefore, the confessions taken during that period should be suppressed. There is no merit to the argument.

In Duncan, supra, we established a three part test to determine when a statement should be suppressed for a violation of Rule 8.1: 1) The delay must be unnecessary, 2) the evidence must be prejudicial, and 3) the evidence must be reasonably related to the delay. Appellant argues all three prongs have been met.

While the evidence was clearly prejudicial, the trial court found that the delay was not unnecessary and that the statements by appellant were not reasonably related to any delay. Appellant disputes both these findings.

Unnecessary Delay

The record indicates the county municipal court does not ordinarily sit on Friday unless specific arrangements are made. Appellant argues there was evidence that a particular form, his Arrest and Disposition Report (ADR), was deliberately misplaced. He contends the missing ADR prevented his being arraigned until Monday morning, May 7.

Appellant points out that his statement about the robberies to the Little Rock police was given at approximately 10:40 a.m. on Friday and the statement about the murders to the Pulaski Sheriffs Office was given about 4:30 p.m. that same day. He argues that had he been arraigned on Friday, court would have been held about 10:00 a.m., that he would have been provided with an attorney, that the attorney would have advised him not to make a statement, and any statement taken without his attorney would have been a violation of Massiah v. United States, 377 U.S. 201 (1964). However, the proof concerning the misplacement of the ADR was conflicting and appellants brief concedes it is not clear what happened. The trial court found there was no deliberate action by the police and we cannot say that finding was clearly against the preponderance of the evidence.

While we concur in the trial court’s finding in this regard, appellant’s reference to a recent decision of the United States Supreme Court, County of Riverside v. McLaughlin,_U.S. _, 111 S. Ct. 1661 (1991), prompts additional comment.

In McLaughlin the Supreme Court fixed the maximum delay for arraignment at forty-eight hours, pointing out at the same time that a probable cause determination would not pass constitutional muster simply because it is occurs within forty-eight hours:

Such a hearing may nonetheless violate Gerstien if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill-will against the arrested individual, or delay for delay’s sake.

After forty-eight hours, however, the burden of proof shifts to the state:

Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to olfer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours. [Our emphasis.]

Thus, under McLaughlin a delay in excess of forty-eight hours is constitutionally unreasonable even if an intervening weekend caused the delay. The court elaborated on this point:

The record indicates, however, that the County’s current policy and practice do not comport fully with the principles we have outlined. The County’s current policy is to offer combined proceedings within two days, exclusive of Saturdays, Sundays, or holidays. As a result, persons arrested on Thursday may have to wait until the following Monday before they receive a probable cause determination. The delay is even longer if there is an intervening holiday. Thus, the court’s regular practice exceeds the 48-hour period we deem constitutionally permissible, meaning that the County is not immune from systemic challenges, such as this class action.

It should be noted that no issues of suppression of custodial statements were decided in McLaughlin and that decision does not direct a different result in the case now before us. McLaughlin involved a class action challenging by declaratory judgment the county’s procedure for probable cause determinations. Thus, although the delay in appellant’s arraignment exceeds the time specified in McLaughlin, that is simply one prong of the Duncan test, which we now address.

Relationship of Evidence to Delay

In order to suppress evidence taken during confinement, under Duncan, a causal connection between the delay and the confession must be shown. No connection has been shown in this case. As the trial court pointed out, appellant waived his rights and agreed to give a statement before any judge would have been available. Consequently, appellant’s statement to the police was not attributable to the delay.

In Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990), confronted with a similar argument, we found that inculpatory statements were not related to a delay of comparable duration, but rather to the desire of the accused to negotiate a favorable plea bargain with authorities. This was evidenced by Ryan’s request at the first available opportunity, and before the delay, to talk to federal authorities. By like token, Prince Johnson made it clear at the outset that he was willing to talk to the police about crimes he had been involved in and the trial court correctly found that there was no causal connection between appellant’s statements and any delays.

C.

The Statements Made by Appellant Were Involuntary When the Totality of All the Circumstances Are Considered.

Appellant maintains that under the totality of the circumstances his statements to the police and deputies were not voluntary. Appellant relies on his immaturity, inexperience with the law, the absence of an adult family member when the statements were made and the delay in his arraignment, which we have already discussed. But we are not persuaded by the argument. The trial court rejected these contentions after hearing testimony in considerable detail establishing that the confessions were knowingly and voluntarily made. We are not willing to overturn those findings. See Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).

II

On June 22, 1990, appellant filed a motion requesting transfer of the case involving aggravated robberies to juvenile court, pursuant to Ark. Code Ann. § 9-27-318 (1987). At an omnibus hearing on October 26,1990, the motion to transfer was considered by the trial court and denied. The evidence presented by appellant was limited to his age and the representation by his counsel that appellant had no prior involvement with the law. The only evidence presented by the state was that the crimes involved violence. Appellant contends the trial court erred in not ordering a transfer to juvenile court.

In Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991), the law affecting transfer to juvenile court was summarized:

[O]ur holdings are now clear that the standard for review is whether the circuit court’s denial of a transfer was clearly erroneous.
In making the transfer decision, the circuit court must consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense.
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Arkansas Code Ann. § 9-27-318(e) (1987). If the court finds that a juvenile should be tried as an adult, it must do so by clear and convincing evidence.
We have held in this regard that a criminal information is sufficient evidence to establish that the offense charged is of a serious and violent nature. We have further held the circuit court is not required to give equal weight to each of the above-mentioned statutory criteria. Nor is the court required to make specific findings of fact in a juvenile transfer case.

Under the above standards and guidelines, did the trial court err in failing to grant the motion to transfer? We hold it did not.

We considered the sufficiency of violence attached to a crime as a sufficient factor to refuse transfer in Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). The crime in Walker was first degree murder whereas the offenses in this case are aggravated robbery. Since counsel’s representation to the trial court that appellant had no prior criminal record does not constitute evidence (see Walker v. State, supra), the question before us is whether multiple counts of aggravated robbery are sufficient to withstand a motion for transfer when the opposing evidence is essentially the defendant’s age.

In Walker, the trial court had before it several factors favoring transfer: some evidence tended to negate premeditation; several witnesses testified that the defendant was “an average fourteen-year-old” and was polite, helpful, honest and neighborly, who played baseball, liked to fish and who had shown no previous tendency toward violence. Notwithstanding such testimony, we held the trial court’s reason for refusing transfer was sufficient.

While the charge here is not identical to Walker, it is nonetheless serious. First degree murder and aggravated robbery are both class Y felonies. The difference is that in murder, violence is necessarily present and though aggravated robbery can be completed without the actual use of violence [Ark. Code Ann.' § 5-12-103 (1987)], nevertheless, there are policy reasons why the offenses are treated comparably by the legislature and the trial court could take note of that parity. While we are not here concerned with murder, as in Walker, the mitigating factors presented in Walker are largely lacking here and this appellant is two years older than in Walker.

Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991), involved sixteen and seventeen-year-old defendants who were charged with aggravated assault, Ark. Code Ann. § 5-13-204 (1987), a class D felony, for a shooting that occurred while appellants were in a crowd of people at Riverfest. That was the only evidence presented by the state and appellants presented no evidence to support transfer. Based on the state’s evidence we could not say that the trial court’s finding was clearly against the preponderance of the evidence. Nor can we here conclude the trial court’s finding was clearly against the preponderance of the evidence.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, and pursuant to Ark. R. Crim. P. 36.24, an examination of the complete record has been made for any prejudicial error which may have been objected to below, but not argued on appeal.

For the reasons stated, the judgment appealed from is affirmed.


author: David Newbern, Justice.

text:
    Charles GRIFFIN v. STATE of Arkansas
    CR 91-164
    823 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      Baim, Gunti, Mouser, DeSimone & Robinson, by: Greg N. Robinson, for appellant.

      Winston Bryant, Att’y Gen., by: Elizabeth A. Vines, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This appeal arises from Charles Griffin’s convictions of rape and burglary. He contends the Trial Court erred in: (1) allowing his prior convictions of kidnapping, theft, and burglary to be used for impeachment purposes, (2) not allowing him to waive the habitual offender bifurcated trial procedure, and (3) failing to grant a mistrial when a witness’s testimony indicated Griffin was incarcerated at the Department of Correction. We affirm the conviction.

There was evidence from which the jury could have concluded the following facts: Tracy Haynie and a friend were standing outside Haynie’s home when Griffin, who was traveling on foot, asked to use the bathroom. Mr. Haynie refused to take Griffin inside, but allowed him to use the yard. Haynie’s wife, Mattie, and a one-year-old son were inside. Haynie and his friend waited until Griffin had left the yard and had walked two blocks. They then left.

A little later, Mrs. Haynie heard knocking on the front door. She asked the identity of the person there but received no response. She then heard the person leave the front porch, and a few minutes later she heard beating on the side window. After the beating stopped, Griffin kicked in the front door, entered the house, knocked the telephone from Mrs. Haynie’s hand, and slapped her. Griffin told Mrs. Haynie her husband owed him money. Griffin then picked up the baby, threw him to the end of the couch, and raped Mrs. Haynie. Mrs. Haynie testified that Griffin told her he knew her from a bar. The Haynies denied prior acquaintance with Griffin.

Detective Ursery came to the Haynie home upon being informed Mrs. Haynie had been raped. He found Mrs. Haynie in an emotional state. She gave a description of her assailant, which was dispatched over police radio. Mrs. Haynie told Ursery the man was carrying a transistor radio. Officer Koutouc picked up Griffin, who was carrying a transistor radio, fourteen blocks from the Haynie home. Griffin said he was jogging and had just been with his girlfriend.

Griffin was taken to the Haynie home where Mr. Haynie identified him as the person who had been in the yard earlier. The officers placed Griffin under arrest and took him to the hospital where Mrs. Haynie identified him as her assailant.

Griffin said he had known Mrs. Haynie for three weeks prior to the incident and had had sexual relations with her three times. He stated Mrs. Haynie consented to sexual intercourse with him on the evening in question.

Griffin was charged as an habitual offender with burglary and rape. Defense counsel moved in limine to exclude evidence of Griffin’s prior convictions and to waive the habitual offender bifurcated trial procedure. Both motions were denied, and the jury found Griffin guilty of both charges and sentenced him to two forty-year prison terms.

1. Prior convictions

Griffin alleges the Trial Court erred by allowing his prior convictions to be used for impeachment purposes under A.R.E. 609(a)(1) (1991). He argues allowing the State to introduce convictions similar to the charged offense only to show he was a bad person likely to commit the offenses repeatedly was highly prejudicial.

We find no abuse of discretion. Rule 609(a)(1) provides in part that,

[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness.

The Trial Court has considerable discretion in determining whether the probative value of a prior conviction outweighs its prejudicial effect, and that decision will not be reversed absent abuse. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988).

When a defendant chooses to testify, we have consistently allowed prior convictions to be used for impeachment, even when the convictions are of crimes similar to the charged offense. In Pollard v. State, supra, the appellant was charged with theft and argued the Trial Court should have excluded his prior convictions of grand larceny under Rule 609(a)(1). The appellant’s proffered testimony would have placed his credibility in issue and contradicted the victim’s version of the facts. There was no abuse of discretion in ruling the probative value of the convictions out-weighed their prejudicial effect. See also Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982).

Griffin cites Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), in support of his argument that the prejudicial effect of the prior convictions outweighed their probative value. In the Jones case we held that a prior plea of nolo contendere to rape of a child could not be used for impeachment pursuant to A.R.E. 609(a) in a case in which a similar offense was charged because the jury would be unduly prejudiced due to the nature of the offense. We wrote,

there are sometimes strong reasons for excluding such proof because of the pressure on lay jurors to believe that “if he did it before he probably did so this time.” [Citation omitted.] That is especially true in the case at bar, because sexual abuse of a child is a particularly shameful and outrageous crime.

In George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), reh. denied, 306 Ark. 374-A, 818 S.W.2d 951 (1991), the defendant was accused of sexually abusing a small child, and the issue arose whether a previous conviction of a similar offense could be used to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident” as permitted by A.R.E. 404(b). The Trial Court admitted the evidence, and this Court affirmed, stating that the Jones case was overruled to the extent it conflicted.

The Jones case was not in direct conflict with the decision in the George case, although both dealt with prior convictions, because A.R.E. 609(a) (1) was specifically at issue in the Jones case, not A.R.E. 404(b). The issue in the Jones case, as here, was whether a prior conviction could be used for impeach-

ment rather than whether the prior conviction could be used to show motive, etc. We have, however, limited the Jones case to situations where the prior offense is likely to recur as the result of a perversion. For example, in Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), Simmons was convicted of capital felony murder with kidnapping as the underlying felony. He argued the Trial Court erred by allowing, as impeachment, evidence of a prior kidnapping conviction and cited the Jones case. We held the Jones case was not controlling because kidnapping, unlike sexual abuse of minors, is not the sort of offense that one is apt to commit again and again as the result of a perversion. See also Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984).

In the case now before us, Griffin’s prior convictions which were admitted pursuant to A.R.E. 609(a)(1) were of kidnapping, theft, and burglary. There is no similarity to the facts in the Jones case, and we cannot say the Trial Court abused his discretion in permitting the impeachment.

2. Waiver of bifurcated trial

Griffin argues that, as he was to testify in his own defense thus subjecting himself to impeachment on the basis of his prior convictions, the bifurcated trial procedure did not benefit him and he should have been allowed to waive it.

A previously convicted defendant who testifies in his own defense runs a risk that prior convictions will be exposed to the jury twice, once during cross-examination and again during the sentencing phase of the bifurcated trial procedure. Arkansas Code Ann. § 16-90-205 (1987) governs the manner of trying defendants who have been previously convicted. It provides for a bifurcated trial and does not provide for waiver. It states the bifurcated procedure “shall” be adhered to in cases involving habitual criminals.

3. Mistrial

The Trial Court recognized that prejudicial error might have occurred as the result of the prosecutor asking a question tending to elicit from a witness the information that Griffin was incarcerated. The Court predicted, however, that the evidence would not prove to be prejudicial because prior discussion with counsel had indicated Griffin would take the stand and reveal he had been previously convicted and was incarcerated. The Court proved to be correct, and we find no prejudice.

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Jesse Wayne SMITH v. STATE of Arkansas
    CR 91-179
    821 S.W.2d 774
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      Hurst Law Office, by: Q. Byrum Hurst, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Jesse Wayne Smith, appeals a decision of the Pike County Circuit Court denying his motions to dismiss the charge of manufacturing a controlled substance with intent to deliver. We find no error and affirm.

Appellant’s motions to dismiss were based on former jeopardy grounds. He argues he has once been placed in jeopardy of loss of liberty because a jury was sworn to hear his case. The facts giving rise to this appeal follow.

Appellant’s case was set for trial September 21, 1990. He was to be tried along with his co-defendant, George West, Jr. Jury selection for the consolidated trial began September 17, 1990. On the morning of September 17, 1990, ten jurors were approved by both defendants and the state when the jury panel was exhausted. The trial court recessed until a new jury panel could be assembled at approximately 3:00 p.m. that afternoon.

At some point during this process, appellant and his counsel engaged in plea negotiations with the state. Thus, when the second jury panel was formed, the new veniremen were notified they would be hearing only one case, that of appellant’s codendant West. In the afternoon hours of September 17,1990, two more jurors and an alternate juror were selected. Appellant’s counsel, who also represented West at this point, continued the selection process and exercised his last strike on one of the original ten jurors; the alternate juror replaced the stricken juror and another alternate was chosen. All thirteen jurors were .then sworn to hear the case against West and instructed to return for trial on September 21, 1990.

Appellant’s counsel then notified the trial court that appellant’s plea negotiations had been withdrawn due to appellant’s misunderstanding of the conditions of the suspended sentence. The trial court accepted the withdrawal and stated that the jurors should be instructed to return the next morning to be qualified for appellant’s case.

All but one of the jurors returned on September 18, 1990. With the exception of the one nonreturning juror, the first ten jurors, who were originally qualified for both defendants’ cases, were seated in the jury box. The additional jurors, who were chosen from the second panel and only qualified to hear West’s case, were also present in the courtroom. The selection and qualification proceedings for appellant’s case were thus set to begin.

Consistent with the selection procedure used on the previous day, the eleventh and twelfth jurors were selected as well as an alternate; the alternate then replaced the stricken juror and another alternate was chosen. The additional four jurors were qualified by both appellant and the state to hear appellant’s case. The four newly-qualified jurors were then sworn to hear appellant’s case. The other nine jurors had been qualified to hear appellant’s case, but because of the plea negotiations, had only been sworn for West’s case. Thus, the original nine jurors had not been sworn to hear appellant’s case. Because one of the nine jurors was not present for the proceedings held on September 18,1990, the trial court decided to wait until the morning of the trial to swear all of the jurors together. Thus, at the close of the proceedings on September 18, 1990, a full jury had not been sworn to hear appellant’s case.

Trial was still set for September 21,1990, but was continued on motion of appellant’s counsel due to a conflict of interest in representing the two defendants in a consolidated trial. The two cases were later severed and appellant’s trial was rescheduled for February 15,1991. On October 4,1990, and again on January 31, 1991, appellant filed written motions to dismiss the charge based on double jeopardy grounds. Appellant argued that a jury had been sworn to hear his case but that he had never been brought to trial. Appellant claimed that because the jury had been sworn but had never heard his case, jeopardy attached. On June 4,1991, the trial court entered an order denying, without explanation, appellant’s motion to dismiss. It is from this order that appellant appeals.

We have previously held that an order denying a motion to dismiss charges because of double jeopardy is an appealable decision. Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990); Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).

The Fifth Amendment to the United States Constitution states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]”

Article 2, Section 8 of the Arkansas Constitution states, “no person, for the same offense, shall be twice put in jeopardy of life or liberty[.]” With respect to double jeopardy, our statutes provide that:

A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn or,. . . unless the termination was justified by overruling necessity.

Ark. Code Ann. § 5-1-112 (1987).

We have previously interpreted these laws to mean that:

When the jury is finally sworn to try the case, jeopardy has attached to the accused and when, without the consent of the defendant, expressed or implied, the jury is discharged before the case is completed, then the constitutional right against double jeopardy may be invoked, except in cases of “overruling necessity” .... We have found overruling necessity in cases where the defense counsel was intoxicated or a juror was ill. [Citations omitted.]

Wilson v. State, 289 Ark. 141, 145, 712 S.W.2d 654, 656 (1986).

Appellant claims his liberty was jeopardized when the jury was sworn to hear his case. Thus, he argues, having once been placed in jeopardy of loss of liberty for the manufacturing charge, he cannot be tried for the charge and it should be dismissed. We do not agree that appellant has been placed in former jeopardy and therefore affirm.

Based on the facts discussed at the beginning of this opinion, we agree with the state’s argument and we conclude the jury was never sworn to hear appellant’s case. Although all twelve jurors and an alternate were qualified to hear his case, only four of them were actually sworn. The record is very clear that, because one of them was not present, the remaining jurors would be sworn when they all returned for appellant’s trial. That particular event, the return of the jurors to be sworn for appellant’s trial, has yet to occur.

The law recited above is very clear that jeopardy does not attach until the jury has been sworn. Wilson, supra. To this date, a jury has never been sworn to hear appellant’s case. Therefore, we conclude jeopardy has not attached and the trial court did not err in denying the motion to dismiss the charge on such grounds.

Affirmed.


author: Robert L. Brown, Justice. Robert H. Dudley, Justice,

text:
    George A. HALE, Jr. v. Cheryl J. HALE
    91-96
    822 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      Reid, Burge, Prevallet & Coleman, by: Robert L. Coleman, for appellant.

      Fendler, Gibson & Bearden, by: Mike Bearden, for appellee.
   Robert L. Brown, Justice.

The primary issue before us is whether a 119-acre farm given to the appellant, George A. Hale, Jr., by his parents during his marriage to the appellee, Cheryl J. Hale, and then used as collateral for a consolidated debt loan to both parties, constituted property that could be sold to satisfy all marital debt. The chancellor held that it could be, and the appellant appeals on grounds that this was error. We affirm the chancellor’s decision in part, but reverse and remand on other grounds.

The parties married in 1965, while both were attending college, and remained married for twenty-five years. Throughout their marriage, both husband and wife worked with the exception of about 2 '/2 years when Cheryl Hale obtained a higher degree in her profession of nursing. In 1975 the Hales moved to Mississippi County, where George Hale bought a 39-acre farm near his family’s farm. During their marriage George Hale farmed, and his parents, as part of their estate plan, made various gifts to him, including a 119-acre tract of farm land which is the subject of this appeal, an undivided one-third interest in 163.2 acres of farm land, and residential property consisting of 1.3 acres. They also made a joint gift to the Hales which consisted of 3.1 acres. The Hales took title to the 3.1 acres as tenants by the entirety, and built their home on this land.

In 1980, George Hale experienced difficulties in his farming operation due to a drought, and in 1985 he sold his one-third interest in the 163.2 acres for $44,000 and applied that money to pay joint debts. In 1986, he was forced to leave farming altogether. In September 1987, the parties consolidated their debts into a $170,000 loan from Consolidated Federal Savings & Loan and used the 3.1 acres held as tenants by the entirety, the 39 acres that George Hale purchased during their marriage, and George Hale’s 119-acre gift property as collateral for the loan. In March 1989, Cheryl Hale left her husband and ceased contributing to payment of the joint debt. George Hale continued to make the debt payments until August 1990, when his tenants vacated the property and the rental income stopped.

Cheryl Hale filed for divorce on January 17,1990, and the divorce was granted on December 21, 1990. As part of the proceedings, the chancellor had all of the real property appraised, including marital and non-marital property, and the property held as tenants by the entirety, and ordered that the property be sold to satisfy the parties’ consolidated debt loan and other marital debts. The chancellor further apportioned marital and non-marital property ánd ordered that the parties share equally in the surplus apportioned to marital property and that George Hale take all of the surplus apportioned to his non-marital property. The 3.1 acres on which the home was built, which was held by the parties as tenants by the entirety, was classified as marital property. The 119-acre gift property was classified as George Hale’s non-marital property. The chancellor’s order established the following procedure for satisfying marital debt and disbursing surplus funds:

14. The Court, therefore, finds and concludes:
(1) The 1.3-acre tract given to Defendant in 1976 is declared to be non-marital and of no consequence in this decision;
(2) The 119-acre tract given to Defendant in 1969 is also found and declared to be non-marital; however, it will be sold in order to retire the debts of the parties;
(3) The 39-acre tract is declared to be marital property and will be sold to pay marital debts;
(4) The 3.1-acre tract and home is declared to be marital property and will be sold to pay marital debts;
16. The Court further finds that. . . if there is any deficit owed to any of the creditors described hereinabove after the sale of the property described herein, the Court declares that both parties are equally responsible for the debts; this is not a declaration changing the status of the creditors; it is simply a declaration charging both of these parties with the payment of the debts; if there is a surplus after the payment of said debts, then said surplus will be divided between the parties by utilization of the appraisals; the home was appraised for $92,500.00, and it is marital property; the 39 acres was appraised for $40,950.00, and it is marital property; the 119 acres was appraised for $124,950.00, and it is non-marital; the total value of all real property shown by appraisals is $258,400.00, and of this amount, $133,450.00 is marital, representing approximately fifty-two percent (52%) of the total, and $124,950.00 is non-marital, representing approximately forty-eight percent (48 %) of the total; therefore, as to any surplus after sale of the property and payment of all debts, the parties will equally share fifty-two percent (52%) of any surplus, and the Defendant will be entitled to receive as his sole property forty-eight percent (48%) of any surplus. . . .

It is from this order as it applies to the 119 acres that the appellant raises this appeal.

We turn first to the statute that discusses division of marital and non-marital property.

(a) At the time a divorce decree is entered:
(1) (A) All marital property shall be distributed one-half O/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of property.
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.
(2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1), in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.
(b) For the purpose of this section, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired prior to marriage, or by gift, or by bequest, or by devise, or by descent;

Ark. Code Ann. § 9-12-315(a)(1) and (2), (b) (Supp. 1991). (Emphasis ours.)

George Hale argues that though the property division statute gives the chancellor latitude and discretion in reaching an equitable result, this pertains only to the division of marital property or property acquired by a party prior to marriage and has no bearing on gifts acquired during marriage. The 119 acres were clearly acquired by the appellant by gift during marriage, and the chancellor correctly found that the 119 acres constituted non-marital property. But he further ruled that the acreage should be sold in satisfaction of the consolidated debt and other marital debts as well.

The issue before us, then, is whether the chancellor had the discretion to order the sale of this non-marital property to satisfy all marital debts. We hold that his discretion was properly exercised regarding satisfaction of the consolidated debt loan but not with respect to other marital debts.

The appellant is correct that Ark. Code Ann. § 9-12-315(a)(2) provides for an equitable division of non-marital property given prior to marriage but does not make the same provision for gift property received during marriage. Were we to hold that the statute authorized a chancellor to divide non-marital gift property, we would be adding words to the statute that simply are not there. In prior cases, we have specifically refused to expand the property-division statute judicially to authorize the chancellor to divide non-marital property acquired by gift during marriage. Rather, we have limited the discretion of the chancellor under the statute to the division of property acquired prior to marriage, as the statute provides. See Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983 ); see also Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 443 (1990); Yockey v. Yockey, 25 Ark. App. 321, 758 S.W.2d 421 (1988). We have previously held that property received by descent, apparently during marriage, is not subject to division in a divorce action. See Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985). Since property acquired by descent and property acquired by gift are both set out as exceptions to marital property in § 9-12-315(b), George Hale argues that the Farris holding should govern the case before us.

As stated, we agree with the appellant that the statute does not authorize a chancellor to divide gift property received by one spouse during marriage. Nevertheless, in this case George Hale took his 119 acres and volunteered it as security for the consoldiated debt loan made by Commonwealth Federal. The chancellor recognized this agreement in his order when he stated that the case involves “the equitable distribution of marital debts and the utilization of marital as well as non-marital property given as collateral for some or all of those debts.” (Emphasis ours.) Although he did not have statutory authority to divide this gift property, it was appropriate for the chancellor to consider this mortgage agreement when considering payment of the marital debt owed to Commonwealth Federal. See Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); see also Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967). Because of the mortgage agreement, we affirm the chancellor’s order to apply the 119 acres to satisfy the Commonwealth Federal debt.

The same does not hold true for the chancellor’s use of the 119 acres to pay any other marital debts. To the extent that the chancellor’s formula provides for the sale of this property to satisfy other marital debts, we reverse on the basis that § 9-12-315 does not authorize the use of gift property received during marriage to be used for payment of such debts.

George Hale further challenges the chancellor’s formula in that it contemplates paying Cheryl Hale 26% of any surplus funds after payment of the marital debts. He is correct that the chancellor’s formula provides for a sale of all marital and non-marital property to satisfy these debts, and that after payment the parties would share in any surplus. The chancellor determined that George Hale should receive 48 % of surplus funds which was his distribution based on his non-marital property, and that he and Cheryl Hale should divide 52% of any surplus which would be the funds apportioned to marital property. Cheryl Hale would, therefore, be entitled to 26 % of any surplus as her share of the surplus due to marital property. It is the potential that Cheryl Hale might share in the surplus generated from the sale of his non-marital property that George Hale finds particularly objectionable.

The court’s order assigns the 119 acres an appraised value of $124,950; the 39 acres a value of $40,950; and the 3.1 acres, which was the homestead, a value of $92,500. The consolidated debt loan approximated $ 173,000 at time of divorce. We can conceive of a situation where the sale of the 119 acres might occasion surplus funds in which Cheryl Hale would have a 26 % interest. For example, were the 39 acres and 3.1 acres sold first to satisfy the consolidated debt loan, that would result in a substantial part of the proceeds from the sale of the 119 acres being distributed under the formula as surplus. Cheryl Hale, therefore, would receive 26 % of those proceeds, which as non-marital property, should go exclusively to George Hale. George Hale only mortgaged this acreage to secure the consolidated debt loan. It was not his intent to vest in his wife any interest in the surplus funds. Because that potential exists in this case, we reverse and remand for the chancellor to apportion the surplus funds in a manner which protects the appellant’s interest in those funds.

While neither party raises the point, the chancellor also included property held by the entirety — the 3.1 acre homestead — and designated it as marital property under his formula, applying the same percentages for the distribution of any surplus. This is error, since we have previously held that Ark. Code Ann. § 9-12-315 is not applicable to property held as tenants by the entirety. See Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). Here, again, the potential exists under the formula for there to be an unequal division of entirety property depending on whether the proceeds from the sale of the homestead are applied to payment of marital debt or distributed as surplus to the parties. If distributed as surplus funds, an unequal division would occur under the formula. We reverse the chancellor on this point and remand the case for reconsideration of his formula in light of this opinion. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).

For his final argument George Hale contends that, in the event we decide his gift property was appropriately applied to pay marital debt, we should also include Cheryl Hale’s inheritance to be received from her father’s estate. Our holding does not stand for the general proposition that gift property during marriage may be used to satisfy marital debt, but rather we have held that the 119 acres was appropriately applied to pay the consolidated debt loan because George Hale specifically mortgaged the property to secure that loan. We, therefore, do not reach the issue of Cheryl Hale’s inheritance.

Affirmed in part; reversed in part and remanded.

Dudley and Newbern, JJ., concur.

Robert H. Dudley, Justice,

concurring. I concur in the result reached in the majority opinion, but do not agree with the reasoning expressed in it.

This case involves the interpretation of Ark. Code Ann. § 9-12-315 (1987), the statute providing for the division of property upon divorce. The holding of the majority opinion is that by mortgaging his 119 acres of non-marital property, the appellant converted his non-marital property into security for a marital debt and relinquished any protected status for this property that he might have had under the division of property statute.

The cited statute provides for division of non-marital property upon divorce, but it does not provide for non-marital property becoming subject to marital debt upon the execution of a mortgage. The majority opinion admits that the Chancellor “did not have statutory authority to divide this gift property,” but then affirms its division. For its authority the majority opinion cites the cases of Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 311 (1982) and Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967). Neither case provides such authority. The Riegler case was decided long before the marital property statute was adopted, and the case simply does not discuss the issue, or anything close to it, even in dicta. Likewise, the Hackett case does not support the majority opinion. It provides that a Chancellor should consider the parties’ debts when dividing marital property, with which I wholly agree, but that is not the issue in the case before us. The issue in this case is whether a Chancellor can make non-marital property acquired during the marriage subject to division between the parties because of a marital debt to a third party.

The power to deprive a spouse of his or her non-marital property, as provided in the majority opinion, is wholly a judicially created power. The majority opinion admits this. Such a judicially created power in a divorce proceeding is contrary to our law, for we have long held that in divorce proceedings courts of equity are bound by statutory law and cannot exercise their inherent chancery powers. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979); Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958); Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944); Ex parte Helmert, 103 Ark. 571, 147 S.W.2d 1143 (1912). There is no other case in which we have judicially created divorce property division law.

Further, it seems that the majority opinion is internally inconsistent in this regard. It states that, under the statute, non-marital property acquired during the marriage is not subject to division. If it is not subject to division under the statute, it cannot be divided, because the divorce statute is the only basis of jurisdiction over the non-marital property.

In addition, it seems that the majority opinion creates some very practical problems. This judicially created power is not fully developed, and it is not clear how far it extends. It is not directly related to the marital debt, but, instead, is related only to the security given for the marital debt. Does this mean that it also comes into being when one gives a security interest on non-marital personal property, when one creates an equitable lien on similar property, or when one signs a guaranty agreement for a credit card? Does it apply if the property was acquired by devise as well as by gift?

While I do not agree with the reasoning of the majority opinion, I concur in the result because the applicable statute provides for just such a division of property. The applicable statute, Ark. Code Ann. § 9-12-315 (Supp. 1991), in pertinent part, provides:

DIVISION OF PROPERTY.
(a) At the time a divorce decree is entered:
(1) (A) All marital property shall be distributed one-half O/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of property.
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.
(2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1), in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage. [Emphasis added.]

The majority opinion reasons that since section (a)(2), quoted above, does not mention non-marital property acquired during the marriage, it must be excluded. I cannot agree and do not think that such an opinion is in conformity with legislative intent for two reasons.

First, there is no logic or reason for making a distinction between non-marital property acquired before marriage and that acquired after marriage, and we should not assume the legislative intent was to create a distinction without a rational basis. Further, while not addressing this precise issue, the court of appeals has discussed in general the issue of division of non-marital property but has never indicated that such a distinction might even possibly exist. See Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 443 (1990) and Pennybaker v. Pennybaker, 14 Ark. App. 252, 687 S.W.2d 524 (1985). The reason seems clear; there is no basis for such a distinction. In the same light, in Williford v. Williford, 280 Ark. 71, 76, 655 S.W.2d 398, 401 (1983), we wrote, “It should be noted that the chancellor is given broad powers under § 34-1214 [now Ark. Code Ann. § 9-12-315] to distribute all property in divorce, non-marital as well as marital, to achieve an equitable division.” (Emphasis supplied.)

Second, and more importantly, the legislature, in section (b)(1), clearly expressed its intent that all gifts, regardless of when acquired, are to be considered non-marital property:

(b) For the purpose of this section, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired prior to the marriage, or by gift, or by bequest, or by devise, or by descent; ....

Ark. Code Ann. § 9-12-315(b)(1) (Supp. 1991) (emphasis added).

A fair reading of the statute as a whole clearly demonstrates that the legislature intended to create only two classes of property, marital and non-marital. It intended that the division of property statute would deal with those two classes. There is no language in the statute which creates a third class, non-marital property which is subject to a mortgage securing marital debt. Instead, the applicable division of property statute was intended to apply to non-marital property acquired both before and after marriage. Accordingly, I concur with the result reached in the majority opinion, but do so only because the statute encompasses such a result.

Some of the language, and perhaps part of the holding, in Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985), is inconsistent with the majority opinion as well as this concurrence. While this precise point was not argued there, I would overrule Farris to the extent that it might be inconsistent.

Newbern, J., joins in this concurrence.


author: Ray S. Smith, Jr., Special Justice.

text:
    Forrest N. JENKINS; James R. Williford; Joe Taylor, III; and Citizens Bank of Marion v. Thomas B. GOLDSBY, Jr. and Mid-South Mortgage Company, Inc.
    90-168
    822 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      Borod & Kramer, by: F. Guthrie Castle, Jr., and Sloan, Rubens & Peeples, by: Kent J. Rubens, for appellants.

      Findler, Gibson, & Bearden, by: Michael R. Bearden, for appellee.

      Hilburn, Calhoun, Harper, Pruniski & Calhoun, Ltd., by: Scott E. Daniel, and James D. Causey, for appellees Thomas B. Goldsby, Jr., and Mid-South Mortgage Co., Inc.
   Ray S. Smith, Jr., Special Justice.

On January 30, 1989 Thomas B. Goldsby, Jr., and Mid-South Mortgage Company, Inc. (hereinafter referred to as appellees), filed a complaint in the Chancery Court of Crittenden County seeking an accounting, a declaratory judgment, rescission, a preliminary injunction, and restitution. Included in the allegations of the complaint were assertions that the stock sale agreement at issue was obtained by appellants as a result of unfair advantage, duress, overreaching and without consideration.

On February 20,1989, the appellants filed two motions. The first was a motion to extend the time for an answer and the second, a motion to require the appellees to comply with Ark. R. Civ. P. 9(b) to make their allegations more definite and certain. The appellants’ prayer also asked that the complaint be dismissed for failure to comply with Rule 9(b).

Both parties filed additional motions. The Court held a hearing on March 14, 1989, with all parties present. He subsequently entered an order scheduling depositions to begin on April 17, 1989, and gave appellees 30 days in which to amend their pleadings, stating with particularity the facts of coercion, duress and other matters. On April 7,1989, the appellees filed a motion to dismiss without prejudice under the provisions of Ark. R. Civ. P. 41(a).

On April 18, 1989, the appellants responded to the motion requesting that the Court dismiss with prejudice and for other sanctioned relief. On July 19, 1989, another hearing was held. After hearing the arguments of counsel the Court asked for authorities from the various counsel. A final hearing was held on November 22,1989, at which all counsel were present, and after argument, the Court entered its order holding in paragraphs 4 and 5 as follows:

4. The court disagrees and concludes that it is bound by the recent decision of the Arkansas Supreme Court which states that the right to a voluntary nonsuit is absolute.
5. The court further finds that sanctions should not be imposed and are not warranted because after the complaint was filed and in response to a motion to dismiss filed by the defendants, counsel for plaintiffs stated that she needed to review the basis for plaintiffs’ claims for fraud and conflict of interest and upon review filed a motion for nonsuit.

The Court also authorized the appellants to submit further evidence but acknowledged it was not changing its opinion, nor would it consider the exhibits. From this order, the appellants appealed, and we now affirm the Chancellor.

In the case now before us, within a 67 day period there was a complaint filed, motions filed to make more definite and certain and for taking of depositions, for which notice was given, and a motion to dismiss. Appellants raise two questions:

(1) Is the right of a voluntary nonsuit under Ark. R. Civ. P. 41 mandatory?
(2) How does Ark. R. Civ. P. Rule 11 apply where a voluntary nonsuit has been filed?.

We have held in both Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989), and Brown v. St. Paul Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (1989), that a voluntary nonsuit is an absolute right prior to final submission to a jury or to the court sitting as a jury, and in accordance with other conditions therein. The matter of the applicability of sanctions was fully reviewed and discussed in Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989).

In Bratton v. Gunn, supra, suit was filed alleging that an insurance agent had accepted premiums but did not obtain insurance coverage. This was denied by the agent, who subsequently filed a motion for summary judgment, attaching affidavits and documentary evidence as exhibits. No response to the motion for summary judgment was filed and, on the day before hearing, the appellee (plaintiff below) filed for and obtained a voluntary nonsuit. Shortly before the nonsuit was entered, the appellant (defendant below) filed a motion for Ark. R. Civ. P. Rule 11 sanctions, to which were attached an affidavit and other exhibits. Both parties appeared before the Trial Court for a hearing on the Rule 11 motion. No testimony was taken, no exhibits were introduced, and no record was made of the proceedings. The Trial Court entered its order in which it held that the motion for Rule 11 sanctions was without merit and that sanctions should not be granted.

Bratton v. Gunn, supra has many similarities to the case at bar in that no testimony was taken, no evidence was introduced and, although a record was made of the hearing, it was only argument of counsel. There we held that the imposition of sanctions is a serious matter to be handled with circumspection and that the Trial Court’s decision was due substantial deference. We also held that whether a violation of Rule 11 has occurred is a matter for the Court to determine and that while it involves matters of judgment and degree, it requires the Trial Court to consider evidence, which should be presented by the moving party alleging the violation of Rule 11. We concluded that, though there may have been sufficient conduct of the plaintiffs attorney to warrant a finding that Rule 11 was violated, the record did not reflect any evidence to substantiate such claim.

The burden is on the moving party to demonstrate error and to bring up a record which so demonstrates. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). When the appellant does not demonstrate error, we affirm. In neither the Bratton case, nor in the case on appeal herein, were exhibits introduced or testimony taken. A record was made in this case, as distinguished from the Bratton case, but the record was only on the arguments of counsel. There was no evidence introduced before the Court.

The Trial Court held that it was granting the motion for nonsuit and further held that it did not feel this was the type case to which Rule 11 should apply and for which sanctions should be granted. The appellants have presented nothing which would support a conclusion that this ruling was in error, including the correspondence placed into the record after final determination. Under the circumstances of this case, as reflected by the lack of any proof that the appellees had no factual basis for allegations of the complaint and the absence of properly pled Statute of Limitations defense, the Trial Court did not err in finding that Rule 11 sanctions were not warranted.

This Court cannot and does not give advisory opinions, so the request of the appellants that such be done must be denied. The Arkansas Rules of Civil Procedure are for the benefit, not only of attorneys but, more specifically, for the administrative procedures of the trial courts. Rule 11 is no exception, and under Arkansas law, though sanctions can be imposed and costs levied where the trial court feels it is warranted, such sanctions are not an arbitrary right, nor do they create an additional right in favor of either party.

Affirmed.

Special Justices Ted Boswell and Gregory G. Smith join in this opinion.

Háys, Glaze, Corbin and Brown, JJ., not participating.


author: Per Curiam. Robert H. Dudley, Justice,

text:
    Leon CAWOOD and Jack B. Hollingshead, on Behalf of Themselves and All Other Similarly Situated Motor Carrier Taxpayers v. Maurice SMITH, Director, Arkansas Highway & Transportation Department, et al.
    91-246
    824 S.W.2d 343
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      Eugene Sayre, for appellant.

      Jerry Malone, David Kaufman, Robert Wilson, Jerry C. Jones, Peter Kumpe, Daniel Barney, Pat Marón, Andrew Frey, Griffin Smith, Jr., Daniel J. Harold, and H. Maurice Mitchell', and Winston Bryant, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant’s motion to file belated brief is granted.

Dudley and Newbern, JJ., would dissent.

Robert H. Dudley, Justice,

dissenting. The majority has today voted to grant appellants’ motion to allow the filing of a belated abstract and oversized brief. I dissent and wish to set out my reasons.

The background to these motions is as follows. The trial court entered its final order on May 31,1991. The appellants gave notice of appeal on June 3, 1991.

The record was filed in this court on September 3,1991, and a briefing schedule was established. The appellants’ brief was due on October 13, 1991. On October 3, 1991, the appellants filed a timely motion for extension of time to file their brief. They were given thirty (30) days so their brief was due on November 13, 1991. On November 13, 1991, the appellants did not file their brief but, instead, obtained a two day extension making their brief due on November 15, 1991. They did not file their brief on November 15. Their attorney avers that at about 5:30 on the afternoon of the 15 th, a Friday, he completed the brief and called the Clerk of this court at his home at 6:00 p.m. and asked the Clerk if he would accept the brief as filed on the 15 th, to which the Clerk correctly responded, “No.” The attorney then tendered the brief on Monday morning, November 18, 1991, which was past the deadline.

Furthermore, the appellants’ attorney did not comply with the rules for filing a brief. In fact, the rules were flagrantly violated. The appellants were required to timely file seventeen (17) copies of their brief. See Rule 11 of the Rules of the Supreme Court and the Court of Appeals. They tendered one copy and, as set out, it was late. “ Unless leave of court is first obtained, the argument portion of briefs shall not exceed 30 pages in the case of printed briefs and 25 pages if typewritten.” Rule 8(c) (emphasis added). Appellants’ brief is printed, and the argument portion of the brief begins on page 161 and concludes on page 205, which amounts to forty-six (46) pages of argument. Rule 8(b) provides that briefs shall be “double spaced, except for quoted material, which may be single spaced and indented.” The appellants have deliberately violated this rule and included twenty (20) lengthy single spaced footnotes, some taking up almost half a page, which are not quoted material and are not indented, so that if appellants had followed the rule, their brief would be about fifteen (15) pages longer than the forty-six (46) pages shown by their pagination. Appellants did not first obtain leave of this court to file such an expanded brief. Instead, they have brazenly tendered the one copy, not seventeen (17), and it contains the equivalent of approximately sixty-one (61) pages of argument. I can only assume the reason appellants’ attorney tendered only one copy of his brief is that he did not anticipate this court would accept such a brief, and he did not want to waste money having the other sixteen (16) copies printed. A cursory examination of the argument portion of the appellants’ brief convinces me that the appellants’ attorney has not in good faith attempted to comply with the page limit. First, the single spaced footnotes are a willful effort to get around the rule, and second, the argument portion of the brief is deliberately verbose.

Rule 10 provides “if abstract and brief have not been filed by the appellant in civil cases within the time allowed by Rule 7 the court may dismiss the appeal or affirm the judgment or decree.” We have affirmed other cases under Rule 10, although the circumstances in those cases were that briefs were not timely filed. International Harvester Corp. v. Hardin, 264 Ark. 717, 723, 574 S.W.2d 260, 264 (1978) and Holleman v. Fowler, 248 Ark. 809, 454 S.W.2d 100 (1970). I do not know of any other case where we have allowed such a malignant disregard of our rules. We try not to be unduly harsh, but there is a limit beyond which we cannot go without becoming unfair to others. By granting these motions, I do not see how we can ever again enforce the page limit part of the rule, and thus, a part of appellate order is lost. The page limit is an integral part of the process by which we are able to take ten (10) cases per week under submission. It is a foundation of fairness for a high volume appellate court. Because of appellants’ violation of the rules of appellate procedure I would not allow the filing of the oversized argument portion of the brief, and I would give appellants three (3) days to comply with the rules, and if they did not comply within that time, I would dismiss the appeal and affirm the decree.

Newbern, J., joins in this dissent.


author: Per Curiam.

text:
    Robert FELLOWS v. STATE of Arkansas
    CR 91-156
    822 S.W.2d 845
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992

      John R. Hollis, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Robert Fellows was convicted in the Circuit Court of Flempstead County of multiple counts of burglary and theft of property and sentenced to one-hundred years imprisonment. He was represented at trial by John Hollis who did not tender the record on appeal to this court in a timely manner. In July 1991 we granted a motion for rule on the clerk, noting that Hollis had admitted that the record was tendered late due to his failure to file the record in this court in accordance with the prevailing rules of procedure. Fellows v. State, 306 Ark. 257, 810 S. W.2d 338 (1991). The appellant’s brief was scheduled to be filed August 10,1991, but was not received by that date. Counsel was contacted in November and again in December about the brief, but as of this date, more than five months after the brief should have been filed, counsel has not tendered a brief or taken any other action in the case. Appellant Fellows has now filed a motion seeking to have John Hollis relieved and other counsel appointed to represent him on appeal. Appellant states that counsel has failed to communicate with him and that there is a conflict of interest because the issue of counsel’s effectiveness will be raised as an issue on appeal.

The motion to relieve Mr. Hollis as counsel is denied because appellant has not offered facts sufficient to demonstrate that there is a conflict of interest between him and counsel such that counsel cannot provide the effective assistance of counsel guaranteed by the Sixth Amendment. The issue of counsel’s effectiveness at trial can be an issue on appeal only if it was properly raised in the trial court below. Appellant does not contend that the question of counsel’s effectiveness was ruled on by the trial court and a cursory review of the record does not reflect that the issue was raised below. See Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). Counsel has been directed by Per Curiam Order to appear on Monday, January 27, 1992, at 9:00 a.m. to show cause why he should not be held in contempt of this court for failure to file a timely appellant’s brief in this case. If information is adduced at that proceeding which indicates that counsel cannot provide effective assistance of counsel on appeal, appellant Fellows’ motion will be reconsidered. See Bogard v. State, 307 Ark. 427, 820 S.W.2d 276 (1991).

Motion denied; show cause order issued.


text:
    Robert FELLOWS v. STATE of Arkansas
    CR 91-156
    Supreme Court of Arkansas
    Opinion delivered January 13, 1992
   Per Curiam.

Appellant’s attorney John Hollis is directed to appear before this court at 9:00 a.m. on January 27,1992, to show cause why he should not be held in contempt of court for failure to file a brief in this case.


text:
    Thomas B. HARVEY v. Bill CLINTON, Governor of the State of Arkansas; Jim Guy Tucker, Lieutenant Governor and Acting Governor When the Governor is Absent from the State; William J. “Bill” McCuen, Secretary of State; Winston Bryant, Attorney General; and the Board of Apportionment
    91-346
    821 S.W.2d 777
    Supreme Court of Arkansas
    Opinion delivered January 10, 1992

      Charles Karr and W. Asa Hutchinson, for appellant.

      Winston Bryant, Att’y Gen., Tim Humphries, Asst. Att’y Gen., for appellees.
   Per Curiam.

Petitioner requests this court for a writ of mandamus compelling the respondents, as members of the Board of Apportionment (Board), to file their report of apportionment with the Secretary of State as required by Art. 8, § 4, of the Arkansas Constitution, as amended by Amendments 23 and 45 to the Constitution. Petitioner asserts the Board’s plan of apportionment was adopted on October 29, 1991, but never filed. Respondents answered, stating that the Board’s plan is under the jurisdiction of the federal court in Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990), and petitioner is premature until the federal court relinquishes jurisdiction of the Board’s plan. Respondents do not deny Petitioner’s claims that the Board adopted its apportionment plan on October 29,1991, and has failed to file it with the Secretary of State.

Section 4 of Article 8 provides as follows:

On or before February 1 immediately following each Federal census, said board shall reapportion the State for Representatives, and in each instance said board shall file its report with the Secretary of State, setting forth (a) the basis of population adopted for representatives; (b) the number of representatives assigned to each county; whereupon, after 30 days from such filing date, the apportionment thus made shall become effective unless proceedings for revision be instituted in the Supreme Court within said period. [As amended by Const. Amends. 23 and 45.] (Emphasis added.)

Further, Section 5 of Art. 8 places original jurisdiction with this court in reviewing the Board’s apportionment duties and reads as follows:

Original jurisdiction (to be exercised on application of any citizens and taxpayers) is hereby vested in the Supreme Court of the State (a) to compel (by mandamus or otherwise) the board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by the board in making such apportionment; provided any such application for revision shall be filed with said Court within 30 days after the filing of the report of apportionment by said board with the Secretary of State; if revised by the court, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon be and become a substitute for the apportionment made by the board. [As amended by Const. Amends. 23 and 45.]

From the above, the Board had the duty to file its report with the Secretary of State and that report becomes final unless revision proceedings are instituted within thirty days after its having been filed. Clearly, the Board is not relieved of its duty to file its report as directed under Article 8 of the Arkansas Constitution merely because litigation related to apportionment is pending in federal court. Original and exclusive jurisdiction is vested in this court to compel the Board to perform its duties as are provided by the Arkansas Constitution. See Rockefeller v. Smith, 246 Ark. 819, 440 S.W.2d 580 (1969). Because the Board’s plan of apportionment was adopted on October 29,1991, and never filed with the Secretary of State, we order the Board to file its plan forthwith. Petitioner’s other requests for relief, including revision of the Board’s apportionment plan, are premature until the plan is filed.