author:
Tom Glaze, Justice.
      John I. Purtle, Justice,

text:
    Neil S. FINLEY v. STATE of Arkansas
    CR 87-200
    748 S.W.2d 643
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988

      Larry Dean Kissee, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal arises from appellant’s request for post-conviction relief from a jury verdict on July 18, 1984, finding him guilty of burglary and theft charges, and another conviction judgment dated September 7, 1984, which resulted from appellant’s pleas of guilty to four additional counts of burglary and theft charges. The trial court rejected appellant’s contentions that he had been wrongfully denied the procedural safeguards of the Interstate Agreement on Detainers Act (IAD Act) and that his counsel had been ineffective by failing to invoke the IAD Act before and at the time of his convictions. Because the law and the record support the trial court’s holding, we affirm.

Appellant argues that Article IV of the IAD Act became applicable when the Izard County Circuit Court lodged detainers against him while in the custody of federal authorities on bank robbery charges. In this respect, appellant points to the court’s order dated March 29,1984, directing him to be transferred from federal detention to Izard County for arraignment and trial settings. On April 3,1984, the court’s bench warrant was served on appellant who, sometime in April 1984, appeared before the Izard County Circuit Court. Appellant pled innocent to all charges and then moved that the charges be severed. The trial court granted appellant’s severance motion and set July 16,1984, as the first trial date. After his arraignment, appellant was returned to federal custody. He later was returned to Izard County for the July 16,1984 trial and was convicted by a jury on one count of burglary and theft of property and given consecutive sentences of twenty years imprisonment on each crime. On September 7,1984, appellant pled guilty to the remaining counts of burglary and theft of property.

In citing Article IV(c) and (e) of Ark. Code Ann. § 16-95-101 (1987), the appellant’s argument is two-fold: (1) Once the state gained custody of appellant, the court was required, under subsection (e), to try the criminal charges pending against him prior to his being returned to the federal authorities, or dismiss all of the charges with prejudice; (2) alternatively, even though the July 16, 1984 trial was held within the 120-day requirement set out in subsection (c), the September 7, 1984 hearing and conviction judgment on the remaining charges were beyond the 120-day period and should, as a consequence, be set aside and the charges dismissed.

The state responds by first arguing that the IAD Act never came into play since no detainer, as that term is used under the Act, had ever been lodged against the appellant. Second, even if the Act applies, the state urges that the appellant was required to object to his retransfer to the federal authorities, in order to raise the issue that, pursuant to the speedy trial provisions of the Act, the state charges must be concluded prior to his return.

In addressing the parties’ respective contentions, we first must disagree with the state’s argument that a detainer was never filed in this cause so as to permit the appellant to invoke the provisions of the IAD Act. While the Act itself contains no definition of the word “detainer,” the Supreme Court noted in United States v. Mauro, 436 U.S. 340 (1978), that the House and Senate Reports explained that “a detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.” In addition to the explanation given the term “detainer” in Mauro, we note Article IV(a) of the Act which provides as follows:

The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated .... (Emphasis added.)

Here, the Izard County Circuit Court issued a clear directive providing that the sheriff make arrangements for the transfer of the appellant to state custody so proceedings could go forward on the state charges pending against him. That order further provided for appellant’s return to federal custody after the state proceedings. We have no hesitation in characterizing the Izard court’s order a detainer, as that term is used and understood under the Act.

Although we agree with the appellant that a detainer was lodged against him which would have invoked the speedy trial provisions under the IAD Act, we cannot agree that the state’s actions, contravening the Act’s provisions, require a dismissal of his charges. As we noted earlier, the appellant urges that the state violated Article IV(e) of the Act by returning him to the federal authorities sometime in April 1984, without fully trying him on any of the charges pending against him. However, even assuming the state’s action was contrary to Article IV(e), such a violation is a non-jurisdictional error and is therefore waivable by a criminal defendant. Camp v. United States, 587 F.2d 397 (8th Cir. 1978). In rendering such a holding in Camp, the 8th Circuit Court of Appeals held that the violation of Article IV(e) did not deny the court jurisdiction to entertain a guilty plea when the defendant failed to raise the issue in a timely manner. See also United States v. Palmer, 574 F.2d 164, 167 (3d Cir.), cert. denied, 437 U.S. 907 (1978), and United States v. Ford, 550 F.2d 732, 742 (2d Cir. 1977), aff'd sub nom. United States v. Mauro, 436 U.S. 340 (1978) (“The provision [Art. IV(e)],. . . which is intended to avoid the disruption in a prisoner’s rehabilitation occasioned by repeated transfers between jurisdictions, is thus for his benefit and is waivable”). In the instant case, appellant neither requested a speedy trial, nor mentioned the IAD Act.

This brings us to appellant’s final argument, viz., that he was burdened with ineffective assistance of counsel. On this point, appellant argues that, if his counsel had raised the speedy trial provisions of the IAD Act after having been transferred to the federal authorities and prior to appellant’s trial and convictions, the .state’s charges against him would have been dismissed with prejudice. We reject appellant’s contention for a number of reasons.

First, this court has routinely held that Rule 37 is not available as a direct challenge to the admissibility of evidence or to raise questions of trial error. Questions of constitutional dimension must even be raised in the trial court in accordance with the controlling rules of procedure, or else the issues are waived, unless they are so fundamental as to void the judgment absolutely. Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987).

Second, we again look to the Camp decision wherein the defendant maintained that he could not be said to have waived a right of which he was not aware. In response, the Camp court relied on Schneckloth v. Bustamonte, 412 U.S. 218 (1973), setting forth the following excerpt from that case:

Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.

The court in Camp followed the foregoing by stating that the IAD Act amounts to nothing more than a statutory set of procedural rules which clearly does not raise it to the level of constitutionally guaranteed rights. The court explained further that the sanctions in Article IV(e) of the IAD Act have nothing to do with preserving a fair trial, but are instead intended only to prevent excessive interference with a prisoner’s rehabilitation in the state prison system. Id.; Camp, 587 F.2d at 400. We agree with the rationale and holding in Camp, and, accordingly, conclude that the failure of appellant’s counsel to raise the IAD Act below did not involve the waiver of such a fundamental right that would void a judgment.

Other reasons exist as to why appellant cannot prevail on his claim of ineffective assistance of counsel. We have held that counsel is presumed competent, and the burden of overcoming that presumption rests on the petitioner. Franklin v. State, 293 Ark. 225, 736 S.W.2d 16 (1987). We have also held that a petitioner having entered a guilty plea normally will have difficulty in proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged. Id. Additionally, to prove ineffective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must show that (1) counsel’s performance was deficient in that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment to the Constitution; and (2) the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner ofa fair trial whose outcome can be relied on as just.

In view of the foregoing standards of review, we first point out that appellant’s conviction judgments entered on September 7, 1984, resulted from his guilty pleas, reflecting an admission in open court of the criminal acts of burglary and theft of property with which he was charged. In this same regard, we also note the settled law that a valid guilty plea operates as a waiver of all non-jurisdictional defects or errors. Id., Camp at 399. As we discussed earlier, the speedy trial provisions in the IAD Act are non-jurisdictional and waivable; nor do those provisions rise to the level of constitutionally guaranteed rights that are necessary in order to preserve the appellant a fair trial, as is required under the Strickland test. In sum, failure of appellant’s counsel to raise the provisions of the IAD Act is not such deficient performance as to warrant the setting aside of appellant’s conviction judgments.

We note, in conclusion, that appellant now complains that, if his counsel had been more knowledgeable about the IAD Act and had informed appellant of his rights, appellant would have chosen to invoke the Act, thus requiring the dismissal of all the charges against him. Appellant ignores the substantial testimony reflecting that his counsel discussed the speedy trial issue during trial preparation and in the later proceeding when he entered guilty pleas, but that appellant opted not to raise the issue. Counsel explained that appellant “wanted to go ahead and get the thing over with, one way or other and he wanted to go ahead and have the trial or enter a guilty plea . . . .” Appellant’s counsel further testified that their primary concern, in negotiating the charges remaining against the appellant after the July 18,1984 conviction, was to obtain concurrent sentences with the sentences already imposed. Thus, the record shows the appellant made an informed and strategic decision not to pursue the speedy-trial issue.

For the reasons set out above, we hold that the trial court was correct in denying appellant’s request for post-conviction relief. Therefore, we affirm.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I think the counsel for the appellant was ineffective with respect to his failure to require the state to comply with the Interstate Agreement on Detainers Act (I.A.D.). He may have foreseen that the Arkansas courts would not force the state to comply with the I.A.D.; nevertheless, to preclude a claim of ineffective assistance of counsel, the attorney should have asserted the statutory right to a speedy trial. At the very least he should have explained the right to a speedy trial to his client and made a record for the trial judge and for appellate review. It now appears that perhaps counsel did not know the law himself. This is no disgrace; most lawyers are not familiar with many of the laws in connection with a case when the case commences. However, he should have found the answers and protected his client to the best of his ability. At the same time the performance of the attorney’s obligations would have reduced the chances of a claim of ineffective assistance.

Article IV, sections (c) and (e) of the I.A.D. read as follows:

(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
(e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. [Emphasis added]

The state initiated this procedure and was bound to try the appellant within 120 days. It did not do so. Without objection the appellant was returned to the “sending state” (the United States) without being tried by the state of Arkansas. The consequences to the appellant in this case were exactly what the I.A.D. intended to prevent.

The majority opinion is part of a familiar pattern of judicial encroachment upon legislative and executive powers. No matter how clear and unambiguous a statute may be, the judiciary often bends the words into what the courts believe the law ought to be. There is no need to cite precedent in this dissent. Neither precedent nor the separation of powers doctrine seem to deter this court from making new law every Monday morning.

       The court issued a similar order dated April 27, 1984.

       The various dates of court appearances and transfers are not clear from the record, but for the purpose of applying the I AD Act, it appears the state first received appellant at least by April 3, 1984, when he was arrested pursuant to the court’s bench warrant. Although unnecessary for purposes of determining the legal issues here, the other background events and dates leading to the appellant’s conviction commenced in November 1983, when appellant was arrested and incarcerated in Izard County on burglary and theft charges. He subsequently escaped and fled the state, but in January 1984, he was arrested in California on an outstanding fugitive warrant from Arkansas. Appellant was later transferred to the federal authorities in Arkansas, where he pled guilty to a federal bank robbery charge on April 23, 1984.

       Article IV(e) provides: “If a trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”


source: Caselaw Access Project

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

license: Public Domain

text:
    Leslie ANDERSON v. SHARP COUNTY, ARKANSAS
    87-342
    749 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Ponder & Jarboe, by: Harry L. Ponder, for appellant.

      Jim Stallcup, Prosecuting Att’y, Stewart K. Lambert,
      Deputy Prosecuting Att’y, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellee, Sharp County, Arkansas, brought this cause of action in replevin to obtain title to items of jewelry which the appellant, former County Judge Leslie Anderson, received as a bribe. The case was presented to the Sharp County Circuit Court on the following agreed statement of facts:

Stewart Lambert, Deputy Prosecuting Attorney, and Harry L. Ponder, attorneys respectively for plaintiff, Sharp County, Arkansas, and defendant, Leslie Anderson, hereby agree that the following is a statement of the facts in this cause, and that the case should be tried on said agreed statement of facts:
1.
Defendant, Leslie Anderson, was County Judge of Sharp County, Arkansas, duly qualified and acting, during the years 1977 and 1978.
2.
Sometime in 1978 defendant received from one Ralph Shaddox certain jewelry as a reward for permitting Ralph Shaddox to do business with Sharp County, Arkansas . . . . [List omitted.]
3.
Sometime in 1978 the jewelry listed above was found by Oklahoma State Trooper Choate in the trunk of a car driven by Anderson, after being impounded by the Oklahoma State Police on a traffic charge.
4.
On being questioned by Oklahoma Prosecutor Frank Rayhall and Oklahoma State Trooper Jack Choate, Anderson said that he received the jewelry listed above because Sharp County did business with Ralph Shaddox. He further said that “kickbacks” had to be in money and he only took jewelry.
5.
When applied to public servants the terms “bribe” and “kickback” are synonymous.
6.
The jewelry described above constituted a bribe given to, and accepted as such, by Anderson and resulted in Sharp County, Arkansas, having to pay more than the fair market price for goods and services and so was detrimental to Sharp County, Arkansas.
7.
Because Anderson accepted the jewelry described above he was charged with Public Servant Bribery in case number CR-79-1 filed in the Circuit Court for Sharp County, Arkansas.
8.
The jewelry described above was impounded as evidence in case number CR-79-1, Circuit Court for Sharp County, Arkansas.
9.
In case number CR-79-1 an Order of Nolle Proseque was entered August 21,1985. Part of that Order provided that the evidence impounded should remain in the joint custody of Sharp County Judge, Frank Arnold, and Deputy Prosecuting Attorney, Stewart Lambert, until determination of a replevin action which Sharp County, Arkansas, was ordered to file, but if said action was not filed within ten days from August 21, 1985, the jewelry described above was to be returned to Anderson.
10.
This cause, CIV-85-111, Circuit Court, Sharp County, Arkansas is the replevin action filed in compliance with the Court’s Order in case CR-70-1, Circuit Court, Sharp County, Arkansas.

The trial court accepted the stipulated facts as evidence and ordered possession of the property be delivered to the lawful custodian of Sharp County. It found that (1) “it is the intent of said statute [Ark. Code Ann. § 14-14-1102(b)(7) (1987), formerly Ark. Stat. Ann. § 17-3901 (B)(7) (Repl. 1980)] to require that any property received by a County Judge, while serving as County Judge, is accepted and can only be accepted in behalf of the County” and that (2) “the County Judge obtaining such illegal gifts or bribes should not be allowed to retain such property as his own property.” We agree with the trial court that a county judge should not be able to retain illegal gifts or bribes as his own property, however, the court was incorrect in finding under Ark. Code Ann. § 14-14-1102(b)(7) that the jewelry accepted as a bribe belonged to the county.

Section 14-14-1102(b)(7) provides in pertinent part:

ACCEPTING GIFTS, GRANTS, AND DONATIONS FROM FEDERAL, PUBLIC, OR PRIVATE SOURCES. (A) The county judge, as the chief executive officer, is authorized to accept, in behalf of the county, gifts, grants, and donations of real or personal property for use of the county.

This statute does not apply to bribes received by a county judge. The property in question was not a gift, grant, or donation, but rather was contraband. Ark. Code Ann. § 5-5-101 (1987), formerly Ark. Stat. Ann. § 41-1401 (Repl. 1977), defines contraband to include “[a]ny article possessed under circumstances prohibited by law.” The jewelry found in Anderson’s possession clearly meets this definition.

Although the circuit court directed Sharp County to obtain the property by an action in replevin, we cannot approve this procedure as Sharp County was not the owner entitled to possession of the property. Williams v. Harrell, 226 Ark. 115, 288 S.W. 2d 321(1956).A replevin action can be maintained only by one who has a general or special property interest in a thing taken or detained at the commencement of the action. 66 Am. Jur. 2d Replevin § 16 (1973). “Such right of possession or ownership must be one by a title recognized at law, as distinguished from one recognized only in courts of equity.” Id.

The trial court was correct that Anderson should not be able to retain illegal gifts or bribes. In Womack v. Maner, 227 Ark. 786, 301 S.W.2d 438 (1957), we noted that there is no statute authorizing the recovery of money alleged to have been paid as a bribe and aptly stated that “ [i] t is firmly established that in a situation such as is set out in the complaint the law will not aid either party to the illegal or void contract.” Likewise, we will not aid a party who attempts to recover property obtained as a result of a bribe.

We dismiss this suit because Sharp County is not entitled to replevin. We take no position on title to the property, noting that it is still in the joint custody of the Sharp County Judge and the Deputy Prosecuting Attorney by virtue of the trial court’s previous order.

Reversed and dismissed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I agree with the majority but wish to make it clear that, as the majority points out, the jewelry items involved here are contraband and, in my opinion, subject to the disposition procedures set forth in Ark. Code Ann. §' 5-5-101 (1987). While eventually the county’s general fund may well receive the proceeds from a sale of the jewelry, I agree, too, with the majority that this case must be reversed and dismissed. In other words, the trial judge’s decision cannot be sustained as a correct one even though based on an erroneous reason. See Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984); Simmons First Nat’l Bank v. Wells, 279 Ark. 204, 650 S.W.2d 236 (1983). In this case, the appellee proceeded under the wrong law as well as an erroneous legal theory. The correct procedure concerning the disposition of contraband under § 5-5-101 is entirely different from a holding, as the trial court did here, that the county should recover the jewelry for the use and benefit of the county’s citizens.

For these reasons, and those given in the majority’s opinion, I agree to reverse and dismiss.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    John GIPSON, Bill Hefley, M.D., Coolidge Faulkner, Richard Conder, James Dixon, A.J. Tomme, and Jack Case v. Joe BROWN, Bob Scott, and Tip Nelms, D.D.S.
    87-253
    749 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Friday, Eldredge & Clark, by: William H. Sutton and Diane S. Mackey, for appellants.

      Joe Brown, Pro Se, Tip Nelms, D.D.S., Pro Se, and Cliff Jackson, P.A., for appellee Bob Scott.
   Jack Holt, Jr., Chief Justice.

This is the second time we consider whether there is a conflict between the requirements of our code provisions on nonprofit corporations and the tenets of the Sixth and Izard Church of Christ, of which appellees are members and appellants are elders. The dispute concerns appellees’ efforts to obtain various financial records of the church by virtue of its status as a nonprofit corporation and to secure an election of directors by the church membership. The elders, with the apparent support of other members within the church, resist appellees’ efforts on the grounds that application of our state nonprofit corporation laws would interfere with the religious doctrine and practice of the church in violation of the first and fourteenth amendments to the United States Constitution and art. 2, §§ 24 and 25 of the Arkansas Constitution.

When the case was first before us, Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986), we granted relief from an interlocutory order of the chancery court compelling discovery of the records and financial information which had been the object of the suit. We remanded to the chancellor with instructions to conduct a hearing to determine whether application of Ark. Code Ann. § 4-28-218 (1987), formerly Ark. Stat. Ann. § 64-1913 (Repl. 1980), would override the religious doctrine, polity or practice of the church as protected by the federal and state constitutions. On remand, the chancellor entered an order appointing a special master “to investigate and [make] findings of fact and conclusions of law over all relevant matters pertaining to this action.” The chancellor entered an order adopting the report and recommendations of the master by which the elders were required to conduct an election and “make available ... all financial and business records of the corporation.” From that order comes this appeal.

While the chancellor was proceeding beyond his authority when he appointed the special master, and in some cases we have held that this mandates that the appeal be dismissed as premature,State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969), this court generally reviews matters appealed from chancery court on a de novo basis, Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988). In addition, there is a policy in favor of bringing litigated matters to an end. Taggart v. Moore, 292 Ark. 168, 729 S.W.2d 7 (1987). On that basis we proceed with the merits of this appeal.

In Gipson I we stated that it was a close question whether this action could be maintained at all. In view of the record before us, we now conclude that the appeal should be dismissed. The underlying dispute between the elders and the members of the church is essentially religious in nature, and its resolution is more properly reserved to the church. The evidence of record clearly shows that the' code provisions governing nonprofit corporations interfere with the doctrine and polity of the church and infringe upon its guaranteed religious liberties — while at the same time the record fails to reveal a compelling state interest which would justify application of our laws in light of the constitutional proscriptions against interference with the free exercise of religion. In that setting we find that our examination of the issues before us results in the impermissible entanglement of this court in ecclesiastical matters.

USE OF A SPECIAL MASTER

In Nelson, supra, this court’s discussion of the appointment of a special master was as follows:

[T]he chancellor appointed a Special Master, and instructed him to prescribe rules for the expeditious and orderly progress of the tasks with which he was charged, and to proceed with hearing of evidence and ruling upon all matters of fact and law incident thereto. ... In this respect, the trial court was proceeding illegally. . . . [T]he chancellor should hear the cause upon the pleadings and such evidence as may enable him to determine the principles to be applied in adjusting the equities of the parties and then make a reference to a master for such special inquiries or statements of accounts as may aid the court in making a definite decree. . . . [T]he United States Supreme Court [has] stated that the use of masters was to aid judges in the performance of specific judicial duties as they arise and not to displace the court. [The Court] held that the appointment of a master and a reference at the inception of the case to take evidence and to report the same to the court with his findings of fact and conclusions of law was an action beyond the court’s powers. [Emphasis added.]

We stated in Nelson that to support the reference by reason of anticipation of a lengthy trial, complexity of the issues and congestion of the court’s calendar does not constitute sufficient grounds for the virtual displacement of the court by a special master.

While we can conceive of situations in which a reference of particular matters may be made to a master during the course of litigation, a reference as broad as the one involved here is clearly in excess of the court’s jurisdiction and in that respect the court proceeded without authority of law.

Id. at 219-220.

Rule 53(b) of the Arkansas Rules of Civil Procedure specifies that the reference to a master shall be the exception and not the rule and, except in matters of accounting and difficult computation of damages, the reference shall be made only upon a showing that some exceptional condition requires it. No such showing was made here.

While we reaffirm our position in Nelson, the result reached in that case — dismissal of the appeal as “premature” — is not appropriate here in light of our policy in favor of bringing litigated matters to an end and our ability to review matters appealed from chancery court on a de novo basis.

CHURCH VS. STATE

One proposition is clear and certain — courts, absent fraud or collusion, do not interfere in purely ecclesiastical matters. As early as Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872), the United States Supreme Court stated that when civil courts get involved in matters of church discipline or ecclesiastical government, it requires looking into the customs, usages, written laws, and the fundamental organization of religious denominations, which deprives these bodies of the right to interpret their own church laws and opens the door to all sorts of evils.

The rule requiring deference to decisions of ecclesiastical bodies on matters of internal church governance is stated in Gonzales v. Roman Catholic Archbishop, 280 U.S. 1 (1929), where Justice Brandéis wrote for the majority:

In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive ....

In Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), the later in Jones v. Wolf, 443 U.S. 595 (1979), the Supreme Court recognized that when religious organizations establish rules for their internal governance, and tribunals for adjudicating disputes over such matters, “the constitution requires that civil courts accept their decisions as binding upon them.” In Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952), the Supreme Court said that religious freedom encompasses the power of religious bodies:

[T]o decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.

In Gipson I we emphasized that “internal church disputes relating to the disclosure of church business should not be subject to the legal concern of this court” and that “state courts can only become involved in church disputes when ‘neutral principles’ of law can be applied to resolve the dispute.” Here, the underlying dispute between the appellee members and the elders is of a long-standing, ongoing, heated nature extending beyond application of our code provisions to an explicit attempt by appellees to convince the church membership that they have a biblically based right to access the records of the church and to determine who the elders of the church will be. To achieve this end, incorporation of the church was accomplished through the services of one of the appellees.

It does not take much to see that incorporation greatly facilitated appellees’ efforts to access church records, while at the same time it had little to do with anything which might implicate state interests or warrant intervention in the dispute under the guise of determining whether our laws on nonprofit corporations apply to the church. As such, and in light of the proscriptions against interference in ecclesiastical matters, interference which is necessarily implicated by the facts and issues before us, we find the appropriate course to be dismissal.

That result finds additional support. In Gipson I we emphasized that the religious beliefs of all citizens are zealously protected from government interference under both the state and federal constitutions. Article 2, § 24 of the Arkansas Constitution expressly provides that “ [a] 11 men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences” absent interference with the right of conscience by any human authority. Remand was specifically for the purpose of conducting a hearing on the “claim of first amendment protection versus the disclosure requirements of corporations” because without the benefit of such a hearing we could not “weigh the sensitive overlap between church and state” presented by the facts of this case. Although considerable testimony was introduced on the doctrine and polity of the church, no evidence was offered as to a compelling state interest which would justify application of our code provisions in the event it was determined that our laws actually infringed upon religious liberties. That fact compounds the extent to which we would be required to delve into the ecclesiastical aspects of the case before us.

The failure to adduce such evidence was apparently due to the conclusion of the special master that application of our laws did not in fact interfere with the doctrine and polity of the church; a conclusion we find unsupported. The appellees’ suit was based upon that part of section 4-28-218 which provides: “All books and records of a corporation may be inspected by any member for any proper purpose at any reasonable time.” Section 4-28-212 provides: “Each member shall be entitled to one (1) vote in the election of the board of directors.” It is with respect to the application of these provisions to the church as a corporation that the elders seek an exemption because, according to the elders, these provisions are in direct conflict with the scriptural duties of the elders as overseers of the flock responsible for harmony within the church.

We find that the record reveals substantial evidence to the effect that the elders’ claim of an exemption is in fact tied to established doctrine within the church: (1) the New Testament places within the hands of a select group of elders the sole responsibility for overseeing the affairs of the church and its congregation; (2) the scriptural duty extends to all aspects of administration within the church with the elders being accountable to God for the execution of their responsibility in a manner consistent with the Bible; (3) the scriptural purpose behind the doctrine is the mandate that there be harmony and unity within the flock; and (4) the execution of the responsibility is a matter left to the scripturally guided discretion of the elders as evidenced by biblical admonitions to the flock to obey and submit to them that have rule over the flock. In light of the above, application of our state corporation laws would almost certainly infringe upon the doctrine of the church.

Under those circumstances, we would generally be required to engage in a balancing process. Our initial inquiry would be strictly limited to whether the disinclination of the elders to comply with certain statutory requirements has at its roots actual religious beliefs in the form of doctrine, polity, or practice of the church. On that issue, our responsibility would be directed not to a determination of what exactly the Bible teaches; rather, we consider whether the evidence supports the conclusion that the elders believe the tenets of the church to be as described and whether those beliefs serve as the basis of appellants’ claim to an exemption from the code provisions governing nonprofit corporations. That requirement is satisfied by the facts of this case.

Once that requirement has been met, “it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). Because there is substantial evidence indicating that our laws infringe upon appellants’ free exercise of religion, the lack of any evidence on the existence of a compelling state interest mandates the conclusion that, in light of the extent to which the facts before us implicate purely ecclesiastical concerns, the appeal should be dismissed.

In conclusion, we note that the dissent takes refuge under the decision of the Supreme Court of Louisiana in Bourgeois v. Landrum, 396 So. 2d 1275 (La. 1981), cited in Gipson I. That case is simply not controlling as to our decision to dismiss rather than proceed to resolve this church dispute for, as we stated in our former opinion, here the' appellant elders “assert the very entanglement in questions of religious doctrine that the court found absent in the Louisiana cases.” (Emphasis added.)

Appeal dismissed.

Purtle, Dudley and Newbern, JJ., dissent.

John I. Purtle, Justice,

dissenting. This is the second time this case has come before the court. The issues in each case concern the appellees’ rights under Arkansas’ corporation laws to examine various financial transactions of the church and to require an election of the board of directors by the church membership. The appellants, elders of the church, rejected these demands and argue that application of the state nonprofit corporation laws interfere with the religious doctrine and practice of the church in violation of the First and Fourteenth Amendments to the United States Constitution and Art. 2, §§ 24 and 25 of the Arkansas Constitution.

When the case was first before us (see Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986)), we granted relief from an interlocutory order and held that an evidentiary hearing was necessary to determine the merits of appellants’ claims of constitutional protection against ordered disclosure of church information. We remanded the case to the chancellor with the specific purpose “to conduct a hearing on the claim of first amendment protection versus the disclosure requirements of corporations.”

On remand the chancellor, pursuant to ARCP Rule 53, appointed a master “to investigate and [make] findings of fact and conclusions of law over all relevant matters pertaining to this action.” The master conducted six days of evidentiary hearings during which testimony and exhibits were considered.

Upon conclusion of the hearings the master filed his report and submitted his recommendations to the chancellor who adopted the report in toto. Among other things the master recommended:

1. That the Defendants be required to answer the Interrogatories and Request for Admissions, except those relating to or concerning the selection of elders.
2. That the Defendants be required to conduct an election of the Board of Directors of the Sixth and Izard Church of Christ, Inc., pursuant to Ark. Stat. Ann. § 64-1910 (Ark. Code Ann. § 4-28-211 (1987)).
3. That the Defendants be required to make available to plaintiff and intervenors, at a reasonable time during regular office hours, all financial and business records of the corporation as provided in Ark. Stat. Ann. § 64-1913 (Ark. Code Ann. § 4-28-211 (1987)). However, no records concerning selection of elders or contributions of members or others are to be furnished.
4. That the court reserve jurisdiction of the cause for the entry of such orders as may be necessary to determine and enforce the rights of the parties hereto.

The majority has now done an “about face” and evaded the basic issue before us. Hereafter, a nonprofit corporation may decide it does not agree with the laws under which it is incorporated and simply refuse to abide by the law under the pretext of “religious freedom.”

The parties to the litigation are all members of the Sixth and Izard Church of Christ, Inc., located in Little Rock, Arkansas. The church was originally organized as an unincorporated association and operated as such until April 14, 1975, at which time it incorporated under Ark. Stat. Ann. § 64-1905 (Ark. Code Ann. § 4-28-205 (1987)) as a nonprofit corporation. The appellants are presently serving as elders of the church and as members of the board of directors of the corporation. I have no interest in the church-related responsibilities of the elders. However, the responsibilities of the elders in their capacity as members of the board of directors of a corporation created and organized pursuant to the laws of this state is quite a different matter. Had the church not chosen the elders to also serve as directors we likely would not have this problem before us.

The appellees, as members of both the nonprofit corporation and the church congregation, have repeatedly demanded access to the church financial records and election of the board of directors by the church membership. These demands arise out of allegations of discrepancies and inconsistencies in church financial records kept by the elders. The elders have consistently refused to render a full accounting to the appellees setting forth in detail the purposes for which church funds have been expended.

The appellees rely upon the provisions of the nonprofit corporation law which provide that the members of the corporation have the right to inspect the financial records of the corporation. The appellants maintain that the tenets of the Church of Christ religion place authority for church administration solely in the hands of the elders, and therefore the elders cannot be required to share any of this information with the appellees. In support of this view the appellants argue that it is the longstanding religious belief, polity and practice of the church that the elders have the absolute and final authority over all church matters, including all financial matters.

In Gipson I, we emphasized, and I re-emphasize now, that the religious beliefs of all citizens are zealously protected from governmental interference under both the state and federal constitutions. The Arkansas Constitution recognizes that its people have a natural and indefeasible right to worship God according to the dictates of their own consciences and that no human authority can control or interfere with the right of conscience or give preference by law to any religious establishment or mode of worship. The church voluntarily incorporated itself under the secular laws. When the church decided to incorporate, it submitted itself to certain state laws governing corporations, thus opening the door to examination in a legal setting of the dispute within the church concerning adherence to those state laws.

There is no doubt as to the power of the state of Arkansas to impose reasonable laws and regulations governing the operations of corporations within this state. Corporations are entities controlled by the board of directors and officers and are owned by the stockholders and members. The stockholders and members of a corporation are usually so far withdrawn from the everyday business affairs of the corporation that it is impossible for them to have knowledge of the management and finances of the corporation. The Arkansas legislature has wisely provided stockholders and members the right to inspect corporate books and records upon request, at a reasonable time, provided there is a valid reason for such a request. After all, the owners of a corporation are obviously entitled to know what their employees are doing with their money.

Under the circumstances of this case, the Constitution requires a balancing process. If the statute impinges on fundamental rights that are specifically protected by the Free Exercise Clause of the First Amendment, the statute does not control. The state’s authority to impose reasonable laws and regulations upon corporations is sufficient to uphold the rights of the appellees in this case. No one can seriously argue that the Arkansas statute at issue here was in any manner intended to regulate, control or influence the religious belief or practice of any person.

The United States Supreme Court has decided a line of cases recognizing that under some circumstances civil court review of ecclesiastical actions is appropriate. See Gonzalez v. Archbishop, 280 U.S. 1 (1929): the claim of right to.be appointed to a vacant collative chaplaincy and the right to receive the accrued income during the vacancy; Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952): the right to the use and occupancy of church property where a state legislature had transferred control of church property from one rival group of members to another; Wisconsin v. Yoder, 406 U.S. 205 (1972): a state’s interest in imposing reasonable regulations for the control of basic education; Presbyterian Church v. Hull Church, 393 U.S. 440 (1969): a state court’s interest in resolving disputes over church property; The Serbian Eastern Orthodox Diocese for the United States of America and Canada, et al. v. Milivojivich, 426 U.S. 696 (1976): a dispute over the control of the property and assets of the Serbian Eastern Orthodox Diocese for the United States of America and Canada.

The Louisiana Supreme Court, in Bourgeois v. Landrum, 393 So. 2d 1275 (1981), addressed the issue of whether church members have a right to examine the financial books and records of the church under the provisions of the Louisiana nonprofit corporation law. The church had organized pursuant to the state’s nonprofit corporation laws. The court, holding that the church members had such a right, observed: “the underlying First Amendment principles, which protect against the entanglement of civil courts in questions of religious doctrine, polity or practice, are not offended by the judicial enforcement of a statute requiring a church, as a non-profit corporation, to keep at its registered office, corporate records for examination by its voting members.”

The Louisiana Supreme Court, quoting from Presbyterian Church v. Hull Church, 393 U.S. 40 (1976), observed:

First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. The First Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.

The Louisiana Supreme Court held that “First Amendment values are plainly not jeopardized by a civil court’s enforcement of a voting member’s right to examine these records.”

Prior to incorporating on April 14,1975, the Sixth and Izard Church of Christ had, as is traditional with churches in Arkansas, operated as an unincorporated association. The church designated the elders as the first board of directors. They are to hold office until their successors have been elected and qualified. The elders are serving as elders of the church and directors of the corporation at the same time. The duties of the board of directors of a corporation are prescribed by statute. However as elders of the church their responsibilities and duties are purely ecclesiastical in nature. The issue in the present case is almost identical with the issue considered by the Louisiana court in the Bourgeois case. I believe that the First Amendment permits civil courts to decide church disputes involving secular matters without resolving the underlying controversies over religious doctrine.

I find no interference by the state in any religious matters by permitting the voluntary incorporation of groups or associations in the manner utilized by this church. The statute providing for incorporation is completely void of any reference to religion. The members of the Sixth and Izard Church of Christ voluntarily incorporated pursuant to this statute. Their purpose in doing so is of no concern to this court. The state did not in any manner attempt to control or influence the religious beliefs of the people of the state of Arkansas. Neither did the state encourage the church to abandon its cloak of nondisclosure and voluntarily incorporate.

It is my opinion that the chancellor acted within the bounds of our mandate in appointing a master and adopting the master’s findings of fact and recommendations. For clarification I note that the chancellor’s order does not require the appellants to respond to interrogatories and requests for admissions relating to the selection of elders; nor does it require them to furnish records concerning contributions of members or others. I find nothing in this decree that would interfere with the First Amendment rights of the appellants. I think our first decision in this case was correct and we ought to abide by it.

I would affirm the decision of the trial court requiring the appellants to follow the mandates of the law and our prior opinion in this case.

Dudley and Newbern, JJ., join in this dissent.


text:
    Richard Orville GOODEN v. STATE of Arkansas
    CR 87-224
    749 S.W.2d 657
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Kenneth George Fuchs and Fredye L. Eckhart, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Richard Orville Gooden, was convicted of conspiracy to manufacture marijuana, manufacture of marijuana, and possession of marijuana with intent to deliver. On appeal Gooden argues: (1) he was denied a speedy trial; (2) the trial court should have suppressed evidence obtained pursuant to an unlawful search; (3) the court should have enforced the terms of a plea agreement not adhered to by the State or, in the alternative, should have suppressed a statement made in connection with the plea agreement; and (4) as a matter of law Gooden could only be convicted of the manufacturing charge.

This case was certified to us by the court of appeals pursuant to Rules 29(1 )(a) and (c) and 29(4)(b) of the Rules of the Supreme Court and the Court of Appeals. We find that Gooden’s third argument pertaining to suppression of his incriminating statement has merit and therefore reverse.

On February 19, 1985, Louisiana officials arrested Gooden and his cousin, Howard Parette, Jr., for possession with intent to deliver approximately 227 pounds of marijuana. Pursuant to information that the marijuana confiscated in Louisiana might have come from Arkansas and that Parette owned land in Faulkner County, officers in Arkansas conducted an investigation which led to the issuance of a search warrant for the Parette property. That search led to the discovery of marijuana, a marijuana manufacturing operation, and certain items implicating Gooden in the manufacturing operation. Gooden, who was out on bond in Louisiana, was again arrested and confined in that state on February 22 pursuant to charges filed in Arkansas.

On February 27 the deputy prosecuting attorney for Faulkner County went to Louisiana accompanied by Arkansas and federal law enforcement officers who wanted to question Gooden. After a plea agreement was negotiated between Gooden, his Louisiana attorney, and the deputy prosecutor, Gooden made an incriminating statement which was later transcribed by one of the officers. The plea agreement was never adhered to, and extradition proceedings were initiated sometime in September of 1985. An order for Gooden’s extradition was entered in Louisiana in June of 1986, and Gooden was returned to Arkansas on June 23 and brought to trial on September 4.

I. SPEEDY TRIAL

On the day of trial Gooden moved to dismiss for lack of a speedy trial pursuant to Rule 28.1(c) of the Arkansas Rules of Criminal Procedure, which in relevant part provides:

Any defendant charged with an offense in circuit court . . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Approximately eighteen months and thirteen days had expired between the filing of charges on February 22,1985, and the trial date of September 4,1986. Once it was shown that trial was to be held after the speedy trial period had expired, the State had the burden of showing that any delay was the result of Gooden’s conduct or was otherwise legally justified. Harwood v. Lofton, 288 Ark. 173, 702 S.W.2d 805 (1986); Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986); Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982).

In response to Gooden’s motion the State introduced extradition materials which indicated that Gooden had refused to sign a waiver of extradition in Louisiana on April 10,1986, which resulted in additional court proceedings in that state. The extradition issue was not resolved until the Louisiana court order of June 3,1986, directing that Gooden be extradited to this state. Gooden argues that the materials were not properly received into evidence and were not certified. However, the record shows that the materials were marked and received into evidence, and the objection as to certification did not come until after the evidence was received (Gooden never obtained a ruling on his objection). See Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). The trial court denied the speedy trial motion on the basis of Gooden’s absence from the state and on the grounds that the motion was not timely.

The speedy trial motion, which can be made at any time before trial, was clearly timely. Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987); Garrison v. State, 270 Ark. 426, 605 S.W.2d 467 (Ark. App. 1980); Ark. R. Crim. P. 30.2. However, the trial court was otherwise correct in denying the motion.

Rule 28.3(e) specifically excludes from the 18 month time limit those periods of delay resulting from the absence or unavailability of the defendant whenever his whereabouts are known but his presence for trial cannot be obtained or he resists being returned to the state for trial. It is clear that a delay of 54 days was attributable to Gooden’s conduct in fighting extradition which constitutes resisting return within the meaning of Rule 28.3(e). Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988); O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984). The trial court was therefore correct in holding that the speedy trial period had not expired.

Citing Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986), Gooden makes the additional argument that the trial court erred in failing to set forth the number of excludable days in a written order or docket entry as required by Rule 28.3(i), which provides:

All excluded periods shall be set forth by the court in a written order or docket entry. The number of days of the excluded period or periods shall be added to the number of months applicable to the defendant as set forth in Rule 28.1(a), (b) and (c) to determine the limitations and consequences applicable to the defendant.

Granted the trial court did not adhere to the requirements of the rule, the issue was never presented at the trial level. This court does not consider arguments made for the first time on appeal. Allen, supra; Stephens v. State, 293 Ark. 366, 738 S.W.2d 91 (1987).

II. UNLAWFUL SEARCH

Gooden next argues that the court erred in denying his motion to suppress evidence obtained as the result of an unlawful search. He raises numerous points challenging the warrant authorizing the search, the finding of probable cause to issue the warrant, the affidavit in support of the warrant, and the scope of the search. The State’s response is that Gooden does not have standing to challenge the search as all evidence was seized on property belonging to Parette, not Gooden. The deplorable state of the record on the issue of standing is such that it is difficult if not impossible to determine from the briefs whether Gooden resided on the Parette property so that he might be said to have had an expectation of privacy sufficient to give him the standing necessary to challenge the search.

At various times before the trial Gooden maintained a position entirely inconsistent with the claim that he resided on the Parette property and that he had a possessory interest in hundreds of items seized during the search. During the suppression hearing, the State maintained that Gooden did not have standing to object to the search. Gooden then asserted for the first time that he actually lived on the property, after which the court permitted him to raise his objections to the search based upon that assertion. However, the matter was never developed at trial nor did the trial court ever resolve the issue by formally ruling on whether Gooden had standing. Our review of the record reveals little if any actual evidence that Gooden did more than frequent the property and possibly manage the manufacturing operation.

In State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986), this court stated that the doctrine of standing to invoke the Fourth Amendment’s exclusionary rule had evolved to focus on the defendant’s substantive Fourth Amendment rights. Courts should not exclude evidence under the Fourth Amendment unless it is determined that an unlawful search violated the defendant’s own constitutional rights. Those rights are so violated only if the challenged conduct invaded the defendant’s legitimate expectation of privacy. In Hamzy, we quoted extensively from Rakas v. Illinois, 439 U.S. 128 (1978), and noted that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [his] right to exclude.” Hamzy, at 565. That same rationale is expressed in Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980).

While testimony of one of the witnesses indicates that an expired driver’s license belonging to Gooden was found in the house on the Parette property, and parts of the typed summary of Gooden’s oral confession suggest that Gooden was responsible for the overall manufacturing operation on the property, these facts do not establish that Gooden lawfully possessed or controlled the property or that he resided thereon. Though not abstracted, we find testimony by a witness residing on land adjoining the Parette property that a “neighbor” (Gooden) drove back and forth on the road leading to the property. Taken as a whole, however, the evidence of record is simply not such that this court is in a position to make a meaningful determination on the issue of standing which under the facts of this case is a necessary prerequisite to our consideration of Gooden’s challenges to the warrant, the underlying affidavit, and the subsequent search. Since we are reversing on other grounds, we do not find it necessary to labor through the record in search of a final answer on the issue of standing as it is certain of examination in the event of retrial.

III. PLEA AGREEMENT AND INCRIMINATING STATEMENT

Gooden argues that the court erred in failing to enforce the terms of his plea agreement entered into with his Louisiana attorney and the deputy prosecuting attorney for Faulkner County. In the alternative, Gooden argues that the court committed reversible error in denying his motion to suppress a written summary of his incriminating statement made in connection with the plea agreement and in allowing the interrogating officer, Ron Lewis, to testify as to the contents of the statement. In support of the latter argument, Gooden cites Rule 25.4 of the Rules of Criminal Procedure, which provides:

No evidence of any discussion between the parties, of any statement made by the defendant, or of the fact that the parties engaged in plea discussions shall be admissible in any criminal . . . proceeding [with exceptions not applicable].
Irrespective of whether a plea of guilty ... is the result of a plea agreement, if it is not accepted or is withdrawn . . . neither the plea . . . nor any statement by the defendant in connection with the making or acceptance of the plea ... is admissible in evidence against the defendant in any criminal [proceeding]. [Emphasis ours.]

Rule 410 of the Arkansas Rules of Evidence is essentially the same in purpose and effect. Although the written summary of Gooden’s incriminating statement was not introduced at trial, it is obvious to us that Officer Lewis should not have been permitted to testify as to the contents of the statement. As such, we do not reach the contention that the court erred in failing to enforce the terms of the plea agreement.

In reviewing the admissibility of Gooden’s statement, either as to the written summary or the testimony by Officer Lewis, this court makes an independent determination based upon the totality of the circumstances and reverses the actions of the trial judge only if it is found that the court’s finding was clearly against a preponderance of the evidence. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

Gooden’s motion sought suppression of the “introduction of any . . . custodial statements” made in connection with his plea agreement. (Emphasis ours.) During the hearing on the motion, the State tendered Officer Lewis’ written summary of Gooden’s incriminating statement, which the court ruled admissible in evidence. Gooden’s counsel responded, “Your Honor, that’s over my objection.” Rather than introduce the written summary at trial, the State presented the statement through testimony by Lewis. We see no difference in the admissibility of the written summary as opposed to Lewis’ testimony. Both are inadmissible under Rule 25.4 since Gooden’s incriminating statement was made in connection with his plea agreement. Gooden’s motion to suppress any statements should have been granted. The trial court committed reversible error in not doing so.

The State argues that the trial court’s determination should be upheld because Gooden failed to present the Rule 25.4 argument to the trial court, he did not abstract the incriminating statement in his brief on appeal, and the incriminating statement was not made in reliance upon the plea negotiations. We disagree.

In support of Gooden’s motion to suppress, it was specified that the statement was given in reliance upon and induced by the plea agreement entered into between Gooden and the prosecuting attorney, the details of which were included in the motion. Our general rule is that we do not consider issues raised for the first time on appeal, Stephens, supra, and objections at the trial court level must be sufficiently specific to apprise the court of the nature of the error complained of. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987). While Gooden may not have cited Rule 25.4 in his motion, our review of the proceedings and the underlying motion convinces us that the issue has been preserved for appellate review.

We are equally convinced that the incriminating statement was made in connection with the plea negotiations. At the suppression hearing Gooden stated that while in Louisiana on February 27 he refused to make a statement to officers until he had something “in writing.” Gooden further stated that he did not give the officers his statement until his attorney indicated that he had something in writing and Gooden could give a statement. It was conceded by the officers that Gooden’s attorney was conferring with the prosecuting attorney as to the details of the plea agreement in the hall outside the room where Gooden was being detained for questioning. The officer who eventually took Gooden’s statement admitted he knew negotiations were going on and that at one point Gooden’s attorney came into the room and gave the “go ahead” for a statement from Gooden. Our review of the record convinces us that the evidence clearly preponderates in favor of a finding that the statement was made in connection with and in reliance upon the plea agreement.

The State’s argument as to Gooden’s failure to abstract the statement in his brief on appeal is misplaced, as is its reliance upon Sutherland. State, 292 Ark. 103, 728 S.W.2d 496 (1987). The written statement was never introduced; rather, the State substituted the testimony of Officer Lewis, which was abstracted. In any event, we stated in Sutherland that any defect caused by failure to abstract an allegedly incriminating statement could be cured if the contents of the statement and its incriminating nature could be derived from other parts of the abstract.

In sum, Gooden’s objection to the trial court’s denial of his motion to suppress any custodial statements was sufficient to protect him at trial from Officer Lewis’ testimony. His incriminating statement was made in connection with the plea agreement and, while the written summary of the statement was not introduced, the State was nonetheless able to place the contents of the statement before the jury through Lewis’ testimony. We find this to be reversible error under Rule 25.4.

IV. CONVICTION OF CONSPIRACY TO MANUFACTURE, MANUFACTURE, AND POSSESSION WITH INTENT TO DELIVER

Gooden argues that he could not be convicted of conspiracy to manufacture marijuana and the actual manufacturing of marijuana in light of Ark. Code Ann. § 5-1-110 (1987), formerly Ark. Stat. Ann. § 41-105 (Repl. 1977), which in part provides:

(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(2) one offense consists only of a conspiracy, solicitation, or attempt to commit the other ....

Citing section 5-1-110(a)(1), Gooden also argues that he could not be convicted of manufacturing marijuana and possession of marijuana with intent to deliver as the same conduct establishes the commission of both offenses and, when one offense is included in the other, conviction may not be had for both. Because the facts as to the various charges may develop differently at the next trial, we do not reach these arguments at this time.

Reversed and remanded.

Hickman, Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. I dissent. In my view, the majority makes a much better case than the appellant made for himself in this matter. The reason the appellant had difficulty in presenting a proper record on appeal is that the positions he took below were often inconsistent. For instance, the majority refers to the deplorable state of the record on the issue of standing in connection with appellant’s argument that the court erred in denying his motion to suppress evidence obtained as a result of the unlawful search. This court’s response to appellant’s argument on this issue should be simple: Appellant presented no testimony at the suppression hearing by any witness that the appellant either owned, or was a tenant of, the Mayflower property, which was searched. In fact, the evidence presented is undisputed that this property was owned by Howard Phillip Parette, Jr. Appellant’s counsel is the only person who made any statement (albeit unsupported), indicating the appellant lived on the Mayflower property. Actually, the majority court agrees that the appellant failed in any way to establish standing by the record before this court in this appeal and suggests that this issue will surely be reexamined at retrial.

As I see the standing issue, the appellant at both the pretrial and the trial on the merits made every effort to claim certain personal properties which were found on the Mayflower farm but in every other way chose not to be identified with the Mayflower property. Simply put, the truth is that, except for the personalty he claimed that was found in the house at Mayflower, the appellant, for trial-strategy purposes, never claimed an interest, ownership or tenancy in the Mayflower property where the marijuana was found. Basically, the legal issue at trial became a factual one, and the trial judge decided it by ruling the appellant had no standing to challenge the search because he was not an owner or tenant. Even if the appellant changes his trial strategy on the retrial of this cause, the standing issue remains a factual one to be decided by the trial judge.

The majority court actually reverses this case holding that the trial court erred in admitting into evidence the appellant’s incriminating statements which he claims were made in reliance upon a plea agreement entered into between him and the state. Again, appellant’s point narrows itself to a factual issue which I believe was one correctly made by the trial judge. Instead, the majority court rejects the trial judge’s ruling and holds that it is convinced that the appellant’s incriminating statement was made in connection with the plea negotiations.

In making its factual decision, the majority points mainly to testimony given by the appellant. It is true that the appellant testified, at the suppression hearing, that, on the day he gave his statement, he refused to make any statement to officers until he had something in writing. However, contrary testimony was given by Officer Ron Lewis, who was the officer who took the appellant’s incriminating statements. Lewis testified that he was never aware that the appellant made his statements based upon any sort of promise of a plea agreement and, in fact, said he believed the appellant made his statements because the appellant was “trying to take all of the responsibility for the marijuana operation in [Arkansas], rather than to incriminate his cousin, Dr. Phillip Parette, Jr.”

Admittedly, the appellant’s and the state’s evidence on this issue was in conflict, concerning how and why the appellant gave his incriminating statements, but that was an issue the trial judge was required to, and did, make. The judge obviously did not believe the appellant’s testimony and ruled in favor of the state. The majority, in my opinion, is wrong in reversing the trial judge on the fact question. I would affirm.

Hickman and Hays, JJ., join this dissent.


author: Jack Holt, Jr., Chief Justice.

text:
    Lillie HILTON, Jerusha Hobbs, Verna Scrubbs, Shirley Kearney, and Geneva Eatmon v. PINE BLUFF PUBLIC SCHOOLS
    87-334
    748 S.W.2d 648
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Mitchell and Roachell, by: Marcia Barnes, for appellants.

      Mitchell, Williams, Selig & Tucker, by: Jeffrey H. Thomas, and Ramsey, Cox, Bridgforth, Gilbert, Harrelson & Starling, by: Spencer F. Robinson, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the responsibility of a school district, when merging with another district, to honor the teaching contracts of the dissolved district. Jurisdiction is pursuant to Ark. Sup. Ct. R. 29(1 )(c).

Appellants Lillie Hilton and Geneva Eatmon, nonprobationary teachers in the Linwood School District, and appellants Jerusha Hobbs, Shirley Kearney, and Verna Scrubbs, probationary teachers in the district, contracted to teach in the district for the 1983-1984 school year. In the 1983-1984 school year, Linwood and the appellee, the Pine Bluff School District (Pine Bluff Public Schools), negotiated a merger of the two districts for the 1984-1985 school year. Sometime in May of 1984, Superintendent Daniels of the Linwood District mailed an undated letter to the district’s teachers informing them of the potential merger and requesting that they waive their statutory right to notice of nonrenewal guaranteed by Ark. Code Ann. § 6-17-1506 (1987), formerly Ark. Stat. Ann. § 80-1266.3 (Supp. 1985), of the Teacher Fair Dismissal Act of 1983 [Ark. Code Ann. §§ 6-17-1501—6-17-1510 (1987), formerly Ark. Stat. Ann. §§ 80-1266—80-1266.10 (Supp. 1985)]. All of the appellants refused to waive this statutory right.

Linwood did not give the appellants notice of nonrenewal by May 1, 1984, as required by § 6-17-1506. On July 1, 1984, the Pine Bluff and Linwood School Districts merged. Subsequently, the Pine Bluff School District refused to honor the appellants’ contracts for the 1984-85 school year. In addition, it denied their applications for teaching positions for the 1984-1985 school year.

Appellants then filed an action in federal district court alleging violations of their fifth and fourteenth amendment due process rights and of the Arkansas Teacher Fair Dismissal Act. The district court dismissed the complaint for lack of subject matter jurisdiction. The Eighth Circuit Court of Appeals affirmed the district court.

On October 3,1986, the appellants filed a breach of contract suit in Jefferson County Chancery Court seeking reinstatement and backpay. Appellees filed an answer and motion for summary judgment. Thereafter, the case was transferred to circuit court. Based upon our holding in Woodard v. Wabbaseka-Tucker Public School Dist., 286 Ark. 110, 689 S.W.2d 546 (1985), the trial court granted the appellee’s motion for summary judgment. In so doing, it found that the Teacher Fair Dismissal Act did not apply and that the appellants never had a contract to teach in the Pine Bluff School District. We disagree.

Summary judgment is an extreme remedy which will be granted only when there is no genuine issue of material fact left to be litigated. Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). Consequently, all proof submitted must be viewed most favorably to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id.

In Woodard, supra, the appellant was employed as a teacher by the Plum Bayou-Tucker School District for the 1982-1983 school year. In 1983, the Plum Bayou-Tucker District was dissolved and merged with the Wabbaseka District. At the time of the merger, Plum Bayou-Tucker had not entered into contracts with its teachers. The Wabbaseka District refused to employ appellant for the 1983-1984 school year. The appellant then filed a breach of contract action against the Wabbaseka District. In holding for the school district, we stated as follows:

Appellant’s argument is that the appellee violated the Teacher Fair Dismissal Act of 1979 [Ark. Stat. Ann. §§ 80-1264 — 80-1264.10 (Supp. 1980)]. We cannot agree that the Act is controlling under the circumstances of this case. The Act protects the right of renewal of a contract between a teacher and the Board of Directors of a school district. The Act does not attempt to define the rights of teachers and districts to enter into an initial contract. In the present case the appellant’s employing district no longer exists. Therefore, he is applying to a new or different district and is not seeking renewal of his contract. He did not have a contract with the Wabbaseka District. Even if appellant were covered by the Act he does not have an absolute right to the job. He has the right not to be treated arbitrarily or capriciously, or discriminated against because of race, religion, sex, age, or national origin. If the School Board action is supported by rational reasons and does not discriminate for the foregoing reasons the appellant’s rights are not violated ....

This case is not controlling. In the present case, the appellants had contracts with the Linwood School District for the 1983-1984 school year at the time of the merger with the Pine Bluff School District by virtue of Ark. Code Ann. § 6-17-1506 (1987), which provides in pertinent part as follows:

Automatic contract renewal — Notice of nonrenewal.
(a) Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument, unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed or, unless during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors her resignation as a teacher, or unless such contract is superseded by another contract between the parties.

When the appellants did not receive notice of recommended nonrenewal by May 1, 1984, their contracts with the Linwood School District were automatically renewed for 1984-1985 school year. See Marion County Rural School Dist. No. 1 v. Rastle, 265 Ark. 33, 576 S.W.2d 502 (1979); see also Western Grove School Dist. v. Strain, 288 Ark. 507, 707 S.W.2d 306 (1986). Furthermore, the Pine Bluff School District, as a district to which new territory had been annexed, was bound to honor these contracts pursuant to Ark. Code Ann. § 6-13-220 (1987), formerly Ark. Stat. Ann. §§ 80-419 and 80-422 (Repl. 1980). See Nicholson v. Ash Flat School Dist. No. 4, 220 Ark. 787, 249 S.W.2d 983 (1952); Chidester School Dist. No. 50 v. Faulkner, 218 Ark. 239, 235 S.W.2d 870 (1951); Horsman v. Tokio School Dist. No. 82, 210 Ark. 225, 195 S.W.2d 51 (1946). This statute provides in pertinent part as follows:

(a) Any new school district which is created or district to which new territory is annexed shall-succeed to the property of the district dissolved, shall become liable for its contracts and debts, and may sue and be sued therefor.

In light of the foregoing, we conclude that the trial court erred in granting summary judgment. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Darrell Hickman, Justice.

text:
    Robert Lee BURNETT v. STATE of Arkansas
    CR 87-93
    749 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Sherman & James, by: Anthony J. Sherman, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is a capital felony murder case. Robert Lee Burnett was convicted of murdering Rhonda Dobson, a clerk at the Super Stop in Brinkley, Arkansas. He received the death penalty. The victim was bludgeoned and stabbed repeatedly. The crime occurred in the early morning hours of July 10,1986. We reverse the conviction because Burnett was unlawfully seized at his home in violation of the Fourth Amendment to the United States Constitution and evidence obtained as a result of that seizure was used against him.

A police officer drove by the Super Stop just after the crime occurred. He saw a black man run from the store but was unable to identify him; he searched but couldn’t find him. Several people, who were traveling together in a truck which had stopped at the store, also witnessed the same man run from the store and jump a nearby fence. One of the people, Barbara Kuykendall, was taken to the police station, given a book of photographs, and asked if she could identify the man she saw. She testified at the pretrial suppression hearing that she could not identify the man. She said he was not included in the photographs. However, a police officer testified Mrs. Kuykendall kept coming back to one picture and commenting there was a similarity between this photograph and the man she had seen. The photograph was one of Burnett, taken a few years earlier.

On this information alone, several police officers went to Burnett’s house about 6 a.m., awakened him, and told him to come to the police station. One of the officers testified that Burnett was told Chief Storey wanted to talk to him. He was not arrested; but neither was he told he had any choice; he put on his trousers and accompanied the officers. When Burnett arrived at the station, he was promptly advised of his rights by Deputy Sheriff James Nolen. Nolen turned him over to Bill Gage, an investigator with the Arkansas State Police. Gage questioned Burnett, and Burnett denied killing anyone. However, Burnett did make a statement in which he admitted he had gone, in the early morning hours, to another store and to the Super Stop to obtain some mosquito repellant. He said he finally found the repellant at an Exxon station and returned home. This statement was made at 7:40 a.m.

About 10:30 a.m. a lineup was conducted. Barbara Kuykendall identified Burnett from the lineup. None of the participants had shirts on and two of them did not have shoes on. Burnett was not wearing shoes. There was evidence that the man running from the station did not have a shirt on, wore shorts or similar apparel, and wore no shoes.

About noon Burnett was turned over to an officer of the Arkansas State Police for a polygraph examination. The officer said he advised Burnett of his rights, conducted a polygraph examination, told Burnett he flunked the test, and he was lying about his participation in the murder. Burnett was again questioned by Officer Gage. This time a part of the interrogation was recorded. Burnett admitted he killed Rhonda Dobson. He said he had found a shotgun and a shaving kit and had gone to the store. “I took the shotgun up to the Super Stop. I went inside the Super Stop and sat the gun down just inside the door. I ask the girl who was working about the spray and she said, ‘Nigger find it yourself or get out.’ She was drinking pop or something and she threw it in my face. We got to fighting and that is the last thing I remember. I remember knocking her down.” Burnett was arrested about 3:30 p.m. by Officer Gage after making a second incriminating statement.

A pretrial suppression hearing was held to determine if the statements and the identification should be excluded because of the unlawful arrest or seizure of Burnett at his home. The trial judge ruled that the officers had “probable cause to ask the defendant to come to the station, whether he was arrested or not.” He found Burnett’s rights had been protected and the statements and identification were valid. We agree with the appellant’s argument that the trial court erred.

There is no doubt that the officers did not have probable cause to arrest Burnett for the crime when he was picked up. The only evidence they had was the information supplied by Kuykendall. She testified at the suppression hearing that Burnett was not in the photographs she was shown. An officer testified she kept “coming back” to Burnett’s picture, but she did not identify Burnett from the photograph. Later during the trial Kuykendall elaborated on her testimony and said there was indeed a picture which looked like the man she had seen running from the store, but the man she had seen had a much thinner face.

The law is clear that a person cannot be arrested in his own house without a warrant absent exigent circumstances. Payton v. New York, 445 U.S. 573 (1980). If such an illegal arrest is made, any evidence obtained as a result of the arrest will be suppressed. Wong Sun v. U.S., 371 U.S. 471 (1963). Also a person cannot be “seized” at his house without probable cause. Both acts are in violation of the Fourth Amendment to the United States Constitution. See Dunaway v. New York, 442 U.S. 200 (1979). The test for whether one has been seized was announced in United States v. Mendenhall, 446 U.S. 544 (1980), which provided:

We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

In a case almost identical to the present case, the United States Supreme Court held there was a seizure. Dunaway v. New York, supra. A police sergeant, questioning a jail inmate about Dunaway, learned nothing that would warrant obtaining an arrest warrant. Nevertheless, he ordered other officers to “pick up” Dunaway and bring him in. Dunaway was taken into custody by three officers and, although he was not told he was under arrest, he would have been restrained if he had attempted to leave. He was given his Miranda rights, questioned and evidently made an incriminating statement. The court had little doubt that Dunaway was “seized.” The state argued the detention did not amount to an arrest and was a permissible detention under Terry v. Ohio, 392 U.S. 1 (1968), because the police had a “reasonable suspicion” that Dunaway possessed “intimate knowledge about a serious and unsolved crime.” The court rejected the argument:

In contrast to the brief and narrowly circumscribed intrusions involved in those cases [Terry v. Ohio, supra, and similar decisions], the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was ‘free to go’; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an ‘arrest’ under state law. The mere facts that petitioner was not told he was under arrest, was not ‘booked,’ and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, [cite omitted] obviously do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.
The central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. ‘The requirement of probable cause has roots that are deep in our history.’ [cite omitted]. Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that ‘common rumor or report, suspicion, or even “strong reason to suspect” was not adequate to support a warrant for arrest.’ [cite omitted] The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the ‘reasonableness’ requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule.

The court concluded:

[Detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. We accordingly hold that the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause, they seized petitioner and transported him to the police station for interrogation.

In Hayes v. Florida, 470 U.S. 811 (1985), the police went to the home of a principal suspect in a burglary and rape case. The officers spoke to him on his front porch. When he was reluctant to go to the station voluntarily, an officer said he would arrest him. The suspect “blurted out” he would rather go than be arrested. The suspect was taken to the police station without a warrant and fingerprinted. The court held that there was no probable cause to arrest the suspect, no consent to the journey to the police station, no prior judicial authorization for detainment, and the investigation and detention at the police station for fingerprinting violated the Fourth Amendment. The fingerprints were suppressed as evidence. The court said:

And our view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause.

In the present case the trial judge did not rule the officers had probable cause. He ruled they had enough information to detain Burnett for investigative purposes. The appellant says seven officers picked him up; the state concedes four or five were present. The record reflects, by those officers who testified, that at least six policemen were present when Burnett was picked up. Burnett was not arrested; he was simply told to get his clothes on and come to the station. He was not told he could stay home. Although the officers were armed, there is no evidence, other than the appellant’s testimony, that any of them held their weapons on Burnett.

Considering the totality of the circumstances, we conclude that Burnett was seized at his home in violation of the Fourth Amendment. The officers did not comply with our rules of criminal procedure, which require that an officer inform a person he is free not to accompany the officer if the officer does not have a warrant. See A.R.Cr.P. Rule 2.3. A reasonable person in Burnett’s position would have thought that he had no choice except to accompany the officers to the police station. There is no real difference in this case and Rose v. State, 294 Ark. 279, 742 S.W.2d 901 (1988), where the defendant was picked up, detained and interrogated without probable cause.

The state argues that other independent evidence was discovered during the day which would provide the necessary probable cause. One officer testified that on the morning of the murder they found a trail of money from the Super Stop to Burnett’s house. However, the evidence only showed that the trail was a few feet long leading in the general direction of Burnett’s house. About 10 a.m. that morning, a consent search of Burnett’s residence was conducted and a sock was found in a garbage sack. Evidently it matched one found at the scene of the crime. (Officer Nolen testified that Burnett told him on August 13,1986, that he had socks on his hands at the time of the robbery.)

An unusual development did take place during the trial about a piece of evidence. Two months after the crime, on September 11,1986, Officer Nolen took a statement from Earnie Pye, which stated that Pye had seen Burnett leave the Super Stop just before Pye discovered the body. This evidence, if credible, undoubtedly, would have made the state’s case; it would have given the state the probable cause it needed to arrest Burnett. But the state chose not to offer this evidence at the pretrial hearing nor during the trial. The same day this statement was taken by Nolen, Pye wrote a handwritten statement for the deputy prosecuting attorney denying the truth of the statement. Pye was in the county jail at the time, and he said Officer Nolen made him sign the statement by threatening him with more time for his offense. At the pretrial hearing held on January 5,1987, the state did not ask Officer Nolen about this information. In fact the deputy prosecuting attorney indicated to Nolen at one point not to repeat any hearsay he may have obtained from Pye.

The defense called Officer Nolen as a hostile defense witness, and Nolen testified that Pye told him early that morning before Burnett was picked up that the man leaving the station looked like Burnett. The September statement given to Nolen and the letter from Pye to the deputy prosecuting attorney were offered to impeach Officer Nolen and to show a witness was coerced to say something he did not want to say, and to show there was a pattern that the state was trying to “prove up more of a case than they had at the time.” The defense called an auxiliary police officer who testified that he was asked to go to the Exxon station and review surveillance tapes from a camera to see if Pye was on the tape. He could not recall if he was asked to view the tapes on July 10 or July 11.

The officer, immediately on the scene, related that Pye and another person came up after the man had run from the ‘Super Stop and that Pye could not have seen the man exit the station.

The state in this case simply failed to prove that the seizure without a warrant was with probable cause and that the detention was lawful under the Fourteenth Amendment. Evidence accumulated during the day did not bolster the state’s case nor alter the fact that it had no probable cause to seize, detain, and interrogate Burnett.

We hold the statements and lineup identification were taken in violation of the Fourth and Fourteenth Amendments of the United States Constitution and must be suppressed. Hayes v. Florida, supra.

The lineup was not suggestive in our judgment although Burnett, who is 5’4”, was shorter than any of the other participants. Kuykendall did not say the man was short. She said the man jumping the fence was about the height of her husband who is 5T1”. This discrepancy would go to the weight of her testimony, not the correctness of the lineup. Sergeant Gage testified that the participants were sitting and that he had them stand one at a time so the difference in height would not be noticeable. But Kuykendall testified that the participants were all standing when she saw the lineup. Burnett testified that all the participants were standing the first time they were viewed for identification and that the second time they were all sitting and stood one at a time. Kuykendall testified that the reason she recognized Burnett was because of his slim, pointed face. While the lineup itself was not suggestive, it was the result of the illegal seizure of Burnett and the lineup identification cannot be used as evidence against him. Hayes v. Florida, supra.

That does not mean the in-court identification by Kuykendall is automatically excluded.

The United States Supreme Court has defined the standard for admitting an in-court identification after an illegal arrest. In United States v. Wade, 388 U.S. 218 (1967), the court held that the admissibility of an in-court identification requires consideration of various factors:

[T]he prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any prelineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.

In United States v. Crews, 445 U.S. 463 (1980), the witness viewed photographs at the police station and later made an in-court identification. The court said:

A victim’s in-court identification of the accused has three distinct elements. First, the victim is present at trial to testify as to what transpired between her and the offender, and to identify the defendant as the culprit. Second, the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime. And third, the defendant is also physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender.

We cannot conclude from this record whether the in-court identification should be suppressed. The question addressed at the trial was whether the lineup was proper — not whether Kuykendall’s in-court identification was tainted by the illegal arrest and detention. On remand the court will conduct a pretrial hearing to determine whether the in-court identification was tainted by the illegal seizure. See Wright v. State, 258 Ark. 652, 528 S.W.2d 905 (1975).

We now address the other issues which may arise again at a retrial. Objection was made to the admissibility of the photographs. We have repeatedly held that photographs, even though inflammatory, are admissible to illustrate the savagery of the attack, prove an element of the offense or assist the jury in understanding the testimony. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). We find no abuse of discretion in this case.

It is argued that Arkansas’ capital murder law does not require an intent to kill and is unconstitutional. We have held “[t]he working of the statute, i.e., conduct manifesting extreme indifference to human life, indicates that the perpetrator of capital murder must act with deliberate conduct which culminates in the death of some person.” Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). We find the constitutional requirements are satisfied. Sec Tison v. Arizona,— U.S--, 107 S. Ct. 1676 (1987).

The argument is made it is unconstitutional to seek the death penalty when a black defendant is tried for the murder of a white victim. This argument was rejected in McCleskey v. Kemp, _U.S__, 107 S. Ct. 3199 (1987).

Appellant also argues that Arkansas’ capital felony murder statute amounts to a mandatory death sentence because the jury cannot show mercy regardless of its findings. This argument was rejected in Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1987).

Reversed and remanded.