author: Robert L. Brown, Justice. Wh. "Dub" Arnold, Chief Justice,

text:
    James HOAY v. STATE of Arkansas
    CR 01-1108
    71 S.W.3d 573
    Supreme Court of Arkansas
    Opinion delivered April 4, 2002
    [Petition for rehearing denied May 16, 2002]

      Blackmon-Solis & Moak, L.L.P., by: DeeNita D. Moak, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is an appeal by appellant James Hoay from a conditional plea of guilty to possession of methamphetamine. He was sentenced to eighteen months to serve in prison followed by five years’ suspended imposition of sentence. He appeals his conditional plea under Ark. R. Crim. P. 24.3(b) based on the trial court’s denial of his motion to suppress the seizure of methamphetamine following an illegal traffic stop. We reverse the order denying the suppression and remand this case for determination of the question of who was responsible for not quashing an outstanding arrest warrant that led to Hoay’s invalid arrest.

On July 9, 1999, during the early evening hours, Officer Jeff Midgett of the Clay County Sheriffs Department observed a truck driven by Hoay move to the right of the fog line, cross the center line twice, and drive to the right of the fog line again for approximately one-half a mile to one mile. At that point, Officer Midgett stopped the vehicle. As the truck pulled off to the side of the road, the police officer saw the driver “bending over . . . toward the floorboard” of his vehicle. The driver identified himself as James Hoay, and he gave the police officer his driver’s license. The police officer did not detect the smell of alcohol and requested no field sobriety tests. He ran the driver’s license through the National Crime Information Center and found that there was an outstanding arrest warrant on Hoay issued from Greene County.

Officer Midgett then checked with two dispatchers in the Greene County Sheriffs Department and verified that an arrest warrant on Hoay was outstanding due to his failure to appear in court on a felony charge for possession of a controlled substance. The police officer returned to Hoay’s vehicle and arrested Hoay on the outstanding warrant and handcuffed him. At that point he observed a bulge in one of Hoay’s socks and pulled the sock down. He found a ziploc bag which contained crystal methamphetamine. In a bag with personal belongings located in the truck, Officer Midgett found a separate plastic bag and razor blades,

Hoay was charged with possession of methamphetamine and possession of drug paraphernalia. He moved to suppress the methamphetamine seized based on the fact that the Greene County warrant had been set aside and, thus, the arrest was invalid. In support of his motion, Hoay introduced a Greene County docket sheet showing that the arrest warrant was issued on February 11, 1999, and quashed on April 20, 1999. The motion was denied. The trial court specifically found that Officer Midgett was operating in good faith in making the arrest, though the court also noted that there was some breakdown in communication with the Greene County Sheriff s office. Hoay then entered his conditional plea to possession of methamphetamine. The drug paraphernalia charge was nolle prossed.

The Arkansas Court of Appeals suppressed the drugs seized and remanded the case. Hoay v. State, 75 Ark. App. 103, 55 S.W.3d 782 (2001). We granted the state’s petition for review. When reviewing a case, we treat the matter as if the appeal were originally filed in this court. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998).

Hoay contends on appeal that the trial court erred in denying his motion to suppress. This court has said that the proper standard for reviewing a trial court’s grant of a motion to suppress is to “make an independent determination based upon the totality of the circumstances, viewing the evidence in the light most favorable to the State.” Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001) (quoting Wright v. State, 335 Ark. 395, 983 S.W.2d 391 (1998)). The court will only reverse if the trial court’s ruling is clearly against the preponderance of the evidence. Id.

Hoay urges that Officer Midgett lacked reasonable suspicion to effect the traffic stop. We disagree. Rule 3.1 of the Arkansas Rules of Criminal Procedure provides in part:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger or forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

Officer Midgett observed Hoay weaving across the road lines for a substantial distance. That certainly would constitute reasonable suspicion of driving while intoxicated, even though Midgett did not smell alcohol on Hoay’s breath after the stop. We conclude that there was no error by Midgett in making the stop. See Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994).

Hoay’s primary point on appeal is that he was arrested pursuant to an invalid arrest warrant and'that, as a consequence, the subsequent search was invalid. The State’s retort is that Officer Midgett operated in good faith in making the arrest and seizing the drugs and, indeed, did not only receive the information regarding the outstanding warrant from the NCIC but verified it twice through the Greene County Sheriffs dispatcher.

In United States v. Leon, 468 U.S. 897 (1984), the United States Supreme Court set the standard for searches and seizures made in good faith. In Leon, the Court confronted the question of a police officer’s good-faith reliance on a magistrate’s determination of probable cause in issuing a search warrant which was found to be invalid. The Court said that the purpose of the exclusionary rule for unconstitutional searches is to “deter police misconduct rather than to punish the errors of judges and magistrates.” 468 U.S. at 916. The Court went on to say that “ [i]f exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments.” Id. at 918. The Court further found that suppression of evidence' pursuant to a warrant should be ordered only on a case-by-case basis when the purposes of the exclusionary rule will be furthered. Quoting United States v. Peltier, 422 U.S. 531 (1975), the Court reasoned that evidence should only be suppressed if the particular officer “had knowledge, or may properly [have been] charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 919 (quoting United States v. Peltier, 422 U.S. at 539). The Court concluded that where an officer is acting in good faith, using an objective standard, a subsequently invalidated warrant obtained from a magistrate will not operate to trigger the exclusionary rule. Id. at 920-21.

In Arizona v. Evans, 514 U.S. 1 (1995), the Court was confronted with a situation that bears striking similarities to the case at hand. In Evans, a police officer pulled the defendant over after he violated a traffic law. After learning that the defendant’s driver’s license was suspended, the police officer entered the defendant’s license into a data terminal in his patrol car. He discovered that the defendant had a outstanding misdemeanor warrant. Based on the outstanding warrant, the police officer arrested Evans and handcuffed him. After doing so, he discovered that Evans had a marijuana cigarette. Later, it came to light that the misdemeanor arrest warrant had been quashed seventeen days prior to the arrest, but the evidence showed that a court clerk had made the computer error and not the sheriffs office. The Court concluded that a court clerk must have been responsible for the error and, thus, exclusion of the evidence would serve no deterrent effect on the police department. The Court said:

If court employees were responsible for the erroneous computer record, the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction. First, as we noted in Leon, the exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. Second, respondent offers no evidence that court employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. To the contrary, the Chief Clerk of the Justice Court testified at the suppression hearing that this type of error occurred once every three or four years.
Finally, and most important, there is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion of evidence could not be expected to deter such individuals from failing to inform police officials that a warrant had been quashed.
There is no indication that the arresting officer was not acting objectively reasonably when he relied upon the police computer record. Application of the Leon framework supports a categorical exception to the exclusionary rule for clerical errors of court employees.

Id. at 14-16 (internal citations omitted). The clear import of the Evans decision is that the good-faith exception to the exclusionary rule is applicable for errors committed by court personnel. The converse issue of whether the good-faith exception applies when police personnel are involved in faulty recordkeeping was not reached by the Court. Justice O’Connor, however, noted in her concurrence in Evans: “Certainly the reliability of recordkeeping systems deserves no less scrutiny than that of informants.” 514 U.S. at 17 (Connor, J., concurring). She was joined by two other justices in her concurrence. Two additional justices dissented to the Evans holding, albeit for different reasons, on the basis that the exclusionary rule should apply to clerical errors made by court personnel.

In the case before us, the State failed to establish who was at fault in failing to nullify the Greene County arrest warrant. While the State argues to the contrary, it was the State’s burden to show that the good-faith exception to an unconstitutional search applied. See United States v. Leon, 468 U.S. at 924 (“[T]he prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.”). And while the State offers that Officer Midgett ostensibly acted in good faith, the State fails to address whether that good faith extended beyond Officer Midgett and to the law enforcement personnel in the Greene County Sheriffs Department. Indeed, the Court said in Leon that “[i]f exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officer or the policies of their departments.” United States v. Leon, 468 U.S. at 918 (emphasis added). While Officer Midgett’s actions are relevant to the first part of Leon’s concern, clearly the actions of the Greene County Sheriff’s Office are relevant to determine whether the exclusion of evidence would alter the policies of that department with respect to recordkeeping and arrest warrants.

Ascertaining the scope of the fault in failing to quash an invalid search warrant is a matter of first impression for this court. Officer Midgett acted reasonably and in good faith in this case, based on what we have before us. It would fly in the face of the Leon principle, however, were this court to refuse to suppress the drugs seized based on objective good faith when Greene County law enforcement personnel, as opposed to Officer Midgett, may have been at fault. If the touchstone of the exclusionary rule is deterrence of police misconduct, as Leon makes clear, that rule should apply equally to defective recordkeeping by law enforcement. Hence, the issue of who was at fault, court personnel or law enforcement, needs to be resolved. We note on this point that the State, as a secondary argument, does not oppose a remand to resolve this issue.

Accordingly, we reverse the order denying suppression and remand this case to the trial court for a second suppression hearing to determine who was at fault in failing to quash the arrest warrant. If law enforcement personnel were not responsible, and the error was clerical in nature, then the good-faith exception should apply. See Arizona v. Evans, supra.

Reversed and remanded.

Arnold, C.J., Corbin and Hannah, JJ., dissent.

Wh. "Dub" Arnold, Chief Justice,

dissenting. I agree with the majority that Officer Midgett acted reasonably and in good faith in this case based upon what we have before us; however, I disagree with the majority that the facts of this case necessitate a determination of who was responsible for not quashing an outstanding arrest warrant that led to the appellant’s invalid arrest. Although the identity of the person(s) who failed to remove the warrant from the computer is unknown, I believe it is clearly immaterial in this particular case, wherein the arresting officer from one county relied in good faith upon the information from another county and exercised exceptional care in determining that the warrant was truly outstanding before he made the arrest. In my opinion, this case illustrates a perfect example of when the good-faith exception to the exclusionary rule should apply under Leon, thereby saving from suppression the evidence seized during the search incident to arrest.

In Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001), we stated that the Supreme Court in Leon noted that the Fourth Amendment contains no provision expressly precluding the use of .evidence obtained in violation of it commands. Id. In interpreting Leon, we stated:

The Court further noted that an examination of the Fourth Amendment’s origin and purposes makes it clear that the use of fruits of a past unlawful search or seizure works no new Fourth Amendment wrong. The exclusionary rule rather works to deter future violations generally. Leon, 468 U.S. at 906. The Court then went on to note that if the goal is to deter future police misconduct, then it only makes sense to apply the exclusionary rule where indeed its application has a deterrent effect, and that where the officers acted in objective good faith or where the transgressions are minor, the magnitude of the benefit conferred upon guilty defendants offends the basic concepts of the justice system. Id. at 907. The Court found that in the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically correct, and that once the warrant issues, there is literally nothing more the officer can do in seeking to comply with the law. Leon, supra; Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988).

Id. at 118. Certainly, in this case, there was nothing more the arresting officer could have done except ignore the outstanding warrant, and that would have been a clear dereliction of his duty. Further, and more importantly, I fail to comprehend how the suppression of the contraband discovered in Clay County due to an error committed by someone in the Greene County court system or by its law enforcement personnel would have any deterrent effect on the law enforcement personnel of Greene County, which is not the county wherein the arrest was made and the case was tried.

The majority relies heavily on the Arizona v. Evans, 514 U.S. 1 (1995), case to support its opinion that when police personnel are involved in faulty recordkeeping, the good-faith exception does not apply; however, I believe the majority’s opinion is too far-reaching. It is basically lumping all police personnel, from whatever county, city, or state, together under the theory that, in so doing, it will have some sort of universal deterrent effect. This is implausible.

In Evans, the facts were substantially the same as the instant case with two exceptions. In both cases an officer had reasonable suspicion to make a routine traffic stop; upon checking with the patrol car’s computer, the officer learned of an outstanding arrest warrant and made an arrest; upon search of the subjects and the vehicles, unlawful drugs were found; and it was subsequently learned that the arrest warrant was no longer outstanding and should have been removed from the computer. In Evans, there was testimony that the failure to remove the arrest warrant from the computer was the error of an employee of the clerk of the court; and, in the instant case, there was no testimony as to the reason for the error. The other difference, and the one that makes this case so distinguishable from Evans, was that the officer in the instant case was not satisfied just to learn of the outstanding warrant on the computer; he also made two separate calls to the neighboring county where the warrant emanated and was told by two different dispatchers that the warrant was outstanding.

Through his own dispatcher, Midgett checked appellant’s license with the National Crime Information Network (“NCIC”), which, according to Midgett, is a nationwide list of persons who have felony warrants for arrest, and found that a warrant for appellant’s arrest had been issued in Greene County. Midgett then contacted two different dispatchers for Greene County, one by telephone and one by radio, and Midgett was informed by both dispatchers that they possessed an arrest warrant for appellant based on his failure to appear on a felony charge for possession of a controlled substance. Midgett testified that he did not know that the warrant had been set aside, that this was his typical method for verifying warrants, and that he had no problems with Greene County in the past, as he had made several felony and misdemeanor arrests on Greene County warrants.

Again, in this case, there was nothing more the arresting officer could have done, and I fail to understand how the suppression of the contraband discovered in Clay County due to an error committed by someone in the Greene County court system or by its law enforcement personnel would have any deterrent effect on the law enforcement personnel of Greene County, which is not the county wherein the arrest was made and the case was tried. Even if the error was determined to be the fault of law enforcement from Greene County, Officer Midgett, a Clay County officer, still acted in good faith.

In short, although the identity of the person(s) who failed to remove the warrant from the computer is unknown, I believe it is clearly immaterial in this particular case. I, therefore, must dissent with the majority’s decision to remand the case for a determination of who was responsible for not quashing the warrant.

Corbin and Hannah, JJ., join this dissent.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Sharon WHITAKER v. STATE of Arkansas
    CR 01-1044
    71 S.W.3d 567
    Supreme Court of Arkansas
    Opinion delivered April 4, 2002

      Page, Thrailkill, and McDaniel, P.A., by: Patrick McDaniel, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Sharon Whitaker. aPDeals from a judgment of conviction for manslaughter and a sentence of ten years. She raises two points on appeal: (1) the trial court erred in permitting the jury to take the videotape of a custodial statement made to the Mena Chief of . Police into the jury room as part of its deliberations; and (2) the trial court erred in failing to suppress that statement. We reverse on the second point and remand for further proceedings.

In March 2000, Bill and Sharon Whitaker had been married for about twenty years. They lived in Mena, and they had one child, Matthew, who was nineteen years old at that time. Sharon also had two children from a previous marriage. The couple owned two businesses together, Rich Mountain Aviation and Rich Mountain Aircraft Parts. Bill was the president of both companies, and Sharon served as the companies’ office manager.

Their marriage was tumultuous, according to several witnesses who testified at trial, including the Whitakers’ son Matthew. Bill had multiple extramarital affairs and was, at times, mentally and physically abusive to his wife and son. Sharon left Bill several times, only to return to him following his promises to recommit himself to the marriage. In January 2000, Sharon learned that her husband had been having another affair, this time with a woman he had known since high school. Sharon decided that she wanted a divorce. The two coexisted uneasily for the next month and a half.

On the afternoon of March 15, 2000, Sharon was at home, packing her husband’s clothes into a trailer for purposes of the divorce. Bill was on his way back to Mena from Missouri. He reached the Rich Mountain office at about 3:30 p.m. When he got to his office, his secretary, Carolyn Lindy, updated him on business matters. He told Lindy that he would be at the office well into the evening.

Sharon had also been in touch with Lindy and wanted Lindy to notify her when her husband returned to the office. According to her trial testimony, Sharon was frightened about their next encounter, because she wanted a divorce and wanted her husband to move out of their home. She told Lindy that she wanted her to call her when Lindy left the office. When Lindy did leave the office around 5:45 p.m., she called Sharon and told her that she was leaving. She also told her that Bill was going to stay at the office to continue working.

Sharon left her home and went to the office. The facts concerning what happened when she got to the office were sharply disputed at trial. Sharon contended that she wanted to speak with her husband about the divorce and his moving out. She testified at her trial that there was a struggle in the Rich Mountain Aviation office and that when Bill pushed her down, she grabbed a pistol on a nearby table and shot him in self-defense. The State countered that Sharon went to the office with the intent to kill her • husband and that the shooting was not an act of self-defense.

What is undisputed is that Sharon called 911 at 5:57 p.m. and told the dispatcher that someone had been shot. She requested police and ambulance units. Officer Tim Milham of the Mena Police Department responded to the call. He found Sharon sitting outside the office building, crying. She told Officer Milham that there was someone inside the building who had been shot. Inside the building, he and other responding officers found Bill Whitaker barely alive, with five gunshot wounds to his legs and lower torso. Emergency medical technicians arrived at the scene, and Bill was taken to the hospital where he died from his wounds.

The police officers arrested Sharon and took her to the Mena Police Station. At about 6:30 that evening, she was interrogated by Mena Police Chief Russell Nichols. The interrogation was videotaped. She had already been Mirandized once, but Chief Nichols informed her again of her Miranda rights and then asked her to tell him what had happened. She initially responded “no,” but after Chief Nichols asked again, she began discussing her marriage. She continued to answer questions for fifteen minutes, at which time she asked for an attorney. Chief Nichols stopped the interrogation.

The State charged Sharon with first-degree murder. Subsequently, she moved to suppress her videotaped statement and asserted that Chief Nichols had violated her Fifth Amendment right to remain silent when he continued questioning her after she had first answered “no” to his initial inquiry. The trial court denied her motion to suppress.

A jury trial was held over four days. When they retired, the jurors took Sharon’s videotaped statement to Chief Nichols back to the jury room with them. No objection was made to this by defense counsel. In closing argument, the prosecutor had encouraged the jury to watch the videotape during its deliberations. The jury returned a verdict, convicting Sharon of manslaughter, and she was sentenced to ten years’ imprisonment.

Sharon asserts that Chief Nichols obtained her videotaped statement in violation of her Fifth Amendment right to remain silent and not incriminate herself. Thus, she argues, it was error for the trial court to admit the videotape into evidence over her motion to suppress. The State argues, in response, that Whitaker did not unequivocally invoke her right to remain silent and that in the absence of an unequivocal invocation, Chief Nichols was well within his authority to continue questioning her.

When reviewing a trial court’s decision on a motion to suppress, this Court makes an independent determination based on the totality of the circumstances and will reverse if the trial court’s decision was clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997); Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996); Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). This court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001); Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000).

A statement made while an accused is in custody is presumptively involuntary, and the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Lacy v. State, supra; Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). A defendant may cut off questioning at any time by unequivocally invoking his right to remain silent. Michigan v. Mosley, 423 U.S. 96 (1975). When the right to remain silent is invoked, it must be “scrupulously honored.” Mosley, 384 U.S. at 479; Miranda, 423 U.S. at 103; Hatley v. State, 289 Ark. 130, 133, 709 S.W.2d 812, 814 (1986). Our Criminal Rules follow in this mold and provide that a police officer shall not question an arrested person if that person indicates “in any manner” that he does not wish to be questioned. Ark. R. Crim. P. 4.5.

A defendant may also waive an invocation of her right to silence. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001). Specifically, answering questions following a statement that attempts to invoke the right to remain silent may waive that right by implication. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Standridge v. State, 329 Ark. 473, 951 S.W.2d 299 (1997). The accused may change her mind and decide to talk to law enforcement officials. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995) (citing Michigan v. Jackson, 475 U.S. 625 (1986); Edwards v. Arizona, 451 U.S. 477 (1981); Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981s)).

Whitaker contends that she unequivocally invoked her right to remain silent at the outset of the videotaped statement. The record contains the following transcription of the interview:

Chief Nichols: Now, having these [Miranda] rights in mind, like I said, I don’t know even what happened. Do you want to tell me what’s going on?
Sharon: No.
Chief Nichols: And, what we’re doing?
Sharon: No.
Chief Nichols: Okay.
Sharon: No. No. No. No.
Chief Nichols: Well, what’s — what happened out there?
Sharon: Huh-uh. [negative response]
Chief Nichols: Have you been involved in a fight?
Sharon: Well, I can tell you this. My husband decided that he wanted to marry his high school sweetheart and — and I’ve just found out she’s filed for a divorce and they were going to get married. And we’ve been married for a long time. We have a 19 year old son that just went in the navy and he’s doing really good. And we’ve just started a business and —
Chief Nichols: Why do people do stuff like that?

However, the tape itself reveals a different sequence of questioning. Whitaker and Nichols were speaking simultaneously at several points. Sharon’s six statements of “no” were continuous and were interspersed within Nichols’s questions. While Sharon was repeating her statement of “no,” she was bent over and shaking her head. The following is a more accurate transcription of the interchange. Sharon’s initial “no” is contained within brackets.

Chief Nichols: Now, having these rights in mind, like I said, I don’t know even what happened. Do you want to tell me what’s going on [no] and what we’re doing?
Sharon: No. No. No. No. No.
Chief Nichols: Well, what’s — what happened out there?
Sharon: Huh uh.
Chief Nichols: Have you been involved in a fight?
Sharon: Well, I can tell you this. My husband decided that he wanted to marry his high school sweetheart and —• and I’ve just found out she’s filed for a divorce and they were going to get married. . . .

At this time, Sharon continued to answer questions and did so for about fifteen minutes. She never directly admitted shooting Bill; however, she said to Chief Nichols: “Put me way away” and repeatedly said that she did not want to live. She also discussed her marital problems at length. She added: “I’m scared to know what I did.” When asked later by the police chief whether she was involved in a shooting, she answered: “Huh, uh, I don’t want to talk about it.” When she eventually requested an attorney, Chief Nichols ceased the questioning immediately.

The trial court ruled that Sharon never unequivocally invoked her right to remain silent. In doing so he said:

To me, that [transcription] looked different than what I saw on the tape. Mr. McCombs [defense counsel], I don’t see that it’s that big a problem, it may very well be, but I’m not as incensed with it as you are. I don’t think I need to start setting examples. I don’t know what the “no, no, no, no” meant. You interpreted it to mean that no, I don’t want to talk to you. I don’t know, so, I can’t necessarily say that that’s what it is. It may very well have been. I don’t think the police are required to not say anything at all on a mere suspicion someone might supposedly not want to talk to them. I don’t — I’m inclined to deny the motion.

When invoking a Miranda right, the accused must be unambiguous and unequivocal. Davis v. United States, 512 U.S. 452 (1994). For example, when invoking the right to counsel, the Court has said:

[H]e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.

Davis, 512 U.S. at 459. This court has extended the Davis holding by reviewing the question of specificity when invoking the right to silence. Standridge v. State, supra; Bowen v. State, supra. For example, in Standridge, we held that a suspect’s statement “I ain’t ready to talk” was not unequivocal. Likewise, we held in Bowen that the statement that the accused wanted to “think about” talking to police officers was not sufficiently definite.

The trial court, in its ruling, considered the series of “no’s” to be subject to interpretation. But in reading the colloquy, we note that not only did Sharon respond in the negative at first about answering questions, but she also answered “Huh-uh” when asked “What happened out there?” When Chief Nichols pursued matters and asked, “Have you been involved in a fight?,” she answered, “Well, I can tell you this . . .,” as if to say she was willing only to talk about certain facets of what happened. Later on, she repeated that she did not “want to talk about it.” Yet, Chief Nichols persisted in his questioning.

As already noted in this opinion, when a suspect invokes her right to silence, that invocation must be scrupulously honored. Michigan v. Mosley, supra; Miranda v. Arizona, supra; Hatley v. State, supra. We agree with the State that invoking silence must be unambiguous and unequivocal, but by the same token, the response “no” certainly connotes a desire not to speak. This is especially so when the “no” was followed by “Huh-uh” and then a limited, qualified response. It is true that Sharon was intensely emotional, but the pattern of her answers to the police chief tells this court that she did not want to talk about what happened. Moreover, “no” in common parlance is not an equivocal answer but one of acknowledged clarity and specificity. See State v. Weeks, 2000 WL 1473851 (Tenn. Crim. App., Oct. 2, 2001). In short, we hold that Sharon clearly articulated her right to be silent. See, e.g., Commonwealth v. Sicari, 434 Mass. 732, 752 N.E.2d 684 (2001).

The State argues that Sharon waived her Fifth Amendment rights by answering questions. But that argument avoids the fact that Chief Nichols never honored her desire not to talk. It is true that waiver has its place after a right to silence has been raised, but the interrogating officer must first cease questioning. Miranda v. Arizona, 384 U.S. 436 (1966). Otherwise, the right is meaningless. As the Court has said:

To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned.

Michigan v. Mosley, 423 U.S. at 102.

Nor can we conclude that admission of Sharon’s statement qualifies as harmless error. Her statement was inculpatory, even though she never confessed to killing Bill. Furthermore, she set out a motive for committing manslaughter and made statements such as “I’m scared to know what I did” and “put me way away.” The prejudice from her statement is palpable.

Accordingly, we hold that the trial court clearly erred in refusing to suppress Sharon’s statement to Chief Nichols. Burris v. State, supra. We reverse the judgment of conviction and remand for further proceedings. Because the videotaped statement has been suppressed, the first issue is moot.

Reversed and remanded.


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

text:
    Robert D. HOLLOWAY v. ARKANSAS STATE BOARD of ARCHITECTS
    01-994
    71 S.W.3d 563
    Supreme Court of Arkansas
    Opinion delivered April 4, 2002

      Hankins & Hicks, by: Stuart W. Hankins, for appellant.

      Mark Pryor, Att’y Gen., by: Warren T. Readnour, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

We accepted a petition from Robert D. Holloway. the appellant, for review of an order of the court of appeals dismissing his appeal from an underlying decision of the trial court because of a failure to comply with Rule 5 of the Rules of Appellate Procedure&emdash;Civil. Because the sole issue presented for our review is an interpretation of Rule 5, we granted review on this question only.

Appellee, the Arkansas State Board of Architects, moved that the appeal be dismissed on the basis that the trial court erred in granting an extension of time to file the record, and as a result of Holloway’s reliance upon the invalid extension, that he did not timely lodge the record with this court. Significantly, appellee’s motion to dismiss was not filed until after the record had been lodged with our clerk in accordance with the trial court’s order. Under these circumstances, we conclude that appellee’s challenge to the trial court’s order extending the time for filing was ineffectual because the motion was not made before the record was lodged with our clerk. Accordingly, we reverse the determination of the court of appeals dismissing the appeal, and return the case to the court of appeals for consideration on the merits.

On December 19, 2000, the Pulaski County Circuit Court entered an order affirming the decision of the State Board of Architects, appellee, finding that Holloway engaged in the practice of architecture without a license. The decision was timely reviewed by the circuit court, and the circuit court’s order affirming appellee’s decision was timely appealed by Holloway on December 22, 2000. Upon a motion made by the court reporter, the trial court entered an order on February 22, 2001, finding that the record on appeal must include the court reporter’s stenographically prepared transcript of evidence and that an extension of time was needed to permit the preparation of the record.

The trial court’s order extended the time for the filing of the record to July 18, 2001. Upon entry of the trial court’s order, a copy of the order was provided to both Holloway and appellee. At the time of the entry of the trial court’s extension order, there remained almost thirty days before the ninety-day requirement of Rule 5 would expire. filing challenging the trial court’s order was filed before Holloway lodged the record with the clerk on July 11, 2001, well in advance of the July 18, 2001 date allowed by the trial court order.

The issue in this review is whether the appellee can wait until after a transcript has been lodged with our clerk in compliance with a trial court’s order extending the time for filing, before challenging the validity of the trial court’s order granting the extension.

Appellee contends. that the trial court’s order was invalid because it was entered upon a motion by the court reporter; because no hearing was held upon the motion; and because the parties were not given notice of the consideration of the request for an extension before it was granted. However we cannot address these issues, because appellee did not timely file a challenge to the trial court’s order extending the time for filing.

We recently denied a motion to dismiss an appeal under circumstances similar to the present case. Dugal Logging, Inc. V. Arkansas Pulpwood, 336 Ark. 55, 984 S.W.2d 410 (1999). We denied the motion to dismiss because appellant did not file the motion to dismiss before the record was filed with the court. We held that if appellant had serious .questions about whether a hearing was required for the extension of the time in which to file, it should have raised the issue before the record was filed with the court. Id. The present case is very similar in that appellee’s motion to dismiss came after the record was filed. Appellee waited five months from the granting of the extension to raise questions about the validity of the order granting the extension.

Appellee relies upon case law that is distinguishable from the present case. In Murphy v. Dumas, 343 Ark. 608, 36 S.W3d 351 (2001) (per curiam), the circuit court’s order extending the time in which to file the record contained none of the required findings from Rule 5(b), including the necessity of an extension of time for the inclusion in the record on appeal of a reporter’s transcript and appellant had ordered the transcript from the court reporter. We held in Murphy, “The extension order was entered without . . . findings by the trial court.” Id. In the present case, the extension order contained the following findings:

(1) The record on appeal includes a reporter’s transcript of evidence or a proceeding which was stenographically reported and such transcript has been timely ordered by Appellants.
(2) An extension of time is necessary for the inclusion in the record on appeal of the evidence or proceeding stenographically reported.
(3) The time for filing the record on appeal is hereby extended until July 18, 2001, which is seven months from the date of the entry of the final judgement.

Pursuant to this order of the trial court, Holloway proceeded to file the record within the time established by the trial court. No challenge was made by appellee until after the record was lodged with the clerk. By contrast, the appellants in Murphy had not yet filed the record at the time the appellees filed their motion to dismiss the appeal. In the present case, the order of extension had been in effect for five months, the record was timely filed, and only then, after the record was filed, did appellee file its motion to dismiss the appeal. The facts in Murphy are distinguishable from the present case and therefore Murphy is inapplicable.

Appellee also relies upon Seay v. Wildlife Farms, Inc., 342 Ark. 503, 29 S.W.3d 711 (2000), in support of its contention that Rule 5 should be strictly complied with. . Seay is also distinguishable from the instant case because the record contained nothing that had been stenographically reported, thereby causing the trial court to be without authority to extend the time to file the record under Rule 5(b). Our decision in Seay is therefore inapposite to the circumstances of this case.

In a somewhat similar case, C & M Construction Co. v. Simmons 1st National Bank, 260 Ark. 906, 545 S.W.2d 631 (1977), we considered extensions of time that stem from the court reporter’s workload and inability to complete the transcript. In C & M, appellee did not file its motion to dismiss or take any other action until more than sixty days after the extension had been granted. Id. Thus, the facts of C & M are similar to the present case, except that in the instant case, appellee waited five months after the extension had been granted to file the motion to dismiss. C & M is a precedent for our determination that the appeal should not be dismissed.

In summary, the court reporter asked for an extension of time in which to complete the record, and sent a copy of the order, which included the necessary findings, to both appellant and appellee. Five months later, and a week after the record was filed, appellee filed a motion to dismiss based on an alleged violation of Rule 5 of the Arkansas Rules of Appellate Procedure Civil. In the motion for dismissal, there was no contention of prejudice nor did appellee argue that it could have successfully resisted the order of extension had there been a hearing. In accordance with our decisions in Dugal Logging Inc., and C & M supra, we conclude that the appeal should not have been dismissed.

Accordingly, we agree with Holloway that Rule 5 does not require that his appeal be dismissed, reverse on that point, and return the case to .the court of appeals for consideration on the merits.

Corjbin, J., not participating.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I join the majority, but write to warn attorneys seeking extensions to file a record on appeal to not rely on a court reporter’s gracious efforts to perform the attorney’s job. Here, this court denied appellee Arkansas State Board of Architects’ motion to dismiss appellant Robert D. Holloway’s appeal because the Board filed its dismissal motion too late. See Dugal Logging, Inc. v. Arkansas Pulpwood, 336 Ark. 55, 984 S.W.2d 410 (1999). However, if the Board’s dismissal motion would have been timely, we would be confronted with a far different situation.

Recently, this court gave notice to the bench and bar that the court will stricdy enforce the requirement of Ark. R. Civ. P. 5(b), which provides that an extension to file a record will only be entered (1) upon the appellant’s having filed a- motion requesting the extension, (2) a hearing being held by the trial court, (3) notice to the appellee or opposing party, and (4) findings by the trial court. See Murphy v. Dumas, 343 Ark. 608, 36 S.W.3d 351 (2001); see also Jacobs v. State, 321 Ark. 561; 906 S.W.2d 670 (1995); Osburn v. Arkansas Department of Human Services, 341 Ark. 218, 155 S.W.2d 673 (2000); Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982); Harper v. Pearson, 262 Ark. 294, 556 S.W.2d 142 (1977) (court reiterated the necessity for ordering a transcript and conducting a hearing on the necessity for an extension); Perry v. Perry, 257 Ark. 237. 515 S.W.2d 640 (1974) (court stated that the purpose of the rule &emdash; a statute at that time &emdash; was to eliminate unnecessary delay in the docketing of appeals and that the court expected compliance to the end that lawsuits may progress as expeditiously as justice requires).

As is readily discernable by reading Rule 5(b), the parties and their attorneys have the responsibility to see the requirements of the Rule are met &emdash; not the court reporter. In the instant case, the court reporter’s efforts on the parties’ behalf were most accommodating, but those efforts do not meet Rule 5(b) requirements.

       Rule 5 of the Arkansas Rules of Appellaté Procedure-Civil, in pertinent part reads:
      (a) When filed. The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court as hereinafter provided. . . .
      (b) Extension of time. In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the circuit court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal . . .
      (c) Partial record. Prior to the time the complete record on appeal is filed with the clerk of the Arkansas Supreme Court as provided in this rule, any party may docket the appeal to make a motion for dismissal or for any other intermediate order by filing a partial record with the clerk.

       It should be noted that although our decision in C & M Construction Co. addressed a superseded version of Rule 5, Ark. Stat. Ann § 27-2127.1 (Supp. 1975) and Rule 26A of the Arkansas Supreme Court Rules, the substance of prior Arkansas law remains unchanged in Rule 5. See Reporter’s Notes to Ark. R. App. P. Civ. 5 (2001).


author: Ray Thornton, Justice. Donald L. Corbin, Justice,

text:
    Eddie RODGERS v. STATE of Arkansas
    CR 02-029
    71 S.W.3d 579
    Supreme Court of Arkansas
    Opinion delivered April 4, 2002

      William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Eddie Rodgers, was convicted of aggravated assault. This conviction stems from an incident that occurred in late 1999. On December 17, 1999, appellant pointed a gun at Bryant Young’s head, threatened to kill him, and then fired a shot into Mr. Young’s car.

During the penalty phase of appellant’s trial, the trial court instructed the jury that it could recommend that appellant be placed on probation as an alternative to imprisonment. However, the trial court informed the jury that ip was not bound to follow its recommendation. The jury chose to sentence appellant to three years’ imprisonment and to impose a $5,000 fine. The trial court adopted the jury’s sentence.

After sentencing had been pronounced, appellant’s attorney asked the trial court to set aside the jury’s sentence and to place appellant on probation. The trial court, denying appellant’s request, stated “had the jury recommended that, I probably would, but I have not gone against a jury yet and I don’t think this would be the appropriate time to start.”

Appellant appealed the trial court’s ruling to the court of appeals. Citing Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), appellant argued that the trial court erred in failing to exercise its discretion in deciding whether appellant should have been placed on probation. In a 4-2 decision, the court of appeals affirmed the trial court. Rodgers v. State, 76 Ark. App. 245, 64 S.W.3d 275 (2001). The court of appeals chose to factually distinguish Acklin from appellant’s case. Specifically, the court of appeals determined that Acklin was inapposite because Acklin involved a trial judge’s failure to exercise his discretion in determining whether a defendant was entitled to have his sentences run consecutively or concurrently rather than a trial court’s failure to exercise discretion in determining whether a defendant is entitled to probation.

On January 7, 2002, appellant filed a petition for review of the court of appeals’ opinion. We granted appellant’s petition. Appellant raises one point on appeal. We reverse the trial court and the court of appeals, and remand the matter to the trial court for resentencing.

Before addressing appellant’s point on appeal, we note that the State argues that the matter was not properly preserved for appellate review. Specifically, the State argues that because appellant failed to object to the imposition of his sentence, he is procedurally barred from raising an issue involving the sentence on appeal. We have held that in order to preserve an argument for appeal there must be an objection in the trial court that is sufficient to apprise that court of the particular error alleged. Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000). We have further held that we will not address arguments raised for the first time on appeal. Id.

In the case now before us, appellant made a motion to set aside the jury’s sentencing recommendation, thereby asking the trial court to exercise its discretion to place appellant on probation. The trial court denied appellant’s motion. On appeal, appellant challenges this ruling. Appellant’s motion was sufficient notice of the issue raised on appeal. Accordingly, the State’s argument on this issue is misplaced, and the merits of appellant’s issue are preserved for appellate review. See Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996) (holding that the denial of a motion seeking a particular sentence was sufficient preservation of an issue for appeal).

In his only point on appeal, appellant contends that the trial court did not exercise its discretion when it denied appellant’s request to set aside the jury’s sentence and place appellant on probation. We have explained that under our bifurcated trial procedure, the jury fixes punishment following the penalty phase of the trial. Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996). The jury may recommend an alternative sentence such as suspension or probation. Id. However, the actual assessment of probation is a matter that lies within the discretion of the trial court. Id. We have also noted that in sentencing there must be an exercise of judgment by the trial judge, and not a mechanical imposition of the sentence suggested by the jury in every case. Lawhon v. State, 327 Ark. 674, 940 S.W.2d 475 (1997).

Turning now to appellant’s point on appeal, he contends that the trial court did not exercise its discretion in denying his request for probation. Specifically, appellant argues that the trial court erroneously allowed the jury to decide the issue of whether appellant should have received probation. Appellant also argues that the trial judge’s comments suggest that he routinely delegated this responsibility to the jury. After the trial court had adopted the jury’s sentence, the following colloquy took place:

Defense counsel: Would the court consider setting aside the jury’s three years in prison and put him on three years’ probation on the condition that he pay the $5,000 back in a shorter period of time?
Deputy prosecuting attorney: Your Honor, we would ask the court to follow the jury’s recommendation.
The court: Mr. Thompson [defense counsel], had the jury recommended that I probably would, but I have not gone against a jury yet and I don’t think this would be the appropriate time to start.

Looking at the statements made by the trial court, we must determine whether it failed to exercise the discretion vested in it by Ark. Code Ann. § 5-4-301 (b)(c) (Repl. 1997) when it refused appellant’s request for probation.*

Appellant argues that our reasoning in Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), dictates that this case be reversed and remanded for resentencing. In Acklin, the appellant argued that the trial court failed to exercise discretion in sentencing him to serve consecutive terms of imprisonment rather than serving concurrent terms of imprisonment. We outlined the trial judge’s rationale for imposing consecutive sentences. The judge stated:

It’s my customary rule to run consecutive sentences imposed by jurors, not because it’s an expense to the county and not because someone elects to do that; it’s just my judgment in the matter that generally that’s what the jury intends to do.

Id. We noted that nothing in the colloquy indicated that the trial judge exercised his discretion. Id. We also explained that the trial * judge’s comments suggested that he routinely failed to exercise his discretion, but instead imposed the sentence that he perceived the jury intended. We reversed the case and remanded for resentencing. Id.

Appellant contends that we followed our holding in Acklin in subsequent cases. Specifically in Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985), we were asked to evaluate the actions of a trial judge to determine whether he failed to exercise his discretion in sentencing. In refusing to run Wing’s sentences concurrently, the trial judge stated:

[M]y practice has been, if it is left to me in the first instance, I try to use my own judgment both as to guilt or innocence, and also as to punishment. . . . But when a case is submitted. . . to a jury, then I think they have the right and the prerogative. . . to view the case in the manner in which they see it. Now, I feel it is somewhat presumptuous for me to interfere with their judgment as long as it is within the guidelines of the law. I think I have no choice. . . but to accept their verdict. . . and direct they run consecutively.

Id. We determined that the trial judge was attempting to implement what he perceived the jury wanted rather than exercising his own discretion regarding the sentencing. We reversed and remanded for resentencing. Id. See also Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985); Lawhon v. State, 327 Ark. 674, 940 S.W.2d 475 (1997) (both holding that the trial judge failed to exercise discretion in sentencing).

The trial judge’s comments in the case sub judice are indistinguishable from the comments made by the trial judge in Acklin and those made by the trial judge in Wing. The trial judge’s comments reflect that he had a custom of imposing the sentence recommended by the jury. We hold that the trial court erred by indicating that it routinely deferred to the jury’s sentencing recommendation and in failing to exercise its discretion. Without any implication that the sentence imposed by the trial court was unwarranted, we find it best to reverse and remand this case for resentencing according to the trial court’s discretion.

Reversed and remanded.

Corbin, Imber, and Hannah, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. I disagree with the majority's conclusion that the trial judge's remarks in this case are indistinguishable from those made by the judges in Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), and Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985). In Acklin, the judge made the following statement in response to defense counsel’s request that the sentences run concurrently, because the appellant had five children to support:

I’m mindful of that, Mr. Holder. And I’m also mindful that ... he has not been in trouble with the law since 1967. However, I am also mindful that [the appellant] has had no defense to this case and has put the county to substantial expense to try this without a defense which he is entitled to. It’s my feeling about it that if you want to see the hole card and go to a jury to see what they will do, then you ought to be willing to run the risk.
There’s no defense to this case. There has not been one presented, and it’s been an exercise that [the appellant] elected to see what would happen, I guess. . . . It’s expensive to see and to look and to try the system. So it’s my judgment that he should not be entitled to consideration.
He is not being penalized for exercising his right [to a jury trial]. The truth of the matter is that he had no defense to this case. . . . He could [not would, as the State argues] have gotten the same judgment, the same sentence, the same due process, had he come in here and told the Court that he was guilty.
I am reminded of Judge J. Smith Henley in federal court, where the federal courts do all the sentencing, and all the guilt or innocence is determined by the jury. “If you’ve got a legitimate defense, come over here and argue it. It won’t cost you anything. But if you come over here and waste my time, the jury’s time and the taxpayer’s money, it may very well cost you something.”
I’m not saying that’s what I’m doing. It’s my customary rule to run consecutive sentences imposed by jurors, not because it’s an expense to the county and not because someone elects to do that; it’s just my judgment in the matter that generally that’s what the jury intends to do.

Id. at 880-81, 606 S.W.2d at 595 (emphasis added). It is clear from these remarks that the trial judge did not exercise any discretion in running the sentences consecutively. He plainly stated that he had adopted a “customary rule” to impose multiple sentences consecutively in every case. Obviously, there can be' no discretion where there is such a mechanical rule. Moreover, despite his denial to the contrary, the judge’s remarks demonstrated the very real possibility that he imposed consecutive sentences as a way of further punishing the defendant for wasting the court’s time by seeking a jury trial when he had no valid defense. Accordingly, this court had no choice but to remand for resentencing in that case.

Similarly, in Wing, 286 Ark. 494, 696 S.W.2d 311, this court remanded for resentencing because the trial judge’s remarks demonstrated that he had not exercised any discretion in ordering the sentences to run consecutively. There, Judge Gibson explained:

[M] y practice has been, if it is left to me in the first instance, I try to use my own judgment both as to guilt or innocence, and also as to punishment. . . . But when a case is submitted ... to a jury, then I think they have the right and the prerogative ... to view the case in the manner in which they see it. Now, I feel it is somewhat presumptuous for me to interfere with their judgment as long as it is within the guidelines of the law. I think I have no choice . . . but to accept their verdict . . . and direct they run consecutively.

Id. at 496, 696 S.W.2d at 312 (emphasis added). See also Wing v. State, 14 Ark. App. 190, 686 S.W.2d 452 (1985) (similar comments from the same Judge Gibson). Again, as with the judge in Acklin, Judge Gibson’s statements reflect an admitted “practice” of imposing whatever sentence is recommended by the jury and a refusal to “interfere with their judgment.” Such a practice negates the use of any discretion.

Here, in contrast, the trial judge’s comments indicate only that, as of the date of Appellant’s case, the judge had not awarded an alternative sentence of probation where the jury had recommended imprisonment. His exact statement was: “had the jury recommended that, I probably would, but I have not gone against a jury yet and I don’t think this would be the appropriate time to start.” His use of the word “yet” is telling. It indicates that the judge is aware of his discretionary authority and that he would be willing to go against the jury’s recommendation in appropriate cases. Moreover, his statement is merely one of fact as to what action he has taken in past cases. Unlike the judges in Acklin and Wing, the trial judge here did not announce a “customary rule” or a “practice” that he mechanically applies in every case. Additionally, the fact that the judge followed his initial statement with “I don’t think this would be the appropriate time to start” demonstrates an exercise of discretion. (Emphasis added.) This statement is reflective of the judge’s conclusion that the facts and circumstances of Appellant’s case did not warrant a departure from the jury’s recommended sentence.

Perhaps even more significant is the judge’s use of the word “probably”: “had the jury recommended [probation], I probably would.” (Emphasis added.) This indicates to me that even if the jury had recommended probation, the judge would not have automatically accepted that sentence. In other words, he did not think probation was an appropriate sentence for the violent crime committed by Appellant, even if the jury had recommended an alternative sentence.

I would affirm the sentence in this case, as I cannot say that it is apparent from the judge’s remarks that he failed to exercise any discretion in sentencing Appellant. See Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997); Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994) (collectively holding that this court will remand for resentencing when it is apparent that the trial court did not exercise its discretion). The fact that the remarks in this case are susceptible to more than one interpretation negates the conclusion that it is apparent that the judge failed to use his discretion.

Moreover, I cannot ignore the fact that the judge in this case is a seasoned one, with many years of experience on the bench. The sentence imposed was not in any way illegal, nor was it imposed mechanically or out of a desire for retribution, as was the case in Acklin, 270 Ark. 879, 606 S.W.2d 594, and, to a lesser extent, Wing, 286 Ark. 494, 696 S.W.2d 311. Remand in this case is a waste of precious judicial resources, as it is clear to me that the sentence already imposed was based on the judge’s discretionary authority. In sum, because it is not apparent that the trial judge failed to use any discretion in sentencing Appellant, we must give him the benefit of the doubt and affirm the sentence. Accordingly, I must dissent.*

Additionally, I disagree with the way in which the majority has addressed the procedural argument raised by the State. In rejecting the State’s argument, the majority relies on the case of Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996), wherein this court held that because the defendant made a motion for concurrent sentences and the motion was denied, no further objection was needed to preserve an argument on appeal that the trial court had failed to exercise its discretion. Under this holding, Appellant’s objection is sufficient.

However, the majority ignores the case of Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). There, the defendant objected to consecutive sentences on the ground that they amounted to cruel and unusual punishment. On appeal, however, he contended that the consecutive sentences were erroneous because the trial court had failed to use any discretion in imposing them. This court declined to reach the argument on appeal because it was not made below. This court reasoned that “the alleged error should have been called to the attention of the trial court by timely objection or inquiry so that the trial court could be given the opportunity to correct the error.” Id. at 60, 931 S.W.2d at 83. Under this holding, Appellant’s argument appears to be procedurally barred because he failed to point out the specific error in the trial judge’s ruling. In my opinion, this conflict needs to be resolved for future cases.

Imber and Hannah, JJ., join in this dissent.

       Arkansas Code Annotated § 5-4-301, in relevant part, provides:
      (b) In making a determination as to suspension or probation, the court shall consider whether:
      (1) There is undue risk that during the period of a suspension or probation the defendant will commit another offense;
      (2) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution;
      (3) Suspension or probation will discount the seriousness of the defendant’s offense; or
      (4) The defendant has the means available or is so gainfully employed that restitution or compensation to the victim ofhis offense will not cause an unreasonable financial hardship and will be beneficial to the rehabilitation of the defendant.
      (c) The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of suspension or probation:
      (I) The defendant’s conduct neither caused nor threatened serious harm;
      . (2) The defendant did not contemplate that his conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense;
      (5) The victim of the offense induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of the offense for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
      (8) The defendant’s conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another offense;
      (10) The defendant is particularly likely to respond affirmatively to suspension or probation;
      (II) The imprisonment of the defendant would entail excessive hardship to him or his dependents;
      (12) The defendant is elderly or in poor health; or
      (13) The defendant cooperated with law enforcement authorities in his own prosecution or in bringing other offenders to justice.

        Id.


author:
Jim Hannah, Justice.
      Tom Glaze, Justice,

text:
    Terrence D. BOX v. STATE of Arkansas
    CR 01-698
    71 S.W.3d 552
    Supreme Court of Arkansas
    Opinion delivered April 4, 2002

      James H. Phillips, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Terrence D. Box was convicted aggravated robbery and first-degree battery, and sentenced to twenty-five and ten years respectively. Box raised four issues on appeal before the court of appeals. He argues that (1) there was insufficient evidence to support the robbery convictions; (2) the trial court erred in forcing him to appear before the jury while dressed in prison garb; (3) the trial court improperly commented on the evidence; and (4) the court erred in admitting a letter and envelope into evidence. The court of appeals affirmed on points (1) and (3), but reversed on the other two issues, holding that the trial court erred in compelling Box to stand trial in prison garb and in admitting a letter and envelope into evidence. See Box v. State, 74 Ark. App. 82, 45 S.W.3d 415 (2001). The State petitions us for review, addressing the two points on which the court of appeals reversed. Contrary to Box’s assertion, Ark. R. App. P.&emdash;Crim. 3(c) is inapplicable as this is not an appeal by the State. We granted review under Ark. Sup. Ct. R. 2-4(c) and address the two points on which the court of appeals reversed. We reverse the trial court on the prison-garb issue, and affirm the trial court on the admission of the letter and envelope into evidence.

We need not address the other issues. We agree with the court of appeals in holding that there was sufficient evidence to support Box’s robbery conviction and that the trial court did not improperly comment on the evidence.

Facts

This case arises from a robbery of the Triple D. Liquor Store in downtown Dumas. The first issue in this case is whether Box waived his right to appear before the jury dressed in civilian clothing. At the time of his trial in the present case, Box was incarcerated on other convictions in the Arkansas Department of Correction. Box had been told by his attorney that he needed to make the necessary arrangements to have civilian clothing present at the courthouse to wear during trial. Box indicated he could arrange this. Box then got a commitment from his parents that they would have his civilian clothes at the courthouse for him to wear during his trial.

However, when Box arrived at the courthouse, his parents were not there, and he had no civilian clothes to wear. He was dressed in the white uniform of the Arkansas Department of Correction. Before Box was brought into the courtroom, the fact that Box was dressed in prison garb was brought to the trial court’s attention by the sheriff’s department. The State’s attorney also raised the issue with the Court. The trial court then called in defense counsel and affirmed that Box had made arrangements for his parents to deliver his civilian clothing to the courthouse. The trial court concluded that Box had his chance, and by not making successful arrangements, he had waived his right to be tried in civilian clothing. The trial court ordered Box brought to the courtroom, and he appeared in front of the venire panel in his white Arkansas Department of Correction uniform. Shortly thereafter, Box’s parents arrived with the clothing, and Box was allowed to change. The trial was then completed.

The second issue involves admission of a letter and envelope that robbery victim Tommy Cantrell received. Cantrell testified that he received the letter after the robbery, that it had a Dermott postmark, and that it appeared to say “Correctional” on the envelope. The letter was unsigned, and upon its mention, defense counsel objected on the basis of authentication. The trial court overruled the objection finding the marks on the envelope and the content of the letter identified Box as the author. The letter began, “This is Terrance Box i just wont you to know. . . .”

Prison Garb

We first note that all the facts regarding the matters immediately preceding trial were not put on the record; however, there is a sufficient record to'recognize that Box was trying to obtain a continuance or a delay so he could get civilian clothing. Box arrived at the courthouse for trial in his white Arkansas Department of Correction uniform, and the sheriffs department went to the trial judge to tell him this. The trial court was unwilling to entertain any request for time to get proper clothing. The trial court concluded that Box had waived his right to appear in street clothes because he failed to timely procure any and ordered him brought into the courtroom and into the presence of the venire panel. We hold Box did not waive his right to appear in street clothes. This is apparent when the events and discussion in the trial court that day are considered. We note that the prosecutor also brought this matter to the trial court’s attention and that the trial court advised both attorneys that he would allow defense counsel to make his motions “later on.” Thereafter, between the court’s voir dire and counsel’s voir dire, the following occurred:

Defense Counsel:
Okay. Secondly, Mr. Box is present in his jail garb, his coveralls. The coveralls are white, which is symbolic of an ADC prisoner. Mr. Box was transported earlier this week to Diagnostic Center in Pine Bluff to serve some time on his revocation. Since he has been brought back, he is being incarcerated in the ADC section of the detention center, which is a white coverall section.
Now, we’re dealing with a Delta County jury pool, the jury pool is — it includes persons of law enforcement nature, by law enforcement affiliation, and in fact quite a few prison employees are in the jury pool. Anybody seeing Mr. Box here today in ADC garb should understand that he has a prior conviction. That, alone is prejudicial.
I met with Mr. Box last week at ADC — excuse me, at Delta Regional Center. I informed him that he would have to be here in private, civilian clothes, personal clothing. He told me he had some he could wear that he’d been arrested in, and that he would contact his parents to bring him some clothing for the trial today; however, it has not been supplied, and he’s still in court in white prison garb, Your Honor, and it’s just an inference that he has been convicted before, that he is in white prison garb, rather than county garb.
The Court:
Now, here’s the situation the court’s put in. Before Mr. Box was brought up the stairs, I asked Mr. Potts [defense counsel] if he had discussed this matter with Mr. Box about wearing civilian clothes, if those were available. He said he had. Mr. Box showed up from the regional jail without any. None had been supplied over to the sheriffs office. Is that correct, Sheriff
Sheriff:
That’s correct.
The Court:
For him to change into. He had been given that opportunity. It’s the defendant’s obligation, in my opinion, to have those available, unless it’s impossible. It’s not been shown to have been impossible. I could have delayed this matter, but I don’t think I’m required to delay this matter to search down and hunt for Mr. Box some clothes that he wants to wear. I don’t think that’s the court’s obligation, and the motion is denied in that regard. That was his choice as far as I’m concerned. He’s waived any complaint about it. (Emphasis added.)
Defense Counsel:
Your honor, I would make one additional point on that, is that he was not arrested in the garb he’s wearing today, that somewhere there’s civilian clothes available that he has been locked up and arrested in, and I would have presumed that. . .
The Court:
It’s not been shown that those are unavailable, and additionally, you said that his parents were going to have some here. They haven’t done that. I don’t know where they are, but again, I’m not going to delay this thing for you to find out, or for me to find out. It’s his responsibility. I’ve got an obligation to move this case along, and that’s what I’m trying to do.

The court then proceeded to try Box. What is readily apparent from the above discussion is that Box’s attorney tried to delay the trial until Box could be dressed in civilian clothing, but the court expressly denied his motion.

There cannot be any doubt that appellant had a right to appear in civilian clothing. Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970). In Miller, we adopted the rule then held by the majority of States that “absent a waiver accused should not be forced to trial in prison garb.” Miller, 249 Ark. at 5. This was and remains consistent with Article 2, Section 8, of the Arkansas Constitution. Six years later, the United States Supreme Court noted this court’s opinion in Miller with approval and adopted a somewhat similar rule in Estelle v. Williams, 425 U.S. 501 (1976). The holding of the U.S. Supreme Court in Estelle was that under the Fourteenth Amendment, a defendant’s constitutional rights were violated when he was compelled to wear identifiable prison clothing. The U.S. Supreme Court’s decision in Estelle was first noted by this court in Holloway, Welch & Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), rev’d on other grounds, Holloway v. Arkansas, 435 U.S. 475 (1978). We have never altered our original holding in Miller. The court of appeals in Washington v. State, 6 Ark.s App. 23, 637 S.W.2d 614 (1982) stated, “the rule in Estelle, supra, was adopted by the Arkansas Supreme Court in Holloway, Welch and Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976).” The court of appeals is in error. In Holloway, this court noted Estelle, but did not overrule Miller. This court held in Miller, supra, in 1970 that absent a waiver, a criminal defendant may not be tried in prison garb. The rule in Arkansas remains that the accused may not be forced to trial in prison garb absent a waiver. We are bound to follow our prior case law under the doctrine of stare decisis. Aka v. Jefferson Hosp. Ass’n, Inc. 344 Ark. 627, 42 S.W.3d 508 (2001). The court of appeals has cited to Estelle in its opinions. However, greater protection is afforded under our State constitution than that set out in the rule in Estelle. The rule in Arkansas is set out in Miller, supra, and that is the law the court of appeals is bound to follow. As the court of appeals correctly stated recently, “More importantly, any inconsistency between precedents set by the supreme court and the court of appeals must be resolved in favor of the precedent announced by the supreme court, and it is well established that this court is without authority to overrule a decision of the supreme court.” Brown v. State, 63 Ark. App. 38, 44, 972 S.W.2d 956 (1998).

When someone is tried in prison garb, his or her right to a fair trial is placed in serious jeopardy. In Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990), this court stated:

Central to the issue of a fair trial is the principle that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485 (1978).

When someone appears in prison garb, the decision of the jury may well be based upon his or her prior conviction or status as someone held in custody. In Estelle, supra, the U.S. Supreme Court noted that when an accused is forced to wear prison garb, the jury might be prejudiced, and that the wearing of such attire serves no useful State purpose. Clemmons, supra. This is because once the jury sees the defendant in clothing implying he is a criminal, they may assume he is, and the jury will be biased. The danger in this case is greater than where a prisoner is seen in county-jail clothing. Here, Box appeared in the white uniform of an Arkansas Department of Correction inmate, which showed he was a convicted and incarcerated felon. It might be tempting to enter into argument about whether an average venire member would know the difference in prisoner clothing between that worn by a county inmate and that worn in prison, but such an argument begs the question and discounts the importance of the concern at issue, that of a fair trial. Someone who comes into court in Arkansas in a prison uniform may well be recognized as a sentenced convicted felon, and that is the danger. There is nothing to be gained by trying someone in prison garb. Here, the motivation was to accommodate the jury and save time.

However, before we can delve further, we must first address the issue of whether Box preserved the issue. Box clearly brought to the court’s attention that he did not desire to be tried in his white prison uniform. He was asserting his right to be tried in civilian clothing, and he had made arrangements for his parents to deliver his civilian clothing to the courthouse for him to wear during his trial. The State notes there was no motion for a mistrial. None was made. None was needed. A mistrial discharges the jury. Woods v. State, 287 Ark. 212, 697 S.W.2d 890 (1985); Atkins v. State, 16 Ark. 568 (1855). Here, no jury had been chosen or charged. There was no reason to bring a motion for mistrial because there was nothing as yet that could be mistried. The relief sought is obvious. Box moved for a continuance to allow time to obtain civilian clothing. Without question the issue is preserved for review.

We also note that the trial court overruled Box’s objection to being tried in prison garb in denying the motion for a continuance. The trial court ruled and was moving forward with Box in his prison uniform. Even if the jury had been sworn and a motion for mistrial could have been brought, to require Box to move for a mistrial after the trial court had ruled on his objection and motion for a continuance would be to require a vain and useless act. Logan v. State , 299 Ark. 266, 773 S.W.2d 413 (1989). The law does not require vain and useless acts. Noble v. State, 326 Ark. 462, 932 S.W.2d 752(1996); State v. Wilhite, 211 Ark. 1065, 204 S.W.2d 562 (1947).

It is clear the prejudice at issue here attaches from the potential jurors seeing Box. Miller, supra; Estelle, supra. A defendant is “entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man.” Miller, 249 Ark. at 6 (quoting 21 Am. Jur. 2d Criminal Law § 239). The jurors saw Box when he was brought up before the pretrial proceedings began. The proper method to raise the issue was to bring the matter to the court’s attention, as was done, and to seek a continuance. The trial had not commenced. The jury had not been sworn. Phillips v. State, 338 Ark. 209, 992 S.W.2d 86 (1999). The solution was simply to bring in a fresh jury panel once Box was in civilian clothing.

The facts in this case do not match any of our prior cases on prison garb. In Holloway, supra, this court found there was a waiver where clothing was offered to the criminal defendants, and they declined to change. In Young v. State, 283 Ark. 435, 678 S.W.2d 435 (1984), this court found a criminal defendant waived his right against being tried in prison clothing by failing to object. The court in Young noted the right not to be attired in prison clothing can be waived.

The burden is on the State to establish that appellant waived his rights, and all doubts must be resolved in favor of the individual rights and constitutional safeguards. Bradford v. State, 306 Ark. 590, 815 S.W.2d 947 (1991); Sutton v. State, 262 Ark. 492, 559 S.W.2d 16 (1977); Smith v. State, 240 Ark. 726, 410 S.W.2d 749 (1966). The term “waiver” is defined as the “renunciation, repudiation, abandonment, or surrender of some claim, right or privilege, or of the opportunity to take advantage of some claim, right, irregularity or wrong.” Webb v. State, 318 Ark. 581, 886 S.W.2d 624 (1994) (citing Black’s Law Dictionary 1580 (6th Ed. 1990)). The record is devoid of any such evidence.

Here, Box clearly did not waive his right to appear in civilian clothing. Box asserted his right to appear in civilian clothing by arranging to have his parents deliver civilian clothing to the courthouse before trial, and this was certainly corroborated by the arrival of the clothing shortly after the proceedings began. The findings by the trial court that something that was not within Box’s control, the late delivery of his civilian clothing contrary to Box’s arrangement, amounts to a waiver of Box’s right to appear in civilian clothing is error. This is a step we are unwilling to take. The issue was squarely before the trial court, which denied the motion for a continuance to allow Box time to obtain civilian clothing to wear and ordered Box to stand trial in prison clothing. It is true that Box changed once the clothing arrived, but the damage was done. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995). When a criminal defendant is seen by the potential jurors or jurors while in prison garb, his right to a fair trial is placed in serious jeopardy because guilt may well be based upon grounds of official suspicion, indictment, or continued custody. Clemmons, supra; Miller, supra. This is apparent in Suggs, supra, where we stated simply, “In sum, our review of the record fails to show the jury saw Suggs in prison garb or show it was in any way made aware of his incarceration.” Suggs, 322 Ark. at 42. The dissent also appears to try to argue if there was error it was harmless because the jury was asked if it was prejudiced by having seen Box in prison garb. We also note that whether Box showed prejudice is not at issue. The rule is that absent a waiver, a criminal defendant may not be tried in prison garb. Any resort to harmless error is inapplicable to this case and would avoid addressing the real issue. A waiver is required by the precedent of this court. There was no waiver. The impression the jury received in seeing Box in white Arkansas Department of Correction garb could not be erased by allowing Box to change into civilian clothing and appear for the remainder of the proceedings in civilian clothes. The bell had been rung, and it could not be unrung. We should not sacrifice a fundamental constitutional right — the right to a fair trial — for the sake of expediency. Here, the facts are clear that the right was asserted and denied by the trial court, and the delay the trial court should have granted would have been of a very short duration.

The trial court erred in finding Box had waived his right to be tried in civilian clothing, and the case is reversed and remanded for a new trial on that basis.

The Letter

After the robbery, Tommy Cantrell received a letter in the mail with the name of T. Box on the return address. A stamp on the outside showed it came from “Correctional.” Inside, it began, “This is Terrance Box i just wont you to know it wasn’t me. ...” Box objected to the introduction of this letter asserting a lack of foundation and lack of authentication. The letter is not signed but, as noted, begins with the assertion that the writer is Box. Within the letter, the writer asserts that he got the camera from Phillip Gober and that he had nothing to do with the robbery. At the time Cantrell received the letter, Box was an inmate in the Department of Correction. Also, the camera was a key piece of evidence connecting Box to the crime and on that basis would have been of great concern to Box and would be a motive for why he wrote the letter. Arkansas Rule of Evidence 901(b)(4) allows authentication by “Appearance, contents, substance, characteristics, internal patterns, or other distinctive characteristics. ...” Box denied writing the letter. There was no attempt to show that the letter was in Box’s handwriting.

On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion; nor will we reverse absent a showing of prejudice. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996); Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001).

The letter states:

This is Terrance Box i just wont you to know that it wasn’t me some body just wont me to take the blame. That camera i bought it from Phillis Golder that is the truth. I got a son just turn 2 year old don’t wont to leave him like my daddy left me so please believe me on this one. I sorry for what happen but this is something that i never had nothing to do with it. Deep in your son heart he know that it’s not me i pray to God about what I’m going threw wish that he’ll take me from this place. I pray everyday that God will let some one see that have nothing to do with that Tom how long you know my grandad Topcat the one who ride the bike i got so much respect to do you like that. If you feel in your heart that you think it was me understand/ All i can do is give you my word so my God bless you bye.
You know my mom Darien every time she come to your store i be with so i can’t do nothing like that.

The letter contains no admission of guilt. In general, it shows Box knew he was suspected and wished to do what he could to convince Tommy Cantrell he was innocent. The most damaging thing about the letter is the mention of the camera found in his girlfriend’s apartment; however, in the letter, Box asserts he purchased it from Phillip Gober. Gober was called to testify and testified consistent with the letter that he had found it and sold it to Box. The issue of the camera was not raised for the first time at trial by the letter. The jury knew of the camera and that it had been seized in Box’s girlfriend’s apartment. That evidence came in by way of the first witness, Michael Donigan of the Dumas Police Department, who testified that the camera was seized at Box’s girlfriend’s home. The evidence of the camera in the letter was thus not prejudicial and was not needlessly cumulative. Ark. R. Evid. 403.

With respect to how the letter impacted the case, it can be argued that the letter may have benefitted Box in that it brought before the jury evidence of his two-year-old son whom they would deprive of a father if they imprisoned Box, and evidence of what it was like to be incarcerated. This is evidence criminal defendants often try to introduce without success.

To be prejudicial, the letter would have to have some adverse impact on Box in the eyes of the jury. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). No prejudice was shown. Based upon the arguments presented, we find no basis on which to reverse the trial court’s admission of the letter and envelope.

Reversed and remanded.

Michelle C. Huff, Spl. J., joins in this opinion.

Arnold, C.J., Glaze and Corbin, JJ., dissent.

Imber, J., not participating.

Tom Glaze, Justice,

dissenting. The majority opinion is dearly wrong. thus. I dissent. The controllin2 rule is found in the case of Estelle v. Wilkins, 425 U.S. 501 (1976), where the Court held that, while the State cannot “consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.”

Here, the evidence clearly shows the trial judge did not compel Box to be tried before a jury while Box was in prison garb. In fact, it is undisputed that, before his counsel began conducting his voir dire of the jury pool and his jury trial, Box, indeed, was in civilian clothes. How then, the reader might ask, do we find ourselves dealing with the prison-garb issue? Good question.

The record reflects that the trial judge acted within his discretion when he required the parties to proceed with voir dire and the trial. On the day trial was scheduled, the State, not Box or his counsel, informed the trial judge that Box was in prison clothes. In response, defense counsel said that, one week prior to the trial date, he had instructed Box to make arrangements for obtaining civilian clothes, and Box had told his attorney that Box had private, civilian clothes in which he had been arrested. At the beginning of voir dire on the day of trial, neither Box nor his attorney gave the trial judge any excuse or reason why he was not wearing those clothes left at prison or why he did not request those clothes from prison personnel.

Also, it was only at this stage of trial that the trial judge became aware through Box’s counsel that Box had asked his parents to bring civilian clothes for the trial. When they failed to show, neither Box nor his counsel gave an excuse why Box’s parents were not present when the trial proceedings commenced; nor did Box or his attorney offer any prospects as to when (or whether, for that matter) the parents might appear. With this lack of information, the trial judge did all he could •&emdash;■ he denied any delay. Contrary to the majority opinion, the trial judge, when deciding the trial should continue, did not know a continuance would be’ “of very short duration” because no one told him when or if Box’s parents would appear. Clearly, in these circumstances, the trial judge did not abuse his discretion in requiring the parties to proceed to trial.

I also point out that, when Box’s parents did finally show up, the trial judge promptly granted Box’s request to get into his civilian clothes. Afterwards, defense counsel proceeded with his voir dire of the jury panel and later participated in selecting the jury. In sum, the trial judge did not compel Box to be tried in prison clothes — he permitted Box to change into civilian clothes as soon as the judge learned the clothes were available.

Box (and the majority opinion) relies on the case of Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970), where this court held it was reversible error to compel Miller to be tried before a jury when Miller was in prison clothes. There, Miller had not been afforded any opportunity to obtain civilian clothes; nonetheless, the trial judge compelled him to go to trial. Unlike in Miller, Box had plenty of time to acquire civilian clothes in a timely fashion, but failed to do so and provided no reason for having failed to do so. The majority opinion in its discussion of Miller makes reference to Ark. Const. art. 2, § 8, but the holding in Miller is not premised on the Arkansas Constitution, but instead, on common law. Neither Box nor the State argues the Arkansas Constitution in this appeal. Still, the majority plunges onward, trying to draw a distinction between Miller and Estelle when none exists. The majority asserts that the court in Holloway, Welch & Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), “noted” Estelle, but did not overrule Miller. There was no need to overrule Miller, as the rules in both cases are not inconsistent. Further, the majority mistakenly asserts our court has never adopted this rule in Estelle. See, e.g., Holloway, supra. One merely needs to read this court’s opinions in Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984), Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990), and Tucker v. State, 336 Ark. 244, 9983 S.W.2d 956 (1999), to be reassured that Arkansas has adopted the Estelle rule. See also Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982), where the court of appeals first correctly recognized our court adopted the rule in Estelle. Both Miller and Estelle stand for the proposition that a trial judge cannot compel a defendant to be tried in prison garb, and both provide that a defendant can waive that right — in Miller that right was not waived, but here, Box waived his right by not timely obtaining civilian clothes when he was given ample time to do so.

Again, to summarize, Box was in civilian clothes at the time his counsel voir dired the jury panel, after the jury was selected, and when he was tried. Thus, the only issue to consider is whether Box was prejudiced by the “possibility” the jurors saw Box in prison garb during the time the State first voir dired the jury pool. Even at that early stage of the trial, the trial judge asked defense counsel if he wanted the trial judge to voir dire the jury panel to determine if the jurors, having seen Box in prison garb, would be able to still render a fair decision. Box, however, claimed that questioning the panel on this point, alone, would be prejudicial.

Of course, our law is well settled that Arkansas does not recognize plain error. This court, in fact, has held that it is not prejudicial per se when a defendant is brought into a courtroom in prison clothes, handcuffed, or even legcuffed. Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993). Moreover, while the Estelle court recognized the potentially prejudicial effect of a prison uniform, that Court did not rule the practice inherently prejudicial absent the element of compulsion. See Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984). The instant case is much like Young, where the defendant Young made no objection throughout the jury selection process and not until the jury was seated did he object. The Young court concluded as follows:

[Ajlthough [Young] argues that he had no other clothes available to him, he made no showing whatsoever that he was forced to wear the prison attire, that a continuance was requested or that any request for other clothes was denied or that any such request was ever made. And as pointed out in Estelle, there was no duty on the part of the trial court to make any inquiry. “Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of the trial judges and counsel in our legal system.” Estelle at 512.

Young, 283 Ark. at 437. Here, Box never made an effort to show any prejudice ensued because some jurors might have seen him in prison garb at the initial part of the voir dire of the jury pool. Based on the record as discussed above, Box must take the responsibility for any delay in acquiring civilian clothes, but also, once jurors saw him briefly in prison garb, it was his burden to show this somehow tainted the jury later chosen to decide his case. He had the opportunity during voir dire to question potential jurors about what, if any, impact his clothing might have had on them, but he chose not to exercise this option. He rejected the trial judge’s invitation to question the jury panel on the prison-garb issue. On this point, the majority opinion alludes to the metaphor that once Box was seen in prison clothes that “the bell had been rung, and it could not be unrung.” This is an unfortunate misuse of a good figure of speech, which is often employed when a jury has heard inadmissible and prejudicial evidence. Obviously, the time to challenge a juror or jury panel is at voir dire and prior to those jurors being selected to serve on the jury selected to try a defendant’s case. This principle is so fundamental in our jurisprudence, no citation is required.

In conclusion, the record bears out that Box was properly tried in clothes of his choice and received a fair trial while wearing them. It is also clear that he made no attempt to show any juror was prejudiced against him because they may have sen him in prison garb — a situation which he, himself, had a hand in creating. I would affirm the trial judge.

Arnold, C.J., joins this dissent.

       During their respective voir dires, both the prosecutor and defense counsel reminded the jury of the presumption of innocence Box enjoyed prior to trial. In fact, the State specifically asked if “anybody [was] thinking, right now, because he sits here today charged with these crimes, that Mr. Box is guilty.” No juror responded, and on more pointed, individual questioning, at least three jurors specifically indicated that they had “no problem” with the presumption of Box’s innocence.


author: Percuriam.

text:
    Wes BOOTH v. Suzanne P. BOOTH
    02-165
    71 S.W.3d 586
    Supreme Court of Arkansas
    Opinion delivered April 4, 2002

      Gary D. McDonald, for appellant.

      Shackleford, Phillips, Wineland & Ratcliff, P.A., by; Brian H. Ratcliff, for appellee.
   Percuriam.

Wes Booth petitions for review of an unpublished court of appeals opinion, affirming as modified the lower court’s division of Wes and Suzanne P. Booth’s property. We deny Mr. Booth’s petition; however, we are obliged to note that both parties acknowledge that the court of appeals failed to address Mr. Booth’s issue on appeal concerning whether he should be given a credit regarding a loan from First National Bank of El Dorado as to the parties’ boat, motor, and trailer. Because this point for reversal was not mentioned or considered by the court of appeals, we remand this matter to the court so it may decide that issue.