author: Otis H. Turner, Justice.

text:
    Danny McEWEN v. STATE of Arkansas
    CR 89-231A
    790 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered June 11, 1990

      Mona Mizell, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

Appellant Danny McEwen was found guilty by a jury in a bifurcated trial of aggravated robbery and the offense of felon in possession of a firearm. He was sentenced as an habitual offender to consecutive terms of imprisonment of twenty-five and six years. He was also found guilty of misdemeanor theft and sentenced to one year imprisonment which merged with the felony terms. Appellant brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within thirty days. See Rules of the Supreme Court and Court of Appeals, Rule 11(h). He did not file a brief. The State concurs that the appeal has no merit.

On the afternoon of January 14,1989, two young black men, one of whom was armed with a gun, robbed Evelyn Simpson, the clerk of the Charles Liquor Store in Marked Tree, of approximately $200.00 in cash. On March 25, 1989, the appellant and Calvin Smith were arrested and charged with the crime.

Evelyn Simpson readily identified appellant and Smith from a photospread made up of eight photographs of young black men with similar physical characteristics. Dorothy Franklin, a Marked Tree resident, also identified appellant and Smith from the photo spread as being the two men who paid her to drive them from Marked Tree to Earle on the evening of the robbery.

Appellant objected at trial to the introduction of evidence resulting from the photo identification on the ground that it was obtained by police tactics which suggested who the suspects were. He further objected to the in-court identification on the ground that it was tainted by the suggestive photo spread. The officers who conducted the photo spread testified that no suggestions were made to the witnesses as to whom to choose and that both Simpson and Franklin readily picked appellant from the photographs. Simpson testified that she based her identification of appellant on her observations during the robbery. Franklin testified she knew appellant before she gave him a ride to Earle on the date of the robbery and that her identification of him was certain.

Among the factors to be considered in assessing the reliability of an in-court identification are: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the victim’s degree of attention; (3) the accuracy of the victim’s prior description of the criminal; (4) a level of certainty demonstrated by the victim at the confrontation; and (5) the length of time between the crime and the confrontation. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). An in-court identification can be held inadmissible as a matter of law only if, after viewing the totality of the circumstances, it can be said that the identification was patently unreliable. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

The victim in this case viewed her assailants face-to-face for several minutes in good light. She testified that she paid close attention to appellant who was holding the gun. She testified further that she also had an opportunity to observe the men shortly before the robbery when they came in the liquor store and asked for matches. She correctly described their physical appearance and clothing. About three months elapsed between the date of the robbery and her identification of appellant in the photo spread, a span of time which is not so great that a witness’s identification would be likely to be unreliable. The witness was positive of the identification when she saw appellant in the photo spread and also when she identified him in court. Based on the totality of the circumstances in this case, we find the certainty of identification to be overwhelming.

The trial court declined appellant’s request that the •felon in possession of a firearm charge be severed from the aggravated robbery charge. There was no error. A defendant has a right to a severance whenever two or more offenses have been joined solely on the ground that they are of the same or similar character. Arkansas Rules of Criminal Procedure 22.2; Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984). Otherwise, granting or refusing a severance is within the discretion of the trial court. Arkansas Rules of Criminal Procedure 22.2(b)(i); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). In the present case, it was alleged that appellant used a gun to rob the liquor store. It was the gun used in the robbery which resulted in the felon in possession of a firearm charge. If the offenses had been severed, it would have required two trials and the state would have had to call some of the same witnesses to testify to the same facts. In light of this, the court did not abuse its discretion by refusing to sever the offenses.

Appellant also objected to the introduction of evidence about his prior felony conviction on the ground that it would be unduly prejudicial. The introduction of the evidence, however, was clearly designated as being for the purposes of deciding appellant’s guilt or innocence on the felon in possession charge.

Appellant further asked that proof of his prior convictions not be brought out by the state if he chose to testify. The motion was denied. As the state had the right under Rule 609 of the Uniform Rules of Evidence to impeach appellant’s credibility with prior convictions if he took the stand, there was no merit to the argument. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988).

The appellant objected to introduction into evidence of photographs of a Lincoln automobile which the state contended was intended to be used as a getaway car had the appellant and his co-defendant not misplaced the keys. We find no reversible error. There was testimony that the Lincoln was parked near the liquor store on the day of the robbery and that Dorothy Franklin was requested by the defendants to stop at the Lincoln as she was driving them out of Marked Tree. Although the evidence that the Lincoln was intended to be used in the robbery was not conclusive, appellant stated no ground on which the evidence was inadmissible.

Appellant, who was charged with misdemeanor theft of property in the form of $200.00 cash, moved for a mistrial when a witness testified that $209.00 in cash had been stolen. The objection was based on the ground that an amount in excess of $200.00 constituted a felony charge. The trial court agreed to instruct the jury on misdemeanor theft. Since the jury was instructed during the sentencing phase of the trial on the sentencing range for misdemeanor theft, there was no prejudice to appellant and no ground to grant a mistrial.

Finally, appellant moved for a directed verdict. A directed verdict is given in cases only where no issue of fact exists. Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984). The testimony of the victim clearly created an issue of fact for the jury to resolve.

From a review of the record and objections raised at trial as discussed in the briefs before this court, we find the appeal to be wholly without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.

       When appellant failed to appear for a hearing on the issue of whether the evidence obtained from the photo spread should be suppressed, counsel for appellant did not pursue the motion to suppress because appellant was absent, but the court heard argument by Simpson’s attorney on the question and concluded that the evidence was admissible against both the defendants. As there was no objection by counsel for appellant on the ground that the hearing should not have been held in appellant’s absence, the issue of whether he had a right to demand to be present at the pretrial hearing is not before us. Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988).


source: Caselaw Access Project

license: Public Domain

text:
    Calvin SMITH v. STATE of Arkansas
    CR 89-231B
    790 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered June 11, 1990

      Jim Dunlap, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellant.
   Otis H. Turner, Justice.

The appellant, Calvin Smith, together with a companion, was convicted of robbery and theft of property resulting from the robbery of a liquor store in Marked Tree and was sentenced as an habitual offender to a term of twenty years. He appeals that verdict, but we find no error and affirm the conviction and sentence.

In the early afternoon of January 14,1989, two black males robbed, at gunpoint, Charles Liquor Store in Marked Tree. Some $200 in cash was taken from the store clerk, Evelyn Simpson. On March 25,1989, the appellant and Danny McEwen were arrested and charged with the crime.

Evelyn Simpson, the robbery victim, readily identified the appellant and McEwen from an eight photo spread.

Dorothy Franklin, a Marked Tree resident who testified at the trial that she gave two black males a ride from Marked Tree to Earle on the evening of the robbery, also identified the appellant from the photo spread as one of her passengers.

For reversal, the appellant raises three issues: first, the trial court erred in overruling the appellant’s objection to the prosecution’s closing argument; second, the trial court should have suppressed the pretrial photo identification and the in-court identification of the appellant; and third, the appellant should have been provided a transcript, without cost, of the pretrial hearing on a motion to suppress the identification. All three of the issues advanced are without merit.

During the closing argument for the state, the prosecuting attorney stated:

Let me clear something up at the very onset here, ladies and gentlemen. Both defense lawyers talked about the witnesses who weren’t here. Ladies and gentlemen of the jury, the defense has subpoena power just like the state does. If they wanted those people here, they could have subpoeaned them. They did not do so ... .

The appellant objected to the statement on the basis that the defendant does not have to prove his innocence. The objection was overruled, and the appellant made no further motion or request for relief in the nature of a request for a mistrial, a striking of the statement, or a limiting instruction. In the absence of a proper request for, and a denial of, specific relief sought by appellant, we decline to hold that the ruling of the trial court to the appellant’s general objection was reversible error. See Jurney v. State, 298 Ark. 91, 766 S.W.2d 61 (1989). The appellant now also argues for the first time that the remark of the prosecuting attorney amounts to a comment on the failure of the defendant to testify in his own behalf. That objection was not raised at trial and will not be considered for the first time on appeal. Segerstrom v. State, 301 Ark. 314, 783 S.W.2d 847 (1990).

The appellant contends that the identification by the witnesses from the photo spread furnished to them by the police was invalid and should have been suppressed. It is argued that the procedure was unduly suggestive. A pretrial motion to suppress was fully considered and overruled by the trial court.

The established criteria for determining reliability of such identification requires a consideration of: (1) the opportunity of the witness to view the accused at the time in question; (2) the degree of attention by the witness; (3) the degree of accuracy of the witness’s prior description of the accused; (4) the level of certainty demonstrated by witness; and (5) the length of time between the crime and confrontation. Manson v. Brathwaite, 432 U.S. 98 (1977); Moulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988).

A review of the photo-spread indicates that the photos are closely matched in general appearance. The record reflects that Dorothy Franklin gave the appellant a ride from Marked Tree to Earle on the date of the crime and had ample opportunity to view him and later to identify him both in person and from the photographs. Four months after the crime, the store clerk was called upon to view the photographs, and she almost immediately identified the appellant. She further testified that she had ample opportunity to vie\y the appellant clearly in order to identify him as the person who pointed the gun at her in the store at the time of the robbery. There is no indication from the record that any degree of suggestion was employed to encourage the witness to select the appellant from the photo spread. To the contrary, the evidence of certainty of identification appears overwhelming.

The remaining point for reversal argued by the appellant arises from a denial by the trial court of the appellant’s request, prior to trial, for a free transcript of the hearing on the motion to suppress. Counsel for the appellant noted only that the transcript was needed in order “to cross-examine the witnesses.” The stated reason is an insufficient basis for requiring that the transcript be furnished. Graham v. State, 296 Ark. 400, 757 S.W.2d 538 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

Affirmed.


author: Dale Price, Justice.

text:
    Kyle Duane CHERRY v. STATE of Arkansas
    CR 89-234
    791 S.W.2d 354
    Supreme Court of Arkansas
    Opinion delivered June 11, 1990

      G. Keith Watkins, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

The appellant was charged with capital felony murder. The jury convicted him of first degree murder and sentenced him to life imprisonment. He raises six issues on appeal, None have merit.

On October 21, 1988, the appellant was arrested for violating the terms and conditions of his parole. Parole officers discovered drugs and a number of firearms at a residence shared by the appellant and Bob Vargason, who was also a convicted felon on parole. The items, including a .45 pistol, were discovered pursuant to a search of the residence and of the appellant’s vehicle. The appellant was taken into custody and transported to the Sharp County sheriff’s office.

Ten days later, the appellant gave investigating officers two statements implicating himself in the murder of a man named Jimmie Pendergrass. Pendergrass had been found dead on April 11,1988. His trailer had burned while he was inside. It was later determined that he had died from a blow to the head before the fire occurred.

In his statements, the appellant told officers that he knew that Pendergrass owned a number of guns. He went to the trailer on April 11, 1988, for the purpose of stealing the guns. While inside, Pendergrass arrived home unexpectedly and appellant was discovered. Pendergrass threatened Cherry with a .45 pistol, and held the gun on the appellant for several minutes while the appellant tried to talk his way out of the situation. When Pendergrass looked away for a moment, the appellant kicked him. Pendergrass fell backward, hitting his head on the bumper of the appellant’s truck. At this point, the appellant said, he realized Pendergrass was dead. He dragged the body inside the trailer. The pistol, which Pendergrass still gripped in his hand, discharged unexpectedly, setting the trailer on fire. The appellant finished loading the guns which he was stealing and left the scene. On the basis of these statements, the appellant was charged with capital felony murder.

The appellant’s first argument concerns the legality of the warrantless search of his vehicle. Prior to trial, he moved to suppress from evidence a .45 pistol, seized as a result of that search.

The facts are that the appellant’s parole officer, Ken Opper, received information that the appellant had moved in with Bob Vargason. Opper and Bob Wilkin, who was Vargason’s parole officer, went to the residence. Upon arriving, they discovered a number of firearms in the house, plus evidence of marijuana use. Opper particularly noted the presence of some loose .45 rounds and some .45 magazines in a drawer. He said to the appellant, “there is another gun here somewhere.” The appellant said he had owned a .45 but had sold it.

The appellant and Vargason were arrested at this point and transported to the sheriffs office by Deputy Dennis Burton. Deputy Burton then returned to the scene to assist in the search and seizure of items from the house. (Vargason had consented to a search of the house.) Parole officer Wilkin planned to search the appellant’s vehicle, which was parked in the driveway. At Wilkin’s request, Deputy Burton used a “Slimjim” device to unlock the door of the vehicle. Wilkin then searched the car and discovered the .45 pistol. Neither Deputy Burton nor any other member of the sheriffs office participated further in the search of the vehicle.

During the suppression hearing, it was revealed that, approximately six weeks prior to his arrest, the appellant signed a document entitled “Notice to Parolees.” The document read as follows:

Any parolees’ person, automobile, residence, or any property under his control may be searched by a parole officer without a warrant if the officer has reasonable grounds for investigating whether the parolee has violated the terms of his parole or committed a crime.

It is not uncommon for probationers and parolees to be subject to a condition requiring consent to various kinds of searches. See Cohen & Gobert, The Law of Probation and Parole, § 6.02 at 225 (1983). The great majority of courts have upheld the validity of this practice. Cohen & Gobert, § 5.07 at 206 and § 8.03 at 378-80; Annot., 79 A.L.R.3d 1083 (1977). The question of whether a parolee’s advance consent to a warrantless search is valid has not been addressed by this court.

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).

The first matter to resolve is whether the “Notice to Parolee” signed by the appellant amounts to a consent. We find that it does. The notice does not contain the words, “I consent to a warrantless search,” but it does recognize the possibility that such a search may occur. By signing the notice the appellant impliedly consented to a warrantless search. Implied consent has been recognized in similar contexts in which persons were aware in advance that they could be subject to a search. See United States v. Sihler, 562 F.2d 349 (5th Cir. 1977) (warning sign to visitors entering penitentiary that they are subject to search); United States v. Doran, 482 F.2d 929 (9th Cir. 1973) (signs and public address announcements in airport warning passengers they are subject to search at boarding).

Having determined that the notice constitutes a consent, the next question is whether such a consent-in-advance is valid. The recent United States Supreme Court case of Griffin v. Wisconsin, 483 U.S. 868 (1987), is instructive. At issue in Griffin was an administrative regulation permitting a probation officer to search a probationer’s home without a warrant, so long as there were reasonable grounds to believe contraband was present. The regulation explicitly defined “reasonable grounds.”

The Court held that a warrantless search pursuant to this regulation did not violate the 4th amendment. The Court recognized that supervision of probationers is a “special need” of the state, permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. Therefore, it was concluded, it is impractical to require a search warrant. It was also concluded that the usual requirement that probable cause exist to justify a search may be replaced by the reasonable grounds standard.

Using the same reasoning, we hold that this warrantless search, pursuant to appellant’s implied consent, did not violate the 4th amendment. The special needs of the parole process call for intensive supervision of the parolee making the warrant requirement impractical. It is also clear, although the United States Supreme Court did not employ this line of reasoning, that the appellant, as a parolee, has a diminished expectation of privacy. Legally, he is still in custody of the penal institution from which he was released. See Ark. Code Ann. § 16-93-701 (b)(4) (1987). Finally, we note that there was no contention on the appellant’s part that his consent was not given voluntarily and intelligently.

We must point out that a parole/probation officer’s ability to conduct a warrantless search is not unlimited. But the consent in this case, like the regulation in Griffin v. Wisconsin, supra, contains elements that insure a search will be conducted reasonably. First of all, the consent allows a warrantless search only if reasonable grounds exist. Second, the consent does not extend to all law officers, but only to parole officers, thereby preserving its purpose as a tool of parole supervision.

Having decided that the consent is valid, the final question is whether the search was carried out under the terms of the consent. Two issues must be addressed: 1) were there reasonable grounds to investigate whether the appellant had violated the terms of his parole, and 2) was the search conducted by a parole officer? We find there was compliance with both of these terms. Among the conditions of the appellant’s parole was one that he not associate with convicted felons. The parole officer’s knowledge that the appellant was living with another convicted felon constituted reasonable grounds to investigate the violation.

It is also clear that, despite Deputy Burton’s minimal participation in the search, the search was conducted by a parole officer. A parole officer may enlist the aid of the police, and a police officer may act at the direction of a parole officer without overreaching the scope of the search. Sanderson v. State, 649 P.2d 677 (Wyo. 1982).

We find the warrantless search conducted by the parole officer was valid. The trial court’s action in refusing to suppress the .45 pistol was correct.

Our determination that the search was valid makes it unnecessary to address the appellant’s claim that his in-custody statements should have been suppressed as the fruits of an illegal search. However, we do consider the appellant’s claim that his statements to investigating officers should have been suppressed because the officers continued to question him after he requested the presence of an attorney.

The appellant claims that as soon as he reached the sheriffs office on October 21, he asked for permission to call his attorney. He claims the telephone log shows he placed a call to his attorney, but the log does not reveal that such a call was made by the appellant. He also claims that just prior to being questioned on October 31 and November 1, the dates on which he gave the statements in question, he asked to see his attorney. This claim is not borne out by the evidence. The interrogating officers testified that they were unaware of such a request. In addition, a waiver of rights form signed by the appellant acknowledges he was “willing to make a statement and answer questions” and that he “did not want a lawyer at this time.”

An accused in custody, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by authorities until counsel has been made available to him. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).

In examining the issue of whether an appellant either invoked or knowingly waived his Miranda rights, we make an independent review of the totality of the circumstances and reverse the trial court only if its ruling is clearly against the preponderance of the evidence. Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989).

Here, there is simply nothing to show that the appellant ever invoked his right to counsel. His claim that he tried to phone his attorney is belied by the entries, or lack of entries in the telephone log. The trial court’s determination that the appellant’s testimony was not credible is well supported by the evidence; therefore, the refusal to suppress appellant’s statements was correct.

The next issue concerns the appellant’s request for the appointment of an independent pathologist. In a motion filed prior to trial, the appellant alleged that he was indigent and claimed that he needed the testimony of an independent pathologist to contest the findings of the state’s medical examiner. The trial judge declared he would summarily deny the motion unless the appellant wanted to present evidence on the matter. The appellant said he did wish to present evidence, and the trial judge said he would hear the evidence on the morning of the trial. No evidence on the matter was ever presented to the court, and on the morning of the trial, the motion was denied.

The appellant has failed to demonstrate, either at the trial level or here, how he was prejudiced by the court’s refusal to appoint the independent pathologist. Prejudice must be demonstrated before reversible error occurs. Taylor v. State, 299 Ark. 123, 771 S.W.2d 283 (1989).

The next issue concerns the validity of testimony given by law enforcement officers who, it is alleged, did not meet the qualifications set forth by the Arkansas Commission on Law Enforcement Standards and Training. See Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). The appellant claims that the testimony offered against him by these officers should have been stricken under Ark. Code Ann. § 12-9-108(a) (1987), which reads:

A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.

Grable v. State, supra, is distinguished from this case in that the objection raised there related to the act of the officer in bringing charges. Here, the motion in limine was directed toward police officers giving testimony. Law enforcement officers are not disqualified as witnesses based on whether they have met the criteria set forth by regulations promulgated by the Arkansas Commission on Law Enforcement Standards and Training. A person is presumed to be competent to be a witness. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); A.R.E. Rule 601. There was no error in permitting the officers’ testimony.

Appellant’s next contention is that the jury panel should have been quashed. He argues that the selection of jurors from a list of registered voters denied him an impartial jury. "

We have held that the use of such a method to select jurors does not violate the requirement that the jury be selected from a representative cross-section of the community. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989); Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989). Appellant argues that the jury was partial because it was composed of the same registered voters who elected the judge and prosecutor. This argument is answered simply by saying that a list of registered voters would include those who voted for the judge or prosecutor, those who voted for their opponents and those who did not vote at all.

Finally, appellant argues that error occurred in the sentencing phase of the trial. The state offered a certified copy of a conviction from the State of Missouri to prove appellant’s status as a habitual offender. The docket entry noted that the appellant had pled guilty to “Forgery (Class C) (3 counts).” The appellant claims the conviction should not have been used against him because the record of the conviction did not show it carried a sentence in excess of one year, as required by Ark. Code Ann. § 5-4-503 (1987).

We take judicial notice that under Missouri law, forgery is a Class C felony. Mo. Ann. Stat. § 570.090(2) (Vernon 1979). A Class C felony is punishable by a term of years not to exceed 7 years. Mo. Ann. Stat. § 558.011 (1)(3) (Vernon 1979). These prior convictions were properly considered.

In accordance with Ark. Sup. Ct. Rule 11 (f), which must be followed in cases involving the death penalty or life imprisonment, we have reviewed the record and all objections decided adversely to the appellant and have found no error.

Affirmed.

Glaze, J., concurs.


author: Robert H. Dudley, Justice.

text:
    Dow Richard PURSLEY and Richard Faust v. STATE of Arkansas
    CR 90-7
    791 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered June 18, 1990

      Paul Byrd\ and Hall, Wright & Baker, by: John Barry Baker, for appellant.

      Steve Clark, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Early one morning, Dr. William Harrison’s receptionist was notified that a demonstration to protest the performance of abortions would be held outside Dr. Harrison’s clinic on College Avenue in Fayetteville. Around mid-morning, the demonstrators arrived and sat immediately in front of the entrance to the clinic. Dr. Harrison asked the demonstrators to leave. They refused. A television station, which had also been notified of the demonstration, informed the police of the situation. They responded. Upon arrival, the uniformed officer in charge identified himself to the demonstrators and asked them to leave. He told them that if they did not leave they would be charged with criminal trespass. They refused to leave. He informed them they were under arrest for criminal trespass. He directed them to accompany other uniformed officers to a waiting van. He told them that if they did not go to the van with the officers they would be charged with failure to submit to arrest. The demonstrators remained seated. The officers then stepped forward and handcuffed and carried the protestors, one by one, to the waiting van. The appellants were two of the demonstrators. They were tried and convicted of criminal trespass and refusal to submit to arrest. They appeal only the conviction for refusal to submit to arrest. We affirm the conviction.

Appellants first argue that the statute under which they were convicted is unconstitutionally vague. The statute, Ark. Code Ann. § 5-54-103(b), in pertinent part, provides:

(b) (1) A person commits the offense of refusal to submit to arrest if he knowingly refuses to submit to arrest by a person known by him to be a law enforcement officer effecting an arrest;
(2) “Refusal,” as used in this subsection, means active or passive refusal.

Both the fourteenth amendment to the Constitution of the United States and article 2, section 8 of the Constitution of Arkansas provide that no person shall be deprived of life, liberty, or property without due process of law.

Due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.

Long v. State, 284 Ark. 21, 23, 680 S.W.2d 686, 687 (1984). These two standards forjudging whether a statute is unconstitutionally vague were further explained in Trice v. City of Pine Bluff; 279 Ark. 125, 649 S.W.2d 179 (1984), as follows:

The standard by which we determine whether an ordinance is vague is whether the ordinance gives a person of average intelligence a fair warning in definite language of the prohibited act.

Id. at 129, 649 S.W.2d at 181.

A law that is so vague and standardless that it leaves judges or jurors free to decide, without any legally fixed standard, what is prohibited and what is not in each particular case fails to meet due process requirements.

Id. at 130, 649 S.W.2d at 181-82.

Appellants argue that “passive” “refusal to submit to arrest” is too vague to give fair warning to a person of average intelligence, or to tell judges or policemen what is prohibited. The argument is without merit. The Constitution does not require impossible standards of specificity.

The meaning of words in accordance with their common usage can be found in Webster’s Third New International Dictionary, Unabridged (1961). “Passive” means not active or operating; not moving. A synonym for passive is inactive. “Refusal” means an act of refusing or denying. “Refuse” means to decline to accept; to show or express a positive unwillingness to comply with. “Submit” means to yield to the will or authority of. “Arrest” means the taking or detaining of a person in custody by authority of law; legal restraint of the person; custody, imprisonment. “Custody” means judicial or penal safekeeping; imprisonment or durance of persons or charge of things. “Durance” means confinement.

Accordingly, a reasonable and commonly understood construction of the language at issue gives a person of ordinary intelligence fair warning that an inactive or passive form of noncompliance with the arrest process can subject one to punishment. Therefore, the statute is not unconstitutionally vague.

The appellants next argue that they did not refuse to submit to arrest, but instead submitted to arrest by holding their hands out for the handcuffs. They further contend that they were already under arrest when they refused to walk to the police van, and therefore, they cannot be guilty of refusing to submit to arrest. In fact, appellants refused to move before they were handcuffed, but, more importantly, the appellants’ argument fails because it is based upon a false premise. That false premise is that their arrest was complete at the moment the handcuffs were put on them. Here, the appellants were in the process of committing the offense of criminal trespass when the officers handcuffed them. The appellants would not move and were continuing to commit the trespass even after the handcuffs were secured. In effecting the arrest the officers had every right to stop appellants from continuing the offense. As a result, the arrest was not completed until, at the very least, the continuing trespass offense was put to a stop. Therefore, the arrest was not complete at the moment the handcuffs were put on, and the appellants, by refusing to move, were passively refusing to submit to arrest.

The foregoing interpretation of the statute is in accordance with the 1989 commentary to the statute. It provides:

Act 261 of 1987 engrafted the offense of refusal to submit to arrest (§ 5-54- 103(b)(l)(-4)) onto the resisting arrest statute. Subsection (b) is perhaps aimed at the person who declines to submit to arrest by failing to follow instructions given by the arresting officer. It will cover cases where the arrestee must be carried to a police car or removed from a sidewalk in front of a building, for instance. . . .

Our interpretation of the statute to the effect that the placing of handcuffs on an arrestee does not end the arrest is further buttressed by rules of criminal procedure and statutes. For example, A.R.Cr.P. Rule 4.6 provides that, unless an arrestee is released on a citation, an officer when making the arrest shall take the person to jail, but on the way to jail he may take the arrestee someplace else to have him identified or may take the arrestee any place he requests. Ark. Code Ann. § 16-81-107(f) provides that an officer making an arrest in obedience to a warrant shall proceed with the defendant as directed by the warrant. The directions in the warrant state that the officer should take the accused before a magistrate. Ark. Code Ann. § 16-81-104. In conclusion, the arrest did not end with the placing of handcuffs on the appellants, and they passively refused to submit to arrest when they refused to follow the instructions of the arresting officer.

Affirmed.


author: Steele Hays, Justice. Dale Price, Justice,

text:
    Karen J. OWINGS v. ECONOMIC AND MEDICAL SERVICES, A Division of Arkansas Department of Human Service
    90-42
    790 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered June 18, 1990

      Karen J. Owings, pro se.

      Richard B. Dahlgren, Dep’t of Human Services, Office of Chief Counsel, for appellee.
   Steele Hays, Justice.

The sole issue on appeal is whether the appellant received adequate notice and opportunity for a hearing prior to the termination of her medical assistance and AFDC (Aid to Families with Dependent Children) benefits. The trial court held that the notice and hearing procedures provided by the appellee fully complied with constitutional requirements of due process. We affirm.

The facts are that the appellant and her child had been receiving AFDC and medical assistance benefits since March of 1984. On September 13, 1988, the appellant met with an Economic and Medical Services (EMS) caseworker for a routine re-evaluation of her eligibility. At this meeting, the appellant was informed that she must provide EMS with certain information to continue her eligibility. The written request for this information was contained in a form entitled, “Notice of Action.” The form, referred to by the appellee as EMS-1, read in pertinent part:

X Your case will be/has been closed. The last month you will receive Medicaid is__
REASON FOR ACTION:
Need verification of your checking account. Mr. Swindoll must complete the absent parent form to verify if Diane is deprived of her father’s support — Need 2 collateral forms.
Our policy supporting this action is__
The above action will be/has been taken on 9/23/88. If you appeal this action by 9/23/88 your assistance may continue at or be reinstated to its previous level until a hearing decision is issued.

Pursuant to this request, the appellant mailed the information to the appellee. However, she failed to include a verification of her checking account balance. Because of this oversight, the EMS caseworker sent another EMS-1 form to the appellant informing her, “I received all the verification requested except verification of how much is in your checking account.” The form contained the following language:

The above action [closure of case] will be/has been taken on 10/9/88. If you appeal this action by 10/9/88 your assistance may continue at or be reinstated to its previous level until a hearing decision is issued.

The appellant admittedly did not respond to the request by October 9. She claims to have mailed the information to the appellant on October 10, following her usual practice of responding within a week to ten days of receiving such a request. In any event, the information did not reach the appellee until October 19. By that time, the appellant’s case had been closed.

The appellant, upon being notified that her case had been closed, filed a request for a hearing, asserting that termination of her benefits without a pre-termination hearing violated the due process clause of the Constitution. She also asked that her benefits be continued pending the hearing. Despite this request, her case remained closed.

At the administrative hearing, which took place on February 2, 1989, the action of EMS in closing the appellant’s case was upheld. The trial court affirmed finding that Form EMS-1 affords recipients the opportunity to continue their benefits pending a hearing. The trial court’s ruling was correct.

The appellee maintains that the language in its Form EMS-1 provides a recipient with timely and adequate notice and opportunity for a hearing before benefits are terminated. The form was drafted pursuant to the appellee’s own Financial Assistance Policy 2620, which was formulated pursuant to 45 C.F.R. § 205.10 (1988). Policy 2620 provides that, if a recipient’s benefits are to be terminated, the recipient must receive advance notice, mailed at least ten days before the termination becomes effective. The appellant acknowledges that there is nothing inherently defective in the policy itself; her contention is that the appellee’s attempt to implement the policy by use of the EMS-1 form fails to meet the requirements of due process.

We recognize, of course, that a welfare recipient must be provided with notice and an opportunity to be heard prior to termination of benefits. Goldberg v. Kelly, 397 U.S. 254 (1970). Due process requires at a minimum that a person be given notice and a reasonable opportunity for a hearing before he is deprived of property by state action. Commissioner of Labor v. Purnell, 267 Ark. 593, 593 S.W.2d 157 (1980). However, the language used in the appellee’s EMS-1 form gave the appellant both notice that her benefits would be terminated within ten days and the opportunity, if she responded in a timely fashion, to have her benefits continued pending a hearing. The lack of due process allegedly suffered by the appellant is not the result of a defect in the appellee’s notice and hearing procedures; it is the result of the appellant’s dilatory response. A pre-termination hearing was, so to speak, there for the asking.

It is also argued that the appellee’s termination procedures are arbitrary in that the decision to terminate benefits is often left solely to the discretion of the individual caseworker. The contention is not supported by convincing argument or authority, and therefore, we will not address it. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988).

Affirmed.

Dudley, Glaze, and Price, JJ., dissent.

Dale Price, Justice,

dissenting. It is beyond dispute that a welfare recipient is constitutionally entitled to notice and a hearing prior to termination of benefits. This is the unequivocal holding of Goldberg v. Kelly, 397 U.S. 254 (1970), which the majority recognizes. I dissent because the majority fails to recognize that the EMS-1 form, which seemingly affords the appellant a pre-termination hearing, in reality, does not. The opportunity for the appellant to exercise her due process rights is merely illusory.

The flaw in the form is that it tells the recipient, “comply with this request for information by a certain date or your benefits will be terminated.” The form also tells the recipient that, by that same date, she must ask for a pretermination hearing. A recipient in the appellant’s position, believing she has complied with the request, has no reason to know her benefits will be terminated, and therefore, has no reason to request a hearing. The majority would have the appellant and others in her position take an absurd step to protect their constitutional rights: any time they respond to a request for information, they must accompany that response with a request for a hearing, just in case the response is defective or for some reason, such as misdelivery of mail, fails to reach the department in time.

The EMS-1 form clearly does not implement the due process envisioned in Goldberg v. Kelly, supra. That case recognized that the purpose of a pre-termination hearing is to determine the validity of the grounds for termination before benefits are withdrawn. This appellant simply did not have that opportunity. She was told that her case would be closed unless she met certain conditions. She had good reason to believe she met those conditions. (Even though her response was outside the deadline on the form, the appellee admits that its caseworkers do not rigidly observe the deadlines and often allow an extra few days for response time.) By the time the appellant knew her case would be closed, it was too late to request a hearing.

One of the central requirements of the constitutional right to due process is that a hearing must be afforded at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545 (1965). The appellant was constitutionally entitled to be heard before her change in status occurred. The EMS-1 form, in its present format, does not provide a meaningful opportunity for a pre-termination hearing.

I would reverse and remand.

Dudley and Glaze, JJ., join in the dissent.


author: David Newbern, Justice.

text:
    John RANSOPHER v. Norman CHAPMAN
    90-59
    791 S.W.2d 686
    Supreme Court of Arkansas
    Opinion delivered June 18, 1990

      Guy Jones, Jr., for appellant.

      Stripling & Morgan, by: Dan Stripling, for appellee.
   David Newbern, Justice.

This is a defamation case. We have no public figure plaintiff, no “media” defendant, and no matter of “public concern, ” thus we will be able, for the most part, to avoid the First Amendment quagmire exemplified in New York Times v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). John Ransopher, a building contractor, presented evidence that Norman Chapman, a person for whom Ransopher was constructing a residence, called Ransopher a liar and a cheat. The statement was made while speaking to two sales clerks, and possibly in the presence of customers, in a lumber company display area where Ransopher did business. Chapman was there trying to ascertain whether Ransopher had paid his bill to the lumber company for materials used in constructing Chapman’s house. The court would not permit Ransopher to present evidence of a general loss of business and his personal loss of confidence in the process of selling his services. A verdict was directed in favor of Chapman because Ransopher was unable to present evidence of losses suffered in his business tied directly to the statement of Chapman. We reverse and remand because the evidence would support a finding of slander per se, thus the words used would permit a recovery absent such proof. It is not necessary to rule on the evidence exclusion question.

1. Slander per se

Ransopher’s brief is hardly a tour de force in the Arkansas law of libel, citing only one case, but perhaps that is because the task was already done in Comment, The Law of Defamation: An Arkansas Primer, 42 Ark. L. Rev. 915 (1989), which Ransopher cites for the proposition that slander per se includes “accusations injurious to the plaintiff in his or her trade.” The cases cited in the article support the contention with respect to “per se defamation.” Luster v. Retail Credit Co., 575 F.2d 609 (8th Cir. 1978); Lloyd v. Gerber Products Co., 260 F. Supp. 735 (W.D. Ark. 1966); Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, 147 S.W. 64 (1912). The two federal cases, decided on Arkansas law, involved libel actions, but the Waters-Pierce Oil Co. case dealt with slander, and we know of no Arkansas case which has ignored the distinction between defamation per se and per quod other than Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983), where the distinction did not matter. That was a case involving the Gertz decision with respect to a media defendant. Absent the enhanced First Amendment considerations attending cases of “public concern” or media defendants, both libel per se and slander per se permit substantial or compensatory damages without proof of actual loss.

The case cited by Ransopher’s brief is Partin v. Meyer, 277 Ark. 54, 639 S.W.2d 342 (1982), where we upheld an instruction stating that accusing one of a crime is slander per se so the plaintiff was not required to introduce evidence of actual damages to recover compensatory damages. Chapman correctly points out that the holding of the case was that it was not improper for the court to refer to “compensatory” as opposed to “substantial” damages.

While Chapman is correct about the narrow holding of the Partin case, it is nonetheless one in which we approved an instruction supporting an action for slander per se, and it supports Ransopher’s point that the action does not require proof of actual losses. Chapman argues further, however, that Ransopher has not recognized changes in defamation law brought about by the Supreme Court decisions in the cases mentioned at the outset of this opinion. Chapman cites our case of Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985), where we wrote that the Gertz decision left open the question whether the libel per se concept remained in the law with respect to actions against non-media defendants. He contends Ransopher’s brief must fail because he has not given us an argument as to why words should be held actionable per se in a case like the one before us now.

We cannot agree with Chapman’s contention. Ransopher has argued that if the words are actionable per se no evidence of damages in the form of actual losses is required. That is a correct argument. When we stated in the Hogue case that the question remained open, we did not mean to imply that the law of defamation had been completely overturned by the Gertz decision. Rather, we meant that the Gertz decision had not foreclosed the law of defamation per se in cases between private, non media parties, although it might be expanded at some point. It has not been so expanded. Neither the Gertz case nor the Dun & Bradstreet case, where the emphasis was on issues of “public concern,” nor any other controlling case of which we have been made aware has altered the law respecting cases like the one before us now.

We know our opinion in the Dodrill case used the past tense to refer to defamation per se, and the author of the law review comment cited above seems to regard it as an anachronism. See also H. Brill, Arkansas Law of Damages, §31-7 (Supp. 1988). While we may entertain an argument in the future that the awarding of compensatory damages without proof of loss should not occur, this case, where the briefs are sketchy at best and the point is not even argued, is hardly the one to consider that proposition.

2. Damages evidence

Ransopher contends the court erred in sustaining an objection to his attempt to testify about a general loss of business which befell him after the alleged slander occurred. In a proceeding in the judge’s chambers, Ransopher proffered testimony that he had fewer contracts and that his confidence in his ability to sell his services had diminished. Chapman contends we should ignore this point because Ransopher did abstract his objection. Ransopher’s abstract does contain Chapman’s relevancy objection and statement to the trial court that Ransopher should not be allowed to testify to a loss of business which cannot be tied to Chapman’s allegedly slanderous statement. In addition, the abstract displays the argument which took place before the trial court on the point. We regard that as sufficient.

We have examined the record and learned that after the in-chambers proceedings Ransopher testified without further objection that he had had four building contracts in 1988 but only one in 1989. It seems to us that the point became largely moot. The only item, of those in controversy, that Ransopher failed to get before the jury was his testimony that he had lost his self confidence as a result of the alleged slander.

We decline to rule on the point. The trial court may see the evidence entirely differently upon retrial in view of our ruling on the slander per se issue. The relevancy of evidence is a decision left to the trial court’s discretion. See A.R.E. 401; Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). The evidence may be presented differently, and the court may choose to exercise his discretion differently with respect to the evidence which the sustained objection would have excluded.

3. Appellants’ abstract

Chapman has pointed out deficiencies in Ransopher’s abstract, and has declined to supplement it. See Rules of the Arkansas Supreme Court and Court of Appeals 9(e). It is true, as Chapman points out, that Ransopher did not, for example, abstract motions for directed verdict. We are, however, able to tell from the abstract of the court’s letter opinion the content of Ransopher’s directed verdict motion on the matter of slander per se and the damages proof requirements. We do not find the abstracting deficiencies sufficient to warrant dismissal of the appeal.

Reversed and remanded.


text:
    Bill TABER, d/b/a Taber’s Grass Farm v. James C. PLEDGER, Director Arkansas Department of Finance and Administration
    89-353
    791 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered June 18, 1990

      Jack, Lyon & Lyon, P.A., by: Eugene G. Sayre, for appellant.

      John H. Theis, Philip Raia, Robert L. Jones, William E. Keadle, Ricky L. Pruett, Cora L. Gentry, David B. Kaufman, and Beth B. Carson, by: Malcolm P. Bobo, for appellee.
   David Newbern, Justice.

This is a gross receipts tax case in which the principal question is whether the taxpayer must pay all of an assessed deficiency before he becomes eligible to file suit for a refund. Appellant Bill Taber contends the tax should be regarded as divisible so that, if he has paid some of the deficiency declared by the commissioner for each month, or if he has paid all of the deficiency for any month for which the deficiency was assessed, he can bring a suit in chancery court to determine whether any tax should have been assessed. He also contends the assessment constitutes an illegal exaction and violates the common law and his right to due process of law. The commissioner argues the entire assessment must be paid before the chancery court has jurisdiction to rule on a refund claim. We decline to adopt a divisible tax position contrary to a statute requiring full payment or posting a bond as a prerequisite to suit. We find the tax is not an illegal tax, thus there is no illegal exaction, and whatever common law right Taber may have had has been changed by legislation. Nor has Taber sustained his contention that his right to due process of law has been violated. The chancellor’s decision to dismiss the complaint for failure to state facts upon which a claim for relief can be granted is affirmed.

Taber grows sod. For years he sold it only from his farm. He sold some on a retail basis and some to dealers for resale. He thought his retail sales exempt from sales tax under Ark. Code Ann. § 26-52-401 (18)(C) (Supp. 1989) which exempts gross receipts from the sale of raw products from the farm where the sale is made direct from the producer to the customer. He thought his sales to retailers exempt under § 26-52-401(12)(A) (Supp. 1989) which exempts proceeds from sales for resale.

In 1986, Taber decided to open a selling outlet on rented property away from his farm. Realizing that such sales would be taxable, he applied for a permit. An audit of his business was conducted, and it was determined that Taber owed gross receipts taxes for the period September 1,1980, to August 31,1986, with respect to his retail sales. Taber sought, without success, to have the decision revised. A hearing was held by the Arkansas Department of Finance and Administration Board of Hearings and Appeals. The commissioner, upon timely request, refused to abate or revise the decision, and a final deficiency assessment was levied August 23, 1988, in the amount of $26,048.66, including interest. A writ of execution against Taber’s property to collect the deficiency was issued in December, 1988.

In an effort to comply with Ark. Code Ann. § 26-18-406(2) (1987), Taber attempted to file a bond in the amount of twice the assessment which would have permitted him to bring suit within 30 days after the filing of the bond to have the commissioner’s decision set aside. The bond he tendered was a property bond, and the director found it unsatisfactory and refused to accept it, as he was authorized to do. Ark. Code Ann. § 26-18-304 (1987). Taber was financially unable to post a corporate or cash surety bond.

Under threat of execution, Taber paid $360.00 to the commissioner, asking that $5.00 be allocated to each of the 72 months comprising the deficiency period, and filed suit for a refund of the money. A temporary restraining order was issued. Thereafter, Taber paid further, designating the payment as payment in full for some 13 specified months in the years covered by the assessment.

Four theories were asserted by Taber in the chancery court. He contended he was entitled to a refund (1) pursuant to § 26-18-406, which permits an action to be brought to overturn the final decision of a hearing officer upholding a deficiency assessment, (2) pursuant to § 26-52-507, which permits an action for a tax overpayment, (3) pursuant to Ark. Const, art. 16, § 13, authorizing an action to prevent an illegal exaction, and (4) pursuant to taxpayers’ rights at common law. The chancellor rejected the theories offered, said she lacked jurisdiction of the claim, and dismissed the complaint, without prejudice.

1. Return of payment, § 26-18-406

The federal tax system permits a taxpayer who had paid a divisible portion of an excise tax to seek judicial relief from the assessment pursuant to which the payment was made. Taber cites Jones v. Fox, 162 F. Supp. 449 (1958), as exemplary of cases invoking the divisible excise tax principle. It is also mentioned in Flora v. United States, 362 U.S. 145, 175, n.38 (1959). The theory behind distinguishing excise from income taxes, and for permitting divisibility with respect to the latter but not the former, is that an excise tax is usually payable upon a transaction or for a short period which can be divided from other transactions or periods. Income taxes, on the other hand, are more complicated, and must take into account deductions as well as exemptions.

Taber’s contention is that the Arkansas tax scheme was modeled on the federal tax scheme, and we should therefore implement the division principle. He concedes, however, that there is no federal statute like § 26-18-406 (d) which states that § 26-18-406 provides the “exclusive method for seeking relief from a written decision of the director establishing a deficiency in tax.” The “method” is the posting of a bond, as discussed above, or payment under protest of the deficiency plus penalty and interest and filing suit within one year.

The fact that Ark. Code Ann. § 26-18-204(e) (1987) states that a “taxpayer may seek relief’ under § 26-18-406 takes nothing away from the clarity of the exclusivity language of § 26-18-406. Nor does the fact that the second sentence of § 26-18-406(d) states that there shall be no injunctive relief against assessment or collection. It gives the taxpayer the exclusive method of challenge.

In view of the clear statutory provision of the “exclusive” remedy for challenging a deficiency assessment, we have no authority to invoke the divisible tax scheme.

2. Overpayment, § 26-52-507

Section 26-52-507(a) provides:

Any taxpayer who has paid any state tax to the State of Arkansas, through error of fact, computation, or mistake of law, in excess of the taxes lawfully due shall, subj ect to the requirements of this chapter, be refunded the overpayment of the tax determined by the director to be erroneously paid upon the filing of an amended return or a verified claim for refund.

Taber filed for a refund, following the procedure outlined in subsequent subsections of this statute, and it was denied. He reasserts his divisible tax argument with respect to this section, contending that each of the payments he made was an overpayment because no tax was due. We do not consider this section to apply in this case. It deals with a taxpayer’s overpayment through “error of fact, computation, or mistake of law.” Taber paid under protest rather than through error. We have no doubt that his remedies fell under § 26-18-406, not § 26-18-507.

3. Illegal exaction

Article 16, § 13, of the Arkansas Constitution provides: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exaction whatever.” Taber contends this provision gave the court jurisdiction to entertain his claim. It is argued that this case is like McCarroll v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S.W.2d 254 (1939), where we held the chancellor had jurisdiction of an illegal assessment.

In the McCarroll case we held the chancellor had jurisdiction to entertain an illegal exaction where it was alleged, and the chancellor held, that the Arkansas income tax was void to the extent it was to be applied to money earned by vinegar making plants operated by the taxpayer outside Arkansas. There it was alleged, and held, that the statute creating the tax was unconstitutional. An illegal exaction suit was held to be appropriate, and it was held that the taxpayer could not be limited to the procedures allowed by the tax act to challenge the assessment. We find a suit to declare a tax statute unconstitutional, and therefore void, to be different from a suit to determine whether the taxpayer’s transactions fall within an exemption created by the statute. We cannot agree that the McCarroll case gives chancellors jurisdiction to hold that the procedural requirements of the tax law do not apply when there is no allegation that the basic tax statute is void.

The same is true of Harrison v. Norton, 104 Ark. 16, 148 S.W. 497 (1912), cited as a “see also” case by Taber. There, the chancellor was held to have jurisdiction of an illegal exaction suit where a county road tax was challenged because the results of the election which had resulted in the tax had allegedly been improperly reported. Again, there was a challenge to the validity of the underlying tax law.

The remaining case cited in the part of Taber’s brief dealing with the illegal exaction point is Samples v. Grady, 207 Ark. 724, 182 S.W.2d 857 (1944). We held that a taxpayer is not bound by a statutory provision requiring posting a bond where the suit is for an illegal exaction against the collector for misuse of taxes which have been collected.

The commissioner contends the illegal exaction provision has been held to apply only to an “illegal tax” or an illegal use of funds, citing Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963).

The Starnes case held only that art. 16, § 13, conferred jurisdiction on the chancellor to enjoin members of the general assembly from holding other state offices. In obiter dicta the court stated that the provision applied to an illegal tax and to the misappropriation or misuse of state funds.

In his reply brief, Taber responds with reference to Hardin v. Gautney, 204 Ark. 723, 164 S.W.2d 427 (1942), where we held that a chancery court has jurisdiction to determine whether a “transaction” should not be taxable. That case, however, was based on a specific statute giving the court jurisdiction. Act 386 of 1941, §10. That provision was repealed by Act 401 of 1979, § 48(c).

We cannot hold the chancellor erred in declining to find Taber’s complaint stated a claim for illegal exaction.

4. Common law and due process

Taber’s final segment of argument is that the common law affords a remedy to a taxpayer to recover involuntarily paid taxes and that to deny him this relief as well as illegal exaction relief and to deny his arguments for divisibility of the tax under the tax scheme is to deny him due process of law.

Exemplary of cases cited for the common law right to return of an involuntarily paid tax is City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). That was an illegal exaction case where we contrasted a payment made by a taxpayer voluntarily. We held the city had created an illegal exaction by allowing a charge to be made to water consumers without authority. We were not dealing with a statute controlling the method by which an assessment could be challenged.

The general assembly has obviously altered the common law with the enactment of § 26-18-406, discussed above, which provides the exclusive method for challenging a deficiency determination. This leaves us with the due process argument.

During oral argument counsel for the commissioner correctly pointed out that in this case we are considering whether the chancellor erred in holding that the complaint failed to state facts upon which a claim for relief could be granted. The due process argument was included in the count of the complaint dealing with § 26-18-507 only, and it is doubtful that the chancellor was given the opportunity to consider the full range of the due process argument being made on appeal. We cannot ascertain that from Taber’s appendix.

Be that as it may, Taber has been unable to cite one case where it was held that a statute requiring either posting a bond or full payment before challenge of a tax is unconstitutional. We are sensitive to and fully appreciative of Taber’s conclusion that, with respect to a taxpayer who can neither make full payment nor post the required bond, the commissioner has “confiscatory” power. In this case it will mean that the commissioner may be able to foreclose his lien on Taber’s property with no judicial review of Taber’s claim of exemption.

At first blush, it sounds as if a court should be able to come up with a remedy for a taxpayer in that position, but that ignores the other side of the coin which is well illustrated in Mister Chief Justice Warren’s opinion in Flora v. United States, supra:

A word should also be said about the argument that requiring taxpayers to pay the full assessments before bringing suits will subject some of them to great hardship. This contention seems to ignore entirely the right of the taxpayer to appeal the deficiency to the Tax Court without paying a cent. If he permits his time for filing such an appeal to expire, he can hardly complain that he has been unjustly treated, for he is in precisely the same position as any other person who is barred by a statute of limitations. On the other hand, the Government has a substantial interest in protecting the public purse, an interest which would be substantially impaired if a taxpayer could sue in a District Court without paying his tax in full. . . [362 U.S. 175-176, footnotes omitted].

The Supreme Court thus held that judicial review by a court created under Article III of the Constitution of the United States was not available to a taxpayer where Congress had required payment of the tax in full as a prerequisite, and the taxpayer had not complied. While we have no tax court in Arkansas, our law does accord administrative remedies to the taxpayer of which, as reported earlier in this opinion, Taber has taken full advantage.

While we are sympathetic with a taxpayer in Taber’s position, we cannot say he has demonstrated that the Due Process Clause entitled him to pursue his claim in a court.

Affirmed.


author: Tom Glaze, Justice.

text:
    Billy Earl RAINWATER v. STATE of Arkansas
    CR 89-238
    791 S.W.2d 688
    Supreme Court of Arkansas
    Opinion delivered June 18, 1990

      Gibbons & Walker, by: David L. Gibbons, for appellant.

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

Appellant was convicted by a jury of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, possession of LSD, possession of diazepam and possession of drug paraphernalia. He was sentenced to a total of forty years in the penitentiary. On appeal, he claims police officers used invalid search warrants to seize drugs found in this car and home and the evidence obtained as a result of such searches should have been suppressed by the trial court. We hold the court’s ruling finding the warrants valid was correct, and therefore affirm.

Appellant first challenges the validity of the car search and relies heavily on A.R.Cr.P. Rule 13.1(b). He argues that the affidavit used to obtain the search warrant was hearsay and based almost entirely on information gained from unnamed confidential informants. He further contends that the affidavit fails to meet the requirements of Rule 13.1 (b) because it lacks particular facts concerning the informants’ reliability and also fails to disclose, as far as practicable, the means by which information was obtained.

Appellant’s argument, as posed, is wrong in two important respects. First, much of the information contained in the affidavit for the car search warrant (and the house search warrant as well) resulted from the affiant’s, Officer Kyn Wilson’s, personal investigation and his surveillance of the appellant’s house which took place before appellant’s arrest and the search of his car and home. Second, in citing Rule 13.1 (b), appellant limits his reliance on language contained in the Rule which codifies the two-prong test of Aguilar v. Texas, 378 U.S. 108 (1964), for determining whether an informant’s tip establishes probable cause for issuance of a warrant. That test, of course, has been abandoned by the Supreme Court in favor of a new, more flexible one called the “totality of the circumstances test.” Illinois v. Gates, 462 U.S. 213 (1983). In further explaining how the totality-of-the-circumstances analysis is to be applied, the Supreme Court stated the following:

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed.

With the Gates test in mind, we examine the car search warrant and its supporting affidavit to determine whether sufficient information was presented to the magistrate to allow that official to determine probable cause.

We review the facts contained in the affidavit in the chronological sequence of the officer’s investigation leading to the appellant’s arrest. Officer Wilson averred that he personally had observed appellant’s home and that, during his and his police department’s surveillance, Wilson saw an extremely high volume of traffic go in and out of the home at all hours of the day and night. Individuals would come and go, and in doing so, spent short periods of time in the house. Wilson knew that some of these individuals drove vehicles that were registered to persons who had been arrested and convicted for possession or use of controlled substances. Wilson further averred that he personally knew appellant’s sole job was owner/operator of a coin laundry business in Clarksville, Arkansas, and the high volume of people going to appellant’s house was inconsistent with any legitimate business needs. Wilson also related that he had prior reports from individuals who said that they had purchased illegal drugs from the appellant, but none of those individuals were willing to assist the police because they feared for their personal safety.

Wilson also described the appellant as a white male with brown hair and in his forties. This description later matched with confidential informant information which led to appellant’s arrest on October 14,1988. That informant said that a white male with brown hair, who was in his forties, had been seen in Dallas, Texas, placing two garment bags containing marijuana and/or cocaine in the trunk of a 1984 silver Mercury Marquis, Arkansas vehicle license number OEY 115. Wilson confirmed that vehicle was registered to appellant, and this information also corroborated other prior informant information that appellant’s source of controlled substances was in Dallas, where appellant drove to procure them. Finally, the affiant, Wilson, recited that he had received information from a confidential informant that, at approximately 12:00 a.m. on the night of October 13, 1988, the vehicle to be searched (appellant’s) left Dallas, Texas in route to Clarksville, Arkansas. He concluded that this informant was a concerned citizen who had received nothing for reporting this information; he further stated that the informant had no criminal record.

As can be discerned from the above, Officer Wilson did not act solely upon the advice or information given him by confidential information. Instead, his independent police work corroborated or confirmed many of the tips given by informants. Certainly the affidavit offered the magistrate sufficient verified information to show there was a fair probability that appellant’s car contained controlled substances at the time the warrants were issued. Although it might not meet the “reliability” or “veracity” test established in Aguilar, we believe Wilson’s affidavit suffices for the practical, common sense judgment called for in making a probable cause determination under the standard in Gates.

Before leaving the car search issue, we note appellant’s allegation that Officer Wilson’s affidavit misled the magistrate into believing that Wilson, not the state police, had obtained information directly from the informant, who gave the details of appellant’s presence and illegal activities in Dallas on October 13, 1988. He asserts that such a misrepresentation contaminated any seizures resulting from the warrant issued by the magistrate.

Again, we disagree with the appellant’s analysis and interpretation of the affidavit in issue. It is true that, at the suppression hearing, Wilson stated that he had not previously dealt with the informant and the informant information he obtained was from the state police. However, all Wilson related in his affidavit was that he had “received information from a confidential informant” concerning appellant’s activities in Dallas. While this statement, in retrospect, could have been worded better, it does not undermine the credibility of the information given in light of other facts Wilson related in his affidavit. Further, Wilson’s statement does not negate the implication that the informant’s tip could have been given him by a third party, such as the state police.

Appellant also attacked the validity of the affidavit used to obtain the search warrant for his house, and while it was essentially identical to the one used for the car search warrant, it further recited having searched and found cocaine in the appellant’s car. Wilson’s initial surveillance of appellant’s house and other information given him directly by informants may not have been sufficient to establish reasonable cause. However, as the investigation of the appellant continued, earlier information implicating appellant as one who trafficked in drugs was confirmed. Of course, no doubt existed after officers found cocaine and diazepam tablets in appellant’s car. By the time Wilson requested a warrant to search appellant’s house, his earlier tips and information had been corroborated at least to the extent that there was probable cause to believe that controlled substances were located in appellant’s home.

Both parties, citing United States v. Leon, 468 U.S. 897 (1984), argue their opposing views concerning the “good faith” exception to defects in search warrants. While the searches involved here could also be upheld under the Leon rationale, we need not discuss this point because we hold the search warrants were valid and the evidence seized as a result of the searches was admissible.

For the reasons stated above, we affirm.

       By Per Curiam February 5, 1990, effective March 1, 1990, we amended Rule 13.1(b) so it would reflect language consistent with the Gates decision. See In Re Committee on Rules of Pleading, Practice and Procedure, 301 Ark. appendix (1990). In that respect, we deleted none of the existing language in the rule but added the following:
      An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

       We note that, at the suppression hearing, appellant raised a question as to whether the affidavit contained the car’s description as given by the informant, but in reading the entire affidavit, we agree with the trial court that it did.

       Appellant tried to discredit the information given by the informant, who apparently saw appellant in Dallas, by pointing out that, when appellant was stopped and arrested in Clarksville, no marijuana or cocaine was found in garment bags in the trunk of appellant’s car. Even so, officers found cocaine in a bag inside appellant’s car and while no drugs were found in his car’s trunk, they did discover two garment bags in it.

         Officers found 695 grams of marijuana, four microdots of LSD, three sets of scales and other items as a result of their search.


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    William Daniel RICHMOND, Jr. v. STATE of Arkansas
    CR 90-3
    791 S.W.2d 691
    Supreme Court of Arkansas
    Opinion delivered June 18, 1990
    [Rehearing denied July 16, 1990.]

      Bob Keeter, for appellant.

      Steve Clark, Att’y Gen., by; Ann Purvis, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an appeal from the appellant’s conviction of first degree murder. In a bifurcated trial, the jury sentenced the appellant to life imprisonment. Appellant raises eight points for reversal in his appeal. We find no error and therefore affirm.

Because the appellant does not challenge the sufficiency of the evidence on appeal, only the following facts are necessary for an understanding of this case. In the evening on February 22, 1989, David Masters was shot four times with a high powered rifle at close range while he was sitting in his pickup truck. Masters died from the shots to his head, neck and face, and according to the medical examiner’s testimony, each shot would have been fatal. The victim was discovered in his truck the next day by road workers. The medical examiner estimated the time of death to have been between 8:00 and 8:30 p.m. on February 22, 1989. Earlier in the evening on February 22, the appellant and Mitchell Miles were seen talking with the victim.

Mitchell Miles, who claimed he was an eyewitness to the murder, testified for the state at the trial. According to Miles, at the appellant’s request, he went to Masters’ place of business earlier that day and told him that the appellant had gotten busted the night before while making a drug run for Masters. Miles also stated that he was with the appellant that night when they met the victim at a gas station and drove to where the killing occurred. Miles stated that he was by the victim’s truck talking with him when the appellant began to shoot. Masters had a syringe in his pocket when he was discovered, and the state’s theory at the trial was the killing occurred because of a drug deal that when sour.

As his first point for reversal, the appellant argues that the trial court erred in not granting his motion for a mistrial when the wife of the victim had an emotional outburst during her testimony at the trial. After Martha Masters identified the appellant, she made the following unsolicited statement: “God. How could you do that to him? You devil.” The trial court denied the appellant’s motion for a mistrial but gave an admonishment to the jury for them not to consider the emotional outburst when deliberating on the case and for them to follow the court’s instructions on the law.

We have frequently stated that a motion for a mistrial is an extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. See, e.g., King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Id. While generally a cautionary instruction to the jury like the one given in this case will take care of such unusual events, we have recognized that there are circumstances where statements or actions in the jury’s presence are so highly prejudicial that they violate the accused’s right to a fair trial, and no admonition to the jury can cure them. Id. But, such is not the case here.

Appellant cites to Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976), wherein we stated that emotional outbursts by the relatives of murder victims and by victims of crimes are not unusual and are difficult to control. He states we found the trial court did not abuse its discretion in denying a mistrial in Venable because no accusatory remark or remarks were made at the accused. Here, he argues, Ms. Masters made accusatory remarks toward the appellant and for that reason, the mistrial should have been granted. We disagree.

In Venable, the outbursts were made by two witnesses, one of whom was a victim. One witness, after having identified the defendant at trial, then immediately exclaimed, “Oh, my God! Why, Lord, why Donnie, why Donnie, why? Why would anybody want to kill him (crying).” Obviously, the witness’s remarks in Venable were prompted by her having identified the defendant. Nevertheless, while we viewed the witness’s remarks as being nonaccusatory, this court’s decision to uphold the trial court’s ruling denying a mistrial turned on its deference to the trial court’s discretion in these matters. In this respect, we said the following:

The trial judge must have been aware of all that took place in his presence and was in a better position to evaluate the impact of these occurrences than anyone else. He had a wide latitude of discretion in the control of the trial. Utilization of the extreme and drastic remedy of declaration of a mistrial should be a last resort.

We have upheld the trial court’s denial of motions for mistrial where a crime victim fainted in the presence of the jury, King, 298 Ark. 476, 769 S.W.2d 407, and where a relative of a crime victim made an emotional outburst during her testimony, Venable, 260 Ark. 201, 538 S.W.2d 286. Here, Ms. Masters’ statement was spontaneous and unsolicited. After making such an outburst, she was excused from the witness stand and a recess was immediately called. After the recess, the trial court carefully admonished the jury not to consider the outburst in any way in their deliberation of the case. Under such circumstances, we cannot say the trial court abused its discretion in not granting the appellant’s motion for a mistrial.

Next, the appellant argues that the trial court erred in admitting into evidence a letter written by the victim to his parents while he was in a drug rehabilitation program. In addition to expressing remorse for the trouble he had caused his family, the victim, Masters, stated in this letter that his parents should tell the following to anyone who asked where he is: “We have got to lock up the dealers so the young ones don’t have to go through all the misery and despair we have known for 20 years.” The appellant argued below and now on appeal that the letter is hearsay and irrelevant evidence. We disagree.

Under A.R.E. Rule 801(c), hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Here, the letter was not entered into evidence to prove the truth of its contents but to show that Masters had a drug problem. See generally J. Weinstein & M. Berger, Weinstein’s Evidence, § 801(c) [01] (1987). Therefore, it was not hearsay. Further, we do not believe the trial court abused its discretion in finding theletter relevant.See Walker v.State, 301 Ark. 218, 783 S.W.2d 44 (1990). The state’s theory throughout this case is that Masters was killed by the appellant because of a drug deal that went sour. While the state is not required to prove motive, we have held that the state is entitled to introduce evidence showing all circumstances which explain the act, show a motive for acting, or illustrate the accused’s state of mind. Lair v. State, 283 Ark. 237, 675 S.W.2d 361 (1984). Clearly, the state wanted the letter introduced to support its theory for the appellant’s motive for killing Masters.

In the third issue, the appellant argues that the trial court erred in admitting five color photographs of the victim which were taken by the State Medical Examiner, Dr. Malak. At the hearing on the appellant’s motion to suppress, the state proffered seven photographs. Upon reviewing the photographs, the trial court ruled that five were admissible, and on review, we cannot say that the trial court abused its discretion. See Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986).

Unfortunately, a gruesome and heinous crime such as this one results in grotesque photographs. However, we have held that even if photographs are inflammatory in the sense that they show human gore replusive to the jurors, they are admissible within the discretion of the trial judge if they help the jury understand the testimony. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987).

Here, the five photographs admitted show the bullet wounds in the victim’s head, face and neck, and were used by Dr. Malak to explain the victim’s cause of death to the jury. They are neither repetitive nor particularly inflammatory. We note that the appellant argues that the photographs were not relevant to any issue that was before the jury since he had advised the court that he would not contest either the nature or the cause of death. However, we have held that a defendant cannot prevent the state from offering proof simply by conceding a fact. Williams v. State, 300 Ark. 83, 776 S.W.2d 359 (1989). Further, we believe that the photographs are probative to the issue of the necessary elements of premeditation and deliberation for first degree murder. See Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980).

The trial court’s ruling that the victim’s death certificate was not admissible is the subject of appellant’s fourth issue. At the trial, the appellant’s defense was that he did not commit the murder and because of the estimated time of the victim’s death, he could not have been present at the crime scene. To support this defense, the appellant presented testimony from a State Patrol Officer that the appellant had been an informant for the police on several occasions and on the night in question was at the Polk County Courthouse shortly before 8:30 p.m. to help in an undercover drug buy. Dr. Malak’s testimony estimated the victim’s time of death as being between 8:00 and 8:30 p.m.; the death certificate stated that the victim’s time of death was approximately 8:30 p.m.

Even if we were to agree with the appellant that the trial court should have admitted the death certificate, we fail to see how the appellant was prejudiced. Dr. Malak testified candidly that there was no test available to determine the exact time of death. From his examination of the victim, he estimated the time of death to be between 8:00 and 8:30 p.m. The fact that the death certificate, prepared by Dr. Malak, states that the time of death is approximately 8:30 p.m. is not inconsistent with this testimony.

In sum, we feel that the appellant was able to get his defense before the jury through Dr. Malak’s testimony, and therefore has not shown he was prejudiced. We will not reverse a conviction for an error which is unaccompanied by prejudice. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). Further, we have held that the exclusion of evidence cannot be considered prejudicial if the same evidence is introduced by another witness and was before the jury for its consideration. Hall v. State, 286 Ark. 52, 689 S.W.2d 534 (1985).

Next, the appellant argues that the trial court erred in denying the appellant’s motion to compel the state to elect between charging the appellant as a principle or an accomplice in the murder of Masters. There is no merit in the appellant’s argument. An information charging the defendant with murder can only charge one offense. Ark. Code Ann. § 16-85-404(a) (1987). However, the information may allege the modes and means of the offense in the alternative. Id. Here, the appellant was charged with one crime — murder in the first degree. But, in the information the state correctly charged the appellant with committing the offense by different means or modes, as either a principal or an accomplice. Further, the appellant failed to show how he was prejudiced since the criminal responsibility for the principal and accomplice are the same. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Nor, do we believe that he could since the defense he presented would have applied to either a principal or an accomplice.

Likewise, we find no merit in the appellant’s argument that the trial court erred in denying his request to cross-examine a witness concerning his arrest for carrying a pistol into the court room. Frank Kelley testified for the state at the trial, and on the day before he gave testimony he was arrested for attempting to enter the courtroom while carrying a pistol.

Below and here on appeal, the appellant argues that he should have been able to cross-examine him about this incident pursuant to A.R.E. Rule 608(b). This rule provides that specific instances of conduct if probative of truthfulness or untruthfulness may be inquired into on cross-examination concerning the witness’s character for truthfulness or untruthfulness. The trial court ruled an arrest for carrying a pistol into the courtroom is not probative of whether the witness is truthful or not. We agree.

Appellant cites us to no case, nor do we know any where we have held that such an offense is probative of truthfulness or untruthfulness. In fact, our recent holding that an escape does not meet the requirements of being probative of truthfulness in Rule 608(b) suggests that we are not likely to do so. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990).

We next address the appellant’s argument that the trial court erred in sustaining the state’s objection to appellant inquiring of a defense witness, Audrey Smith, as to the plans she had made with the appellant on the night in question. We summarily dismiss of this argument by noting that the appellant failed to proffer the testimony of the witness. We will not find error on a trial court’s ruling that excludes evidence when there is no proffer, unless the substance of the offer is apparent from the context in which the questions were asked. A.R.E. Rule 103(2); Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). From the context of Audrey Smith’s testimony, we cannot determine the substance of her testimony that was excluded. In fact, Ms. Smith’s testimony was that the appellant failed to pick her up at work, therefore we would agree with the trial court that any testimony about plans with the appellant that evening would be irrelevant.

Finally, the appellant argues that the state failed to properly inform him of the specific crime he was charged with in its bill of particulars. Clearly, the appellant’s argument has no merit. The state must provide a bill of particulars to the defendant upon request, and its purpose is to acquaint the defense with sufficient information so that he can prepare for trial. Harris v. State, 299 Ark. 433, 774 S.W.2d 121 (1989). Here, the state not only provided a bill of particulars but also an amended bill of particulars which provided the appellant in detail the crime for which he was charged.

For the reasons stated above, we affirm. Pursuant to Ark. Sup. Ct. R. 11(f), we have reviewed the record and find no reversible error.


text:
    Zakee Kaleem ABDULLAH v. A.L. LOCKHART
    89-272
    790 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered June 18, 1990
    [Rehearing denied July 16, 1990.]

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee. .
   Dale Price, Justice.

This is a pro se appeal from an order denying the appellant’s petition for a writ of mandamus and declaratory relief. The primary issue concerns the appellant’s classification as a fourth offender for parole eligibility purposes.

The facts are that the appellant pled guilty to seven counts of burglary in 1982. He was sentenced to five years on each count for a total of thirty-five years, and incarcerated in the Department of Correction. The appellant’s records showed three prior convictions, obtained as the result of guilty pleas: second degree forgery in 1980, burglary in 1977 and burglary in 1975. It was determined that, pursuant to Act 93 of 1977, the appellant, as a fourth offender, was not eligible for parole.

The appellant filed suit challenging his classification as a fourth offender. He claimed that his three previous convictions were obtained without his having benefit of counsel and, therefore, should not be used to determine his parole eligibility status. The trial court found no error in the use of the prior convictions. We affirm.

Unless a record of prior convictions shows the defendant was represented by counsel, there is a presumption that the defendant was denied effective assistance of counsel. Burgett v. Texas, 389 U.S. 109 (1961); Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989). The burden of proof is on the state. Elmore v. State, 268 Ark. 225, 595 S.W.2d 218 (1980).

Here the certified copies of the judgments do not show whether the defendant was represented by counsel, but other documents, such as docket sheets and records of proceedings may be used. Stewart v. State, supra. The docket sheet for the 1975 conviction contains an entry which reads: “Defendant waives his right to counsel and enters his plea of guilty.” The docket sheet is certified as true and correct by the circuit clerk. The cover for the docket sheet in the 1977 conviction reflects the name of James C. Graves as attorney for the defendant. Finally, the record of the plea hearing in the 1980 conviction shows the appellant, when told he had the right to an attorney, said that his attorney would be “Almighty God of the Heavens and the Earth.” The state met its burden of proof by showing that appellant was represented by counsel or waived counsel on each prior conviction.

The appellant makes two other arguments which must also fail. First, he contends that the parole eligibility law, under which his classification was computed, was not in effect at the time he was sentenced in 1982. Appellant’s status was determined under Act 93 of 1977, which is codified at Ark. Code Ann. § 16-93-604 (1987). Under that statute, the Department computes parole eligibility for offenses committed between April 1, 1977, and April 1, 1983.

Act 9 3 was in effect when the appellant was convicted of his third offense in 1980 and when he committed his fourth offense in 1982. Hence, as we said in Woods v. Lockhart, 292 Ark. 37, 727 S.W.2d 849 (1987), and Tisdale v. Lockhart, 288 Ark. 203, 703 S.W.2d 849 (1986), the appellant must be taken to have known that, if he committed a fourth offense, his parole eligibility would be computed in accordance with the law in effect at the time his latest felony was committed. Here that law was Act 93, and it provides that fourth offenders are not eligible for parole.

Finally, the appellant argues that it was the prerogative of the sentencing court, not the Department of Correction, to determine his parole eligibility status. Determining parole eligibility is the province of the Department of Correction. Fain v. State, 286 Ark. 35, 688 S.W.2d 940 (1985).

Affirmed.