author: Jim Hannah, Justice. Robert L. Brown, Justice,

text:
    Curtis Hoyt YANCEY and Lee Roy Cloud v. STATE of Arkansas
    CR 00-1310
    44 S.W.3d 315
    Supreme Court of Arkansas
    Opinion delivered May 24, 2001

      Sam T. Huer and James T. Lessmeister, for appellants.

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

Appellants Lee Roy Cloud and Curtis Hoyt Yancey appeal their conviction and sentence for violation of Arkansas Code Annotated Section 5-64-401 (Supp. 1999), for possession of a controlled substance with the intent to deliver. Both appellants filed conditional pleas of guilty pursuant to Ark. R. Crim. P. 24.3(b), whereby they reserved their right to appeal from the trial court’s denial of their motion to suppress evidence seized during the a search of their homes. Both appellants were sentenced to four months confinement and four years probation.

This case was appealed to the court of appeals, which resulted in a 4-2 decision by that court that the warrants to carry out the searches were properly issued because the facts presented formed a substantial basis to conclude that probable cause existed and that marijuana would likely be found where appellants lived. Yancey v. State, 71 Ark. App. 280, 30 S.W.2d 117 (2000). The court of appeals additionally found that even if probable cause, was lacking, the search met the requirements of the “good faith exception” set out in United States v. Leon, 468 U.S. 897 (1984), in that the judge determined there was probable cause and the police acted in reasonable reliance on the warrants issued. We granted a petition for review and now consider this matter. When we grant a petition for review pursuant to Ark. Sup. Ct. R. 2-4, we treat the appeal as if it were filed in this court originally. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

We decline to follow the line of cases cited by the court of appeals and reaffirm our requirement that before a search warrant may issue, an affidavit must be presented to the magistrate that particularly sets forth the facts and circumstances tending to show that the things to be seized are in the place to be searched. Although we hold probable cause in the affidavit lacking, we hold that the officers acted in good faith on the issued warrant and hold that the Leon exception applied. We reverse in part and affirm in part.

Facts

On June 17, 1998, at approximately 9:30 p.m, Arkansas Game and Fish Officer David Evans observed a Jeep being driven down a road in a remote wooded area in Monroe County. He knew Yancey had been driving that Jeep for some time. Evans knew both Yancey and Cloud and had spoken with them before. Evans left his lights off and followed the Jeep. He then parked and observed appellants by use of night-vision equipment. He observed them remove containers of water from the Jeep and water plants growing in a tub, in an ice chest, and in the ground. Evans returned to his own vehicle and waited. He then followed appellants back to Cloud’s residence in Arkansas County.

At Cloud’s residence, Evans asked appellants what they were doing down that road. They responded, “Frogging.” Evans testified in the suppression hearing that there were no frogs down that road. He also testified that he asked if they got any frogs, and they responded, “No.” He then asked if he could look in the vehicle, and they consented. Evans testified he looked through the window and saw gallon jugs and five gallon cans, that there was no frog-gigging equipment, and that while Cloud was wearing hip waders, they had dry dust all over them. Evans testified he saw nothing in the Jeep other than the water containers.

After leaving appellants, Evans called Arkansas State Trooper Rosencrantz because he was not sure who to call given the plants were in Monroe County and appellants lived in Arkansas County. Apparently nothing came of that call. The next day, Evans called the Monroe County Sheriff’s Department and was told that they would be overflying the area soon and that they would get back to him. He did not hear back from them that day, so the next day he went to Wendall Jines, a Criminal Investigative Division investigator for the State Police. Jines took Evan’s deposition, and he and Evans returned to the plants. They believed they were marijuana plants. The plants were put under surveillance, but Yancey and Cloud never returned. Jines and Evans removed three plants the day they first went to examine the plants and an additional fifteen on the morning of June 22, 1998. On that same day, Evans appeared before Municipal Judge Norman Smith, at which time the search warrants were issued to search Cloud’s home and Yancey’s home. Evans was the sole source of information. Marijuana was found in each appellant’s home.

Standard of Review

When reviewing a trial court’s ruling on a motion to suppress, we view the evidence in a light most favorable to the State, make an independent determination based on the totality of the circumstances, and reverse only if the ruling was clearly against the preponderance of the evidence. Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000); Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648, cert. denied, 120 S.Ct. 321 (1999); Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998).

Reasonable Cause

In this case, search warrants were issued for two homes after appellants were observed watering eighteen marijuana plants in the woods five to six miles from their homes and then driving to Cloud’s home. The plants in the woods were seized prior to the issuance of the search warrant. We also note that the water containers used by appellants were transported and were still in Yancey’s vehicle when Officer Evans looked in the vehicle window

The Fourth Amendment to the U.S. Constitution and Art. 2 § 15 of the Arkansas Constitution provide protection against general search and seizure and require a warrant before a search may take place.

In Arkansas, the procedure for issuance of a search warrant is set out in Ark. R. Crim. P. 13.1. The portions of that rule relevant to the issues of this case provide:

(b) The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched .... 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. . . .

Thus, probable or reasonable cause to believe the things subject to seizure will be found in the particular place identified is required, and this must be established by affidavit or recorded testimony. See Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996); Ark. R. Crim. P. 10.1.

The cases hereinafter discussed refer to both reasonable cause and probable cause. In Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989), we indicated that there is no “substantive distinction” between the terms.

Whether the reasonable or probable cause requirement is met turns on the adequacy of the affidavit or recorded testimony. The test for adequacy of the affidavit set out in Illinois v. Gates, 462 U.S. 213 (1983), and adopted by this court in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350(1983), was recently quoted by this court in State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1990), whereby:

[t]he 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 the 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 the reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed. State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993); Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).

Rufus, 338 Ark. at 312. In Rufus, this court also stated that the current Ark R. Crim. P. 13.1(b) incorporates the test set out in Thompson. Consistent with the requirement of substantial evidence of probable cause, Rule 13.1(b) requires “facts and circumstances tending to show that such person or things are in the places... to be searched.”

At issue in this case is the adequacy of Evans’s affidavit. An affidavit is a sworn statement of facts. McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990). Thus, an affidavit places facts before the magistrate so he or she may determine whether they provide a substantial basis for concluding that probable cause exists to issue the search warrant. Thompson, supra.

Although the existence of a fact may be proved by circumstances as well as by direct evidence, the circumstantial evidence must be sufficient to lead to the inference. Merchant’s Bank v. State Use Calhoun County, 180 Ark. 994, 23 S.W.2d 624 (1930). Where circumstantial evidence is relied upon to establish a fact, “the circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create the basis for a legal inference and not mere suspicion.” Wesson v. United-States, 172 F.2d 931, (8th Cir. 1949).

Examining the affidavit in this case reveals the following facts relevant to probable cause:

1. That at about 9:30 p.m. on the evening ofjune 17, 1998, Game and Fish Officer Evans observed appellants driving down a road in a remote wooded area and followed them;
2. That using night vision equipment, he observed them remove containers from their vehicle and water what he believed to be marijuana plants;
3. That Evans then followed appellants as they drove away and stopped at appellant Cloud’s home; approximately five to six miles from the plants;
4. That Evans stopped at Cloud’s residence and spoke with appellants and was told they were out frog gigging although Evans believed it unlikely given a lack of water down the road they had taken;
5. That Evans asked and was given permission to look in Yancey’s vehicle, and he saw only the before-mentioned water jugs and containers;
6. That on June 19, 1998, Evans returned to the plants with a county deputy and a state police officer and identified the plants as eighteen marijuana plants.
7. That three plants were removed on June 19, 1998;
8. That on June 22, 1998, Evans and two other officers returned to the wooded area and removed the remaining fifteen marijuana plants;
9. That Cloud had been convicted of possession of controlled substances on a number of occasions;
10. That information and intelligence developed by different law enforcement agencies working within Arkansas County indicated appellants had been, and continued to be, involved in propagation, preparation, consumption, and delivery of controlled substances, specifically marijuana.

The evidence offered in the affidavit may be divided into that regarding what Evans personally observed and that relating to appellants’ alleged criminal conduct on prior occasions.

We will dispense with the question of the prior criminal conduct first. This information is provided apparently to infer appellants are known criminals and known criminals would be expected to have the sought evidence in their homes. The known criminal averment is not only insufficient to support a finding of reasonable cause but is entitled to no weight whatsoever. The U. S. Supreme Court has referred to such an assertion as “a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising a magistrate’s decision on a warrant.” Spinelli v. United States, 393 U.S. 410, 414 (1969). Additionally, the “bald” assertion of prior criminal conduct alleging appellants had been and remained involved in growing and selling marijuana is nothing more than an unsubstantiated conclusion and is insufficient to support probable cause. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Additionally, Evans, a Game and Fish officer, is the declarant on the affidavit. Nothing in the affidavit is offered to show why a Game and Fish officer would have knowledge of investigations of different law enforcement agencies and, thus, the information is unsupported in any event. Affirmative allegations of fact are required. Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885 (1971).

Thus, the conclusions asserted in the affidavit regarding Cloud’s alleged prior criminal conduct must be ignored in analyzing whether probable cause was shown. The State argues that the challenge to the information of prior criminal conduct was not preserved below. Whether that is so is of no import. If the issue was not preserved, then appellants here may not challenge the factual inference arising therefrom. However, this type of evidence has been rejected as giving rise to any credible inference and, therefore, it still must be ignored by this court because below it could not have given rise to any inference by the magistrate. See Spinelli, supra; Beed, supra.

We now move to the evidence arising from what Evans observed. There is no direct evidence to support reasonable cause. The analysis then becomes whether the direct evidence in the facts offered by Evans in his affidavit may constitute circumstantial evidence sufficient to provide an inference to support reasonable cause to believe contraband or evidence of a crime would likely be found in appellants’ homes.

The affidavit clearly shows the identified contraband was eighteen marijuana plants, all of which were seized by officers. Evans observed the appellants watering the plants some five to six miles from the homes to be searched. He also testified of seeing the watering containers in Yancey’s Jeep when he stopped to speak with them at Cloud’s home. Evans was unable to provide any testimony whatever that any portion of any marijuana plánt or anything connected with the propagation was likely to be found in the homes to be searched. The facts to which Evans testified might well lead to conviction for propagation of marijuana, and likely possession with the intent to sell. However, no facts are provided that infer in any way that the homes were involved. Thus, there was neither direct nor circumstantial evidence to support reasonable cause to believe contraband or evidence of a crime would likely be found in the homes to be searched.

The court of appeals reached a contrary conclusion based upon their reading of holdings in several federal circuit court cases. We decline to adopt their analysis. These cases seem to rely upon a conclusion that the magistrate issuing the search warrant “need only conclude that it is reasonable to seek the evidence in the place indicated in the affidavit.” United States v. Peacock, 761 F.2d 1313, (9th Cir. 1985 ), cert. denied, 474 U.S. 847 (1985). The test is not whether it is reasonable to believe a suspect would have evidence in the place to be searched. Instead, the test is whether there is reasonable cause to believe contraband or evidence of the crime would likely be found in the place to be searched.

The First Circuit Court of Appeals characterized this same idea more bluntly, stating:

The nexus between the objects to be seized and the premises to be searched need not, and often will not, rest upon direct observation, but rather ‘can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime]....’

United States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999) (quoting United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979)). Again, there is reliance upon what must be termed presumptions on generalized behavioral patterns of a certain class of criminals.

One must conclude that a number of federal circuit courts now allow issuance of a search warrant based not upon an affidavit providing facts to show or infer reasonable cause to believe contraband or evidence of a crime will likely be found in the place to be searched, but rather upon an affidavit only supplying facts to show or infer reasonable cause to believe the person is a drug dealer, and the court by presumption will supply the lacking inference that the affidavit should have supplied. The Ninth Circuit Court of Appeals in Pitts v. United States, 6 F.3d 1366 (1993), quoting United States v. Terry, 911 F.2d 272, (9th Cir. 1990)(quoting United States v. Angulo-Lopez, 791 F.2d 1394 (9th Cir. 1986), stated, “[i]n the Ninth Circuit we have recognized that ‘[i]n the case of drug dealers, evidence is likely to be found where the dealers live.’ ” In United States v. Lamon, 930 F.2d 1183 (7th Cir. 1991), the court of appeals stated:

Warrants may be issued even in the absence of ‘[d]irect evidence linking criminal objects to a particular site United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985); see also, United States v Malin, 908 F.2d 163, 165 (7th Cir.), cert. denied, 498 U.S. 991, 111 S. Ct. 534, 112 L. Ed.2d 544 (1990). An issuing court “ ‘is entitled to draw reasonable inferences about where evidence is likely to be kept, based upon the nature of the offenses.’ ” Id. At 166 (quoting, Angulo-Lopez, 791 F.2d at 1399)....

U.S. v. Lamon, 930 F.2d at 1188.

This line of reasoning has been criticized by other courts. See State v. Thein, 138 Wash.2d 133, 977 P.2d 582 (Wash. 1999). In Thein, the Washington Supreme Court stated, “Probable cause requires a nexus between criminal activity and the item to be seized and also a nexus between the item to be seized and the place to be searched.” See also Guth v. Commonwealth of Kentucky, 29 S.W.3d 809 (Ky. Ct. App. 2000).

For a search warrant to issue, evidence, either direct or circumstantial, must be provided to show contraband or evidence of a crime sought is likely in the place to be searched. Standing alone, circumstantial evidence that the suspect may be a drug dealer is not circumstantial evidence that anything is in his home. At best, the circumstantial evidence here infers that appellants are drug dealers. To then allow an inference that they likely have contraband or evidence of a crime in their homes is to base an inference upon an inference, which is also known as mere suspicion or speculation. It is not allowable under the rules of evidence to draw one inference from another or to indulge presumption upon presumption to establish a fact. Reasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture. Williams v. State, 222 Ark. 458, 261 S.W.2d 263 (1953).

In coming to their conclusions, the federal circuit courts appear to rely upon Gates v. Illinois, supra. In that case the U. S. Supreme Court abandoned its earlier “two pronged” test of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli, supra, and in its place reaffirmed the traditional “totality of the circumstances” analysis and stated:

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.

Gates v. Illinois, 462 U.S. at 238-239. Probable cause has not been abandoned. The Court then gives two examples of earlier cases that set the limits beyond which a magistrate may not venture in issuing a warrant. These examples are quite instructive. Each case involved an affidavit which included facts that the items to be seized would likely be found in the place to be searched, but the affidavits were found inadequate because they were conclusory. The U.S. Supreme Court then goes on to note that “[sjufficient information must be presented to the magistrate to allow that official to determine probable cause....” Gates v. Illinois, 462 U.S. at 239. Nowhere does the Court appear to abandon the requirement that the affidavit provide facts showing that the items to be seized will most likely be found in the place to be searched. The affidavit in the case at bar is devoid of any direct or circumstantial evidence of marijuana or any contraband or that evidence of a crime would likely be found in the two homes searched.

The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that specific things to be searched for and seized are located on the property to which entry is sought. Zurcher v. Standford Daily, 436 U.S. 547, 98 S. Ct. 1970 (1978). Accord Gates v, Illinois, 462 U.S. at 238, (a fair probability that contraband or evidence of a crime will be found in a particular place). See also United States v. Malin, 908 F.2d 163, (7th Cir. 1990). The affidavit must provide facts by direct or circumstantial evidence that there is reasonable cause to believe the specific things sought are located on the property to which entry is sought.

Here, one might argue it is reasonable to infer that persons who are watering marijuana plants in amounts allowing a statutory inference of intent to deliver must be processing it somewhere, and from that inference it might seem reasonable to then infer that their homes are the most likely place for processing. General experience of law enforcement would likely bear out this deduction. However, the test is not whether it is reasonable to believe items to be seized might be found in the place to be searched, but rather whether there is evidence presented to support reasonable cause to believe the items to be seized would likely be found in the place to be searched. There is nothing in Evans’s affidavit as to the maturity of the marijuana plants or whether the plants were ready to be harvested for processing. This case is further complicated because there is no direct evidence that there is any marijuana beyond that seized in the woods. The eighteen marijuana plants were seized and removed to the sheriff s office prior to the affidavit and the search warrant being issued. Thus, how may one then infer where marijuana or other evidence of the crime might reasonably be kept if there is no evidence in the beginning to infer any exists? We also note five days passed from the observance of criminal activity to application for the warrant. A delay in applying for a warrant can diminish probable cause, although the delay is not considered separately, and the length of the delay is considered together with the nature of the unlawful activity and in the light of common sense. Under the facts of this case, the passage of five days from observance of the criminal activity five miles away in the woods to the date the warrant was sought does nothing to increase confidence in the conclusion of probable cause reached by the magistrate.

The State is asking the court to hold that a conclusory allegation in an affidavit for a search warrant that an individual sells drugs would be probable cause to issue a search warrant for that individual’s home because drugs are likely to be found where drug dealers five. See U.S. v. Pitts, supra. The rule the State proposes would expand our court’s opinions and rule that probable cause to search a certain location must be based on a factual nexus between the evidence sought and the place to be searched. This we will not do.

We hold that the affidavit fails to supply sufficient evidence to satisfy Rule 13.1 and our case law. This state requires “probable cause to believe that the place to be searched contains evidence of the crime.” Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996) (citing Johnson v. State, 270 Ark. 247, 604 S.W.2d 927 (1980), cert. denied, 450 U.S. 981 (1981)).

Good-Faith Exception

The State argues that regardless of whether we hold the affidavit and search warrants defective, the Leon good-faith exception applies, and the suppression of the evidence seized as a result of the search warrants is not required.

The good-faith exception was adopted in Arkansas in McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). The general rule for the application of the Fourth Amendment exclusionary ride to evidence seized under an invalid warrant is discussed in Leon. In Leon, the Court fashioned a good-faith exception to the requirement of a valid warrant so that suppression of evidence would not be appropriate when a law enforcement officer acted in good-faith reliance on a facially-valid warrant. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993).

The U.S. Supreme Court in Leon noted that the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands. The Court further noted that an examination of the Fourth Amendment’s origin and purposes makes it clear that the use of fruits of a past unlawful search or seizure works no new Fourth Amendment wrong. The exclusionary rule rather works to deter future violations generally. Leon, 468 U.S. at 906. The Court then went on to note that if the goal is to deter future pobce misconduct, then it only makes sense to apply the exclusionary rule where indeed its appbcation has a deterrent effect, and that where the officers acted in objective good faith or where the transgressions are minor, the magnitude of the benefit conferred upon guilty defendants offends the basic concepts of the justice system. Id. at 907. The Court found that in the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically correct, and that once the warrant issues, there is literaby nothing more the officer can do in seeking to comply with the law. Leon, supra; Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988). Leon holds that objective good-faith rebanee by a pobce officer on a faciaby-valid search warrant wih avoid the appbcation of the exclusionary rule in the event the magistrate’s assessment of probable cause is found to be in error. Under this rule, the rationale is that the exclusionary rule is designed to deter misconduct on the part of pobce rather than to punish them for errors on the part of magistrates. Jackson, supra.

The Court in Leon further concluded that suppression remains an appropriate remedy if the magistrate or judge in issuing a warrant was mislead by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Leon, 468 U.S. at 923; See also Franks v. Delaware, 438 U.S. 154 (1978). Appellants argue that Evans’s affidavit was misleading in violation of Franks because Evans did not state that he did not find marijuana in the Jeep. In Pyle we stated:

Neither Franks nor Leon specifically mentions omissions, but the standards they articulate require a knowing intent to deceive, or a reckless disregard of truth. Applying that standard, it would seem that matters omitted must be material circumstances which contradict or dispel the incriminating factors in the affidavit. Leon states that the good faith standard does not preclude inquiry into the knowing or reckless falsity of the affidavit itself. Therefore, such omissions would need to render what is in the affidavit effectively false because of their nondisclosure.

Pyle, 314 Ark. at 175.

Here, Evans failed to include in his statement that he did not find marijuana in the Jeep. However, it is obvious from reading the affidavit that Evans did not find marijuana in the Jeep because he stated that he found only plastic jugs and a five-gallon metal can. Thus, the omission of not finding marijuana in the Jeep does not render what is in the affidavit effectively false. It has not been proven that this omission was done with a knowing intent to deceive or a reckless disregard of truth. The omission that he did not see marijuana in the Jeep is not a material circumstance that contradicts or disputes the incriminating factors in the affidavit that he only saw plastic jugs and a five-gallon metal can. Evans’s listing of what he found would lead any magistrate reading the affidavit to understand that all Evans found in the Jeep was the plastic jugs and the five-gallon metal can, but that no marijuana was found. What else would Evans be looking for? If Evans had found marijuana, he would have so stated in his affidavit. Evans did not mislead Judge Smith. We conclude that the omission does not meet the test provided by Franks to suppress the seized evidence.

Here the officers serving the warrant relied upon the finding of probable cause by the magistrate. They knew the appellants had been observed watering a substantial amount of marijuana in the woods and, in fact, at least one of the officers had been involved in the investigation and seizure of those plants. They knew that Evans, after observing the appellants watering the marijuana plants, had followed the appellants to Cloud’s home, that appellants lied to Evans as to what they had been doing the wooded area, and that appellants had their watering containers in their Jeep when Evans questioned them. They believed they were investigating the manufacture and distribution of marijuana. While there may have been a lack of probable cause to search the houses, they were acting in good faith on a determination of probable cause by the magistrate. In addition, because we have a split of authority in that some courts, such as the Ninth Circuit Court of Appeals, justify a search of the dealer’s residence when facts infer reasonable cause to believe a person is a drug dealer, we cannot say that the reasonably well-trained police officer was not acting in good faith. Therefore the good-faith exception applies. Pyle, supra. The evidence marijuana seized from the appellants home should not be suppressed.

We affirm in part and reverse in part.

BROWN, J., concurs in part and dissents in part.

Robert L. Brown, Justice,

concurring in part; dissenting in part. I agree with the majority opinion in certain critical respects. First, I, too, would disavow the principle that the mere fact a person is a drug dealer establishes probable cause to search that person’s home. That principle was best illustrated in a statement by the Ninth Circuit Court of Appeals:

In the Ninth Circuit, we have recognized that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” United States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990) (quoting United States v. Angulo-Lopez, 791 F.2d at 1394, 1399 (9th Cir. 1986)).

United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993). The State endorsed the position of the Ninth Circuit at oral argument in the instant case. Were we to likewise adopt the position that dealing drugs automatically justifies a search of the dealer’s home, we would be effectively undermining the Fourth Amendment.

In addition, I agree with the majority that Officer Evans was acting in good faith, as defined by United States v. Leon, 468 U.S. 897 (1984), when he filed his affidavit for a search warrant. The Court in Leon looked to an objective standard of whether a reasonably well trained police officer would have believed that probable cause for a search warrant existed. As already indicated, certain jurisdictions like the Ninth Circuit Court of Appeals believe that the mere fact of drug dealing is enough to justify a search of the dealer’s residence. Certainly, when there is a basis in court decisions for that position, I cannot say that Officer Evans was acting other than in good faith in this case.

Where I disagree with the majority is in its conclusion that there was no reasonable nexus between the cultivation of marijuana and Cloud’s residence to justify the issuance of a search warrant. Officer Evans’s affidavit set out the following:

• He personally observed Yancey and Cloud exit their Jeep, carry water jugs to the field, and water what appeared to be marijuana plants at 9:30 p.m. on June 17, 1998.
• Officer Evans followed the Jeep back to Cloud’s residence and talked to both men.
• The men told Officer Evans they had been “flogging,” which did not comport with what he had just seen.
• Officer Evans looked in the back of the Jeep and saw several empty plastic jugs, some partially filled jugs, and a metal five-gallon can.
• On January 19, 1998, Officer Evans returned to the marijuana patch with two other law enforcement officers and found eighteen marijuana plants growing either in the field or in containers.
• On June 19 and June 22, 1998, the officers harvested the marijuana plants for evidence. Two plants were found growing in plastic buckets in the field.
• Cloud, over the past several years, had been convicted for possession of controlled substances on a number of occasions.

Officer Evans’s affidavit, in my judgment, showed a direct connection between the cultivation of the marijuana and Cloud’s residence. The officer followed the two men directly from the marijuana patch to Cloud’s residence and observed water jugs and a metal container in the back of the Jeep at the residence. Later, police officers found two marijuana plants in “plastic buckets” out at the patch. I think a reasonable inference could be made that the plastic jugs were not only used for watering but also as containers for the marijuana plants. Indeed, State Police Investigator 'Wendall Jines testified at the suppression hearing that marijuana plants are usually started in a house or shed in small containers and then transferred to the woods until harvesting. Investigator Jines testified that in the residences or sheds where the plants are started, the police usually find potting soil, grow lights, fertilizers and the like. After harvesting, dried leaves and buds are found in the residences or sheds which are used for processing the marijuana. Investigator Jines was not aware of any other place where inside growing or processing by Yancey and Cloud could take place other than their residences.

Thus, the marijuana had to be processed somewhere, that is, converted from raw, plant matter into a product marketable on the street. Though I disagree that dealing drugs justifies an automatic search of a dealer’s home, I certainly believe that one factor in establishing reasonable cause to search a cultivator’s residence is that the marijuana had to be processed at a location other than the field, and a cultivator’s home is a reasonable location for that work to be done. And, again, in the case of Yancey and Cloud, Officer Evans followed them from the field to Cloud’s home and saw the jugs in the Jeep. Investigator Jines testified that those were the only places he knew of which were available to the two men for cultivating and processing marijuana.

Officer Evans, a sheriffs deputy, and a state police officer investigated this matter over a period of six days and put together their case for the municipal judge. I conclude that a direct connection was made between the marijuana patch and Cloud’s home, although I agree with the majority that a connection was not established for Yancey’s home. Accordingly, I would affirm the trial court’s denial of the motion to suppress with respect to Cloud’s residence on the basis that the trial court’s ruling was not clearly against the preponderance of the evidence. See Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). I would affirm the search of Yancey’s residence because Officer Evans met the objective standard of good faith under United States v. Leon, supra. Thus, I concur with the majority decision in part and dissent in part.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Derrick BURNETT v. STATE of Arkansas
    CR 01-525
    44 S.W.3d 719
    Supreme Court of Arkansas
    Opinion delivered May 24, 2001

      Wayne Juneau, for appellant.
    No response.
   Per Curiam.

Appellant, Derrick Burnett, by his attorney, has filed a motion for rule on the clerk. On September 12, 2000, the Jefferson County Circuit Court revoked appellant’s probation and sentenced him to five years’ imprisonment in the Arkansas Department of Correction. His judgment and commitment order was entered on October 2, 2000. Appellant timely filed a notice of appeal on October 6, 2000. On January 5, 2001, appellant filed a motion for extension of time to docket the appeal, but the motion was filed one day past the ninety-day deadline for filing the record with the Supreme Court Clerk, as set forth in Ark. R. App. P. — Civil 5(a) (2000). As a result, appellant was granted a seven-month extension that also ran outside the applicable time limits.

Mr. Juneau admits in the instant motion that the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, we grant the motion for rule on the clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Mark Steven CAMBIANO v. Stark LIGON, as Executive Director of the Supreme Court Committee on Professional Conduct
    00-1297
    44 S.W.3d 719
    Supreme Court of Arkansas
    Opinion delivered May 31, 2001

      Jeff Rosenzweig, for appellant.

      Stark Ligón, Executive Director of the Arkansas Supreme Court Committee on Professional Conduct, by: Lynn Williams, Staff Litigation Attorney, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, Mark Steven Cambiano, brings the instant appeal challenging the Conway County Circuit Court’s order disbarring him from the practice of law. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2 (a) (5) (2000). Prior to his disbarment, Cambiano pleaded guilty on June 29, 1998, in the United States District Court to one count of aiding and abetting the causing of a financial institution to file a false currency-transaction report, a federal Class D felony. While representing a client, Willard Burnett, appellant knowingly made false statements of material fact and failed to disclose material facts to the First National Bank in Morrilton, Arkansas, in order to advance Burnett’s interests. Specifically, appellant knowingly and wilfully withheld relevant information from the bank as to the source of a $62,000.00 deposit made by Cambiano. As a result of Cambiano’s representations, the bank reported to the IRS that the entire deposit was appellant’s money. However, almost half of the deposit actually belonged to Burnett, against whom the Morrilton Security Bank held an outstanding judgment. Notably, Cambiano’s law partner had represented Burnett in Morrilton Security Bank’s collection action against Burnett.

As a result of his plea to a felony offense, Cambiano was sentenced to three years’ probation, and the remaining thirty counts pending against him were dismissed. Approximately one month later, the Supreme Court Committee on Professional Conduct issued an interim suspension of Cambiano’s license and initiated a disbarment action in circuit court. Pursuant to Section 6B of the Procedures of the Arkansas Supreme Court Regulating Conduct of Attorneys at Law, the Committee sought appellant’s disbarment as a result of his felony conviction for aiding and abetting the causing of a financial institution to file a false currency-transaction report, in violation of 31 U.S.C. §§ 5113 and 5324(a)(4), 31 C.F.R. 103.11 and 18 U.S.C. § 2. The Committee alleged that appellant’s conviction of a “serious crime” as defined in Section 1(E)(8) of the Procedures, warranted his disbarment. In particular, the Committee asserted that Cambiano’s criminal acts reflected adversely on his honesty, trustworthiness, and fitness as a lawyer, in violation of the Model Rules of Professional Conduct.

The circuit court agreed and issued an order disbarring appellant on August 9, 2000. From that decision comes the instant appeal. Cambiano raises two points in support of reversal. First, he contends that the circuit court’s decision to disbar him is clearly erroneous. Second, he insists that the trial court erred by denying his motion to compel discovery and by refusing to consider evidence of other attorneys’ misconduct in determining his sanction. On cross-appeal, the Committee assigns as error the circuit court’s finding that during the pendency of the appeal, Cambiano’s status was as a disbarred, rather than a suspended, attorney. In light of the applicable factors and case law, we affirm the circuit court’s order of disbarment. We also affirm the trial court in all other respects and on cross-appeal.

I. Disbarment

We have held that disbarment proceedings are neither civil nor criminal in nature but are sui generis or “of their own kind.” Procedures § 1(C); Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). On appeal from a circuit court’s order of disbarment, the supreme court reviews the matter de novo on the record and will not reverse the trial court’s findings unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Cambiano v. Neal, 342 Ark. 691, 30 S.W.3d 716 (2000).

According to Model Rule 8.4, an attorney engages in professional misconduct if he (1) commits a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, (2) engages in conduct involving dishonesty, fraud, deceit, or misrepresentation, or (3) engages in conduct that is prejudicial to the administration of justice. In making the sanction determination, we have stated that disbarment is generally appropriate when:

(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously or adversely reflects on the lawyer’s fitness to practice.

Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000), cert. denied, 121 S. Ct. 1355 (2001) (citing American Bar Association Standards for Imposing Lawyer Sanctions, Section 5.11).

We adopted the American Bar Association’s Model Standards for Imposing Lawyer Sanctions in Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998). In particular, the standards set forth the following fist of aggravating and mitigating factors that are useful in a court’s determination of an appropriate sanction:

Aggravating Factors:

(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with [the] rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge [the] wrongful nature of [the] conduct;
(h) vulnerability of [the] victim;
(i) substantial experience in the practice of law;
0 indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances.

Mitigating Factors:

(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify [the] consequences of [the] misconduct;
(e) full and free disclosure to [the] disciplinary board or cooperative attitude towards [the] proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
0 delay in [the] disciplinary proceedings;
(k) impositions of other penalties or sanctions;
0 remorse;
(m) remoteness of prior offenses.

Model Standards for Imposing Lawyer Sanctions §§ 9.22 and 9.32 (1992).

Further, Section 7(F) of the Procedures enumerates the factors to be considered by the Committee in imposing sanctions. In particular, the Committee must consider:

(1) The nature and degree of the misconduct for which the lawyer is being sanctioned.
(2) The seriousness and circumstances surrounding the misconduct.
(3) The loss or damage to clients.
(4) The damage to the profession.
(5) The assurance that those who seek legal services in the future will be protected from the type of misconduct found.
(6) The profit to the lawyer.
(7) The avoidance of repetition.
(8) Whether the misconduct was deliberate, intentional or negligent.
(9) The deterrent effect on others.
(10) The maintenance of respect for the legal profession.
(11) The conduct of the lawyer during the course of the Committee action.
(12) The lawyer’s prior disciplinary record, to include warnings.
(13) Matters offered by the lawyer in mitigation or extenuation except that a claim of disability or impairment resulting from the use of alcohol or drugs may not be considered unless the lawyer demonstrates that he or she is successfully pursuing in good faith a program of recovery.

Although these factors are not classified as aggravating or mitigating circumstances, they are harmonious in their objectives and focus with the factors this court adopted in Wilson. See Hollingsworth, 338 Ark. at 265, 992 S.W.2d at 778.

In the instant case, the circuit court applied the appropriate factors. Notably, appellant does not dispute many of the trial court’s findings of aggravators, including his prior disciplinary offense for failing to file an appeal from municipal to circuit court. The parties also agreed that Cambiano’s experience in the law was substantial as he began practicing law in 1980 and described his interest in criminal law as “intense.” Moreover, appellant pleaded guilty to a felony offense in violation of a federal statute that was designed to thwart a drug dealer’s access to ill-gained profits. Indeed, the Supreme Court explained that Congress enacted the Currency and Foreign Transactions Reporting Act (Bank Secrecy Act) “in response to increasing use of banks and other institutions as financial intermediaries by persons engaged in criminal activity. The Act imposes a variety of reporting requirements on individuals and institutions regarding foreign and domestic financial transactions. See 31 U.S.C. Sections 5311-5325.” United States v. Ratzlaf, 510 U.S. 135 (1994).

Here, the Committee alleged that Cambiano was aware that his client, Burnett, was a drug dealer, although Cambiano denied any such knowledge. Regarding the Section 7(F) factors, the court found that Cambiano’s misconduct was felonious and serious, and carried a potential sentence of up to five years in prison and a $250,000 fine. Appellant further conceded that his conduct damaged the legal profession.

However, the parties disagreed as to several factors. First, Cambiano suggests that the court’s finding of a dishonest motive was erroneous because he explained that his conduct was intended to protect his client’s estate from a judgment creditor, the bank. Appellant maintained that his action, which resulted in a felony conviction, was merely a technical violation or a regulatory offense. Even so, appellant permitted the false, dishonest answer regarding the source of funds in the bank deposit to be inaccurately submitted to the bank and subsequently reported to the IRS. In fact, the court interpreted Cambiano’s explanation as further evidence of his refusal to acknowledge the wrongful nature of his conduct and a lack of remorse. Ultimately, the trial court also disagreed with appellant’s assessment that the ultimate victim, the government, was not a vulnerable victim.

Although the parties do not dispute the existence of several mitigators, including the remoteness of appellant’s 1998 warning, Cambiano objects to the court’s failure to find the existence of additional mitigators. Significantly, the lawyer bears the burden of proof to present mitigating evidence. Here, we cannot say that the trial court erred when appellant presented no evidence that he cooperated with the disciplinary authorities. Moreover, the trial court was unpersuaded by Cambiano’s evidence of character and reputation, and it was in a superior position to consider this evidence. Other than the natural consequences and penalties of his action, Cambiano failed to point to any other penalties that he suffered. In fact, he paid no fine or restitution and received only three years’ probation. Appellant also offers scant support for his argument that the trial court erred by finding that remorse was not a mitigator.

The trial court’s finding that appellant’s conduct was deliberate, intentional, or negligent, is borne out by Cambiano’s plea that he “knowingly and willfully” committed the felony. Although appellant claims that disbarment would not act as a deterrent, the trial court clearly disagreed. Rather, the court concluded that appellant’s disbarment would maintain respect for the legal profession. Finally, the court found that appellant offered no matters in mitigation or extenuation of his conduct. After reviewing the applicable factors, we cannot say that the trial court was clearly erroneous. Accordingly, we agree that disbarment was the appropriate sanction in the instant case.

Our case law also supports this holding. In Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999), we determined that disbarment was the proper sanction when attorney Hollingsworth knowingly diverted more than $100,000.00 from his client’s funds to his own use and then attempted to postpone discovery of his misconduct by failing to account to the probate court and by stonewalling his client’s requests for an accounting. See also In re Hollingsworth, 339 Ark. Appx. 525, 4 S.W.3d 492 (1999). We acknowledged that Mr. Hollingsworth’s actions of misusing and misappropriating funds from his client’s estate clearly came within four out of six considerations for “serious misconduct” under Section 7(B) of the Procedures.

Most recently, in Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000), we considered the merits of a disbarment action arising from Matthews’s conviction for a federal misdemeanor. As a result of his plea to two counts of bribery of a small business investment official, Matthews was sentenced to twelve months’ imprisonment on each count, with four months of the second count to run consecutively with the twelve months of the first count. Matthews was also sentenced to one year of supervised release and fined $7,500.00. Ultimately, he served eleven months in federal prison, one month in a halfway house, and two months of home confinement.

However, in the appeal of Matthews’s disbarment, we determined that a review of the factors indicated that a sanction less than disbarment was appropriate, and we reduced the sanction to a five-year suspension. Significantly, we distinguished the case from our decision in Hollingsworth, where an attorney absconded with his client’s money. The dishonest conduct in Matthews was not an act involving a client or the practice of law but arose from an attorney’s self-interest to obtain a small business loan for himself.

Similarly, in Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000), we affirmed a sanction of less than disbarment for violations of the Model Rules arising from a plea to five counts of federal misdemeanors for conduct occurring twenty years earlier. As a result of Wilson’s pleas, he served time in prison. Like Matthews, Wilson’s conduct was not perpetrated against a vulnerable and susceptible client. Wilson’s fraud was committed against the federal government for his personal benefit. Wilson had borrowed approximately $775,230 from the Farmers Home Administration for farm operating expenses and secured the loan by a lien on the farm’s crops. Wilson then “knowingly” disposed of soybeans and rice that were mortgaged and pledged to FmHA and also “knowingly” took money from a Department of Agriculture bank account and used it for unapproved purposes.

In both Matthews and Wilson, the fraudulent conduct was self-serving and unconnected to the practice of law. However, in Hollingsworth and the instant case, the dishonest acts were perpetrated against or on behalf of clients in the course of the practice of law. As a result, we find ample support for concluding that the trial court was not clearly erroneous for disbarring appellant Cambiano for knowingly and wilfully withholding relevant information and making false representations to a bank and the IRS in an attempt to illegally shield his client’s assets from a valid judgment. We affirm the trial court’s order of disbarment.

II. Motion to compel discovery

Cambiano’s second point on appeal concerns the trial court’s denial of his motion to compel discovery and refusal to consider evidence of other attorney misconduct in determining an appropriate sanction. At trial, appellant sought discovery of Committee materials concerning similarly situated persons and the introduction of an exhibit detailing disciplinary action received by other lawyers’ convicted of various offenses. In response to appellant’s request, the Committee claimed that the documentation constituted privileged material, including proceedings that had not yet reached a public stage. The Committee also cited Section 4A of the Procedures as authority for nondisclosure. The trial court agreed with the Committee and denied appellant’s motion.

On appeal, Cambiano avers that a disbarment action contemplates an exception to the general rule of privilege. Per Section 4B, the Committee is authorized in a disbarment action to “release any information that the Committee deems necessary for that purpose.” Consequendy, Cambiano reasons that the Rules of Civil Procedure apply, and no rule bars the release of the objectionable information. In fact, appellant explains that he cannot advance his case without the comparative data because this court utilizes comparative review of discipline in order to arrive at the appropriate sanction. See, e.g., Matthews, 342 Ark. 566, 30 S.W.3d 92.

The Committee maintains that the requested discovery was either “absolutely privileged” or public records that appellant could have retrieved from the Supreme Court Clerk. Although the civil rules apply to a disbarment action that takes place in circuit court, the rule remains that only materials that are not privileged are discoverable. Ark. R. Civ. P. 26(b)(1). Accordingly, we affirm the trial court’s order denying appellant’s motion to compel and excluding the evidence of other attorneys’ misconduct.

III. Cross-appeal

Following his disbarment, appellant filed a motion for clarification of status during the pendency of his appeal to ensure that he complied with the employment restrictions applicable to suspended lawyers. For purposes of the rules, the trial court determined that Cambiano was a “disbarred” attorney. On cross-appeal, the Committee urges us to reverse the trial court’s determination that appellant was a disbarred attorney, rather than a suspended attorney, prior to his appeal to this court. “Disbarment” is defined as the termination of the lawyer’s privilege to practice law and removal of the lawyer’s name from the list of licensed attorneys maintained by the Supreme Court Clerk. See Procedures Section 7D(1). The Committee suggests that Cambiano is not effectively disbarred until his name is removed from the stated list. However, given that the trial court’s order of disbarment was not stayed pending resolution of the appeal, we have no basis to conclude that the order was not final. Accordingly, we agree with appellant that he remains a disbarred attorney during the pendency of his appeal.

       The thirty-one count indictment included multiple counts of money laundering and the causing of a financial institution to file false currency-transaction reports.


author: Tom Glaze, Justice.

text:
    J.E. MERIT CONSTRUCTORS, INC. v. Louise COOPER
    01-194
    44 S.W.3d 336
    Supreme Court of Arkansas
    Opinion delivered May 31, 2001

      Cross, Gunter, Witherspoon & Galchus, P.C., by: M. Stephen Bingham, for appellant.

      David P Price, P.A., by: David P. Price, and Hamilton & Hamilton, by: James A. Hamilton, for appellee.
   Tom Glaze, Justice.

We assume jurisdiction of this tort case pursuant to Ark. R. Sup. Ct. 1-2(g) in order to achieve a fair allocation of the appellate workload. Appellant J. E. Merit Constructors, Inc. (Merit) raises eight points for reversal of a jury award in the amount of $150,000.00 in favor of appellee Louise Cooper, who sued Merit, alleging L. K. Webb, an employee of Merit’s, negligently caused serious injuries to Cooper’s face and left jaw.

Taking Merit’s points in the order presented, we first consider its argument that the trial court erred in denying Merit’s motion for directed verdict. Specifically, Merit submits that Cooper failed to present substantial evidence to show negligence or to prove mental anguish and future medical expenses. When reviewing a denial of a motion for directed verdict, we determine whether the jury verdict is supported by substantial evidence. Pettus v. McDonald, 343 Ark. 507, 36 S.W.2d 745 (2001). Moreover, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered, and when the evidence and inferences create a jury question, we determine the trial court properly denied the defendant’s motion for directed verdict. See Ouachita Wilderness Institute v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

Affirmed.

The crux of Merit’s first argument is that Cooper’s negligence case, at best, was built on speculation rather than substantial evidence. In reviewing the evidence in Cooper’s favor, as we must, we reject Merit’s argument. Cooper’s case in chief showed that, on July 20, 1994, she was driving her car north on Highway 79 past Albermarle’s plant. Her son Doug Cooper was a passenger. As they passed the plant, they saw a man operating a bush hog tractor mowing the plant’s property alongside the highway. Doug saw the operator drive the tractor into a ditch, causing gravel and rocks to be thrown out from underneath the bush hog, and as a result, a rock flew through Cooper’s open window, striking Cooper’s left jaw. Doug was required to take control of his mother’s car, and after stopping it, he got out to examine the bush hog. He saw the bush hog had no deflector shield or guard on it, and he brought this fact to the attention of the operator, who identified himself as L. K. Webb, an employee of Merit. The Merit company maintained the plant property for Albermarle. After the incident and Doug’s talk with Webb, Webb looked at Cooper’s face and acknowledged her face was swollen. Doug then took his mother to the Magnolia Hospital Emergency Room where Cooper was treated and released the same day. After Cooper returned home that day, Joe Millett, a supervisor at Merit, visited Cooper and confirmed that Webb was an employee of Merit, and was mowing grass at the time of the incident. Cooper also permitted Millett to take possession of the rock that had hit her and was still in Cooper’s car. When Cooper’s case finally went to trial, she not only presented the foregoing evidence, but also she introduced proof that to operate a bush hog without a protective shield, as Merit and its employee Webb were doing on July 20, was negligence.

While Merit cross-examined Cooper and her witnesses and offered evidence to counter Cooper’s case, its version of the events is not controlling. However, as previously mentioned, the crux of Merit’s argument on appeal is that Cooper’s case bearing on negligence, at best, was built on speculation. To support its argument, Merit argues that Cooper’s claim was based on Webb’s operating a “yellow” bush hog at the time of the incident, but the proof showed Merit used Albermarle’s bush hog, which was “green” and had a protective shield.

To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. Mergen, 329 Ark. at 412 (citing Southern Farm Bur. Cas. Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996)). From the foregoing, it is clear that there was sufficient evidence of Cooper’s damages, Merit’s negligence, and the link between the two. Despite Merit’s placing of undue weight on the color of the bush hog, there was considerable evidence shown to the jury for it to believe Webb — Merit’s employee — was the one driving the bush hog that caused a rock to hit Cooper when she drove by. The resolution of factual issues, such as the color of the bush hog in this case, is a question for the jury, see, e. g., Smith v. Prudential Property & Cas. Ins., 340 Ark. 225, 10 S.W.3d 846 (2000), and this court will uphold a jury’s findings if there is any substantial evidence to support them. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).

We next turn to Merit’s contention that Cooper’s evidence was insufficient to establish that Merit’s negligence caused Cooper’s mental anguish and medical expenses. We disagree. Cooper testified at length as to her pain and the “cryo-freeze” procedures she had to endure to gain relief from the pain. Dr. Robert Valentine, an anesthesiologist and pain management specialist, stated that Cooper suffered from “atypical trigeminal neuralgia,” which would be consistent with having sustained a blunt trauma. He further said that Cooper would require cryo-freeze procedures well into the future. Dr. David Redding, a neurosurgeon to whom Dr. Valentine referred Cooper, indicated that no surgical procedures could help her pain in the long run. Dr. Susan Samlaska, whom Cooper saw before going to Dr. Valentine, treated her with trigger point injections that only gave her partial relief. Presented with this substantial evidence, the jury concluded that Cooper had suffered mental anguish, and would continue to incur medical expenses in the future. Therefore, we conclude that the trial court did not err in denying Merit’s motion for directed verdict.

Merit’s second point on appeal is that the trial court erred in excluding photographs it took of a green bush hog that it claimed was the one owned by Albermarle and was being used by Merit at the time of the accident. Merit had sought to introduce these photos into the record during a pretrial conference on May 4, 2000. At that time, Cooper’s counsel noted that Merit’s attorneys had first furnished photographs of a bush hog on April 3, 2000; prior to that time, based on earlier discovery responses, Merit had led Cooper to believe that nobody knew where the bush hog was located. Later responses by Merit indicated that it had known where the bush hog was for some time and had never told Cooper. Defense counsel got permission from Albermarle to photograph a bush hog in February of 2000. After Merit took the pictures of the bush hog, which had been sandblasted and painted in the years since the July 20, 1994, incident, Albermarle sold the machine at auction before Cooper could examine it. The trial court ruled that Merit could not introduce the photographs into evidence, but did allow Merit to display the photos to witnesses during the course of the trial.

Questions regarding the admissibility of evidence are matters entirely within the trial court’s discretion, and such matters will not be reversed absent an abuse of that discretion. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). The first question upon the introduction of photographs, as with all evidence, is whether they are relevant. Id.; see also Ryker v. Fisher, 291 Ark. 177, 722 S.W.2d 864 (1987) (the test of whether photographs are admissible into evidence depends on the fairness and correctness of the portrayal of the subject and their admissibility addresses itself to the sound discretion of the judge).

Here, the photographs of the bush hog were taken over five years after the July 20 accident, and defense counsel conceded that the machine had been sandblasted and painted at some time during those years. Because the color of the bush hog was an issue at trial, yet there was no proof other than Millett’s testimony that it was the same bush hog, the “correctness of the portrayal of the subject” was called into question. The question of the admissibility of the photographs was squarely within the trial court’s discretion, and given the circumstances, we cannot say the court abused that discretion. Further, Merit was permitted to show the photographs to witnesses during their testimony; thus, we are unable to determine how Merit was prejudiced by the trial court’s ruling. We will not reverse in the absence of prejudice. Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999).

For its third point, Merit argues that the trial court erred by allowing the introduction of a videotape, which Dr. Valentine made, showing the cryo-freeze procedure undergone by Cooper. This procedure involved freezing some of the nerves in Cooper’s face in order to alleviate her pain. Merit contends that the tape was inadmissible “nonverbal hearsay.” However, as Merit fails to support this argument with any citation to authority, we will not address it. See Public Defender Comm’n v. Greene County, 343 Ark. 49, 32 S.W.3d 470 (2000).

Merit also urges that the videotape was (1) cumulative, in that Dr. Valentine had already been permitted to display the actual instruments used during the procedure, and (2) prejudicial, because the tape showed Cooper in obvious discomfort, even with the sound muted. This court has held that a videotape is admissible and not prejudicial if it is relevant and helpful to the jury. See Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

Here, the court found that, as Dr. Valentine explained the procedure, the jury could be aided by watching the video depicting the procedure. Prior to trial, the court had ruled that the tape’s probative value exceeded any prejudicial effect it might have, although the judge stated he had “reservations about the sound.” The court had watched the video at an April 3, 2000, pretrial hearing, and decided that it understood the purpose of the video was to show in graphic detail what Cooper had undergone in support of her damage element claim of pain and suffering. While the video may have been uncomfortable for a person to watch, it unquestionably was helpful to the jury’s understanding of the only treatment that alleviated the pain in her face. Since Dr. Valentine testified that Cooper would have to undergo such treatments indefinitely to remain pain free, the showing of the video was intended to demonstrate to the jury what her damages were. The trial judge did not abuse his discretion in allowing the videotape into evidence.

Merit argues next that the trial court erred by restricting its use of Cooper’s previous discovery responses. Here, Merit had wanted to utilize assertions made during discovery in order to impeach Cooper’s trial testimony that she could not place a value on her pain and suffering. In one of her discovery responses, Cooper had directed Merit to her February 11, 1998, settlement brochure for a calculation of her claimed damages, which amounted to $17.20 per day; in April of 2000, however, her response to a similar interrogatory stated a figure closer to $150 per day for her pain and suffering. Merit sought to introduce these figures into evidence at trial, but the trial excluded them upon Cooper’s objection.

Merit urges the trial court’s ruling was in error because Ark. R. Civ. P. 33(c) provides that answers to interrogatories may be used at trial to the extent permitted by the rules of evidence. In support of its argument, Merit cites Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993). However, Piercy dealt with answers to interrogatories regarding whether Wal-Mart had experienced any prior slip-and-fall accidents in its stores, not with statements made in connection with settlement negotiations. Merit also cites Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985), for its holding that a prior statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with his testimony. The Flynn case further holds that “[i]n civil cases this rule effectively allows all prior inconsistent statements to be introduced as substantive evidence in addition to any impeachment value they may have.” Id. at 193.

While this is a correct statement of the law, it nevertheless fads to take into consideration our rules of civil procedure and rules of evidence concerning statements made during settlement negotiations. Ark. R. Civ. P. 33(c) provides that “[interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.” (Emphasis added.) Thus, we look to our rules of evidence, particularly Ark. R. Evid. 408, which, in pertinent part, reads as follows:

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. (Emphasis added.)

Merit sought to impeach Cooper by using prior statements she made in an effort to settle her claim with Merit. Rule 408 makes such settlement statements inadmissible; thus, the trial court did not err in prohibiting Merit from using such statements for impeachment purposes.

Merit’s fifth point is that the trial court should have declared a mistrial when Cooper’s counsel referred to insurance during closing arguments. The remarks to which Merit takes offense are the following:

If you hurt someone, Mr. Physician, and cause injury to their hand, your hand will be cut off. It’s part of our culture. I love Jimmy Stewart in “It’s A Wonderful Life.” In the apothecary’s office, the medicine that is mixed turns out to be poison and George Bailey-catches it and tells him. My father-in-law, Norman Canterbury, is a pharmacist. As we were watching that movie, I said, “Norman, I bet your malpractice insurance would go sky high if you gave somebody poison in a prescription by accident. I hope you’ve got your malpractice paid up.” We professionals joke around with each other about that sort of negligence because when you are negligent and hurt someone you are responsible.

At the conclusion of these remarks, Merit made no objection, nor did it move for mistrial. Therefore, this part of Merit’s argument is not preserved.

The second alleged improper remark came later during Cooper’s closing arguments. At that stage of argument, Cooper’s counsel said as follows:

I had a case with State Farm recently where my client just wanted to get his roof fixed and they accused him of insurance fraud and called him all kinds of ugly names. That jury wouldn’t have any of that. Don’t let JE Merit get away with the slime job they’ve tried to pull on this.

At this stage of Cooper’s argument, Merit’s counsel approached the bench and asked for a mistrial because of the references to insurance. The trial court denied the motion, and it refused to give a cautionary instruction, because it would only reinforce what was said. The trial judge stated that, while counsel’s remarks may have been a poor example of argument, it was only argument.

This court has repeatedly held that mistrial is a drastic remedy that should only be granted (1) when there has been error so prejudicial that justice could not be served by continuing the trial or (2) when the fundamental fairness of the trial has been manifestly affected. Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). The trial court has wide discretion in granting or denying a motion for mistrial, and that decision will not be disturbed on appeal absent an abuse of discretion or manifest prejudice to the movant. Id. Here, given the fact that the insurance references were not intended to draw attention to Cooper’s or Merit’s insurance coverage, but were instead mere illustrations drawn by counsel during his closing arguments, the trial court’s ruling on this issue cannot be said to reflect an abuse of discretion.

For its sixth point, Merit contends that it was error for the trial court to require its expert, Dr. Reginald Rutherford, on cross-examination, to read verbatim the records of Dr. Susan Samlaska, Cooper’s initial treating doctor. Merit’s counsel gave Dr. Rutherford medical records for him to review, and asked him to give an independent medical examination, concerning Cooper’s medical problems. Rutherford described an independent medical examination as one needed when a second medical opinion is requested. Among other records, Merit provided Dr. Rutherford with Dr. Samlaska’s; he disagreed with Samlaska’s opinion that Cooper suffered from trigeminal neuralgia. During Dr. Rutherford’s testimony, Cooper asked him to read from Dr. Samlaska’s records in order to cross-examine him about how Dr. Samlaska’s diagnosis and treatment figured into his medical conclusions. Because Dr. Rutherford’s opinion was so different from those of Cooper’s other physicians, the trial court ruled that his credibility and the validity of his report were called into question, and Cooper’s cross-examination of Dr. Rutherford’s review of those records given him would be proper.

To support its contention that allowing these statements into evidence was error, Merit cites Southern Farm Bureau v. Pumphrey, 256 Ark. 818, 510 S.W.2d 570 (1974), wherein this court held that the trial court erred in permitting the plaintiff Pumphrey’s treating physician to testify that nothing in a written report of an examination made by another doctor was inconsistent with the treating physician’s testimony as to Pumphrey’s injuries. The Pumphrey decision was based on the fact that it would have been hearsay for the treating physician to testify that, based on what the specialist told him, the specialist’s report was not inconsistent with his own; for the trial court to permit the treating physician’s statements was an impermissible attempt to do indirectly what could not be done directly. Id. at 819-20.

The situation before us is distinguishable from Pumphrey. Here, the records were not being introduced as part of the plaintiff Cooper’s case in chief; rather, Cooper sought to use the records — furnished to Dr. Rutherford by defense counsel — to cross-examine Dr. Rutherford on the basis of his medical conclusions and to determine his credibility. This court has traditionally taken the view that the cross-examiner should be given wide latitude because cross-examination is the means by which to test the truth of the witness’s testimony and credibility. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). The court in Fowler further noted that the trial court is given wide discretion in evidentiary rulings, and we will not reverse unless the trial court has abused its discretion. Id.; see also State Hwy. Comm’n v. 1st Pyramid Life Ins., 269 Ark. 278, 602 S.W.2d 609 (1980) (emphasizing “the importance of according a wide latitude in questions on cross-examination tending to impeach the credibility of a witness or to elicit matter to be considered in weighing his testimony, particularly where expert opinion evidence is involved”); Arkansas State Highway Comm’n. v. Dean, 247 Ark. 717, 447 S.W.2d 334 (1969) (“The proper cross-examination of [an expert] witness is the most effective attack that can be made upon his credibility and the best means of diminishing the weight which might be accorded his testimony”).

Further, the court of appeals, in Lawhon v. Ayres Corp., 67 Ark. App. 66, 992 S.W.2d 162 (1999), held that under Ark. R. Evid. 703, an expert must be allowed to disclose to the trier of fact the factual basis for his opinion because the opinion would otherwise be left unsupported, and the trier of fact would be left with little if any means of evaluating its correctness. Id. at 72. Again, it is significant that Merit gave Dr. Rutherford medical records to aid him in forming an opinion. In utilizing Dr. Samlaska’s records in the cross-examination of Dr. Rutherford, Cooper engaged in valid cross-examination to test the credibility of Dr. Rutherford’s conclusions, and she also was afforded the opportunity to examine the factual basis for Dr. Rutherford’s expert opinion. The trial court did not abuse its discretion in permitting this line of questioning.

Merit also asserts that the trial court erred in excluding Dr. Rutherford’s own medical report on Cooper; the report contained Cooper’s history and Dr. Rutherford’s diagnosis as the result of his examination. The trial court ruled that if Dr. Rutherford had testified as to the contents of his report, that would be sufficient.

Dr. Rutherford’s report was adequately summarized in his testimony, which did not fail to convey anything which appeared in the report; the report, as such, would have been cumulative. In Lovell v. Beavers, 336 Ark. 551, 987 S.W.2d 660 (1999), this court held that Ark. R. Evid. 403 permits a trial court to exclude relevant evidence “if its probative value is substantially outweighed ... by considerations of . . . needless presentation of cumulative evidence.” Id. at 554. This weighing is left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Id. Here, the court weighed the relevant interests and concluded that the introduction of Dr. Rutherford’s actual report, in addition to his testimony that detailed the information contained in the report, would be unnecessarily cumulative. This decision cannot be said to be an abuse of discretion.

In its seventh major point, Merit contends that the trial court improperly allowed Freddy Johnson to testify as an expert regarding the necessity of warning flags and cones alongside the highway where the bush hog was being operated. Merit also assigns error to Johnson’s statement that operating a bush hog without chains constitutes negligence. Merit points to Ark. R. Evid. 704, which states that “[testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact,” and cites cases which distinguish opinions which “embrace]] an ultimate issue” from those mandating a legal conclusion, which are not permissible. See, e. g., Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998).

The first of Merit’s contentions — that the court erred in permitting Johnson to testify as an expert because he lacked the knowledge, skill, experience, training, or education to qualify him as an expert — must be rejected because Merit did not raise a timely objection to Johnson’s qualifications to testify as an expert. See Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996) (any error argued on appeal must have first been directed to the trial court’s attention in some appropriate manner, so that the court had an opportunity to address the issue).

Similarly, we dismiss Merit’s arguments that Johnson’s testimony — that operating a bush hog without chains was negligent — mandated a legal conclusion, as these statements also failed to draw an objection from defense counsel. In Marts v. State, supra, on which Merit relies, the appellant failed to object to a police officer’s opinion testimony that Marts was trafficking in methamphetamine, even where that issue was the ultimate question in the trial. This court held that it would not reverse on that point, because “a specific objection is necessary in order to preserve an issue on appeal.” Marts, 332 Ark. at 641.

Merit also argues that the court erred in allowing Johnson to testify that it was negligent to operate the bush hog without warning cones or flags. However, we also reject this contention, because the ultimate issue in the case was whether Merit was negligent because of its failure to operate the bush hog without chains or protective skirting, and whether that negligence caused Cooper’s injuries. The issue of warning flags or cones was not central or relevant to these questions. In any event, Johnson’s opinion as to the presence or absence of warning flags or cones was not an opinion that mandated a legal conclusion that should have been excluded under Ark. R. Evid. 704.

Finally, in its eighth major point, Merit urges that Cooper sought unreduced future medical expenses, and that she offered no proof as to what her future medical expenses would be. In support of this argument, Merit contends that, during closing arguments, Cooper’s counsel exhorted the jury to award the maximum possible figure without any reduction when he said, “$976,313.00, that’s what she’s asking for, no more, no less.” The jury eventually awarded Cooper $150,000.

The trial court instructed the jury that closing remarks of counsel were not evidence, and that any argument having no basis in the evidence- should be disregarded. See AMI Civ. 3d 103(e). In addition, the trial judge gave the following instruction:

I have used the expression “present value” in these instructions with respect to certain elements of damage which you may find that Louise Cooper will sustain in the future. This simply means that if you find that Louise Cooper is entitled to recover any elements of damage which require you to determine their present value, you must take into consideration the fact that money recovered will earn interest, if invested, until the time in the future when these losses will actually occur. Therefore, you must reduce any award of such damages to compensate for the reasonable earning power of money.

As shown above, the jury was properly instructed to reduce any amount it awarded for future medical expenses. Absent evidence to the contrary, there is a presumption that the jury has obeyed its instructions. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999). Although Merit argues Cooper should have presented expert testimony to prove the present value of her future medical expenses, no authority supports Merit’s position that she was required to do so.

As to Merit’s assertion that Cooper did not prove her future medical expenses, we note that she offered the testimony of Dr. Valentine, who stated that his fee for a cryo-freeze procedure was currently $760, and he estimated Cooper would have to receive this procedure approximately four times per year. Thus, there was evidence to support Cooper’s request for, and the jury’s award of, future medical expenses. Further, the jury awarded damages on a general verdict form. In Pearson, supra, this court held that when a verdict is rendered on a general verdict form, it is an indivisible entity, and this court should not speculate as to the basis for a jury’s verdict. Id. at 20. Therefore, in the absence of any suggestion that the jury based its decision on something other than the evidence of damages presented to it, or that it did not follow the trial court’s instructions, we do not reverse the jury’s assessment of Cooper’s damages.

For the reasons set forth above, we affirm the jury’s verdict in favor of Cooper.