author: Robert L. Brown, Justice. David Newbern, Justice,

text:
    Riley Dobi NOEL v. STATE of Arkansas
    CR 97-117
    960 S.W.2d 439
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998
    [Petition for rehearing denied February 19, 1998.]

      Wallace, Hamner & Hendry, by: Phillip M. Hendry, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K Hill, Deputy Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Riley Dobi Noel was convicted of three counts of capital murder and one count of attempted capital murder following an eleven-day trial. He was sentenced to death on the capital murder convictions and to sixty years on the attempted capital murder conviction. The killings occurred in Little Rock at the home of the victims’ mother, Mary Hussian, on the evening of June 4, 1995. Her three children (Malak Hussian, age 10; Mustafa Hussian, age 12; and Marcel Young, age 17) were shot by Noel in the head as they lay on the floor in the front room of her house. The attempted capital murder was committed against Mary Hussian herself, also in her house. The murders were apparently in retaliation for the assumed involvement of one of Hussian’s daughters in the murder of Noel’s brother. Noel appeals the judgment on five grounds. We hold that no reversible error occurred at his trial, and we affirm.

I. Change of Venue

Noel first contends that the trial court was in error in refusing to change the venue of his trial. He attached two affidavits to his motion in which the affiants averred that they did not believe Noel could receive a fair trial in Pulaski County due to the excessive publicity caused by the television and newspaper coverage. In considering motions before the trial began, the trial court denied the motion for a venue change and found that the pretrial publicity had not been excessive. The court further observed that some of the publicity had been caused by Noel’s escape from the county jail. The court did state that it would consider the motion again at a later time, if that became necessary. Noel failed to renew his motion at any point in the subsequent proceedings.

The standard of review for denial of a motion for change of venue is whether there was an abuse of discretion by the trial court. Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996). Using this standard, we turn to the two affidavits submitted to the trial court in support of the motion. State law provides for the removal of a criminal cause to another county when the minds of the inhabitants of the original county “are so prejudiced against the defendant that a fair and impartial trial cannot be had in that county.” Ark. Code Ann. § 16-88-201 (1987). In the instant case, the two affidavits submitted state that conclusion. Nevertheless, this court has clearly held that “affidavits that cite little or nothing beyond an affiant’s own convictions that a fair trial is not possible are insufficient.” Bell v. State, 324 Ark. at 263, 920 S.W.2d at 823, citing Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Under the Bell test, the affidavits are deficient.

Furthermore, this court has held that a denial of a change of venue motion will not be reversed “if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court.” Bell v. State, 324 Ark. at 264, 920 S.W.2d at 824. See also Rankin v. State, 329 Ark. 374, 948 S.W.2d 397 (1997). All of the jurors in the instant case pledged that they could decide the case based solely on the evidence.

Finally, Noel claims that a high percentage of prospective jurors were successfully challenged for cause due to the publicity surrounding the murders and that this fact evidenced the insidious persuasiveness of the adverse publicity. Noel, however, failed to raise this argument to the trial court, and we will not address it for the first time on appeal. Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994).

We conclude that there was no abuse of discretion by the trial court in its ruling denying the change-of-venue motion.

II. Noel’s Character and Cumulative Error

Noel next claims that the trial court erred in failing to grant his various motions for a mistrial based on the prosecutor’s injection of his bad character into the trial. There were five instances of this, according to Noel.

First, upon being shown a picture of Noel by the prosecutor, the victims’ mother, Mary Hussian, testified that Noel looked more like “an animal” on the night of the murders. The trial court did not rule on Noel’s objection to this testimony but denied his motion for mistrial. Second, when asked why she forged a prescription for medication, Mary Hussian replied that she did so because she had heard that Noel “was out” after being arrested for the murder of her children. The trial court again denied the mistrial motion and concluded that the jury could just as easily have determined that Noel was “out” on bail. Third, when asked why he had lied in his original statement, Curtis Cochran, a co-defendant, replied that he was afraid of Noel because he knew about his “reputation” and was trying to protect him. Defense counsel’s objection was sustained, but the motion for a mistrial was denied. Fourth, the prosecutor asked Curtis Cochran whether he knew that Noel had taken the murder weapon from his house on the day of the killings, which was a fact not then in evidence. The objection was sustained, the motion for a mistrial was denied, and the trial court admonished the jury to disregard that question. Fifth, during cross-examination, the prosecutor began to question Noel “if Terry Carroll’s grandmother says you were over there looking for him . . . ,” which was a fact not in evidence. Terry Carroll was also a co-defendant. The trial court sustained the objection and denied the motion for a mistrial.

The cumulative effect of this character evidence, according to Noel, violated Ark. R. Evid. 404(a) and tainted his trial. The State counters in its brief on appeal that Noel’s cumulative error objection was not preserved for appeal. We have held that in order to preserve a cumulative error objection for appeal, defense counsel must not only object to each instance of error but also clearly present the cumulative error point to the trial court and obtain a ruling. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997); Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995).

In addressing this issue, we first note that Noel moved for a mistrial on each of the five claims of prejudicial error and obtained a ruling. He further moved for a directed verdict on the cumulative effect of the errors at the end of the State’s case after four of the instances had occurred, and the motion was denied. He renewed his cumulative error motion for a directed verdict at the close of all of the evidence. It, too, was denied. Thus, we conclude that the cumulative error issue was preserved for our review.

Turning then to the merits, we have stated that a reversal of a conviction based on cumulative error is only appropriate in “rare and egregious” cases. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993); Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993). An analysis of the five instances complained of in the instant case illustrates that neither individually nor collectively do they rise to the level of reversible error.

First, Mary Hussian’s testimony that Noel looked like “an animal” on the night of the murders is not a representation of his character and was not objected to on that basis. The trial court properly denied the motion for mistrial, and defense counsel did not request an admonishment. Second, Hussian’s statement that she forged a prescription because she had heard that Noel “was out” was made during defense counsel’s cross-examination and was not objected to on grounds of improper character evidence. The trial court correctly denied the mistrial motion because the jury could just as easily have concluded that Noel was “out” on bail, and, again, defense counsel did not ask for an admonishment. Third, Curtis Cochran’s statement that he was afraid of Noel because he knew about his “reputation” may well have reflected on Noel’s character. Yet, defense counsel’s objection was sustained, and the motion for a mistrial was denied. There was no request that the jury be admonished on this questioning. The fourth and fifth instances both dealt with the State’s asking questions that assumed facts not then in evidence. On neither occasion did Noel object on the basis of improper character evidence. Additionally, on both occasions, the trial court admonished the jury to disregard the facts not in evidence, and Noel did not object to the form or substance of the admonishment.

In short, there was only one objection made that conceivably might have qualified as improper character evidence, and that related to Curtis Cochran’s fear due to Noel’s “reputation.” However, in that instance, the trial court sustained defense counsel’s objection, and no request that the jury be admonished in any form or fashion was made by Noel. We cannot say that this circumstance, standing alone, constituted reversible error or that the conduct of the prosecutor in toto was so egregious as to deny Noel a fair trial. See Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Dillon v. State, supra. Nor does the fact that this is a death case require us to lower this standard, as Noel contends.

There was no abuse of discretion by the trial court on this point.

III. Prosecutor’s Shifting of Burden of Proof

For his third point, Noel urges that the trial court should have declared a mistrial based on the prosecutor’s comments in closing argument that had the effect of shifting the burden of proof to the defense. Noel contends that there were three such instances.

A mistrial is an extreme remedy that should only be used when the error is beyond repair by any curative measure. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994); Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994). The trial court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of it. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Closing remarks that require reversal are rare and require an appeal to the jurors’ passions. Lee v. State, supra. Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Bullock v. State, supra.

The first remark questioned by Noel occurred during the prosecutor’s closing argument in the guilt phase. Noel had taken the stand earlier and testified that he was not present when the murders took place. He gave the names of several alibi witnesses, including his wife, whom he stated was in the courtroom. None of these witnesses had taken the stand. During closing argument, the prosecutor asked the jury to consider Noel’s credibility in light of his alibi witnesses who did not testify. Defense counsel objected and moved for a mistrial. The trial court sustained the objection but denied the motion for mistrial. Noel did not ask that the jury be admonished to disregard that statement.

We have dealt with similar issues in the cases of Bullock v. State, supra, and Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994). In Bullock, this court affirmed the trial court’s denial of a motion for a mistrial when the State argued that the defense had failed to provide a copy of a check that would corroborate the defendant’s alibi that he was working at the time. We held:

The trial court did not abuse its discretion in denying appellant’s request for a mistrial. The prosecutor’s remarks were not a comment on appellant’s failure to testify or to produce evidence, but an attempt to reiterate the attack on the credibility of appellant’s testimony. Such a review of the evidence is not prohibited given that appellant took the stand and offered the alibi testimony. Appellant cannot testify on his own behalf and then expect the Fifth Amendment to prohibit the state from questioning the credibility of his testimony or from calling the lack of credibility to the jury’s attention during closing argument.

Bullock, 317 Ark. at 206, 876 S.W.2d at 580-81.

In Cook v. State, supra, this court upheld the trial court’s denial of a motion for a mistrial when the prosecutor argued that defense counsel had failed to call an additional alibi witness that would corroborate the testimony of another alibi witness. The trial court denied defense counsel’s motion for a mistrial but admonished the jury. This Court held that the trial court did not abuse its discretion in denying defense counsel’s motion for a mistrial because:

[T]he comment was not about the accused’s failure to testify in violation of his Fifth Amendment privilege against self-incrimination. Rather, it was about the trustworthiness of a witness’s recollection of a date and her confirmation about that date. At most, it was an attempt to shift the burden of proof, and we cannot say that the trial court erred in determining that the instruction remedied that wrong.

Cook v. State, 316 Ark. at 387, 872 S.W.2d at 73-74.

This case is no different from Bullock v. State, supra, or Cook v. State, supra, in that it was the actions of defense counsel and Noel himself that put his credibility in issue. It was a fair inference to be argued to the jury that the failure of Noel to call any alibi witness to the stand undermined his credibility. Any prejudice resulting from the prosecutor’s allusion to absent testimony could have been easily cured by an admonishment, which defense counsel did not request. Cook v. State, supra.

The second instance of an alleged prejudicial comment occurred during the State’s rebuttal argument in the guilt phase. It concerned photo spreads used by the Little Rock police officers to identify Noel. In defense counsel’s closing argument, he posited the question of why the prosecutor had not introduced into evidence the photo spreads used to identify Noel. In rebuttal argument, the prosecutor parried with the argument that defense counsel had access to the photo spreads and could just as easily have cross-examined the State’s witnesses about them. The prosecutor further hinted that defense counsel did not do so because he would not have liked the response. Defense counsel objected and argued that the State was again trying to shift the burden of proof. The trial court sustained the objection, denied a motion for a mistrial, and admonished the jury to disregard the prosecutor’s argument.

This court has held that the trial court is given broad discretion in controlling counsel in closing arguments, and we will not disturb the trial court’s decision absent a manifest abuse of discretion. See, e.g., Lee v. State, supra. Remarks that are so prejudicial as to mandate a reversal are rare and require an appeal to the jurors’ passions. Id. In addition, this court has recognized that when one party uses improper closing remarks, the other party may respond with what would ordinarily be improper remarks. See Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997); Larimore v. State, 317 Ark. 111, 977 S.W.2d. 570 (1994); McFadden v. State, 290 Ark. 177, 717 S.W.2d. 812 (1986).

Here, the argument presented by the prosecutor was the same as that presented by the defense. But even assuming that the prosecutor’s argument was not appropriate, any prejudice was cured by the trial court’s admonishment. Although Noel now claims that the admonishment was vague and ineffective, he did not object to the manner of the admonishment at trial. The issue of the effectiveness of the admonishment, accordingly, is not preserved for our review.

Finally, during the prosecutor’s closing argument at the end of the penalty phase, he referred to Noel as a “psychopath.” Defense counsel objected, but not on grounds that this comment shifted the burden of proof. Nor did defense counsel move for a mistrial or object to the trial court’s subsequent admonishment of the jury, which he requested. This point also is not preserved for appeal. Moreover, Noel cannot now complain when he obtained the relief requested. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

The three incidents cited by Noel could all have been cured by an admonishment to the jury, if, in fact, they were inappropriate in any respect. The jury was admonished in two instances, and an admonishment was not requested in the third case. Noel did not object to the substance or effectiveness of the admonishments given. We affirm the trial court’s ruling in each respect.

IV. Victim-Impact Evidence

For his fourth point, Noel appears to make two separate arguments. First, he claims that the statute permitting the use of victim-impact evidence, [Ark. Code Ann. § 5-4-602(4) (Repl. 1993)], deprived him of due process of law because it improperly created a new aggravating circumstance. He next argues that this new aggravating circumstance denied him due process protection because it was considered by the jury outside of the statutory weighing process required for aggravating and mitigating circumstances, all of which contravenes Ark. Code Ann. § 5-4-603 (Repl. 1993). Noel’s due process claim that victim-impact evidence under the statute created a new aggravating circumstance was not argued to the trial court and, thus, is not preserved for our review. We turn then to his argument that the victim-impact evidence presented was outside of the statutory weighing process for aggravating and mitigating circumstances.

In 1992, the United States Supreme Court held that the states could determine that victim-impact evidence was relevant to the assessment of punishment in capital murder cases as a means of counteracting mitigating evidence and of showing that the victim’s death represented a unique loss to society. Payne v. Tennessee, 501 U.S. 808 (1992). In the wake of the Payne decision, the Arkansas General Assembly enacted Act 1089 of 1993, now codified at § 5-4-602(4) (Repl. 1993). Section 2 of that Act provides:

It is the express intention of this act to permit the prosecution to introduce victim impact evidence as permitted by the United States Supreme Court in Payne v. Tennessee ....

Act 1089 stated that during the penalty phase, in addition to aggravating and mitigating circumstances, the jury may be presented with “any other matter relevant to punishment, including, but not limited to, victim impact evidence . . . .” Ark. Code Ann. § 5-4-602(4). Thus, the General Assembly clearly expressed the policy of this State that victim-impact evidence is relevant to the decision of what punishment is appropriate.

Our subsequent caselaw specifically rejected the notion that victim-impact evidence was an aggravating circumstance or that it violated the statutory weighing process set out in Ark. Code Ann. §§ 5-4-603 through 605 (Repl. 1993). We stated in 1995:

But by expanding the scope of permissible evidence [victim-impact evidence] during the penalty phase, the General Assembly has not expanded the scope of punishment or added a new aggravating circumstance.

Nooner v. State, 322 Ark. 87, 109, 907 S.W.2d 677, 689 (1995), cert. denied, 116 S. Ct. 1436 (1995).

In a later case, we expressly addressed the issue of whether “because there is no place in the Arkansas statutory weighing process for the jury to consider victim-impact evidence, our victim-impact statute is violative of the Eighth and Fourteenth Amendments to the United States Constitution and Ark. Const, art. 2, § 9.” Kemp v. State, 324 Ark. 178, 204, 919 S.W.2d 943, 956 (1996), cert. denied, 117 S. Ct. 436 (1996). In Kemp, we further observed that the appellant’s argument was that the victim-impact statute conflicted with the statutes establishing aggravating and mitigating circumstances. We rejected Kemp’s argument and held that the victim-impact evidence involved, which consisted of testimony by the sisters and a daughter of the victim, was not unduly prejudicial.

More recently, in Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997) , we again addressed the appellant’s argument that there was no place in the statutory weighing process for the jury to consider victim-impact evidence. We held in Lee that the issue was decided by the Nooner and Kemp decisions and stated:

Recognizing that there are virtually no limits placed on the relevant mitigating evidence that a defendant may introduce on his behalf, we noted that the State could legitimately conclude that the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether to recommend that the death sentence be imposed. Kemp, 324 at 205, citing Payne, 501 U.S. at 827.

Lee, 327 Ark. at 703, 942 S.W.2d at 256 (emphasis added). See also Payne v. Tennessee, supra.

In the instant case, the defense called Valery Ussery, Noel’s mother, to the stand during the penalty phase. She testified that Noel was not disrespectful and had “a kind heart.” She also identified three photographs of Noel as a child, which were offered into evidence and which were clearly an effort to emphasize the loss that would be associated with his execution. In our judgment, that is precisely the type of mitigating testimony that the Supreme Court acknowledged could be offset by testimony relating to the human toll of a murder on the victim’s family. See Payne v. Tennessee, supra. Indeed, the Court in Payne said as much when it explained that the states may now allow “the prosecutor to similarly argue to the jury the human cost of the crime.” Payne, 501 U.S. at 827.

At issue in this appeal is the testimony of Mary Hussian on the impact the murders of her three children has had on her. She testified generally about her grief and revealed that the “last words” of one of her children were, “Please don’t hurt my mom.” She also expressed her regret for the fact that her family would “never see the fruit” that her children “were capable of bringing forth to this society.” Ms. Hussian added that she was “withdrawn” from her family, that she often has sleepless nights and awakes “in sweat and tears, crying and in emotional pain,” and that she initially dealt with her grief by consuming alcohol and abusing her medication. She further revealed that she is in counseling and that she has been hospitalized for “stress related disorders.” She stated that she has experienced problems in her employment due to depression and stated that she sometimes “check[s] the children’s bedrooms although they’re not there.” Finally, she read a poem to the jury titled “Wishes from the Heart” that she had written about her children and that she “used as a tool to suppress the hurt and pain because sometimes it is so overwhelming . . . .” According to Ms. Hussian, her family has been “totally destroyed” by the loss of her three children.

We hold, once again, that victim-impact evidence is not an additional aggravating circumstance but rather is relevant evidence which informs the jury of the toll the murder has taken on the victim’s family. Such evidence has been sanctioned by the Supreme Court as relevant in Payne v. Tennessee, supra, and specifically by the Arkansas General Assembly in Act 1089. As a safeguard against excessive victim-impact evidence, the Court observed in Payne v. Tennessee, supra, that when such evidence is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause provides a mechanism for relief. That is not the situation in the instant case. Rather, the State sought to show the human cost of the murders on Mary Hussian, much the same as the defense sought to show, in mitigation, the human toll on Noel’s mother in the event of a State execution.

There is one final point. We view the case of State v. Gusek, 906 P.2d 272 (Or. 1995), which is cited by Noel, as inapposite. In Gusek, the people of Oregon, by initiated Act, voted in a victim-impact law which did not speak directly to the relevancy of victim-impact evidence and which the Oregon Supreme Court held to be at odds with the General Assembly’s statutory scheme. In contrast, the Arkansas General Assembly has enacted the victim-impact law at issue in the instant case and has specifically stated that it is relevant to the sentencing process. The dissent cites Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996); Lambert v. State, 675 N.E.2d 1060 (Ind. 1996); State v. Carter, 888 P.2d 629 (Utah 1995); Bivins v. State, 642 N.E.2d 928 (Ind. 1994), in support of its position that victim-impact evidence is irrelevant to the statutory scheme. But, again, the crucial distinction between those cases adduced and the case at hand is that our General Assembly has enacted legislation stating that such evidence is relevant.

The trial court did not abuse its discretion in allowing this testimony.

V. Mandatory Death Sentence

For his final point, Noel contends that the Arkansas death penalty statute is unconstitutional because it results in a mandatory death sentence. This court has addressed and rejected this precise argument on several occasions. See, e.g., Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997); Nooner v. State, supra. In those cases, we noted that our statutory scheme provides that a jury may impose the death sentence when the “Aggravating circumstances justify a sentence of death beyond a reasonable doubt.” Ark. Code Ann. § 5-4-603(a)(3) (Repl. 1993) (emphasis added). Thus, justification is an essential element for the imposition of a death sentence.

More specifically, Noel argues that a jury should be instructed that it may show mercy after considering all of the mitigating circumstances. We initially observe that defense counsel did not offer a “mercy” instruction to the trial court. In addition, he did not obtain a ruling from the trial court on this issue. We will not consider the issue for the first time on appeal. See Watson v. State, 329 Ark. 511, 951 S.W.2d 304 (1997). Nor do we view this issue as one involving an error in a matter essential to the jury’s consideration of the death penalty itself. See Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In any event, we resolved this issue against Noel’s position in Cox v. State , 313 Ark. 184, 853

S.W.2d 266 (1993), and Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).

Finally, we do not agree with Noel’s contention that our statutory scheme precludes a juror from considering a mitigating circumstance unless it is unanimously found. The sentencing forms completed by the jury in this case specifically allow for some jurors to weigh a mitigating circumstance while others may not. In Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), this court expressly acknowledged that fact.

The trial court, accordingly, correctly ruled that our sentencing statute, Ark. Code Ann. § 5-4-603 (Repl. 1993), was constitutional.

VI. Rule 4-3 (h) Review

The record has been reviewed for other reversible error pursuant to Ark. S. Ct. R. 4-3 (h), and none has been found.

Affirmed.

Newbern, Imber, and Thornton, JJ., concur in part; dissent in part.

David Newbern, Justice,

concurring in part; dissenting in part. In various oral and written motions filed prior to trial, Mr. Noel sought to exclude or limit the admission of victim-impact evidence during the sentencing phase of his trial. He argued that the sentencing phase is devoted only to the weighing of aggravating and mitigating circumstances and that victim-impact evidence has no bearing on these issues and thus “falls outside the mandate of the weighing scheme.” The Trial Court denied some of the motions relating to victim-impact evidence and ruled that others were moot. Mr. Noel renewed his objection to the use of victim-impact evidence during the trial, and the objection was overruled.

The essence of Mr. Noel’s argument to the Trial Court, and to this Court, is that victim-impact evidence should not be admissible in a capital-sentencing proceeding if it is irrelevant to any of the issues that are properly before the jury in that part of the trial.

Mr. Noel’s argument has merit. Under our death-penalty statutes, the only issues that are before the jury during the sentencing phase are (1) whether aggravating circumstances exist beyond a reasonable doubt; (2) whether aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and (3) whether aggravating circumstances justify a sentence of death beyond a reasonable doubt. Ark. Code Ann. § 5-4-603 (Repl. 1997). Thus, considering that “the evidence offered must be probative of some issue to be properly considered in the penalty phase,” Hendrickson v. State, 285 Ark. 462, 466, 688 S.W.2d 295, 298 (1985), it follows that, for evidence to be admissible during the penalty phase of a capital case, it should be directly relevant to the questions posed by Ark. Code Ann. § 5-4-603 (Repl. 1997). See Lee v. State, 327 Ark. 692, 706-15, 942 S.W.2d 231, 238-43 (1997)(Newbern, J., concurring). Ms. Russian’s testimony was irrelevant to the issues that were before the jury during Mr. Noel’s sentencing phase, and thus it should have been excluded.

In Payne v. Tennessee, 501 U.S. 808 (1991), it was held that the Eighth Amendment does not prohibit the admission of certain forms of victim-impact evidence during a capital-sentencing proceeding. The Court observed that the states “may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” Id. at 827. However, as Justice O’Connor observed in a concurring opinion, the Court in Payne did not hold “that victim impact evidence must be admitted, or even that it should be admitted.” Id. at 831 (O’Connor, J., joined by White and Kennedy, JJ., concurring) (emphasis added). The Payne decision simply removed the per se bar that prior cases had imposed, under the Eighth Amendment, on the admission of victim-impact evidence and left it to the states to decide for themselves, subject to the constraints of the Due Process Clause, whether and how to use victim-impact evidence in death-penalty cases.

In Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we were concerned with whether Ark. Code Ann. § 5-4-602(4) (Repl. 1997) should be applied retroactively. Although we discussed the Payne decision and recited from it, our holding was limited to our conclusion that “permitting this testimony . . . did not constitute an ex post facto law.” 322 Ark. at 109, 907 S.W.2d at 689.

In Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), we again discussed § 5-4-602(4) and dealt with three objections to the admissibility of victim-impact evidence. We held the statute was (1) not void for vagueness, (2) not violative of the Eighth Amendment, citing the Payne decision, and (3) not violative of Ark. Const, art. 2, § 9. We added our conclusion that the admission of the evidence was not, in that instance, so prejudicial as to be violative of Mr. Kemp’s right to due process of law. Mr. Kemp’s argument concerning the conflict between the statute providing the procedure for weighing aggravating and mitigating circumstances was part of his constitutional argument. Here is what we said about it:

He [Kemp] further contends that, because there is no place in the Arkansas statutory weighing process for the jury to consider victim-impact evidence, our victim-impact statute is violative of the Eighth and Fourteenth Amendments to the United States Constitution and Ark. Const. art. 2, § 9. Particularly, appellant contends that the victim-impact statute conflicts with Ark. Code Ann. § 5-4-603 and -604 (Repl. 1993), which direct the jury to determine whether aggravating circumstances exist, to weigh any aggravating circumstances against any mitigating circumstances, and to determine whether the aggravating circumstances justify a death sentence beyond a reasonable doubt. Again, we find appellant’s argument unpersuasive.

324 Ark. at 204; 919 S.W.2d at 956. We said nothing more about the statutory conflict but proceeded to discuss the constitutional arguments at some length. We did not further address the issue whether victim-impact evidence was relevant to the statutory aggravating circumstances or should have been admissible in the sentencing phase of a capital-murder trial sought so carefully to be controlled by §§ 5-4-603 and 5-4-604.

No doubt we rejected Mr. Kemp’s constitutional arguments because they were foreclosed by the Payne decision. If, as the majority opinion in the case now before us suggests, we rejected the basic statutory conflict argument at all, it was because the argument presented by Mr. Kemp was “unpersuasive.” That hardly means that an argument that is persuasive may not be considered in this case.

In Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), we dealt only with a due process challenge to the victim-impact evidence statute. There was no objection to the evidence on the basis that it was not relevant to the aggravating circumstances presented at the trial.

In this case, the objection raising the issue of the statutory conflict was made on Mr. Noel’s behalf. The contention that the basic capital-punishment procedure is violated by the admission of victim-impact evidence is before us, not as a part of an Eighth Amendment or other constitutional argument, but on its own, as a purely statutory argument. The question is one we have not addressed directly, and we are confronted with an argument on the point that is persuasive.

What, then, is the extent to which our General Assembly has provided for the admission of victim-impact evidence in capital sentencing proceedings and rendered “victim impact” a relevant sentencing factor?

Following the Payne decision, the General Assembly enacted Ark. Code Ann. § 5-4-602(4) (Repl. 1997), which provides in part that

“[i]n determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in § 5-4-604, any mitigating circumstances, or any other matter relevant to punishment, including, but not limited to, victim impact evidence ....

The Act also contained the following language: “It is the express intention of this act to permit the prosecution to introduce victim impact evidence as permitted by the United States Supreme Court in Payne v. Tennessee . . . .”

Section 5-4-602(4) limits the evidence to be presented in determining sentence to “any matters relating to aggravating circumstances enumerated in § 5-4-604, any mitigating circumstances, or any other matter relevant to punishment, including, but not limited to victim impact evidence. ...” Evidence of victim impact, therefore, must be relevant to aggravating circumstances or mitigating circumstances, or it must be “relevant to punishment.” The death-penalty punishment scheme appears in § 5-4-603 (a) as follows:

The jury shall impose a sentence of death if it unanimously returns written findings that:
(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.

The statutory aggravating circumstances at the time of the trial were those now stated in Ark. Code Ann. § 5-4-604(1) through (9) (Repl. 1997). (A tenth aggravating circumstance, not relevant here, was added in 1997.) They are as follows:

(1) The capital murder was committed by a person imprisoned as a result of a felony conviction;
(2) The capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction;
(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person;
(4) The person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim or caused the death of more than one (1) person in the same criminal episode;
(5) The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;
(6) The capital murder was committed for pecuniary gain;
(7) The capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any government or political function;
(8) (A) The capital murder was committed in an especially cruel or depraved manner.
(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder; or
(9) The capital murder was committed by means of a destructive device, bomb, explosive, or similar device which the person planted, hid, or concealed in any place, area, dwelling, building, or structure, or mailed or delivered, or caused to be planted, hidden, concealed, mailed, or delivered, and the person knew that his act or acts would create a great risk of death to human life.

The victim-impact evidence in this case was not “relevant to punishment” because the decision to “punish” a defendant with the death penalty must be the result of the weighing procedure set forth in § 5-4-603. The question thus becomes whether the victim-impact evidence is relevant to the aggravating circumstances contained in § 5-4-604 or mitigating circumstances. The statutory aggravating circumstances are obviously and appropriately limited to evidence of what the defendant did or did not do. The victim-impact evidence in this case clearly had nothing to do with any of them; nor was it related in any way to any facts presented as mitigating evidence.

In State v. Gusek, 906 P.2d 272 (Or. 1995), the Supreme Court of Oregon confronted the problem created by a victim-impact evidence law that had been adopted as an initiated act. The law in Oregon, as our § 5-4-603, required unanimous jury determination of the existence of one or more specified aggravating circumstances as a prerequisite to levying the death sentence. The Supreme Court of Oregon held the victim-impact evidence was inadmissible due to its irrelevancy to the aggravating factors stated in the law. The Court said,

The statutory requirement that the state must prove beyond a reasonable doubt the issues concerning aggravation . . . indicates that the legislature intended that the death penalty would be imposed only on the basis of the enumerated statutory aggravating factors that the state establishes beyond a reasonable doubt .... Interpreting the “fourth question,” on which neither party has the burden of proof, to allow proof of nonenumerated aggravating factors would allow the imposition of the death penalty on the basis of non-enumerated aggravating factors that were not established beyond a reasonable doubt. Such an interpretation would be inconsistent with the legislature’s intent to require proof beyond a reasonable doubt of the enumerated aggravating circumstances.

906 P.2d at 279 (emphasis original). The “fourth question” in the Oregon death penalty sentencing law is the general one asking the jurors ultimately whether the death penalty should be imposed.

Although § 5-4-602(4) purports to sanction the use of victim-impact evidence in capital cases if it is merely “relevant to punishment,” § 5-4-603 has not been amended to make “victim impact” a relevant sentencing or “punishment” factor. As the Oregon Court found to be the case of the law enacted by the voters in that State, nothing that our General Assembly has done in the wake of the Payne decision has altered the basic framework of § 5-4-603. The jury’s decision whether to impose the death penalty still depends entirely on the weighing of statutorily defined aggravating factors and any relevant mitigating factors. See Ark. Code Ann. §§ 5-4-604, 5-4-605. Thus, insofar as § 5-4-602(4) permits the introduction of victim-impact evidence, § 5-4-603 must be viewed as limiting the admissibility of such evidence. Section 5-4-603 requires that victim-impact evidence, before it can be admitted in a capital sentencing proceeding, must be direcdy relevant to the question whether aggravating or mitigating circumstances exist in the case at hand.

In addition to the Supreme Court of Oregon, courts in other states have reached similar conclusions. See, e.g., Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996); Lambert v. State, 675 N.E.2d 1060 (Ind. 1996); State v. Carter, 888 P.2d 629 (Utah 1995); Bivins v. State, 642 N.E.2d 928 (Ind. 1994). The majority opinion criticizes the reference to these cases on the ground that the states in which they were rendered had not enacted statutes making victim-impact evidence “relevant.” As noted above, our General Assembly has not simply said that victim-impact evidence is “relevant.” Rather, it provided in § 5-4-602(4) that “. . . any other matter relevant to punishment, including, but not limited to victim impact evidence” may be presented. Again, the point here is that the victim-impact evidence in this case was not related to any aggravating factor or mitigating evidence presented and thus cannot be relevant to “punishment,” which is controlled by §§ 5-4-603 and 5-4-604.

In the case at bar, Ms. Hussian’s testimony describing the impact of Mr. Noel’s crimes on her life and on the life of her family did nothing to establish the existence or non-existence of any aggravating or mitigating circumstances. Her testimony was thus erroneously admitted, and it was most assuredly not harmless beyond a reasonable doubt. The case should be remanded for a new sentencing proceeding.

I respectfully dissent.

Imber and Thornton, JJ., join in this opinion.

       Noel did indeed escape from custody subsequent to his arrest for the three murders.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    Paul FRETTE v. CITY OF SPRINGDALE
    CR 97-712
    959 S.W.2d 734
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      Kenneth Osborne, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The primary issue in this case is whether a police officer acted lawfully in ordering appellant, Paul Frette, the occupant of a parked tractor-trailer, out of his vehicle. The officer, who suspected that Frette was intoxicated, acted solely on the basis of a tip phoned in by an identified citizen informant. We conclude that the tip carried with it sufficient indicia of reliability to give the officer reasonable suspicion to justify an investigatory stop. Accordingly, we affirm the trial court’s denial of appellant’s motion to suppress.

While there was no testimony taken in the case, the parties stipulated to the following facts. At 6:51 p.m. on June 15, 1995, Jerry Smith, a truck driver from Jonesboro, Georgia, phoned in a tip to the Springdale Police Department. Smith provided the radio dispatcher with his name, address, and occupation. He stated that he had observed an elderly male in a red Volvo tractor-trailer drinking beer in the cab of his vehicle in the commercial truck parking lot behind the McDonald’s restaurant located on West Sunset in Springdale. The lot had nine spaces designated for commercial vehicles. The police department had no prior dealings with Smith. At 7:02 p.m., Officer Kwano responded to the dispatch and discovered that Frette was behind the wheel inside a red tractor-trailer parked immediately behind McDonald’s in the designated parking area.

Officer Kwano approached the vehicle and ordered Frette to step out of the vehicle. When Frette exited, Officer Kwano noticed the strong smell of intoxicants on Frette, who swayed as he spoke. Frette failed various field-sobriety tests and was arrested at 7:49 p.m. A test performed at the police station revealed that Frette had a .08% blood-alcohol content.

Frette was found guilty in municipal court of driving while intoxicated as a holder of a commercial driver’s license. On appeal to circuit court, Frette filed a motion to suppress his “statements. . .blood alcohol analysis, physical description [of Frette], statements of an informant, descriptions of field sobriety tests, and a physical [of Frette]” on the ground that this evidence was obtained as a result of an illegal seizure. The trial court denied the motion to suppress, and accepted Frette’s conditional guilty plea to one count of driving while intoxicated while holding a commercial driver’s license. Pursuant to Ark. R. Crim. P. 24.3(b), Frette’s plea was conditioned on an appeal of the trial court’s adverse ruling on his pretrial motion to suppress.

The Court of Appeals reversed and remanded, holding that the trial court erroneously denied the motion to suppress. Frette v. State, 58 Ark. App. 81, 947 S.W.2d 15 (1997). We granted the State’s petition for review, and now review the case as though it was originally filed with this court. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).

1.

We first consider Frette’s challenge to the sufficiency of the evidence and the factual basis for his plea. Frette entered a conditional guilty plea pursuant to Ark. R. Crim. P. 24.3(b), which provides:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty. . . reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw the plea.

As a general rule, one is not allowed to appeal from a conviction resulting from a guilty plea, aside from jurisdictional defects. Ark. R. App. P. — Crim. 1(a). However, “Rule 24.3(b) presents an exception to the rule but only for the purpose of determining on appeal whether an appellant should be allowed to withdraw her plea if it is concluded that evidence should have been, but was not, suppressed.” Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). This court has strictly construed the permissible scope of an appeal under Rule 24.3(b). In Wofford the appellant entered a conditional guilty plea under Rule 24.3(b) and we declined to address an upward departure from the sentencing guidelines and an alleged violation concerning cameras in the courtroom because these points did not concern “suppression of evidence.” Id. See also Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990) (declining to reach the merits of a speedy-trial argument when the appellant entered a Rule 24.3(b) conditional plea of nolo contendere on the charge). Likewise, we decline to reach the merits of Frette’s challenge to the sufficiency of the evidence and the factual basis for his plea.

2.

We next consider the trial court’s adverse determination of Frette’s pretrial motion to suppress evidence. In reviewing the denial of a motion to suppress, this court makes an independent examination based on the totality of the circumstances. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997), cert. denied, 117 S. Ct. 2411 (1997); Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996). The evidence is viewed in the light most favorable to the State as appellee, and this court will reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Id.

This court has previously categorized police-citizen encounters into three categories:

The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. . . The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that person has committed or is about to commit a crime. . . . The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would beheve that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. . . .

Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990) (citing U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988)) (citations omitted). In the present case, Officer Kwano’s actions in ordering Frette out of his parked truck to investigate the DWI tip falls into the second category, a “seizure” under the Fourth Amendment requiring “[t]he police officer. . . to be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.” Terry v. Ohio, 392 U.S. 1 (1968). In Thompson, supra, we held that an officer with reasonable suspicion under Ark. R. Crim. P. 3.1 to suspect that the occupant of a parked vehicle was about to commit a DWI could ask the occupant to exit his car. Likewise, other courts have recognized that an officer with reasonable suspicion to conduct an investigatory stop may order an occupant out of a parked vehicle. See, e.g., Popple v. State, 626 So.2d 185 (Fla. 1993); Johnson v. State, 658 S.W.2d 623 (Tex. Crim. App. 1983), overruled on other grounds, 1997 WL 685978 (Tex. Crim. App. 1997); People v. Freeman, 320 N.W.2d 878 (Mich. 1982); People v. Harrison, 443 N.E.2d 447 (N.Y. 1982).

Frette challenges the legality of his detention under Ark. R. Crim. P. 3.1, governing investigative stops:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

“Reasonable suspicion” is further defined by our rules of criminal procedure as:

[A] suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

Ark. R. Crim. P. 2.1. The justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995) (quoting Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982)).

The substance of Frette’s argument is that the tip was provided by an unreliable informant over the telephone, making the information provided in the tip insufficient to give Officer Kwano the reasonable suspicion necessary to conduct an investigatory stop. Frette cites cases generally dealing with the sufficiency of information provided by informants in establishing reasonable suspicion. For example, in Adams v. Williams, 407 U.S. 143 (1972), the United States Supreme Court examined whether a police officer legally conducted an investigatory stop pursuant to Terry, supra. The officer justifiably responded to an informant’s tip that the respondent was carrying narcotics and a gun, in part because “[t]he informant was known to [the police officer] personally and had provided him with information in the past.” Adams, supra. Additionally, the informant provided the information to the officer personally, making the case “stronger” than in the case of an anonymous telephone tip. Adams, supra. These facts, while perhaps insufficient to justify a warrantless arrest or a search warrant, provided “enough indicia of reliability” to justify a Terry stop. Adams, supra.

Adams was later cited by the Supreme Court in Alabama v. White, 496 U.S. 325 (1990), a case involving an anonymous tipster who telephoned the police and informed them that the respondent would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with a broken taillight. The informant added that the respondent would be going to Dobey’s Motel, and that she was carrying an ounce of cocaine in a brown attache case. Officers went to the Lynwood apartments and observed a station wagon matching the precise description provided by the informant, and saw the respondent leave the 235 building and enter the station wagon. When the respondent proceeded to drive on the highway where Dobey’s Motel was located, the officers had a patrol car pull the vehicle over. The respondent consented to a search of her vehicle which resulted in the discovery of controlled substances.

The Supreme Court held that the police conducted a valid Terry stop. In examining whether the anonymous tip carried with it sufficient indicia of reliability by analogy to the totality of the circumstances approach to determining whether an informant’s tip establishes probable cause under Illinois v. Gates, 462 U.S. 213 (1983), the Court concluded that the tip, “standing alone,” “would not ‘warrant a man of reasonable caution in the belief that [a stop] was appropriate.’” White, supra (quoting Terry, supra). However, at the time the officers made the stop, the tip had been sufficiently corroborated to give them reasonable suspicion. The woman left the 235 building and entered a car matching the description provided by the informant. Evidence also demonstrated that the respondent left the building in the time frame suggested by the informant. Finally, the respondent was travelling on the most direct path to the destination given by the informant. This independent corroboration, in addition to the informant’s ability to predict the respondent’s future behavior, provided “sufficient indicia of reliability to justify the investigatory stop of respondent’s car.” White, supra.

White was relied upon by the Court of Appeals in Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991), where an anonymous tipster (identified as “someone from Little Rock”) informed the police that a man named “Jerry” would be leaving the Hot Springs area at a specific time, driving a “Woodline Motor Freight” truck with a shortbed trailer, and carrying about ten pounds of marijuana. Acting on this tip, the police officer set up surveillance and stopped a truck matching this description at the given time. After the driver identified himself as “Jerry Lambert” the officer Mirandized the driver who in turn showed the officer the marijuana that he was carrying.

Comparing the facts of the case to those presented in White, supra, the Court of Appeals held that the officer lacked reasonable suspicion to stop the driver under Rule 3.1. In so holding, the court emphasized that unlike White, the police had no information concerning the departure point of the driver or if the vehicle was travelling to the location predicted by the informant. The Court of Appeals also held that the police lacked reasonable suspicion under Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988). In Kaiser this court held that the police lacked reasonable suspicion to stop a vehicle suspected of carrying contraband when the information was provided by the Missouri State Police, who in turn told Arkansas authorities that the “information came from a reliable informant.” While the informant providing the information to the Missouri State Police may have been reliable, and the Missouri State Police may have had reasonable suspicion concerning Kaiser, “the record is devoid of evidence supporting that conclusion.” Id.

Another case relied on by Frette is Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991), where a person identifying herself as Irene Smith called the North Little Rock police and told them her daughter was being held at gunpoint in an apartment at 1600 North Main Street. She told the police that she obtained this information from her son and gave the police her number. When a dispatcher called the woman back to tell her that no one discovered anything at 1600 North Main, Ms. Smith attempted to clarify the location of the residence and reiterated that the address was 1600 North Main. An officer responded to 1600 North Main and concluded that no crime had occurred there. At the same time, another officer partner entered a dwelling at 1516 North Main and reported that there were several marijuana plants there.

The Court of Appeals held that the police lacked probable cause to make the warrantless entry into 1516 North Main. The basis for the officer’s intrusion was a call to respond to 1600 North Main, and they had no information that a felony had been or was being committed at 1516 North Main. The Evans court also concluded that the evidence indicated that the officers did not know which house they were looking for and were conducting a random search of the area. The Court of Appeals reasoned that the case was controlled by Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), where this court held that the police lacked probable cause to make a warrantless entry into a home when an anonymous caller claimed that a person had been shot at a particular address and was dead. The caller’s main concern was that she did not want a dead person in the house, and provided no other information that the person might be alive or that anyone else was in danger. “The identity of the caller was anonymous; one could only speculate as to the reliability of the caller.” Id. (citing Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), overruled on other grounds, 329 Ark. 422, 948 S.W.2d 557 (1997) (holding that several anonymous calls implicating appellant in robbery were “unverified anonymous telephone tips” that did “not support or contribute to a probable cause determination”)). The Evans court read Mitchell and the cases cited therein to conclude that:

The mere fact Irene Smith identified herself in no way established her trustworthiness. Moreover, there is nothing in the record regarding the trustworthiness or even the name of Ms. Smith’s son, the informant who gave her the information she relayed to the police. In determining probable cause, the pivotal question is reliability of the information on which the officers rely. The record does not show that either Irene Smith or her son were known to the police officers or known by them to be trustworthy.

Evans, supra.

A more recent case showing the inadequacy of an anonymous tip is Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997), where the police received two anonymous phone calls. Both calls provided detailed information about a drug dealer and where he was going to be; one of the calls specified where he would be that night and what vehicle he would be driving. An officer went to the restaurant parking lot where the tipster said the dealer would be, and eventually saw a car in the lot matching the description with two people sitting in the car. The dome light of the car was on, and as the officer pulled up to the car the occupants began acting as if they were trying to conceal something. Once the officer saw one of the passengers reach for a gun, he drew his weapon and ordered the occupants out. This resulted in the discovery of contraband.

In determining whether the officer conducted a valid Rule 3.1 investigatory stop, the court cited to White, supra, and Lambert, supra, to hold that the anonymous tips in and of themselves were insufficient to give the officer reasonable suspicion to conduct an investigatory stop. “Had this been a case where [the officer] stopped, detained, and then arrested [the appellant] solely on the basis of the anonymous tips, we would reverse the trial court.” Hammons, supra. However, the court concluded that the officer’s pulling up to the vehicle was a mere Rule 2.2 encounter, and that subsequent developments in the parking lot gave the officer reasonable suspicion to warrant a Rule 3.1 stop.

Taking all of these cases into consideration, it is clear that the informant in the present case was more than an anonymous informant. It is undisputed that Smith provided the police with his name, address, and occupation. In discussing victim-witness informants, Professor LaFave observes that courts “quite frequently” find that information is presumed reliable when it comes from an identified person. Wayne LaFave, Search & Seizure § 3.4(a) (3d ed. 1996). For example, in State v. Evans, 692 So.2d 216 (Fla. Dist. Ct. App. 1997), a McDonald’s employee phoned in a call to the police that a patron smelled of alcohol and was intoxicated. An officer came to the McDonald’s and the employee pointed out the vehicle that the patron was driving. The officer later stopped the suspect and the Florida Court of Appeals held that the officer had reasonable suspicion to conduct the stop. In rejecting the appellant’s contention that the caller was an “anonymous informant,” the Evans court emphasized that the caller “provided her name, location, and occupation to the police.” Id. Although the investigating officer did not have all of this information given by the caller to the dispatcher, it was imputed from the dispatcher to the officer. Even considering only what the officer actually knew, the caller’s identity was “readily ascertainable” because the officer knew that the caller was a McDonald’s employee and the two acknowledged each other on the scene. “The cases support the proposition that an informant’s actual name need not be known so long as her identity is readily discoverable.” Id. (citing Lachs v. State, 366 So.2d 1223 (Fla. Dist. Ct. App. 1979) (“This was not an anonymous tip from an unknown tipster, it was a telephoned complaint from an identified citizen who gave his occupation and address, the latter well-known to the police.”)).

While it is true that the Arkansas Court of Appeals in Evans v. State, supra, declined to hold that a telephone tip from a person who identified herself by name and telephone number was reliable, the case is distinguishable from the present case in all significant respects. Evans v. State involved probable cause to make a warrantless entry into a residence. Moreover, the caller was relaying information that she did not personally observe, and no criminal activity was discovered at the address provided. In fact, the Court of Appeals concluded that the police were simply conducting a random search of the area by entering the residence at issue.

In sum, none of the cases cited by Frette require us to hold that the information provided by an informant is per se unreliable simply because the information was provided over the telephone and the police had no prior dealings with the informant. Significandy, the tipster identified himself by name, address, and telephone number, allowing the police to ascertain the caller’s identity. Perhaps more importantly, Frette fails to recognize the different considerations present where information has been provided by a citizen or a witness to a crime, as opposed to informants who are typically unnamed police contacts and who are usually themselves criminals. Professor LaFave has noted that “[c]ourts are much more concerned with veracity when the source of the information is an informant from the criminal milieu rather than an average citizen who has found himself in the position of a crime victim or witness. . . . Basis of knowledge is likewise less of a problem in the victim-witness case, for by definition the victim or witness is reporting first-hand knowledge.” LaFave, supra at § 3.4(a). He also suggests that, at least with respect to veracity, the police should generally be allowed to assume that they are dealing with a credible person when an average citizen tenders information to the police. LaFave, supra at § 3.4(a).

This court has afforded added reliability to citizen-witness informants in various contexts. See Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997) (information from witness entitled to added reliability in making warrantless arrest even though witness had proven unreliable in a prior, unrelated criminal investigation); Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996) (considering sufficiency of information in affidavit giving probable cause to arrest — “no additional support for the reliability of witnesses is required where the witness volunteered the information as a good citizen and not as a confidential informant whose identity is to be protected.”); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983) (involving the reliability of the informants used in a search warrant’s supporting affidavit — informants were not “confidential informants” but rather “[t]hey volunteered information simply as good citizens. The police necessarily rely upon such information every day in the course of their work, without first exploring abstract issues of credibility. Hence no additional support for the reliability of [the informants] was required.”). In Brooks v. State, 40 Ark. App. 208, 845 S.W.2d 530 (1993), a citizen flagged down an officer and informed him that three people were in a car smoking crack. While the citizen was giving a description of the car to the officer, the car drove by. The officer followed the vehicle and it was stopped, resulting in the discovery of controlled substances and the appellant’s arrest. The Court of Appeals held that this was a valid investigatory stop under Rule 3.1. While the appellant alleged that the information forming the basis of the reasonable suspicion was an anonymous tip, the Brooks court rejected this argument emphasizing that the citizen spoke face-to-face with the officer, and provided a description of the vehicle, its occupants, and the license number. The citizen additionally identified the car as it drove by. “We think that the ‘indicia of reliability’ to justify the investigatory stop in this case was as great as that approved in Alabama v. White, [supra]. Brooks, supra.

Other jurisdictions have specifically dealt with citizen-witness informants who have reported incidents of people driving while intoxicated. In these cases, the officers had reasonable suspicion to justify an investigatory stop of the suspected drunk driver acting on the tip alone, without the officers having independently observed criminal activity on the part of the suspect. See, e.g., State v. Evans, supra; State v. Sailo, 910 S.W.2d 184 (Tex. Ct. App. 1995) (information given by unknown citizen-informant sufficient where citizen drove up to officer during traffic stop and told him about possible drunk driver approaching scene — officer sufficiently corroborated enough information to justify stop); City of Beachwood v. Sims, 647 N.E.2d 821 (Ohio Ct. App. 1994) (reasonable suspicion for investigatory stop where citizen-informer phoned that he was following a driver that was driving erratically — officer responded to address given by informant and informant pointed out vehicle to officer); State v. Bridge, 452 N.W.2d 542 (Neb. 1990) (investigative stop justified where informant, a fellow officer in the same department, communicated to the investigating officer that he had smelled alcohol on defendant’s breath and was concerned that he was driving intoxicated — description of vehicle and license number given); State v. Ege, 420 N.W.2d 305 (Neb. 1988) (gas-station employee approached officer and told her that he personally observed motorist drive over curb and smelled alcohol on the motorist’s breath while in service station — this provided “reasonable basis” for the officer’s investigative stop although officer did not observe traffic violations while she was following motorist); compare with People v. Donnelly, 691 P.2d 747 (Colo. 1984) (citizen-informer rule inapplicable where it was ambiguous whether the “witness’s” knowledge of the drunk driver came from first-hand knowledge).

In State v. Bybee, 884 P.2d 906 (Or. Ct. App. 1994), the police received a call from a convenience-store employee who reported as follows:

[I] wanted to report a drunken driver. [I’m] working down here at Ninth Street 7-11. He came in just a minute ago. He’s driving a blue, looked like a MG, an older little sports car convertible rag top.

The caller then gave the vehicle’s license number, “RYG 126,” and the direction the car was heading on a particular street. An officer who received the dispatch noticed a blue convertible heading the same direction on the street given in the dispatch. While he observed no unusual driving patterns, he stopped the vehicle solely because of the report he received from the dispatch. He reported that the correct license number was “RYC 126”; the driver was arrested for DUI.

The Oregon Court of Appeals held that the officer had reasonable suspicion to justify the stop under the totality of the circumstances. When reasonable suspicion is based solely on a citizen-informant’s report, the report must contain some indicia of reliability. Three factors in determining indicia of reliability are as follows: 1) whether the informant was exposed to possible criminal or civil prosecution if the report is false; 2) whether the report is based on the personal observations of the informant; and 3) whether the officer’s personal observations corroborated the informant’s observations. Id. The first factor is satisfied whenever a person gives his or her name to authorities or if the person gives the information to the authorities in person. Id. With regard to the second factor, “an officer may infer that the information is based on the informant’s personal observation if the information contains sufficient detail that ‘it [is] apparent that the informant had not been fabricating [the] report out of whole cloth. . . [and] the report [is] of the sort which in common experience may be recognized as having been obtained in a reliable way.’” Id. (quoting Spinelli v. United States, 393 U.S. 410 (1969)). The third and final element may be satisfied if the officer observes the illegal activity or finds the person, the vehicle, and the location as substantially described by the informant. Bybee, supra.

The Bybee court examined these factors and concluded that the informant’s report had sufficient indicia of reliability. First, the clerk gave his name, location, and number to the police, exposing himself to liability if the report proved false. Second, portions of the clerk’s report indicated that he had personally seen the defendant, “he came in just a minute ago,” “he’s driving,” “he was heading South on Ninth.” Bybee, supra. Finally, the officer was able to corroborate the informant’s observations; he saw a small blue convertible driving on the same street and in the same direction as reported.

The same court reached the opposite result in State v. Villegas-Varela, 887 P.2d 809 (Or. Ct. App. 1994), where the officer received a dispatch that a caller had reported an “intoxicated driver operating a small red vehicle with four subjects in it. The vehicle was driving erratically all over the road.” The caller gave the vehicle’s license number, but failed to disclose his location, the suspect vehicle’s location, or a description of the occupants. Additionally, the caller did not identify himself, stating only that he was a member of a particular citizens’ watchdog group. An hour later, the officer followed a red vehicle with four occupants into a parking lot, even though he did not observe any traffic violations. The license number matched the one called in, and the defendant, an occupant, was ultimately arrested for DUI.

The Villegas-Varela court concluded that the trial court erred in denying the appellant’s motion to suppress. In examining whether the citizen’s report contained indicia of reliability under the three factors outlined above, the court determined that it did not. First, the informant did not give his name or telephone number to the dispatcher. Thus, the informant was not exposed to civil or criminal liability if the report proved false. Second, the officer did not sufficiently corroborate the information provided. While he saw a small red car with four occupants, the caller did not give a description of the defendant or any of the car’s occupants, and did not give a location of the car or its direction. “[W]e cannot say that the defendant and his car were found at a time and location consistent with their location at the time of the report. Consequently, we cannot say that [the officer] corroborated the report when he saw a small red car driving south on Portland Road 80 minutes later.” Id. Given these two factors, the officer lacked reasonable suspicion to stop the defendant’s car.

In Kaysville City v. Mulcahy, 943 P.2d 231 (Utah Ct. App. 1997), Dewyane Olsen reported to the police that a drunk individual had been at his front door and had driven away in a white car, “a Toyota Célica, maybe.” Olsen said that the car left his subdivision and stated that it was going “east” “on the main road that goes in front of Davis High School.” Olsen believed that the driver’s name was Joe, and he gave the dispatcher what he thought was Joe’s phone number. An officer near the high school saw a white car “as described in the dispatch.” After stopping the car and speaking with the driver, the officer smelled alcohol and arrested the driver for DUI.

The Mulcahy court framed the issue as “whether reasonable suspicion may be based on an informant’s report of a drunk driver, absent corroboration by a police officer of traffic violations or intoxication.” Id. Like the Oregon Court of Appeals above, the Utah Court of Appeals used three factors in determining the reliability and sufficiency of the informant’s report. The first factor was the “type of tip or informant involved.” By contrast to an anonymous caller, “an identified ‘citizen-informant’ is high on the reliability scale,” and “[t]he ordinary citizen-informant needs ‘no independent proof of reliability or veracity.’” Id. The second factor was “whether the informant gave enough detail about the observed criminal activity to support a stop.” Id. Regarding this factor, the court noted that a tip is more reliable if the informant observed the details personally, as opposed to passing on information from a third party. The final factor considered is whether the officer’s personal observations confirm the informant’s tip.

Applying these factors, the Mulcahy court noted that Olsen was an identified citizen-informer, providing information as a witness. By giving his name and address, he exposed himself to prosecution for making a false report. Second, Olsen’s description was sufficiently detailed — he reported a “drunk individual” at his front door who drove off in a white car (possibly a Celica) out of the subdivision on the main road in front of the high school. Moreover, Olsen personally observed these details. Finally, the officer corroborated the informant’s report by finding “the described vehicle going in the direction and on the highway reported by the caller,” only a few minutes after the dispatch. Id.

Before turning to the analysis in the present case, we would be remiss in not first emphasizing the significant policy considerations present where a tip reports a driver who is drinking. This court has previously recognized the magnitude of the State’s interest in eliminating drunk driving in comparison to relatively minimal intrusions on motorists. See Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). In balancing the rights of a motorist to be free from unreasonable intrusions and the State’s interest in protecting the public from unreasonable danger, one court has stated that “[a] motor vehicle in the hands of a drunken driver is an instrument of death. It is deadly, it threatens the safety of the public, and that threat must be eliminated as quickly as possible. . . . The ‘totality’ of circumstances tips the balance in favor of public safety and lessens the. . . requirements of reliability and corroboration.” Mulcahy, supra, (quoting State v. Tucker, 878 P.2d 855 (Kan. Ct. App. 1994)).

The three-factored approaches adopted by the Oregon and Utah Courts of Appeals provide a useful analytical framework in the present case. First, Smith, a citizen informant, identified himself by name, address, and occupation, exposing himself to potential prosecution for making a false report. See Ark. Code Ann. § 5-54-122 (Repl. 1993). As such, Smith’s tip ranks high on the reliability scale — more than an anonymous caller or a confidential informant from the “criminal milieu.” Second, it is undisputed that Smith personally observed the alleged criminal activity, providing a basis of knowledge for the tip. Finally, Officer Kwano’s own observations substantially corroborated Smith’s report. He arrived at the exact location specified by Smith, only minutes after the tip was received. While there, he discovered the described vehicle with an older man sitting in the cab. Accordingly, we conclude that under the totality of the circumstances, Smith’s tip carried with it sufficient indicia of reliability to justify an investigatory stop under Rule 3.1. The trial court did not clearly err in denying Frette’s motion to suppress.

Affirmed; Court of Appeals reversed.

Robert L. Brown, Justice,

concurring. I disagree that

when Officer Kwano ordered or requested Paul Frette to come down from the cab of his truck, this was a seizure. The dispatcher of the Springdale Police Department had received a tip from a Jerry Smith, who identified himself as an out-of-state truck driver. Smith told the police dispatcher that Frette was drinking beer in the cab of his truck. As the majority makes clear, the Springdale Police Department had had no prior dealings with Jerry Smith. Clearly, the tip could have been as bogus as it could have been real. The information needed to be verified.

Officer Kwano was dispatched to the scene to investigate. He found an unidentified person sitting in the cab of a truck but saw no beer. He ordered him down from his cab in order to assess the situation further. At this point, Officer Kwano was operating, in my judgment, under Rule 2.2(a) of the Arkansas Rules of Criminal Procedure:

(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.

I cannot conclude that at this moment Frette’s liberty was restrained by show of physical force or authority so as to constitute a seizure. See Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990). Frette was told to come down from his cab. This was for the purpose of answering questions and assessing his condition. Whether Officer Kwano requested he come down from his cab or ordered him down seems more a question of semantics than a pivotal distinction to me under these circumstances.

Once Frette was out of the cab and face-to-face, Officer Kwano detected the smell of alcohol and noticed that Frette was unsteady on his feet. With this added information, he had reasonable suspicion to stop and detain Frette under Ark. R. Crim. P. 3.1. Field sobriety tests were administered which Frette failed, and he was arrested.

This progression from a tip to a Rule 2.2 investigation to a Rule 3.1 stop-and-detention to an arrest is precisely what this court recently approved in Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997). In Hammons, the tip was that “Wild Bill,” who had sold drugs to the caller’s roommate and a woman named Shannon Smith, was coming to Fort Smith to sell methamphetamine. He would be driving a black 70 or 80 model Corvette. He was described as being in his late 30’s or early 40’s, of slender build, and with a moustache and beard. A second anonymous caller said Wild Bill would be at a particular bar in Fort Smith on a certain night.

A Fort Smith police detective was dispatched to the parking lot of that bar on the suspected night. He approached a black Corvette in his police car and when he saw a man in the Corvette scramble and pull out what he thought was a gun, he activated his blue lights. That constituted a stop. After the stop, what was believed to be methamphetamine was found on Hammons, and he and his companion were arrested.

We affirmed the denial of Hammons’s motion to suppress because the two anonymous calls led the police detective to the parking lot for further investigation under Rule 2.2. The same holds true in the instant case — the unverified tip warranted further investigation. At the parking lot in Hammons, the police detective first saw nothing unduly suspicious. In the instant case, Officer Kwano did not see Frette with a beer. Then, in Hammons the detective saw scrambling and what he thought was a gun which gave him reasonable suspicion to stop and detain the car’s occupants under Rule 3.1. Similarly, the odor of alcohol on Frette and his unsteadiness on his feet gave Officer Kwano reasonable suspicion to stop and detain the man. Drugs were found in Hammons’s possession which led to his arrest. Here, Frette failed the field sobriety tests and was arrested. The case of Hammons v. State, supra, provides the blueprint for police actions in situations where the tip is open to question, and I would follow it.

The question arises whether a police officer, under this reasoning, could order anyone out of a vehicle for any purpose. The answer, of course, is no. But in this case, the tip provided a basis for further investigation and, without question, the information relating to a potentially inebriated truck driver needed to be checked out immediately and thoroughly.

I would affirm, but for the reasons stated in this opinion.


author: Annabelle Clinton Imber, Justice.

text:
    Laura SHERWOOD v. Hon. Don E. GLOVER, Judge
    CR 97-268
    958 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998
    [Petition for rehearing denied February 19, 1998.]

      Katharine C. Day, for petitioner.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for respondent.
   Annabelle Clinton Imber, Justice.

Petitioner, Laura Sherwood, seeks a writ of prohibition to prevent the Ashley County Circuit Court from trying her on three criminal charges. Sherwood alleges that the Ashley County Circuit Court denied her motion to dismiss the charges on speedy-trial grounds, and she now presents her petition to this court pursuant to Ark. R. Crim. P. 28.1, which provides that criminal charges must be dismissed if the defendant is not tried within twelve months. We must deny the writ because the record and abstract do not contain all the information necessary for us to resolve the issues presented in Sherwood’s petition.

It is well settled that the appellant, or the petitioner as in this case, bears the burden of producing a record and an abstract sufficient for our review. Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997); Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997). In several other speedy-trial cases we have clarified that a petitioner seeking a writ of prohibition must produce a record sufficient to show that the writ is clearly warranted. Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994); Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994). Sherwood has failed to include in the record a transcript of the hearing, the court’s findings, and the order in which the court concluded that the State had not violated her right to a speedy trial. Hence, as in Davis and Beasley, we must deny the petition without addressing the merits because Sherwood has failed to produce a record that demonstrates that the writ is clearly warranted.

In addition, Sherwood’s abstract is flagrantly deficient in two respects. First, pursuant to Ark. Sup. Ct. R. 4-2(a)(6), the abstract must contain a summary of all the documents necessary for us to obtain an understanding of the questions presented for review. Lewis v. State, 330 Ark. 618, 955 S.W.2d 904 (1997); Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996). For example, in Dixon v. State, 314 Ark. 378, 863 S.W.2d 282 (1993), we refused to address the merits of a speedy-trial argument because the petitioner failed to include in his abstract the evidence presented during the hearing, the trial court’s findings, and the court’s written order. Without this information, it was impossible for us to determine whether the trial court erred in denying the speedy-trial motion. Id. In this case, Sherwood has failed to abstract the evidence presented during the speedy-trial hearing, the court’s findings, and the court’s written order. Flence, as in Dixon, we are unable to conduct a meaningful review of the trial court’s ruling on her motion to dismiss.

Moreover, the documents which Sherwood has included in her abstract are improperly summarized. Arkansas Supreme Court Rule 4-2(a)(6), declares that:

the document or the necessary portions of the document must be abstracted. Mere notation such as “plaintiff s exhibit no. 4” is not sufficient.

In King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996), we recently held that an abstract was flagrantly deficient under Ark. Sup. Ct. R. 4-2, when the appellant merely listed the names of the pleadings and orders without summarizing their contents. As in King, Sherwood’s abstract only contains a list of pleadings and the date on which they were filed without summarizing the contents. Granted, Sherwood does refer to the contents of these documents throughout the body of her argument. We, however, have continuously held that scattered references to the record contained in the argument portion of the brief are not sufficient to meet the court’s abstracting requirements under Ark. Sup. Ct. R. 4-2. Lewis v. State, 330 Ark. 618, 955 S.W.2d 904 (1997); National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997).

For these reasons, we summarily deny Sherwood’s petition for a writ of prohibition.


author: Ray Thornton, Justice.

text:
    Michael DEAN v. The Honorable Dick TALLMAN, Country Judge of Sevier County, Arkansas; Quorum Court Members, Dale Kesner, Rose Pulliam, Minor L. Millwee, Sybil Melancon, Gene Cobb, Maudeen Brinkley, Michael Archer, Ronnie Turner, LaVerne Corbell; County Treasurer, Irma L. Walters; Phillip Cox, Mayor of DeQueen; Borden Neal, Mayor of Horatio; Don Smith, Mayor of Gillham; Loyd Montgomery, Mayor of Lockesburg; Gary Moore, Mayor of Ben Lomond; and State of Arkansas
    97-72
    959 S.W.2d 41
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      Nichols, Wolff, Ledbetter & Campbell, by: H. Gregory Campbell and Mark W. Nichols, for appellants.

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray and R. Christopher Lawson, for appellees Tallman, Kesner, Pulliam, Millwee, Melancon, Cobb, Brinkley, Archer, Turner, Corbell, and Walters.

      Timothy Davis Fox, for the City appellees.
   Ray Thornton, Justice.

This is an appeal of a chancellor’s order granting defendant-appellees’ motion for summary judgment in an illegal-exaction case. Appellant Michael Dean contends that when an ordinance of the county quorum court states a specific purpose for the tax proceeds, and the voters pass that ordinance, the State is precluded from distributing the proceeds to the county and cities of that county pursuant to the statutory per capita-distribution formula. The chancehor’s order granted summary judgment to less than all the defendants without making an express determination that there was no just reason to delay an appeal. As a result, the order is not final under the provisions of Ark. R. Civ. P. 54(b), and we do not have jurisdiction. We therefore dismiss the appeal without prejudice.

Dean filed suit against the State of Arkansas and sixteen other defendants in their official capacity. Eleven of the defendants were officials of Sevier County and five were officials of the cities of that county. The chancellor’s order granted summary judgment only to the State and County defendants.

To be appealable, an order must be final. Ark. R. App. P.—Civil 2. The finality of a trial court’s judgment is governed by Ark. R. Civ. P. 54(b), which provides that a trial court may direct entry of final judgment as to fewer than all the parties to a multiparty suit, as long as the court expressly determines, with factual findings, that there is no just reason to delay the appeal. In the absence of this determination and findings, an order is not final when it “adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties.” Id. The underlying policy of this rule is to avoid piecemeal appeals. General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 646, 887 S.W.2d 292, 295 (1994). The appellants carry the burden of producing a record on appeal that shows the jurisdictional requirements of the rule have been met. Cortese v. Atlantic Richfield, 317 Ark. 207, 209, 876 S.W.2d 581, 582 (1994).

Dean did not produce a record showing that the jurisdictional requirements of Rule 54(b) have been met. The City defendants did not join in the motion for summary judgment, and we could find nothing in the abstract or the record to reflect some final action as to them. Without Rule 54(b) findings, we simply do not know what issues remain to be resolved. In fact, the City defendants raise an unresolved issue in their brief to this court. In their brief, the City defendants argue that “[t]he voluntary payment rule prevents the refund of taxes paid prior [to the time] when the City appellees were named in the second amended complaint as parties to this action.” In addition, during oral argument, counsel for these defendants stated, that despite his desire to see this court decide the case on its merits, there were several issues yet to be resolved. These statements illustrate the very harms that this rule seeks to avoid. Were we to decide this case on its merits, the City defendants could have cause to bring another appeal. Despite the desires of all the parties to have this case decided on its merits, we cannot waive subject-matter jurisdiction. Skelton v. City of Atkins, 317 Ark. 28, 30-31, 875 S.W.2d 504, 506 (1994) (citing Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976). We therefore dismiss without prejudice. Kinkead v. Spillers, 327 Ark. 552, 555, 940 S.W.2d 437, 439 (1997).


text:
    Steven L. FREEMAN v. STATE of Arkansas
    CR 97-640
    959 S.W.2d 400
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      J. Sky Tapp, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

On December 13, 1995, appellant Steven Lynn Freeman was charged with raping Brandi Galley on or about September 15, 1995. Freeman waived his right to a jury trial. After a July 8, 1996 bench trial, he was convicted of rape, a Class-Y felony. Freeman failed to appear for sentencing on four separate occasions. He was finally sentenced on February 18, 1997, to forty years in the Arkansas Department of Correction for the rape conviction. The trial court ordered this sentence to run concurrently with sentences imposed for prior hot-check convictions and the failure to appear charges. From his conviction on the rape charge, Freeman brings this appeal. We find no reversible error and affirm.

On appeal, Freeman alleges that the trial court erred in denying his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997). In reviewing a denial for a motion for a directed verdict, we view the evidence in the light most favorable to the State and may consider only the evidence that supports the verdict. Id. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. Evidence is substantial if it is force&l enough to compel a conclusion one way or the other beyond speculation and conjecture. Id.

In his motion at the close of the State’s case, Freeman argued that the trial court should direct a verdict in his favor because Galley’s testimony was replete with inconsistencies and uncertainties. He generally renewed all of his motions at the close of the evidence. On appeal, Freeman argues that the trial court erred in denying his motion because the State failed to prove that he used forcible compulsion, a required element of the charge. Since this was a bench trial, the defendant was not required to move for a directed verdict to preserve the sufficiency of the evidence issue. Strickland v. State, 322 Ark. 312, 317, 909 S.W.2d 318, 320-21 (1995). The defendant was also not required to apprise the court in a bench trial of the particulars of his claim that the evidence is insufficient. Id. Therefore, we may consider Freeman’s argument on appeal.

Freeman was charged with rape under Ark. Code Ann. § 5-14-103(a) (Repl. 1997), which reads as follows:

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion; ....

In the instant case, it was not disputed that Freeman engaged in sexual intercourse with Galley. Rather, the element of “forcible compulsion” was the main issue at trial.

The Code defines “forcible compulsion” to mean “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1997). We have further defined “physical force” as “any bodily impact, restraint or confinement, or the threat thereof.” Strawhacker v. State, 304 Ark. 726, 731, 804 S.W.2d 720, 723 (1991). The test that we have used to determine whether there was force is “whether the act was against the will of the party upon whom the act was committed.” Mosley v. State, 323 Ark. 244, 249, 914 S.W.2d 731, 734 (1996).

On appeal, Freeman asserts that Galley’s testimony was insufficient to prove the element of forcible compulsion. In so arguing, Freeman seeks to place this court in the position of reweighing the credibility of the witnesses at the trial court, and this we cannot do.

It is well settled that appellate courts do not weigh the credibility of witnesses. Caldwell v. State, 319 Ark. 243, 246, 891 S.W.2d 42, 44 (1995). Rather than reweighing the evidence presented at trial, we determine whether there is substantial evidence to support the lower court’s findings. Mauppin v. State, 314 Ark. 566, 568, 865 S.W.2d 270, 271 (1993). We have held many times that the uncorroborated testimony of a rape victim is sufficient to sustain a conviction. Puckett v. State, 324 Ark. 81, 87, 918 S.W.2d 707, 710 (1996).

In this case, Galley testified that Freeman forced her into the booth at their place of employment and pinned her down in order to have sexual intercourse. The State offered into evidence photographs of bruises on Galley’s upper arms that, according to the examining physician testimony’s at trial, were symmetrical and approximately the “size of a thumb.” The physician further testified that these bruises would be consistent with someone grabbing Galley by the arms and forcibly holding her down. The trial court premised its finding of guilt upon two pieces of evidence that it considered highly persuasive. First, it looked at the bruises on Galley’s arms. Second, it gave weight to the testimony of Galley’s boyfriend Kenneth Hall that, during a phone call the evening of the incident, he heard a male voice in the background telling Galley to get off the phone and he heard her responding “get off of me.” The trial court concluded that the intercourse was forcibly compelled against Galley’s will.

To affirm, we must find that this evidence is forceful enough to compel reasonable minds to reach the same conclusion as the trial court. See Williams v. State, 329 Ark. at 16, 946 S.W.2d at 682. In Mosley, where the appellant was likewise challenging the sufficiency of the evidence supporting the forcible-compulsion element of rape, we again said that a victim’s testimony alone will suffice to sustain a rape conviction and need not be corroborated. Mosley, 323 Ark. at 249, 914 S.W.2d at 734. We further determined that the victim’s testimony in that case, which was corroborated by the testimony of the medical and police examiners, met the test of showing that the act was against her will. Id. We said that the trier of fact is free to believe all or part of a witness’s testimony. Id. at 250, 914 S.W.2d at 734. Noting that the jury obviously chose to believe the victim’s testimony over Mosley’s, we concluded that the State’s evidence was sufficient to prove forcible compulsion. Id.

The facts in this case are similar to Mosley in that Galley herself testified that Freeman inflicted two bruises on her upper arms, and the examining physician’s testimony supported this testimony. The trial court obviously believed Galley’s testimony and gave substantial weight to the evidence that the State presented. To the extent that Galley’s testimony contained inconsistencies, this is a matter of credibility for the trier of fact to resolve. Puckett, 324 Ark. at 87, 918 S.W.2d at 710.

We conclude that the trial court did not err in finding that Galley’s testimony constituted substantial evidence that the act was committed against her will. Accordingly, we affirm.