author: Jack Holt, Jr., Chief Justice.

text:
    Gene Williams HODGE v. STATE of Arkansas
    CR 90-62
    797 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered October 22, 1990

      Kirkpatrick and Horan, by: Matthew Horan, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Gene William Hodge, was convicted of possession with intent to deliver methamphetamine, and sentenced to life imprisonment and a fine of $50,000.

Hodge raises six points of error on appeal. Since we find merit in Hodge’s first argument, that the verdict was not supported by legally sufficient evidence, we need not address the remaining points of error.

On December 27, 1988, Arkansas undercover police arrested Rick Spears for selling narcotics. Spears agreed to cooperate with the police in establishing a case against Hodge. The same evening, Spears, wearing a police wire, went to Hodge’s residence to arrange a buy of one ounce of methamphetamine, or “crank.” Hodge related that he did not have any on hand and attempted to reach his suppliers, “Bo and Belinda,” by phone. The call was unsuccessful but Hodge told Spears he would contact Bo and Belinda and obtain an ounce the following day.

On December 28, 1988, Spears called Hodge and they agreed to meet at 6:30 p.m. to consummate the sale. Police set up surveillance of Hodge that afternoon. They followed him from his girlfriend’s residence to nearby Sallisaw, Oklahoma, where he stopped in the parking lot of a truck stop. Shortly thereafter, Bo Bates and Belinda Flowers, recognized by one of the surveillance officers as a couple previously arrested for running a drug lab, arrived in a pickup truck. Hodge left his car and joined Bates and Flowers in the truck. After approximately fifteen minutes, Hodge and Flowers emerged from the truck, got in Hodge’s car and drove to the state line, heading for Fort Smith, Arkansas.

On the Arkansas side of the bridge, as Hodge and Flowers entered Fort Smith, waiting police signalled for Hodge to stop his car. Hodge accelerated and prompted a high speed, sixteen block chase through town. The state presented evidence that Hodge’s car may subsequently have begun leaking transmission fluid, causing it to stop. Hodge and Flowers were then arrested. A search of the vehicle and its occupants revealed only a small amount of marijuana in Flowers’ purse and thirty to forty dollars in Hodge’s possession.

After Hodge and Flowers were incarcerated, a police officer retraced the route of the chase and, halfway back along the route, scattered up to twenty-five feet beyond an intersection where Hodge had turned, he found an empty “Pringles” potato chip can and two “Ziploc” bags containing a total of what was later identified as approximately two ounces of methamphetamine.

In criminal cases on appeal, where the appellant challenges the sufficiency of the evidence, we will affirm the trial court’s decision if there is substantial evidence to support the findings. See Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). We note, at this juncture, that the state makes no attempt to argue the facts of the case before us in its brief but merely relies on its conclusory contention that the evidence was sufficient. We conclude, however, from the presented facts, that the evidence was not sufficient and that the jury could not have reached its guilty verdict without resorting to suspicion and conjecture.

Hodge was charged with possession with intent to deliver methamphetamine. We have often said that proof of actual or physical possession is not required. See Wade v. State, 267 Ark. 1101, 594 S.W.2d 43 (1980). A person can be in constructive possession of contraband when he either maintains control or a right to control. See Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986).

We have established the requisite proof for constructive possession in a long line of cases concerning joint occupancy. Where contraband is discovered in jointly occupied premises, and there is no direct evidence that it belongs to a particular occupant, some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband. See Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). The same analysis applies here. Certainly, where narcotics are found in an area entirely outside the control of the defendant and exposed to the public at large, the state must provide more definite factors linking the defendant to the contraband than were provided here.

The evidence presented by the state, to link Hodge to possession of the methamphetamine found on the roadside, included the taped conversations between Hodge and Spears; Hodge’s meeting with known drug dealers, Bo Bates and Belinda Flowers; and the fact that Hodge fled from the police.

The evidence presented by Hodge, however, cast overwhelming doubt on his connection to the methamphetamine. Police saw no exchange of contraband or money between Hodge, Bates, and Flowers, and no narcotics or large sums of money were found in Hodge’s possession. The officer chasing Hodge saw nothing dropped or thrown from the car, although he testified he was following only two car lengths behind. In addition, the amount of contraband discovered far exceeded the intended purchase of one ounce agreed on by Hodge and Spears.

Hodge further demonstrated that the chase route was heavily travelled, with over 800 cars a day passing by the specific intersection where the drugs were discovered.

Several sets of fingerprints were lifted from the “Ziploc” bags and the “Pringles” can but none matched those of Hodge or Flowers. (The state, in submitting the Pringles can into evidence, proposed the tenuous theory that if Hodge and Flowers had been eating potato chips, the greasy residue left on their fingers would preclude them from leaving prints.) When the state introduced the bags of methamphetamine in court, the substance emitted an extremely strong odor, typical of this type drug; however, no such odor was detected either in the car or about'Hodge and Flowers. Lastly, following his arrest, Hodge was surreptitiously recorded and quizzed about the crime, and denied he was carrying drugs on the evening in question.

Simply put, the state’s evidence fails to link Hodge to constructive possession of the methaphetamine. Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. See Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986); Murry v. State, 276 Ark. 372, 635 S.W.2d 237 (1982). The state’s evidence of constructive possession in this case is, in fact, entirely circumstantial. Although it impels the strong suspicion that Hodge was in possession of the contraband, the question is whether such a suspicion is sufficient enough to support a conviction.

Our analysis is similar to that employed by the Illinois Supreme Court in People v. Jackson, 23 Ill. 2d 360, 178 N.E.2d 320 (1961). In Jackson, state narcotics officers obtained a search warrant for Jackson’s third floor apartment. When the officer presented the warrant at the door of Jackson’s apartment, she fled down the hall and locked herself in the bathroom. When she finally emerged and was arrested, after a prolonged struggle, a search was conducted of the bathroom and the apartment. No contraband was discovered. However, several bags of heroin were later found lying directly beneath the bathroom window, on the ground floor, in an airwell which was covered with debris. Seven other apartments also had windows opening on the airwell. No fingerprints on the bags were introduced by the state.

Basing its decision on insufficiency of the evidence, the court reversed Jackson’s conviction and held that while there was a strong possibility that Jackson was in possession of the heroin, mere probability would not support a conviction. The court held that the state satisfies its burden when it proves possession (which may be constructive), together with knowledge of such possession. Although Jackson’s suspicious conduct was proof of guilty knowledge, it does not extend to proof of criminal possession. Jackson, supra.

We hold that the circumstantial evidence was insufficient to convict Hodge of possession with intent to deliver methamphetamine. “No one should be deprived of his liberty or property on mere suspicion or conjecture. Where inferences are relied upon, they should point to guilt so clearly that any other conclusion would be insufficient. This is so regardless of how suspicious the circumstances are.” Ravellette v. State, 264 Ark. 344, 347, 571 S.W.2d 433, 435 (1978).

Reversed and dismissed.

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


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Thomas BUTLER and Stacy Romand Butler v. STATE of Arkansas
    CR 90-86
    797 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered October 22, 1990

      Willard Proctor, for appellant Thomas Butler.

      Robert L. Scull & Associates, by: Robert L. Scull, for appellant Stacy Romand Butler.

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

Appellants, Thomas Butler and his son Stacy Butler, were jointly tried and found guilty of delivery of fourteen ounces of cocaine. The father, Thomas Butler, was sentenced to forty years in prison, and the son, Stacy, was sentenced to twenty years. Each has filed a separate appeal. We affirm both judgments of conviction in this one opinion.

Both appellants argue that the trial court erred in refusing to sever their cases. The factual background for the argument may be summarized as follows. An undercover agent called Stacy and asked to purchase $15,000 worth of cocaine. Stacy responded that he could handle the sale. The agent drove to Stacy’s house, picked Stacy up, and they went to a restaurant to discuss the sale. Stacy said he would need to talk to his “source.” At Stacy’s request the agent took Stacy to the University Tower Building. Stacy’s father, Thomas, a bond salesman, had an office in the University Tower Building. The agent went back to his motel room. Stacy later came to the motel room and reported that fourteen (14) ounces of cocaine would be there shortly. Almost three hours later Thomas drove Stacy’s car onto the motel parking lot. Stacy waved to Thomas and invited the agent to go to the car and examine the quality of the cocaine. The agent went to the car and asked Thomas if he had the cocaine. He responded that he did. Thomas then handed the agent fourteen (14) ounces of pure (89.2% base) cocaine. Thomas admitted at trial that he told the agent he had sold approximately 120 kilos of cocaine the year before and was attempting to turn the business over to Stacy who was preparing to go to Kansas City to negotiate a sale of two kilos of cocaine.

Thomas and Stacy were jointly charged with delivery of a controlled substance. Both employed Robert L. Scull as their attorney. A week before trial, Scull discovered that a conflict might exist between his clients and immediately suggested that Thomas get another attorney. Thomas employed Willard Proctor. Both then filed motions asking that the joint charge be severed because (a) their defenses were antagonistic and (b) Thomas’s statements were not admissible against Stacy. The trial court denied the motion.

At trial, Thomas testified that Stacy had the cocaine hidden in their apartment but he did not know it. According to Thomas, Stacy had asked him to bring a box of tapes to the motel. When Thomas opened the box he realized it contained cocaine. Thomas stated that he realized Stacy was trying to make some money by selling cocaine and that Stacy’s life might be in danger if he did not deliver the cocaine. “I did know it was enough quantity to where somebody could get hurt over it.” He further stated that he saw how rough the purchaser looked and he thought “this guy can take this stuff and blow both of us away. So I started talking to him about what Stacy would be able to do for him later. I was thinking at the time that if I can get him to figure that it’s worth it to not do anything to us and deal with us down the line then we got a chance to get out of here.” Stacy did not testify.

Both appellants contend their defenses were antagonistic, and that the trial court erred in refusing to grant a severance. The appellants filed their motions prior to trial, see A.R.Cr.P. Rule 22.1 (a), but neither presented any evidence at that time. Accordingly, we will not review the trial court’s decision refusing a severance prior to trial. We consider only the denial of the motion which was renewed at the conclusion of the testimony. See A.R.Cr.P. Rule 22.1(b). That evidence does not show antagonistic defenses.

Antagonistic defenses arise when each defendant asserts his own innocence and accuses the other of committing the crime. McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). One definition of antagonistic defenses is “when to believe one defendant, it is necessary to disbelieve the other.” McDaniel, 278 Ark. at 637. Here, neither defendant asserted his own innocence and accused the other of committing the crime. Stacy offered no defense whatsoever. His stand was not antagonistic to anyone. Likewise, Thomas offered no defense. His testimony was only an explanation of the reason he committed the crime. Thus, the defenses were not antagonistic. See Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051 (1984).

Both parties also contend the trial court erred in refusing to grant a severance because Thomas’s statements about other dealings in drugs were not admissible against Stacy. See A.R.Cr.P. Rule 22.3. The short answer to the argument is that the statements were made by a co-conspirator during the course and in furtherance of a conspiracy. A.R.E. Rule 801(d)(2)(v); Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). There need nót be a conspiracy count in the indictment to make the statement admissible. Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980). There was sufficient evidence to show there was a conspiracy. See Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978); AMI Criminal, 707. Appellant Stacy Butler also makes the same argument as a separate evidentiary argument. For the same reason, it has no merit.

Appellant Thomas Butler separately contends that the trial court erred in refusing to grant him a continuance. A motion for a continuance is addressed to the sound discretion of the trial judge, and his decision will not be reversed absent a clear abuse of discretion amounting to a denial of justice. Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983), affirmed, 280 Ark. 291, 658 S.W.2d 362 (1983). The burden is on the appellant to establish prejudice and an abuse of discretion in denying the continuance. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied, 469 U.S. 847. In exercising its discretion concerning a request for a continuance to obtain the presence of a witness, the following factors should be considered by the trial court: (1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Ark. Code Ann. § 16-63-402 (Repl. 1987); Kelley v. State. 261 Ark. 31, 545 S.W.2d 919 (1977). The denial of a motion which is not in substantial compliance with the statute is not an abuse of discretion. Kelley, supra; Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976).

Thomas contends that the trial court should have given him more time to get two witnesses, a Mac Walker and an unnamed waitress at a cocktail lounge. However, he showed no diligence whatsoever in trying to get them. Thomas had counsel for a considerable period before trial, first, Scull, then Proctor. There is no showing that he told either attorney of these supposed witnesses anytime before the motion for the continuance was requested. Additionally, they were never subpoenaed, the likelihood of procuring their attendance was not made known, and neither an affidavit nor a proffer of their testimony was given. No prejudice in refusing to grant the continuance is shown. Under the circumstances the trial court did not err in refusing to grant appellant’s request. See Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983).

Both appellants next argue that the trial court erred in refusing to grant a mistrial because a juror talked to Stacy’s mother. The conversation occurred after the State had rested its case. The incident was reported to the trial judge, and both the juror and Stacy’s mother were questioned to see if extraneous prejudicial information had been improperly given to the juror. See A.R.E. Rule 606(b). The record disclosed that the conversation consisted of a discussion of Stacy’s mother’s marital history, the weather, how young people get in bad company, and that the juror would pray for appellants’ family. The juror testified that she would be fair and impartial. Appellants both contend that the conversation shows that the juror already had decided that both appellants were guilty, and the trial judge erred in refusing a mistrial.

The juror had already heard the State’s case. After hearing that evidence, the trial court held that it was not an indication of unfair prejudice for a juror to comment that she would pray for the accused, especially when she indicated that she would keep an open mind as to appellants’ guilt or innocence until after she had heard all the evidence. Whether a juror is unfairly prejudiced is a question addressed to the sound discretion of the trial judge, and his determination in that regard will not be disturbed absent an abuse of that discretion. McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). The reason we give a great amount of discretion to the trial judge is that he is in a superior position to assess the possibility of prejudice. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). Here, we cannot say the trial judge abused that discretion.

Both appellants, who are black, next argue that the trial court erred when it refused to order the prosecutor to give racially neutral reasons for his alleged exercise of peremptory challenges of black veniremen. No error is shown. Neither appellant made any Batson type of objection during the selection of the jury. After the panel had been selected both of appellants’ attorneys announced the jury was “good.” The jury was sworn. The trial judge then excused the members of the venire who had not been taken on this case. The State made its opening statement. The appellants waived theirs. Then, as the State’s case-in-chief was beginning the appellants made a Batson motion. The trial court stated he wished to complete the testimony of the first witness before deciding the motion. After the first two witnesses had testified the court heard the motion. The trial court did not recall the race of veniremen who were peremptorily struck. He asked the appellants if they wanted to offer any evidence on the motion. They responded “no,” that it was up to the State to offer evidence because the State had peremptorily struck four black veniremen. The court again asked if they wished to present any evidence on the motion. Again, they declined. The trial court held that it was too late for the appellants to make their motion, and they had not established a prima facie case of purposeful discrimination.

The appellants did not make their motion until the struck jurors had left, and then did not offer any evidence concerning the race of the struck jurors. As a result, there is no record to show the race of the struck jurors or even if the State exercised peremptory challenges. Further, four of the jurors chosen were black. Clearly, the appellants have not brought up a record sufficient to demonstrate error. See Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986).

For the final point of appeal, appellant Stacy Butler contends the trial court erred in admitting some of the cocaine into evidence. The argument is wholly without merit. The State’s chemist testified that he received a box with fourteen (14) separate bags of white substance. He took a small sample from each bag and tested it. Each sample was determined to be pure cocaine. The chemist then placed each of the samples, along with the remainder in each of the fourteen (14) bags, into one large bag. The large bag was offered into evidence. Appellant objected because the cocaine was not in its original fourteen (14) bags. The objection was overruled, and appellant assigns the ruling as error. The ruling was correct. As a condition precedent to its introduction, the State showed the chain of custody and that reasonable precautions were taken against the risk of adulteration or contamination. See A.R.E. Rule 901(a).

Both judgments are affirmed.


text:
    Warren E. TUTHILL v. ARKANSAS COUNTY EQUALIZATION BOARD, John Johnson, Arkansas County Assessor, et al.
    90-64
    797 S.W.2d 439
    Supreme Court of Arkansas
    Opinion delivered October 22, 1990

      Berry & Mejia, for appellant.
    No brief filed.
   Robert H. Dudley, Justice.

This is an appeal from a circuit court judgment affirming the valuation of real property for tax purposes. In 1950, a building was constructed on three lots in DeWitt. In 1973, the three lots were sold to Charles Pattillo. The deed does not recite a sales price, but the deed stamps reflect a sales price of $35,000.00 for the three lots, along with three vacant lots. Thus, in 1973, the property with the building cost something less than $35,000.00.

In the early 1980’s the building was used as a retail business" building. The record does not reflect what amount of rent, if any, was paid by the renter. By 1987, the building was owned by Pattillo’s heirs and was empty. A “For Sale” sign had been on the building for a number of years. In April 1987, appellant sought to rent the building from the Pattillo heirs. They responded that they did not want to rent the building but, instead, wanted to sell it. Appellant made an offer of $50,000.00. The offer was refused. Three days later the owners asked appellant to negotiate further. He again approached them and, this time, offered $52,000.00 for the property. The owners accepted that offer and also offered to sell parts of the three vacant lots for an additional $2,500.00. Appellant accepted that offer. The Pattillo heirs executed a warranty deed to appellant and affixed deed stamps representing a consideration of $55,000.00. Appellant uses a major part of the building as a warehouse.

In 1987, the county assessor valued the lots at $123,187.00. Appellant protested the valuation to the county equalization board. The board reduced the valuation to $73,850.00 because the building was no longer used for retail purposes. Appellant appealed the board’s assessment for 1987 to the county court. The assessment was affirmed. Appellant appealed to the circuit court. Again, after hearing additional evidence about market value, the assessment was affirmed. Appellant now appeals to this court. We also affirm.

Article 16, section 5 of the Constitution of Arkansas, as adopted in 1980 by Amendment 59, provides in part:

[a] 11 real and tangible personal property shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.

The General Assembly, in Ark. Code Ann. § 26-26-1201(a) and (b) (1987), has provided:

Each separate parcel of real property shall be valued at its true market value in money. . . . The price at which real estate would sell at auction or at a forced sale shall not be taken as a criterion of the true value.

The Assessment Coordination Division of the Public Service Commission is given the power of supervision and control over the several county assessors and boards of equalization and review in order that assessments of property shall amount to true market value. Ark. Code Ann. § 26-24-101 and -102 (1987). To this end, the Assessment Coordination Division annually publishes a manual to be used by county appraisers. That manual recommends the use of three methods to arrive at a true, or market, value. They are (1) comparable sales, (2) capitalization of income, (3) cost less depreciation. It is best that an assessor use two or more of the methods as a gauge of the market value. Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W.2d 211 (1972).

Because of the separation of powers doctrine, it is not within the province of state courts to assess property. Cook v. Surplus Trading Co., 182 Ark. 420,31 S.W. 521 (1930). Courts can only review the assessments and reverse them and send them back to the executive department when they are clearly erroneous, manifestly excessive, or confiscatory. St. Louis—San Francisco Ry., Co. v. Ark. Public Serv. Comm’n, 227 Ark. 1066, 304 S.W.2d 297 (1957). We have said that we will reverse property assessments only in the “most exceptional cases.” Jim Paws, Inc. v. Equalization Bd. of Garland County, 289 Ark. 113, 710 S.W.2d 197 (1986). The burden of proof is on the protestant to show that the assessment is manifestly excessive or clearly erroneous or confiscatory.

In this case, appellant’s sole argument is that he paid $55,000.00 for the property. Certainly, the current purchase price is an important criterion of market value, but it alone does not conclusively determine the market value. An unwary purchaser might pay more than market value for a piece of property, or a real bargain hunter might purchase a piece of property solely because he is getting it for less than market value, and one such isolated sale does not establish market value. Here, appellant had the burden of proving that the assessment was clearly erroneous, but he failed to offer proof by the Pattillo heirs that the sale was not a forced one, and he did not offer any expert proof as to market value.

On the other hand, the assessor testified that he thought that the lots and building had a market value of $73,850.00. He arrived at that value by using the manual prepared by the Assessment Coordination Division. He testified that he used the “reproduction cost less depreciation” method of valuation. Using that method he found a reproduction cost of the improvement and then made an allowance for the age of the building. To that figure he added the value of the land. Using this method he determined that the building had a value of $5.31 per square foot and the land had a value of 500 per square foot. On cross-examination, the appellant did not question the methodology for valuation in the manual. The core of appellant’s cross-examination, and the response may be illustrated by the following:

Q. And there is no better comparative sale than the sale of that particular property itself, is there?
A. Right, but for tax purposes one sale does not make a market value.

We discuss the limited scope of cross-examination solely to point out that the trial judge was not made aware that the reproduction cost less depreciation method “almost invariably tends to inflate valuation,” 5 J. Sackman, Nichols’ The Law of Eminent Domain, §20.2[1] (3ded. 1969 and Supp. 1987), and is “inherently inflationary.” Jim Paws, Inc. v. Equalization Bd. of Garland County, 289 Ark. 113, 710 S.W.2d 197 (1986).

A real estate broker and appraiser with twenty-five years experience in the county testified as an expert witness for the appellee. He testified that in 1981 he appraised the property for the estate of Charles Pattillo, and based upon comparable sales at that time, reached a value of $150,000.00 for the property. He stated that the value of buildings in DeWitt had decreased since 1981, and he now values it at $89,500.00. He values the land at 500 per square foot and the building at $6.00 per square foot.

Cross-examination can be concisely summarized by the quotation of two questions and answers:

Q. But in this case we’ve got an actual sale of this property in question.
A. I appreciate that but I would think in—I—I’m of the opinion that that’s the subject property you’re appraising so therefore the comparable sales would have—this definition would tell you it would have to be other than the subject.
Q. So you would rather try to place a value on Mr. Tuthill’s property by looking at sales of other property rather than the actual sale of his property.
A. Yes.

This expert further testified that he thought the property likely would have sold at a higher price if a real estate agent had been employed.

The circuit court, after a trial de novo, affirmed the ruling of the county court. Such a holding by the circuit court necessarily implied a finding of fact that the assessed valuation was not clearly erroneous, manifestly excessive, or confiscatory. That finding of fact by the circuit court is now on appeal to this Court. We will not reverse a finding of fact by a trial judge unless it is clearly erroneous. Ark. R. App. P. 52(a). In reviewing a finding of fact by a trial judge, we view the evidence, and all reasonable inferences therefrom, in the light most favorable to the appellee. Union County v. Union County Election Comm’n, 274 Ark. 286, 623 S.W.2d 827 (1981). In so viewing the evidence we cannot say the finding of fact was clearly erroneous. Both the assessor’s and the expert witness’s testimony substantiated the reasonableness of the valuation. Their methodology in fixing value was not shown to have been flawed. In fact, the only evidence to the contrary was the purchase price, and, as previously set out, that is not conclusive of market value.

Affirmed.


author: Steele Hays, Justice. Tom Glaze, Justice,

text:
    Gary CRANFORD and Dixie Cranford v. STATE of Arkansas
    CR 89-148
    797 S.W.2d 442
    Supreme Court of Arkansas
    Opinion delivered October 22, 1990

      Baim, Gunti, Mauser, DeSimone, Robinson & Kizer, by: Maxie G. Kizer, for appellant.

      Stave Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This appeal is brought from a denial of post-conviction relief under Ark. R. Cr. P. Rule 37. The issue is whether the appellants received ineffective assistance of counsel in connection with their guilty pleas.

In January of 1987, appellants Dixie and Gary Cranford, husband and wife, were charged with the rape of two young girls. In March of 1987, they pled guilty pursuant to a negotiated plea agreement and were each sentenced to a term of eighteen years imprisonment on two counts of rape. The sentences were to be served concurrently. On October 19, 1987, appellants filed a petition for relief under Ark. R. Cr. P. Rule 37, contending their guilty pleas were invalid based on an allegation of ineffective assistance of counsel. The trial court denied the petition for relief and we affirm.

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-prong test which must be met to prove ineffective assistance of counsel. Under the first prong, the defendant must show that the counsel’s performance was deficient, i.e., that it fell below an objective standard of reasonableness. The second prong requires the defendant to prove the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. The Supreme Court has held that this two-prong test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52 (1985). When a guilty plea is challenged the defendant must show that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” This satisfies the second-prong “prejudice” requirement. Id. at 59. If appellants fail to satisfy either prong of the Strickland/Hill test, their claim of ineffective assistance fails. Hill, supra, 474 U.S. at 60.

Appellants first maintain that because their attorney was elderly, having been born in 1911, and was generally known not to be in good health, his assistance was ineffective. When we consider that the burden is on the appellant to overcome the strong presumption that counsel is competent and that appellants failed to show how counsel’s age and health affected his representation, there is no basis for a finding of ineffective assistance. See White v. State, 301 Ark. 74, 781 S.W.2d 478 (1989); Ross v. State, 292 Ark. 663, 732 S.W.2d 143 (1987). The burden is on the petitioner to prove his allegations for post-conviction relief and we do not reverse the trial court’s findings unless they are clearly against the preponderance of the evidence. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980); Porter v. State, 264 Ark. 272, 570 S.W.2d 615 (1978).

Appellants next allege that their attorney never discussed with them the state’s evidence against them. Appellants were each charged with two counts of the rape of two girls, one age twelve and one ten.

The older child gave a statement that both Dixie and Gary Cranford performed oral sex on her and that Gary Cranford had sexual relations with her on several occasions. She said that Dixie Cranford had taken pictures of her without clothes on. One picture was taken of her lying on the bed with her legs spread apart and the other was of her and Gary Cranford, both nude, touching each others’ genitals. She stated she had seen Gary and Dixie perform oral sex on the younger child. The ten-year-old gave a statement that the Cranfords performed oral sex on her several times and said similar photographs were taken of her. The state had possession of the girls’ statements and the photographs. Testimony revealed that at their bond hearing, the Cranfords were apprised of this evidence.

Even if we assume the appellants were not completely informed as to all the evidence against them, they failed to prove the “prejudice” prong of the Strickland test as it applies to guilty pleas. See Hill, supra. Appellants do not allege that, had counsel correctly informed them about all the evidence against them, they would have pleaded not guilty and insisted on a trial. Their concern, expressed when they entered their guilty pleas, was that they could not convince a jury they were innocent.

Additionally, appellants failed to satisfy the first prong of Strickland by proving counsel’s performance fell below an objective standard of reasonableness. To do so, they must establish that the counsel’s advice was not within the range of competence demanded of attorneys in criminal cases. White v. State, supra, at 77. Faced with the prospect of a jury viewing the explicit photographs and hearing the girls’ unequivocal statements, we cannot say that appellants’ counsel was deficient by engaging in plea negotiations.

Appellants also argue that their attorney did not discuss the possibility of a lesser included offense being sought, nor did he discuss any possible defenses they may have had. They provide no factual support for these conclusory allegations. They have the burden of providing facts that establish actual prejudice due to their attorney’s conduct. Campbell v. State, 283 Ark. 12, 670 S.W.2d 800 (1984). More facts are necessary to make a reasoned assessment of whether they had a successful defense or a lesser included offense available. The record does not support these allegations. Without such facts, we must find that appellants have not sufficiently pled prejudice because it is impossible to make the kind of detailed analysis required under Hill.

Appellants assert that their attorney should have responded to the state’s motion to take videotaped depositions of the victims. They maintain that the statute permitting taped depositions violated their Sixth Amendment right to be confronted with the witnesses against them. In McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986), we upheld the constitutionality of our statute. But appellants are correct in that the United States Supreme Court found a state statute which allowed the victim to testify from behind a screen violated the confrontation clause of the Sixth Amendment. Coy v. Iowa, 487 U.S. 1012 (1988). Even though McGuire, supra, was decided before Coy, our statute has no such flaw.

The statute, Ark. Code Ann. § 16-44-203 (1987 and Supp. 1989), requires face-to-face confrontation between the victim, the prosecuting attorney, and the defendant and his attorney and is taken before the judge in chambers. It provides for the cross-examination of the alleged victim in the same manner as permitted at trial. Ark. Code Ann. § 16-44-203(b) (1987). We have consistently held there is a presumption that counsel is competent and the burden is on the appellant to show more than mere improvident strategy or tactics. White v. State, supra. The decision whether to respond to a motion falls under the ambit of trial counsel’s strategy and tactics, which is not a basis for reversal. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87.(1986).

Finally appellants allege they would not have pled guilty but for counsel’s promise to procure a hardship parole in order for them to be released early to care for their three minor children, whereas, since they were charged with a Class Y Felony, they would not be eligible for release or parole until half of their sentences had been served. Ark. Code Ann. § 16-93-6079(3) (1987). Appellants contend their lawyer’s incorrect advice amounted to denial of their constitutional right to effective assistance of counsel.

We have said that mere recitation of such an allegation is not sufficient, there must be a reasonable probability that but for counsel’s errors appellants would not have pled guilty. Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986). “The primary objective of review of allegations of ineffective assistance of counsel is not to grade counsel’s performance, but to determine whether actual prejudice occurred.” Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).

The appellants have failed to establish that there is a reasonable probability that, but for counsel’s alleged advice, they would have insisted on going to trial. They were charged with two counts of rape each, a Class Y Felony. Under Arkansas law the rape charges carried a potential sentence of ten to forty years or life. Ark. Code Ann. § 5-4-501 (1987). Testimony revealed that appellants were aware of this statutory provision prior to their pleas. Appellants’ counsel negotiated a plea agreement in which the State, in return for appellants’ plea of guilty, agreed to recommend concurrent sentences of eighteen years on each count. Appellants have never alleged that counsel said the hardship parole was a part of the plea negotiations. So, fully aware of the evidence against them, appellants had the option of accepting the eighteen years or exposing themselves to a possible sentence of ten to forty years or even life. We think it improbable that had they known there was no possibility of a hardship release, appellants would have rejected the plea bargain when they faced a possible life sentence.

Also, the record indicates hardship parole was not a factor in appellants’ decision at the time they pled guilty. When the judge began the process of accepting the pleas, Gary Cranford said, “Can I say something when you get throughV The Court said, “yes.” After the plea was accepted and the sentence imposed, the court asked what he wanted to say. Cranford replied, “Anyway we can get an early parole, because my mother is seventy-years-old?” If parole eligibility was a critical factor in their decision to plead guilty, it seems entirely unlikely appellants would have waited until after the completion of the plea process to raise the issue.

This is not a situation like Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990) (Bowman, J., Gibson, J., Wollman, J., Magill, J., dissenting), where counsel’s misadvice reached the level of a constitutional violation. In Hill, the Eighth Circuit based its holding on the fact that Hill had explicitly asked counsel about parole and made it clear the timing of eligibility was the dispositive issue for him accepting a plea bargain. The attorney had knowledge of that particular concern and failed to check the applicable law. The Eighth Circuit considered this omission incompatible with the objective standard of reasonable representation, however, it held that in some situations incorrect advice about parole would be merely a collateral matter not significant to justify relief.

In this case, there is no evidence that appellants made this clear to their attorney. Nor is there evidence that appellants’ attorney failed to determine the applicable law. We have only an allegation that counsel promised a hardship parole. There was some evidence that appellants knew the minimum time of parole eligibility for a Class Y Felony. Appellants’ testimony was unchallenged because counsel was not called to testify at the Rule 37 hearing. Obviously the judge who denied appellants’ Rule 37 petition was not convinced of the validity of their claims of the promise of this hardship parole. The trial court is in the best position to resolve any conflicts in testimony. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987). We stated in Huff v. State, 289 Ark. 404, 409, 711 S.W.2d 801, 804 (1986), “conflicts in testimony are for the trial judge to resolve, and he is not required to believe any witness’ testimony, especially the testimony of the accused since he has the most interest in the outcome of the proceedings ... We cannot say his findings are against a preponderance of evidence.”

The Court below properly denied appellants’ petition for relief pursuant to Rule 37 of Ark. R. Cr. P. because appellants failed to prove that counsel’s conduct fell below the standard of reasonably effective assistance or to establish that they were prejudiced as required by Strickland v. Washington, supra.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I join this majority, but write to mention that the abstract of record shows the appellants never pled guilty thinking they later would be granted a “hardship parole.” First, at the plea hearing, appellant Dixie Cranford inquired of the court whether she would be given early parole because of her seventy-year-old mother and three children. She then clearly acknowledged that “she understood that parole is the prerogative of the executive branch of the Arkansas State Government.” Second, at the Rule 37 hearing, appellant Gary Cranford testified, “I believed there was a good chance I was going to have to serve nine years of the eighteen-year sentence on the day I entered the plea.”

The appellants’ own testimony noted above belies their present argument that the trial court pushed the “hardship parole” and “early release” issue when receiving their guilty pleas. The record reflects the appellants knew the court could not assure them of an early parole, nor did they expect one.

The state’s proof was strong, and appellants were aware they could get forty years on each count of rape. Appellants’ counsel skillfully negotiated appellants an eighteen-year sentence. Thus, even if the record showed counsel had incorrectly assured appellants that they could obtain an early release, it cannot be said, considering the state’s compelling evidence and the nature of the crimes, that going to trial would have objectively been the better course of action. See Tran v. Lockhart, 849 F.2d 1064, 1066-67 (8th Cir. 1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1561, 863 L.Ed.2d 863 (1989).

For the above reasons, as well as those presented in the majority opinion, I affirm.


author: David Newbern, Justice.

text:
    Lyndale “Wimpy” WALKER v. STATE of Arkansas
    CR 90-143
    797 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered October 22, 1990

      Honey & Honey, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Eddie’s Food Mart in Bluff City, Nevada County, was robbed by two men on June 28,1989, July 8, 1989, and again on July 20,1989. Lyndale “Wimpy” Walker, the appellant, and Hector Rodriguez were charged with all three robberies. A severance was granted, and Walker was tried separately and convicted of the aggravated robbery and theft of property which occurred July 20. He had not been tried for the crimes he was charged with having committed earlier. He was sentenced as an habitual offender to life imprisonment for the aggravated robbery and to 30 years imprisonment, to be served concurrently, for the theft. Walker appeals, stating five points of error. The conviction is affirmed.

The July 20 robbery was committed by two men carrying rifles. They went into the store and took a money box containing cash and checks. Walker was captured after a manhunt. The store owner, who was present when Walker was placed in the sheriff’s car after being arrested, told the sheriff he hoped the money box could be found. The sheriff said he would see what he could do, whereupon Walker said the box was located in four inches of water and he could take them to it.

While in the sheriff’s car, Walker was read his rights, as required by Miranda v. Arizona, 384 U.S. 436 (1966), and he signed a document acknowledging he had been informed of his rights. Later, he made a tape recorded confession.

Prior to the trial Walker’s counsel moved to suppress Walker’s statements on the ground that they were made while he was in custody and without a proper warning. The motion was denied. He also moved in limine to preclude any testimony by prosecution witnesses with respect to “any matters pertaining to the other offenses and convictions.” That motion was granted.

1. References to prior robberies

A store clerk and the sheriff, testifying as prosecution witnesses on direct examination, both made unmistakable references to the previous robberies in their testimony. On cross-examination, the store owner also referred to the two previous robberies. Objections by Walker’s counsel were made and sustained with respect to the testimony given by the clerk and the sheriff while they were being questioned by the prosecution; however, his motion for a mistrial for violation of the motion in limine was denied. The reason the court gave for the denial of the mistrial motion was that the motion in limine had only referred to prior convictions. That was incorrect. The motion covered “offenses” as well. We do not, however, conclude that the ruling on the mistrial motion was erroneous.

The judge offered to admonish the jury to disregard evidence of prior convictions, but Walker’s counsel apparently declined as the admonition was not given. No further request for admonishment of the jury was made.

We have carefully examined the questions asked by the prosecutor. They were proper in that they clearly sought information only about the July 20 event. The answers, which referred to the earlier robberies, were nonresponsive. In Queary v. State, 259 Ark. 123, 531 S.W.2d 485 (1976), we found almost the same situation. There, however, counsel had moved to strike the nonresponsive testimony and for a proper admonishment of the jury, asking that jurors be instructed to disregard the non-responsive, prejudicial testimony. Had that been done in this case, and had the trial court refused, we would have precedent for concluding the trial court erred. The issue here, however, is whether a mistrial should have been granted.

A mistrial is an extreme remedy to be resorted to only when the trial court makes the discretionary determination that there has been an error so prejudicial that justice cannot be served by continuing the trial. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989); Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). Even if the trial court’s understanding of the motion in limine had been correct and he had refused to grant a mistrial for violations of it, we would not reverse. The prejudice in this case, in view of the overwhelming evidence of Walker’s guilt, was not of the sort to require a mistrial. Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); Hobbs v. Lockhart, 791 F.2d 125 (8th Cir. 1986).

2. Recorded confession: best evidence

The prosecution sought to have the tape recording of the confession admitted into evidence. It could not be satisfactorily edited to remove the references to the earlier robberies, so an edited transcription was admitted instead. Walker objected on the ground that admitting the transcription violated the motion in limine. The court overruled the motion. Walker now contends there was a violation of the best evidence rule. We do not address that argument as it was not made to the trial court. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

3. Statement prior to warning

Walker contends the statements he made in the sheriffs car prior to having been given an effective Miranda warning should have been suppressed. He contends he was exhausted upon his arrest and did not hear the warning. He also argues the statement about the location of the money box was elicited by the sheriff.

In reviewing the voluntariness of a confession, we “make an independent review of the totality of the circumstances and reverse only if the trial court’s finding is clearly against the preponderance of the evidence.” Hurst v. State, 296 Ark. 448, 757 S.W.2d 558 (1988); Sherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988).

The sheriffs remark that he would try to find the missing money box hardly constituted interrogation. It was not an inducement of any sort to Walker to speak. In Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), we made it clear that a spontaneous statement, made while an accused was in custody, is not to be held inadmissible on the ground that there was not express waiver of counsel when the statement was made.

As to Walker’s having been exhausted and intimidated when the statements were made, we hold those allegations do not come within the factors to be considered controlling when we make our determinations of voluntariness based on the totality of the circumstances. We consider “the youth of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. . . .” Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). The circumstances Walker alleges do not meet those which would or could cause us to conclude the custodial statements were involuntary.

4. Competency

After he gave notice he intended to defend on the basis of insanity, Walker’s mental condition was evaluated at a mental health screening center. A psychiatrist found that he was able to understand the proceedings against him and to assist effectively in his defense. She stated it was difficult for her to evaluate Walker’s condition at the time the offense was committed because she had not known him at that time but that if his condition then (July 20,1989) were the same as on the date of her report (November 10, 1989) he “would have been able to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law.” While the psychiatrist’s opinion is a conditional one, it is nonetheless an opinion as to Walker’s “ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” at the time the offense was committed. See Ark. Code Ann. § 5-2-304(d)(4) (Supp. 1989). The evaluation satisfied the requirement of Ark. Code Ann. § 5-2-305(b)(l)(A) (Supp. 1989).

We agree with Walker’s contention that his case is somewhat similar to that of Vance v. State, 288 Ark. 274, 704 S.W.2d 170 (1986), where we reversed a trial court’s refusal to have an additional evaluation after initial psychiatric screening. There, however, the trial court had before it a report of an initial screening which consisted solely of the doctor checking a blank on a form stating that Vance was without psychosis and competent to stand trial. In addition, the court had information that Vance had been discharged from the Navy with mental disability, had been hospitalized in San Francisco for mental problems, and had been discharged from the state hospital the day before the robbery with which he was charged occurred. Finally, the court had rejected the testimony of a psychiatrist who had examined Vance at the state hospital and found him to be paranoid schizophrenic with acute exacerbation.

The only challenge to the report here was Walker’s statement that he had been unable to get records showing that he was diagnosed as a paranoid schizophrenic while he was in the Army and that he had been under a psychiatrist’s care for 10 years. The court had no proof before it other than the statement of Walker and his counsel’s concurrence that Walker had been trying to obtain his records. While Ark. Code Ann. § 5-2-305(c) (Supp. 1989) provides that the court may order a further examination at the state hospital, we cannot say in this case that it was clearly warranted. The similarity between this case and the Vance case is minimal when the amount and source or sources of evidence in each case are considered.

5. Sentencing: prior convictions

Walker’s sentence was enhanced because he was an habitual criminal. The court informed the jury that Walker had 11 prior convictions; however, the court read to the jury 16 offenses of which Walker had been convicted. The reading was preceded by a discussion between the court and the prosecutor in which the prosecutor noted that some of the burglaries and grand larcenies should be counted as only one conviction. The court agreed; thus the instruction that there were 11, rather than 16, convictions. No objection was lodged by Walker’s counsel, and thus we will not consider the point. Maxwell v. State, supra.

6. Rule 11(f)

In compliance with Rules of the Arkansas Supreme Court and Court of Appeals 11(f), the objections decided adversely to Walker have been abstracted, and we find none of these merit reversal.

Affirmed.


author: Tom Glaze, Justice.

text:
    Raymond A. THOMPSON v. STATE of Arkansas
    CR 90-159
    797 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered October 22, 1990
    [Rehearing denied December 3, 1990.]

      Paul Petty and Robert Meurer, for appellant.

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

This is an appeal from the appellant’s conviction of DWI, first offense. Appellant was sentenced to thirty days imprisonment with twenty-five days suspended on the condition that he attend and complete DWI school and not commit an alcohol-related offense within the next six months. Also, he was fined $550.00 and his driver’s license was suspended for ninety days. As his sole issue on appeal, the appellant argues that the trial court erred in denying his pretrial motion to suppress because of an unlawful detention and arrest. We disagree, and therefore affirm.

The facts leading to the appellant’s arrest for DWI are undisputed. While on patrol at 1:30 a.m., Searcy Police Officer Robert Parsons noticed the appellant’s car parked legally with its lights on and the motor running. The car was parked on Center Street, which is located adjacent to the parking lot for the Townhouse Apartments. When Officer Parsons passed by again at 1:40 a.m., appellant’s car was still parked with its lights on and motor running. Officer Parsons stopped his car behind appellant’s and approached the appellant’s car to investigate. At the suppression hearing, Officer Parsons stated the reasons he stopped to investigate were that there might be something wrong with the driver, there might be something going on that shouldn’t be going on, or someone might be going through cars on the parking lot.

When Officer Parsons approached the parked car, he found the appellant and a woman sitting in the car. In answer to the officer’s inquiry, the appellant volunteered that he had been to a club and was taking his girlfriend home. After smelling alcohol on the appellant, Officer Parsons asked the appellant to step out of the car. The appellant stumbled and was unable to perform a sobriety test. At this time, the appellant was informed that he was under arrest for DWI.

In his motion to suppress and here on appeal, the appellant contends that Officer Parsons’ approaching his parked car constituted a seizure or detention and that this seizure was unlawful under the fourth amendment because the officer had no reason to suspect that the appellant had committed or was about to commit a crime. The appellant’s argument is contrary to established fourth amendment law. Because this court has never addressed this argument, we take this opportunity to clarify the law in this area.

Not all personal intercourse between policemen and citizens involves “seizures” of persons under the fourth amendment. See Terry v. Ohio, 392 U.S. 1 (1967). A “seizure” occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id.

Police-citizen encounters have been classified into three categories. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988). 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. Id. 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 the person has committed or is about to commit a crime. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. Id.

Here, Officer Parsons’ approach to investigate the appellant’s car parked in a public place fits into the first category, and thus is not a “seizure” within the meaning of the fourth amendment. See W. LaFave, Search & Seizure, § 9.2(h), at 408-09 (1987); see also cases cited therein Atchley v. State, 393 So.2d 1034 (Ala. Crim. App. 1981) (court held there was no seizure under the fourth amendment where the police, having no knowledge of any criminal activity in the area, approached a car legally parked with its lights off after midnight and asked the driver if there was any problem and for some identification); State v. Harlan, 301 N.W.2d 717 (Iowa 1981) (court held there was no seizure, where a police officer stopped behind and approached the defendant’s parked car and observed that the defendant had bloodshot eyes and smelled of alcohol. Although the officer had no reports of crime in the area, had not seen the defendant commit any crimes, or suspected him of committing any specific crime, the officer felt the defendant was trying to evade him earlier when the officer had passed his car); and State v. Vohnoutka, 292 N.W.2d 756 (Minn. 1980) (court held no stop or seizure where officers saw driver of a motor vehicle shut off the car’s lights and drive into a parking lot of a closed served station and approached the car and asked the defendant if anything was wrong and subsequently discovered marijuana in the car).

The authority for a police officer to act in this type of nonseizure encounter is recognized in A.R.Cr.P. Rule 2.2(a), which provides the following:

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.

After observing a car with its lights on and motor running parked in the early morning hours in the same place for ten minutes, Officer Parsons acted properly in approaching appellant’s car and asking the appellant “what the problem was.” At this point, the record does not show that Officer Parsons restrained the liberty of the appellant by means of physical force or a show of authority. The officer did not approach the car exhibiting a weapon or ordering the appellant out of his vehicle. Thus, there was no “seizure” under the fourth amendment. The “seizure” of the appellant occurred only after the officer addressed the appellant and noticed the odor of alcohol after appellant volunteered he had been at a club. Then, the officer had a reasonable suspicion that the appellant had committed or was about to commit a DWI and properly asked him to exit his car. See A.R.Cr.P. Rule 3.1. In making an independent determination based upon the totality of the circumstances, we affirm the trial court’s denial of the appellant’s motion to suppress. See Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989).

For the reasons stated above, we affirm.

       In so holding, we further note the Arkansas Court of Appeals has decided two cases where the police officers’ authority to approach a parked vehicle has been affirmed under Rule 2.2(a). See Adams v. State, 26 Ark. App. 15, 758 S.W.2d 709 (1988); Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988).


author: Otis H. Turner, Justice.

text:
    Lucy MANGUM, et al. v. ESTATE OF Mary B. FULLER
    90-72
    797 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered October 22, 1990

      Daggett, Van Dover & Donovan, by: James R. Van Dover,
      for appellants.

      Schieffler Law Firm, by: Edward H. Schieffler, for appellee.
   Otis H. Turner, Justice.

Mary B. Fuller, a widowed resident of Phillips County, had one daughter who predeceased her; the deceased daughter left three children. Mrs. Fuller died on September 17,1988. Thereafter, a handwritten instrument dated July 11, 1986, was admitted to probate as the decedent’s holographic will. That instrument left all of her property to Mrs. Lucy Mangum and did not mention the decedent’s three grandchildren. The grandchildren filed a timely petition seeking a determination of heirship. They were determined by the probate court to be pretermitted heirs entitled to their respective shares in the corpus of the estate pursuant to Ark. Code Ann. § 28-39-407(b) (1987).

Mrs. Mangum, who was named the personal representative of the estate, then discovered in the decedent’s bank lock box a typewritten and duly executed will of the decedent dated June 7, 1978. This document specifically disinherited the three grandchildren and devised all of the decedent’s property to her longtime friends, O.V. Burch, Virginia Burch, and Betty Williams. The beneficiaries named in the 1978 will then joined Mrs. Mangum in petitioning the probate court for relief from the previous order admitting the 1986 holographic will to probate.

The probate court held the 1986 handwritten document to be a valid holographic will, thus revoking the 1978 will, and further, held that the grandchildren were pretermitted heirs entitled to inherit the estate from their grandmother. We agree with the probate court and affirm.

The decedent’s 1978 will provides:

I, MARY B. FULLER, of Route 1, Box 126, Poplar Grove, Arkansas, in Phillips County, being of lawful age and of sound and disposing mind, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all prior Wills made by me if there be such:
• 1.1 direct that my Executor, hereinafter named, pay all my just debts and funeral expenses as promptly as possible after my death.
2.1 hereby state that I am a widow and have no living children but do have grandchildren who are the children of my deceased daughter. To my said grandchildren I give and bequeath nothing from my estate knowing full well they are able to care for themselves.
3. To my dear friends of many years, O.V. BURCH and VIRGINIA BURCH, his wife, of Jonesboro, Arkansas, and BETTY W. WILLIAMS of Memphis, Tennessee (who is a sister-in-law to O.V. Burch), I give, devise and bequeath all of my estate of every kind and character and wheresoever situáted.
4.1 hereby nominate and appoint O.V. BURCH to be the Executor of my estate and direct that he be permitted to serve as such without bond or with the minimum bond which the Court may require.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on this 7th day of June 1978, in the presence of ALTA ROBERTS and PATSY ABLES, to whom I have declared this to be my Last Will and Testament and who, in my presence and at my request, have set their hands as attesting witnesses.
/s/ Mary B. Fuller (Seal)

The 1986 writing of the decedent that was found to be a valid holographic will contains the following language:

Prior to any other Will this above date 7/11/1986, takes Precedent over any other Will or any other dates. This is my last will and testamony (sic).
I leave every thing in my name and all my personal property to Mrs. Walker Mangum (Lucy) ....

In objection to the petition relating to the 1978 will, the grandchildren contended that the 1986 holographic will revoked the 1978 will, in toto. The trial court treated the objection as a motion for summary judgment, and held that the 1986 will was a valid holographic will revoking the 1978 will. The court refused to consider the later writing to be a codicil to the earlier will.

The single issue raised for reversal is the contention that the trial court erred in applying the “four-corners rule” to decide the issue of partial revocation as opposed to complete revocation and in granting summary judgment despite the existence of a genuine issue of material fact.

We have consistently held in a long line of cases that there is no reason to look beyond the instrument to determine the “intent” of the testator in the case of a subsequent will, which, by its terms, is clear and unambiguous in its revocation of all earlier wills and meets the testamentary requirements of our statutes. See Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977), and the cases cited. In Heirs of Mills v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971), the probate court permitted the introduction of extrinsic evidence to determine the intent of the testator; there we reversed, holding that, in the absence of ambiguity, the testator’s intent is that expressed by the language of the instrument.

Here, in a well-reasoned decision, the probate court found:

[It is my opinion] that the words in the 1986 holographic instrument are unambiguous; that the meaning is clear; and that the words revoke the prior 1978 typewritten will of Mary B. Fuller. Black’s Law Dictionary defines “Precedence” as an act or state of going before; adjustment of place. The right of being first placed in a certain order. Mary B. Fuller used the words, “other Will” twice. This also indicates, from the four corners of the will, her intent to consider the 1986 instrument as a will which revoked the 1978 will.

We review probate matters do novo on appeal but will not reverse the findings of the probate judge unless they are clearly erroneous. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Further, in an appeal from the granting of summary judgment, all of the facts and circumstances are viewed in a light most favorable to the party against whom the motion is directed. Witt v. Rosen, 298 Ark. 187, 765 S.W.2d 956 (1989). Applying the established standard for review, we agree with the probate court that the 1986 holographic will is clear in its provision that it “takes precedent over any other Will.” The grandchildren were not mentioned and no extrinsic evidence is admissible to show that the testator intended to disinherit a pretermitted child. Hare v. First Security Bank, 261 Ark. 79, 546 S.W.2d 427 (1977). We therefore affirm the order of the probate court.

Affirmed.


text:
    Gene DONN v. W.J. “Bill” McCUEN, Secretary of State, and Arkansas State Board of Election Commissioners
    90-268
    797 S.W.2d 455
    Supreme Court of Arkansas
    Opinion delivered October 24, 1990

      Gregory Ferguson, for appellant.

      Jodi Raines Dennis, for appellee Secretary of State.

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellee Arkansas State Board of Election Comm’rs.

      Keith Vaughn, for appellee-intervenors Dan Dunn, Walter S. Tucker, Jean Carmen, Conna Petre, Art Brannen, Lila Powell, Patt Foley, and Sue Grimes.
   Tom Glaze, Justice.

In this election case, appellant seeks to qualify as an independent candidate for the office of House of Representatives, District 70, which is in north Pulaski County. Although he timely filed his qualifying petitions with the appellee Secretary of State, he erred in labeling his petitions and the office he sought as being in district 26, position 70. A house district 26 position does exist, but that house position is in another area of the state.

After seeking advice from both the Attorney General’s office and the State Board of Election Commissioners, the Secretary of State refused to certify the appellant’s qualifying petitions, and appellant subsequently filed a pro se action, seeking injunctive relief in circuit court to have his name placed on the ballot. The Secretary of State and State Board of Election Commissioners responded, stating various grounds upon which appellant’s complaint should be dismissed. About one month later, eight voters, who had signed the appellant’s petitions, intervened asking appellant’s action be dismissed because they had been misled by his petitions. Basically, the intervenors claimed the petitions failed to reflect that the appellant sought to qualify as a candidate for House District 70. Next, appellant obtained an attorney, who, by amending appellant’s original complaint, requested a writ of mandamus directing the Secretary of State to determine the sufficiency of appellant’s petitions and to mandate appellant’s name be placed on the ballot as an independent candidate for State Representative, District 70. The trial court denied appellant’s request. We must affirm.

Under Arkansas Election Laws, challenges to the sufficiency of an independent candidate’s petition are treated the same as challenges to initiative and referendum petitions. Ark. Code Ann. § 7-7-103(e) (Supp. 1989). Thus, after a qualifying candidate’s petition is filed, the Secretary of State must ascertain and declare the petition’s sufficiency within fifteen days. Ark. Code Ann. 7-9-111(a) (Supp. 1989). In the event the petition is found to be insufficient, the candidate has thirty days to do any or all of the following: (1) solicit and obtain additional signatures; (2) submit proof to show that the rejected signatures or some of them are good and should be counted; and (3) make the petition more definite and certain. Ark. Code Ann. § 7-9-111(d)(1).

If the Secretary of State fails or refuses to examine and file the petition within this time period, the qualifying candidate has fifteen days to apply for a writ of mandamus to compel the officer to certify the sufficiency of the petition. Ark. Code Ann. § 7-9-112(a) (1987). We have repeatedly recognized that the provisions of elections laws are mandatory if enforcement is sought before the election and directory if not raised until after the election. See, e.g., Stillinger v. Rector, 253 Ark. 982, 490 S.W.2d 109 (1973).

In applying these statutory provisions to the facts before us, we must conclude that the appellant’s application for a writ of mandamus was untimely. Appellant filed his petitions for independent candidacy with the Secretary of State’s Office on April 30, 1990. The Secretary of State should have determined the sufficiency of the petitions by May 15, 1990. Instead, the Secretary of State did not inform the appellant that his name would not be certified as a candidate until June 10,1990. Since the Secretary of State did not act within the required fifteen days, the appellant should have filed for a writ of mandamus by May 30, 1990. Instead, the appellant took no action to remedy his certification for independent candidate until July 10,1990, when he filed suit for injunctive relief. It was only after obtaining an attorney, that the appellant finally amended his complaint on October 1, 1990, to seek the proper remedy of mandamus.

The statutory requirements for qualifying as candidates are designed so that other pertinent election procedures can be timely met. See, e.g., Ark. Code Ann. § 7-5-208(h)(4) & (5) (Supp. 1989) (drawing for ballot position not less than thirty-five days prior to election); Ark. Code Ann. § 7-5-407 (1987) (delivering absentee ballots to the county clerk’s office not less than twenty-five days before the election). Here, appellant was obviously unaware of the required procedure to challenge the Secretary of State’s failure to qualify his independent candidate petitions, and while he ultimately obtained counsel who was, or became, familiar with the necessary procedure, his request for mandamus against the Secretary of State was not filed until October 1,1990 — four months after he should have filed for such relief. At this late date, we must uphold the trial court’s denial of appellant’s mandamus request.

For the reasons stated above, we affirm and issue an immediate mandate.

       Apparently, appellant’s error resulted from misreading a map he acquired from the Secretary of State’s office.

       We note the appellant’s argument that this notification was not a declaration of the sufficiency or insufficiency of the petitions by the Secretary of State. However, we need not reach this argument since regardless of whether the letter qualifies as a determination of the sufficiency of the petition, the Secretary of State did not act timely and the appellant must seek a writ of mandamus within the statutory time period.