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

text:
    Clint LAMMERS v. STATE of Arkansas
    CR 97-417
    955 S.W.2d 489
    Supreme Court of Arkansas
    Opinion delivered October 23, 1997
    [Supplemental opinion upon granting of rehearing January 8, 1998.]

      Green and Henry, by J.W. Green, Jr., for appellant.

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

Appellant Clint Lammers was tried and convicted of capital murder in the slaying of Lois Wallace, a clerk at a grocery store in Stuttgart. He was convicted at a jury trial and sentenced to life imprisonment without parole. He argues four points on appeal, none of which contains reversible error. However, pursuant to the provisions of Ark. Sup. Ct. R. 4-3(h), we have examined the complete record for any prejudicial error that was objected to below, but not argued on appeal. We have concluded that there was reversible error when the trial court ruled that appellant’s peremptory challenge of a middle-aged white male juror violated the requirements of Batson v. Kentucky, 476 U.S. 79 (1986), and ordered the juror to serve over appellant’s objection.

Appellant’s conviction was based upon evidence that he and two accomplices, Sean Smith and Brandon Isbell, who were tried separately, planned to rob Goacher’s IGA grocery store and shoot the clerk to eliminate her as a witness. They went to the grocery store on the morning of October 28, 1994, where they first purchased batteries and remained in the store while they discussed their next move. Isbell picked up a pair of gloves and went to the front of the store, while appellant and Smith remained in the back. Isbell had a gun with him. He went to the cash register to pay for the gloves and shot the clerk, Ms. Wallace, in the head. When they could not open the cash register, they grabbed some cigarettes and fled to appellant’s home. They took the gun, cigarettes, batteries, and gloves to a shed near appellant’s house, where they hid the gun. They called police from appellant’s house and turned themselves in. AH three gave statements while in custody.

After the poHce arrived at the house, Smith told them what was hidden in the shed. The officers immediately conducted a warrantless search of the shed and found a .357 caliber revolver hidden under a stuffed animal and a .22 caliber handgun in a paper bag. They found the cigarettes, batteries, and gloves lying outside on the ground. AppeUant argues that the confession and search were Hlegal, and that without this evidence, there was not substantial evidence to convict him.

Before we discuss the error upon which we reverse, or any of the other points on appeal, we must first consider his challenge to the sufficiency of the evidence. We do not consider trial errors until after we have considered arguments regarding the sufficiency of the evidence, including that which perhaps should not have been admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).

There was an abundance of evidence to support a conviction. AppeUant’s argument that the evidence was insufficient because some of it should have been suppressed is based upon a mistaken premise. See Scroggins v. State, supra. Further, this issue was not preserved for appeal because his motions lacked the requisite specificity. At the close of the State’s case, appeHant stated that he moved for “a directed verdict of dismissal based on the sufficiency of the evidence.” Fie renewed his motion at the close of his case. We cannot consider this argument because his motions did not state “the specific grounds therefor.” Walker v. State, 318 Ark. 107, 108, 883 S.W.2d 831, 832 (1994). A general motion such as the one made by appeHant is not sufficient to apprise the trial court of the missing proof so that it can be made aware of any deficiency. Id. Therefore, the argument is procedurally barred from our review.

In capital murder cases, we are required by Ark. Sup. Ct. R. 4-3 (h) to “ . . . review aH errors prejudicial to the appeHant in accordance with Ark. Code Ann. § 16-91-113(a).” Pursuant to the requirements of this rule, we make our own examination of the record and reject or accept on their merits aU objections made at trial, whether or not argued on appeal, but we do not consider a matter in the absence of an objection. Fretwell v. State, 298 Ark. 91, 708 S.W.2d 630 (1996). We review prejudicial, erroneous rulings even when such objections are not briefed by either the appellant or the State. Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). We have concluded that the trial court committed prejudicial error in denying appellant’s peremptory challenge of Mr. Clifford Burdett on the basis of the principles established by Batson v. Kentucky, 476 U.S. 79 (1989).

We note that before Mr. Burdett was challenged, the selection of twelve jurors had been completed without an objection being preserved as to any peremptory challenge or dismissal for cause. However, the trial court determined that two alternate jurors should be chosen in the event that one or more of the jurors could not serve. Appellant, a seventeen-year-old white male, attempted to exercise a peremptory challenge of Mr. Burdett, and the prosecutor asked for a bench conference, arguing that appellant struck Mr. Burdett because he is a “white male of middle age.” The following colloquy ensued:

Mr. J.W. Green, Jr.: My client told me to strike him, Your Honor. My client sits here facing a possible death sentence. My client does not feel comfortable with this gentleman sitting as a juror. And in this particular case, I follow my client’s recommendation.
[A recess was taken in order for the court to review J.E.B. v. T.B. ex rel. Alabama, 114 S. Ct. 1419 (1994)]
Mr. Dittrich [prosecutor]: . . . there have been a large number of middle age, or older, white males struck by the defendant regardless of the answers to their questions. And it is our position that a conscious pattern to strike those individuals. I realize J.E.B. versus Alabama does not deal with the age issue, but we would make both a gender and an age based discrimination argument.
The Court: Well, for the record, we should note that Mr. Harris is on the jury, and he is thirty — in his thirties? Do you all have a questionnaire?
Mr. Dittrich: Mr. Harris is thirty-two years old, Your Honor — I’m sorry, Your Honor, forty-two. He was born in 1954. The Court: Forty-two. And . . . let’s see, Mr. Stovesand — Mr. Stovesand was struck by the defendant, and I know he is in his twenties. Mr. Winfrey was excused by the defendant, and he is in his fifties.
The Court: Ms. Sells was excused by the defendant. She is a white woman. Mr. Berry was seated on the jury. Do we know how old Mr. Berry is?
Mr. Dittrich: Mr. Berry . . . Let me look just a minute, Your Honor. . . .Mr. Berry is thirty-six years old. But I would point out for the record that Mr. Berry is an African-American.

The court then proceeded to inquire into the age of each of the white males who had been peremptorily challenged. Appellant’s attorney asked whether the State’s Batson challenge was based upon race, gender, or age, and the prosecutor replied that it was based upon all three. The court disallowed the peremptory challenge. Appellant’s attorney then explained his objection for the record as follows:

Mr. J.W. Green, Jr.: Your honor, the defendant’s objection goes not only to the fact that he is a white man. It wouldn’t make any difference if it was a white female. The defendant’s objection goes to the fact — further to the fact that he did not feel comfortable with the answers that were asserted by Mr. Burdett up there. The defendant is sitting here in a capital murder case. His life is on the line. And he is exercising a peremptory challenge that he thought, and believes that he has a right to exercise. If it had been a black man, or if it had been a black woman, if it had been a white man, or if it had been a white woman, would the, what he perceived and what he heard from where he sits, he would have excluded that person from the juror — jury.

Although there was no finding by the court that this explanation was pretextual, Mr. Burdett was seated on the jury without further inquiry.

The threshold question is whether a prima facie case of discrimination has been presented by the State. In Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996), we articulated the requirements for establishing a prima facie case as follows:

(1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of [the group in question] from the jury, or (3) showing a pattern of strikes, questions or statements by [the proponent of the strike] during voir dire.

Id. at 123-24, 913 S.W.2d at 268. By trying to discern a pattern, the trial court followed the correct procedure in attempting to determine whether a prima facie case had been established. However, its ruling was based upon a faulty premise, which was that age can be a basis for a Batson challenge. ■

In Sonny v. Batch Motor Co., 328 Ark. 321, 944 S.W.2d 7 (1997), we approved the trial court’s finding that no Batson violation existed when the proponent of the strike in question there explained to the court that it was looking for mature, conservative business people. We noted that age and occupation are neutral criteria. Id.; accord United States v. Ross, 872 F.2d 249 (8th Cir. 1989); United States v. Garrison, 849 F.2d 103 (4th. Cir. 1988). While we recognize that the United States Supreme Court has expanded Batson, as provided in Georgia v. McCollum, 505 U.S. 42 (1992), and extended the principles to a consideration of gender, J.E.B. v. T.B. ex rel. Alabama, 511 U.S. 127 (1994), it is obvious from the record that the trial court’s focus here was on the exclusion of middie-aged white males, as it inquired into the age of each juror. Therefore, its ruling was in error.

Had there been a prima facie case, the court failed to properly apply the remaining parts of the Batson test. The explanation offered by appellant was both race and gender neutral. There was no finding by the trial court that it was pretextual. When a racially neutral explanation is offered to rebut a prima facie case, the trial court shall then determine from all relevant circumstances the sufficiency of the explanation. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). This was not done; the trial court ended its inquiry after appellant’s race-neutral explanation, and seated the juror over appellant’s objection.

Mr. Burdett, who was originally the first alternate, replaced a juror before the trial commenced and participated in the decision. As appellant received a fife sentence without parole, we cannot say this error was harmless. We pointed out the following in Sonny:

The goal of fairness in jury trials is also enhanced by the venerable practice of peremptory challenges, which dates back beyond the founding of the Republic to origins in the common law. The historical practice of allowing the litigant to strike jurors for any reason came into being for the purpose of fostering both the perception and the reality of an impartial jury. The rationale supporting this practice remains valid except where the constitutional principles articulated by Batson and its progeny are violated.

Sonny v. Batch Motor Co., 328 Ark. at 325, 944 S.W.2d at 90 (citations omitted). As there was no constitutional violation in appellant’s peremptory strike, the trial court erred in overruling it.

We will address appellant’s remaining points on appeal, as they are likely to arise on retrial. Prior to trial, appellant filed a motion to suppress evidence seized during the warrantless search of a metal building located behind the duplex where he and his mother lived. In his motion, he contended that the search and seizure violated his Fourth Amendment rights because it was made “without the consent of the defendant or his mother, the other occupant of the premises and with the absence of any exigent circumstances to justify a warrantless search.” The trial court denied the motion, finding that because neither appellant nor his mother had a property interest in the shed, he lacked standing to object to the search. The trial court was correct.

“The rights secured by the Fourth Amendment are personal in nature.” Littlepage v. State, 314 Ark. 361, 368, 863 S.W.2d 276, 280 (1993) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). Before a search can be challenged on Fourth Amendment grounds, the challenger must have standing. Id. To have standing, appellant must show that (1) he manifested a subjective expectation of privacy in the area searched and (2) society is prepared to recognize that expectation as reasonable. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997).

The testimony at the suppression hearing revealed that appellant’s mother had once rented the house to which the shed belonged from Ray Freeman. Mr. Freeman also owned the duplex that Mrs. Lammers was renting at the time of the offense, and it is located near the house and the shed. However, Freeman testified that the shed went with the house. After Mrs. Lammers moved out of the house and into the duplex, the house was sold, but Mr. Freeman reacquired it when the buyer was unable to keep up with the payments. He said that Mrs. Lammers had put a motorbike in the shed at one time and left it there when the property was sold, but that the buyer had taken the motorbike and sold it.

It is not clear from the testimony whether Freeman or the buyer owned the house at the time of the offense, but the following facts are clear: (1) neither appellant nor his mother owned or rented the house with the shed, at the time of the offense and (2) the duplex where appellant lived, while in close proximity to the house and the shed, was not a “common area,” and each tenant was responsible for a fifty-foot lot that surrounded each residence. It follows that appellant did not have a reasonable expectation of privacy in the storage building, as he neither owned nor rented the property. The trial court’s decision that appellant did not have standing to object to the search is supported by a preponderance of the evidence, as presented in the suppression hearing.

Appellant next argues that the statement he made to police while in custody should have been suppressed because he did not knowingly and voluntarily waive his Fifth Amendment right to remain silent. Appellant contended in his motion to suppress that he did not knowingly, intelligently, or voluntarily waive his rights; that he was not properly or sufficiently advised of his rights; and that he was not capable of understanding those rights, due to his age and his mental and emotional state. However, the trial court’s ruling stated that there was “no evidence whatsoever of involuntariness.” It appears that appellant made an argument that his waiver was involuntary, but he received a ruling that his statement was not involuntary. The arguments are not the same.

In Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), we discussed the difference between the contention that a statement was made involuntarily and the contention that an accused did not knowingly and voluntarily waive his right to remain silent. The “voluntary statement” argument addresses whether the statements were made as the result of coercion. Id. at 129, 883 S.W.2d at 826. The “waiver of rights” argument focuses upon whether the waiver was made with a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,” as well as whether the accused made the choice, “uncoerced by police, to waive his rights.” Id., 883 S.W.2d at 825-26 (emphasis added). We pointed out in Clay that while we sometimes do not take time to point out the distinctions between the two arguments, they are clearly different arguments. Id.; see, e.g., Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989) (reaching the waiver issue but not the voluntariness issue because the voluntariness argument had not been made to the trial court). It is incumbent upon a movant to obtain a ruling in order for his argument to be considered on appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). Appellant should be mindful of the distinction between the two arguments and should he make this argument at his retrial, he will need to obtain a specific ruling on either or both arguments if he wishes to preserve the issues for our review. See Foreman v. State, supra.

Appellant’s final argument is that the trial court abused its discretion in denying his motion to recuse. Prior to trial, appellant filed a motion requesting that-the trial judge recuse from the case because one of appellant’s attorneys, J.W. Green, Jr., who was also Stuttgart City Attorney, had approved a charge of battery against the judge, resulting from an incident at a night club in Stuttgart. The Stuttgart Municipal Court had issued a warrant for the judge’s arrest, but the charge was nolle prossed at the request of the alleged victim.

At a hearing, appellant noted that after the incident, the judge had recused from another case in which the defendant was represented by Mr. Green. After hearing the arguments, the judge declined to recuse, stating that he had no argument with Mr. Green, as he was only doing his job, and that he did not have any prejudice against appellant as a result of the incident in municipal court.

We see no evidence of bias in the record that would cause us to conclude that the trial court abused its discretion in dechning to recuse. The mere presence of a complaint or suit against a judge, is not, by itself, a reason to require recusal. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). When a party has acted contemptuously toward a judge, embroiling him in a personal dispute, or when a judge cannot lay aside attitudes toward individual practitioners, we have said that he should recuse. E.g, Rosenzweig v. Lofton, 295 Ark. 573, 751 S.W.2d 729 (1988); Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985). There was no such showing here.

Bias is a subjective matter which is to be confined to the conscience of the judge. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias. There is no such showing on the record before us in this appeal.

In summary, we determine that the trial court’s error in not allowing appellant to exercise his peremptory strike against Mr. Burdett was prejudicial error requiring a new trial. We reverse and remand.

Newbern, Glaze, and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. The majority court reverses this case on a Batson issue the trial court favorably decided in the State’s favor. See Georgia v. McCollum, 505 U.S. 42 (1992); Batson v. Kentucky, 476 U.S. 79 (1986). In sum, when defendant Lammers peremptorily challenged venireman Mr. Burdett, the prosecutor objected that Lammers’s strike was based solely on race, gender, and age. The prosecutor pointed out that of Lammers’s nine peremptory strikes, seven were against white males. He also emphasized that, in making his strikes, Lammers’s counsel announced, “It is widely known in the community that black individuals tend to be less severe than white people in criminal juries in Arkansas County.” Considering Lammers’s pattern of strikes and his discriminatory statement regarding race and gender when striking veniremen, I believe the trial court was correct in finding the State had shown a prima facie case of discrimination.

While the majority opinion seems to find fault with the trial court’s reference to middle-aged white males, the record is clear that the judge’s ruling dealt with gender and race.

The Court in J.E.B. v. T.B. ex rel Alabama, 511 U.S. 127 (1994), extended the Batson principle to gender-based strikes, and the trial court here determined Lammers improperly utilized gender in striking white males. The trial judge then required Lammers to provide a gender-neutral explanation in striking Mr. Burdett. Lammers failed to do so, but instead he gave the following general, rather rambling, statement:

Mr. J. W. Green, Jr.: Your honor, the defendant’s objection goes not only to the fact that he is a white man. It wouldn’t make any difference if it was a white female. The defendant’s objection goes to the fact — further to the fact that he did not feel comfortable with the answers that were asserted by Mr. Burdett up there. The defendant is sitting here in a capital murder case. His life is on the line. And he is exercising a peremptory challenge that he thought, and believes that he has a right to exercise. If it had been a black man, or if it had been a black woman, if it had been a white man, or if it had been a white woman, would the, what he perceived and what he heard from where he sits, he would have excluded that person from the juror — jury.

Lammers’s foregoing statement merely conflicts with his earlier remarks and preconceived notions that white males are more severe than black males in criminal cases. And while Lammers mentions his case is a capital murder case, he made no suggestion that Mr. Burdett could not decide the case fairly. In fact, Lammers’s statement made no specific reference to Mr. Burdett that could be categorized as a gender-neutral explanation for his striking Burdett.

In conclusion, I would not reverse the trial court’s ruling on the Batson issue. The trial judge was correct in finding that the State made a prima facie case of discrimination, and that Lammers offered no articulate explanation for his peremptory strike of Burdett.

Newbern and Imber, JJ., join this dissent.

959 S.W.2d 35

Green & Henry, by: J. W. Green, for appellant.

Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.

SUPPLEMENTAL OPINION GRANTING PETITION FOR REHEARING

JANUARY 8, 1998

Tom Glaze, Justice.

In its original opinion, this court considered appellant Clint Lammers’s four points on appeal, and found no reversible error. Lammers v. State, 330 Ark. 324, 954 S.W.2d 489 (1997). However, because Lammers was convicted of capital murder and sentenced to life imprisonment without parole, the court examined the complete record under Ark. Sup. Ct. R. 4-3 (h), and concluded that the trial court had erred in ruling Lammers’s peremptory challenge of a middle-aged white male juror violated the requirements of Batson v. Kentucky, 376 U.S. 79 (1986). The court reversed and remanded this case for retrial on the Batson issue.

The State now files a timely petition for rehearing wherein it suggests that, in rendering this court’s decision, the court faded to give proper consideration to the trial judge’s findings when the trial court rejected Lammers’s motion to strike juror Burdett. Upon careful study and review of the record, we believe the State’s petition has merit.

During voir dire and in support of its position that juror Burdett should be seated, the State showed that (1) Lammers had used seven of his nine peremptory challenges on white males, and (2) Lammers made the remark, “black individuals are less harsh on criminal defendants in Arkansas County than white persons.” Considering Lammers’s pattern of strikes and his discriminatory statement regarding race and gender when striking veniremen, the trial court found and ruled that the State had demonstrated a prima facie case of discrimination.

In this respect, this court has repeatedly held that the trial court is in a good position to determine whether the reason for exclusion was genuine or pretextual, and the review for reversal of a trial court’s Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997); Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997), quoting Hernandez v. New York, 500 U.S. 352 (1991) (where Supreme Court stated that deference to the trial court findings on the issue of discriminatory intent makes particular sense in this context because, as noted in Batson, the finding “largely will turn on an evaluation of credibility”); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied, 117 S. Ct. 979 (1997). The Supreme Court has stated that the decisive question in a Batson ruling will be whether counsel’s explanation for a peremptory challenge should be believed and the evaluation of counsel’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” Hernandez, 500 U.S. at 365; see also Purkett v. Elem, 514 U.S. 749 (1995) (per curiam) (noting that a trial judge may choose to disbelieve implausible or fantastic reasons tendered by counsel).

Here, the record clearly supports the trial court’s findings and refusal to strike juror Burdett. Upon granting the State’s petition for rehearing, the court holds no reversible error has been shown. Therefore, we affirm.

Arnold, C.J., Brown and Thornton, JJ., dissent.

Ray Thornton, Justice,

dissenting. Clint Lammers was convicted as an accomplice to capital murder and sentenced to life without possibility of parole. Because I believe he was deprived of a fair trial by the erroneous denial of his right to a peremptory challenge during jury selection, I respectfully dissent from the majority decision on rehearing to deny Lammers a new trial. In my view, the trial court erred in its interpretation and application of the law.

Late in the process of jury selection, Lammers exercised a peremptory challenge to excuse Clifford Burdett from service. The State objected to the use of the peremptory challenge on the basis of Batson v. Kentucky, 476 U.S. 79 (1986). The State’s objection was premised on a novel approach that combined the elements of gender, age, and race; and the State persuaded the trial court that the principles of Batson required that Lammers’s peremptory challenge of Mr. Burdett, a middle-aged white male, be denied. The trial court denied the peremptory challenge and seated Mr. Burdett over Lammers’s objection. The State made its objection in the following words:

Your Honor, it is my understanding that Batson works both ways. It not only deals with race; it also deals with issues of gender. I believe I can show to the Court that. . . Mr. Burdett was stricken — stricken solely because he is a white male of middle age.

Following a discussion of J.E.B. v. T.B. ex rel. Alabama, 511 U.S. 127 (1994), relating to gender-based discrimination, Lammers inquired whether the objection to the peremptory challenge was based on gender. The State replied:

Your Honor, although the — the case cited . . . does not specifically deal with the area of age, it would be both a gender-based and age-based discrimination. ... I realize J.E.B. v. Alabama does not deal with the age issue, but we would make — make both a gender and age based discrimination argument. And, I guess, to a certain extent, based upon Mr. Green’s [counsel for Lammers] arguments made against some of my peremptory challenges. Also, I believe Mr. Burdett is being stricken also because he is a white, middle-age male.

Mr. Green’s arguments supporting his Batson objection to some of the State’s frequent peremptory challenges to black potential jurors occurred at a much earlier point in the jury-selection process. Following the State’s peremptory exclusion of Angela Silverman, a black female, and James Scaife, a black male, from service on the jury, the State peremptorily challenged Louis Berry, a black male, and the following exchange took place:

Mr. Green [making a Batson objection]: It appears to me that the only reason he is being excluded by the State is the fact that he is an Afro-American. — his statements have been very appropriate and right down the line.
The State: I am not. . . seeking his exclusion because of anything having to do with his color, simply because of my feelings or my beliefs about his ability to comprehend what we are dealing with today.
The Court: Mr. Green?
Mr. Green: Well, it’s, from where I stand, from the defense’s point of view, it’s the fact that he is an Afro-American, and the fact that he does —; in the community here it is well known that Afro-Americans do have some tendency to be lesser inclined to convict someone to such a point as to give them a death sentence.

A careful reading of this exchange leads to the conclusion that Mr. Green was arguing to the court that the State was seeking to exclude Mr. Berry from the panel because the State had adopted a community belief that black jurors were less inclined to enter a death sentence. On the basis of this Batson challenge, Mr. Berry was seated.

Following this exchange twenty potential jurors were given voir dire examinations, and five jurors were selected before the next black male, Floyd Ice, was presented for consideration. After failing to have him excused for cause, the State exercised a peremptory challenge, and Lammers’s Batson challenge was denied. Mr. Green did not specifically renew his earlier criticism of the State’s racial motives during consideration of this peremptory challenge, and Mr. Ice was excluded from jury duty. Two white males and one white female were then excused for cause by the court before Lammers peremptorily challenged Mr. Burdett. Over Lammers’s objection, Mr. Burdett was seated on the jury.

It is quite a stretch of Lammers’s argument that the State was racially motivated in its peremptory challenge of Louis Berry to reach the majority view that, having made this argument against the invidious exclusion of black jurors by the State, Lammers had made a prima facie case against his own later peremptory strike of a white juror.

It is such a stretch that the State never contends that the peremptory challenge of Mr. Burdett should be denied on the sole basis of Mr. Burdett’s race. To the contrary, when repeatedly asked for the basis of its Batson objection, the State consistently argues: “And it is our position he was stricken solely because of his gender, and his age to a certain extent, and to a certain extent his race.”

Clearly the Batson challenge to Lammers’s peremptory strike could not be sustained solely on the basis of Mr. Burdett being white. Under our well-defined standards for evaluating Batson challenges, a prima facie case of discrimination must first be shown. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 321 (1997); see also Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). If a prima facie case is shown, the party seeking to exercise a peremptory challenge must give a neutral explanation for the strike. Id.

Here, Lammers pointed out that his peremptory challenges had been used to strike females and persons of all ages, and stated: “If it had been a black man, or if it had been a black woman, if [it] had been a white man, or if it had been white woman, would the, what he perceived and what he heard from where he sits, he would have excluded that person from the jury.” This is a race-neutral explanation, and under the holdings of Purkett v. Elem, 115 S.Ct. 1769 (1995) (per curiam), the burden regarding discriminatory motivation remained upon the State, as the opponent of the strike, to demonstrate invidious discrimination.

The State thereupon attempted to show a pattern of strikes, which it argued related entirely to the age and gender of the veniremen who were peremptorily challenged by Lammers. During this sensitive inquiry into the age and gender of the challenged jurors, the State made no showing of any racial pattern of discrimination by the defendant Lammers. This may have been based upon a reluctance to open that door too wide, in view of the fact that of the State’s five peremptory challenges, at least four were used against black veniremen.

The sensitive inquiry disclosed that the defendant Lammers had used peremptory challenges to strike two young males, three females, and four middle-aged males. However, in finding that a prima facie pattern of gender discrimination existed, the trial court miscounted the males and females, and stated:

All right. Well, for the record I will note that out of nine strikes exercised by the defendant, seven of them were against white males. . . Only two of the nine strikes were against women. And under the ruling of J.E.B., and in the absence of a better explanation or basis for the exclusion of Mr. Burdett, I will have to overrule the peremptory challenge under the law.

The three females peremptorily challenged by Lammers were Paula Smith, Mary Hayes, and Carol Sells. We cannot guess whether the trial court would have found a prima facie case of gender discrimination if it had correctly counted three females, and four middle-aged males, but the trial court clearly erred in this basic count, an error which the majority endorses as being insignificant.

The one remaining element of the cumulative gender, age, and race objection to be considered is whether the trial court erred in interpreting the law by finding that age may be the basis for a Batson challenge to a peremptory strike. That is the issue on which this case was first decided, and remains the issue that should be determinative upon rehearing. This is an issue of law, and our review should be whether the trial court erred in interpreting and applying the correct law.

In numerous cases, we have held that age is a neutral criterion, and may be properly asserted as a race-neutral reason for making a peremptory challenge. See Sonny v. Batch Motor Co., supra (citing United States v. Ross, 872 F.2d 249 (8th Cir. 1989); United States v. Garrison, 849 F.2d 103 (4th Cir. 1988); People v. Mack, 128 Ill.2d 231, 538 N.E.2d 1107 (1989)).

Here the trial court was not asked to find, and did not find, a prima facie case of racial discrimination. Further, the trial court miscounted the number of males and females for the purpose of ruling on the question of gender discrimination and applied an erroneous interpretation of the law with reference to the issue of discrimination on the basis of age. As a result of these errors, the trial court denied Lammers a peremptory challenge, which he had the right to exercise. This error should require a new trial, and I respectfully dissent.

Arnold, C.J., and Brown, J., join in this dissent.

       The trial court’s finding that seven out of nine strikes exercised by the defendant were against white males is factually incorrect. A careful review of the record reveals that in the selection of the twelve original jurors, appellant had peremptorily challenged three white females, two young white males, and four older white males. During the selection of alternates before Mr. Burdett had been chosen as first alternative, three white males and one white female had been struck by the court for cause, and the court had upheld the State’s peremptory strike of a black male notwithstanding a Batson challenge.
      None of appellant’s peremptory strikes had been challenged during the selection of the first twelve jurors, and therefore no race-neutral or gender-neutral explanation was required to be given. However, a review of the record discloses that at least four of the peremptorily stricken white males had responded to questions disclosing (1) that a potential witness, the acting police chief David Cowart, was a client of the venireman, (2) an ambiguous or contradictory response as to whether the potential juror could presume innocence, (3) membership in the same church with the victim’s sister, and (4) that the venireman worked with and saw the husband of the deceased every day.

       With regard to the question whether appellant’s peremptory strikes reflected a systematic exclusion of members of the white race, we note that following the seating of Mr. Perry, a black male, it appears that every potential black juror was either dismissed for cause by the court, or peremptorily struck by the State. Thus, there was no opportunity for appellant to exercise a peremptory challenge against any non-white person.

       THE COURT: All right. Well, for the record I will note that out of nine strikes exercised by the defendant, seven of them were against white males. Two were accepted, one white and one black. Only two of the nine strikes were against women. And under the ruling ofJ.E.B., and in the absence of a better explanation or basis for the exclusion of Mr. Burdett, I will have to overrule the peremptory challenge under the law. Mr. Burdett will be our first alternate.

       The trial judge found that seven out of the nine peremptory challenges used by Lammers were against white males, the other two against women. In a footnote in the original opinion, the court suggested the trial court was wrong in finding seven white males since Lammers employed only six challenges against white men before the venireman in question, Clifford Burdett, was chosen as the first alternate juror. However, the trial court was correct because Lammers’s seventh challenge went against Burdett, and the trial court considered it when overruling Lammers’s peremptory challenge. Whether a pattern of strikes was made as a result of six or seven peremptory strikes is insignificant, especially in view of Lammers’s obvious discriminatory statement that black individuals are less harsh on criminal defendants than white persons.

       This pattern of challenges supports Lammers’s charge that the State had adopted the community belief that black jurors were reluctant to impose a death sentence. Lammers did not make any statement indicating any invidious discrimination against the selection of white jurors, but attacked the State’s pattern of using peremptory challenges to exclude black veniremen.

        In that regard, the majority asserts that the statement “black individuals are less harsh on criminal defendants in Arkansas County than white persons” is a reflection of Lammers’s racial bias. However, a careful review of the record reveals that those words were not used by Lammers’s counsel. They appear in the State’s argument at T. 1232, where they are attributed to Lammers by the State.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    STATE of Arkansas OFFICE OF CHILD SUPPORT ENFORCEMENT as Assignee of Andrea Kolen v. Garry MITCHELL
    97-51
    954 S.W.2d 907
    Supreme Court of Arkansas
    Opinion delivered October 23, 1997

      Mona Mizell, for appellant/cross-appellee.

      Mike Everett, for appellee/cross-appellant.
   Ray Thornton, Justice.

This case involves two issues: the interpretation of Arkansas Rules of Civil Procedure relating to personal service inside the State, and sovereign immunity as a bar to appellee’s claim against the State.

Rule (4) (d)(1) of the Arkansas Rules of Civil Procedure provides that substituted service of process may be made on an individual by delivering a copy of the summons and complaint “at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age . . . .” Appellant, the State of Arkansas Office of Child Support Enforcement (OCSE) asks us to adopt a liberal interpretation of the phrase, “dwelling house or usual place of abode.” The rules do not define these terms.

OCSE, acting on a paternity complaint against appellee, Garry Mitchell, served process on Mitchell by handing the summons and complaint to his mother at her house on 714 Lindsey, in Marked Tree, Arkansas. The evidence showed that Mitchell used his mother’s address for his mailing address, but that he lived at 507 Sam Anderson, in Marked Tree. When Mitchell failed to appear at the paternity hearing, a default judgment was entered under which Mitchell’s wages were garnished for child support. Mitchell immediately filed a motion to have the judgment set aside, claiming that he was not properly served and that he was not the child’s father as alleged by the child’s mother in the complaint. Mitchell failed to request an abeyance of support payments.

Six months later, the trial court suspended Mitchell’s wage garnishment pending the outcome of genetic testing for paternity. By this time, Mitchell had paid $1377 in support to OCSE. When the paternity results showed that Mitchell could not be the child’s father, OCSE moved to dismiss its paternity complaint. Mitchell counterclaimed for return of the support payments on the basis that he had not been properly served. The trial court held that service of process was invalid because Mitchell did not live at the location where process was delivered; therefore, the judgment for paternity and child support was void ab initio. Further, it found that Mitchell was precluded from suing the State for return of payments under the doctrine of sovereign immunity. OCSE appeals the judgment of the trial court on the validity of service of process, and Mitchell crossappeals the sovereign immunity ruling. We affirm on both points.

OCSE asks the court to broaden the meaning of the phrase, “dwelling house or usual place of abode” to include that location which could be reasonably calculated to provide notice to defendant of a pending action against him. OCSE supports its argument with two opinions from other jurisdictions. In Doyle v. Barnett, 658 N.E.2d 107 (Ind. Ct. App 1995), a personal-injury case, Doyle sought to have a default judgment against him set aside because service of process was not delivered to his residence, but rather to his father’s house. The evidence showed that Doyle received all of his mail at his father’s address, he listed his father’s address on the accident report, the address he maintained with his insurance company was his father’s address, and, at the time service was attempted and when he sought to have the default judgment set aide, Doyle’s driver’s license showed his father’s address. In construing dwelling house or usual place of abode, the Indiana Court of Appeals concluded that “[bjased on the totality of this evidence, we find that it was within the trial court’s discretion to determine that Doyle’s father’s address was Doyle’s usual place of abode, and because [plaintiff’s] complaint was delivered to that address, that Doyle received proper service of the complaints.” Id. at 109.

The Washington Supreme Court construed its substituted service statute so as to “effectuate the purpose of the statute while adhering to its spirit and intent.” Sheldon v. Fettig, 129 Wash. 2d 601, 607, 919 P.2d 1209, 1211 (Wash. 1996). The court recognized two purposes to its statute: “to (1) provide means to serve defendants in a fashion reasonably calculated to accomplish notice and (2) allow injured parties a reasonable means to serve defendants.” Id. at 608, 919 P.2d at 1212. In Sheldon, the defendant had lived away from her parent’s home for over two years, but maintained her driver’s license, her car insurance, her voter’s registration, and mailing address at her parent’s house. At the time of service, the defendant was living in another state. The court, recognizing that a defendant can “maintain more than one house of usual abode if each is a center of domestic activity where it would be most likely that defendant would promptly receive notice if the summons were left there,” held that defendant had received valid service when process was delivered to her parent’s home. Id. at 612, 919 P.2d at 1214.

As in Doyle and Sheldon, above, the facts in this case establish that the defendant, Mitchell, had significant contacts with the place of service. Mitchell received most of his mail at 714 Lindsey. In addition, his driver’s license, his employer, and his property assessments all listed 714 Lindsey as his address. The only two sources Mitchell identified as having his 507 Sam Anderson address were his landlord and the gas company, but it appears that he had moved from his mother’s house to the Sam Anderson address six years before the commencement of this litigation, and had not thereafter resided at his mother’s house. The record reflects that Mitchell maintained significant ties with his mother’s house. He testified that he stops by 714 Lindsey at least three time a week to see his mother and pick up his mail. OCSE claims that a defendant, who represents to most of the world that his address is at a certain location, should not be able to deny that it is otherwise. As a conscientious plaintiff, OCSE pleads that it should not suffer an adverse judgment when it relied on an address that Mitchell reported to sources that OCSE regularly uses for locating putative fathers.

Notwithstanding the views of the courts cited above and OCSE’s argument, we are bound to prior case law under the doctrine of stare decisis. The policy behind stare decisis is to lend predictability and stability to the law. Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds). In matters of practice, “adherence by a court to its own decisions ... is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases.” Brickhouse v. Hill, 167 Ark. 513, 523, 268 S.W. 865, 868 (1925) (quoting 7 R.C.L. 1008 (1915)). In Parish, this court held that “[precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Parish, 244 Ark. at 1252, 429 S.W.2d at 52. The test is whether adherence to the rule would result in “great injury or injustice.” Independence Fed. Bank v. Webber, 302 Ark. 324, 331, 789 S.W.2d 725, 730 (1990).

The issue of substituted service was squarely addressed in Sims v. Prescott Feed Mills, Inc., 286 Ark. 22, 688 S.W.2d 743 (1985). In Sims, the defendant and his brother lived in the same dwelling. The sheriff attempted to deliver service by handing a copy of the summons and complaint to defendant’s brother at law offices of plaintiff s attorney. The defendant never saw the papers. We held that service was void because an attorney’s office is not the defendant’s dwelling. In so ruling, we said: “Substituted service is a departure from the common law, and rules or statutes providing for it are mandatory and to be complied with exactly.” Id. at 23, 688 S.W.2d at 744 (citing Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). We said that this construction of the rule is the “most certain mode of conveying actual notice to an absent defendant.” Id. at 23-24, 688 S.W.2d at 744. In Edmonson, like the case at bar, the appellant moved the court to set aside the default judgment on the ground of defective service of process. The appellant’s wife testified that she collected the summons and complaint at the sheriff s office. In that case, we stated that because the deputy failed to comply with the mandatory provisions of substituted service, the judgment was void ab initio. Id. at 509, 565 S.W.2d at 618.

OCSE argues that the Sims and Edmonson cases did not address construction or definition of “dwelling” or “abode,” but rather, that these cases are predicated upon obvious departures from the rule. In Sims, the summons and complaint were left at a lawyer’s office, not at the defendant’s, or anyone else’s residence. In Edmonson, defendant’s wife was served at the sheriffs office. OCSE argues that these cases are not on point with the facts present here, as the court did not have to decide whether a residence where service was effected was the defendant’s dwelling or usual place of abode.

OCSE’s point is well taken. This court, however, defined the term, “usual place of abode” in McGill v. Miller, 183 Ark. 585, 37 S.W.2d 689 (1931). In McGill, we held that “[ojne’s usual place of abode, in its ordinary acceptation and in the sense used by the statute, means the place where a person lives or has his home, that is, his fixed permanent home; the place to which he has — whenever he is absent — the intention of returning.” Id. at 589, 37 S.W.2d at 690. The defendant in McGill had moved to Little Rock three months before the institution of the suit. He had a permanent job and intended to move his family to Little Rock as soon as he could sell his house in Lafayette County. We held that service was insufficient when his wife was served at the Lafayette County home because the defendant had changed his usual place of abode.

Applying the McGill definition of place of abode to the facts in this case, we hold that Mitchell has his usual place of abode in a trailer at the 507 Sam Anderson address. He lives in the trailer, and pays the rent and utilities at that address. Mitchell testified that he does not five with his mother at the 714 Lindsey address. In fight of our holdings that the rule for substituted service of process must be complied with exactly, and because Mitchell intends 507 Sam Anderson as his fixed and permanent home, it follows that service of process at 714 Lindsey was insufficient for the purpose of proper notice.

The factual circumstances in this case are such that continued adherence to precedent does not “give a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Parish, at 1252, 429 S.W.2d at 52. It may be that a change in rules to place a liberal construction on the meaning of dwelling house or usual place of abode to include a “reasonable notice” component might become appropriate in the future, but we choose to proceed with caution. We should not lose the predictability of knowing that the method of service is the most certain to convey actual notice to an absent defendant. A departure from the settled rule could lead to an escalation of litigation over notice as parties dispute whether notice was actually received, or whether the chosen method was reasonable.

We also note that the current rule does not unduly burden a conscientious plaintiff. If the defendant cannot be served in person or at the place he resides, then the rules provide that the plaintiff may serve process by sending “any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.” Ark. R. Civ. P. 4(d)(8)(A). For these reasons, in keeping with the doctrine of stare decisis we adhere to the current rule.

Because service of process was insufficient to give notice, the default judgment below is void ab initio. Ark. Code Ann. § 16-65-108 (1987). We reach now Mitchell’s claim that the doctrine of sovereign immunity does not bar the court from awarding judgment and assessing damages against the State for monies paid to the custodial parent as child support by him. The doctrine of sovereign immunity comes from constitutional law providing that “[t]he State of Arkansas shall never be made Defendant in any of her courts.” Ark. Const, art. 5, § 20. We have held that the doctrine of sovereign immunity is rigid and, as such, immunity may be waived only in limited circumstances. Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 258, 943 S.W.2d 230 (1997) (citing State v. Staton, 325 Ark. 341, 934 S.W.2d 478 (1996)). Under the doctrine, the State possesses jurisdictional immunity from suit. Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). Where the suit is one against the State and there has been no waiver of immunity, the trial court acquires no jurisdiction. Cross, 328 Ark at 259, 943 S.W.2d at 232. We have recognized exceptions to the doctrine of sovereign immunity when an act of the legislature has created a specific waiver of immunity, and when the State is the moving party seeking specific relief. Id. (citing State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996); Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990), cert. denied 498 U.S. 824 (1990)). Mitchell argues that, here, the State waived its immunity defense when it brought the paternity and child-support actions against him. We disagree.

In Fireman’s Insurance, we noted that “[t]he only exception to total and complete sovereign immunity from claims which have been recognized by this court occurs when the state is the moving party seeking specific relief. In that instancef,] the state is prohibited from raising the defense of sovereign immunity as a defense to a counterclaim or offset.” Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 455, 784 S.W.2d 771, 774 (1990), cert. denied 498 U.S. 824 (1990) (quoting Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953). In Parker, this court refused to consider the State’s immunity defense when the State Commissioner of Revenues, who was named as a defendant, intervened and

crosscomplained, asking for specific relief. Parker v. Moore, 222 Ark. 811, 812, 262 S.W.2d 891, 892 (1953). Relying on Fireman’s Insurance, Mitchell concludes that he is not precluded from claiming a refund because his action in this case was by counterclaim.

In addressing the sovereign-immunity issue, we first decide whether Mitchell has made a claim against the State. If he has, then sovereign immunity applies unless the State has waived its defense. We established the test for determining whether a suit is one against the State in Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938). There, we held that when the relief sought by a decree “operates to control the action of the state or subjects it to liability, the suit is in effect a ‘suit against the state’ and cannot be maintained without state consent.” Ralls v. Mittlesteadt, 268 Ark. 741, 743, 596 S.W.2d 349, 351 (1980) (citing Page, 196 Ark. at 336-37, 118 S.W.2d at 235)). Accordingly, it is the effect of tapping the state treasury that makes the State a defendant. See Magnolia Sch. Dist. 14 v. Arkansas State Bd. of Educ., 303 Ark. 666, 799 S.W.2d 791 (1990) (noting that this court will not order the State Treasurer to refund money already spent, as such an action would amount to a suit against the State).

We conclude that Mitchell has made a claim against the State. In the action below, OCSE served only as a conduit for support payments. OCSE collected the money from Mitchell and disbursed it directly to the custodial parent. Were OCSE ordered to refund previously paid child support, the only source of payment would be the State Treasury. Such a judgment would subject the State to liability, making the State a defendant as contemplated by the prohibition in Ark. Const, art. 5, § 20. As such, the suit is one against the State, which cannot be maintained unless the State has waived its immunity defense.

To determine whether the immunity defense has been waived, we address two questions: (1) Did the State become a “moving party” by virtue of bringing the paternity and child-support actions; and (2) is the State asking for specific relief. Two recent cases inform our decision that the State is not a moving party. Arkansas Dep’t of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993); D.H.S. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). In Cmnkleton, we held that the statute providing for wage assignments and deductions for child support “affords no jurisdiction over the state.” Crunkleton, 303 Ark. at 23, 791 S.W.2d at 705 (referring to Ark. Code Ann. § 9-14-102 (Repl. 1993)). Instead, the statute “merely provides a means by which the payment of child support can be more effectively enforced.” Id. In that case, DHS did not become a moving party for the purposes of waiver when it acted under the provisions of the statute to collect child-support payments. The next case extends this proposition.

In Arkansas Dep’t of Human Servs. v. State, the precipitating act was DHS’s petition for custody of certain juveniles. In a subsequent action against DHS for court costs and restitution arising from offenses these juveniles committed, DHS claimed the immunity defense. We held that the State was not a moving party when it sought custody of juveniles and appeared in dependency-neglect proceedings. Id. at 488-89, 850 S.W.2d at 850. We acknowledged the trial court’s finding that DHS is obligated, by statutory mandate, to initiate petitions in juvenile court whereby it voluntarily subjects itself to the jurisdiction of the court. We held that because DHS was under an obligation to appear, it did not voluntarily waive sovereign immunity. Id. at 489, 850 S.W.2d at 851 (distinguishing Arkansas Game & Fish Comm’n v. Lindsey, 299 Ark. 249, 771 S.W.2d 769 (198)).

Like the State in Arkansas Dep’t of Human Services and Crunkleton, OCSE, in bringing its paternity and child-support actions, is acting pursuant to statutory mandate. Under Title IV, part D of the Social Security Act, a state receiving federal funds to administer a plan for child and spousal support must “provide services relating to the establishment of paternity or the establishment, modification, or enforcement of child support obligations . . . to . . . any other child, if an individual applies for such services with respect to the child; and enforce any support obligation established with respect to . . . the custodial parent of such a child.” 42 U.S.C. § 654(4)(A)(ii), 654(4)(B)(ii) (Supp. 1997). Select sections within Title 9 of the Arkansas Code, including wage assignments and deductions for child support, govern OCSE actions. Applying the reasoning of Crunkleton and Arkansas Dep’t of Human Servs., OCSE did not become a moving party for the purpose of waiver when it initiated a paternity and child-support action against Mitchell. Pursuant to statutory law, OCSE was obligated to subject itself to the jurisdiction of the court to procure and enforce child support for the custodial parent. In so doing, it did not voluntarily waive sovereign immunity.

As to whether OCSE sought specific relief, we note, again, that OCSE initiated the action on behalf of the custodial parent for whom it sought specific relief. That parent and the child were not welfare recipients, so OCSE did not itself benefit from the suit by recouping any of the monies collected from Mitchell as an offset to a welfare debt. It follows, then, that even if OCSE were a moving party, it did not waive its immunity defense because it did not seek specific relief for itself.

Mitchell has not sought permission to sue the State, nor has the State waived its immunity. See Arkansas Dep’t of Human Servs. v. State; D.H.S. v. Crunkleton, supra. Therefore, the trial court was correct in ruling that Mitchell’s claim is barred by the doctrine of sovereign immunity. Plaintiffs like Mitchell, however, are not left without remedy. The Arkansas State Claims Commission was established to provide for payment of all just and legal debts of the State. Ark. Code Ann. §§ 19-10-201 to -210 (Repl. 1994).

We are bound by the doctrine of stare decisis and the rule of construction of laws in derogation of the common law. As a result, we decline to place a liberal construction on the meaning of dwelling house or usual place of abode in the substituted process rule. This phrase means what it says it means: the place where the defendant lives or resides. Because service of process was delivered to Mitchell’s mother’s residence, service was invalid to give notice, resulting in void paternity and wage-garnishment judgments. Under the principles of sovereign immunity, this court does not have jurisdiction to order the State to refund Mitchell’s child-support payments.

Affirmed.


author: Per Curiam.

text:
    FARM BUREAU POLICYHOLDERS and MEMBERS, Dennis Lee, Class Representative v. FARM BUREAU MUTUAL INSURANCE COMPANY of ARKANSAS, INC., and Southern Farm Bureau Casualty Insurance Company, Inc.
    97-1028
    952 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered October 23, 1997

      Gibson Law Office, by: Charles S. Gibson, for appellants.

      Friday, Eldredge & Clark, by: Robert S. Shafer and William A. Waddell, Jr., for appellees.
   Per Curiam.

Appellees Farm Bureau Mutual Insurance Company, Inc., and Southern Farm Bureau Casualty Insurance Company, Inc., have moved to dismiss the appellant’s appeal. The basis of this motion is the contention that Judge Lawrence Dawson did not have the authority to extend the time for filing the record on appeal.

Judge Dawson was assigned this case on April 4, 1994, after the recusal of the other chancellors in Chicot County. The case was tried and Judge Dawson entered a decree on December 31, 1996, finding in favor of appellees and dismissing appellants’ complaint with prejudice. Judge Dawson’s term of office expired on December 31, 1996. On January 23, 1997, Judge Dawson’s assignment was terminated and Judge Jim Gunter was assigned to preside in the case. On January 28, 1997, Judge Gunter notified the administrative office of the courts that he must recuse. On February 12, 1997, the assignment of Judge Gunter was terminated.

Appellants’ motion for new trial was not acted upon and was deemed denied by operation of law on February 10, 1997. On February 21, 1997, appellants timely filed notice of appeal and designation of record. On March 31, 1997, appellants timely moved for an extension of time to lodge the record of appeal; this motion was granted and signed by Judge Dawson on April 7, 1997. The order was filed on April 9, 1997; Judge Dawson extended the time to lodge the record on appeal to September 21, 1997. Appellant filed the record with this court on September 4, 1997.

Appellees contend that Judge Dawson had no authority to enter the order extending time to lodge the record on appeal. Based upon this lack of authority, appellees claim that such filing of the record is outside of time prescribed by Rule 5(a) of the Arkansas Rules of Appellate Procedure — Civil and is untimely.

On February 27, 1997, pursuant to Act 274 of General Assembly, Governor Mike Huckabee appointed Judge Dawson Chancellor of the Fifth Division of the Chancery Court of the Eleventh Judicial Circuit-West for a two-year term expiring on December 31, 1998. Section (d) of the Act provides that said Chancellor “may be assigned to any and all . . . chancery circuits of the State of Arkansas where the local chancellor or chancellors have recused or have been disqualified.”

Judge Dawson was the original trial judge in this case and was a duly qualified chancellor at the time he signed the order of April 7, 1997, despite the fact that the case was not officially assigned to him. Judge Dawson was a defacto judge on that date. American Jurisprudence defines a de facto judge as follows:

A defacto judge may be defined as one who occupies a judicial office under some color of right, who exercises the duties of the judicial office under color of authority pursuant to an appointment or election thereto, and for the time being performs those duties with public acquiescence, though having no right in fact, because the judge’s actual authority suffers from some procedural defect.

46 Am. Jur. 2d Judges § 242 (1994).

The rule governing validation of acts of defacto officials is based upon public policy, and its origin and history show it is founded in comparative necessity. Landthrip v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980), citing Adams v. Lindell, 5 Mo. App. 197 (1878). The doctrine rest upon principles of protection of the public and third parties, and was engrafted upon the law as a matter of policy and necessity to protect the interest of the public and individuals involved in the acts of persons performing the duties of an official without actually being one in law. Landthrip v. City of Beebe, supra, citations omitted. See also, Chronister v. State, 55 Ark App. 93, 931 S.W.2d 444 (1996). In Landthrip v. City of Beebe, this court extended the doctrine of defacto officials to the courts based upon the fact that such courts are authorized by law, even when defectively done.

In the case before us, a time existed where no judge was formally assigned to this case. Judge Dawson’s jurisdiction would, have continued had his term not expired. Judge Gunter’s recusal left this case without a presiding judicial officer; therefore, as a matter of law, motions were denied by the absence of a timely ruling. We conclude that Judge Dawson was a de facto judge when he ruled upon the motion for an extension of time. Although his authority over the case at hand was defective, he was a duly authorized chancellor. In the interest of public policy, we hold that his ruling is effective, and the appellees motion to dismiss is denied.

Glaze and Corbin, JJ., not participating.


text:
    Jesse Dewayne WICKLIFFE v. STATE of Arkansas
    TEN 96-108
    953 S.W.2d 60
    Supreme Court of Arkansas
    Opinion delivered October 23, 1997

      John Wesley Hall, for appellant’s counsel, A. Wayne Davis.
    No response.
   Per Curiam.

On October 2, 1997, we issued an order for A. Wayne Davis, counsel for the appellant, to appear before this court at 9:00 a.m., Thursday, October 16, 1997, to show cause why he should not be held in contempt of this court for his failure to perfect appellant Wickliffe’s appeal in a timely manner.

A.' Wayne Davis appeared with his attorney, John Wesley Hall, on October 16, 1997. At that time, he entered a plea of not guilty and requested a hearing. Therefore, we appoint the Honorable Robert H. Dudley as a master to conduct the hearing. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether A. Wayne Davis should be held in contempt.


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

text:
    Barbara J. BEATTY, Individually and as Natural Guardian of Kristi Beatty, and Kristi Beatty v. USAA CASUALTY INSURANCE CO.
    97-349
    954 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered October 30, 1997

      Pike & Bliss, by: George E. Pike, Jr., and Deborah Pike Bliss; and Clifton H. Hoofman, for appellants.

      Wright, Lindsey & Jennings, by: Patrick J. Goss, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This case involves an interpretation of the term insurable interest found in Ark. Code Ann. § 23-79-104(b) (Repl. 1992). Appellants claim that they have an insurable interest in an automobile and are entitled to the policy proceeds of an insurance contract covering property damage to the automobile. The trial court granted summary judgment for the insurer based upon the finding that appellants did not have an insurable interest. Appellants claim error in this ruling; we agree and reverse and remand.

On June 24, 1993, Douglas Beatty had a Toyota Célica delivered to his daughter Kristi for her sixteenth birthday. Mr. Beatty lived outside of the State of Arkansas, visited Arkansas, selected a car to purchase for his daughter, and made arrangements for its delivery on her birthday. Barbara Beatty, as natural guardian of Kristi, added the car to her existing insurance policy with USAA Casualty Insurance Company (hereinafter, “USAA”). The policy included coverage for liability as well as property damage. The policy’s loss clause read as follows: “Loss or damage under this policy shall be paid, as interest may appear, to you and the loss payee shown in the Declarations.” No loss payee was listed in the declarations.

On November 20, 1994, Kristi was involved in an automobile accident that resulted in the total loss of the car. USAA determined that the net loss was $13,924.75. Before acting on the claim, USAA discovered that Douglas Beatty held certificate of title for the automobile and additionally found a lien on the car securing a promissory note executed by Douglas Beatty on behalf of the Arkansas Federal Credit Union (hereinafter, “Credit Union”). USAA paid $11,772.50 to the Credit Union in satisfaction of the lien and accepted title of the car to sell for salvage value. The lien by the Credit Union was unbeknownst to Barbara and Kristi Beatty, and the Credit Union was not noted as a loss payee on the policy. USAA tendered payment to Barbara Beatty for the remaining $2,152.25 as payment in full for the claim. Ms. Beatty refused payment based upon the contention that she was entitled to the entire $13,924.75.

Barbara Beatty brought suit against USAA, individually and in her capacity as natural guardian of Kristi Beatty. Ms. Beatty claimed that full payment should have been made to her by USAA because she was the policy holder and there was no loss payee named in the policy. Ms. Beatty contends that USAA was not authorized to pay the proceeds of the insurance contract to a third party with whom she had no contractual obligation. USAA contends that neither Barbara Beatty nor Kristi Beatty had an insurable interest in the automobile and that its payment to the Credit Union was proper. The trial court granted USAA’s motion for summary judgment ruling that neither Barbara Beatty nor Kristi Beatty had an insurable interest. This ruling was based solely upon the fact that Douglas Beatty held the title to the automobile, and thus, neither Barbara or Kristi Beatty could have an insurable interest.

Barbara and Kristi Beatty appeal this ruling. Appellants contend that Douglas Beatty’s holding title does not preclude another party from also having an insurable interest. Appellants contend that Kristi had an insurable interest in the automobile upon receiving it as a gift from her father, Douglas Beatty. Appellants also contend that Barbara Beatty had an insurable interest in the automobile through her duty as natural guardian of Kristi to protect her minor daughter’s property. Additionally, appellants argue that Arkansas statutes imposing liability on Barbara Beatty as the natural guardian of Kristi Beatty by requiring her to assume joint and several liability in order for Kristi to obtain a driver’s license creates an insurable interest in the automobile. In addition to the insurable interest issue, appellants also contend that USAA is not authorized to pay a third party who is not designated as a loss payee under the original insurance contract and who is not in privity with the insured.

We agree with appellants that the trial court erroneously ruled on the issue of insurable interest and reverse and remand this case on that basis. The issue of whether USAA was authorized to make a payment to a third party not named as a loss payee and not in privity with the insured was not directly ruled upon by the trial court, so we will not address that issue.

The remedy of summary judgment should only be granted when there exists no genuine issue of material fact, and the party moving for summary judgment is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Smothers v. Clouette, 326 Ark. 1017, 1020, 934 S.W.2d 923 (1996). The issue is to be viewed in the light most favorable to the party opposing summary judgment, and all inferences and doubts should be resolved against the moving party. Id. If the party moving for summary judgment makes a prima facie showing that no issues of fact exist and the nonmoving party fails to show that such issues do exist, then this court must affirm a trial court’s granting of summary judgment. Pyle v. Robertson, 313 Ark. 692, 694, 858 S.W.2d 662 (1993).

In reviewing appellants’ argument that Kristi Beatty had an insurable interest in the automobile, we will view all inferences and doubts against USAA. The most important inference in this situation is whether there was a gift of the automobile to Kristi Beatty. This issue was disputed by the parties’ briefs, and it is plausible that this issue alone could warrant reversal of the granting of summary judgment as the existence of a genuine issue of material fact; however, the trial court’s ruling was not based upon this issue, but upon the determination that two parties cannot have an insurable interest in the same automobile. Therefore, for purposes of this appeal, we will accept that there was a valid gift made to Kristi Beatty upon the receipt of the automobile for her sixteenth birthday. We do note, that upon remand, this issue may be contested, and a factual determination can then be made.

A person must have an “insurable interest” in property in order to have an enforceable insurance contract. Ark. Code Ann. § 23-79-104(a) (Repl. 1992). “Insurable interest” is defined in § 23-79-104(b) as “any actual, lawful, and substantive economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.”

The trial court determined that neither Barbara nor Kristi Beatty had an insurable interest based solely upon the fact that Douglas Beatty retained the title. Title indeed establishes a prima facie case of ownership; however, ultimate ownership is to be established by all evidence regarding property. See Robins v. Martin, 231 Ark. 43, 328 S.W.2d 260 (1959). It is obvious that the trial court did not examine the factors surrounding the ownership of this car; the ruling relies solely upon the holding of the certificate of title by Douglas Beatty.

The trial court erroneously concluded that Douglas Beatty’s insurable interest, by virtue of holding title, precluded another party from also having an insurable interest. It is not inconsistent that two parties can have independent insurable interests in one piece of property. See Page v. Scott, 263 Ark. 684, 567 S.W.2d 101 (1978) (both lessor and lessee have an insurable interest in leased property, and either may insure his interest for his own benefit); see also Hale v. Simmons, 200 Ark. 556, 558, 139 S.W.2d 696 (1940); John Alan Appleman et al., 4 Insurance Law .& Practice § 2134, at 54. In such a situation, both parties are free to insure their respective interests in the property.

Initially, we will address the facts supporting Kristi Beatty’s insurable interest through receiving the automobile as a gift from her father. In the affidavits supporting the motion for summary judgment, Barbara Beatty stated that Douglas Beatty had promised Kristi a car for her sixteenth birthday. Before her birthday, he visited Little Rock from out of state, purchased a car and had it delivered to Kristi on her birthday. The delivery was made to the address where Barbara and Kristi lived. At the time of the delivery of the car and at all times subsequent, Barbara had sole custody of Kristi. None of these facts are disputed by USAA.

According to Irvin v. Jones, 310 Ark. 114, 117, 832 S.W.2d 827 (1992), a valid inter vivos gift is effective when the following requirements are proven by clear and convincing evidence:

(1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift.

See also Ragland v. Commercial Nat’l Bank of Ark, 276 Ark. 418, 420, 635 S.W.2d 258 (1982). In the case at hand, there was clearly actual delivery. The evidence is undisputed that Douglas Beatty lived in another state and never attempted to exercise dominion or control over the automobile and that Kristi Beatty accepted the car. The sole issue is whether Douglas Beatty intended to make the automobile a gift or whether his retaining title indicated that he did not consider the automobile a gift.

In order for a gift to be valid, transfer of title is not necessary. The intent of the donor can negate the fact that actual title was not transferred. In Shipp v. Davis, 25 Ala. App. 104, 141 So. 366 (1932), a father delivered an automobile to his son, paid for the license and assessment in his own name, and retained tide. A valid gift was found despite retention of title because the father passed possession of the automobile to his son on the date of purchase and never exercised dominion or control again. Id; see also, 100 A.L.R. 2d 1219, 1232 (1965).

Based upon the evidence before us, we determine that there could have been a valid inter vivos gift of the automobile to Kristi Beatty, thus giving her an insurable interest in the automobile. Thus summary judgment in favor of USAA was erroneous.

Secondly, Kristi Beatty has an insurable interest based upon her possessory interest in the automobile. In Hinkle v. Perry, 296 Ark. 114, 119, 752 S.W.2d 267 (1988), we determined that “an insurable interest is not dependent upon ownership. The fact that one has an insurable interest is not probative of ownership but only goes to prove that the interest is among those considered insurable as opposed to those which are not.” The court of appeals defined insurable interest by citing Couch on Insurance, which states:

Generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its continued existence and suffer some loss or disadvantage by its destruction. If he would sustain such loss, it is immaterial whether he has, or has not, any title in, or hen upon, or possession of, the property itself.

Hartford Fire Ins. Co. v. Stanley, 7 Ark. App 94, 96, 644 S.W.2d 628 (1983) citing, 3 Couch on Insurance §24:13 (2d ed. 1960).

According to Richards on Insurance, Insurable Interest §2:5, in order to have an insurable interest, a party does not have to have legal title to the property insured, but some legal basis for the assertion of interest. This legal interest can be based upon “(a) factual expectation of damages, (b) property interests, (c) legal liability, (d) and contract right.” Id. atp. 174. If Douglas Beatty did effectuate a gift to Kristi, she has a property interest in the car by right of a legal property interest. Additionally, Kristi also has an insurable interest through the expectation of economic disadvantage if there is damage to the insured property. Kristi was placed in economic disadvantage when the car was destroyed; she has no car and no proceeds from an insurance policy to procure another one. According to Couch on Insurance 3d., §41:10, “if the insured would sustain a loss by the destruction of the insured property, it is immaterial whether he or she has any title in, hen upon, or possession of, the property itself.” Id., citing Hartford Fire Ins. Co. v. Stanley, 7 Ark. App. 94, 644 S.W.2d 628 (1983). Furthermore, according to Couch, “any interest in property, legal or equitable, conditional, contingent, or absolute is insurable. Even the mere right to use property is insurable. . Couch on Insurance 3d., §41:10.

Based upon the foregoing reasons, we hold that Kristi Beatty had an insurable interest in the automobile. As the natural guardian of Kristi Beatty, Barbara Beatty is required by Ark. Code Ann. § 28-65-501 (Supp. 1995) to “have the care and management of the estate” of her daughter. In Howard et al. v. Ark. Nat’l Bank of Hot Springs et al., 214 Ark. 70, 214 S.W.2d 914 (1948), we determined that a guardian could be held liable for failures to exercise prudence and due care in managing the estate of a minor. This legal obligation certainly gives Barbara Beatty an insurable interest in the automobile on behalf of her minor daughter.

USAA argues that allowing Barbara and Kristi Beatty to recover the insurance proceeds would constitute unjust enrichment because they had no legal obligation to pay for the automobile. We do not find that to be a compelling argument. Given the fact that more than one party can have an insurable interest in a piece of property, Douglas Beatty, too, was free to purchase property insurance to insure against his indebtedness in the car; he simply chose not to do so. Both parties cloud this issue with arguments regarding the duty and ability of one parent over the other to purchase liability insurance to insure Kristi’s driving; however, liability insurance is not at issue here. An insurable interest for the purpose of property insurance on the automobile is the only issue. The important facts are undisputed, Barbara, as guardian of Kristi, purchased both liability insurance and property insurance in the same policy; this property insurance was to insure against Kristi’s loss of her car; Douglas Beatty did not procure any insurance on the automobile.

Based upon these the findings of insurable interests, we hold that the trial court erroneously determined that Barbara Beatty and Kristi Beatty did not have insurable interest in the automobile based upon the fact that Douglas Beatty held the certificate of title. Therefore, the court was in error in granting summary judgment to USAA.

Appellants’ second argument is that USAA was not authorized to pay the insurance proceeds to a party that was not designated as loss payee on the insurance contract and that was not in privity with the insured. This argument certainly may have merit given the personal nature of insurance contracts and the theory of unjust enrichment; however, it is not clear that the trial court actually addressed this issue, so we will not reach the merits of this argument. In ruling on the issue of insurable interest, the trial court stated, “I further think that USAA may well have made a voluntary payment that they didn’t have to make since this lien was not recorded. . .nor was. . .a security interest ever shown. . . .” Since it is clear that the trial court based its granting of summary judgment on the sole finding that neither Barbara Beatty nor Kristi Beatty had an insurable interest, it is on that issue that we remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

Newbern and Imber, JJ., not participating.


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

text:
    STATE of Arkansas v. Mike GRAY
    CR 97-460
    955 S.W.2d 502
    Supreme Court of Arkansas
    Opinion delivered October 30, 1997
    [Supplemental opinion on denial of rehearing issued December 18, 1997.]

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Asst. Att’y Gen., for appellant.

      Castleman Law Firm, by: Bob Castleman, for appellee.

       Glaze, J. dissents.

   W.H. “Dub” Arnold, Chief Justice.

The State brings this interlocutory appeal under Ark. R. App. P. — Crim. 3(c), asserting the grounds that the trial court (1) improperly suppressed a one-pound bag of marijuana allegedly abandoned by appellee Mike Gray; and (2) erroneously concluded that appellee had standing to challenge the validity of a search warrant to search another person’s residence. The Attorney General maintains, as it is required to do under Rule 3(c), that the correct and uniform administration of justice requires our review of the trial court’s suppression order. Because we conclude that neither issue raised by the State involves the correct and uniform administration of justice, we dismiss the appeal.

On June 24, 1994, officers with the Third District Judicial Task Force met with a confidential informant to arrange an undercover sale of marijuana and crystal methamphetamine to Lavern Bruton at his residence in Pocahontas, Arkansas. Later that evening, the informant went to Bruton’s residence with ten pounds of marijuana and an eight-ball of crystal methamphetamine that had been provided to him by the task force. While the informant was inside the residence, Bruton telephoned appellee Mike Gray and instructed him to come to his house. When appellee arrived in a silver van, officers who were conducting surveillance observed Bruton come outside and sell him one pound of marijuana. After the sale, appellee drove away from the residence. Soon thereafter, officers executed a search warrant of the Bruton residence and recovered nine pounds of marijuana. When officers stopped appellee in his van, they found no controlled substances. However, while appellee was stopped, officers found a bag of marijuana in a ditch. The mark on the bag matched the markings on the other bags found in the Bruton residence that the informant had given Bruton.

Appellee was charged by felony information with possession of a controlled substance with intent to deliver. Thereafter, he filed a pretrial motion to suppress the one-pound bag of marijuana on the ground that it had been obtained pursuant to an invalid search warrant of Bruton’s residence. He further argued that he was on Bruton’s private property upon Bruton’s invitation when he was “unlawfully observed” by the officers. He further claimed that the warrant to search Bruton’s residence was invalid because it was an “anticipatory warrant.” The trial court conducted a suppression hearing at which Bruton testified, confirming that he had indeed delivered one pound of marijuana to appellee on the night in question. At the conclusion of the hearing, the trial court granted appellee’s motion and suppressed the bag of marijuana found in the ditch, from which the State now brings this interlocutory appeal.

The first issue presented is whether the trial court should have determined that appellee abandoned the marijuana in question and thus abandoned his rights under the Fourth Amendment. Before addressing the merits of this claim, we must first decide whether this issue is properly before us under Rule 3(c). Specifically, we must decide whether the correct and uniform administration of justice requires us to review this point.

In support of its argument, the State refers us to three cases regarding abandonment of Fourth Amendment rights. See Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989) (cocaine admissible where appellant tossed aside container of cocaine when he saw officers approaching him); Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989) (jacket and gun left at friend’s home held abandoned); and Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989) (appellant who fled his vehicle after traffic stop abandoned any expectation of privacy in car and its contents). A review of these decisions illustrates that the issue of abandonment necessarily turns on the facts in a given case. See State v. Tucker, 268 Ark. 427, 428, 597 S.W.2d 584 (1980) (“ [Abandonment is a fact question generally determined by a combination of acts and intent”).

Because the trial court’s decision in the present case necessarily turned on whether appellee in fact abandoned the marijuana, we must conclude that the resolution of this issue does not require an interpretation of our criminal rules with widespread ramifications. See State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997); citing State v. Harris, 315 Ark. 595, 597, 868, S.W.2d 488 (1994):

Where the trial court acts within its discretion after making an evidentiary decision based on the facts at hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim. P. 36.10 (now Ark. R. App. P. — Crim. 3(c)). '

We reach a similar conclusion regarding the State’s second allegation of error; that is, that the trial court erred in determining that appellee had standing to challenge the validity of the search warrant obtained to search Bruton’s-residence. Resolution of this issue required the trial court to determine whether appellee manifested a subjective expectation of privacy in Bruton’s residence and whether society is prepared to recognize this expectation as reasonable. See Dixon v. State, 327 Ark. 105, 937 S.W.2d 742 (1997). Because this issue presented a mixed question of law and fact, it too is not appealable.

It is well-setded that we only accept appeals by the State when our holding would establish important precedent. State v. Hart, supra; State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). As neither issue presented by the State involves the correct and uniform administration of justice, we dismiss the appeal.

Appeal dismissed.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. I respectfully dissent. The majority court misreads appellee Mike Gray’s and the State’s briefs. This case does not deal only with abandonment of the one pound of marijuana with which Gray was charged. Nor is this appeal about a trial judge who failed to follow or misapplied established precedent concerning abandonment of contraband. The issue argued and considered by the trial judge, and now on appeal by both parties, is as follows: Assuming Gray had no standing to suppress the marijuana because he threw it from his vehicle and abandoned it, did other earlier events, occurring that same evening, constitute an illegal seizure that made the marijuana the product of an unlawful seizure and therefore inadmissible? Gray cites Rule 16.2(a)(4) of the Arkansas Rules of Criminal Procedure in support of his argument that the trial court correctly suppressed the marijuana as having been unlawfully seized.

Gray’s argument is that the one-pound bag of marijuana that was thrown from his vehicle had earlier been illegally seized by Officer Poe. Gray explains that, earlier the same evening when he was arrested, Poe was unlawfully positioned on the private property of Lavern Bruton when Poe saw Bruton come out of his house to enter Gray’s car parked in the driveway. Poe witnessed Bruton and Gray transact the sale of marijuana. Gray argues he had a legitimate expectation of privacy while his car was parked in Bruton’s driveway, and because Poe was on Bruton’s property without his consent, the one-pound bag of marijuana was deemed illegally seized at that stage. Specifically, Gray, utilizing language in Rule 16.2(a)(4), urges that the one pound of marijuana suppressed by the trial judge had been obtained as a result of “other evidence” unlawfully obtained. That “other evidence,” he claims, was Officer Poe’s unlawful observation of Gray.

The State points out that, although our court has never addressed the issue raised here, other appellate courts have, and held the defendant in such circumstances does not have a legitimate expectation of privacy in an open driveway. Again, the issue presented is precedent setting and, in my view, worthy of this court’s consideration under Ark. R. App. P. — Crim. 3(c). The precedent setting question aside, this court has said that, even when it has already decided the issue presented in a case and has created precedent which will assure the correct application of the law, the court still will permit an appeal that will foster uniform application of the law. State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997); see also State v. Dennis, 318 Ark. 80, 883 S.W.2d 811 (1994). At the least, that is the situation here.

Finally, I would be remiss if I failed to mention that even Gray in no way suggests by argument that the State’s appeal should not lie. Because I believe the Fourth Amendment issue and needed interpretation of Rule 16.2 fit well within the dictates of Criminal Appellate Rule 3(c), I would grant this appeal.

958 S.W.2d 302

Winston Bryant, Att’y Gen., by; Kelly Terry, Asst. Att’y Gen., for appellant.

No response.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

DECEMBER 18, 1997

W.H. “Dub” Arnold, Chief Justice.

The State files its petition suggesting that we erred in refusing to accept its appeal. While we agree that we misstated our guidelines regarding the acceptance of State’s appeals, we do not agree that we should have accepted the State’s appeal in Gray’s case.

Citing State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997), State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997), and State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993), we said that “we only accept appeals by the State when our holding would establish important precedent.” (Emphasis added.) Our review of State’s appeals is not limited to cases that would establish precedent. We correctly stated our guidelines for accepting State’s appeals under Ark. R. App. P. — Crim. 3(c) in our recent decision in State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997):

We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916).

330 Ark. at 595. Resolution of the issue of abandonment in the present appeal turned on the facts unique to Gray’s case, and thus did not require interpretation of our criminal rules with widespread ramifications. Thus, because the issues presented by the State in this appeal did not involve the correct and uniform administration of justice, we correctly dismissed the appeal. Accordingly, we deny the State’s petition for rehearing.

Glaze, J. dissents.

Tom Glaze, Justice,

dissenting. While the majority has corrected its opinion to reflect the proper standard or rule this court utilizes when determining if it will grant the State’s appeal under Ark. R. App. P. — Crim. 3(c), the majority then incorrectly applies the rule to the circumstances of this case. In other words, the majority opinion rejects the State’s appeal, stating “resolution of the issue of abandonment in the present appeal turned on the facts unique to Gray’s case, and thus did not require interpretation of our criminal rules with widespread ramification.” Not true.

As I pointed out earlier, the State asks this court to interpret Criminal Rule 16.2(a)(4) and the meaning of “other evidence” as employed by that rule. See State v. Gray, 330 Ark. 364, 367-369, 955 S.W.2d 502 (1997), Glaze, J., dissenting, 330 Ark. at 367-369. Gray used Rule 16.2(a)(4) to support his argument that the one-pound bag of marijuana, which was the subject of the suppression hearing, had been illegally seized when Officer Poe was unlawfully positioned on Bruton’s private property. See Id. at 368. This issue has never been addressed by any Arkansas appellate court, and is reason alone to grant the State’s appeal. Obviously, this legal issue regarding the interpretation of Rule 16.2(a)(4) has widespread ramifications, since our appellate courts, until now, have never had an opportunity to address the question. Accordingly, I would grant the State’s petition for rehearing.