author: Martin G. Gilbert, Special Chief Justice. Don F. Hamilton, Special Associate Justice,

text:
    William E. SPRADLIN v. ARKANSAS ETHICS COMMISSION, Richard L. Mays, Mary Lynn Reese, Ronald A. May, Kemal Kutait and Mack R. Koonce, in their Official Capacities as Members of the Arkansas Ethics Commission
    92-371
    858 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered July 19, 1993
    [Rehearing denied September 13, 1993.]

      Karr, Hutchinson & Stubblefield, by: W. Asa Hutchinson and Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Bob R. Brooks, Jr., for appellants.

      Winston Bryant, Att’y Gen., by: Dinah M. Dale, Asst. Att’y Gen., for appellee.

      Special Chief Justice Martin Gilbert and Special Justices Cyril Hollingsworth, James R. Wallace, Scotty Shively, and Don Hamilton join. Special Justice Sherry Bartley would grant rehearing. Special Justice Larry Wallace not participating.

   Martin G. Gilbert, Special Chief Justice.

Appellants challenge the constitutionality of that portion of Initiated Act No. 1 of 1990 (the “Act”) which created the Arkansas Ethics Commission (the “Commission”) on the ground that by providing for the appointment of one of the commissioners by the Chief Justice of the Arkansas Supreme Court, the Act violates the separation of powers provision of the Constitution of Arkansas. Appellants also challenge the specific appointment made by the Chief Justice as not meeting the requirement of the Act that one of the commissioners be a “member of a minority political party.”

The Act, bearing the popular name “The Standards of Conduct and Disclosure Act for Candidates and Political Campaigns,” was approved by the voters of Arkansas at the general election on November 6, 1990. In general, the Act regulates political action committees, solicitations by and contributions to political candidates, the use of campaign funds and compensation of members of the General Assembly for making speeches and other appearances, and requires certain reports by candidates.

Section 6 of the Act, codified as Ark. Code Ann. § 7-6-217, provides, among other things, for the creation of the Commission, to be composed of five members, one each to be appointed by the Governor, the Attorney General, the Chief Justice of the Supreme Court, the Speaker of the House of Representatives and the President Pro Tern of the Senate. Commission members serve staggered five-year terms without compensation, but they are reimbursed for their actual and reasonable expenses.

The Act requires that “[i]n making appointments to the commission, the appointing officers shall insure that at least one member of a minority race, one woman, and one member of a minority political party, as defined in [Ark. Code Ann. §] 7-1-101(7), serves on the commission.” Ark. Code Ann. § 7-6-217(b).

In due course, the designated officials made their respective appointments to the Commission. Supreme Court Chief Justice Jack Holt, Jr., appointed Little Rock attorney Ronald A. May, identifying him as a member of a minority political party. It is not contended that any of the other appointees are members of a minority political party.

Appellants filed this action in the Circuit Court of Pulaski County, challenging the constitutionality of the method of appointing the members of the Commission and also challenging the appointment of Mr. May as a member of a minority political party. The Circuit Court granted summary judgment in favor of appellees, dismissing appellants’ complaint. This appeal followed.

Jurisdiction is properly in this Court under Rule l-2(a)(1) of the Rules of the Supreme Court and the Court of Appeals, because it involves the interpretation or construction of the Constitution of Arkansas.

Article 4 of the Constitution of Arkansas provides for three departments of government:

§ 1. Departments of government.
The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.

Article 4 also provides for the separation of those departments:

§ 2. Separation of department.
No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

In Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457 (1940), this court dealt with the question whether an act designating the judges of the chancery, circuit and county courts to select the county tax collector violated the constitutionally mandated separation of powers. Speaking through Chief Justice Griffin Smith, we noted the two opposing philosophies regarding the federal separation of powers expressed by Mr. Justice Sutherland (speaking for the majority) and Mr. Justice Holmes (dissenting for himself and Mr. Justice Brandéis) in Springer v. Phillipine Islands, 277 U.S. 189 (1928). Mr. Justice Sutherland espoused the more strict view, namely, that the separation of the departments of government “is basic and vital — not merely a matter of governmental mechanism” and should be vigorously protected. Mr. Justice Holmes, representing the more liberal view, believed that the United States Constitution did not “establish and divide fields of black and white,” but “a penumbra shading gradually from one extreme to the other,” concluding that it was not necessary to carry out the separation of powers with “mathematical precision and divide the branches into watertight compartments.” We observed that it was impossible to harmonize the extreme views expressed by these eminent justices. Oates v. Rogers, 201 Ark. at 338-39, 144 S.W.2d at 457.

After reviewing various cases from Arkansas and other jurisdictions regarding the legislative designation of the power of appointment, we said:

The duties of collector are in no sense related to the administration of justice; and, while certain activities not essentially judicial may be imposed upon judges in those cases where by the constitution such duties do not inhere in another department of the government, in the instant case the delegated authority is of that class set aside to the executive department.
In most instances judges are — and in all cases they should be — free from political pressure and beyond the reach of partisan influence.
Common knowledge teaches, and experience informs us, that most people who apply for public office have the backing of influential friends, and are themselves prominently connected. Unfortunately we have not reached thatf ideal state where friend interested in friend will circumscribe his or her activity merely because the appointive power is judicial.
Judges should not be subject to these experiences. Our system, providing as it does for distinct separation of departments, did not in its inception contemplate a blending of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of convenience.
. . . [S]ince the nature of the act of appointment is essentially non-judicial, and therefore not to be exercised by circuit and chancery judges ... it must be held that the ... act fails. Oates v. Rogers, 201 Ark. at 345, 144 S.W.2d at 458.

While there is sparce judicial precedent on the subject, it appears to be generally concluded that in the absence of specific constitutional authority, the legislature may not authorize or require courts to appoint officers who have nothing to do with the administration of justice. 16 Am. Jur. 2d, Constitutional Law § 313; 16 C.J.S., Constitutional Law § 212.

Appellees concede that the judiciary may not be delegated the power to appoint unless the object of that power is related to the administration of justice. Appellees argue, however, that such a relationship exists here because the primary function of the Commission is “quasi-judicial” in nature.

The Act provides that the Commission shall have the authority to issue advisory opinions and guidelines, investigate alleged violations and render findings and disciplinary action thereon, subpoena persons and documents, administer oaths, conduct hearings and take sworn testimony, hire a staff and legal counsel and approve forms prepared by the Secretary of State pursuant to the Act. These are powers of the sort often possessed by boards, commissions and agencies, and we have held on many occasions that a body having such powers is not thereby judicial in nature or a part of the judicial department of government. See Ozarks Electric Cooperative Corporation v. Turner, 277 Ark. 209, 640 S.W.2d 438 (1982); Ward School Bus Manufacturing, Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977); and cases cited therein. While at times there may be difficulty in discerning whether particular boards, commissions or other agencies are a part of the legislative department or the executive department — or perhaps belong to some de facto fourth department of government — there can be no doubt that they are not a part of this, the judicial department. See Stafford, “Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power,” 7 UALR L.J. 279 at 280-81 (1984).

Appellees go to great length to establish that the powers exercised by the Commission are “quasi-judicial” in nature. But we have not been cited to and we are not aware of any case holding that a body which exercises quasi-judicial functions is thereby a part of the judicial department or related to the administration of justice. We have noted previously that an important factor in determining whether a particular body is acting in a judicial capacity or is part of the judicial department of government is the ability of that body to enforce its own orders. Ward School Bus Manufacturing, Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977). Here, the Commission sought to be established by the Act would be authorized to investigate alleged violations and to “render findings and disciplinary action thereon.” Ark. Code Ann. § 7-6-217(h)(2). At first blush that might seem to be akin to some sort of judicial action — rendering findings, perhaps after a hearing at which witnesses are subpoenaed and sworn, and taking some sort of disciplinary action. But a closer reading of the Act reveals that the only action which the Commission can take upon finding a violation is to do one or more of the following: “(A) Issue a public letter of caution or warning; or (B) Report its finding, along with such information and documents as it deems appropriate, and make recommendations to the proper law enforcement authorities.” Ark. Code Ann. § 7-6-218(b)(4). Thus, it is apparent that the Commission has no power whatever to make any orders, much less to enforce them. The only “disciplinary action” it can take is to make public a letter declaring what it has found in the way of a violation. That is hardly action which is judicial in nature or related to the administration of justice.

Appellees also rely upon decisions in Louisiana and Kansas which upheld similar bodies whose members were appointed by both the legislative and executive branches (Board of Ethics for Elected Officials v. Green, 566 So.2d 623 (La. 1990); and Parcell v. Governmental Ethics Commission, 639 F.2d 628 (10th Cir. 1980), in which the Kansas Supreme Court answered a question certified to it by the Tenth Circuit). These courts reviewed the degree of control exercised by the appointers over the appointees and, finding little or none, concluded that neither branch had usurped the powers of the other branch. The fact that the bodies were a blending of powers of different branches was not objectionable.

First, we point out that these cases did not involve an appointment by a member of the judicial department and are distinguishable on that basis. It has been observed that while we may tolerate some blurring of lines between the legislative and executive departments, this court has been very protective of the barrier surrounding the judicial department. See Stafford, “Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, “ 7 UALR L.J. 279 at 280-81 (1984).

These two cases from neighboring states are also distinguishable on the basis of differences in the specific constitutional provisions under consideration. The Louisiana Constitution contains a provision designating the Governor to make all appointments in the executive branch not otherwise “provided constitution or by law.” In Green the Louisiana Supreme Court held that this language authorized the legislature “by law” to provide for the appointment of executive branch persons by other than the Governor — specifically, by the legislature itself. There is no such appointment provision in the Arkansas Constitution. And, the Kansas Constitution contains no express separation of powers provision, as does the Arkansas Constitution (although a separation of powers doctrine has been adopted by Kansas case law).

Finally, Green and Parcell represent approval of a sort of “blending” of the powers of two departments of government. The Kansas court described that Ethics Commission as a “cooperative venture rather than the usurpation of power by the legislative branch from the executive branch,” and held that this “practical result of the blending of the powers . . . was not a violation of the separation of powers doctrine.” Parcell v. Governmental Ethics Commission, 639 F.2d at 633-34. In Oates v. Rogers we specifically rejected the notion of a “blending” of powers in favor of a more strict separation of powers when we said: “Our system, providing as it does for distinct separation of departments, did not in its inception contemplate a blending of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of convenience.” Oates v. Rogers, 201 Ark. at 346, 144 S.W.2d at 458.

In the case before us, the Commission, as structured by the Act, is not related to the administration of justice and is not part of the judicial department of government. We hold that by designating the Chief Justice of the Supreme Court to appoint one of the members of the Commission, that portion of the Act creating the Commission violates the separation of powers and is unconstitutional.

Given our decision on this issue, the second issue raised by appellants — the appointment of Mr. May — is moot. But, we would have upheld the appointment of Mr. May for the reason that there is no objective standard in the Act by which one can determine whether an appointee is a “member of a minority political party,” and we would give great deference to the discretion of the appointer and great weight to the circuit court as the fact-finder on that issue. While the evidence suggests that Mr. May may not have been considered a currently active, loyal Republican by some in the leadership of the Arkansas Republican Party, there is also evidence of at least some voting by Mr. May for Republican candidates and contributing by Mr. May of money to Republican candidates and causes in relatively recent times. And there is direct testimony by Mr. May himself that he currently considers himself to be a Republican and holds himself out publicly to be a Republican. Under these circumstances, we would have affirmed the judgment of the circuit court on that issue.

The judgment is reversed and remanded to the circuit court with directions to enter judgment not inconsistent herewith.

Special Justices Sherry P. Bartley, Cyril Hollingsworth, Scotty Shively and James R. Wallace join in the foregoing opinion.

Special Justice Don F. Hamilton and Larry C. Wallace dissent.

Don F. Hamilton, Special Associate Justice,

dissenting. Appellants filed this taxpayer’s suit challenging the constitutionality of Initiated Arkansas Act No. 1 of 1990 known as the Standards of Conduct and Disclosure Act for Candidates in Political Campaigns (“Ethics Act”). Appellants also challenge the present makeup of the Ethics Commission (created by this Act) on the basis that the selection of the member of the Commission designated to represent the minority party, i. e., the Republican party, violates the requirements of the Ethics Act.

The Ethics Act was approved by the voters on November 6, 1990, by a vote of 355,957 for and 186,204 against. Prior to the election, according to Tim Hutchinson in his affidavit supporting appellants’ claim in this case, Mr. Hutchinson served as a member of the Arkansas Ethics Committee which was created to conduct hearings across the state and to draft legislation to be presented to the voters; and, as a result of the work of this committee a petition drive was initiated which resulted in the adoption of the Ethics Act. Mr. Hutchinson participated in the hearings across the state, as well as in the meetings devoted to working on draft legislation. He objected to the establishment of a commission under the proposed Ethics Act because he felt it would invite “political witch hunts” that would be dominated and controlled by the party in power. The drafting committee’s “common understanding” was that the “minority party” member of the Ethics Commission would act as a “watch dog” for the minority political party.

The Ethics Act provides, inter alia, that the Arkansas Ethics Commission is to be composed of five members, one each appointed by the Governor, Attorney General, Chief Justice of the Arkansas Supreme Court, Speaker of the House of Representatives and President Pro Tem of the Arkansas Senate. Ark. Code Ann. § 7-6-217(a). It further provides that the appointing official shall insure that at least “one member of a minority political party, as defined in Ark. Code Ann. § 7-1-101(7), serves on the Commission.” Ark. Code Ann. § 7-6-217(b).

Subsequent to the enactment of the Ethics Act, the commission members were appointed including Ronald A. May, who was appointed by Chief Justice Jack Holt, Jr. to be the “minority party” member of the Commission. The individual appellant, William E. Spradlin, and the Republican party of Arkansas filed suit and challenged the appointment process under the Ethics Act as being in violation of the separation of powers provision of the Arkansas Constitution. Appellants also challenged the appointment of Ronald A. May as a minority member of the Commission contending that he is not qualified since he was no longer voting in Republican primaries or active in any degree with the Republican Party of Arkansas.

The case was submitted to the trial court on motions for summary judgment filed by all parties to the suit, and the trial court entered summary judgment dismissing the complaint. On appeal, appellants contend that the Ethics Act violates the separation of powers provisions of the Arkansas Constitution because (1) the Commission is appointed by the three different branches of government and (2) the judiciary is required to make appointments in an area not related to the administration of justice. Finally, appellants contend that the person selected in accordance with Ark. Code Ann. § 7-6-217, i.e. Ronald May, does not meet the qualifications of the Republican party, as required by the Ethics Act.

It is well settled under the law of Arkansas that a statute is presumed to be constitutional and will only be struck down where there is a clear incompatibility between the statute and the state constitution. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991). Hickenbotham v. McCain, 207 Ark. 485, 181 S.W.2d 226 (1944). If it is possible to construe a statute so that it meets the test of constitutionality, the statute should be construed to be constitutional. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). Taylor v. Finch, 288 Ark. 50, 701 S.W.2d 377 (1986).

Arkansas’s separation of powers provisions are set out in Article 4, Sections 1 and 2 of the state constitution:

§ 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
§ 2. No person, or collection of persons, belonging to one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Unlike the federal constitution, there is no general appointment power in the state constitution authorizing the chief executive to make appointments to boards and commissions. The Arkansas constitution is silent on that point, although specific grants of the appointment power are made to the Governor in several instances. Neither of the separation powers sections of the Arkansas Constitution provides that the appointment power is restricted exclusively to any one branch of government.

Appellants concede that (1) the appointment power is not exclusively in the executive branch and that the legislature may exercise the appointment power in certain circumstances, citing Cox v. State, 72 Ark. 94, 78 S.W. 756 (1904); and, (2) that the appointment power may be delegated in limited circumstances to the judiciary, citing Mears v. Hall, 263 Ark. 827, 569 S.W.2d 92 (1978). But appellants argue that the appointment power may not be delegated to all three branches of government simultaneously and in regard to the same commission, such as the Ethics Commission, as set forth in Ark. Code Ann. § 7-6-217(a). Furthermore, and, in any event, appellants argue that the Ethics Commission is not related to the administration of justice, citing Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457 (1940), which appellants argue is dispositive of this case.

In Oates v. Rogers, supra, the legislature enacted legislation creating the office of tax collector for Pulaski County which provided that the tax collector would be appointed by the judges of the circuit, chancery, and county courts acting together with a term of five years subject to removal at any time by a majority vote of the judges. The Arkansas Supreme Court held that the duties of the collector were “in no sense related to the administration of justice . . .” and “. . while certain activities not essentially judicial may be imposed upon judges in those cases where by the constitution such duties do not inhere in another department,” the authority to appoint the tax collector could not be delegated to judges because “. . . the delegated authority is of that class set aside to be the executive department.” 201 Ark. at p. 345.

In Clinton v. Clinton, supra, a statute giving the Governor the power to appoint special Public Service Commissioners was held to be constitutional, despite the argument that such a power of appointment could not constitutionally be delegated to the Governor by a legislative act. In Clinton, the case of Oates v. Rogers, supra, was discussed and it was pointed out that while the power to appoint the county tax collector could not be delegated to the judiciary by legislative act, under the ruling in Oates certain delegations of the appointment power by the legislature are sanctioned, “. . . thus leaving the door open to permissible delegations of authority by the legislature” under the Oates ruling. Clinton v. Clinton, supra, at p. 305.

Surely the limits of “permissible delegations of authority” must be determined by deciding in each case whether the actual power of any department is diminished or given an overruling influence over another in the administration of its respective powers. Oates v. Rogers, supra at p. 339 and p. 340. Under the rationale of Oates v. Rogers, supra, if the delegated authority, i.e., appointment by the Chief Justice of a member of the minority political party is (1) “of that class set aside to the executive department” or (2) “it is in no sense related to the administration of justice” (except certain activities not essentially judicial involving duties not inhering in another department), such delegated authority is unconstitutional, which is not the case here.

Although appellants complain that the Ethics Commission members are appointed by three different branches of government, there is no convincing argument or evidence even suggesting that the exercise of the respective appointment powers diminishes the power of one department of government over another, let alone that the exercise of such power gives an overruling influence over another department in the administration of its respective powers. The concept of appointment power delegated to all three branches of government simultaneously is not novel to Arkansas. Nine members of the Judicial Discipline and Disability Commission, created by Ark. Acts No. 637 of 1989, Ark. Code Ann. § 16-10-401 et seq. (as authorized by amendment 66 to the Arkansas Constitution), are similarly appointed by the three branches of government. However, the litigation over various issues before that Commission has not involved the method of appointment of members or composition of the Judicial Discipline and Disability Commission. Judicial Discipline and Disability Commission v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990); In re: Switzer, 303 Ark. 288, 796 S.W.2d 341 (1990); Gannett River States Publishing Co. v. Judicial Discipline and Disabilities Commission, 304 Ark. 244, 801 S.W.2d 292 (1990).

In Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, 7 U.A.L.R. L.J. 279 (1984), the author in a comprehensive article regarding separation of powers and Arkansas administrative agencies has observed that “. . . [t]he Arkansas Supreme Court seems to have accepted the blending of executive and legislative powers that characterizes many administrative agencies”, citing Hickenbotham v. McCain, supra, and further that “. . . [it] can likewise sanction some blending of judicial and legislative powers without sacrificing the basic purposes underlying the separation of powers doctrine,” noting the dicta from Oates v. Rogers, supra, that the Arkansas “system, providing as it does for distinct separation of departments, did not in its inception contemplate a blending of authority . . .”. (Emphasis added) 7 U.A.L.R. L.J. at p. 279. Clearly, administrative agencies may possess a combination of powers from the coordinate branches without violating the separation of powers principle; and, moreover, the real issue deals with a review of the powers. Arkansas Motor Carriers v. Prichett, 303 Ark. 620, 798 S.W.2d 918 (1990). There is simply no convincing argument or evidence that the method of appointment by the three branches of the departments of government of the members of the Ethics Commission establishes a violation of the separation of powers principle any more than the blending of powers by certain-administrative agencies in Arkansas violates that principle, as discussed in Stafford, op. cit. supra-, and, appellants’ challenge in this regard, accordingly, is without merit.

In Board of Ethics for Elected Officials v. Green, 566 So.2d 623 (La. 1990), the court upheld a statute authorizing the legislature to appoint some members of the Board of Ethics for elected officials. The court held that the key focus of the constitutional question was the degree of control retained over appointees by the appointing entity. In Green, there was little or no control retained, as evidenced by the fact that: 1) the members of the board were appointed for staggered 6-year terms and could only be removed for cause; 2) legislators and other public servants could not be appointed; and 3) there was no continuing relationship between the legislature and the appointees. Therefore, the court upheld the statute. All of these factors demonstrating the absence of improper legislative control are present in the Arkansas act; and, it should be noted that in Chaffin v. Arkansas Game and Fish Commission, 296 Ark. 431, 757 S.W.2d 950 (1988), the Arkansas Supreme Court stated that the question of whether members of the legislature may be constitutionally empowered to appoint other officers may depend to some extent upon the amount of control retained over these officers.

Similarly, in Parcell v. Governmental Ethics Commission, 468 F. Supp. 1274 (D. Kan. 1979), aff'd 639 F. 2d 628 (10th Cir. 1980), the federal circuit court of appeals certified to the Kansas Supreme Court the question of whether the appointment of members of the governmental ethics commission, a majority of which were appointed by legislators, constituted a usurpation of executive power by the legislative branch of government and thereby violated the separation of powers doctrine. The Kansas court held that it did not. 639 F.2d at 629.

In Parcell, the commission consisted of eleven members, five of whom were appointed by the governor, two by the president of the senate, two by the speaker of the house, one by the minority leader of the house, and one by the minority leader of the senate. The court employed the test which looks to several factors to determine whether a usurpation of power exists. These factors include the essential nature of the power being exercised, the degree of control by the legislative department, whether there is a coercive influence or a mere cooperative venture and the nature of the objective sought to be obtained. The court held that clearly the commission exercised powers ascribed to the legislative and executive branches, but still found no usurpation. The court reasoned that the act represented a cooperative venture, rather than a usurpation of power, and the objective to be atoned by the legislature, to increase the public trust in Kansas elected officials, was satisfied by the legislature’s attempt to insure fair consideration by dividing the power of appointment between the legislative and executive departments.

The reference in the majority opinion here to part of the quotation of Mr. Justice Holmes’ dissenting option in Springer v. Philippine Islands, supra, set out in Oates v. Rogers, supra, at p. 339, seems to contain persuasive reasoning for upholding the constitutionality of the delegation of the appointment power in the Ethics Act, as opposed to the unconstitutional delegation of the appointment power of a county tax collector in Oates v. Rogers, supra. Justice Holmes stated in Springer as follows, id., at p. 339:

“The great ordinances of the constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. ... It does not seem to need argument to show that however we may disguise it by veiled words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the constitution requires.”

Appellants’ argument that the Ethics Act requires the judiciary to make appointments in an area not related to the administration of justice seems to overlook the specific duties and responsibilities of the Ethics Commission created by the act. Appellees have correctly characterized the Commission as “quasi-judicial” in nature because the Commission has the authority to hold hearings, issue advisory opinions, investigate violations of the Act, and subpoena persons and documents, Ark. Code Ann. § 7-6-217 (h); and appellees rely on Mock v. Chi R. I. & Pac. Co., 454 F. 2d 131 (8th Cir. 1972) in this regard. In Mock, the parties argued over the nature of the administrative proceeding before the National Railroad Adjustment Board; and, the Eighth Circuit Court of Appeals stated that a proceeding is “quasi-judicial” in nature where the function of the administrative body under consideration involves the exercise of discretion and the application of legal principles to varying factual situations and requires notice and hearing. 454 F.2d at p. 134.

Regardless of the nature of the Ethics Commission, how should the term “administration of justice” be construed within the context of Oates v. Rogers, supra? Bar disciplinary proceedings have been held to fall within the scope of the administration of justice in some instances, In re Haws, 310 Or. 741, 801 P.2d 818, 823 (1990); and, the Oregon Supreme Court has stated that “[o]ther proceedings that contain the trappings of a judicial proceeding, such as sworn testimony, perjury sanctions, subpoenas, and the like, similarly would qualify as being within the confines of the administration of justice.” 801 P.2d 818.

The Ethics Act authorizes the Ethics Commission to issue advisory opinions and guidelines on the requirements of the campaign financing statutes, as set forth in Ark. Code Ann. § 7-6-201, et seq., as well as the ethics and conflicts of interest statutes contained in Ark. Code Ann. § 21-8-203, et seq., and; the Ethics Commission is authorized to investigate alleged violations of these statutes and render findings and disciplinary action in connection with the violations. Ark. Code Ann. § 7-6-217(h)(2). Citizen complaints against a person may be filed regarding matters covered by these statutes. The filing of such a complaint triggers an investigation by the Ethics Commission and a possible public hearing in the event there is probable cause. If the Ethics Commission finds that a violation of any of the statutes has occurred, the Commission may: (1) issue a warning letter and/or (2) report its findings and make recommendations to the proper law enforcement authorities for appropriate action. Ark. Code Ann. § 7-6-218. These statutes, including the campaign financing statutes (Ark. Code Ann. § 7-6-201), are applicable to all public officials and employees not excepted, including members of the judiciary. As observed by the trial court in his judgment dismissing appellants’ complaint, this gives some justification to provide the judiciary an appointment power.

While the ethical behavior as mandated by law of public officials or those who seek election to public office may not be viewed typically as an area related to. the administration of justice, there can be little doubt that such ethical behavior by members of the judiciary is in a very real sense related to the administration of justice, if not the most vital part of its very core. At any rate, the duties of the Ethics Commission here are totally unlike those of the tax collector to be appointed by the judiciary in Oates v. Rogers, supra, which is clearly distinguishable.

In Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987), suit was brought challenging the constitutionality of a state statute giving the Chief Justice of the Supreme Court of North Carolina appointment power of the Director of Administrative Hearings. In Martin, the North Carolina Supreme Court held that the General Assembly could delegate this power to appoint without violating the separation of powers clause of the State Constitution. While the majority of the members of the Supreme Court in Martin v. Melott, supra, held the power of appointment was constitutional because of the nature of the Chief Justice’s appointment power, the concurring member of the North Carolina Supreme court declared the separation of powers issue should turn not on the “nature” of the appointment power, but on the nature of the powers and duties exercised by the person appointed which he viewed to be “primarily judicial in nature” and, therefore, not violative of the separation of powers.

In the concurring opinion of Martin v. Melott, supra, the importance of the principles of separation of powers is recognized as being “fundamental and unquestioned”. Id., at p. 789. The concurring justice relied on the same two United States Supreme Court opinions cited in Oates v. Rogers, supra at pp. 338 through 340, O’Donoghue v. United States, 289 U.S. 516 (1933) and Springer v. Philippine Islands, 277 U.S. 189 (1928), and quoted O’Donoghue as follows, Martin v. Melott, supra at p. 788:

“This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, Springerv. Philippine Islands (citations omitted) namely, to preclude a commingling of these essentially different powers of government in the same hands.”

Under the analysis of the Supreme Court in Oates v. Rogers, supra, it can not reasonably be concluded that the power of the Arkansas Supreme Court Chief Justice to appoint a member of the “minority party” to the Ethics Commission in any way diminishes the power of the two other branches of government, let alone gives the judiciary an overruling influence over another branch of government in the administration of its respective powers. The member appointed by the Chief Justice is not in any way under the control of the judiciary, let alone even permitted to serve consecutive terms. Finally, the Ethics Commission is in a very important sense “related to the administration of justice” within the holding of Oates v. Rogers, supra, because its nature is not only quasi-judicial, but it also serves a vital purpose directly affecting the behavior and conduct of members of the judiciary, as office holders, and, as office seekers; and, therefore, the Chief Justice’s power of appointment does not violate the separation of powers required by the Arkansas Constitution.

As to appellants’ contention challenging the appointment of Ronald May as the member of “a minority party” on the Ethics Commission because he allegedly “does not meet the qualifications of Republican party membership required by the initiated Act,” this contention is wholly without merit.

In the first place the Ethics Act does not require such “membership”, as alleged. While it is true that the Republican party currently meets the statutory definition “of a minority party”, there is no statutory definition of “membership.” This appears to be a matter of “intent” more than something that can be documented or completely objectively established. Suffice it to say that Ronald May gave sworn testimony by deposition in which he unequivocally stated he has been and still is a Republican. His long history of involvement with the Republican party in Arkansas going back to the 1960’s when he was named General Counsel to the Republican party in 1968 is well established. In recent years, since he voted for Richard Nixon in 1972, he stated that he had not voted for Republican presidential candidates. He has voted in the Democratic primaries for over the past decade because his interest in voting forjudges made him feel that he was depriving himself of the right to vote forjudges in Arkansas since judges in Arkansas are almost universally elected at the Democratic primary; and, moreover, usually the Republican party fielded only candidates for the constitutional offices so that the Republican primary was not very significant. Nonetheless, Mr. May remains a member of a national organization of Republicans, The Ripon Society, he is listed as a Republican in Who’s Who in America, and he contributes to and supports Republican candidates in Arkansas and expects “to vote for the most part Republican candidates” in the future; and, most recently he was “very strong” in his support for Jim Keet, a successful Republican candidate for the Arkansas legislature from Pulaski County.

In his affidavit, Chief Justice Jack Holt stated that he “selected Ronald May because of his integrity and high principles”; and that, secondarily, Mr. May was known by him to be a Republican. Ronald Mays’ integrity and high principles can not be doubted, as perhaps so clearly is evidenced by his efforts during the 1960’s to correct voting irregularities which Winthrop Rockefeller and his supporters worked so diligently to end, and which Mr. May testified about in his deposition. Appellants’ counsel in oral argument referred to May as a “fine public servant”, who does not meet the “level of Republicanism needed” — apparently as evidenced by (1) a communications problem with the current leadership of the Republican party and (2) a certain letter to a newspaper editor written by May and published in a local newspaper in 1991, characterized as “hostile”.

According to appellants’ counsel, it is appellants’ position that the Ethics Law “requires that the appointing official or the person who appoints a member of the minority party in Arkansas should consult with a party chairman and possibly pick from a list of approved persons.” May himself thoroughly refuted this argument in his deposition, as follows:

“Well, that’s not what the law says. If that had been the intention of the law it would have been very easy to write it into the law. On the other hand, the law does not say that the appointing person who appoints a member of a minority race has to consult with the NAACP. I realize the analogy isn’t completely exact, but I think that it is perfectly possible for the appointing official to know who are Republicans in the state and to pick someone out without consulting with the leadership of the contemporary and perhaps transitory leadership of the Republican party.
“He could very well, for example, have consulted with Judge Smith Henley, who’s probably been a Republican longer than most of us have been alive. I don’t think he did, but I think that would have been as equally valid a way to appoint a member of the Commission.”

The trial court noted that proving membership in a political party seems somewhat analogous to proving the intent necessary to establish “domicile”; and the court concluded that “there are more facts that confirm that Mr. May is a Republican” than otherwise. Since the trial court’s findings of fact in connection with Mr. May’s membership in the Republican party should not be set aside unless clearly erroneous under Rule 52, Arkansas Rules of Civil Procedures, this determination must stand since the trial court’s finding in that regard is not clearly erroneous; and, accordingly, appellants’ challenge to Mr. May’s appointment should be rejected.

For the reasons herein expressed, I would affirm the trial court’s judgment dismissing the complaint and upholding the constitutionality of the Ethics Act, as well as the appointment of Ronald May as the duly appointed member of the Ethics Commission representing “a minority party” in accordance with the requirements of that act. I respectfully dissent from the determination set forth in the majority opinion holding unconstitutional that part of the Ethics Act which authorizes the Chief Justice of the Arkansas Supreme Court to appoint one of the members of the Ethics Commission.

Special Associate Justice Larry Wallace joins in this dissent.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jessie Lee BUCHANAN v. STATE of Arkansas
    CR 93-714
    856 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered July 19, 1993

      Davis H. Loftin, for appellant.
    No response.
   Per Curiam.

Appellant, Jessie Lee Buchanan, by his attorney, has filed for a rule on the clerk.

His attorney, Davis Loftin, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    James CUMMINGS v. STATE of Arkansas
    CR 93-367
    856 S.W.2d 309
    Supreme Court of Arkansas
    Opinion delivered July 19, 1993

      Robert L. Scull III, for appellant.
    No response.
   Per Curiam.

Appellant’s attorney Robert L. Scull, III is directed to appear before this court at 9:00 a.m. on September 7, 1993, to show cause why he should not be held in contempt of court for failure to file a brief in the case.


author: Robert H. Dudley, Justice.

text:
    Dale Edward BRYANT v. STATE of Arkansas
    CR 93-247
    862 S.W.2d 215
    Supreme Court of Arkansas
    Opinion delivered September 13, 1993
    [Rehearing denied October 18, 1993.]

      Richard R. Parker, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged with capital murder. He filed motions to suppress the five incriminating statements he had made to the police. The trial court denied the motions. The result was that the statements could be introduced into evidence at trial. Appellant then entered a plea of guilty to the charge of capital murder, but the plea was conditioned upon this appeal of the trial court’s denial of his motions to suppress the evidence. See A.R.Cr.P. Rule 24.3(b). The trial court sentenced appellant to a term of life without parole, and he now appeals from the rulings on the suppression motions. We uphold the rulings of the trial court. In addition, since this case involves a sentence of life in prison, we must review the record of the trial proceedings for any rulings which were adverse to appellant and which might constitute prejudicial error. Ark. Sup. Ct. R. 4-3(h). Because of the procedure in this case, appellant’s conditional plea of guilty constituted his trial, and there were no rulings adverse to appellant in that trial other than the rulings involving the suppression motions. Since the trial court’s rulings on those motions are upheld, appellant’s guilty plea cannot be withdrawn, and he is without any further direct appeal. He must spend the remainder of his life in the penitentiary without possibility of parole.

The facts necessary to understand the evidentiary rulings on appeal, stated from the view most favorable to the appellee, are as follows. The corpse of a murder victim was found near Harrison on January 26, 1992. After a thorough investigation, the police established appellant as the primary suspect. They additionally found that appellant had multiple prior felony convictions in different states with some of the convictions involving violence as well as escape. Accordingly, the police sent out a bulletin that appellant was wanted for homicide and that he should be considered armed and dangerous. Shortly thereafter, on February 4, appellant telephoned Glenn Redding, the Patrol Commander of the Harrison Police Department, and said, “I hear you are looking for me.” Redding replied that appellant was being sought for capital murder, and that, because the bulletin had notified all police that appellant should be considered armed and dangerous, he should contact an attorney and arrange a peaceful surrender. Appellant responded that he did wish to talk with an attorney before turning himself in. Appellant would not tell Redding his location, but the call was traced to the Paducah, Kentucky telephone exchange. The Kentucky State Police were notified of the call and were given a description of the car appellant was driving.

On the afternoon of February 6, a Kentucky State Policeman spotted appellant, arrested him, handcuffed him, advised him of his Miranda rights, placed him in his police car, and took him to the troop post in Mayfield, Kentucky. The post does not have jail facilities. It has a steel bar attached to a concrete wall, and high risk people are handcuffed to the bar while being processed. Appellant was considered high risk and accordingly was handcuffed to the bar. After only a short while, a detective came into the room, again advised appellant of his Miranda rights, and gave him a written statement of those rights. Appellant waived those rights in writing. All of this took place over a short time span, as appellant was arrested at 3:41 in the afternoon and signed the waiver about an hour and one-half later, at 5:23.

Appellant answered questions without hesitation during a lengthy interview that covers a total of forty-three transcribed pages. In the first thirty-five pages of the interview, appellant admitted that he had been in Harrison and had been drinking with the victim the last night of her life. He stated that he then stabbed her, but that he did so only in self-defense. He stated that he let her out of his car and had no idea of who might have later murdered her. At page thirty-six of the interview, and after appellant had given the above incriminating statement, the Kentucky detective asked appellant to give a more accurate statement of the whole affair. The detective said that appellant would later be questioned in Arkansas, and the officers in Arkansas would not be as friendly as they were because those officers would be from the area where the murder was committed. Appellant did not incriminate himself any further. Shortly after the comment about the officers in Arkansas, the detective said, “I can’t make you say anything.” The appellant responded: “Well, I understand that, and I don’t want to be a smart ass and I don’t want to appear to be one, and I don’t want to be one, but in fifteen years in prison I’m not stupid when we’re talking about things like this.” An attorney was appointed to represent appellant in the extradition proceedings, and appellant waived extradition.

The public defender in Harrison learned that the police were looking for appellant and asked the circuit judge to appoint him as appellant’s attorney. The circuit judge responded that he would do so in the event of appellant’s apprehension. On February 7, the day after appellant had given the incriminating statement in Kentucky, the public defender called the jail in Boone County and left a message that appellant was not to make a statement about the crime. A few minutes later, at 1:50 in the afternoon, the attorney called the jail in Kentucky and asked the jailer to instruct appellant not to give a statement. Immediately thereafter appellant called the attorney, and the attorney instructed him not to make a statement. Meanwhile, Captain Wolfe of the Boone County. Sheriffs Office and Sergeant Bill Gage of the Arkansas State Police had arrived in Mayfield, Kentucky and had taken custody of appellant. In mid-afternoon on the 7th, the three of them started back to Boone County in a police car. They did not ask appellant any questions until they stopped in Dyersberg, Tennessee to get appellant some cigarettes. At that time, 4:11 on the afternoon of the 7th, appellant’s Miranda rights were again read to him. There was no separate waiver of his rights, but the standard form used to advise appellant of his rights contains questions that imply a waiver. For example, appellant’s right to an attorney was explained to him as follows:

“Do you understand that you have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning?” Appellant responded in writing, “Yes sir.”

“Do you understand that if you cannot afford a lawyer, one will be appointed for you before any questioning if you wish, at no cost to you?” Appellant signed, “Yes sir.”

“Do you understand that if you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time? You also have the right to stop answering at any time until you talk to a lawyer?” Appellant signed, “Yes sir.”

Appellant and the officers got back in the car to resume the journey to Boone County. Over the next hour or so appellant told the officers more about the murder. He said he and the victim had been drinking heavily, and she tried to kill him with a butcher knife. He said he took it away from her and stabbed her once in the back and twice in the front. He told the officers the location of the trash dumpster where he had disposed of the knife, the victim’s purse, and part of her clothing. By 6:20 that afternoon, they had reached Paragould and stopped at a restaurant. There, the officers again advised appellant of his Miranda rights. In doing so, they used the same form they had used earlier in the afternoon. Appellant signed a written statement that was a redaction of his earlier oral statement. They got to Harrison later that night, Friday the 7th, and appellant was placed in jail. On the following morning, February 8, Captain Wolfe gave appellant the same Miranda warnings, and appellant gave a lengthy and incriminating recorded interview. He was arraigned on Monday, February 10, and a lawyer was appointed to defend him.

About a month later, on March 4, appellant asked to speak to Captain Wolfe about a problem he was having in receiving his mail. After discussing the problem about the mail, appellant asked some questions about the murder and started to discuss the crime scene. Wolfe testified that he told appellant that he needed to wait until his attorney arrived before talking about the murder and that he did not want to violate appellant’s rights. The jailer, Raymond Howe, confirmed that appellant initiated the conversation about the crime scene. Appellant then volunteered a further statement about the crime scene.

Appellant’s points of appeal involve the Fifth and Sixth Amendments as well as the Arkansans Rules of Criminal Procedure. The arguments can be most clearly addressed by using the chronological order of the statements. The first statement was the one made to the detective in Kentucky. Appellant contends that this statement should have been suppressed because it was taken in violation of his Fifth Amendment rights. In order for a custodial statement to be admissible a defendant must have made a voluntary, knowing, and intelligent waiver of his Miranda rights. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). The inquiry into the a waiver of those rights has two distinct components. Id. The first involves voluntariness. This component of the inquiry concerns whether appellant made a free choice, uncoerced by the police, to waive his rights. Id. The second component of the inquiry involves whether the defendant made the waiver knowingly and intelligently. Id.

Appellant first contends that the statement made in Kentucky was the product of police coercion. He argues that because he was handcuffed to a bar and because the police told him that a later interview in Arkansas would be conducted by less friendly police, he was coerced into making the statement. The argument is wholly without merit. There was neither misconduct nor coercion by the Kentucky officers. The bulletin had informed them that the appellant was to be considered armed and dangerous. He had a prior conviction for escape and had convictions for crimes against persons. In fact, at that time he was on parole from the Nevada Department of Prisons as the result of a conviction for attempted murder. There was no lockup room at the post. The restraint was the result of appellant’s prior crimes and was reasonable under the circumstances. It was not designed to create, nor should it have created the impression that something bad would happen if the appellant did not confess. The appellant had already made the incriminating part of the statement before the detective told appellant that the police in Kentucky would be friendlier than the police in Arkansas. Thus, the detective’s statement could not have coerced appellant into making the statement. Appellant’s later comment, that he had spent fifteen years in prison and knew that he did not have to say anything, is overwhelming proof of that fact.

Appellant next argues that the trial court erred in admitting the statement made in Kentucky because it violated his Fifth Amendment right to make only a knowing waiver. He contends that he did not understand the consequences of the waiver because the Kentucky officer did not explain the full range of penalties for the offense of capital murder in Arkansas. Appellant does not cite any cases, nor are we aware of any, that uphold his argument that at the time of making an incriminating statement, as distinguished from the time of making a guilty plea in court, a suspect must be advised of the exact range of penalties to which he might be subjected. Such a requirement would often present an impossible burden for the police. Often they do not know what formal charge will eventually be filed by the prosecutor, and most often they do not know what the suspect will say. Accordingly, they could not possibly advise a suspect of the exact range of penalties he will face. Even so, in this case, appellant clearly understood that he had been arrested on a charge of capital murder and that he was being asked to make a statement of fact about his involvement in the murder. He knew that it was serious crime and that he faced serious consequences. He had been arrested for, and convicted of, multiple crimes. He understood the system and what he was doing. The trial court ruled that knowledge, taken together, was sufficient for appellant to clearly understand the consequences of the waiver. The ruling of the trial court was not clearly erroneous.

In reviewing the admissibility of incriminating statements, we make an independent determination based on the totality of the circumstances and reverse the trial court’s ruling only if it was clearly erroneous. Segerstrom v. State, 301 Ark. 314, 783 S. W.2d 847 (1990). We have no hesitancy whatsoever in holding that the trial court’s ruling on the motion to suppress this statement was not in error.

Appellant next contends that the trial court erred in its rulings on the admissibility of the statements taken on the return trip to Arkansas and in admitting the recorded statement taken by Captain Wolfe on the 8th. The first of these arguments is a Sixth Amendment argument. In it, appellant contends that, after an attorney was appointed for him in Kentucky, his Sixth Amendment right to advice by that counsel attached unless it was waived, and that he did not waive the right to counsel with that attorney. The argument is without merit. The attorney was appointed for the purpose of advising appellant on the extradition proceedings. The core purpose of the Sixth Amendment guarantee of counsel is to provide assistance to criminal defendants at trial and at all critical pretrial proceedings. United States v. Gouveia, 467 U.S. 180, 188 (1984). An extradition proceeding has only a “modest function,” not involving the question of guilt or innocence, and is not a “criminal proceeding” within the meaning of the Sixth Amendment. See Judd v. Vose, 813 F.2d 494 (1st Cir. 1987) (and cases cited therein).

Appellant next makes a Fifth Amendment argument that these statements should have been suppressed. He contends that on the trip to Harrison the officers advised him of his Miranda rights, but failed to ask him if he waived those rights. He contends the same occurred the next day when he gave the recorded statement to Captain Wolfe. His contention is that he simply did not waive his rights, and it was the State’s burden to show that he had so done. We have held that a confession may be obtained on the basis of an implied waiver of Miranda rights. Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied, 113 S.Ct. 124 (1992). In this case, the form used to advise appellant of his rights included questions which the appellant answered. The clear implication of the answers is that appellant waived the right to remain silent and waived the right to discuss matters with an attorney or have an attorney present.

However, it is not necessary for us to make our holding based solely upon an implied waiver, because there simply is no constitutional requirement that Miranda warnings be repeated each time a suspect is questioned. Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987); Wyrick v. Fields, 459 U.S. 42 (1982). Obviously, if there is no constitutional requirement that a suspect be warned of his rights each time he is questioned, then there is no requirement that he waive those rights each time he is questioned. Here, the appellant was given adequate warning of his Miranda rights by the Kentucky detective on the afternoon of February 6. He waived those rights in writing at that time. Early the next afternoon a public defender, who eventually would be appointed to represent appellant, advised him not to make a statement. There were no other occurrences which might cause appellant to forget any of the warnings before the commencement of trip to Boone County in mid-afternoon. There is no reason that the warning and waiver by the Kentucky officers on the afternoon of the 6th was not, standing alone, sufficient warning and waiver for the statements made on the trip to Harrison on the 7th. The critical question is whether the accused understood the consequences of a decision to forego the aid of counsel. Patterson v. Illinois, 487 U.S. 285 (1988). The trial court did not err in ruling that the appellant understood the consequences.

The next day, February 8, Captain Wolfe gave appellant the same Miranda warnings as he gave on the 7th. Again, there was no express waiver. Appellant gave an incriminating statement that was recorded. He argues the trial court erred in refusing to suppress this statement because there was no waiver. Again, because of the short interval of time between the formal waiver in Kentucky and this statement and the lack of any extraordinary intervening occurrence, the prior waiver was sufficient. We cannot say that the trial court erred in ruling that appellant understood the consequences of foregoing counsel.

Appellant next argues that the trial court erred in refusing to suppress the incriminating statement that he gave on March 4, which was after counsel had been appointed and after he had been arraigned. The trial court found that appellant initiated the conversation, volunteered the statement without any questioning, and, consequently, there was a waiver of appellant’s Sixth Amendment right to counsel. See Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied, 113 S. Ct. 124 (1992). The trial court’s finding was based on the testimony of Captain Wolfe and jailer Howe. Appellant disputes that testimony. The issue was one of credibility, and it is in the province of the finder of fact to determine the credibility of witnesses. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). There was substantial evidence to support the findings of fact made by the trial court. Accordingly, we hold the trial court did not err in refusing to suppress the statement of March 4.

Appellant makes another constitutional argument involving both the Fifth and Sixth Amendment rights to counsel. In this argument appellant admits that a waiver of Miranda rights would constitute a waiver of Fifth Amendment rights, but contends that something more is required for a valid waiver of the Sixth Amendment right to counsel. For example, in United States v. Mohabir, 624 F.2d 1140 (2d Cir. 1980), the court stated that once the Sixth Amendment right to counsel attached, “a valid waiver ... to have counsel present during post-indictment must be preceded by a federal judicial officer’s explanation of the content and significance of this right.” Id. at 1153. In Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), we indicated that we might also require something more than a waiver of Miranda rights to constitute a waiver of Sixth Amendment Rights. However, those cases were decided before the Supreme Court of the United States determined whether a waiver of Miranda rights would constitute a waiver of both the Fifth and Sixth Amendment rights. In Patterson v. Illinois, 487 U.S. 285 (1988), the Court decided that issue and expressly held that “whatever warnings suffice for Miranda’s purposes will also be sufficient in the context of postindictment [Sixth Amendment] questioning.” Id. at 298. Consequently, in this case the Miranda warnings and the waiver of the Miranda rights was sufficient to waive appellant’s Fifth as well as Sixth Amendment rights.

Appellant’s final constitutional argument is that his Sixth Amendment rights were violated when the police failed to follow his lawyer’s instructions to not question him. The argument is without merit for a number of reasons. First, appellant had neither employed the attorney, nor had the attorney been appointed to represent him, at the time the attorney spoke to the jailer. The attorney simply did not represent appellant at the time he gave the instruction. Second, appellant had already made the statement to the Kentucky detective the day before the attorney made his call to Kentucky. Even so, the police told appellant of the call, and, in fact, appellant returned the attorney’s call, and the attorney told him not to make any statements. Appellant subsequently chose to ignore counsel’s advice. He now argues that the trial court erred in refusing to suppress the statement because the police failed to follow the attorney’s instructions. It is not clear that the police failed to follow the attorney’s instructions, but even if he were appellant’s attorney and might have given instructions to the police which they failed to follow, we would not reverse on this point. The failure of police to follow counsel’s instructions does not affect the validity of an otherwise valid waiver. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991); Moran v. Burbine, 475 U.S. 412 (1986).

Appellant’s final argument involves Rule 8.1 of the Arkansas Rules of Criminal Procedure, which provides that an arrested person must be taken before a magistrate without unnecessary delay. Appellant was arrested in Kentucky on Thursday, February 6, and returned to Boone County on the night of Friday, the 7th. He was arraigned on February 10, the following Monday. In several cases we have held that a similar delay over the weekend was not unreasonable. Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992); Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982). Even if the delay might possibly be considered unreasonable, these statements would not be suppressed because there was no causal relationship between the giving of the statements and a delay in the first appearance. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). Here, the first, four custodial statements were not in any way related to a delay. Appellant made the first statement in Kentucky within three hours of his arrest. The next two statements were made the next day on the way back to Boone County, and appellant could not have been taken before the local magistrate at that time. The fourth statement was given the next day. In short, the statements were given before there was any possibility that they were given as a result of an unreasonable delay.

Affirmed.


author: David Newbern, Justice.

text:
    Derek Charles COLEMAN v. STATE of Arkansas
    CR 93-17
    860 S.W.2d 747
    Supreme Court of Arkansas
    Opinion delivered September 13, 1993

      Therese H. Green, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Derek Charles Coleman was convicted of first degree murder and sentenced to life imprisonment for shooting David Stewart to death at Big Daddy’s Lounge in Jericho. His two points of appeal are that the Trial Court erred in overruling his directed verdict motion at the conclusion of the State’s case and again after all the evidence had been presented. We affirm summarily on the first point as a defendant waives his directed verdict claim, made at the close of the State’s case, by presenting further evidence. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). We hold the second motion was properly overruled, and thus the conviction is affirmed.

On the night of November 29, 1991, David Stewart was at Big Daddy’s Lounge with friends. Derek Coleman was there. An argument arose concerning Stewart’s coat. A scuffle began, and as Stewart was being held by two men and beaten by a third, Coleman approached holding a twenty-five caliber automatic pistol. The gun discharged, striking Stewart in the chest.

Coleman was not at the scene when the police arrived, but the next day he surrendered voluntarily and directed the police to the hidden pistol.

The State Medical Examiner testified Stewart died from a gunshot wound to the chest. The State’s firearms expert testified the bullet that killed David Stewart was fired from the pistol retrieved by the police. Witnesses said they saw Coleman shoot Stewart.

Sufficiency of the evidence

A directed verdict motion is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). The standard of review when the motion has been overruled is whether there was substantial evidence to support the verdict. Friar v. State, supra; Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). Substantial evidence is “evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond a suspicion or conjecture.” Cigainero v. State, 310 Ark. 504, 506, 838 S.W.2d 361, 363 (1992). In determining whether substantial evidence exists, the Court reviews the evidence in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

Coleman argues the evidence was insufficient to demonstrate that he acted with the “purpose of causing the death of another person,” an element of first degree murder. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991).

Ulyses Taylor, proprietor of Big Daddy’s, testified that, as he tried to break up the scuffle involving Stewart, Coleman reached over Taylor’s shoulder, pointed the gun at Stewart, and fired. The testimony of the medical examiner and the firearms examiner conclusively linked that shot to Stewart’s death.

Coleman testified without contradiction that he did not know Stewart or the others involved in the scuffle and was not involved in it. He said he found the pistol on the floor during the scuffle, picked it up, and it discharged as he was struck from behind.

It is the jury’s duty to resolve contradictions and conflicts in testimony. In doing so, the jury may accept testimony it believes to be true and disregard testimony it believes is false. Abdullah v. State, supra. The jury could reasonably conclude the shooting of David Stewart was not an accident.

On appeal we view only the evidence which is most favorable to the jury’s verdict and do not weigh it against other conflicting proof favorable to the accused. Ricketts v. State, supra; Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). The jury may infer intent “from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds.” Williams v. State, 304 Ark. 509, 513, 804 S.W.2d 346, 348 (1991)(citing Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987)). David Stewart was shot as he was being restrained during a fight. He was shot at close range with a twenty-five caliber automatic pistol. He was shot in the chest, near the heart. From the circumstances of this shooting, it was reasonable to conclude that Derek Coleman shot David Stewart with the purpose of killing him.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to the Appellant which constituted prejudicial error.

Affirmed.


author: Tom Glaze, Justice.

text:
    Michale Ray FURLOUGH v. STATE of Arkansas
    CR 92-1442
    861 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered September 13, 1993

      Jay E. Hoggard, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Michael Furlough appeals his conviction of aggravated robbery. Because he had four felonies, he was tried and convicted as a habitual offender and received a sentence of forty years imprisonment. He raises two points for reversal.

First, Furlough argues the trial court erred in allowing into evidence two officers’ reports containing Furlough’s confessions to robbing the Hurry Back store in El Dorado and an attempted robbery at Calion, Arkansas. Furlough was charged with the robbery on December 17, 1991, and afterwards he moved for discovery under Ark. R. Crim. P. Rule 17. On March 12, 1992, four days prior to trial, defense counsel first learned from Lt. Carolyn Dykes that she and Sergeant Byron Sarter had read Furlough his rights after his arrest, and each officer had obtained separate oral confessions from Furlough concerning the Hurry Back store robbery and the attempted robbery at Calion. The officers included these confessions in their respective reports and filed them with the El Dorado Police Department where they remained until Furlough’s counsel located them on March 12. Furlough subsequently moved to suppress the confessions, and the trial court ordered a continuance until a hearing could be conducted on Furlough’s motion. A hearing was held on April 23, 1992, when the trial court denied Furlough’s motion and set a new trial for May 14, 1992.

Furlough contends that he never confessed to any robbery and that the trial court should have disallowed introduction of the officers’ reports containing his purported confessions because the state failed to disclose this material pursuant to Discovery Rule 17.

Rule 19.7(a) contains the following list of remedies that the court may employ when a party has failed to comply with the rules of discovery: (1) order such party to permit the discovery or inspection of materials not previously disclosed, (2) grant a continuance, (3) prohibit the party from introducing in evidence the material not disclosed, or (4) enter such order as it deems proper under the circumstances. It is within the trial court’s discretion which sanction to employ, and here the trial court offered Furlough a continuance to deal with the surprise caused by the state’s failure to reveal the officers’ reports containing the confessions. See Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993). We have held a continuance may be sufficient to cure the state’s failure to comply with the discovery rule. Id. Here, Furlough fails to show how he was prejudiced. The trial court’s continuance gave Furlough two months to prepare his case after having become aware of the officers’ reports. Accordingly, we find no merit to Furlough’s first argument.

Next, Furlough contends that the trial court erred in failing to grant his motion for mistrial when Lt. Dykes, on direct examination by the state, referred to “other robberies” with which Furlough was not charged. That colloquy follows:

State: All right. What did Mr. Furlough tell you about his involvement in this armed robbery?
Dykes: He told me very little. He denied having committed any robberies. In fact Mr. Furlough became hostile and belligerent as I attempted to interview him concerning the robberies . . .
State: Can you be a little more specific about how he demonstrated this hostility or what kinds of things he was saying to you that demonstrated hostility?
Dykes: I went into detail to explain to Mr. Furlough why he was a suspect in the other robberies that he was not charged with.
Defense Counsel: May we approach the bench?
Court: Yes.
PROCEEDINGS OF SIDE BAR:
Defense Counsel: You’re talking about a bunch of stuff here that he’s not even been charged with. She’s mentioned other robberies three times.
Court: Is that your objection?
Defense Counsel: Yes, I’m objecting to it, and moving for a mistrial.
Court: Well, I think there is a problem with eliciting testimony about other events with which the defendant has not been charged.
State: The only basis at this point is the fact that the confession includes a confession to one of the other robberies. I’ll limit the questions and I’ll be very specific.
Defense Counsel: I would move for a mistrial, Your Honor.
Court: Well, it’s going to be denied.
State: I will limit the testimony just to this particular incident. But in the conféssion there will be testimony that he has confessed to that robbery at the Hurry Back and also to the store in Calion.
Court: Mr. Hoggard [defense counsel], do you wish me to instruct the jury that they’re not to consider other events with which this defendant [is] charged?
Defense Counsel: I would respectfully request that, Your Honor. But I want it noted that I make my exception to the ruling of the Court in not granting a mistrial.
TO OPEN COURT:
Court: Ladies and gentlemen of the jury, Lieutenant Dykes and one other officer have made reference to what has been described as a series of robberies or other robberies. I simply want to remind the jury at this time that this case involves only the specific offense, an incident, that has been described and as alleged in the information. This trial does not concern itself with other previous events and you are not to consider these references in any way with respect to your deliberations as to the specific charges in the case that we have before the Court and the jury today.
You may proceed.
State: Lieutenant Dykes, perhaps I need to ask you a more narrow question. You spoke with him about his participation in this robbery, is that right?
Dykes: That’s correct.
State: And did he give you answers with regard to this robbery?
Dykes: Very few answers. Mr. Furlough spent most of his time in his conversation attempting to, how shall I say, explain to me that he was not capable of having committed those robberies.
State: I want to know about this robbery.

The foregoing colloquy reflects the trial court agreed that Dykes’ references to other robberies were inadmissible and upheld Furlough’s objection by giving a cautionary instruction. Nonetheless, Furlough maintains on appeal that only a mistrial would have corrected the introduction of such objectionable testimony.

As this court has said on numerous occasions, mistrial is a drastic recourse and should be ordered only when the fundamental fairness of the trial itself has been manifestly affected. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). A mistrial is to be granted only where any possible prejudice cannot be removed by an admonition to the jury. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). Here, the trial court gave the jury an admonition to limit its concern and deliberations to the offenses alleged in the state’s information and not to consider the references to other robberies. Defense counsel requested such an admonition, and while he continued his request for a mistrial, counsel made no objection to the remarks or cautionary instruction the trial court made in this regard. In view of the trial court’s admonition, we believe the trial court did not abuse its discretion in denying Furlough’s mistrial motion. The trial court’s admonition was particularly appropriate in light of Furlough’s confessions which apprised the jury not only of his admission to having committed the aggravated robbery of Hurry Back, but also of his attempted robbery in Calion, Arkansas. Certainly, Dyke’s references paled in comparison to Furlough’s actual confessions to the robbery with which he was charged.

In sum, we conclude the trial court’s admonition during Officer Dykes’ testimony was sufficient to remove any prejudice caused by the officer’s improper reference to other robberies. Therefore, we affirm.

       Although Furlough moved to suppress his confessions because the state failed to provide them in timely fashion, no objection was made to strike the Calion attempted robbery offense because he had not been charged with such an offense. The other robberies alluded to by Dykes dealt with a series of separate robberies.


text:
    Samuel LANGFORD v. STATE of Arkansas
    CR 92-795
    860 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered September 13, 1993

      Vandell Bland, Sr., for appellant.
    No response.
   Per Curiam.

Petitioner, Samuel Langford, by his attorney, Vandell Bland, Sr., has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


author: Jack Holt, Jr., Justice.

text:
    Lynn F. GRAHAM v. STATE of Arkansas
    CR 93-198
    861 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Stidham & Crow, by: Daniel T. Stidham and Gregory L. Crow, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Justice.

This is a case of first impression involving Act 451 of 1983, the statutory prohibition against the use of children in sexual performances as defined in the Act. Ark. Code Ann. § 5-27-401 et seq. (1987). The appellant, Lynn F. Graham, raises four points for reversal of his conviction of the felony offense of employing a child in a sexual performance. Because we reverse on the first issue, a challenge to the sufficiency of the evidence, it is unnecessary to consider the other questions raised on appeal.

The relevant portions of Ark. Code Ann. § 5-27-402 (1987) provide:

(a) It is unlawful for any person if, knowing the character and content thereof, he employs, authorizes, or induces a child under seventeen (17) years of age to engage in a sexual performance.
(c) Any person violating this section is guilty of a Class C felony for the first offense and Class B felony for subsequent offenses.

A definition of “performance” appears at Ark. Code Ann. § 5-27-401(1) (1987):

“Performance” means any play, dance, act, drama, piece, interlude, pantomime, show, scene, or other three-dimensional presentation or parts therof that is exhibited before an audience of two (2) or more persons[.]

A “sexual performance” consists of “any performance or part therof that includes sexual conduct by a child younger than seventeen (17) years of age.” Ark. Code Ann. § 5-27-401(2) (1987). “Sexual conduct” involves “actual or simulated sexual intercourse, deviate sexual activity, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.” Ark. Code Ann. § 5-27-401(3) (1987).

In 1991, the Greene County prosecutor filed an information stating that, on April 28,1990, appellant Graham had employed, authorized, or induced a child under the age of seventeen to engage in a sexual performance.

Graham waived a jury trial. During the bench trial, the State produced as evidence a video tape of Graham and three other males participating in mutual masturbation and oral sex. Nude photographic prints of the parties were also introduced in evidence. The State contended that the defendant had engaged in deviate sexual activity with children under the age of seventeen and had made a videotape of the acts.

Although neither of the two youths in question, who were identified by the names of Clifton and Anthony, were present at trial, a witness for the State, Wendell Pullen, supplied damaging testimony over repeated hearsay objections. Pullen stated that in December 1989, several months before the videotape was made, he and Graham drove from the appellant’s home in Paragould to Poplar Bluff, Missouri, to pick up Graham’s friend, Terry Branch. Pullen stated that they went to Branch’s parents’ house, where they met Branch’s sister and her two sons, whom Branch introduced as his nephews. After a 45-minute visit, Graham, Pullen, and Branch left to return to Paragould.

According to Pullen, Graham told Branch that his nephews were cute, and Branch indicated that he was sexually involved with them. Pullen said that he asked Branch how old the youths were, and Branch stated, in Graham’s presence, that Clifton and Anthony were thirteen and fourteen years old. At that point, Pullen testified, Graham asked Branch how he might get the youths to come to his house in Paragould, suggesting that he give Branch $20 to be split between Clifton and Anthony.

Graham presented as an affirmative defense his reasonable belief that the two youths were at least seventeen years old, based on the good-faith provision of Ark. Code Ann. § 5-27-404 (1987):

It is an affirmative defense to a prosecution under this subchapter that the defendant in good faith reasonably believed that the person who engaged in the sexual conduct was seventeen (17) years of age or older.

Taking the witness stand, Graham stated that both of the boys had told him they were seventeen and, further, that Clifton had offered to produce his driver’s license. Another witness for the defense, David Allison, testified that in November 1989 he had met Clifton and Anthony in the company of Terry Branch and that Clifton had showed him a driver’s license from which he estimated the young man’s age to be “approximately seventeen — almost eighteen years old.” Dr. James Sikes, a pediatrician, also testified for Graham, stating that while it is not possible to pinpoint an exact year of age by examining photographs, he would place the age range for the youths who appeared on the videotape somewhere between fourteen and twenty years.

The trial court found Graham guilty of promoting a sexual performance by a child under the age of seventeen and held that he had failed to meet his affirmative defense. The court sentenced him to ten years imprisonment, the maximum sentence under Ark. Code Ann. § 5-27-402 for a first offense.

For his first point for reversal, Graham asserts that the trial court erred in failing to grant his motions for directed verdict at the close of the state’s case and at the close of all evidence. It is, of course, unnecessary in a trial by the court without a jury for the defense to renew its motion for a directed verdict at the close of the trial in order to preserve the issue for appeal. Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993). Our focus on appellate review, therefore, is limited to an assessment of the posture of the state’s case at the time the first directed-verdict motion was made.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 738 S.W.2d 58 (1990). Evidence is substantial ifit is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Graham contends that the State failed to provide substantial evidence regarding the elements of the offense of employing a child in a sexual performance under Ark. Code Ann. § 5-27-402(a). “Sexual performance” is defined at Ark. Code Ann. § 5-27-401(2) (1987) as “any performance of part thereof that includes sexual conduct by a child younger than seventeen (17) years of age.”

The precise meaning of the term “performance” was a subject of spirited debate at trial, and Graham argues on appeal that the State failed to put on evidence of an actual “performance” as defined by § 5-27-401(1). The definition, set forth earlier, employs specialized terminology that obviously embraces the traditional aspects of live theatrical production (“play, dance, act, drama,” and so forth), including such antiquities as interludes and pantomimes. It ignores, meanwhile, the more unstructured varieties of contemporary presentation generally known as “performance art,” in which elements of the spontaneous and the random are often prominently featured. Significantly, no mention is made in the definition of “performance” — or, for that matter, in any other section of the Act — of film or videotape.

Although no legislative history is available, it is clear from an examination of the text of Act 451 of 1983 that the intent of the General Assembly was specifically to prohibit the exploitation of children in commercial pornographic stage productions. If it had been the purpose of the legislature to criminalize such privately conducted activities as those in the present case, the Act could have expressly barred, in distinct language, the filming or videotaping of children engaged in any sort of sexual conduct.

The definition of “performance” in § 5-27-401(1) requires that an exhibition of the work before an audience of at least two persons — an indication that the legislators had in mind some form of public display rather than a private recording of sexual intimacies between participating parties. In this regard, Graham further contends that the State failed to present any evidence that the sexual conduct on the videotape amounted to a performance “exhibited before an audience of two (2) or more persons.” The State concedes that the statutory definiton of “performance” set forth at § 5-27-401(1) requires the State to prove that the sexual performance was exhibited to two or more viewers.

Much energy was expended at trial in an attempt to determine how many people were observing the sexual performances as they were being taped. The trial court decided that because there were four persons involved in the taping of the sexual conduct and because during most of the running time of the two different episodes only two persons appeared on camera, the remaining pair must have comprised an audience of two persons.

The trial court’s conclusion relies heavily on conjecture and supposition. There is simply no proof that two or more persons were watching as the tape rolled.

On appellate review, we strictly construe criminal statutes, resolving any doubts in favor of the defendant. Leheny v. State, 307 Ark. 29, 818 S.W.2d 236 (1991). Nothing is taken as intended which is not clearly expressed. Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989). Graham’s conduct, therefore, is not violative of Ark. Code Ann. § 5-27-401 et seq. (1987), and we reverse and dismiss his conviction.

Because we are reversing and dismissing the matter on the issue of the sufficiency of the evidence, it is unnecessary for us to address the other points raised by the appellant.

Reversed and dismissed.

Corbin, J., concurs.

       In fact, the General Assembly had, by 1983, already enacted such a prohibition. Act 499 of 1979, the Arkansas Protection of Children Against Exploitation Act, codified at Ark. Code Ann. § 5-27-301 et seq. (1987, Supp. 1991), addresses precisely the situation before us. Section 5-27-303 (a) provides that:
      Any person who employs, uses, persuades, induces, entices, or coerces any child to engage in, or who has a child assist any other person to engage in, any sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct shall be guilty of a Class C felony for the first offense and a Class B felony for subsequent offenses.
      A crucial difference in the earlier Act is that a “child” is defined as “any person under the age of sixteen (16) years.”