author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Mark LATTA v. STATE of Arkansas
    CR 01-679
    88 S.W.3d 833
    Supreme Court of Arkansas
    Opinion delivered November 7, 2002
    [Petition for rehearing denied December 12, 2002.]

      McCullough Law Firm, by: R.S. McCullough, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., and David J. Davies, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Mark Latta appeals the order of the Garland County Circuit Court convicting him of manufacturing a controlled substance, methamphetamine, a Class Y felony, in violation of Ark. Code Ann. § 5-64-401 (Supp. 2001). He was sentenced to a term of life imprisonment; thus, this court’s jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant raises five arguments on appeal. Because we agree with Appellant that the trial court erred in denying Appellant’s motion to suppress, we reverse the conviction and remand for further proceedings. It is therefore unnecessary for us to address the other points raised by Appellant on appeal.

According to the record before us, four investigators from the Eighteenth East Drug Task Force went to Appellant’s home on February 8, 1999, after receiving an anonymous tip that Appellant was maintaining a methamphetamine lab on the premises. The investigators were Todd Sanders, Richard Norris, Cory DeArmon, and Brian Keck. While some of the facts regarding what happened that day are in dispute, it is undisputed that when the officers arrived at Appellant’s residence, they knocked on the front door, and it was opened by a black male, later identified to be Melvin Arnold. It is also undisputed that these same officers had been to this residence before in October 1998 and were acquainted with Appellant and knew him to be the owner of the home. The officers, who had identified themselves, asked if Appellant was at home. Arnold responded that he was in the bedroom. What happened next is not entirely clear; suffice to say, that three of the investigators entered the Appellant’s living room and called out for Appellant to come out and talk with them.

According to Sanders, the bedroom door was partially open and the officers noticed some movement in the bedroom. The officers then drew their weapons and pointed them at the bedroom door; thus, when Appellant exited the bedroom, there were three guns pointed at him. One of the officers conducted a pat-down search of Appellant’s person to check for weapons. Finding none, the three officers put their own weapons away. Sanders then asked Appellant to step outside and talk to him. Appellant, who was barefoot at the time, complied. Norris and DeArmon remained inside the residence, along with three other people who were at Appellant’s home at that time.

Once outside, Sanders told Appellant that they had received an anonymous tip that he was cooking methamphetamine again. Appellant denied any such activity and demanded to know who had contacted the officers. Sanders explained that he did not know the identity of the caller and again asked if Appellant was making methamphetamine. Appellant again denied the accusation. Thereafter, Sanders asked if Appellant had any methamphetamine for personal use. Once again, there was a conflict as to how the subsequent events unfolded. According to Sanders, Appellant initially denied having any methamphetamine for personal use, but when confronted about it again, finally admitted that he had some in a brown pill bottle in his bedroom. Sanders then stated that Appellant led him to his bedroom and turned over the pill bottle. Sanders asked if Appellant had anything else, and Appellant handed him a pie plate with methamphetamine residue on it. According to Sanders, this question and answer session went on two or three more times, until Appellant finally said there was nothing else. Then, Sanders asked if the officers could look around the house, and Appellant agreed.

Appellant was arrested and initially charged with possession of methamphetamine with intent to deliver. The information was later amended to include a manufacturing charge. After his arrest, Appellant denied that he ever admitted to Sanders that he was in possession of drugs or that he handed over the brown pill bottle or pie plates. Appellant contended that Sanders kept him outside while DeArmon and Norris searched his house. Further, Appellant stated that he never gave consent for the search. Appellant filed several pretrial motions, including two motions to suppress. The first motion, filed by Appellant’s first attorney, on May 12, 1999, alleged that the search was invalid because it was made without a warrant and was based on Appellant’s alleged consent, which was not voluntarily given.

A Denno hearing was held on April 26, 1999. At this hearing, Sanders simply stated that they knocked on Appellant’s door, it was opened by a black male, and the officers stepped inside. They then asked where Appellant was, and the black male told them that he was in the bedroom. On cross-examination, Sanders stated that the black male let them in by simply opening the door. When asked what the other officers were doing while he was outside, Sanders said he did not know if they were conducting any type of search. Sanders admitted that he never read Appellant his Miranda rights before taking him outside, because he was not in custody. According to Sanders, after repeated questioning, Appellant finally admitted to having some methamphetamine for personal use. Sanders stated that Appellant then voluntarily retrieved the bottle from his bedroom, as well as the pie plates he gave to him. Sanders also admitted that he did not obtain written consent to search and that the officers lacked probable cause to get a search warrant.

Investigator Richard Norris testified at the Denno hearing that they entered the residence after Arnold opened the door. Norris admitted that Arnold gave no indication to the officers that they could enter the house. In fact, Norris stated, “I don’t think he could have invited us in, it not being his house.” Norris also testified that he initially went outside with Sanders and Appellant, but spent most of his time inside the house. He did not hear Appellant give Sanders consent to search the house, but did hear Appellant admit that he had a pill bottle.

Investigator Cory DeArmon testified that when Arnold opened the door he told the officers to “come in.” He denied searching the house while Sanders talked with Appellant. DeArmon also did not hear Appellant consent to the search; rather, he was told'by Sanders that they could search the house. DeArmon did testify that he saw Appellant lead Sanders to the bedroom and hand over other evidence.

The final witness to testify was Investigator Brian Keck. He stated that he remained outside the house to contain the area. At no point did Keck enter Appellant’s residence. The trial court subsequently entered a written order on May 5, 1999, finding that the statements Appellant made to officers on February 8 were admissible because he was not in custody at that time and could have told the officers to leave at any time.

A second motion to suppress was filed by Appellant’s current counsel on December 27, 1999, alleging generally that suppression was warranted, because Appellant’s Fourth Amendment rights had been violated. A hearing on this second motion to suppress was held on April 20, 2000. At this hearing, Sanders again testified, but some of his testimony differed slightly from what he testified to at the Denno hearing. This time, Sanders stated that after Arnold opened the door, he asked if Appellant was there, whereupon Arnold said he was and “basically just stepped out of the way[.] ” Sanders stated that the officers went inside the home about three feet past the doorway. Sanders also testified that after Appellant admitted to having some methamphetamine for personal use, he responded, “Well, you know, we’re here, you know. Let’s just go ahead and get this taken care of today. You want to give it to me?” Sanders did admit that Appellant had previously ordered police off his property. The State presented no other evidence during the suppression hearing.

Appellant then testified on his own behalf. He stated that he had previously come into contact with these officers in October 1998 when he ordered them off his property, unless they obtained a search warrant. Appellant stated there were “No Trespassing” signs posted on his property both in October and in February. According to Appellant, while he was outside with Sanders, Norris went back into the house, and the officers came outside and notified him that they had found some evidence after conducting a search. Appellant stated that he was then taken back into the house. He denied ever voluntarily turning over any evidence, or ever admitting to Sanders that he was in possession of any methamphetamine.

Arnold also testified for the defense at this hearing. He explained that he had come to Appellant’s house that day looking for someone to give him a ride to work. He stated that he never gave police consent to enter Appellant’s home on February 8. According to Arnold, when asked by the officers where Appellant was, he simply told them that Appellant was busy. Thereafter, the officers simply opened the door and entered the home. Arnold testified that he recalled Sanders taking Appellant outside to talk to him. He heard Sanders ask Appellant who was in the bedroom, but heard no other part of the conversation.

At the close of the suppression hearing, the trial court requested that the parties submit simultaneous briefs on the suppression issue within ten days of the hearing. The trial court subsequently entered an order on April 26, 2000, denying Appellant’s motion to suppress. In so ruling, the trial court made the following findings:

1. Officers went to Defendant’s residence to interview the Defendant about reports of drug activity.
2. The Defendant’s door was answered by a guest. When asked if the Defendant was present the guest stepped back to clear the doorway and called for the Defendant.
3. The officers observed activity in the bedroom, became alarmed for their safety and drew their weapons.
4. The Defendant was confronted, it was ascertained that he did not pose a threat to the officers and Investigator Sanders and Defendant stepped outside.
5. A discussion ensued during which Defendant acknowledged that he was in possession of controlled substances.
6. Defendant then took the officers back into his residence and revealed the location of the controlled substances.
I find no grounds for the suppression of this evidence and it will be admissible at the trial of this case.

A jury trial was held on June 13, 2000. Sanders again testified about the events of February 8. He stated that a black male opened the door at Appellant’s residence and when they asked for Appellant, the man said, “Yeah, he’s in the bedroom,” and stepped back away from the door. When asked if the male invited the officers into the house, Sanders stated that he never verbally asked the officers to come in.

Richard Norris also testified that he went to Appellant’s residence both in October 1998 and in February 1999. According to Norris, he heard Appellant admit that he had a pill bottle containing methamphetamine in his bedroom. On cross, he stated that Appellant gave Sanders the pill bottle and then Sanders turned it over to him. Norris also testified about the components of manufacturing methamphetamine and how they are used to make the drug.

The defense rested without presenting any evidence. The jury returned a guilty verdict, and Appellant was sentenced as previously stated. This appeal followed.

For his first point on appeal, Appellant argues that it was error for the trial court to deny his motion to suppress. In support of this argument, Appellant contends that the officers had no probable cause or reasonable suspicion to justify their going to Appellant’s residence and certainly had no right to enter his home; thus, the subsequently seized evidence became “fruit of the poisonous tree.” The State counters that the trial court’s order denying Appellant’s motion was not clearly against the preponderance of the evidence. First, the State avers that the officers did not need probable cause to go to Appellant’s home for the purpose of talking to him about the suspected drug activity. The State acknowledges, however, that the testimony in this case may not rise to the level of clear and convincing evidence that the officers entered Appellant’s home with valid consent.

When reviewing a trial court’s decision on a motion to suppress, this court makes an independent determination based on the totality of the circumstances and views the evidence in a light most favorable to the State. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002); Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). We will reverse only if the trial court’s decision was clearly against the preponderance of the evidence. Id.; Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). Moreover, we defer to the trial court in assessing witness credibility. Griffin, 347 Ark. 788, 67 S.W.3d 582; Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001), cert. denied, 122 S. Ct. 1914 (2002); Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999).

Initially, we review Appellant’s allegation that police did not lawfully go to his home because they lacked probable cause or reasonable suspicion to do so. We agree with the State that the officers’ actions in going to Appellant’s home in an attempt to talk with him did not result in any constitutional violation. This “knock and talk” procedure has recently been analyzed by this court in several opinions. We recognized in Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002), that the issue of whether the knock and talk procedure was per se violative of the Fourth Amendment was an issue of first impression in this State. After looking to other jurisdictions for guidance on the matter, we concluded that the police’s action of going to the appellant’s home in order to request his assistance in a criminal investigation did not amount to a “seizure” under the Fourth Amendment. In reaching this conclusion, we reasoned:

A seizure does not occur simply because a police officer approaches an individual and asks a few questions. Id. A seizure occurs when a reasonable person would not feel “free to leave.” Michigan v Chesternut, 486 U.S. 567 (1988). The “free to leave” analysis, however, is not an accurate measure of the coercive effect of an encounter in situations where a person would have no desire to leave, such as where the person is seated on a bus. Florida v. Bostick, 501 U.S. 429. “In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 436. The crucial test is whether, taking into account all circumstances, the police conduct would have communicated to a reasonable person “that he was not at liberty to ignore the police presence and go about his business.” Id. at 437 (citing Michigan v Chesternut, 486 U.S. at 569). It is important to note that the “reasonable person” test presupposes an innocent person. Id. at 438.

Id. at 777-78, 67 S.W.3d at 574. Applying this analysis to the facts in Scott, we held that the police did not need a reasonable suspicion in order to approach the appellant’s residence in order to ask him questions related to their investigation.

We further recognized in Griffin, that in most situations where consent is freely and voluntarily given, the knock-and-talk procedure has been upheld as a consensual encounter and a valid means to request consent to search a house. Id., 347 Ark. 788, 67 S.W.3d 582 (citing United States v. Cormier, 220 F.3d 1103, 1110-09 (9th Cir. 2000); United States v. Taylor, 90 F.3d 903, 909 (4th Cir. 1996); United States v. Kim, 27 F.3d 947, 951 (3d Cir. 1994); United States v. Tobin, 923 F.2d 1506, 1511-12 (11th Cir. 1991); United States v. Cruz, 838 F. Supp. 535, 543 (C.D. Utah 1993); State v. Green, 598 So.2d 624, 626 (La. Ct. App. 1992); State v. Land, 106 Or. App. 131, 806 P.2d 1156, 1157-59 (1991)).

Even prior to these cases analyzing the “knock and talk” procedure, however, this court recognized that an officer could permissibly approach any person to request that they furnish information or otherwise cooperate in the investigation or prevention of a crime. See Ark. R. Crim. P. 2.2(a); Scott, 347 Ark. 767, 67 S.W.3d 567. More specifically, this court recognized that entry onto private property by police may be justified by the legitimate police objective of determining if anyone is present to interview as part of an investigation of drug-related activity. See Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000).

Here, police had received anonymous tips that Appellant was manufacturing methamphetamine. Only a few months before, police investigated Appellant on the same allegations and a subsequent search warrant revealed that Appellant was indeed manufacturing methamphetamine. Sanders admitted that they went to Appellant’s home in order to investigate the allegations against him. According to Sanders, Appellant did not ask the officers to leave and in fact was cordial the entire time. Both Sanders and Norris testified that Appellant admitted to possessing methamphetamine for personal use and that it was hidden in a brown pill bottle in his bedroom. Although Appellant denied admitting such, we defer to the trial court’s superior position in assessing the credibility of witnesses. Taking into account the circumstances surrounding this encounter and viewing the evidence in a light most favorable to the State, we are not convinced that a reasonable person in Appellant’s position would believe that he was not free to “ignore the police presence and go about his business.” Scott, 347 Ark. at 777, 67 S.W.3d at 574 (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)). This is particularly true in light of the fact that Appellant had previous dealings with these same officers on a prior unrelated drug offense and ordered them off his property until they obtained a search warrant.

Having determined that the police were allowed to go to Appellant’s residence, we must now determine whether the officers’ actions of entering Appellant’s residence constituted a Fourth Amendment violation. Appellant argues that the entry was not permissible because the officers were not invited in, and even if they were invited in, the person who opened the door was not a resident of the home and thus could not consent to their entry.

The State counters that Arnold possessed apparent authority to consent to the officers’ entry. The State acknowledges, however, that under Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002), the evidence in this matter may not constitute clear and convincing evidence that the police had consent to enter, because there is a lack of clear words inviting the officers into the home. The State, however, avers that this court should reconsider its holding in Holmes, as the Eleventh Circuit case, United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996), relied on by this court, has since been distinguished. We disagree.

It is well settled that a warrandess entry into a private residence is presumptively unreasonable under the Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740 (1984); Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002); Holmes, 347 Ark. 530, 65 S.W.3d 860; McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). The presumption of unreasonableness may be overcome if the officer obtained consent to conduct a warrantless search. Ark. R. Crim. P. 11.1. It is true that consent may only be given “by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent.” Ark. R. Crim. P. 11.2(c). The State bears the burden of proving that the warrantless activity was reasonable. Holmes, 347 Ark. 530, 65 S.W.3d 860; Wofford, 330 Ark. 8, 952 S.W.2d 646. In order to sustain this burden, the State may not show a mere acquiescence to police authority; but rather, it must present clear and positive testimony that consent was given. Stone, 348 Ark. 661, 74 S.W.3d 591; Holmes, 347 Ark. 530, 65 S. W.3d 860.

In Holmes, police were responding to a domestic-disturbance call involving a man, David Ellis, who happened to be at the appellant’s residence. Upon arriving at the appellant’s residence, police encountered Ellis and the appellant outside the house. The two men were taken to a squad car for questioning. One of the officers then noticed a woman, Rosa Beth Allen, standing in the doorway of the home and decided to question her about Ellis. The officer asked the woman if there was anywhere they could talk and the woman responded by opening the door and stepping back. The officer then entered the house and immediately smelled the odor of recently burned marijuana. The officer subseT quently advised the appellant of his Miranda rights and obtained a written consent to search the home. The search uncovered various drugs and paraphernalia. The appellant moved to suppress the evidence, but his motion was denied.

On appeal, the appellant argued that the police had no justification for entering his home, nor had consent been given by Allen for the entry. This court agreed. In discussing whether Allen’s action of opening the door and stepping back amounted to consent, this court relied, in part, on its decision in Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). There, this court looked to United States v. Gonzalez, 71 F.3d 819, and wrote as follows:

The question of “implied consent” . . . was more closely examined recently in U.S. v. Gonzalez, supra. In Gonzalez, the officer approached an individual outside her home and asked if she would consent to a search of her home. Following a conversation with her daughter, she told the officer she wanted to go inside and get a drink of water. The officer then told her he “wanted to go in” with her, and when she did not bar him from going in, he followed her inside. The Eleventh Circuit held that there was no consent to enter:
We have previously noted our hesitancy to find implied consent (i.e. consent by silence) in the Fourth Amendment context, and we agree with our colleagues in the Ninth Circuit that whatever relevance the implied consent doctrine may have in other contexts, it is inappropriate to sanction entry into the home based upon inferred consent.’ [Emphasis added.]
Gonzalez then quoted from U.S. v. Shaibu, 920 F.2d 1423 (9th Cir. 1990), to which it had referred above:
The government may not show consent to enter from the defendant’s failure to object to the entry. To do so would be to justify entry by consent and consent by entry. ‘This will not do.’ Johnson v. United States, 333 U.S. at 17. We must not shift the burden from the government — to show 'une quivocal and specific’ consent — to the defendant, who would have to prove unequivocal and specific objection to a police entry, or be found to have given implied consent. [Emphasis added.]

Norris, 338 Ark. at 409, 993 S.W.2d at 925-26 (quoting Gonzalez, 71 F.3d at 830).

It is this court’s previous reliance on Gonzalez that the State now takes issue with. Specifically, the State points out that the Eleventh Circuit distinguished its holding in Gonzalez in the recent case of United States v. Ramirez-Chilel, 289 F.3d 744 (11th Cir. 2002). There, the Eleventh Circuit distinguished Gonzalez on the basis that the former case involved a situation where the defendant simply did not object to police entering the home, whereas in Ramirez-Chilel, the situation involved a defendant who opened the door and then stepped back to allow police to enter. In the latter case, the court found the entry to be legal because there was no official show of force that caused the defendant to allow the officers into his house.

We find the distinction drawn by the Eleventh Circuit to be immaterial to the case at hand. Here, the State failed to present any clear and positive testimony that any type of consent, verbal or otherwise, was obtained by officers before they entered Appellant’s house. Here, Sanders’s own testimony regarding how the officers came to be in the house varied from the Denno hearing to the second suppression hearing. Sanders initially stated that Arnold opened the door and the officers entered the house. It was not until a year later at the second hearing that Sanders added that Arnold opened the door and stepped back for the police to enter. Moreover, the testimony of Norris regarding the entry contradicts Sanders’s testimony. When asked if Arnold gave any indication for the officers to come in, Norris replied, “No.” Moreover, Arnold himself testified at the second suppression hearing that when he opened the door, he gave no indication for the police to enter; rather, they simply walked past him. Even viewing this evidence in a light most favorable to the State, we cannot say that the State met its burden on this point.

Accordingly, the officers’ warrantless entry into Appellant’s home constituted a Fourth Amendment violation. The trial court, therefore, erred in denying Appellant’s motion to suppress. In reaching this conclusion, it is unnecessary for us to consider the issue of whether Arnold possessed apparent authority to consent to the officers’ entry. See, e.g., Holmes, 347 Ark. 530, 65 S.W.3d 860. Because we are reversing the trial court on this point, we need not address Appellant’s other arguments on appeal.

Before concluding, we note that a copy of this opinion has been forwarded to this court’s Committee on Professional Conduct. Appellant’s counsel, R.S. McCullough, presented the barest of arguments on the issue of suppression and all subsequent points on appeal. In fact, the argument portion of his brief consists of less than five pages for five points on appeal. Moreover, it appears that McCullough failed to comply with this court’s rules from the moment this appeal was filed. In the earliest stages of this appeal, McCullough filed a motion for rule on the clerk, because he failed to lodge the record with this court in a timely fashion. McCullough was then given two extensions to file his brief, and when he finally filed it on December 21, 2001, it was in an improper format. The Clerk gave him an additional seven days to refile a corrected brief. Then, on January 30, 2002, the State filed a motion requesting this court to require McCullough to submit a brief in compliance with this court’s Ark. Sup. Ct. R. 4-3(h). After another two extensions, McCullough filed a revised brief. Obviously, this brief was insufficient, as the State filed a 178-page supplemental abstract. In sum, this sub-par work causes us great concern, particularly in a situation such as this one, where Appellant was sentenced to a term of life imprisonment.

Reversed and remanded.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. I disagree with icmajority opinion e, the sole reason that it reaches the merits of the appeal and reverses Latta’s conviction when appellant’s attorney has provided virtually no assistance to this court in the appellate process. Instead, the majority has relied on the State’s brief and its own research to reverse this case. The result of all this is that the principle of decision-making based on the adversary system has gone by the boards. I would expedite this case and require appellant’s counsel to present this court with an appropriate brief, including a discussion of recent case authority directly on point (Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002)), before I reversed this case. If counsel failed to do so, I would hold him in contempt of court.

Recently, this court has taken to task attorneys who failed in their ethical duty to zealously represent their clients. In those cases, we ordered counsel to refile their opening briefs. See, e.g, Ward v. State, 347 Ark. 515, 65 S.W.3d 451 (2002) (finding abstract flagrantly deficient and ordering counsel to rebrief the matter); Dansby v. State, 347 Ark. 509, 65 S.W.3d 448 (2002) (finding abstract deficient and ordering counsel to refile his brief); Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001) (ordering rebriefing in compliance with Ark. Sup. Ct. R. 4-3(j)(l)); Dewberry v. State, 341 Ark. 170, 15 S.W.3d 671 (2000) (ordering rebriefing in compliance with Ark. Sup. Ct. R. 4-3(j)(l)).

The Supreme Court of California has held that appellate counsel have certain obligations, which I find to be particularly relevant:

We have recently set forth in detail the obligations of appellate counsel, including the duty to prepare a legal brief containing citations to the transcript and appropriate authority, and setting forth all arguable issues, and the further duty not to argue the case against his client.

People v. Lang, 11 Cal. 3d 134, 139, 520 P.2d 393, 396, 113 Cal. Rptr. 9, 12 (1974) (citations omitted). It is elementary that appellate counsel should file briefs which adequately present the issues, and more importantly, cite persuasive and controlling authority for a position. See e.g., People v. Scott, 64 Cal. App. 4th 550, 75 Cal. Rptr. 2d 315 (1998); Smith v. State, 496 So. 2d 971 (Fla. Dist. Ct. App. 1986). In addition, the Model Rules of Professional Conduct state that as an advocate, “a lawyer zealously asserts the client’s position under the rules of the adversary system.” Model Rules of Professional Conduct, Preamble: A Lawyer’s Responsibilities.

In this case, the majority has not only decided an issue which was not sufficiently presented to it, but has also relied on the State’s brief for relevant caselaw (the State, of course, advocates affirmance). The majority then performed its own research in an effort to give the appellant favorable relief. We have said time and again that we will not do research or develop argument for an appellant. See, e.g., Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606, 609 (1977) (stating, “In effect the court is asked to research the law and to hold in favor of the appellant if the result of our labor so demands. We must decline that invitation.”). If we were to continue on the path established today, we would have no need for attorneys to represent appellants before this court, as we would essentially be representing them ourselves. Or, as occurred in this case, we would be allowing the State to present both sides of the argument.

I believe the time has come to remand woefully deficient briefs back to counsel for rebriefing. Appellate counsel must effectively represent their clients under Sixth Amendment guarantees. See Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). Providing a barebones, conclusory argument and failing to cite recent, controlling caselaw, (in this case, Holmes v. State, supra), falls far short of the standard. Indeed, appellant’s counsel did not even file a reply brief in response to the State’s brief which adduced a case directly on point.

Accordingly, appellant’s counsel, R.S. McCullough, should be made to redo his opening brief and cite this court to authority for each point raised. I would give him fifteen days to do so and expedite the appeal once the brief is resubmitted. If he still failed in his duty, I would support the issuance of a show cause order for why he should not be held in contempt of court. The alternative is to allow abysmal appellate work to continue with a mere slap on the wrist as punishment. We should not allow this to occur, especially when the client has been sentenced to life in prison.

I respectfully dissent.

       Appellant’s argument on this point is limited to asserting a violation under the Fourth Amendment to the U.S. Constitution. He makes no argument under Article 2, Section 15, of the Arkansas Constitution.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Algernon DOBY v. JEFFERSON COUNTY CIRCUIT COURT
    CR 02-346
    88 S.W.3d 824
    Supreme Court of Arkansas
    Opinion delivered November 7, 2002
    [Petition for rehearing denied December 19, 2002.]

      Janice Vaughn and Elizabeth S. Johnston, Arkansas Public Defender Commission, for appellant.

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Petitioner Algernon Doby petitions this court for a writ of prohibition barring the Jefferson County Circuit Court from proceeding to trial on the charges against him of capital murder, attempted capital murder, and theft of property. The grounds for the petition are (1) an alleged violation of his right to a speedy trial, as provided under Arkansas Rules of Criminal Procedure 28.1 through 28.3, and (2) an alleged violation of his right to counsel as guaranteed by the Sixth Amendment to the United States Constitution. We hold that due to excluded periods of time chargeable to Doby, a violation of his right to a speedy trial has not occurred. Accordingly, we deny the petition.

On July 7, 1999, the Jefferson County prosecutor filed a criminal information against Doby, charging him with murder in the first degree, battery in the first degree, and felon in possession of a firearm. The prosecutor asserted in the information that Doby killed Raymond Eugene Johnson and caused serious physical injury to Tamika Tyler by means of a firearm. The date listed for each offense was July 6, 1999. Also, on July 7, 1999, a bench warrant was issued for Doby’s arrest. On July 15, 1999, the murder charges were upgraded to capital murder and criminal attempt to commit capital murder. Doby was charged again with felon in possession of a firearm, and a theft-of-property charge was added to the criminal information. Doby fled the jurisdiction.

On September 30, 1999, pursuant to a motion by the prosecution, the trial court appointed the State Public Defender to represent Doby, though he had not been apprehended at that time. The reason for the appointment was so that the prosecutor could depose the victim, Tamika Tyler. At that time, Tyler feared for her life, and it was believed that deposing her, as a critical witness for the State, was necessary, because Doby was still at large. In its order, the trial court said: “The Public Defender is further instructed to inform the Court upon the Defendant acquiring substitute counsel.” On October 6, 1999, Teri Chambers, a public defender, filed a motion for discovery on behalf of Doby and requested that the prosecution disclose all relevant information. The prosecutor responded with reference to the office’s standard “open-file” policy, which allowed defense counsel to inspect the prosecutor’s file following one hour’s notice.

On or about May 2, 2000, the prosecutor learned that Doby was in jail in Texas. On May 4, 2000, Arkansas authorities obtained custody of Doby and returned him to this state. His arraignment was then set for June 5, 2000, before the Jefferson County Circuit Court. At the arraignment on that date, Doby refused representation by the public defender and requested a continuance in order to retain private counsel. The trial court granted a continuance until July 10, 2000. On July 10, 2000, Doby appeared before the circuit court and again requested additional time to retain private counsel. Another continuance was granted until August 7, 2000. On August 7, 2000, Doby still had not retained counsel, and the circuit court denied him a third continuance and set November 2, 2000, as the trial date.

On August 23, 2000, the prosecutor moved to exclude from speedy-trial calculations the period of time between July 7, 1999, and November 2, 2000. The prosecutor based her claim for exclusion on the fact that Doby had delayed his prosecution by, first, fleeing the jurisdiction and, secondly, by repeatedly requesting continuances in order to hire private counsel.

On October 13, 2000, the circuit court held a hearing on the prosecutor’s motion to exclude time. At that hearing, the trial court inquired into whether Doby had retained counsel. Doby answered that he was still unrepresented and that, as of that date, he was unable to afford counsel. In answer to the circuit court’s concern that Doby had previously refused representation by the public defender’s office, he replied that he did not believe he could receive a fair trial with the public defender representing him. When the circuit court asked him why, he stated that after he returned from Texas, a woman from the public defender’s office who said she was his lawyer had come to his jail cell to ask him questions. Doby told the court that he had informed her that he did not want to speak with her, because he needed to speak with a lawyer. (Presumably, Doby’s reference was to retained counsel). Upon hearing this, the woman said that obtaining a lawyer was in his best interests and left.

During the October 13, 2000 hearing, the circuit court declared Doby to be indigent and appointed the public defender’s office to represent him. Doby did not refuse this representation. As the hearing proceeded, Doby asked the court about a motion he claimed that he had filed asking the prosecutor to send him “my evidence under the prosecutor’s obligation.” He said that the prosecutor had not responded to his motion and that the “court clerk” had told him that his discovery motion was filed on June 20, 2000. The circuit court mentioned the prosecutor’s “open file” policy and further stated that the problem Doby had encountered was that he was in jail and, thus, unable to go to the prosecutor’s office and inspect the file. The trial court said in reference to discoverable material: “Had you had an attorney, that would have already been in hand and you would have already had a copy [of the file] from your attorney.”

The trial court then ruled that the period from July 7, 1999, through November 2, 2000, was excluded for purposes of speedy-trial calculations, because Doby was absent from the jurisdiction from July 7, 1999, until May 4, 2000, and that time was properly chargeable to him. The circuit court did not specifically refer to the time between May 4, 2000, and June 5, 2000, the date Doby was arraigned. However, the circuit court did say that the two periods during which Doby appeared in court and requested continuances, June 5, 2000, to July 10, 2000, and June 10, 2000, to August 7, 2000, were chargeable to Doby. For the time period between August 7, 2000, and November 2, 2000, the circuit court found that Doby’s failure to procure counsel and his appearance without counsel on the day the arraignment was reset, which was August 7, 2000, were reasons enough to charge this period to Doby. Following the hearing, the court entered an order excluding the entire period from July 7, 1999, to November 2, 2000, for speedy-trial purposes and charging it to Doby.

During the October 13, 2000 hearing, the circuit court asked Doby if he believed that the public defender could be prepared for trial by November 2, 2000, given the fact that Doby had not procured private counsel, had refused to proceed pro se, and had not cooperated with the public defender previously. Doby responded that he did not believe his appointed attorney would have time to prepare. Following the hearing on October 13, 2000, Teri Chambers, on behalf of the public defender’s office, received a copy of the prosecutor’s file on Doby.

On October 25, 2000, the public defender’s office by Teri Chambers filed a motion to continue Doby’s trial set for November 2, 2000. In making this motion, she argued that Doby had not received complete discovery from the prosecutor. For that reason, she argued, the time from November 2, 2000, until the new trial date should be charged to the State. On October 26, 2000, the circuit court rescheduled the trial for April 17, 2001, and found that the period of time between November 2, 2000, and April 17, 2001, was charged to the State. However, pursuant to a motion by the prosecutor filed on December 5, 2000, the circuit court recanted, and on December 28, 2000, it entered an order charging the period from November 2, 2000, through April 17, 2001, to Doby, without specifying its reasons.

On February 28, 2001, the public defender’s office by Teri Chambers filed a motion for the circuit court to reconsider charging the period from November 2, 2000, to April 17, 2001, to Doby. Counsel claimed once more that the prosecutor had failed in its obligation to provide her with complete discovery. The prosecutor responded that the prosecuting attorney’s office had been diligent in providing discovery, and that, although there were items missing in the office’s file, those items had been sought from the Pine BluffPohce Department and would be provided to counsel when available. The items in question were the medical examiner’s report, crime lab submissions and reports, the crime scene search report, and photographs of the crime scene. On March 9, 2001, Doby’s motion to reconsider was denied.

Doby next moved to sever the charge of felon in possession of a firearm, which was granted. On April 12, 2001, the prosecutor responded with a notice to seek the death penalty, although the death penalty had previously been waived. On April 17, 2001, the circuit court permitted the State to withdraw its waiver of the death penalty. The court also noted that trial of the murder counts would be continued and that this time would be charged to the State. The trial for the murder counts was reset for January 28, 2002.

On October 23, 2001, Doby moved to dismiss the murder charges due to the State’s failure to try him within twelve months. On December 14, 2001, the circuit court conducted a hearing on that motion where witnesses were called and testimony was taken. The circuit court denied the motion by order entered on January 23, 2002. On January 29, 2002, the circuit court entered an order in which it memorialized the history of Doby’s motion to dismiss for speedy-trial reasons and excluded the time period from December 14, 2001, through January 23, 2002, from speedy-trial calculations.

On January 31, 2002, Doby filed a notice of intent to seek a writ of prohibition from this court due to a violation of his right to a speedy trial. On May 30, 2002, Doby filed his petition for a writ of prohibition in this court.

I. Writ of Prohibition

Doby first contends that his right to a speedy trial was violated and that a writ of prohibition should issue. In Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002), this court said:

Pursuant to Ark. R. Crim. P. 28.1(d), a defendant may bring a petition for a writ of prohibition when the trial court denies the defendant’s motion for dismissal under the speedy-trial rules. A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction.

Id. at 170 (citing Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000)). We further said in Gamble that a writ of prohibition will not issue unless it is clearly warranted. Id. We added:

Under Ark. R. Crim. P. 28.1, a defendant must be brought to trial within twelve months unless there are periods of delay which are excluded under Ark. R. Crim. P. 28.3. If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1. Once a defendant establishes a prima facie case of a speedy-trial violation, i.e., that his or her trial took place outside of the speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified.

Id. (citing Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002)). See also Ibsen v. Plegge, supra.

In the case before us, Doby was charged on July 7, 1999. On October 23, 2001, Doby filed a motion to dismiss for violation of his speedy-trial rights. The date the speedy-trial motion is filed by a defendant tolls the running of the time for a speedy trial under our rules. See Moody v. Arkansas County Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002); Ibsen v. Plegge, supra. The time between June 7, 1999, and October 23, 2001, is 839 days. Eliminating 365 days, this leaves at least 474 days that must be chargeable to Doby in order for a violation of Rule 28.1 not to occur. By establishing a period of delay beyond twelve months from the date of the charge, the petitioner has made a prima facie case for a speedy-trial violation. Because Doby fled the jurisdiction, the 300-day period from July 7, 1999, to May 2, 2000, is an excludable period that Doby has not challenged in his petition.

a. May 2, 2000, to May 4, 2000 2 Days.

Doby urges that this two-day period must be charged to the State, because he was available for transportation back to Arkansas on May 2, 2000, once he was located in Texas. Doby further asserts that neither the circuit court nor the prosecutor attempted to provide legal justification for charging the two days to Doby. On appeal, the State malees no argument with respect to this precise time period.

Doby cites Horn v. State, 294 Ark. 464, 743 S.W.2d 814 (1988), for the proposition that the speedy-trial clock should have commenced running against the State on May 2, 2000, the day Doby was available for transportation from Texas, rather than May 4, 2000, the day the State of Arkansas took custody of him. In Horn, the defendant was sought in California on charges of failure to pay child support. Id. He was arrested in California on the Arkansas charge, and at the time, he was a resident of California. Id. Thus, he was rightfully in that State because of his residence. The issue then arose whether the State of Arkansas should be charged for the time it took to transport Horn from California to Arkansas. Id. We noted that the defendant was not in California to resist appearance for trial in Arkansas. We next made it clear that "... we have placed responsibility on the defendant to be available for trial, excluding such time delays as result from his resisting appearance for trial.” Id. at 467, 743 S.W.2d at 816. See also Ark. R. Crim. P. 28.3(e) (“A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.”). The Horn case is simply inapposite due to the distinguishing factual circumstances of that case.

In this case, Doby fled the jurisdiction to evade capture. That differs from a case where authorities are searching for a defendant and find him in another state where he has his legal residence. There is no evidence in the record that Doby had his residence in Texas. Because of this, we conclude that the period from May 2, 2000, through May 4, 2000, should be charged to him, because he was in Texas as part of his plan to resist apprehension.

While Doby became available for transportation on May 2, 2000, when Arkansas authorities learned of his arrest in Texas, he was not available for trial until he was brought back into the state. It cannot be said that the authorities were not diligent in procuring his attendance in this state two days after learning of his whereabouts. We conclude that the two days that were necessary to transport him back to Arkansas should be charged to Doby.

b. May 4, 2000, to June 5, 2000 32 Days.

Once the Arkansas authorities had brought Doby back to this state, Doby was available for trial. This means that the time from May 4, 2000, to June 5, 2000, should not be excluded and should be charged to the State. This period of time totals thirty-two days.

c. June 5, 2000, to August 1, 2000 ■— 63 Days.

On June 5, 2000, and again on July 10, 2000, Doby appeared at his scheduled arraignments and requested continuances in order to retain private counsel. This time period until August 7, 2000, which totals sixty-three days, is clearly chargeable to Doby under Ark. R. Crim. P. 28.3(c), which excludes:

(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.

Ark. R. Crim. P. 28.3(c).

d. August 1, 2000 to October 26, 2000 80 Days.

Doby’s principal contention for this time period is that the continuance he requested on August 7, 2000, was denied and a trial date was set. Accordingly, based on Ark. R. Crim. P. 28.3(c), he contends that the time should be charged to the State. We agree. Again, Rule 28.3(c) does exclude “the period of delay resulting from a continuance granted at the request of the defendant or his counsel.” In this case, however, Doby’s request for a continuance was denied, and he apparently intended to go to trial regardless of whether he had counsel or not. Notwithstanding the fact that Doby again appeared without counsel on October 13, 2000, at the hearing on the State’s motion to exclude time, this period, which is eighty days, should be charged to the State.

e. October 26, 2000 to April 17, 2001 173 Days.

On October 25, 2000, Doby moved for a continuance, and his counsel from the public defender’s office, which had been appointed on October 13, 2000, asserted an insufficient discovery response from the prosecutor. Doby now argues that despite the fact that it was he who filed the motion for a continuance of the November 2, 2000 trial, the State should be charged with this period of time, because the prosecuting attorney’s office had not provided him with certain essential discoverable material in sufficient time to prepare for trial. He further argues that the circuit court misstated the law in proclaiming that he was not personally entitled to discovery. Finally, he urges that only after the public defender’s office was appointed on October 13, 2000, did he learn that the prosecutor’s file was deficient.

The State argues, to the contrary, that the public defender’s office was appointed in September of 1999, and, subsequently, Teri Chambers for that office filed a motion for discovery on October 6, 1999. The State further points out that there is no evidence to suggest that the public defender’s office did anything more to complete discovery beyond that motion. The State also emphasizes that Doby stated at the October 13, 2000 hearing that he did not believe his counsel could be prepared for trial by November 2, 2000. There is finally the fact that Teri Chambers, on behalf of the public defender’s office, filed a formal motion to continue the November 2, 2000 trial on October 25, 2000.

We agree with the State that Rule 28.3(c), as already noted, excludes a period of delay resulting from a defendant’s request for a continuance. Doby’s appointed counsel moved for a continuance of the trial on October 25, 2000, and an order was entered to that effect the next day. The trial was then rescheduled for April 17, 2001. Without question, that period of time should ordinarily be charged to Doby.

Doby’s counsel, however, fervently maintains that the facts do not support charging this time to Doby, because the State was delinquent in completing discovery and that necessitated the continuance request. We note on this issue that the State makes a telling point. Despite Teri Chambers’s testimony that she began to represent Doby officially as a public defender on October 13, 2000, the State Public Defender was in fact appointed as Doby’s counsel on September 30, 1999. Furthermore, despite the fact that this initial appointment was for the limited purpose of taking Tamika Tyler’s deposition, Teri Chambers filed a motion for discovery for Doby on behalf of the public defender’s office on October 6, 1999, an entire year before the office’s reappointment. PTence, it is clear to this court that the public defender began to represent Doby officially on September 30, 1999. Doby’s own testimony supports this conclusion. He testified that a woman who stated that she was appointed to represent him met with him after he was arrested and brought back to Arkansas in May 2000, but that she left after he said he wanted to talk to a lawyer. He apparently was referring to retaining counsel which the circuit court gave him two opportunities to consummate at arraignments on June 5, 2000, and July 10, 2000.

Doby cites this court to Rule 17.3(a) of the Rules of Criminal Procedure for the proposition that, following a discovery motion, the prosecutor was under a duty to obtain materials in the possession of other governmental units and provide that information to defense counsel. Rule 17.3(a) reads:

(a) The prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be discoverable if in the possession or control of the prosecuting attorney, upon timely request and designation of material or information by defense counsel.

Doby, accordingly, maintains that it was the prosecutor’s duty to assemble all discoverable material and transmit that information to defense counsel following a timely request. Doby contends that that was not done. Instead, public defender Teri Chambers testified at the speedy-trial hearing that she made a telephone request to Garfield Bloodman, chief deputy prosecuting attorney, for the material at issue, which included the medical examiner’s report, crime lab reports, and crime scene information. Mr. Bloodman, however, could only recall a letter dated October 30, 2000, from Teri Chambers requesting that material. This request was made five days after she had moved the circuit court to continue Doby’s trial. Chambers later wrote to the Pine Bluff Police Department, requesting information relating to the case. She contends that her office did not have sufficient information to defend Doby until March 2001.

Rule 17.3(b) gives defense counsel additional recourse for obtaining discoverable material from a prosecutor:

(b) If the prosecuting attorney’s efforts are unsuccessful, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel where the material or other governmental personnel are subject to the jurisdiction of the court.

In this case, Teri Chambers, as public defender, did not take this second step on behalf of Doby. Moreover, she testified that she made a tactical decision to request a continuance instead of going to trial and moving to exclude State’s evidence not furnished to her.

The problem with Doby’s position, as we see it, is that the State Public Defender began representing him on September 30, 1999, and filed a discovery motion for him on October 6, 1999. In May 2000, a public defender also visited him in jail, according to his testimony, and she was rebuffed. However, nothing had been done by the public defender’s office to complete discovery prior to that time, even though that office was never relieved as counsel and a discovery motion was pending. Had the public defender’s office pursued discovery completion much earlier than it did, the discovery problem could have been averted. It is true that the public defender’s office knew Doby did not want its representation at least by June 5, 2000, and that he was interested in private counsel. It is also true that the public defender was reappointed on October 13, 2000. But the critical point is that Doby had appointed counsel all along in the form of the public defender’s office, which could have pursued the Rule 17.3(b) remedies much earlier than it did. In this court’s view, the public defender’s office should have pursued its October 6, 1999 discovery motion even though Doby had not been apprehended. Had it done so, it would have learned of the missing items. To now assert that this time after October 26, 2000, should be charged to the State because of incomplete discovery is not persuasive.

The time period involved here is 173 days. We believe that time is appropriately charged to Doby.

f. April 17, 2001, to October 23, 2001 189 Days.

The continuance from April 17, 2001, until January 28, 2002, was chargeable to the State by agreement of both parties, after the State withdrew its waiver of the death penalty. The true period at issue, however, is the period from April 17, 2001, until October 23, 2001, when Doby filed his speedy-trial motion. Moody v. Arkansas County Circuit Court, supra; Ibsen v. Plegge, supra. That period totals one hundred and eighty-nine days. This period is chargeable to the State, and, again, the State makes no argument to the contrary.

g. Summary

We summarize our speedy-trial analysis from the date of the criminal charges being brought, June 7, 1999, to the date of Doby’s speedy-trial motion, October 23, 2001, as follows:

Time Charged to State

May 4, 2000 — June 5, 2000: 32 days

Aug. 7, 2000 — Oct. 26, 2000: 80 days

Apr. 17, 2001 — Oct. 23, 2001: 189 days

Total: 301 days

Time Excluded

July 7, 1999 — May 4, 2000: 302 days

June 5, 2000 — Aug. 7, 2000: 63 days

Oct. 26, 2000 — Apr. 17, 2001: 173 days

Total: 538 days

Because the time charged to the State is less than twelve months, we hold that no violation of our speedy-trial rule occurred and that Doby is not entitled to a writ of prohibition.

II. Right to Counsel

Doby next contends that with respect to the hearing held on October 13, 2000, he was not represented by an attorney, which violated his Sixth Amendment right to counsel. The State counters that a petition for a writ of prohibition is not the proper vehicle for raising curtailment of one’s right to counsel. Rather, the State contends that this issue is one that is cognizable only on direct appeal. Therefore, it should not be addressed in a petition for extraordinary relief.

This court has held that prohibition operates to prevent an action from occurring and “ . . . will not lie for actions already taken.” Ballard v. Clark County Circuit Court, 347 Ark. 291, 293, 61 S.W.3d 178, 180 (2001) (citing May Const. Co., Inc. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000)). In the case at hand, the violation complained of, which was Doby’s lack of counsel at the October 13, 2000 hearing, had already taken place. Hence, prohibition does not lie to correct the prior alleged defect in the proceedings. Ballard v. Clark County Circuit Court, supra.

Petition denied.

       There is some confusion about what day the third attempt at Doby’s arraignment was made. The circuit court’s order of July 10, 2000, states that the hearing was continued until August 7, 2000, but the order entered the day of the hearing identifies the date as August 8, 2000. Both days were weekdays. Because the order ofjuly 10, 2000, and Doby’s abstract reflect the actual day of the hearing as August 7, 2000, that is the day this court will use.


author: Annabelle Clinton Imber, Justice.

text:
    NCS HEALTHCARE OF ARKANSAS, INC. v. W.P. MALONE, INC.
    02-244
    88 S.W.3d 852
    Supreme Court of Arkansas
    Opinion delivered November 7, 2002
    [Petition for rehearing denied December 12, 2002.]

      Rose Law Firm, by: David L. Williams and John D. Coulter, for appellant.

      Wright, Berry, Daniel, Hughes & Moore, P.A., by: Rodney P. Moore, for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, NCS Healthcare of Arkansas, Inc., appeals from a default judgment in favor of the appellee, W. P. Malone, Inc. The default judgment was entered following an order of remand from a federal district court. In the first point on appeal, NCS makes two arguments in support of its claim that the circuit court abused its discretion and erred as a matter of law when it entered the default judgment against NCS: (1) the federal pleadings filed in state court after remand satisfy the requirement of Ark. R. Civ. P. 55(a) that a party “plead or otherwise defend”as provided by the Arkansas Rules of Civil Procedure; and (2) the ten-day grace period under Ark. R. Civ. P. 55(f) that begins running “after service of notice upon defendants that the order remanding such case has been filed[,]” was never triggered. Because we agree with the latter argument, the circuit court’s order of default judgment must be reversed.

The merits of the case in circuit court are not at issue on appeal; so, we will only briefly recite the underlying claim. Malone acquired accounts receivable from NCS, including $334,734.68 owed to NCS by PHP Healthcare Corp. PHP filed a Chapter 11 petition for bankruptcy and a preference complaint against Malone to recover the payments made on the NCS receivable.

In August 2000, Malone filed a complaint against NCS in Clark County Circuit Court alleging a breach of the asset purchase contract and requesting indemnity for all losses in connection with the PHP receivable. In September 2000, NCS removed the case to federal court. The case moved forward actively in federal court for almost a year. Upon reconsideration of its earlier denial of Malone’s motion to remand, the federal court issued an order on July 11, 2001, remanding the case back to state court for lack of diversity. By a transmittal letter dated July 24, 2001, the federal district court clerk sent the circuit court clerk the following: (1) a certified copy of the order of remand; (2) a copy of the district clerk’s docket entries; and (3) the original of sixty-six pleadings filed in federal court. The federal district court clerk copied the July 24, 2001 transmittal letter to all counsel of record. On July 27, 2001, the transmittal letter was stamped filed in the circuit court clerk’s office.

At the same time NCS was contending that the federal court pleadings had been filed with the circuit clerk, on July 27 and were legally sufficient to constitute an answer, NCS nonetheless filed an answer to Malone’s complaint in state court on August 31, 2001, “out of an abundance of caution.” Shortly thereafter, Malone filed a motion for default judgment based upon NCS’s failure to answer the complaint in a timely manner as required by Arkansas Rule of Civil Procedure 55(f).

On November 16, 2001, the circuit court entered an order granting default judgment. In that order, the circuit court found that the order of remand from the federal court was filed in the circuit court on July 27, 2001, and that the federal pleadings were filed “in bulk.” The court also ruled that “[t]he federal court pleadings do not conform to the Arkansas Rules of Civil Procedure and have no bearing on this action.” Upon concluding that NCS’s answer filed on August 31, 2001 was untimely, the circuit court struck the answer, and granted Malone’s motion for default judgment pursuant to Ark. R. Civ. P. 55(a) and (f). Similarly, the circuit court denied NCS’s motion to set aside the default judgment. NCS appeals from the order granting default judgment and the order denying NCS’s motion to set aside the judgment.

On appeal, NCS initially contends that its answer included in the federal pleadings filed “in bulk” in state court upon remand of the case was sufficient to satisfy the “plead or otherwise defend” requirements of Ark. R. Civ. P. 55(a). Alternatively, NCS makes four other arguments: (1) the ten-day grace period set forth in Ark. R. Civ. P. 55(f) was never triggered because NCS was not served with notice that the order remanding the case had been filed in state court; (2) the circuit court abused its discretion in granting the default judgment and in refusing to set it aside after entry because any default was a result of mistake, inadvertence, surprise, or excusable neglect, and NCS had a meritorious defense; (3) if this court concludes that NCS was in default under Arkansas law, then the circumstances warrant a modification or reversal of existing law; and (4) the complaint failed to plead facts sufficient to state a claim for indemnification; and, therefore, Malone was not entitled to a default judgment.

Standard of Review

The standard by which we review the granting of a default judgment and the denial of a motion to set aside the default judgment is whether the trial court abused its discretion. Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998); Arnold & Arnold v. Williams, 315 Ark. 632, 870 S.W.2d 365 (1994). However, resolution of the issues on appeal requires this court to interpret Rule 55 of the Arkansas Rules of Civil Procedure. We construe court rules using the same means, including canons of construction, as are used to construe statutes. Moon v. Citty, 344 Ark. 500, 42 S.W.3d 459 (2001). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis need go no further. Id. We review issues of statutory construction de novo as it is for us to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). We are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id.

Rule 55 of the Arkansas Rules of Civil Procedure provides in pertinent part:

(a) When Entitled. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.
ifc sf: >fi
(f) Remand from Federal Court. Whenever a case has been removed to a United States court and thereafter remanded, no judgment by default shall be entered prior to the expiration of ten (10) days after service of notice upon defendants that the order remanding such case has been filed. Within such time the defendants may move or plead as they might have done had the case not been removed.

Ark. R. Civ. P, 55 (a), (f) (2002). We have held that default judgments are not favorites of the law and should be avoided when possible. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Because of its harsh and drastic nature which can result in the deprivation of substantial rights, a default judgment should only be granted when stricdy authorized and when the party affected should clearly know he is subject to default if he does not act in a required manner. Southeast Foods, Inc. v. Keener, supra; Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990).

The “Bulk” Filing of Federal Pleadings in State Court After Remand

NCS initially contends that the “bulk” filing in state court of the federal pleadings, including NCS’s answers to Malone’s original complaint and amended complaint, was sufficient to satisfy the requirement in Rule 55(a) that a party “plead or otherwise defend as provided by these rules.” We disagree.

This court has long held that after remand from federal court, a case stands as if it had never been removed from state court, and what happened in federal court has no bearing on the proceeding in state court. Steve Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995) (relying on Allstate Ins. Co. v. Bourland, 296 Ark. 488, 758 S.W.2d 700 (1988), cert. denied, 490 U.S. 1006 (1989)); B-W Acceptance Corp. v. Colvin, 252 Ark. 306, 478 S.W.2d 755 (1972); Trinity Universal Ins. Co. v. Robinson, 227 Ark. 482, 299 S.W.2d 833 (1957). Moreover, this line of authority has been expressly reiterated in Rule 55(f) that provides an opportunity for the defendant to plead as it “might have done had the case not been removed.” Ark. R. Civ. P. 55(f).

NCS’s reliance upon its federal pleadings in the state court proceeding is simply contrary to the policy consistently adopted by this court, as reflected in our case law and Rule 55(f) of the Arkansas Rules of Civil Procedure: Trial courts are instructed to proceed on remand as though the case had never been removed and defendants are instructed to plead as though the case had not been removed. A ruling in NCS’s favor on this point would not only require this court to overrule the above-cited precedent, but it would also contravene the plain language of Rule 55(f).

Furthermore, the federal pleadings at issue here had no bearing on the case after remand because federal pleadings do not necessarily conform with our rules of civil procedure. Federal courts only require “notice” pleadings; whereas Arkansas courts require “fact” pleadings. McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992); Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). In the instant case, the federal pleading is not addressed to the state court, does not bear a state court case number, and is not certified under Ark. R. Civ. P. 11 (2002). NCS’s answer in federal court also names different parties than were originally named in the state court action, and it includes a counterclaim and third-party complaint. Thus, the federal pleading fails to comply with the Arkansas Rules of Civil Procedure.

Another reason militates against our recognition of NCS’s federal answer as a responsive pleading in state court. If NCS’s federal answer were given full force and effect, the state court might also be bound by all sixty-six federal pleadings and any rulings by the federal court. This we will not do. Even in states that do not require a party to refile pleadings upon remand from federal court, the party is charged with the responsibility of making the trial court aware of the filings and must be able to show proof of service on the other party. Banks v. Allstate Indemnity Co., 143 Ohio App.3d 97, 757 N.E.2d 776 (2001). Here, the bulk filing of the federal pleadings in state court was merely a ministerial act by the circuit court clerk’s office. NCS took no affirmative action in state court. More importantly, NCS did not notify the state court or Malone that it intended to adopt the allegations of the federal pleadings as its state court responsive pleading.

The Ten-Day Grace Period Following Remand

Rule 55(f) provides, in part, “no judgment by default shall be entered prior to the expiration of ten (10) days after service of notice upon defendants that the order remanding such case has been filed.” Ark. R. Civ. P. 55(f) (emphasis added). A deputy clerk in the Clark County Circuit Clerk’s Office, Penny Ross, averred by affidavit that she acknowledged receipt of the documents from federal court by returning a copy of the transmittal letter to the federal district clerk “bearing our office’s July 27, 2001 ‘filed’ stamp.” However, she did not send a copy of the file-stamped transmittal letter or otherwise give notice of the July 27, 2001 filings to any attorney in this action.

Strictly construing the plain language of Rule 55(f), as we must, it is clear that the July 24, 2001 transmittal letter from the federal district court clerk to the Clark County Circuit Clerk did not serve notice upon NCS that the order remanding the case had been filed in the state court. That letter merely states that the federal district court clerk is sending the remand order, docket entries, and federal pleadings to the circuit clerk’s office. Furthermore, Rule 55(f) does not initiate the ten-day grace period on the filing date of the order of remand; rather, the grace period is triggered by service of notice upon the defendant that the order remanding the case has been filed in state court. Ark. R. Civ. P. 55(f).

Because we hold that NCS did not receive service of notice that the order remanding the case had been filed in state court, the circuit court’s order of default judgment must be reversed. We, therefore, do not address NCS’s other points on appeal.

Reversed and remanded.

Arnold, C.J., not participating.

       In a letter dated August 20, 2001, from Malone to NCS demanding setdement, Malone mentioned that the order of remand had been filed on July 27, 2001. Assuming,without deciding, that this letter served NCS with notice that the order had been filed, NCS’s August 31, 2001 answer would have been filed within the ten-day grace period because Ark. R. Civ. P. 6 provides that a time period of fourteen days or less is calculated omitting intervening weekends or holidays. Ark. R. Civ. P. 6(a) (2002).


author: Jim Hannah, Justice.

text:
    David SHARP and Carol Sharp v. STATE of Arkansas
    02-352
    88 S.W.3d 848
    Supreme Court of Arkansas
    Opinion delivered November 7, 2002

      Gordon, Caruth & Virden, P.L.C., by: Jeannie L. Denniston, for appellants.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

David and Carol Sharp appeal from an order of the Independence County Circuit Court that twenty-three video arcade machines be destroyed as illegal gaming devices under Ark. Code Ann. § 5-66-108 (Repl. 1997), and as devices constituting an illegal lottery under Arkansas Constitution Art. 19, § 20. The Sharps allege the devices were properly licensed, were legally possessed, and, therefore, are not subject to destruction. Whether the machines were licensed is not relevant. Because the machines were designed for the purpose of playing a game of chance whereby money or property will be lost or won, they constitute illegal gaming devices and are subject to destruction under Ark. Code Ann. § 5-66-104 (Repl. 1997). Because we hold the machines are illegal gaming devices, we need not reach the issue of whether the machines or their use may constitute a lottery. The order of the trial court is affirmed.

Facts

The Sharps established a business in Batesville with twenty-three machines they characterize as “video arcade machines.” The Sharps filed applications and paid for amusement machine stamps on the machines. On one application for amusement machine stamps, the Sharps denied that there was an automatic payoff device on the machines. This line was left blank on other applications. None of the legible applications declared that operation of the machines involved an element of chance. The copy of one application is obscured by receipts so it is not possible to determine what, if anything, was declared regarding automatic payoff or elements of chance.

The Sharps hired Trudy and Bill Dutton to run the business. One of the Duttons’ duties was to purchase prizes that customers could redeem with credits they won in playing the machines. According to the testimony of criminal investigator John Thomas, the machines are of at least two types: video poker and video slot machines. Thomas testified that he played a video poker machine by purchasing ten dollars’ worth of credits.' Depending on the outcome of play, which involved choosing which cards to keep and which to discard, he either won or lost credits. According to Thomas, winning credits entitled the player to continue to play, or if a player had won sufficient credits, to redeem the credits for a prize. Thomas further testified that on the slot machines, a player won or lost credits based upon what characters appeared on the monitor. As with the video poker machine, if players won on the slot machines, they received credits that allowed them to continue to play or to redeem the credits for prizes.

Based upon his investigation, Thomas, and investigator John Carroll, obtained a warrant and seized the machines. The Duttons were charged and pled guilty to the unclassified felony of running a gambling house. The Sharps intervened when the State filed a petition for destruction of the machines under Ark. Code Ann. §5-66-108 (Repl. 1997). The motion to intervene was granted at the same time the circuit court declared the machines to be illegal gambling devices and ordered them destroyed. This appeal followed, and the Sharps allege that the machines must be returned to them.

Standard of Review

Where, as in this case, a hearing on alleged gaming machines is held, and testimony is taken, the proceeding is a bench trial. Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001). Consequently, the standard of review is that of a bench trial. The issue is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Pre-Paid. Solutions, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We view the evidence in a light most favorable to the appellee and resolve all inferences in favor of the appellee. Id. Also, disputed facts and determinations of credibility are within the province of the fact-finder. Id.

Jurisdiction

In Slots, Inc. v. State, 342 Ark. 609, 30 S.W.2d 105 (2000), this court analogized the requirement of a certification under Ark. R. Crim. P. 15.2(e), that the contraband to be destroyed is no longer needed for evidentiary purposes, to an order under Ark. R. Civ. P. 54(b). In Slots, the appeal was dismissed without prejudice because there was no certification under Ark. R. Crim. P. 15.2(e).

In the case before us, the issue of whether the machines needed to be preserved for evidentiary purposes was before the trial court. The State filed the motion for destruction of the devices. The Duttons filed a Response to Petition for Destruction and asserted that the machines are evidence that is part of the ongoing criminal proceedings and should be preserved, until the final disposition of the criminal proceedings. The Sharps responded to the Petition for Destruction by intervening and asserting that the machines were legal and not subject to destruction. On August 6, 2001, a hearing was held in which the trial court stated that the petition by the State, the response by the Duttons, and the response by the Sharps had been read and considered. The trial court accepted the Duttons’ guilty pleas and entered a judgment of conviction and sentence against each of them. Then, the trial court considered the petition for destruction and whether the machines were illegal gaming devices or constituted a lottery. The trial court was thus presented with the issue of whether the machines needed to be preserved and con-eluded they did not need to be preserved when the order to destroy them was issued. Thus, this case is properly before us.

Gambling

The Sharps allege that the machines are legal amusement devices under Ark. Code Ann. § 26-57-402 (Supp. 2001). As proof, they offer documents showing they paid taxes on them as amusement devices. We note, however, that the cited statutes relate to taxes and not criminal conduct. We further note that Ark. Code Ann. §26-57-403 (a) (Repl. 1997) provides that the cited tax statutes, Ark. Code Ann. § 26-57-402 and § 26-57-404 (Supp. 2001), may not be deemed to legalize, authorize, license or permit a number of devices, including slot machines, or any machine equipped with any automatic payoff mechanism.

.Conversely to the Sharps, the State argues the machines are prohibited gambling devices under Ark. Code Ann. § 5-66-104. Section 5-66-104 prohibits devices designed for the purpose of playing any game of chance. Section 26-57-402(1) defines devices which provide amusement, diversion or entertainment. The following examples are given in Section 26-57-402:

radio rifles, miniature football, golf, baseball, hockey, bumper pool, tennis, shooting galleries, pool tables, bowling, shuffleboard, pinball tables, marble tables, music vending phonographs, jukeboxes, cranes, video games, claw machines, bowling machines, countertop machines, novelty arcade machines, other similar musical devices for entertainment, and other miniature games, whether or not such machines show a score, and which are not otherwise excluded in this subchapter;

Neither video poker nor slot machines are listed as amusement devices in Section 26-57-402.

In Rankin v. Mills Novelty Co, 182 Ark. 561, 32 S.W.2d 161 (1930), this court discussed Ark. Code Ann. § 5-66-104 (then Crawford and Moses Digest § 2630) in the context of a machine that distributed mints for a nickel. When one placed a nickel in the machine, one received not only the mints but also between two and twenty slugs. Rankin, 182 Ark. at 562. These slugs could then be used to play a game of baseball on the machine. Id. Mints could not be purchased with the slugs. Id. This court noted that there was an element of chance in the number of slugs one might receive upon putting a nickel in the machine. Rankin, 182 Ark. at 563. This court then stated, “The machine under consideration is attractive to children, and the fact that they may sometimes secure the right to play an attractive game- the opportunity varying with the number of slugs first received and upon ‘base hits’ made-induces them to spend their nickels, not for the mints but for the possibility of the game, and is gambling within the meaning of our statute.” Rankin, 182 Ark. at 563. Thus, because a person could deposit a nickel to take the chance of receiving enough slugs to play a game of baseball, rather than to purchase the mints, the machine was a game of chance, and it was an illegal gaming device under Section 5-66-104.

In Portis v. State, 27 Ark. 360 (1872) this court stated that gaming or gambling is “the risking of money between two or more persons, on a contest or chance of any kind, where one must be loser and the other gainer.” Portis, 27 Ark. at 362. This language was quoted in State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992), and more recently in Pre-Paid Solutions, supra. To be a prohibited gaming device, the device must be one that is adapted or designed for the purpose of playing a game of chance at which money or property may be won or lost. Pre-Paid Solutions, supra, (citing Rankin, supra). Where the machine is played to win or lose by hazard of chance, it is a gaming device. Pre-Paid Solution, supra (citing Howell v. State, 194 Ark. 109, 40 S.W.2d 782 (1931)).

The machine played by Thomas was one where the player either won or lost hands of poker. If the player won, he or she could use the credits won to play more games, or, if he or she had won enough credits, the credits could be redeemed for prizes. If the player lost all his or her credits, the game was over. The slot machine operated similarly, except instead of using cards, it was based upon the chance a certain pattern of objects would appear on the monitor. It is clear that the intent in using the credits to play the machines was to win or lose credits. Credits had to be purchased to commence playing the machine. The intent was to play a game of chance, that is the credits were risked in the hope that a good hand would be received in the case of poker, or that the images would appear in the proper order in the case of the slot machine. There was a risk undertaken between the player and the business, a contest of chance, whereby either the player or the business would be the winner. The other would necessarily be the loser. This is a game of chance. The trial court correctly found the poker and slot machines are illegal gaming devices and subject to destruction under Ark. Code Ann. § 5-66-104.

Lottery

Because we affirm the trial court’s finding that the machines are illegal gaming devices, it is not necessary to reach the issue of whether the games played on the machines is prohibited as a lottery under Article 19, Section 14, of the Arkansas Constitution. Pre-paid Solution, supra.

Affirmed.

Arnold, C.J., and Thornton, J., not participating.


author: Per Curiam.

text:
    Andra GAINES v. STATE of Arkansas
    CR 02-101
    88 S.W.3d 858
    Supreme Court of Arkansas
    Opinion delivered November 7, 2002

      No response from appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Per Curiam.

This case involves an appeal from the trial court’s denial of appellant’s petition for postconviction relief, pursuant to Ark. R. Crim. P. 37 (2000). Appellee, State of Arkansas, has filed a motion for compliance, calling certain deficiencies in appellant’s brief to this Court’s attention and requesting that the Court grant its motion and direct appellant to file a substituted abstract and brief that conforms to the rules of this Court pertaining to formatting and abstracting, pursuant to Ark. Sup. Ct. R. 4-1 (a) and 4-2(b)(3) (2002). We grant appellee’s motion.

Appellant has filed a brief in this appeal that clearly does not conform with the rules of this Court. The argument portion of appellant’s brief, consisting of nineteen pages, is entirely single-spaced. Arkansas Supreme Court Rule 4-1 (a) requires that briefs be double-spaced. The record does not reflect that appellant has been granted permission to file an overlength brief or has been exempted from the requirement that his brief be double-spaced.

In regard to abstract deficiencies noted by the appellee, it appears that appellant’s brief actually contains no abstract. Appellant raises thirty-two points on appeal, most of which allege that his trial attorney was ineffective; however, appellant has failed to abstract the records of both his trial and the Rule 37 hearings, as required by Ark. Sup. Ct. R. 4-2(a)(5) (2002). Without an abstract of the proceedings, this Court cannot address any of his arguments. See Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998)(holding that the Court cannot review a claim of ineffective assistance of counsel without an abstract of the trial testimony).

Because appellant has failed to comply with Rules 4-1 and 4-2, we are ordering him to file a substituted abstract and brief that conforms to the rules of this Court pertaining to formatting and abstracting. Appellant must file a complying abstract, addendum, and brief within thirty days from the entry of this order.

Motion for compliance granted.


author: Tom Glaze, Justice,

text:
    REPUBLICAN PARTY of ARKANSAS and Sally Stevens, A Member of the Pulaski County Election Commission v. The Honorable Collins KILGORE, Pulaski County Circuit Court, Thirteenth Division; Gus Wingfield; Democratic Party of Arkansas; Pulaski Circuit/County Clerk, Carolyn Staley; and Pulaski County Board of Election Commissioners
    02-1181
    98 S.W.3d 796
    Supreme Court of Arkansas
    Dissenting opinion delivered November 6, 2002
   Tom Glaze, Justice,

dissenting. In this case, a Pulaski County Circuit Court signed an emergency order extending voting hours to 9:00 p.m. on the night of the November 5, 2002, General Election. No petition for this relief had been filed with the Pulaski County Clerk, which is required to commence an action as mandated by Ark. R. Civ. P. 3. Moreover, no notice was given to all necessary parties who had an interest in this action. The circuit court’s order can be appealed or reviewed by this court only after the judge had his order filed and entered with the Pulaski County Clerk’s office. See Ark. R. Civ. P. 58 and Ark. R. App. P. — Civ. 4, which provide that an appeal filed prior to the entry of a final judgment or order is filed with the clerk of the trial court that tried the claim; see also Administrative Order No. 2, which reads that, for appeal purposes, a court’s order is effective only when the order is filed with the clerk’s office.

None of these rules were complied with. Instead, the Republican Party of Arkansas petitioned this appellate court, seeking to have us void the trial court’s order extending the hours of the election. The Republican Party, without any record or petition filed with the supreme court clerk, asked this court for an oral argument to present why the trial judge was wrong. Six members of this court gave the Republican Party and the Democratic Party of Arkansas an audience at about 9:00 p.m., November 5, so that they could argue the merits of the validity of the trial court’s order. The Pulaski County Board of Election Commissioners, the Pulaski County Clerk, and the voters were not represented when this court allowed the Republican and Democratic parties the opportunity to present oral argument via a telephone conference call. Neither party filed a written order, notice of appeal, or record for this court to review. In short, nothing was filed with this court in order for it to review the trial court’s unfiled order now on appeal. See Ark. R. App. P. — Civ. Rules 3 and 4. This court simply had no jurisdiction of the appeal of the trial court’s order. See also Ark. Sup. Ct. R. 6-1, regarding special proceedings, which provides that petitions for writs of prohibition, certiorari, or mandamus give this court jurisdiction when pleadings with certified exhibits from the trial court are filed with this court’s clerk. Nevertheless, the majority court proceeded to review and hear arguments on the trial court’s order, and then decided the trial court erred, thus voiding the lower court’s order. In doing so, this court violated every relevant appellate rule it has in order to render its oral decision.

Nothing was ever filed on November 5 to allow the court jurisdiction to review this matter. Never in this court’s history since 1836 has this court heard and decided an appeal or petition for a writ without the parties having filed a notice of appeal, record, and briefs so the court could deliberate properly to consider both the merits of the lower court’s decision and its authority to have decided the case in controversy.

Quite candidly, it appears the lower court, the parties, and this court got caught up in emotions in trying to obtain some type relief in an election which exhibited problems and allegations of irregularities. However, this court is a deliberative institution designed to bring issues into focus and render thoughtful decisions that bring such issues to a reasoned conclusion. In the instant case, this' court clearly should have refused to review the validity of the trial court’s order because this court had no jurisdiction to do so. Of course, the lower court’s order would have allowed voters to cast ballots after the statutorily required time at 7:30 p.m. However, if the votes cast after the 7:30 p.m. deadline were found to be illegal, those votes could subsequently be contested, purged, or not counted. See chapter 5, subchapter 8, of Title 7 of the Arkansas Code, setting out the procedures for election contests. On the other hand, since this court overturned the trial court’s order, those voters who appeared at 7:30 p.m. or afterwards are unidentifiable, as well as disfranchised.

I would be remiss if I did not point to our recent ballot-title case of Ward v. Priest, 350 Ark. 462, 88 S.W.3d 416 (2002), where this court said the following:

This case is like McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994), in which we denied a motion for expedited review where the motion and brief were presented to this court just five days prior to the election. We stated that such time limitations would not only be unfair to the appellee, it would also not give this court the time needed for deliberation of the issue or issues to be presented. Id.; see also Stilley v. Young, 342 Ark. 378, 28 S.W.3d 858 (2000); Mertz v. States, 318 Ark. 239, 884 S.W.2d 264 (1994).

While I remain confident that this court’s members meant well when handing down its oral decision in this case, the majority court totally ignored our rules and cases that are clearly intended to permit expedited appeals and extraordinary proceedings in a manner that would give us the time, records, and briefs to render a well-reasoned opinion. This case sets a dangerous precedent, and our court should confess it made a mistake and rectify it immediately.

        See subsequent dissenting opinion, delivered November 7, 2002.

       In the telephone conference call, the parties mentioned the case of State ex rel. Bush-Cheney 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000), as controlling here. However, that opinion dealt with an election matter that was initiated by the filing of petitions seeking to prohibit enforcement of a trial judge’s order. Our case substantially differs because the parties here did not comply with our rules of civil and appellate procedure.

       At the time of this writing, November 6, 2002, the Republican Party and Sally Stevens, a member of the Pulaski County Election Commission, have for the first time filed an emergency petition for writ of certiorari and a brief; however, the trial court’s and this court’s oral and unfiled orders were issued on November 5, and cannot be offered to establish a basis to rectify this court’s lack of jurisdiction when it rendered its oral decision of November 5.